Hawaii Attorney Legal Blog

In certain specific cases, a Plaintiff may bring a claim if someone has interfered with a prospective business advantage. The Hawaii Supreme Court has addressed the required elements of this tort in Hawaii as:

[T]he following elements have evolved into the tort of intentional or tortious interference with prospective business advantage: (1) the existence of a valid business relationship or a prospective advantage or expectancy sufficiently definite, specific, and capable of acceptance in the sense that there is a reasonable probability of it maturing into a future economic benefit to the plaintiff; (2) knowledge of the relationship, advantage, or expectancy by the defendant; (3) a purposeful intent to interfere with the relationship, advantage, or expectancy; (4) legal causation between the act of interference and the impairment of the relationship, advantage, or expectancy; and (5) actual damages.

Robert's Hawaii School Bus, Inc. v Laupahoehoe Transp. Co., Inc., 91 Hawaii 224, 258-59 (Hawaii, 1999).

With regards to determining whether there is a "valid business relationship or a prospective advantage or expectancy," the law is well settled that a "unilateral belief and hope that a contract would result" is "inadequate to sustain a cause of action" for tortious interference with prospective business expectancy. Gore v Shepard, 50 P.3d 705, 710-11 (Wyo., 2002) "A reasonable probability of a contract [ie. business advantage] is shown if there is a reasonable assurance of a contract in view of all of the circumstances." Id. (brackets added); See also, Sea-Pac Co., Inc. v United Food and Commercial Workers Local Union 44, 699 P.2d 217, 220 (Wash., 1985)("the plaintiff must show that the future opportunities and profits are a reasonable expectation and not based on merely wishful thinking.").

Moreover, the Defendant must have actually caused Plaintiff to lose a prospective business advantage. Proof of causation comes down to whether "absent the interference, the [prospective business] relations were reasonably likely to develop". Looney v M-Squared, Inc., 586 S.E.2d 44, 49 (Ga.App., 2003). Therefore, "in order to be liable, a defendant’s interference must cause the loss or, in other words, a defendant's conduct must not only qualify as improper interference, it must also actually induce the third party to terminate its relationship with the plaintiff." The Film and Tape Works, Inc. v Junetwenty Films, Inc., 856 N.E.2d 612, 620-21 (Ill.App. 1 Dist., 2006) See also Gruber v. Victor, No. 95 CIV. 2285, 1996 WL 492991 at *21 (S.D.N.Y., August 28, 1996). "[T]o maintain an action for intentional interference with prospective economic advantage there must be some certainty that plaintiff would have gotten the contract but for the defendant's interference." (citing Mandleblatt v Devon Stores, Inc., 521 N.Y.S.2d 672, 677 (1st Dept., 1987)(internal quotation omitted).

Labels: Commercial Litigation

Mediation has become a very effective litigation tool in Hawaii. We are asked about the possiblity of a mediation by clients and potential clients almost daily. Although mediation is practiced throughout the United States, the people of Hawaii, with their unique cultural history, seem particularly well-equipped to effectively use mediation. Although I was trained to practice law in New York, I moved to Hawaii in 1993. I have personally observed that Hawaii has a strong preference to mediation and that some of our finest jurists actively participate in this process.

For those unfamiliar with this practice, Mediation is a device in which parties to a dispute agree on an impartial third person who guides the litigants to a settlement using various negotiation and/or communication techniques. Although Mediation may serve several purposes, the overall goal is to assist the parties to find a way to solve their own problems usually through a negotiated settlement.

The selection of the mediator is critical. I believe that the parties should look for the following factors in a mediator:

1. The mediator has no conflict of interest. Obviously, if the mediation is to succeed, the litigants have to be able to rely that the mediator is completely unbiased and is attempting to guide them to a fair resolution of their dispute.

2. The mediator has adequate time to devote to the case. In Honolulu, some of the most talented mediators must be retained months in advance. If the potential mediator does not have time to devote to your case, find another mediator.

3. The mediator should be able to meet the parties’ expectations with regard to timing. Some cases absolutely must be resolved immediately. Counsel should take this into consideration when selecting a mediator.

4. The mediator should be completely candid and honest with all aspects of the process. If the potential mediator neglects to tell you about an important conflict until the mediation has begun, you may need a new mediator.

