NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-MAY-2023
07:54 AM
Dkt. 81 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JAMES KREITMAN, Plaintiff-Appellee,
v.
JAMES MILTON DAY, JR. and JENNIFER ELLEN DEMOSS DAY,
Defendants-Appellants,
and
JOHN DOES 1-100; JANE DOES 1-100; DOE PARTNERSHIPS 1-100;
and DOE CORPORATIONS 1-100, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC15100253K)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Defendants-Appellants James Milton Day, Jr. and
Jennifer Ellen DeMoss Day (collectively, the Days) appeal from
the Judgment in favor of Plaintiff-Appellee James Kreitman
entered on June 16, 2017.1 For the reasons explained below, we
vacate the Judgment in part and remand for further proceedings.
This case is about the Days' alleged failure to
disclose a leaking water line on real property on Hawai#i island
(the Property) they sold to Kreitman.2 The Days listed the
Property for sale in September 2012. The listing price was
1
The Honorable Melvin H. Fujino presided.
2
The facts in this section come from the unchallenged findings of
fact made by the circuit court after a jury-waived trial. See Okada Trucking
Co. v. Bd. of Water Supply, 97 Hawai#i 450, 459, 40 P.3d 73, 82 (2002) (noting
that unchallenged findings of fact are binding on the appellate court).
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$3.7 million. They signed a "Seller's Real Property Disclosure
Statement" on January 30, 2013. The Disclosure Statement did not
mention water leaks or excessive water usage.
During February 2013, a home inspection was conducted
for potential buyers of the Property. The inspector's written
report (the Woodbury Inspection Report) stated:
Plumbing:
1) The water shut off valve is located near the garage in a
recessed box. The valve and pressure regulator here are
partially buried in the soil, and the valve handle is quite
corroded. Remove some of the soil and replace the valve
handle.
2) There [sic] disclosure of apparent leakage in the
plumbing system, as bills are apparently high. The
caretaker present during my inspection related a leak
detection specialist was engaged to solve this problem, but
did not. Have a licensed plumber test for any leakage in
the water supply system.
The potential buyers did not purchase the Property.
The Property was on the market for over a year. On
December 30, 2013, Kreitman offered to buy the Property, subject
to various contingencies. The next day, the Days' realtor asked
them if she should provide Kreitman with the Woodbury Inspection
Report. The Days responded by email: "Hold on to the Woodbury
Inspection Report. Do not forward it to the buyer. The buyer
may request an inspection and we can address items on his
inspection report when we see what the inspector comes up with."
The Days then accepted Kreitman's offer. The Purchase Contract
was signed on December 31, 2013. The purchase price was
$2.7 million.
On January 3, 2014, Jennifer Day signed an Amendment to
the Disclosure Statement. The Amendment stated:
19. Water Line: In preparing the property for sale, the
sellers observed that the water bills showed abnormally high
consumption and contracted with Kona Labs to perform a leak
detection on the irrigation and main water supply lines into
the house. The initial test performed was an air test and
it disclosed line leakage. The irrigation lines were
isolated from the main water lines and retested with air and
leakage was found around several valves. The valves were
repaired and retesting showed the repairs to be tight. The
main water lines were tested with helium and were determined
to be leaking in several places. Three large water leaks
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were discovered and repaired where the water line crossed
the gas line and there is one leak that is in the process of
being repaired.
26. Pool: In getting the property ready for sale, the
sellers contracted with Big Island Leak Detection to test
the pool for leakage. A small 30-gallon per day leak was
detected. Pacific Blue H20 has been contracted to make the
repairs in early January 2014 using a high-pressure epoxy
injection to permanently seal the hairline cracks.
Additional: The filter in the koi pond is currently
malfunctioning, and is in the process of being repaired or
replaced. Work to be completed prior to closing.
Kreitman had the Property inspected on January 6, 2014.
