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Ticor Title Insurance Co. v. Mau

Intermediate Court of Appeals of Hawaii

March 28, 2013

TICOR TITLE INSURANCE COMPANY, a California corporation, now known as CHICAGO TITLE INSURANCE COMPANY, a Nebraska corporation, Plaintiff-Appellee,
v.
BRUCE K.H. MAU, TRUSTEE UNDER THAT CERTAIN UNRECORDED REVOCABLE TRUST OF BRUCE K.H. MAU DATED FEBRUARY 21, 2007, Defendant-Appellant

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 10-1-0720(3))

Gary G. Grimmer (on the opening and reply briefs) Ann C. Kemp (on the reply brief) (Gary G. Grimmer and Associates) for Defendant-Appellant.

Jade Lynne Ching Brandon M. Segal (Alston Hunt Floyd and Ing) for Plaintiff-Appellee.

Foley, Presiding J., Fujise and Reifurth, JJ.

MEMORANDUM OPINION

Defendant-Appellant Bruce K.H. Mau (Mau) appeals from the March 2, 2012 final judgment entered in the Circuit Court of the Second Circuit[1] (circuit court) and certified pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 54(b). The circuit court granted partial summary judgment in favor of Plaintiff- Appellee Ticor Title Insurance Company, now known as Chicago Title Insurance Company (Chicago Title) .

I. BACKGROUND

This appeal arises out of a real estate dispute concerning three purportedly separate lots (collectively, Properties). Mau purchased the Properties in February 2007. In September and November 2007, Mau sold each lot to three different grantees (Grantees) via warranty deeds. Chicago Title issued separate title insurance policies for each of the three conveyances from Mau to the Grantees.

On May 12, 2 009, the County of Maui (County) informed one of the Grantees that the lots were not legally subdivided, and the County did not recognize the lots as separate lots. Chicago Title paid the Grantees after claims were made against the policies covering each of the lots, and the Grantees assigned to Chicago Title their rights, title, and interests in any and all claims related to their respective lots.

On November 16, 2010, Chicago Title filed a complaint against Mau asserting claims for (1) breach of covenants, (2) rescission, (3) breach of contract, and (4) negligent misrepresentation/nondisclosure. The complaint requested a judgment ordering rescission of the warranty deeds and directing Mau to return to Chicago Title the purchase amount of the Properties. Chicago Title also requested attorney's fees, costs, and interest.

On July 1, 2011, Chicago Title filed a motion for partial summary judgment as to the first and second counts of the complaint (MSJ). Mau did not dispute that the Properties were not legally subdivided when he sold the lots to Grantees. Consequently, Mau opposed the MSJ on the issue of damages only and argued, inter alia, that there was a genuine material issue regarding whether Chicago Title had failed to mitigate its damages.

The circuit court held a hearing on the MSJ on August 10, 2011 and entered an order granting the MSJ on December 5, 2011. On December 12, 2011, Chicago Title filed a motion for HRCP Rule 54(b) certification of the December 5, 2011 order granting the MSJ. Chicago Title also filed a motion for attorney's fees, costs, and prejudgment interest under Hawaii Revised Statutes (HRS) §§ 607-14 (Supp. 2012) and 636-16 (1993 Repl.). The circuit court granted the two motions at a hearing on January 18, 2012. On March 2, 2012, the court entered its orders granting the motions and entered the final judgment in favor of Chicago Title as to the first and second counts of Chicago Title's complaint.

Mau filed an HRCP Rule 59(e) motion for reconsideration of the circuit court's order granting the MSJ and its award of attorney's fees, costs, and prejudgment interest (Motion for Reconsideration) on February 13, 2012. On March 9, 2012, the circuit court held a hearing on the Motion for Reconsideration and entered its order denying the Motion for Reconsideration on March 23, 2012. Mau filed a timely notice of appeal on April 12, 2012.

On appeal, Mau contends the circuit court erred when it granted the MSJ; granted the motion for attorney's fees, costs, and prejudgment interest; ...


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