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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000315
                                                              28-FEB-2014
                                                              11:33 AM




                            SCWC-12-0000315

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


        DONALD EDWARD KROG, in his capacity as Trustee of
    the Donald Edward Krog Living Trust, Dated March 25, 2010,
                  Respondent/Plaintiff-Appellee,

                                    vs.

        ELEANA UMILANI KOAHOU and YVONNE MOKIHANA KEAHI,
                Petitioners/Defendants-Appellants.


         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-12-0000315; CIV. NO. 11-1-1697-08)

                         MEMORANDUM OPINION
            (By: Nakayama, Acting C.J., McKenna, J.,
and Circuit Judge Nacino, in place of Recktenwald, C.J., recused,
              with Acoba, J., concurring separately,
                   with whom Pollack, J., joins)

          Respondent/Plaintiff-Appellee Donald Edward Krog, in

his capacity as trustee of the Donald Edward Krog Living Trust

(Respondent) purchased the former home of Petitioners/Defendants-

Appellants Eleana Umilani Koahou and Yvonne Mokihana Keahi

(Petitioners) from a third party following a non-judicial
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foreclosure sale.    Petitioners refused to vacate the property

after the sale.    Respondent filed a complaint for trespass and

ejectment and a motion for summary judgment in the Circuit Court

of the First Circuit (circuit court).        The circuit court granted

Respondent’s motion for summary judgment, entered its final

judgment and writ of ejectment in favor of Respondent, and

ordered Petitioners to pay Respondent damages for their trespass

and wrongful possession as well as attorneys’ fees and costs

under the theory of assumpsit.

           The Intermediate Court of Appeals (ICA) affirmed the

circuit court’s grant of summary judgment and award of damages

and attorneys’ fees and costs in a Summary Disposition Order

(SDO).   Petitioners filed an application for writ of certiorari

to this court challenging the damages and attorneys’ fees and

costs awards.   We conclude that the circuit court’s award of

damages was not erroneous.        However, we hold that the circuit

court erred in awarding attorneys’ fees and costs to Respondent

because the court lacked the requisite jurisdiction to order such

an award and because there was no legal justification for the

award.

                             I.    BACKGROUND

           In 2009, Petitioners received a notice of default from

MetLife Bank, N.A. (MetLife) requesting that Petitioners


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immediately pay $6,261.06 in past due mortgage payments on their

property at 1721 Akaakoa Street, Kailua, Hawai#i 96734 (the

Property).    On November 17, 2010, MetLife recorded a notice of

mortgagee’s non-judicial foreclosure under power of sale.             At a

public auction on January 6, 2011, Scott Kim purchased the

Property for $521,000.00.      Petitioners did not challenge the

foreclosure sale.

            Respondent purchased the Property from Kim for

$546,677.08 plus all associated costs.         Kim deeded the Property

to Respondent, and escrow closed on February 18, 2011.            However,

Petitioners’ continued occupation of the Property prevented

Respondent from taking possession.

            On August 8, 2011, Respondent filed a complaint for

ejectment and trespass in the circuit court.          Respondent

requested the ejectment of Petitioners, damages “in an amount

reflecting the reasonable value of the Property for the time

[Respondent] ha[d] been deprived of possession,” and costs and

attorneys’ fees.

            On November 21, 2011, Respondent filed a motion for

summary judgment arguing that there were no genuine issues of

material fact regarding his possession of legal title to the

Property.    In a declaration attached to his motion, Respondent

stated: “[I]t is my opinion as the owner of the Property that a


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fair and reasonable rental rate for the Property would be

$2,500.00 per month.”

           At a hearing on December 21, 2011, the circuit court1

granted Respondent’s motion for summary judgment as to all counts

contained in the complaint.      On January 26, 2012, the court

entered its order granting Respondent’s motion and concluding

that Respondent was the owner of the Property.

