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NO. 283l6

IN THE INTERMEDIATE COURT OF APPEALS

 .€°°?L:§

OF THE STATE OF HAWAFI

   

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A. EDWARD FYFFE, JR., Plaintiff-Appellant, v. EVA§ UE,
in her capacity as Trustee of the EVA M. HUE

REVOCABLE TRUST dated June 29, l98l; DOUG DAVIS;
ALVIN T. ITO, BOB COOK REALTORS, INCORPORATED, a

HaWaii corporation; ROBERT L. COOK, JR.; CATHY-

ANNE DESCOTEAUX (YOUNG), and MARK DONNELLY,
Defendants-Appellees, and CATHY-ANNE DESCOTEAUX

(YOUNG); JOHN DOES l-lO; JANE DOES l-lO; DOE
CORPORATlONS l-lO; AND DOE PARTNERSHIPS 1-lO,

Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 03-l-O688)

- 0 SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Reifurth, JJ.)

Plaintiff-Appellant A. Edward Fyffe (Fyffe), an

attorney appearing pro se, appeals from the November l6, 2006

Final Judgment of the Circuit Court of the First Circuit (circuit
court)1 in favor of Eva Hue, in her capacity as Trustee of the

Eva M. Hue Revocable Trust (Hue); Doug Davis (Davis), Hue's real

estate agent; Alvin T. Ito (Ito), Hue's former attorney; Bob Cook

Realtors, Inc., Robert L. Cook, Jr., and Cathy-Anne Descoteaux

1 The Honorable Bert I. Ayabe entered the Final Judgment. The Honorable
Kenneth E. Enright entered the August 12, 2003 "Order Granting Defendant Alvin
Ito's Motion to Dismiss First Amended Complaint (Filed on May 27, 2003)" and
"Order Granting Specially-Appearing Defendants Bob Cook
Realtors, Robert L. Cook, Jr., and Cathy Anne Descoteaux (Young)'s Motion to

Dismiss Plaintiff's First Amended Complaint Filed on April 11, 2003." The

Honorable Dexter D. Del Rosario entered the December l6, 2003 "Order Granting

Defendants Eva Hue, in her capacity as Trustee of the Eva M. Hue Revocable
l98l, and Doug Davis'[s] Motion for Summary Judgment

Trust dated June 29,
2004 "Order Granting Defendant Doe

Filed on August 7, 2003," the January 9,
No. 1 Mark Donnelly's Motion to Dismiss First Amended Complaint filed June 2,

2003 or in the Alternative for Summary Judgment," and the May 25, 2004 "Order
Granting Defendant Mark Donnelly's Motion for Sanctions, Attorney's Fees and
Costs, Filed February 1l, 2004, and Defendants Eva Hue, in her capacity as
Trustee of the Eva M. Hue Revocable Trust, Dated June 29, l981, and Doug
Davis'[s] Joinder in Defendant Donnelly's Motion for Sanctions, Attorney's
Fees and Costs Filed February l1, 2004, Filed February l3, 2004."

the AuguSt l8, 2003

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(Young) (collectively, Property Managers); and Mark Donnelly
(Donnelly), a prospective home buyer (collectively, Defendants).
Fyffe also challenges the award of attorneys fees and costs in
Defendants' favor.

Fyffe alleged in his complaint that Hue breached a
contract to sell him certain real estate located along Matsonia
Drive in Honolulu (the Property) where he had lived for several
decades; that Hue, Ito, and Davis made material
misrepresentations to Fyffe; and that Davis and Property Managers
tortiously interfered with the contract between Hue and Fyffe.
Fyffe demanded specific performance or damages for the breach
from Hue and damages for the torts from the remaining Defendants.

Upon careful review of the record and having given due
consideration to the arguments advanced by the parties, as well
as the relevant law, we resolve Fyffe's points of error as
follows:

(l) The circuit court properly treated Defendants'
motions to dismiss as motions for summary judgment. Where
"matters outside the pleadings [were] presented to and not
excluded by the court[,]" a motion to dismiss under HawaFi Rules
of Civil Procedure (HRCP) Rule l2(b) is converted into a motion
for summary judgment and treated accordingly under HRCP Rule 56.
Richards v. Midkiff, 48 Haw. 32, 38, 396 P.2d 49, 54 (l964)
(citations and internal quotation marks omitted). Given that the
circuit court reviewed the court records, files, and arguments of
counsel, it considered matters beyond the pleadings and
appropriately treated the Defendants' motions for dismissal as
motions for summary judgment.

(2) The circuit court did not err in granting summary
judgment in favor of Hue on Fyffe's specific performance and
breach of contract claims because there was no enforceable

contract.

