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NOT FOR PU'BLICATI()N IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPOR'I`ER
NO. 2845O
lN THE lNTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAlT
”£7}§"
LYNWOOD RORY JENKlNS, Plaintiff~App@lle€, vip se
DANIEL ALLEN, Defendant~Appellant M“
APPEAL FROM THE DlSTRICT COURT OF THE FIRST ClRCUlT
HONOLULU DIVlSION
(ClVlL NO. lRCO6~l~2642)
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Daniel Allen (Allen) appeals the
Judgment entered on December 4, 2006, by the District Court of
the First Circuit, Honolulu Division (district court).1
On appeal, Allen contends the district court erred by
(l) denying his Motion to Set Aside Default, filed on October 20j
2006 and (2) denying his "Motion to Set Aside Default and Default
Judgment" (2007 Motion), filed on February 14, 2007.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the applicable law, we resolve Allen's points of error as
follows:
(l) The district court did not abuse its discretion by
denying Allen's Motion to Set Aside Default, filed on October 20,
2006. Allen had previously defaulted by failing to appear at a
pre-trial conference on August 2l, 2006, Allen’s first motion to
set aside default was scheduled for hearing on September l8,
2006. Although a decision on Allen's motion does not appear in
the record, Allen failed to appear for another pre-trial
conference set for October l6, 2006. His second Motion to Set
Aside Default was filed on October 20, 2006.
1 The Honorable Faye M. Koyanagi presided.
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allen failed to carry his burden to prove that his
second default was not the result of inexcusable neglect. §QML
lnc. v. Sageco, lnc., 57 Haw. 73, 76, 549 P.2d ll47, 1150 (l976).
Allen's proffered explanation for failing to appear at the pre-
trial conference on October l6, 2006 was that data was lost on
his computer due to a power outage resulting from an earthquake.
Allen explained that his entire schedule was on his computer and
the information was retrieved after the scheduled pre-trial
conference. He also claims that he then sought assistance from
Legal Aid "to gain an understanding of what 1 could do." Allen
then filed his second Motion to Set Aside Default four days after
Vfailing to appear at a pre-trial conference.
The record does not support Allen's claim of excusable
neglect. When Allen filed his first Motion to Set Aside Default
on August 2l, 2006, he claimed that he “had accidentally left my
original document at the Mediation Center last week. 1 was under
the impression our time to meet today was l0:l0 a.m." The record
reflects that Allen does not rely exclusively on a computer to
apprise him of his schedule.
In addition, Allen's claim that he was unaware what to
do after he failed a second time to appear at a pre-trial
conference is also not supported by the record. Allen previously
moved to set aside his default on the same day that he failed to
appear on August 2l, 2006. Thus, Allen knew, when he failed to
appear for the October l6, 2006 pre-trial conference, that he
could file a motion to set aside default as he had done it
before.
(2) Allen filed his 2007 Motion pursuant to Rules 59
and 60 of the District Court Rules of Civil Procedure (DCRCP). A
motion for a new trial or to alter or amend a judgment shall be
served not later than 10 days after entry of the judgment. DCRCP
Rule 59(b), (e). The Judgment was entered on December 4, 2006.
Allen did not file his 2007 Motion until February l4, 2007.
Therefore, relief pursuant to DCRCP Rule 59 was not available.
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In his 2007 Motion, Allen also asserted that he "should
not have been defaulted simply because the electricity on our
island went out on the earthquake date in October of 2006 and so
[Allen] did not know exactly when he was supposed to go to court
since that information was on his computer." Allen further
asserted that the default and default judgment should be vacated
because the wrong measure of damages was used and the amount of
damages awarded was excessive.
Under DCRCP Rule 60(b), relief from a judgment may be
had for (l) "a mistake, inadvertence, surprise, or excusable
neglect," (2) "newly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial
under Rule 59(b)," (3) "fraud . . . , misrepresentation, or other
misconduct of an adverse party," (4) "the judgment is void," (5)
the judgment is satisfied, or (6) any other reason justifying
relief.' DCRCP Rule 60(b).