On January 11, 2014, the Days and Kreitman signed Addendum #1 to
the Purchase Contract. Kreitman received a $10,000 plaster
credit for the pool, and the Days were required to complete
repair work to the pool and koi pond before closing. The
transaction closed and title to the Property was conveyed to
Kreitman on February 7, 2014.
About three months later, Kreitman received a water
bill showing the Property using over 5,000 gallons of water per
day. At that time, the Property was unoccupied but was being
maintained by a landscaper (Lindsey Swan-Lindsey) who had
previously worked for the Days. At Swan-Lindsey's suggestion,
Kreitman contacted Stephen Edmonds, an irrigation and landscaping
contractor. Edmonds found and repaired a leak in the water line
under the front lawn. He determined that there were no other
leaks in the water line going away from the house.
Kreitman then contacted Ron Miller, the contractor who
had installed the original plumbing on the Property. Miller took
Gary Taylor, a plumber, to the Property. Taylor determined there
were leaks somewhere outside the house. He recommended replacing
the water line. Kreitman had the line replaced. But water leaks
persisted.
Adam Broderson, a landscaper, went to the Property. He
shut off the backflow preventer on the water line coming into the
house. He determined there was a leak somewhere between the
backflow preventer and the Hawai#i county water meter. Broderson
replaced and re-routed that portion of the water line. After the
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work was completed the water bill for the Property — then
occupied — averaged 700 gallons per day.
Kreitman filed the action below on June 29, 2015. The
complaint alleged breach of contract, breach of implied covenant
of good faith and fair dealing, violation of Hawaii Revised
Statutes (HRS) Chapter 508D (Mandatory Seller Disclosures in Real
Estate Transactions), and intentional and negligent
misrepresentation.
The Days moved to dismiss the complaint. The circuit
court denied the motion. A jury-waived trial was held on
January 17 and 18, 2017. The parties submitted amended
stipulated findings of fact on January 27, 2017. The court
entered findings of fact, conclusions of law, and an order on
April 3, 2017 (Findings, Conclusions, and Order). The court
found in favor of Kreitman and against the Days, awarded damages
in the lump sum of $37,337.40, and awarded Kreitman attorneys'
fees in an amount to be determined. The Judgment, entered on
June 16, 2017, awarded Kreitman an additional $39,334.35 in
attorneys' fees and $4,868.37 in costs.3
This appeal followed. The Days raise six points of
error, which we've consolidated for discussion purposes:
(1) findings of fact (FOF) nos. 68, 70, and 76 were clearly
erroneous; (2) conclusions of law (COL) nos. 4, 5, 6, 7, 8, 9,
10, and 11 were wrong;4 (3) the circuit court erred in its award
and calculation of damages; and (4) the circuit court erred in
its award and calculation of Kreitman's attorneys' fees.
1. FOF nos. 68, 70, and 76 were not clearly
erroneous.
We review findings of fact under the "clearly
erroneous" standard. Est. of Klink ex rel. Klink v. State, 113
Hawai#i 332, 351, 152 P.3d 504, 523 (2007). A finding of fact is
clearly erroneous when the record lacks substantial evidence to
3
The Days have not appealed the cost award.
4
The opening brief fails to comply with Hawai#i Rules of Appellate
Procedure 28(b)(4)(C) but it appears that the Days are challenging these COLs.
4
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support the finding or when, despite substantial evidence to
support the finding, we are left with a definite and firm
conviction that a mistake has been committed. Id. "Substantial
evidence" is "credible evidence which is of sufficient quality
and probative value to enable a person of reasonable caution to
support a conclusion." Id. (citations omitted).
The circuit court found:
68. Steve Edmonds told Lindsey Swan-Lindsey that
from his inspection of the subject property and judging from
the rate at which the water meter was spinning, that there
were additional, substantial leaks that needed to be fixed.