           On February 17, 2012, Petitioners filed a motion for

stay pending appeal to the ICA.       Petitioners also stated that

“[s]hould the Court require the posting of a supersedeas bond,

said bond should be based upon the reasonably certain damages for

delay that Plaintiff would incur by being deprived in the future

of possession of the property during the pendency of this

appeal.”   (Emphasis omitted).      To aid in the calculation of these

damages, Petitioners filed a declaration from real estate broker

Neil Sauvage stating that his “professional rental valuation

establish[ed] the fair monthly rental value of the property to be

$2,200 to $2,400 per month.”

           On March 5, 2012, Respondent filed a memorandum in

opposition to the motion for a stay and additionally argued that

he was entitled to an award of attorneys’ fees and costs.             In

that motion, Respondent contended that Petitioners’ proposed


     1
           The Honorable Karl K. Sakamoto presided.

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supersedeas bond was insufficient because, as the prevailing

party, Respondent was entitled to an award of attorneys’ fees and

costs pursuant to HRS § 667-33(c) (Supp. 2011).2             Respondent

stated, “Although [Respondent] has not yet filed his motion for

an award of attorneys’ fees and costs, the language of the

statute makes it clear that such an award is mandatory.”

(Emphasis added).

            In their reply memorandum to the motion for a stay,

filed March 9, 2012, Petitioners argued that Respondent was not

entitled to an award of attorneys’ fees because this was not an

action in assumpsit and HRS chapter 667 was similarly

inapplicable.

            On March 9, 2012, the circuit court entered its final

judgment in favor of Respondent and against Petitioners.             The

circuit court concluded that Respondent was the owner of the


      2
            HRS § 667-33(c) provided then, as it does now:

            The mortgagor and any person claiming by, through, or under
            the mortgagor and who is remaining in possession of the
            mortgaged property after the recordation of the affidavit
            and the conveyance document shall be considered a tenant at
            sufferance subject to eviction or ejectment. The purchaser
            may bring an action in the nature of summary possession
            under chapter 666, ejectment, or trespass or may bring any
            other appropriate action in a court where the mortgaged
            property is located to obtain a writ of possession, a writ
            of assistance, or any other relief. In any such action, the
            court shall award the prevailing party its reasonable
            attorney’s fees and costs and all other reasonable fees and
            costs, all of which are to be paid for by the non-prevailing
            party.

(Emphasis added).

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Property and ordered Petitioners to pay Respondent “$26,400 as

damages for their trespass and wrongful possession of the

Property from February 18, 2011 through December 21, 2011”             and

an additional $2,400 a month until Petitioners returned

possession of the Property to Respondent.         The circuit court also

issued a writ of ejectment against Petitioners.

          On March 13, 2012, the circuit court held a hearing on

Petitioners’ motion for a stay.       During the hearing, the circuit

court denied Petitioners’ motion.        The circuit court also stated

that Petitioners’ proposed supersedeas bond of monthly payments

of $2,400 was insufficient and that attorneys’ fees and costs

should be included in the calculation.         Petitioners responded by

reiterating their argument that there was no contractual or

statutory basis for the award of attorneys’ fees and costs.

Respondent stated: “[W]e’ll be separately filing a motion for an

award of attorney’s fees and costs.        We believe there’s

substantial case law that says in actions of this nature, in the

nature of ejectment, that attorney’s fees and costs are

awardable.”   (Emphasis added).

          By minute order of March 14, 2012, the circuit court

set the supersedeas bond at the amount of damages already awarded

($26,400), plus rental income for one year ($28,800), plus

Respondent’s attorneys’ fees and costs incurred from the

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initiation of litigation to the entry of final judgment.            The

circuit court ordered Respondent’s counsel to “turn over the

information necessary to compute the attorneys’ fees and costs

component of the supersedeas bond.”        (Capitalization omitted).

          On March 23, 2012, Respondent filed a memorandum

regarding the calculation of the supersedeas bond in which he

calculated that he had incurred $38,733.50 in attorneys’ fees and

$2,775.52 in costs.

          On March 29, 2012, Petitioners filed their notice of

appeal to the ICA.

