The frequency of these situations has led the great majority of the American courts to adopt a broad general rule giving the plaintiff, in an action [for] deceit, the benefit of his bargain with the defendant in all cases, and making that the normal measure of recovery in actions of deceit.Leibert v. Fin. Factors, Ltd., 71 Haw. 285, 290-91, 788 P.2d 833, 837 (1990) (emphases added); see also Zanakis-Pico, 98 Hawai'i at 320, 47 P.3d at 1233 ("In fraud or deceit cases, the measure of pecuniary damages is usually confined to either the `out-of-pocket' loss or the `benefit of the bargain[.]'" (Citation and ellipses omitted.)).
On appeal, Amfac has not challenged this COL and therefore we treat it as binding on this court. See Hawaii Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(C) (1984); cf.Leibert v. FinanceFactors, Ltd., 71 Haw. 285, 288, 788 P.2d 833, 835 (1990). Because the Indemnification Agreement is unambiguous, the parol evidence rule precludes Tom's testimony as to the meaning of the phrase "any and all costs" in paragraph 2(a).
Regarding the requirement that the amount of damages be shown with reasonable certainty, the Hawai'i Supreme Court has recognized that "[t]he problem of how to measure damages, and how to establish them in fraud cases, is always a difficult one since the person defrauded has, because of the fraud, not pursued alternative courses of action, and the results of those untaken courses therefore remain speculative." Leibert v. Finance Factors, Ltd., 71 Haw. 285, 788 P.2d 833, 837 (1990). Thus, the Hawai'i Supreme Court has stated that the evidence necessary to show damages with reasonable certainty depends on the circumstances of each individual case.
The purpose of prejudgment interest is to "allow the court to designate the commencement date of interest in order to correct the injustice when a judgment is delayed for a long period of time for any reason, including litigation delays." Leibert v. Fin. Factors, Ltd., 71 Haw. 285, 293, 788 P.2d 833, 838 (1990); see also Metcalf v. Voluntary Employees' Benefit Ass'n of Haw., 99 Haw. 53, 61, 52 P.3d 823, 831 (2002) ("The purpose of prejudgment interest is to discourage recalcitrance and unwarranted delays in cases which should be more speedily resolved."). A finding of fault by the non-moving party is not necessary -- "where no fault is found on either side, the trial court may still award or deny prejudgment interest in its discretion, depending on the circumstances of the case."
In opposition, Plaintiff argues that Leibert v. Finance Factors, Ltd., 71 Haw. 285, 788 P.2d 833 (1990), found that § 657-20 applies to claims brought pursuant to HRS Ch. 480. Pl.'s Supp. Memo. ¶ 6
This is no more difficult than establishing and measuring damages in any fraud case in which the person defrauded has, because of the fraud, not pursued alternative courses of action, and the results of those alternative courses therefore remain, to some degree, speculative. Id. at 292-293, 172 P.3d 1021, citing Leibert v. Fin. Factors, Ltd (1990), 71 Hawai'i 285, 290-291, 788 P.2d 833, and 3 Restatement of the Law 2d, Torts (1977), Section 549. {¶ 55} It is certainly correct that a party cannot accept a settlement, sign a release, affirm the release, keep the money, and then sue for the same damages.
Pre-judgment interest is designed "to allow the court to designate the commencement date of interest in order to correct injustice when a judgment is delayed for a long period of time for any reason, including litigation delays." Schmidt v. Board of Directors of Ass'n of Apartment Owners of Marco Polo Apartments, 73 Haw. 526, 534, 836 P.2d 479, 483 (1992) (quoting Leibert v. Finance Factors, Ltd., 71 Haw. 285, 293, 788 P.2d 833 838 (1990)) (internal quotation marks omitted). "[T]he purpose of prejudgment interest is to discourage 'recalcitrance and unwarranted delays in cases which should be more speedily resolved.'"Calleon v. Miyagi, 76 Hawai'i 310, 322, 876 P.2d 1278, 1290 (1994) (citation omitted).
Such contract damages, generally speaking, are available under HRS chapter 480. See Leibert v. Finance Factors, Ltd., 71 Haw. 285, 788 P.2d 833 (1990). But, for the reasons discussed infra in section III.D, we hold that the circuit court correctly concluded that there was no contract in the present matter.
Prejudgment interest, where appropriate, is awardable under HRS § 636-16 in the discretion of the court. Leibert v. FinanceFactors, Ltd., 71 Haw. 285, 293, 788 P.2d 833, 838 (1990). Generally, to constitute an abuse of discretion it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.
Kawakami makes no such argument. Instead, Kawakami's essential argument for benefit-ofthe-bargain damages is premised on Leibert v. Fin. Factors, Ltd, 71 Haw. 285, 788 P.2d 833 (1990), which held that these types of contract damages are generally available under HRS chapter 480 and should be calculated with reference to “put[ting] the plaintiff [back] in the position he would have been had he not been defrauded.” Id. at 290, 788 P.2d at 837 (ellipsis omitted) (quoting Ellis v. Crockett, 51 Haw. 45, 52, 451 P.2d 814, 820 (1969)).