He further stated that concrete in portions of the subject
property would probably need to be removed and the majority
of the water lines would need to be replaced in order to
remedy the leaks. Lindsey Swan-Lindsey reiterated this to
the [Days] via a telephone call to Mr. James Day. Ex. TT,
at 28. See also Ex. RR; First Am. Stip. FOF, at ¶¶ 30-31;
Trial Test. of Lindsey Swan-Lindsey.
Exhibit TT is the transcript of Edmonds' deposition,
portions of which were admitted into evidence by stipulation.
Edmonds testified:
Q Do you recall telling Mrs. Lindsey that judging
from the rate at which the meter was spinning, there were
additional and substantial leaks that needed to be fixed?
A Yes.
Q Do you also recall telling her that concrete
portions of the subject property would probably need to be
removed, and the majority of the waterlines would need to be
replaced in order to remedy the leaks?
A I believe we had that conversation, yes. The
installer of the original waterline placed it far under a
sidewalk, so it was impossible to get to.
Edmonds did not say when that conversation took place.
The stipulated findings of fact state:
30. Mrs. Lindsey claims that Mr. Day told her that
they had spent enough money trying to fix the water leaks
and they were not going to spend any more.
31. The Days deny receiving such a telephone call
from Mrs. Lindsey.
During trial Swan-Lindsey testified that she worked for
the Days when they owned the Property. They asked her to
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investigate the water bill because it was "high." Swan-Lindsey
asked "our irrigation guy" Edmonds to look for leaks on the two-
acre Property. There was nothing obvious, so she hired a leak
inspector named Frank. Frank found and fixed "several smaller
things in the irrigation lines" but that did not completely solve
the problem. Swan-Lindsey then hired Kona Labs, which found two
or three more leaks. Edmonds fixed those leaks and "the water
meter was better for sure but, again, it was still [spinning.]"
Swan-Lindsey then talked with Jennifer Day and either
James Day or his brother, Joe Day. She testified:
I let them know that we had repaired several leaks and
that the meter was still going, and then it was [Edmond]'s
suggestion that we lay a whole new water line.
Q Did you say anything to them about removal of
concrete?
A Yeah. Basically the water line, the existing
main water line looked like it was underneath the sidewalk
of the house. So not really an easy place to get to and
repair. So it was advised that we put a whole new water
line outside of the concrete in the plants there so we could
get to it and fix it.
On cross-examination Swan-Lindsey testified:
Q And after seeing that the water meter was still
spinning but slowed down, you called Mr. Day on your
telephone?
. . . .
A Yes.
The Days argue that "[i]t was clearly erroneous for the
Circuit Court to find that on or around January 13, 2014, [Swan-
Lindsey] called Mr. Day." They point out that Exhibit RR
(Verizon Wireless telephone bills for "Lindsay [sic] Swan")
"reveal[s] she did not call Mr. Day on or around January 13,
2014." The Days' reply brief argues that FOF no. 68 "clearly
falls in the timeline of facts during the January 13, 2014
period." Although FOF no. 68 does not specify when Swan-Lindsey
called James Day, the parties stipulated that Edmonds "performed
repairs on the water line . . . on January 13, 2014." The
parties also stipulated that "Mr. Edmonds prepared and sent an
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invoice dated January 13, 2014 to the Days for the last of his
water line repairs along with pictures and a video of the leaking
pipe." The circuit court found, in FOF no. 75, that "[t]he Days'
testimony that they were not aware of the unresolved water issues
as of the time of closing was unconvincing." "It is well-settled
that an appellate court will not pass upon issues dependent upon
the credibility of witnesses and the weight of evidence; this is
the province of the trier of fact." Fisher v. Fisher, 111
Hawai#i 41, 46, 137 P.3d 355, 360 (2006) (citation omitted). FOF
no. 68 is supported by substantial evidence and is not clearly
erroneous.
The circuit court found:
70. [The Days] did not amend their disclosure
statement or make any reference to [Kreitman] about the
leaks identified and left unrepaired by Steve Edmonds on
January 13, 2014, or the potential for future leaks as
referenced by Steve Edmonds. See Trial Test. of James
Kreitman.