          The circuit court did not enter its order awarding

Respondent $40,558.62 in attorneys’ fees and $968.87 in costs

until April 27, 2012.     This order also denied Petitioners’

February 17, 2012 motion for a stay pending appeal.

          On appeal to the ICA, Petitioners argued that the

circuit court had erred in (1) granting Respondent’s motion for

summary judgment despite genuine issues of fact, (2) awarding

damages without a valid legal or evidentiary basis, and (3)

awarding attorneys’ fees and costs where Respondent failed to

timely file a motion for attorneys’ fees and costs.

          In its brief SDO, the ICA concluded that Petitioners’

appeal was without merit and affirmed the circuit court’s orders

granting summary judgment and final judgment in favor of

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Respondent.   Krog v. Koahou, CAAP-12-0000315, 2013 WL 2149717, at

*1 (App. May 17, 2013) (SDO).

          On August 21, 2013, Petitioners filed an application

for writ of certiorari with this court arguing that the ICA erred

in affirming the circuit court’s award of damages and attorneys’

fees and costs.

                            II.   DISCUSSION

A.   The circuit court’s award of damages to Respondent was not
clearly erroneous

          In its final judgment, the circuit court awarded

Respondent damages due to Petitioners’ “trespass and wrongful

possession of the Property.”      “As in other tort actions, the

general rule is that the measure of damages in trespass actions

is such sum as will compensate the person injured for the loss

sustained, or for damages that have occurred or can with

certainty be expected to occur.”         87 C.J.S. Trespass § 132 (2013)

(footnotes omitted).     Damages are calculated as “the sum

necessary to make the victim whole,” including damages for “loss

of use of the property.”      Id.; see also Smith v. Bottomley, 30

Haw. 853, 858 (Haw. Terr. 1929) (“‘A wrongdoer is answerable for

all the injurious consequences of his tortious act’ . . .

[including] the value of the use and occupation of which the

lessors have been wrongfully deprived.” (quoting Bergquist v.


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Kreidler, 196 N.W. 964, 965 (Minn. 1924))).          Damages may also be

awarded in an ejectment suit “for all lost profits and damages

allegedly sustained by the plaintiff due to the defendant’s

wrongful possession of the property in question.”           25 Am. Jur. 2d

Contracts § 50 (2013).

            Upon the grant of summary judgment and the issuance of

the writ of ejectment, Respondent was entitled to damages equal

to the value of the use of the Property of which he had been

deprived.   The trial court’s calculation of the value of

Respondent’s loss of use of the Property is a finding of fact

that will not be disturbed unless it is clearly erroneous.

Allstate Ins. Co. v. Ponce, 105 Hawai#i 445, 453, 99 P.3d 96, 104

(2004).   Findings of fact are “clearly erroneous when, despite

evidence to support the finding, the appellate court is left with

the definite and firm conviction that a mistake has been

committed.”   Id.

            The circuit court calculated damages of $2,400 for each

month in which Petitioners maintained possession of the Property.

Accordingly, the court awarded Respondent $26,400 for the eleven

months in which Petitioners had wrongfully possessed the

Property, and additional damages calculated on a per diem basis

of $2,400 per month until Petitioners returned possession of the

property to Respondent.     The court apparently derived this value

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from the declarations submitted by Respondent and Petitioners.

In his declaration, Respondent stated that a reasonable rental

rate for the Property would be $2,500.00 per month.           The

declaration Petitioners submitted from real estate broker Neil

Sauvage stated that “the fair monthly rental value of the

property [was] $2,200 to $2,400 per month.”

          The admission of opinion evidence is within the

discretion of the trial court and will only be reversed for abuse

of discretion.    State v. Bermisa, 104 Hawai#i 387, 392, 90 P.3d

1256, 1261 (2004).    Opinions of lay witnesses are admissible when

they are “rationally based on the perception of the witness,

and . . . helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue.”           Hawai#i

Rules of Evidence (HRE) Rule 701.        This court has held that “[a]n

owner, by virtue of his ownership and consequent familiarity with

the land and real estate market, is generally held to be

qualified to give his opinion as to the value of his land.”             City

& Cnty. of Honolulu v. Int’l Air Serv. Co., 63 Haw. 322, 332, 628

P.2d 192, 200 (1981) (holding that the trial court did not abuse

its discretion in excluding the opinion testimony of an officer

of a corporate owner because that opinion was of less probative

value than that of an individual owner).

