Bill Text: HI SB2187 | 2012 | Regular Session | Introduced
Bill Title: Attorneys' Fees; Assumpsit Claims
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-20 - (S) Referred to JDL. [SB2187 Detail]
Download: Hawaii-2012-SB2187-Introduced.html
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THE SENATE |
S.B. NO. |
2187 |
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TWENTY-SIXTH LEGISLATURE, 2012 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to attorneys' fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 607-14, Hawaii Revised Statutes, is amended to read as follows:
"§607-14 Attorneys' fees in actions in
the nature of assumpsit, etc. In all the courts, in all actions in the
nature of assumpsit and in all actions on a promissory note or other contract
in writing that provides for an attorney's fee, 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]:
(1) The recovery of attorneys' fees shall be limited to attorneys' fees incurred in asserting or defending claims relating to the breach or non-performance of a contract, either express or implied, written or verbal, as well as quasi contractual obligations, or in an action where there is a mix of contract and non-contract claims, and the attorneys' fees incurred cannot be reasonably apportioned between the contract and non-contract claims;
(2) The classification by the complainant, cross-complainant, or counterclaimant of any claim in the pleading as being in tort or in the nature of assumpsit shall be binding upon the court, unless the party alleging that any specific claim is in the nature of assumption has first provided the party asserting the claims with twenty-one days' prior notice that unless the claims are withdrawn or appropriately corrected, the action shall be deemed in the nature of assumpsit and the party asserting the claims shall be subject to a motion for fees and costs; and
(3) 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.
Where the note or other contract in writing provides for a fee of twenty-five per cent or more, or provides for a reasonable attorney's fee, not more than twenty-five per cent shall be allowed.
Where the note or other contract in writing provides for a rate less than twenty-five per cent, not more than the specified rate shall be allowed.
Where the note or other contract in writing provides for the recovery of attorneys' fees incurred in connection with a prior debt, those attorneys' fees shall not be allowed in the immediate action unless there was a writing authorizing those attorneys' fees before the prior debt was incurred. "Prior debt" for the purposes of this section is the principal amount of a debt not included in the immediate action.
The above fees provided for by this section shall be assessed on the amount of the judgment exclusive of costs and all attorneys' fees obtained by the plaintiff, and upon the amount sued for if the defendant obtains judgment.
Nothing in this section shall limit the recovery of reasonable attorneys' fees and costs by a planned community association and its members in actions for the collection of delinquent assessments, the foreclosure of any lien, or the enforcement of any provision of the association's governing documents, or affect any right of a prevailing party to recover attorneys' fees in excess of twenty-five per cent of the judgment pursuant to any statute that specifically provides that a prevailing party may recover all of its reasonable attorneys' fees. "Planned community association" for the purposes of this section means a nonprofit homeowners or community association existing pursuant to covenants running with the land."
SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 4. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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Report Title:
Attorneys' Fees; Assumpsit Claims
Description:
Specifically limits fees recoverable for assumpsit claims to contract-related claims, unless there are contract and non-contract claims and the attorneys' fees incurred to assert or defend such claims cannot be reasonably apportioned. Makes the classification of any action in the nature of assumpsit and on a promissory note or other written contract that provides for the payment of attorneys' fees, as being in tort or in the nature of assumpsit to be binding upon the court, with certain exceptions.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