The Days argue they did not know there were
"additional, substantial leaks that needed to be fixed" or the
"potential for future leaks." We conclude there is substantial
evidence to support FOF no. 70, including the evidence supporting
FOF no. 68, described above. FOF no. 70 is not clearly
erroneous.
The circuit court found:
76. Approximately three (3) months after the close
of escrow, [Kreitman] became aware of a water problem when
he received his first full water bill. See Trial Test. of
James Kreitman; Trial Test. of Terri Kreitman.
The Days argue that Kreitman admitted reading the
Amendment to the disclosure statement, and therefore knew about
the water problem. The Amendment told Kreitman about leakage in
the irrigation lines, which "were repaired and retesting showed
the repairs to be tight[,]" and from the main water lines, three
of which were repaired and one "that is in the process of being
repaired." The Amendment did not mention the possibility of
additional leaks, or that the county water meter was still
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spinning. Instead, the Amendment appears to indicate that all
leaks had been identified and were repaired, or would be
repaired, before closing. FOF no. 76 is not clearly erroneous.
2. COL nos. 4, 5, 6, 7, 8, 9, 10, and 11
were not clearly erroneous or wrong.
A trial court's label of a finding of fact or a
conclusion of law does not determine the standard of review. In
re JK, 149 Hawai#i 400, 406, 491 P.3d 1179, 1185 (App. 2021)
(citing Crosby v. State Dep't Of Budget & Fin., 76 Hawai#i 332,
340, 876 P.2d 1300, 1308 (1994)). Whether a determination is a
finding of fact or a conclusion of law is a question of law;
thus, the label's accuracy "is freely reviewable by reviewing
courts." Kilauea Neighborhood Ass'n v. Land Use Comm'n, 7 Haw.
App. 227, 229, 751 P.2d 1031, 1034 (1988).
We review conclusions of law under the "right/wrong"
standard. Klink, 113 Hawai#i at 351, 152 P.3d at 523. A
conclusion of law supported by the trial court's findings of fact
and reflecting an application of the correct rule of law will not
be overturned. Id. When a conclusion of law presents mixed
questions of fact and law, we review it under the "clearly
erroneous" standard because the court's conclusions are dependent
on the facts and circumstances of each individual case. Id.
The circuit court concluded:
4. [The Days] have breached their obligations under
Paragraphs I-1 and I-2 of the Purchase Contract by failing
to disclose material evidence of the true extent of water
leaks at the subject property in the Amendment to Real
Property Disclosure Statement dated 1/30/13 for [the
Property], which was executed by Jennifer Day on January 3,
2014, or to amend the disclosure statement after January 13,
2014, when advised of additional leaks of an unknown amount
and location that directly, substantially and adversely
affected the value of the subject property.
COL no. 4 is a combined finding and conclusion. The
Purchase Contract provided:
I-1 Seller's Obligation to Disclose. Pursuant to Hawaii
Revised Statutes Chapter 508D (for the sale of
residential real property), Seller is obligated to
fully and accurately disclose in writing to Buyer any
fact, defect, or condition, past or present, that
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would be expected to measurably affect the value of
the Property to a reasonable person (a "material
fact"). No later than Five (5) days [ten (10) days if
left blank] from the Acceptance Date, Seller shall
provide Buyer with a written Disclosure Statement
signed and dated by Seller within six (6) months
before or ten (10) days after the Acceptance Date.
Such Disclosure Statement shall be prepared in good
faith and with due care and shall disclose all
material facts relating to the Property that: (i) are
within the knowledge or control of Seller; (ii) can be
observed from visible, accessible areas; or, (iii) are
required to be disclosed under Section 508D-4.5 and
Section 508D-15 of the Hawaii Revised Statutes.
Seller acknowledges and agrees that the disclosure
requirements under Chapter 508D are in addition to all
other disclosure obligations of Seller required by law
relating to the sale of residential real property.