          Respondent’s evidence regarding the rental value of his

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property was based upon his knowledge of the area and his status

as the owner of the Property.       His opinion appears to have been

“rationally based” on his perceptions and helpful to the court’s

calculation of damages.     Additionally, as noted by Respondent,

the damages calculated by the circuit court actually fell within

the range of values presented in the declaration submitted by

Petitioners, rather than that of Respondent.

          The circuit court’s calculation of damages, based upon

the declarations submitted by Respondent and Petitioners, was not

a clearly erroneous estimation of the loss of use value suffered

by Respondent due to Petitioners’ trespass upon his property.

B.   The circuit court erred in awarding attorneys’ fees and
costs to Respondent

     1.   Jurisdiction

          The circuit court lacked jurisdiction to award

Respondent attorneys’ fees subsequent to Petitioners’ filing of

the notice of appeal because Respondent failed to file a motion

for the award of fees.     The filing of motions for the award of

attorneys’ fees and costs is governed by Hawai#i Rules of Civil

Procedure (HRCP) Rule 54(d)(2):
          Claims for attorneys’ fees and related nontaxable expenses
          shall be made by motion unless the substantive law governing
          the action provides for the recovery of such fees as an
          element of damages to be proved at trial. . . . Unless
          otherwise provided by statute or order of the court, the
          motion must be filed and served no later than 14 days after
          entry of an appealable order or judgment; must specify the
          judgment and the statute, rule, or other grounds entitling

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          the moving party to the award; and must state the amount or
          provide a fair estimate of the amount sought.

(Emphasis added).    Additionally, pursuant to HRCP Rule 7(b), a

motion may be made orally during a hearing:
          An application to the court for an order shall be by motion
          which, unless made during a hearing or trial, shall be made
          in writing, shall state with particularity the grounds
          therefor, and shall set forth the relief or order sought.
          The requirement of writing is fulfilled if the motion is
          stated in a written notice of the hearing of the motion.

(Emphasis added).

          In construing statutes or rules, “‘laws in pari

materia, or upon the same subject matter, shall be construed with

reference to each other.’”      Aloha Care v. Ito, 126 Hawai#i 326,

349, 271 P.3d 621, 644 (2012) (alterations omitted) (quoting HRS

§ 1-16 (1993)).    And, “[w]hen faced with ‘a plainly

irreconcilable conflict between a general and a specific statute

concerning the same subject matter,’ this court invariably favors

the specific.”    Kinkaid v. Bd. of Review of City & Cnty. of

Honolulu, 106 Hawai#i 318, 323, 104 P.3d 905, 910 (2004) (some

internal quotation marks omitted) (quoting Metcalf v. Vol. Emps.

Ben. Ass’n of Haw., 99 Hawai#i 53, 59, 52 P.3d 823, 829 (2002)).

Applying this principle to HRCP Rules 7(b) and 54(d)(2)(A), it is

apparent that HRCP Rule 54(d)(2)(A) sets specific requirements

for the filing and serving of motions for attorney fees and is

the controlling rule.     Pursuant to HRCP Rule 54(d)(2)(A), a

motion for attorneys’ fees must be filed and served no later than

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14 days after entry of the judgment, must specify the judgment

and the statute, rule, or other grounds entitling the award, and

must state the amount or provide a fair estimate of the amount

sought.

