This lawsuit arises out of a dispute over whether Defendant-Appellant Isaac K. Joshua, Jr., also known as Isaac Kahele Joshua, Jr. (Defendant), exceeded his authority when he used a general power of attorney from his mother, Rose K. Joshua (Mother), to gift substantially all of Mother’s property to himself, to the exclusion of his four sisters, Gladys K. Brash (Gladys), Lorraine K. Daniel (Lorraine), Doris K. Farm (Doris), and Plaintiff-Appellee Blossom Joshua Kunewa (Plaintiff) 1 (collectively, Sisters).
*67 Defendant appeals from the First Circuit Court’s: (1) July 14, 1989 order granting partial summary judgment in Plaintiffs favor, which concluded that Mother’s power of attorney did not authorize Defendant to convey Mother’s property to himself without consideration and which directed Defendant to hold all property so transferred as constructive trustee for the beneficiaries of Mother’s estate (Partial Summary Judgment Order); (2) June 9,1992 Amended Judgment based upon a special jury vеrdict, awarding Plaintiff $34,670.10 in special damages and $95,000 in punitive damages (Amended Judgment); and (3) April 26,1991 Order Denying Defendant’s Motion for Reconsideration of [the February 4,1991 Order Denying] Defendant’s Motions for (A) Judgment Notwithstanding the Verdict, (B) Reconsideration of Order Denying Motion for Directed Verdict and (C) New Trial (April 26, 1991 Order).
We (1) affirm the Partial Summary Judgment Order, (2) affirm that part of the Amended Judgment which awarded Plaintiff special damages, vacate that part of the Amended Judgment which awarded Plaintiff punitive damages, and remand for a new trial on the punitive damages issue, and (3) vacate the April 26,1991 Order.
BACKGROUND
Mother was the widow of Isaac Joshua, Sr. (Father), who died on January 9, 1963. On September 15,1947, both Mother and Father executed wills, bequeathing their individual estates to the other, and in the event of the death of the survivor, then in equal shares to their five children—Plaintiff, Defendant, Gladys, Lorraine, and Doris.
In 1980, Mother was hospitalized for medical prоblems. After she was released from the hospital, Mother asked Defendant to take her to an attorney so that she could settle her property and business affairs. On June 26,1980, Defendant took Mother to see attorney Matthew Pyun (Pyun), a friend of Defendant. At Mother’s request, Pyun prepared a document, which Mother subsequently signed, giving Defendant a general.power of attorney to manage Mother’s affairs (June 26,1980 power of attorney).
The June 26, 1980 power of attorney, which was recorded at the Hawaii Bureau of Conveyances on June 27, 1980, read in relevant part, as follows:
ROSE KAPU JOSHUA of 2105 St. Louis Drive, City and County of Honolulu, State of Hawaii [Hawaii],
have made, constituted and appointed and by these presents do make, constitute and appoint ISAAC KAHELE JOSHUA, JR., of 86-124 Hoaha Street, Waianae [Wai'anae], City and County of Honolulu, State of Hawaii [Hawaii],
my true and lawful attorney, for me in my name, plаce and stead, and for my use and benefit with full power and authority to do and perform every act, deed or thing that I might or could do if personally present, including without limitation, the following:
* * * * * *
2. To bargain, contract, purchase, receive and take real property and/or any interests therein and to accept the seizin and possession thereof and the delivery of all deeds, leases, assignments, agreements, options and other conveyance documents thereto, and to rent, lease, sublease, bargain, sell, release, convey, mortgage, hy-pothecate, and in every manner deal with the real property I now own, and any real property I may hereafter acquire, upon such terms and conditions, and under such covenants as he shall think fit;
3. To bargain and agree for, buy, sell, mortgage, hypothecate and in any arid every way and manner dеal in and with goods and merchandise, choses in action and other property in possession or in action;
* * * * * *
6. To sign, seal, execute, acknowledge and deliver for me and in my name, and as my act and deed, such deeds, options, grants, leases, assignments, covenants, indentures, agreements, mortgages, hypoth-ecations, bills, checks, bonds, notes, receipts, evidences of debts, and such other *68 instruments in writing of whatever kind and nature as may be necessary or proper in the premises.
