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Oral Argument Before the Intermediate Court of Appeals

CAAP-11-0000999, Tuesday, May 5, 2015, 1:30 P.M.

SAINGOEN DAVIS, Plaintiff-Appellant/ Cross-Appellee v. GARY W. VANCIL, MARK VAN PERNIS and VAN PERNIS-VANCIL, a Law Corporation, Defendants-Appellees/ Cross-Appellants, and NICHOLLE DAVIS, Defendant

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney(s) for Plaintiff-Appellant/Cross-Appellee:

James J. Bickerton and Nathan P. Roehrig of Bickerton Lee Dang & Sullivan

Attorney(s) for Defendants-Appellees/Cross-Appellants:

Keith K. Hiraoka, James Shin, and Jodie D. Roeca of Roeca Luria Hiraoka LLP

COURT: Nakamura, CJ, Leonard and Ginoza, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Plaintiff-Appellant/Cross-Appellee Saingoen Davis (Saingoen) brought this action against Defendants-Appellees/Cross-Appellants Gary W. Vancil, Mark Van Pernis, and Van Pernis-Vancil, a law corporation (collectively, the Attorney Defendants), and Defendant Nicholle Davis (Nicholle), alleging numerous causes of action arising out of the probate of the estate of Richard K. Davis (decedent). In the probate matter, Nicholle was appointed as the personal representative of the estate, the Attorney Defendants represented the estate, and Saingoen asserted that she was the surviving spouse of decedent Davis.

In the instant action, Saingoen alleges claims based on Hawaii Revised Statutes (HRS) Chapter 480, fraud, negligence, breach of fiduciary duty, legal malpractice, and excessive attorney’s fees. Saingoen contends that the Attorney Defendants induced her counsel, through misrepresentations, to cease efforts to offer further proof that she was the decedent’s surviving spouse. Saingoen also asserts that the Attorney Defendants owed her a duty as counsel for the estate because she is the surviving spouse of decedent. Pursuant to two orders granting summary judgment, the Circuit Court of the Third Circuit (circuit court) entered judgment in favor of the Attorney Defendants on all of the claims asserted by Saingoen.

On appeal, Saingoen contends that the circuit court erred in granting summary judgment to the Attorney Defendants because, among other things, there were genuine issues of material fact as to various claims, Saingoen had established that the Attorney Defendants owed her a duty of care, and the circuit court erred in dismissing claims without allowing her leave to amend. Saingoen also contends that the circuit court erred in granting costs to the Attorney Defendants because they should not have prevailed on summary judgment.

On cross-appeal, the Attorney Defendants challenge the circuit court’s denial of their request for attorneys’ fees. They assert that: (1) the circuit court erred as a matter of law when it held that the essential character of the action sounds in tort rather than contract and thus the assumpsit statute, HRS § 607-14 (Supp. 2014), did not apply; and (2) the circuit court abused its discretion in holding that the causes of action arguably in the nature of assumpsit are so intertwined with the dominant action that the court would be unable to apportion the fee request between assumpsit and non-assumpsit claims.