Allen's claim that the default should be set aside
because of his failure to appear at a pre-trial conference does
not satisfy any of the categories for relief stated in DCRCP
Rule 60(b)(l)-(5). We therefore turn to consider Allen‘s
"incorrect measurement" and "eXcessive damages“ arguments under
DCRCP Rule 60(b)(6).
"[A] basic precept of contract law is that a party who
sustains a loss by the breach of another is entitled to
compensation that will 'actually or as precisely as possible
compensate the injured party.'" Hi Kai Inv., Ltd. v. Aloha
Futons Beds & Waterbeds, Inc., 84 HawaFi 75, 80-8l, 929 P.2d 88,
93-94 (l996) (quoting Amfac v. Waikiki Beachcomber Inv. Co., 74
HaW. 85, l28, 839 P.2d lO, 32 (l992)).
The extent of plaintiff's loss must be shown with reasonable
certainty and that excludes any showing or conclusion
founded upon mere speculation or guess. “To authorize a
recovery of more than nominal damages, facts must exist and
be shown by the evidence which afford a basis for measuring
the plaintiff‘s loss with reasonable certainty. The damages
must be susceptible of ascertainment in some manner other
than by mere speculation, conjecture or surmise[.]" 15 Am.
Jur., Damages, § 23[.]
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Ferreira v. Honolulu Star-Bulletin, Ltd., 44 Haw. 567, 576, 356
P.zd ssi, 656 <1960>.
Allen does not dispute that he "agreed to provide to
[Jenkins] services valued at $3,500.00 in which [Allen] was going
to build a website." Thus, Allen argues that the remaining
amount of $l,300 ($4,800 less S3,500) is the maximum that Jenkins
can recover for the laptop. Allen also admits that "{a]t best,
[Jenkins] was entitled to the purchase price of $1,300 00 for the
replacement used laptop, and an additional $l,659.00 for the
additional software if the used computer he did not purchase to
cover or replace the one he agreed to buy from [Allen]."
There is no dispute that the cost of the website
package was $3,500. There is also no dispute that Jenkins did
not receive the website package. Because Jenkins paid for the
website package, albeit as part of all-inclusive package costing
$4,800, the $3,500 awarded as damages for the website package
appears to have been proven with certainty. Therefore, the
district court did not err by awarding $3,500 for the website
package.
we reject Allen's claim that the laptop award should be
limited to $l,300. As reflected in his email to Jenkins, Allen
stated, "[b]esides, the $l300 certainly wouldn't provide you
enough for the same software or the second computer." Thus,
Allen admitted that $1,300 was not sufficient to purchase a
replacement computer.
However, it was improper to award Jenkins more than the
cost of the replacement laptop because the evidence demonstrated
that the actual replacement cost was less than $2,600. The
district court should have awarded Jenkins $2,202.05 for the
laptop, which was the actual loss of the benefit of his bargain
as documented by a receipt presented to the district court.
Therefore, the award of $2,600 for the computer is vacated. Upon
remand, the district court shall amend the judgment to reflect an
award of $2,202.05 for the computer.
We reject Allen's contention that Jenkins was entitled
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NOT FOR PUB`LICA'!`]ON IN WEST'S HAWAI‘I REPOR'I`S AND PACIFIC REP()RTER
to a maximum of $l,659 for replacement software. Allen provided
no clear argument for such a limitation. lt appears that the
district court awarded Jenkins $5,000 for all of the software
that Allen did not deliver as promised. Jenkins's receipts
substantiated an award of only $4,203.03 for the software. In
Jenkins's summary of his software costs, only the costs for
software which were not delivered as promised should have been
awarded. These include Toon Boom Studio ($374.97), Digicell
FlipBook Pro ($999.00), Adobe Creative Suite Premium l.l
($920.39), Adobe Video Collection 2.5 ($827.52), Flash MX 2004
($446.25), Premiere Pro 7.0 ($343.24), and MicroSoft Office Suite
($291.66). The costs of the upgraded software should not have
been included because the upgrades were not part of the contract
between Jenkins and Allen. The award for software in the amount
of $5,000 is vacated. Upon remand, the district court shall
amend the judgment to reflect an award of $4,203.03 for software.
