Opinion
NO. 7666
December 3, 1981
APPEAL FROM FIRST CIRCUIT COURT HONORABLE HAROLD Y. SHINTAKU, JUDGE, (CIVIL NO. 48250), (CIVIL NO. 48781), (CIVIL NO. 50004), (CIVIL NO. 50675)
HAYASHI, C.J., PADGETT AND BURNS, JJ.
Reinhard Mohr on the briefs (David C. Schutter) for appellant.
Sean Kim on the brief (Gill, Park, Park Kim of counsel) for appellees.
This is an appeal from an order dismissing an attorney's lien for fees in a contingent fee case. Essentially, it is a dispute between attorneys over whether a fee should be divided and does not involve the clients. The attorneys are the real parties in interest. After briefing had been completed, we entered an order giving the parties an opportunity to file a memorandum as to the effect on this case of Carroll v. Miyashiro, 50 Haw. 413, 441 P.2d 638 (1968) on the question at issue since that case had not been cited by either side. The firm of Gill, Park, Park Kim for appellees filed such a memorandum. Appellant, however, failed to do so within the time allotted and was denied an extension of time by this court.
Since this is not a dispute between attorney and client, had there been a contention raised in the lower court or here that the appellant should have been relegated to an independent action against the firm of Gill, Park, Park Kim for the adjudication of whether he was entitled to a portion of their fee, we might have found the question a troubling one. Compare Keating v. Keating, 43 Haw. 51 (1958). However, in the interests of judicial economy and efficiency, it appears reasonable to have the fee dispute settled in the case in which it arose, and in which the alleged services were rendered, particularly where, as here, it is not holding up distribution of the settlement monies to the litigants.
The position of Gill, Park, Park Kim is not that the judge below lacked jurisdiction to pass upon the issue but that there has been an adjudication of the merits of the controversy and that that adjudication was correct. The problem is that there was no evidentiary hearing on the matter. Appellant is entitled, under Carroll v. Miyashiro, to such a hearing. There is sufficient conflict between the affidavits of Arthur Park, James Duffy and appellant on the subject of what the arrangements were between the respective parties for the numerous plaintiffs involved in the consolidated cases to forestall a summary adjudication such as was made here.
We express no opinion on the merits of the controversy but an evidentiary hearing with appropriate findings of fact and conclusions of law is necessary before the question of whether appellant is entitled to a portion of Gill, Park, Park Kim's fees can be passed upon and, if he is so entitled, the amount thereof.
Reversed and remanded for further proceedings in conformity herewith.