5. The mediator must be qualified. The goal is to settle the dispute. It does not necessarily aid the process if the mediator is a friend of all of the lawyers. The mediator does not have to be your friend. His or her job is simply to find a way to settle your case.

Finally, the litigants should understand that if a mediation is to be successful, they likely must be willing to compromise. If your litigation posture is such that you must "destroy" the opposing party, you certainly will not do so in a mediation. If you are not prepared to compromise, you are likely not ready to mediate.

For a description of our experience in mediations and arbitrations, please click the following link:
Mediation and Arbitration in Hawaii

Labels: Mediation and Arbitration

On July 18, 2008 this blog discussed the Hawaii Statute of Limitations. One of the main areas of dispute among attorneys is the date on which a Statute of Limitations "accrues" or begins to run. In many cases, it begins to run on the day of the incident or the injury. However, in certain specific cases the Statute of Limitations is "tolled". Examples include the following:

1. The "Infancy Toll"- H.R.S. 657-7, as interpreted by Hawaii courts, allows a tolling of the statute of limitation for individuals that are under the age of eighteen (infants). Gorospe v Matsui, 72 Hawaii 377, 381 (1991). This tolling has been referred to as the "infancy toll" and provides that the statute of limitations begins to run when the "infant" reaches eighteen rather than "after the cause of action accrued." Id. See also Kahale v City and County of Honolulu, 104 Hawaii 341 (Hawaii 2004). The purpose is to give infants more time to bring their cause of action. Kahale v City and County of Honolulu, 104 Hawaii at 358.

2. The Discovery Rule - Hawaii Courts have "employed the 'discovery rule', holding that a cause of action accrues when the plaintiff discovers, or reasonably should have discovered, the elements giving rise to their claim." Dunlea v Dappen, 83 Hawaii at 33.

For example, The Hawaii Supreme Court in Dunlea v Dappen extended the "discovery rule" to childhood sexual abuse cases. Dunlea v Dappen, 83 Hawaii 28, 34 (Hawaii, 1996). In Dunlea, the plaintiff was a 45 year old victim of rape by her father. Id. at 30-31. At age 17, plaintiff reported the rape, but it was not until she was age 44 that she realized the causal connection between her psychological injuries and the rape. Id. In Dunlea, the defendant brought a Motion to Dismiss the Complaint based on the expiration of the statute of limitations which was granted by the Circuit Court. In reviewing the Circuit Court's decision to dismiss, the Hawaii Supreme Court held as follows:

[W]e agree that the issue of when Dunlea [plaintiff] discovered, or should have discovered, that her alleged injuries were caused by Dappen's [defendant] alleged actions is a question of fact for the jury, we cannot hold as a matter of law that Dunlea [plaintiff] ascertained her alleged injuries and their causal link to Dappen's [defendant] alleged actions more than two years before she asserted her claim, or that her failure to recognize her alleged injuries and the cause of those injuries sooner was unreasonable. Certainly, a reasonable jury could find that Dunlea [plaintiff] filed suit within two years of discovering her alleged injuries and the cause of those injuries, given their nature and circumstances. We therefore hold that the motion to dismiss was wrongly granted.

Id. at 36 (emphasis added).

The "discovery rule" has also been used to toll the statute of limitations in other circumstances which are unrelated to minors.

Labels: Civil Procedure and Trial Practice

One of the first steps you should take before filing a lawsuit is to determine whether the Statute of Limitations has expired. A Statute of Limitations is the time period that you have to file a claim with the Court. Although every case is different, and you should always consult an attorney to determine the viability of your claim, a few of the recurring Statute of Limitations questions that we encounter in our cases include the following:

In Hawaii, the Statute of Limitations for a Breach of Contract case is six (6) years. The Statute states as follows:

The following actions shall be commenced within six years next after the cause of actions accrued, and not after:

(1) Actions for the recovery of any debt founded upon any contract, obligation, or liability, excepting such as are brought upon the judgment or decree of a court; excepting further that actions for the recovery of any debt founded upon any contract, obligation, or liability made pursuant to chapter 577A shall be governed by chapter 577A;
(2) Actions upon judgments or decrees rendered in any court not of record in the State, or, subject to section 657-9, in any court of record in any foreign jurisdiction;
(3) Actions for taking or detaining any goods or chattels, including actions in the nature of replevin;
(4) Personal actions of any nature whatsoever not specifically covered by the laws of the State.

