Hawaii Attorney Legal Blog

Happy Holidays from everyone in our office. It has been a tough year for the State of Hawaii and the United States. Still, our office has managed to weather the economic storm that has caused such pain across our great nation. I am grateful to our clients for their trust especially during this difficult period.

May you all have a safe and joyous holiday.

The Kaloko Dam flood was a terrible tragedy, about which I previously posted in September of 2007. I am happy to report that we have reached a successful settlement, which will allow our clients to restore their idyllic property.

Our clients' property, on the island of Kauai, was severely damaged by the Ka Loko Dam flood. I represented one of the largest property owners damaged by the Ka Loko Dam flood. Admittedly, I was part of a team of plaintiffs attorneys. (A case this size had to be handled by a team of attorneys). The case allowed me to work with some of Hawaii's best attorneys. It was also an honor to watch the manner in which this difficult case was handled by the Court. As an advocate, I was not always pleased with every ruling, however, the way the Court controlled the litigation was inspiring. I also participated in the mediation skillfully handled by Warren Price and Keith Hunter. It was conducted over several months and involved multiple parties and insurance carriers. This complex case involved every imaginable issue of law and procedure. The attorneys for the plaintiffs and the defendants handled this difficult case with the highest degree of courtesy and professionalism.

In my September 2007 Kaloko Dam blog, I wrote the following:

We are very proud to represent this family in their pursuit for justice. In a few years, we intend to write a follow up to this blog in which we will describe how we helped our clients restore their beautiful Kauai landscape.

This outcome will allow our clients to restore their home to the condition it was in before the flood. I also hope that this settlement allows the Kauai community to continue the process of healing from this tragedy.

Labels: Hawaii Real Estate Litigation, Mediation and Arbitration, Personal Injury

Hawaii attorney Philip R. Brown has been selected by his peers to be included in the 2010 edition of The Best Lawyers in America. Obviously, he is delighted to have received this great honor.

"For over a quarter of a century, Best Lawyers has been regarded- by both the profession and the public-as the definitive guide to legal excellence in the United States. Selection to Best Lawyers is based on exhaustive and rigorous peer-review survey ... by the top attorneys in the country."

Admittedly, legal professionals may disagree as to the "definitive guide to legal excellence in the United States". Best Lawyers, Martindale Hubbell , The Bar Register of Preemenient Lawyers and the American Trial Lawyers Association can all make solid claims to be the definitive guide to legal excellence. Philip Brown has now received the highest rating from each of those legal guides.

Philip Brown is listed in The Best Lawyers in America under Commercial Litigation. Mr. Brown has the highest ethical/legal rating (AV) from Martindale Hubbell. Mr. Brown is also listed by the American Trial Lawyers Association in the Top 100 Trial Lawyers. Finally, Philip Brown is listed in the Bar Register of Preeminent Lawyers under Civil Trial Practice, Commercial Litigation, and Personal Injury.

Labels: Civil Procedure and Trial Practice, Commercial Litigation, Office News, The Legal Profession

What does it mean when the attorney says I must pay "costs"?

Costs are typically any expense the attorney incurs while representing you. These expenses vary depending on the type of the case and the location of the witnesses. However, examples of these costs are as follows: photocopying, travel expenses, court reporter expenses, expert witness fees, postage, long distance telephone charges, legal research charges, parking, costs billed by medical provider, insurance company or other entity for copies of medical reports and/or billing statements.

In most contingency fee cases, the attorney agrees to advance payment for these costs, and the client remains responsible for reimbursement of said costs out of client's share of the proceed of any recovery obtained, whether by settlement or jury verdict. Any balance due and owing by client for costs advanced by attorney shall be deducted by attorney out of client's share of the proceeds of said recovery.

In cases where an attorney is retained on an hourly basis, attorneys advance payment of these costs. The client then reimburses attorneys by payment of a monthly billing statement which includes attorneys fees and costs for the monthly billing period.

