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Sprague v. California Pacific Bankers & Insurance Ltd.12/27/2001
verbal, as well as quasi contractual obligations." Id. at 31, 946 P.2d at 1327 (citations omitted).
In cases where a plaintiff has filed an action asserting both assumpsit and non-assumpsit claims, a court must base its award of fees, if practicable, on an apportionment of the fees between assumpsit and non-assumpsit claims, TSA International Ltd., v. Shimizu Corp., 92 Hawaii 243, 264, 990 P.2d 713, 735 (1999), and award attorney fees to the prevailing party only on the assumpsit claim(s).
In this case, Tokunaga is the prevailing party on all claims. The trial court decided that both Counts II and III asserted assumpsit claims. We disagree with respect to Count II. We disagree with the conclusion that "Count II in contract alleging misrepresentation, bad faith and fraud[.]" But that is not the end of the matter. In Blair v. Ing, 96 Hawaii 327, 31 P.3d 184 (2001), the plaintiffs sued Thayer for professional negligence and breach of implied contract. The Hawaii Supreme Court concluded that " ecause the negligence claim in this case was derived from the alleged implied contract and was inextricably linked to the implied contract claim by virtue of the malpractice suit, we hold that it is impracticable, if not impossible, to apportion the fees between the assumpsit and non-assumpsit claims." Id. at 333, 31 P.3d at 190.
Whether this precedent applies in the instant case shall be decided on remand.
G.
HRS § 431:10-242 (1993) states as follows:
Policyholder and other suits against insurer. Where an insurer has contested its liability under a policy and is ordered by the courts to pay benefits under the policy, the policyholder, the beneficiary under a policy, or the person who has acquired the rights of the policyholder or beneficiary under the policy shall be awarded reasonable attorney's fees and the costs of suit, in addition to the benefits under the policy.
The only defendant upon which this statute possibly imposes liability is California Pacific. Therefore, the contention by Plaintiffs that the trial court reversibly erred when it refused to award to Plaintiffs attorney fees and costs from California Pacific, James Nottage, Nottage Insurance, and Tokunaga, pursuant to HRS § 431:10-242, is wrong with respect to all Defendants named except California Pacific.
IV. CROSS-APPEAL
A.
Defendants/Cross-Appellants contend that the trial court reversibly erred when it allowed Plaintiffs' experts to testify as to matters involving questions of domestic law and on matters for which no foundation existed.
We agree that it is a general rule "that witnesses may not give an opinion on a question of domestic law or on matters which involve questions of law." Create 21 Chuo, Inc. v. Southwest Slopes, 81 Hawaii 512, 522, n.4, 918 P.2d 1168, 1178, n.4 (App. 1996). In this appeal, however, (a) this is not an issue because it has not been properly preserved or presented, and (b) if it is an issue, it has no merit.
In relevant part, Hawaii Rules of Appellate Procedure (HRAP) Rule 28(b)(4) requires that the opening brief shall contain the following:
A concise statement of the points of error . . . . Where applicable, each point shall also include the following:
(A) when the point involves the admission or rejection of evidence, a quotation of the grounds urged for the objection and the full substance of the evidence admitted or rejected;
Points not presented in accordance with this section will be disregarded[.]
Defendants/Cross-Appellants' opening brief seriously violates HRAP Rule 28(b)(4). For example, their openi
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