Furthermore, Seller's obligations under Hawaii Revised
Statutes Chapter 508D, as amended, regarding mandatory
disclosure of all documents pertaining to the Property
are set forth in Section M-1 below.
I-2 Seller's Obligation Upon Later Discovered Information.
Under Chapter 508D, if after Seller delivers a
Disclosure Statement to Buyer and prior to closing,
Seller becomes aware of information that was not
previously disclosed or that makes any statement in
the Disclosure Statement inaccurate, and said
information directly, substantially, and adversely
affects the value of the Property (called "Later
Discovered Information" in this paragraph), then
Seller shall provide an Amended Disclosure Statement
(a written statement prepared by Seller or at Seller's
direction) to Buyer within Three (3) days [or ten (10)
days if left blank] after the Seller's discovery of
the inaccuracy, and in any event, no later than twelve
noon of the last business day prior to the recorded
sale of the Property. Buyer's rights upon discovery
of Later Discovered Information and/or receipt of the
Amended Disclosure Statement are found in Paragraph
I-4. The information described in this paragraph
Later Discovered Information may arise from many
sources, including but not limited to, title
report(s), inspection report(s), survey report,
termite inspection report, condominium, cooperative,
subdivision, PUD, homeowner's/planned community
documents, and rental property matters.
COL no. 4 is supported by the circuit court's findings of fact
and the parties' stipulated facts, and reflects an application of
the correct rule of law.
The circuit court concluded:
5. Negligent misrepresentation requires that:
(1) false information be supplied as a result of the failure
to exercise reasonable care or competence in communicating
the information; (2) the person for whose benefit the
information is supplied suffered the loss; and (3) the
recipient relies upon the misrepresentation. Blair v. Ing,
95 Haw. [sic] 247, 269, 21 P.3d 452, 474 (2001).
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6. The [Days]' failure to disclose material
evidence of the extent of water leaks at the subject
property before execution of the Amendment to Real Property
Disclosure Statement dated 1/30/13 for [the Property] or to
amend the disclosure statement after January 13, 2014, when
advised of additional leaks of an unknown amount and
location, constitutes negligent misrepresentation. The
disclosures and non-disclosure by [the Days] were relied
upon by Plaintiffs [sic] to their detriment.
COL no. 5 is right. COL no. 6 is a combined finding and
conclusion. It is supported by the circuit court's findings of
fact and the parties' stipulated facts, and reflects an
application of the correct rule of law.
The circuit court concluded:
7. Under Hawaii Revised Statutes ("HRS"), Section
508D-1 and 508D-5, a seller or his agent has a duty to
disclose to the buyer all material facts, i.e., "any fact,
defect, or condition, past or present, that would be
expected to measurably affect the value to a reasonable
person of the residential property being offered for sale,"
so long as they are within the knowledge or control of the
seller or can be observed from visible, accessible areas.
8. HRS 508D-13 provides that if the sellers become
aware of new information regarding the subject property and
the information directly, substantially, and adversely
affects the value of the residential real property, the
seller shall provide an amended disclosure statement to the
buyer disclosing the material fact within ten (10) calendar
days after the seller's discovery of such information if the
seller discovers such information prior to the recorded sale
of the residential real property, and in any event, no later
than twelve noon of the last business day prior to the
recorded sale of the real property.
9. [The Days]' failure to disclose information in
the original disclosure form and failure to disclose
subsequently obtained information that directly,
substantially, and adversely affected the value of the
subject real property as set forth herein, constitutes a
violation of Hawaii Revised Statutes, Chapter 508D.
COL nos. 7 and 8 are right. COL no. 9 is a combined
finding and conclusion. It is supported by the circuit court's
findings of fact and reflects an application of the correct rule
of law.
The circuit court concluded:
10. Every contract contains an implied covenant of
good faith and fair dealing that neither party will do
anything that will deprive the other of the benefits of the
agreement. Best Place, Inc. v. Penn Am. Ins. Co., 82 Haw.