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Fyffe takes alternative positions regarding how he and
Hue finalized an agreement to buy and sell the property. In his
opening brief, Fyffe argues that the terms of the agreement are
memorialized in a document dated March 8, 2003, but in his reply
brief Fyffe claimed that he and Hue had struck an oral agreement
"long before," perhaps in the late l990s.

The "agreement" made in the 1990s that Fyffe would buy
the property "subject to financing" cannot be legally enforced
because it is imprecise when stating the time and manner of
payment, essential terms of a contract for the sale of land. lp
re Sing ChonQ Co., Ltd., 1 Haw. App. 236, 239, 617 P.2d 578, 581
(1980). Because the agreement was that the sale would be made
"subject to financing" but "the financing clause lack[ed]
sufficient definiteness for a court to determine the terms of-

financing, the entire agreement is unenforceable." Nodolf v.

1 Nelson, 309 N.W.2d 397, 398-99 (Wis. Ct. App. 1981) (citations

omitted). As such, the statements Hue allegedly made in the
1990s were "[m]ere expressions of an intention to convey land at
a future time." Molokai Ranch, Ltd. v. Morris, 36 Haw. 219, 227
(Haw. Terr. 1942).

The March 8, 2003 document relied upon by Fyffe does

‘not comply with the Statute of Frauds because Hue had not signed

it. Hawaii Revised Statutes (HRS) § 656-1 (1993). Nevertheless,
Fyffe urges that the terms of the document be enforced as an oral
contract, regardless of the fact that the document states that
Hue's written acceptance was a condition precedent to enforcement
of the contract. Although parties who have expressly agreed that
they shall not be bound until a written document has been signed
and delivered may bind themselves by a subsequent oral contract,
1 Joseph M. Perillo, Corbin on Contracts § 2.1O (Rev. ed. 1993),
Fyffe offered no proof, compliant with HRCP Rule 56(e), of Hue's
intent to be bound without her signature. Therefore, Fyffe
failed to raise a genuine issue of material fact as to the

existence of an oral agreement, making summary judgment against

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Fyffe appropriate. See Island Holidavs, Inc. v. Fitzgerald, 58
Haw. 552, 563, 574 P.2d 884, 891 (1978). `

Because Fyffe failed to show there was an enforceable
contract, we need not consider whether the actions he cites as
part performance were sufficient to remove the bar of the Statute
of Frauds.

(3) The circuit court did not err in granting summary
judgment to Davis on the misrepresentation claims. We agree with
Davis that there is no admissible evidence of the alleged
misrepresentation. Fyffe's declaration stating that Davis
"blithely announced to both [Fyffe] and [Fyffe]'s mortgage broker
that [Fyffe] 'is not able to do the loan'" does not appear to be
"made on personal knowledge" nor does it "show affirmatively that
[Fyffe] is competent to testify to the matters stated therein,"
as required by HRCP Rule 56(e). Although Fyffe could attest to
what Davis allegedly said to him, Fyffe has not shown how he as
the recipient relied upon the misrepresentation. §ge Blair v.
I_l'lg, 95 Hawai‘i 247, 269, 21 P.3d 452, 474 (2001). Fyffe does
not aver that he was present when Davis allegedly made the
comment to Fyffe's mortgage broker. As such, Fyffe's
declarations provide no basis to deny summary judgment to Davis
on the misrepresentation claim.

(4) Summary judgment in favor of Davis, Ito, the
Property Managers, and Donnelly was not erroneous where Fyffe
alleged tortious interference with contractual relations but
failed to show there was an oral or written contract, an
essential element of the tort. Lee v. Aiu, 85 HawaFi 19, 32,

936 P.2d 655, 668 (1997). Fyffe's alternative suggestion that
they had tortiously interfered with prospective contractual
relations was not timely pleaded. §§§ HRCP Rule 15(a).

(5) Fyffe failed to cite any law supporting his claim

that he was denied equal protection as one of a class of "lawyers

of some age and inexperience." A wealth of case law, however,

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denies suspect class status to lawyers in general and lawyers
with certain expertise in particular. See, e.g., Onviuke v. New
Jersey State Supreme Court, 435 F. Supp. 2d 394, 405 (D.N.J.
2006) ("[L]awyers are not a suspect class for equal protection
purposes[.]"); Bertleson v. Sacks TierneV, P.A., 60 P.3d 703, 707
(Ariz. Ct. App. 2002) ("Lawyers are not a suspect class within
the meaning of equal protection jurisprudence.") (citation and
internal quotation marks omitted); Nodvin v. State Bar of
Georgia, 544 S.E.2d 142, 145 (Ga. 2001) ("attorneys are not a
protected 'suspect class'"); State ex rel. Oklahoma Bar Ass'n v.
Minter, 961 P.2d 208, 214 (Okla. 1998) ("Lawyers are not a
suspect class."); Williams v. Foubister, 673 N.Y.S.2d 840, 843
(N.Y. Co. Ct, 1998) (matrimonial lawyers not a suspect class).
Fyffe's contention that the circuit court created a new suspect
class comprised of a subset of lawyers is meritless.