The foregoing power of attorney did not contain any language expressly permitting Defendant to make gifts of Mother’s property-
Defendant did not use the June 26, 1980 power of attorney to transfer title to any of Mother’s property until the summer of 1987. On June 20, 1987, Mother suffered a stroke and was hospitalized. Her treating physician, Dr. Bernard Fong (Dr. Fong), discussed with Defendant and Sisters the possibility of Mother not being able to live beyond the next four days. Dr. Fong also informed Defendant and Sisters that Mother, on the other hand, might have a prolonged recovery, in which case the cost of her care and treatment could consume all of her assets.
After the meeting with Dr. Fong, Defendant decided to use the June 26, 1980 power of attorney to transfer all of Mother’s assets to himself. Because Defendant initially could not locate the June 26, 1980 power of attorney, he requested that attorney Blake Oki-moto (Okimoto) prepare another power of attorney and have Mother execute it at the hospital.
Upon arrival at Mother’s hospital room on June 22, 1987, Okimoto found that Mother “was bedridden and unable to communicate verbally[J” To determine whether Mother were mentally competent to execute this second power of attorney, Okimoto explained thе contents of the power of attorney document to Mother and informed her that if she signed the document, she would be giving Defendant the ability to act on her behalf as to all property that she owned. Okimoto asked Mother to squeeze his hand if she understood what he was explaining to her, and Mother responded by squeezing his hand. Okimoto also asked Mother if it was her desire to convey her property to Defendant, and Mother again squeezed Okimoto’s hand.
Because of her physical condition, Mother was unable on her own to sign her name on the power of attorney document. Defendant, therefore, assisted Mother by guiding her hand to the signature line of the document and holding her hand steady as she made an “X” mark. Okimoto, who was also a notary public, then signed and sealed the notarial acknowledgment certificate on the document, thus certifying that Mother had аppeared before him and had signed the document as her free act and deed. Okimoto also required Mother to sign her “X” in his notarial record book, 2 which contained documentation of all notarial acts performed by Okimoto. Okimoto then had both Defendant and Defendant’s wife, Made Joshua (Made), sign the power of attorney document as witnesses. He also required Made and the fodowing individuals, who were present in the hospital room and had witnessed Mother’s signing of the power of attorney document, to sign his record book as witnesses to the transaction: Doris, who would later be named as the personal representative of Mother’s estate; Lorraine; and Faith Brash, Lorraine’s daughter and Mother’s granddaughter.
Following Mother’s execution of the second power of attorney, Defendant located the original June 26, 1980 power of attorney at the Bureau of Conveyances. Before Mother died on September 9, 1987, Defendant used the original power of attorney to transfer to himself Mother’s interest in a lien-free home on St. Louis Drive, some real property on the Big Island, and some real property in California. In addition, Defendant put his name on the titles to Mother’s bank accounts and car. Defendant attempted, but was not allowed, to use the power of attorney to transfer Mother’s common stock into his own name; however, he continued to use the power of attorney after Mother’s death to negotiate Mother’s stock dividend checks and to deposit the same into his bank account. Defendant never paid Mother for any of the property so transferred.
After Defendant made the foregoing transfers of title to Mother’s property to himself, he informed Sisters of the transfers. He also assured them that they should not worry because “[i]t will all be equal.... When *69 [M]other gets well, I will give everything back to [Mother].”
After Mother’s death, however, Defendant changed his mind. At a family gathering in October 1987, Defendant showed Sisters a copy of Mother’s will, the original of which was never found, and the original power of attorney which Mother had given him. Defendant then informed Sisters that Mother had expressed to him many times over the years of her intent to give him all of her property and that Mother had given him the power of attorney for that purpose. Defendant indicated that, in view of Mother’s wishes, he considered all of the property he had transferred to himself pursuant to the power of attorney to be his alone. He also refused to commence a probate of Mother’s will or to share Mother’s property with Sisters in accordance with Mother’s will or the statutes on intestacy. 3
PROCEDURAL HISTORY
On Marсh 16, 1988, Plaintiff filed this lawsuit, alleging fraud and breach of trust by Defendant and seeking to (1) impose a constructive trust on the property transferred by Defendant to himself, (2) return the transferred property to Mother’s estate, (3) submit Mother’s will to probate, (4) collect fair market rent from Defendant for his occupancy of Mother’s house after the transfer, and (5) award Plaintiff punitive damages, attorney fees, and costs for Defendant’s conversion of Mother’s property.