           In Respondent’s opposition to Petitioners’ motion for a

stay, and during argument, Respondent stressed that he “had not

yet” and that he would be filing a motion for attorneys’ fees and

costs.    Respondent himself did not intend his brief

justifications for the award of attorneys’ fees in his March 5,

2012 memorandum in opposition to Petitioners’ motion for a stay,

or his discussion of attorneys’ fees and costs during the March

13, 2012 hearing, to constitute the requisite “motion” for

attorneys’ fees and costs.      Instead, Respondent was simply

presenting arguments to justify the inclusion of attorneys’ fees

in the calculation of a supersedeas bond.         Additionally,

Respondent’s March 23, 2012 memorandum regarding the award of

attorneys’ fees and costs cannot constitute a motion of

attorneys’ fees and costs because it was filed after the circuit

court’s March 14, 2012     minute order awarding attorneys’ fees and

costs to Respondent.

            Respondent’s memorandum in opposition to Petitioners’

motion for a stay and his arguments during the March 13, 2012

hearing also fail to meet HRCP Rule 54(d)(2)(A)’s requirements

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for a motion for attorneys’ fees and costs.          Respondent’s

memorandum was filed four days prior to the court’s entry of

judgment on March 9, 2012; therefore it could not identify the

judgment on which the award was based.         Respondent’s opposition

also identified HRS § 667-33(c) as the grounds for the award and

made no mention of assumpsit, which was the basis of the circuit

court’s award.    During the March 13, 2012 hearing, Respondent

argued that the award of attorneys’ fees and costs was justified

under the theory of assumpsit, but Respondent failed to “state

the amount or provide a fair estimate of the amount sought,” as

required under HRCP Rule 54(d)(2)(A).        Respondent also failed to

identify the judgment on which the award of attorneys’ fees and

costs was based.

           Because Respondent did not file a timely motion for

attorneys’ fees and costs prior to the filing of the notice of

appeal, the circuit court was without jurisdiction to enter an

award of attorneys’ fees and costs subsequent to the filing of

the notice of appeal.     “The notice of appeal shall be deemed to

appeal the disposition of all post-judgment motions that are

timely filed after entry of the judgment or order.”           HRAP Rule

4(a)(3).   “Generally, the filing of a notice of appeal divests

the [circuit] court of jurisdiction over the appealed case.”             TSA

Int’l Ltd. v. Shimizu Corp., 92 Hawai#i 243, 265, 990 P.2d 713,

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735 (1999).    The circuit court only “retains jurisdiction to

determine matters collateral or incidental to the judgment, and

may act in aid of the appeal.”        Id.   Therefore, the circuit

court’s April 27, 2012 order awarding attorneys’ fees and costs

to Respondent is void for lack of jurisdiction.

      2.    Assumpsit

            Aside from the circuit court’s lack of jurisdiction to

award Respondent attorneys’ fees and costs, the award was also

erroneous because the circuit court based the award on a

misapplication of the theory of assumpsit.3          Hawai#i follows the

American Rule, which provides that “‘each party is responsible

for paying for his or her own litigation expenses’” except where

“‘provided for by statute, stipulation, or agreement.’”             Ranger

Ins. Co. v. Hinshaw, 103 Hawai#i 26, 31, 79 P.3d 119, 124 (2003)

(quoting TSA Int’l Ltd., 92 Hawai#i at 263, 990 P.2d at 734).

While a prevailing party generally may not recover attorneys’

fees and costs for an action brought under common law tort

theories, HRS § 607-14 (Supp. 2011) provides for the recovery of

attorneys’ fees and costs for actions brought under the theory of

assumpsit.    Pursuant to HRS § 607-14,



      3
            While the question of whether the circuit court erred in awarding
Respondent attorneys’ fees and costs under the theory of assumpsit is moot, we
address this issue, and the applicability of HRS § 667-33(c), to assist the
trial court on remand.

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           In all the courts, in all actions in the nature of
           assumpsit . . . there shall be taxed as attorneys’ fees, to
           be paid by the losing party and to be included in the sum
           for which execution may issue, a fee that the court
           determines to be reasonable; provided that the attorney
           representing the prevailing party shall submit to the court
           an affidavit stating the amount of time the attorney spent
           on the action and the amount of time the attorney is likely
           to spend to obtain a final written judgment, or, if the fee
           is not based on an hourly rate, the amount of the agreed
           upon fee. The court shall then tax attorneys’ fees, which
           the court determines to be reasonable, to be paid by the
           losing party; provided that this amount shall not exceed
           twenty-five per cent of the judgment.