H.R.S. 657- 1.
The Statute of Limitations for most personal injury cases in Hawaii is two (2) years. Specifically, the Hawaii l
aw states as follows:

Actions for the recovery of compensation for damage or injury to persons or property shall be instituted within two years after the cause of action accrued . . .

H.R.S. 657-7.

The Statute of Limitations for Unfair and Deceptive Trade Practices is generally four (4) years according to H.R.S. 480-24. Finally, the Statute of Limitations for fraudulent misrepresentation in Hawaii is six (6) years. H.R.S. § 657-1(4); Eastman v. McGowen, 86 Hawaii 21, 27 (1997).

For further guidance in determining which Statute of Limitations may be applicable to your specific case, refer to Hawaii Revised Statutes 657.

Labels: Civil Procedure and Trial Practice

One of the questions I am frequently asked is whether I believe the value of real estate in Hawaii will decline. The fact is, I am a trial attorney and rely on real estate experts to advise me about issues related to the value of Hawaii real estate and the duties that real estate professionals owe to their clients. However, like almost everyone else, I read about real estate. In the July 11, 2008 issue of The Pacific Business News ("PBN"), there was a very interesting article concerning the price of home sales in Hawaii. According to the PBN, the prices of homes in Hawaii dipped, while condo prices actually rose because the available volume declined sharply. The article states as follows:

While the number of home sales around Hawaii dropped by an average of 29 percent during the first half of this year, compared with 2007, prices remained resilient in most markets with single-family homes showing small declines and condominiums showing increases.
Condo prices so far this year are up on all islands, by as much as 10 percent, as prices ease back on single-family homes. Sales on Oahu are down by more than 26 percent compared with the first six months of 2007, but prices are on a par with that period. The Big Island and Kauai saw the greatest drops in the number of sales, especially Kauai, where single-family homes sales were 40 percent lower than the first half of last year.

http://www.bizjournals.com/pacific/stories/2008/07/14/story6.html

Labels: Hawaii Real Estate Litigation

When we started this office ten years ago, we decided to hire support staff who aspire to, one day, become attorneys. By so doing, we believed that we could be a positive influence on future Hawaii attorneys. I am proud to say that to date, we have had three former staff members become attorneys after working for me. My legal assistant, Cheryl-Ann Miyamoto, recently left the firm in order to attend the University of Hawaii William S. Richardson School of Law this fall semester. I am grateful to Cheryl for her hard work and wish her well in her future legal career. I am confident that in three years, Cheryl-Ann will be our fourth staff alumnus to pass the bar.

The newest member to our legal family, Fiamma Rago, recently moved to Honolulu from Pittsburgh, Pennsylvania. Fiamma graduated from The Pennsylvania State University in December, 2007 with a dual Bachelor of Arts degree in Political Science and Philosophy. Fiamma seems genuinely excited to begin her legal career with this office. Although Fiamma has only been with us for a short time, I am already thoroughly convinced that she will be an excellent lawyer. When Fiamma enters law school in 2010, it is my sincere hope that she will have seen, from my example, that the legal profession is not only rewarding, but honorable.

Good luck Cheryl. Welcome Fiamma.

Labels: Office News

A friend recently e-mailed me the link to an article from the June 22, 2008 Honolulu Star Bulletin.com column in which reporter Erika Engle wrote the following:

Certain blog authors' possession of an actual pulse may be questionable,...
****
A completely unscientific perusal of other large local firms websites didn't turn up blog links, but Honolulu attorney Philip R. Brown has one. His most recent entry was in February.

http://starbulletin.com/2008/06/22/business/engle

Ms. Engle seems to question, based on the recent inactivity of my blog, whether I have an "actual pulse". Although it is common for people to wonder whether trial attorneys actually have a heart beat, my doctor assures me that my pulse is fine. Still, Ms. Engle is correct about the inactivity of my blog. This office has been very busy the last few months and we have simply failed to update our blog. This is not an excuse, simply an explanation. So, there will now be far more activity on this blog. And not just so that we can prove to Erika Engle that I have a pulse.

Labels: Office News