On December 29, 1988, Plaintiff filed a motion for partial summary judgment on two issues: (1) whether Mother’s will should be submitted to probate; and (2) whether Defendant should be required to “convey to the personal representative of [Mother’s estate] all property, real and personal, formerly owned by [Mother], title to which was conveyed into Defendant’s name by Defendant acting under a power of attorney given him by [Mother], together with any dividends, interest, rents, issues and profits received by Defendant from or on account of said property.” In opposing the motion, Defendant provided three affidavits 4 in support of his as-« sertion that Mother had made several oral representations that she intended for Defendant to have all of her property.
On July 14, 1989, the circuit court entered an order granting Plaintiffs motion for partial summary judgment. In relevant part, the order read as follows:
THE COURT HEREBY FINDS: that the power of attorney given by [Mother] to Defendant dated June 26,1980 is clear and unambiguous; and that said power of attorney does not contain any authority for Defendant to transfer [Mother’s] property to himself, thereby effecting a gift to himself of her assets;
AND THE COURT THEREFORE CONCLUDES: that the June 26, 1980 power of attorney given by [Mother] must be strictly construed; that a strict reading of said power of attorney shows that Defendant was not empowered to dеed over [Mother’s] property to himself and thereby effect a gift to himself of [Mother’s] assets; that the affidavits submitted by Defendant which tend to show [Mother] wanted Defendant to obtain the property through the power of attorney are insignificant in the light of the unambiguous power of attorney strictly construed; that the affidavits submitted by Defendant are inadmissible as parol evidence and are deemed not admissible for the Court; that Defendant holds all property formerly belonging to [Mother] which he acquired by the use of the June 26, 1980 power of attorney and said property shall be held as a constructive trust for the benefit of those people who will take through the probate of [Mother’s] estate[.]
Based on the foregoing findings and conclusions, the circuit court ordered Defendant to deliver Mother’s will to Plaintiff, to hold all of Mother’s property in constructive trust, and to not transfer or encumber the real and personal property he had transferred to himself.
On December 19,1990, the case proceeded to trial on the issue of damages. On January *70 -3, 1991, the jury returned a special verdict, awarding Plaintiff special damages in the amount of “$45,671.00 less documented funeral expenses” and punitive damages in the amount of $95,000. The circuit court entered judgment for the foregoing amounts on February 4, 1991, and Defendant appealed from this judgment. However, on May 2, 1991, Defendant’s appeal was dismissed by the Hawaii Supreme Court because “the judgment did not fully determine the amount of special damages, is' therefore incomplete and not final, and we do not have jurisdiction.” Thereafter, on June 9, 1992, the circuit court entered an amended judgment which determined that the amount of special damages awardable to Plaintiff, after deducting documented funerаl expenses of $11,000.90, was $34,670.10. This appeal followed.
Defendant argues that the circuit court committed reversible error in several respects. First, Defendant argues that the court was wrong when it granted Plaintiffs motion for partial summary judgment because a genuine triable issue of material fact existed as to Mother’s intent in giving Defendant the power of attorney. Second, the court improperly instructed the jury that Plaintiffs attorney fees in bringing this lawsuit could be considered in computing the amount of a punitive damages award. Third, the circuit court erroneously admitted evidence of Defendant’s refusal to comply with a prior court order to return Mother’s assets to the administrator of Mother’s estate. Fourth, the circuit court improperly allowed several of Plaintiffs witnesses to testify, since insufficient notice was provided to Defendant that the witnesses would be testifying. Finally, Defendant аrgues that the circuit court erred when it refused to allow Defendant to read into evidence a part of Plaintiffs deposition which was relevant to attack Plaintiffs credibility.