(4) The circuit court erred in awarding attorneys'
fees to Donnelly and Davis but did not err in awarding fees to
Hue.

Although generally each party pays its litigation
expenses, if a statute, stipulation, or agreement so provides, a
prevailing party may shift the fees to its opponent. TSA Int'l
Ltd. v. ShimiZu COrD., 92 HaWafi 243, 263, 990 P.2d 7l3, 733

 

(1999) (citations omitted). The circuit court relied on HRS
§ 607-14 (Supp. 2004), which states that the losing party in
assumpsit actions may be assessed the opposing parties'
attorneys' fees. Because Fyffe's claims against Donnelly and
Davis sounded in tort rather than assumpsit, the circuit court
abused its discretion in granting fees to davis and Donnelly
under HRS § 607-14. Kahala Roval Corp. v. Goodsill Anderson
Quinn & Stifel, ll3 HaWafi 25l, 281-82, l5l P.3d 732, 762-63
(2007).

However, Fyffe demanded specific performance and
damages against Hue for breach of contract. Where specific

performance is the requested remedy, the action is not in the

nature of assumpsit and HRS § 607-14 does not apply. Smothers v.

5

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Renander, 2 Haw. App. 400, 404-O5, 633 P.2d 556, 561 (1981).
However, Fyffe's alternative prayer against Hue was for damages
for the breach and also requested attorneys' fees, which "is a

significant indication that the action is in assumpsit.“ Kahala

Royal Corp., 113 Hawafi at 281, 151 P.3d at 763 (citation
omitted). In cases such as this, which involve both assumpsit

and non-assumpsit claims, a court "must base its award of fees,
if practicable, on an apportionment of the fees claimed between
assumpsit and non-assumpsit claims." Blair v. Ing, 96 HawaiU_
327, 332, 31 P.3d 184, 189 (2001) (emphasis omitted). The court
must examine whether claims where attorneys' fees are allowed can
be segregated from claims where they are not allowed, which can
be done by looking at whether the claims "involve a common core
of facts or are based on related legal theories." Porter v. Hu,
116 HaWaiT_42, 67-68, 169 P.3d 994, 1019-20 (App. 2007).
Fyffe‘s demands for damages and specific performance were based
on a common set of facts and argued simultaneously before the
circuit court. As such, it would be "impracticable, if not
impossible, to apportion the fees between the assumpsit and non-
assumpsit claims." Kahala RoVal Corp., 113 Hawafi at 282, 151
P.3d at 763 (quoting §lai;, 96 Hawai‘i at 333, 31 P.3d at 190)
(internal quotation marks omitted). Accordingly, the circuit
court did not abuse its discretion in awarding attorneys' fees to
Hue. However, Hue's attorney, who also represented Davis,
submitted a joint billing to the court in his request for
attorneys fees, and the record does not reflect an apportionment
between his clients' respective fees. Similarly, the record does
not reflect what apportionment, if any, the circuit court2 made
between the attorneys' fees attributable to the assumpsit claim
against Hue and the non-assumpsit claim against Davis,

Therefore, IT IS HEREBY ORDERED that the November 16,
2006 Final Judgment is AFFIRMED. The attorneys' fees awards to

2 The Honorable Dexter D. Del Rosario issued the May 25, 2004 order
awarding attorneys' fees.

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Donnelly and Davis are vacated.

redetermination of the attorneys'

The case is remanded for a

fee award to Hue.

DATED: Honolulu, Hawafi, August 31, 2010.

On the briefs:

A. Edward Fyffe, Jr.,
Plaintiff-Appellant pro se.

Keith K. Hiraoka,

Jodie D. Roeca

(Roeca, Louie & Hiraoka)
for Defendant-Appellee
Alvj_l'l T. I‘L',O.

Douglas H. Knowlton

and Toby M. Tonaki,

for Defendant-Appellees Eva
Hue, Doug Davis, Bob Cook
Realtors, Inc., Robert L.
Cook, Jr., and

Cathy-Anne Descoteaux-(Young).

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Presiding Judge

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Associate Judge

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Associate Judge