Allen also disputes the award of $l,665.00 for
interest. "Prejudgment interest, where appropriate, is awardable
under [Hawaii Revised Statutes (HRS)] § 636-16 [(l993)] in the
discretion of the court." Page v. Domino's Pizza, 80 HawaFi
204, 208, 908 P.2d 552, 556 (App. l995) (citation and internal
quotation marks omitted). We review the trial court's granting
or denial of a claim for prejudgment interest for an abuse of
discretion. ldg "Generally, to constitute an abuse of
discretion it must appear that the court clearly exceeded the
bounds of reason or disregarded rules or principles of law or
practice to the substantial detriment of a party litigant." Ld;
(citations and internal quotation marks omitted).
HRS § 636-16 provides, "[i]n awarding interest in civil
cases, the judge is authorized to designate the commencement date
to conform with the circumstances of each case, . . . and in
cases arising by breach of contract, it may be the date when the
breach first occurred.“ "The well-established purpose of the
statute is to allow the court to designate the commencement date
of interest in order to correct injustice when a judgment is
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delayed for a long period of time for any reason, including
litigation delays." Eage, 80 HawaFi at 209, 908 P.2d at 557
(internal quotation marks, citations, brackets, and ellipses
omitted). "Another acknowledged purpose of HRS § 636-16 is to
discourage recalcitrant and unwarranted delays in cases which
should be more speedily resolved." Ld4 (internal quotation marks
and citations omitted).
"When there is no express written contract fixing a
different rate of interest, interest shall be allowed at a rate
of ten per cent a year." HRS § 478-2 (2008); Eastman v. McGowan,
86 Hawai‘i 2l, 28-29, 946 P.Zd 1317, 1324-25 (1997) (trial court
did not abuse discretion in awarding prejudgment interest of ten
per cent per annum for breach of contract).
Here, the district court abused its discretion by
awarding prejudgment interest because it failed to state the date
when Allen breached his contract with Jenkins. Jenkins tendered
a check to Allen for $4,800 on April 15, 2005. Jenkins claimed
that "[o]n April 30, 2006 a year and 14 day [sic] after 1 entered
into the oral contract with Mr. Allen and exhausting every avenue
through endless emails trying to find an amicable solution to our
problems, 1 finally realized that 1 would have no other choice
than to settle the matter in district court." However, the
district court failed to enter findings of fact to designate the
date at which the prejudgment interest began to accrue.
The district court also failed to enter findings of
fact and conclusions of law regarding whether the judgment was
delayed for a long period of time and the award of prejudgment
interest is necessary to correct injustice. Tri-S Corp. v.
Western World lns. Co., 110 HawaiU.473, 49B, 135 P.3d 82, 107
(2006). Therefore, the award of prejudgment interest is vacated.
Upon remand, the district court shall enter findings of fact and
conclusions of law supporting its decision on the issue of
Jenkins's claim for prejudgment interest,
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Allen does not challenge the award of court costs and
other costs, therefore, those are affirmed.
Therefore,
IT 13 HEREBY ORDERED THAT the Judgment, entered on
December 4, 2006 by the District Court of the First Circuit,
Honolulu Division is affirmed in part, vacated in part, and the
matter is remanded to the district court for further proceedings
consistent with this summary disposition order.
DATED: Honolulu, Hawafi, February 9, 2010.
On the briefs:
R. Steven Geshell, ~ vi/f
for Defendant-Appellant. ° *
Presiding Judge
Lynwood Rory Jenkins,
Plaintiff-Appellee, pro se. /O 51
¢iZz¢a¢/
Associate Judge 1