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Toney v. Fauhiva10/28/2005
Plaintiffs-Appellants Bryan Toney (Bryan) and Lilibeth Toney (collectively, the Toneys) appeal from the June 16, 2004 Final Judgment in favor of Defendant-Appellee Lemoto "Ray" Fauhiva (Fauhiva), and the July 14, 2004 Judgment awarding Fauhiva $8,245.25 for costs and $5,745.00 for attorney fees. We affirm.
BACKGROUND
The Toneys were owners of residential land located in the District of North Kona, Hawaii, identified as Tax Map Key (3) 7-3-059:022 Lot 7-Q. During March 2002, the Toneys were in the process of constructing a residence on their property. They were operating pursuant to the "owner-builder" exception stated in Hawaii Revised Statutes (HRS) § 444-2(7) (Supp. 2004). During this time, the Toneys entered into a contract with Fauhiva, a licensed masonry contractor. In the contract, Fauhiva agreed to construct a retaining wall on the Toneys' property. Fauhiva completed construction of the retaining wall in April 2002. Later that year, on August 20 or 21, the retaining wall collapsed.
On December 10, 2002, the Toneys filed a Complaint, in the Circuit Court of the Third Circuit, seeking damages "including but not limited to the cost to [the Toneys] of clearing of collapsed wall(s) and rubble and excavation for replacement wall(s); labor and materials for the failed and replaced wall(s); payment for damages to adjoining residential property upon which the walls collapsed; costs and attorneys fees, for all of which [Fauhiva] is liable."
By leave of the circuit court, the Toneys, on July 16, 2003, filed their First Amended Complaint for Damages. In their First Amended Complaint, the Toneys contended inter alia that Fauhiva had failed to comply with the disclosure requirements imposed by HRS § 444-25.5 (Supp. 2003). Specifically, they alleged:
9. The contracted matter and [Fauhiva] and [the Toneys'] relationship and activities referred to above are subject to and governed by Chapter 444 of the Hawaii Revised Statutes and particularly Section 444-25.5 thereof.
10. [Fauhiva] failed to comply with and violated Section 444-25.5 of the Hawaii Revised Statutes and is entitled to the relief provided thereby and by Chapter 480 of the Hawaii Revised Statutes.
11. Because of [Fauhiva's] violation of an failure to comply with Chapter 441 and Section 444-25.5 thereof, [Fauhiva] has violated Chapter 480 of the Hawaii Revised Statutes, thereby entitling [the Toneys] to the relief provided by that Chapter.
A jury trial was held on February 24 and 25, and on March 2 and 3, 2004. At trial, at the conclusion of the Toneys' evidence, both parties moved for a directed verdict on the issue of the applicability of HRS § 444-25.5. The parties stipulated to the following: (1) the applicability of HRS Chapter 444 is solely a question of law; (2) the Toneys were owner-builders when they hired Fauhiva; (3) Fauhiva was a licensed contractor; and (4) HRS § 444-25.5 was not followed. Concluding that HRS Chapter 444 was not applicable, the circuit court orally granted Fauhiva's motion for directed verdict. The written order was filed on March 30, 2004.
On a special verdict form, the jury determined that Fauhiva was negligent in constructing the retaining wall, Bryan was negligent in connection with the construction of the retaining wall, Fauhiva's negligence was a 30 percent cause of the damages, and Bryan's negligence was a 70 percent cause of the damages. On June 16, 2004, the circuit court entered a Final Judgment that stated, in relevant part:
Pursuant to the March 30, 2004 Order granting [Fauhiva's] Motion for Directed Verdict with Respect to [the Toneys'] Hawaii Revised Statues § 444-25.5 Cl
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