Labels: Office News, The Legal Profession

The Real Estate Settlement Procedures Act (RESPA), 12 U.S.C.A Section 26, et seq, was enacted by Congress to "effect certain changes in the settlement process for residential real estate that will result:"

(1) in more effective advance disclosures to home buyers and sellers of settlement costs;

(2) in the elimination of kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services;

(3) in a reduction in the amounts home buyers are required to place in escrow accounts established to insure the payment of real estate taxes and insurance; and

(4) in slight reform and modernization of local recordkeeping of land title information.

12 U.S.C.A. Section 2601(b).

A particular RESPA disclosure that must be made by a lender includes the following:

Each person who makes a federally related mortgage loan shall disclose to each person who applies for the loan, at the time of application for the loan, whether the servicing of the loan may be assigned, sold, or transferred to any other person at the time while the loan is outstanding.

12 U.S.C.A Section 2605(a)(emphasis added).

The failure of a lender to make the above disclosure establishes a private right of action for the borrower against the lender. Sanborn v American Lending Network, 506 F.Supp.2d 917, 923 (D.Utah, 2007).

Labels: Hawaii Real Estate Litigation

A business associate recently asked me if I have been involved in a difficult trial recently, because I have not updated my blog since March 10, 2009.

The inactivity on my blog is not the result of being overworked from a trial. My failure to blog is the result of exhaustion caused by a far more happy occasion. I am proud to announce that on March 20, 2009 my wife Sarah and I were blessed with the birth of a daughter, Samantha Alana Brown. Samantha was six pounds ten ounces at birth. Currently her hobbies seem to be eating, sleeping and staring at a picture of hearts painted by her sister, Fiona.

Labels: Office News

A contracting party who fails to give proper notice and opportunity to cure any alleged breach, default, or defect (as expressly required in the contract) is in breach of the contract. See Kalaus v Prime Care Physician, 20 A.D. 3d 452, 454 (N.Y.A.D. 2 Dept., 2005)(Defendants breached the contract with plaintiff for failure to give plaintiff 30 days to cure plaintiff's breach as expressly provided in the contract. Plaintiff was awarded summary judgment on the issue of liability). The party who is held in breach for failing to give proper notice and opportunity to cure also loses any of its claims or defenses related to the other party's alleged breaches. Id. ("Based on the conclusion that that defendants breached the termination for cause provision of the employment agreement [for failing to give plaintiff notice of his breach and opportunity to cure], it is irrelevant whether the defendants did, in fact, have the requisite cause to terminate the plaintiff's employment.")(brackets added). See also The American Outdoorsman, Inc. v Pella Products, Inc., 144 P.3d 81, *8 (Kan.App., 2006)("[E]ven if American Outdoorsman's network change could be considered a material breach, Pella should not be allowed to assert this breach as a defense when it failed to give American Outdoorsman the opportunity to correct such breach.") Likewise, "an injured party that acts precipitously and terminates before it is entitled to do so loses its defense as well as the possibility of claiming damages for total breach, and will itself be liable for damages for total breach." Farnsworth on Contract section 8.18 (3d.ed., 2004).

Admittedly, the party breaching the contract could argue that (i) there was a mutual rescission of the agreement or (ii) it was orally modified. However, "to establish rescission by mutual consent, the contracting parties' acts and declarations must be inconsistent with the continued existence of the previous contract." AAA Uniform and Linen Supply, Inc. v. Barefoot, Inc., 17 S.W. 3d 627,629 (Mo.App. W.D. 2000) (emphasis added). Moreover, proof of these "acts and declarations" of "rescission must be clear, positive, unequivocal and decisive, and it must manifest the parties' actual intent to abandon contract rights." Id.

The second option, "a written contract can subsequently be orally modified if all of the requisites of a valid or enforceable agreement are met." Honolulu Federal Sav. And Loan Ass'n v. Murphy 7 Haw.App 196, 205 (Haw.App.1988). "A requisite is that the modification must be supported by new consideration." Id.

For a discussion of our Commercial Litigation Practice click
here .

Labels: Commercial Litigation