[sic] 120, 123, 920 P.2d 334, 337 (1996), as amended
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(June 21, 1996).
11. The [Days] breached the implied covenants of
good faith and fair dealing inherent in the Purchase
Contract by failing to cooperate with [Kreitman] in the
performance of the contract and failing to do everything
that the contract presupposes that each party will do to
accomplish its purpose.
COL no. 10 is right. COL no. 11 is a combined finding
and conclusion. It is not clearly erroneous, but it does not
form an additional basis for recovery of breach-of-contract
damages. Nor does it form the basis for recovery of tort
damages, because "there is no tort of bad faith outside the
context of insurance claims." Laeroc Waikiki Parkside, LLC v.
K.S.K. (Oahu) Ltd. P'ship, 115 Hawai#i 201, 229, 166 P.3d 961,
989 (2007) (citation omitted).5
3. The circuit court must either recalculate the
damage award or conduct a new trial on the
issue of damages.
The circuit court found, and the Days do not contest,
that:
85. Mr. Edmonds' charges for the [front lawn] water
line repairs amounted to $1,900.72, which was paid in full
by the Kreitmans. First Am. Stip. FOF, at ¶41.
. . . .
94. The Kreitmans were billed $34,134.54 by Clean
Sewer Lines [to replace the existing water line with Type K
copper line,] which was paid in full by the Kreitmans.
First Am. Stip. FOF, at ¶5l.
95. The amount billed by Clean Sewer Lines included
approximately $4,000 to $5,000 worth of gas line work
unrelated to the replacement of the water line. See Dep.
Tr. of Gary Taylor, at 29:15-23, 32:19-23, 33:7-12, 36:8-25.
. . . .
102. Mrs. Kreitman accepted Mr. Broderson's proposal
[to replace and re-route the water line between the backflow
preventer and the water meter,] and the work commenced on or
about February 6 or 7, 2015[,] and was completed in
approximately six or seven weeks. The Kreitmans paid the
5
Kreitman argues that the Days made this argument for the first
time on appeal, but the Days' motion to dismiss Kreitman's complaint argued —
correctly — that the tort of bad faith did not apply outside the context of an
insurance policy.
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estimated cost of $6,302.14 in full. First Am. Stip. FOF,
at ¶57.
(Emphasis added). Kreitman paid a total of $42,337.40 for
various work and material. The Judgment awarded "compensatory
damages" of $37,337.40. The difference of $5,000 appears to be
the amount that the circuit court approximated Kreitman paid for
gas line work unrelated to the water line replacement. Although
the circuit court found in favor of Kreitman and against the Days
on all four counts of the complaint, neither the Findings,
Conclusions, and Order nor the Judgment specified under which
count(s) the damages were awarded.
The Days argue that the circuit court erroneously
awarded damages for work and material over and above what was
necessary to repair any water leaks that existed when the sale
closed. Their argument has merit. Tort damages must have been
caused by the defendant's breach of duty. See, e.g., Exotics
Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawaii
277, 292, 172 P.3d 1021, 1036 (2007). Contract damages generally
attempt to give the injured party the benefit of the bargain by
awarding a sum of money that will, to the extent possible, put
them in as good a position as they would have been in had the
contract been performed. Kawakami v. Kahala Hotel Invs., LLC,
142 Hawai#i 507, 514, 421 P.3d 1277, 1284 (2018).
At least some of the damages awarded by the circuit
court were attributable not to the cost of repairing leaks that
should have been repaired by the Days, but to improvements to the
Property made by Kreitman. For example, the original waterline
was made of polyvinyl chloride (PVC) but Kreitman replaced it
with Type K copper line.6 Taylor (the plumber) testified that
"[s]ome things were done that weren't just to fix the water line.