(Emphasis added).    “[F]or purposes of HRS § 607-14, the party in

whose favor judgment was entered is the prevailing party.”

Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92, 120,

176 P.3d 91, 121 (2008).

           Hawaii’s courts have long recognized the common law

theories of assumpsit and tenancy at sufferance.           “‘[A]ssumpsit’

is ‘a common law form of action which allows for the recovery of

damages for non-performance of a contract, either express or

implied, written or verbal, as well as quasi contractual

obligations.’”    Blair v. Ing, 96 Hawai#i 327, 332, 31 P.3d 184,

189 (2001) (quoting TSA Int’l Ltd., 92 Hawai#i at 264, 990 P.2d

at 734).   Under the theory of tenancy at sufferance, the tenant

is liable in assumpsit to pay a “fair value of the premises for

use and occupation.”     Lawer v. Mitts, 238 P. 654, 660 (Wyo. 1925)

(“‘[A] tenant at sufferance, occupying by permission of the

landlord, was liable, upon an implied contract, in assumpsit for

use and occupation of the premises.’” (quoting Merrill v.

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Bullock, 105 Mass. 486, 490 (1870))).        A tenancy at sufferance is

created “‘[w]hen the tenant, whose term has expired by efflux of

time, instead of quitting the premises, as he ought to do,

remains in possession, holding over as it is called.’”

Schimmelfennig v. Grove Farm Co., 41 Haw. 124, 134 (Haw. Terr.

1955) (alterations in original) (quoting Decker v. Adams, 12

N.J.L. 99, 100 (1830)).     Where the tenant’s continuing occupation

is tortious, the tort may be waived and the property owner may

bring an action in assumpsit.       See Fountain v. Mackenzie, 32 Haw.

45, 49 (Haw. Terr. 1931) (“The rule is firmly established that

the tort may be waived and an action of contract brought in all

cases where the law implies a promise on the part of the

wrongdoer to reimburse the party injured by his act.”); see also

Herond v. Bonsall, 140 P.2d 121, 123 (Cal. Dist. Ct. App. 1943)

(“An action will lie for recovery of the reasonable value of the

use and occupation of real property irrespective of the question

of whether or not the use thereof by the occupant was tortious or

wrongful.   In such a case the tort, if any, may be waived and an

action based upon implied assumpsit is maintainable to recover

the value of the use of the real property for the time of such

occupation . . . .”)

            While a tenancy at sufferance gives rise to an action

in assumpsit, courts in this and other states have recognized the

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common law rule that, where there is no landlord tenant

relationship, there can be no tenancy at sufferance and no action

in assumpsit.    See Merrill, 105 Mass. at 490 (“At common

law . . . [if] the facts would not warrant the inference that

[the tenant] ever occupied the premises by contract, express or

implied, with the owner, but showed that he asserted an adverse

title, he was not liable to such an action.”); Smith v. Stewart,

6 Johns. 46, 48 (N.Y. 1810) (concluding that where a buyer and

seller entered into a contract for the sale of property and the

buyer took possession of the property but failed to complete the

purchase, the seller could bring an action for trespass and

ejectment, but not for assumpsit because there was no landlord

tenant relationship between the parties).         In Fountain, the

plaintiff brought an action for the recovery of the reasonable

value of the use and occupation of a property in Honolulu.              32

Haw. at 45-46.    The defendant alleged that her occupation of the

property was “under a claim of right and exercised in good fath.”

Id. at 46.   The Supreme Court of the Territory of Hawai#i

reasoned that an action in assumpsit could be brought only where

there existed an express or implied contract.          Id. at 49.      The

court stated:
          “[W]henever the action of assumpsit for use and occupation
          has been allowed, it has been founded and would seem
          necessarily to be founded upon contract either express or
          implied. The very term assumpsit presupposes a


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           contract. . . . To maintain the action for use and
           occupation, therefore, there must be established the
           relation of landlord and tenant, a holding by the defendant
           under a knowledge of the plaintiff’s title or claim, and
           under circumstances which amount to an acknowledgment of, or
           acquiescence in, such title or claim, and an agreement or
           permission on the part of the plaintiff. The action will
           not lie where the possession has been acquired and
           maintained under a different or adverse title, or where it
           was tortious and makes the holder a trespasser.”