It was an upgrade of the system they had." Taylor also testified
that "the only reason [a backflow preventer] was moved is for
6
The testimony indicates that copper pipe is of better quality —
and presumably more expensive — than PVC pipe, but the record on appeal does
not contain evidence of the price difference between PVC and copper pipe when
Kreitman had the work done.
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esthetics."7 The Days should not have been held liable for these
upgrade costs, under either a tort or contract theory of
recovery.
Awarding a lump sum of damages for different claims is
not reversible error. Rodrigues v. State, 52 Haw. 156, 175, 472
P.2d 509, 521 (1970). In this case, however, the circuit court's
failure to state the amount awarded for each claim makes it
impossible for us to amend the lump sum award when we have
determined that the court erred about the amount of the award or
the evidence necessary to sustain it. Id. The judge who
presided over the jury-waived trial of this case has retired and
is unavailable to classify or recalculate the damage award.
Accordingly, we remand to the circuit court for further
proceedings consistent with this memorandum opinion including, if
necessary, an evidentiary hearing or new trial on the issue of
damages only. See In re Elaine Emma Short Revocable Living Tr.
Agreement, 147 Hawai#i 456, 471 n.30, 465 P.3d 903, 918 n.30
(2020); cf. Hana Ranch, Inc. v. Kanakaole, 66 Haw. 643, 649, 672
P.2d 550, 554 (1983) (noting that under HRCP Rule 63, "a
successor trial judge cannot enter findings of fact and
conclusions of law in a case which was tried before his
predecessor.").
4. The circuit court must recalculate and
explain, if necessary, its award of
attorneys' fees.
A "trial court's grant or denial of attorneys' fees and
costs is reviewed under the abuse of discretion standard."
Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92, 105,
176 P.3d 91, 104 (2008) (brackets omitted) (quoting Kahala Royal
Corp. v. Goodsill Anderson Quinn & Stifel, 113 Hawai#i 251, 266,
151 P.3d 732, 747 (2007)). The same standard applies to a review
of the amount of an attorney's fee award. Chun v. Bd. of Trs. of
the Emps. Ret. Sys. of Haw., 106 Hawai#i 416, 431, 106 P.3d 339,
7
The circuit court did not apportion the amount Kreitman paid to
Taylor for relocating the backflow preventer vs. replacing the water line.
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354 (2005). An abuse of discretion occurs if the trial court has
clearly exceeded the bounds of reason or has disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant. Id.
The circuit court awarded Kreitman $9,334.35 in
attorneys' fees under Counts 1 (breach of contract) and 2 (breach
of implied covenant of good faith and fair dealing), and $30,000
under Counts 3 (violation of HRS Chapter 508D) and 4
(misrepresentation). Attorneys' fees were recoverable for
Counts 1 and 2 under HRS § 607-14 (subject to a twenty-five
percent limit), and for Count 3 under HRS § 508D-16(d).
Attorneys' fees were not recoverable for Count 4. The circuit
court did not explain how the allocation of attorneys' fees was
made. See Blair v. Ing, 96 Hawai#i 327, 332, 31 P.3d 184, 189
(2001). The amount of attorneys' fees recoverable under Counts 1
and 2 may also change depending on the circuit court's
recalculation of damages on remand. Thus, we vacate the award of
attorneys' fees and remand to the circuit court for proceedings
consistent with this memorandum opinion.
Based upon the foregoing, we vacate in part the "Final
Judgment in Favor of Plaintiff James Kreitman and Against
Defendants James Milton Day, Jr. and Jennifer Ellen Demoss Day"
entered on June 16, 2017, and this case is remanded for
proceedings consistent with this memorandum opinion.
DATED: Honolulu, Hawai#i, May 19, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Paul Alston, Chief Judge
Kristin L. Holland,
for Defendants-Appellants /s/ Keith K. Hiraoka
James Milton Day, Jr. and Associate Judge
Jennifer Ellen Demoss Day.
/s/ Karen T. Nakasone
Lisa Strandtman, Associate Judge
for Plaintiff-Appellee
James Kreitman.
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