Id. (emphasis added) (quoting Lloyd v. Hough, 42 U.S. 153, 158

(1843)).   The court concluded that because “there was no implied

contract on the defendant’s part to pay for the use and

occupation of the premises” there could be no action in

assumpsit.    Id.

           Here, Petitioners’ continuing occupation of the

Property after its sale to Respondent did not create a tenancy at

sufferance.    Petitioners never occupied the Property as tenants

and there never existed a landlord tenant relationship between

Petitioners and Respondent.      Additionally, Petitioners’

continuing occupation of the Property did not create an implied

promise to pay Respondent for the use of the Property where

Petitioners maintained that they were the owners of the Property.

           Respondent brought this suit pursuant to tortious

trespass and sought ejectment; Respondent may not now claim that

this is a suit in assumpsit in order to recover attorneys’ fees

and costs.    To determine whether the action is in the nature of

assumpsit “‘this court has looked to the essential character of


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the underlying action in the trial court.’”          Blair, 96 Hawai#i at

332, 31 P.3d at 189 (quoting Leslie v. Estate of Tavares, 93

Hawai#i 1, 5, 994 P.2d 1047, 1051 (2000)).         “The character of the

action should be determined from the facts and issues raised in

the complaint, the nature of the entire grievance, and the relief

sought.”   Id. (quoting Helfand v. Gerson, 105 F.3d 530, 537 (9th

Cir. 1997)).    This court will determine that an action arises in

assumpsit when “the actual factual allegations are such that

historically the action would have been brought in assumpsit.”

Leslie, 93 Hawai#i at 5, 994 P.2d at 1051 (quoting Helfand, 105

F.3d at 537).

           Respondent’s original complaint sounded in tort,

alleging trespass and seeking the ejectment of Petitioners.

Respondent stated that he was the rightful owner of the Property

and that after he had taken possession of the Property,

Petitioners entered and remained on the Property.           Respondent did

not claim any contractual relationship with Petitioners and

specifically stated that “there [was] no contractual or statutory

relationship” between Petitioners and him.         This action does not

arise from any contractual claims and therefore an award of

attorneys’ fees and costs is not justified under the theory of

assumpsit.



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     3.   HRS § 667-33(c)

          The award of attorneys’ fees and costs was also not

justified under HRS § 667-33(c), which provides limited grounds

for the award of attorneys’ fees and costs following non-judicial

foreclosure sales.    In 1998, Hawai#i enacted non-judicial

foreclosure laws -- HRS chapter 667, “Foreclosure by Action or

Foreclosure by Power of Sale” -- “to streamline the foreclosure

process by setting up a non-judicial foreclosure system which a

lender can utilize to foreclose on a property without having to

file a lawsuit and obtain court supervision.”          1998 House

Journal, at 365 (statement of Rep. Menor).         A provision of this

chapter modified the common law rules regarding tenancy at

sufferance and expanded the circumstances in which a prevailing

party may recover attorneys’ fees and costs:
          The mortgagor and any person claiming by, through, or under
          the mortgagor and who is remaining in possession of the
          mortgaged property after the recordation of the affidavit
          and the conveyance document shall be considered a tenant at
          sufferance subject to eviction or ejectment. The purchaser
          may bring an action in the nature of summary possession
          under chapter 666, ejectment, or trespass or may bring any
          other appropriate action in a court where the mortgaged
          property is located to obtain a writ of possession, a writ
          of assistance, or any other relief. In any such action, the
          court shall award the prevailing party its reasonable
          attorney’s fees and costs and all other reasonable fees and
          costs, all of which are to be paid for by the non-prevailing
          party.

HRS § 667-33(c) (Supp. 2011) (emphasis added).

          In interpreting a statute, this court follows

established rules:

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              First, the fundamental starting point for statutory
          interpretation is the language of the statute itself.
          Second, where the statutory language is plain and
          unambiguous, our sole duty is to give effect to its plain
          and obvious meaning. Third, implicit in the task of
          statutory construction is our foremost obligation to
          ascertain and give effect to the intention of the
          legislature, which is to be obtained primarily from the
          language contained in the statute itself. Fourth, when
          there is doubt, doubleness of meaning, or indistinctiveness
          or uncertainty of an expression used in a statute, an
          ambiguity exists.

Dejetley v. Kaho#ohalahala, 122 Hawai#i 251, 262, 226 P.3d 421,

432 (2010) (quoting Rees v. Carlisle, 113 Hawai#i 446, 452, 153

P.3d 1131, 1137 (2007)).

          Here, the plain language of the statute indicates that

where a mortgagor remains in possession of a property following a

non-judicial foreclosure sale, the “purchaser” may bring an

action for ejectment or trespass and the prevailing party shall

receive attorney’s fees and costs, in addition to damages.              The

term “purchaser” is undefined in HRS chapter 667.           However, we

may look to the language in other statutes upon the same subject

matter to construe the meaning of “purchaser.”          See HRS § 1-16

(2009).

          The first use of the term “purchaser” in HRS chapter

667 occurs in HRS § 667-31(a) (Supp. 2011): “After the purchaser

completes the purchase by paying the full purchase price and the

costs for the purchase, the mortgaged property shall be conveyed

to the purchaser by a conveyance document.” (emphasis added).



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From this use of the term, it appears that in HRS chapter 667

“purchaser” refers specifically to the party who purchases the

mortgaged property at the non-judicial foreclosure sale.

Therefore, HRS § 667-33(c) permits to party who purchases a

property at a non-judicial foreclosure sale to collect attorneys’

fees and costs after prevailing in an ejectment or trespass

action.

          While HRS § 667-33(c) provides for the original

purchaser of a property to collect attorneys’ fees in an

ejectment or trespass action, it is inconsistent with the

legislative purpose of this statute to extend the attorneys’ fees

provision to all subsequent purchasers.         The purposes of

simplifying and expediting the foreclosure process are not

furthered by permitting any purchaser to collect otherwise

unrecoverable attorneys’ fees and costs from a trespasser, if the

trespasser was formerly a mortgagor of the property, dispossessed

through the non-judicial foreclosure process.

          Applying HRS § 667-33(c) to this case, it appears that

had the original purchaser of the Property (Scott Kim) prevailed

in a suit for trespass and ejectment against Petitioners, Kim

would been entitled to the recovery of attorneys’ fees and costs.

However, HRS § 667-33(c) is not directly applicable to the

present situation in which Respondent, a third-party purchaser

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having no direct relationship to Petitioners, prevailed in a suit

for trespass and ejectment. Therefore, HRS § 667-33(c) does not

provide a statutory basis for the circuit court’s award of

attorneys’ fees and cost.

                            III. Conclusion

           The circuit court lacked jurisdiction to award

Respondent attorneys’ fees and costs and, furthermore, there was

no legal justification for the award of attorneys’ fees and

costs.   The supersedeas bond set by the circuit court was also

erroneous in that it included the attorneys’ fees and costs the

circuit court awarded Respondent.        Accordingly, we vacate the

circuit court’s award of attorneys’ fees and costs and the

circuit court’s order regarding the supersedeas bond and we

remand this case to the circuit court for further proceedings.

           DATED:   Honolulu, Hawai#i, Febrtuary 28, 2014.

Gary Victor Dubin,                       /s/ Paula A. Nakayama
Frederick J. Arensmeyer
and Zeina Jafar                          /s/ Sabrina S. McKenna
for petitioners
                                         /s/ Edwin C. Nacino
Theodore D.C. Young
and Andrew G. Odell,
and Wayne Nasser,
Kevin W. Herring,
and Steven R. Gray
for respondent




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