DISCUSSION
I. The Partial Summary Judgment Whether Defendant Exceeded His Authority Under the Power of Attorney
A. Standard of Review
On appeal, an order granting summary judgment is reviewed under the same standard applied by the trial courts.
State v. Tradewinds Elec. Serv. & Contracting Inc.,
Where the construction of a written instrument is at issue in a lawsuit, the preliminary question of whether the instrument is ambiguoüs is a question of law that may be resolved on summary judgment.
Pelosi v. Wailea Ranch Estates,
Defendant contends that the circuit court erred in concluding, as a matter of law, that the power of attorney did not authorize him to convey Mother’s property to himself without consideration. Defendant claims that because he submitted three affidavits which explained that Mother had intended that he use the power of attorney to make gifts to himself, a genuine issue of material fact existed as to the scope of his authority under the power of attorney, thus precluding summary judgment. We disagree.
B. Rules Governing Construction of Powers of Attorney
“Powers of attorney are to be construed in accordance with the rules for interpretation of written instruments generally; in accordance with the principles governing the lаw of agency; and, in the absence of proof to the contrary, in accordance with the prevailing laws relating to the act authorized.” 3 Am. Jur.2d Agency § 30, at 533-34 (1986).
*71
The fundamental rule in construing ■written instruments is that the intent of the parties, as gleaned from the entire context of the instrument, governs.
Pelosi,
It is also well-established that powers of attorney “are subjected to a strict construction and are never interpreted to authorize acts not obviously within the scope of the particular matter to which they refer.”
Lopez v. Soy Young,
when authority is conferred upon an agent by a formal, written instrument, such as a power of attorney, the authority given thе agent will be strictly construed so as to exclude any authority not specifically set forth, except authority necessary to effectuate the purpose of the authority granted.
(Emphasis added.)
Accordingly, it is well-settled that an agent lacks authority to make a gift of the principal’s property unless that authority is expressly given by the language of the power of attorney.
Kaname Fujino v. Clark,
Moreover, courts have routinely held that in the absence of express written authorization,' an agent may not gratuitously convey the principal’s property to
himself. See, e.g., Hodges v. Surratt,
Where a power of attorney does not expressly authorize the attomey-in-fact to make gifts to himself or herself, extrinsic evidence of the principal’s intent to allow such gifts is not admissible. An attomey-in-fact may not make a gift to himself or herself unless there is clear intent in writing from the principal allowing the gift. Oral authorization is not acceptable.
McCarter v. Willis,
The Fourth Circuit Court of Appeals has explained the policy reasons underlying the rule prohibiting extrinsic evidence as follows:
When one considers the manifold opportunities and temptations for self-dealing that are opened up for persons holding general powers of attorney—of which outright transfers for less than value to the attomey-in-fact [himself or] herself are the most obvious—the justification for such a flat rule is apparent. And its justification is made even more apparent when one considers the ease with which such a rule can be aсcommodated by principals and their draftsmen.
Estate of Casey v. Comm’r of Internal Revenue,
*72 We now examine the power of attorney at issue in this lawsuit according to the foregoing rules.
C. The Power of Attorney in this Case
In the instant case, the power of attorney which Mother gave to Defendant did not expressly authorize Defendant to make gifts of Mother’s property. However, it did broadly authorize Defendant to “perform every act, deed or thing that [Mother] might or could do if personally present” and to “bargain, contract, purchase, receive and take real property and/or any interests therein and to accept the seizin and possession thereof and the delivery of all deeds, leases, assignments, agreements, options and other conveyance documents ... and to rent, lease, sublease, bargain, sell, release, convey, mortgage, hypothecate, and in every manner deal with the real property I now own, and any real property I may hereafter acquire, upon such terms and conditions ... as he shall think fit.” (Emphasis added.)
Defendant contends that since the power of attorney which Mother conferred on him was so broad, its language is ambiguous as to whether it authorized him to make gifts of Mother’s property to himself. Therefore, the circuit court should have considered extrinsic evidence of Mother’s intent in giving him the power of attorney and denied Plaintiff’s motion for partial summary judgment. We disagree.
“Well established rules of interpretation of powers of attorney dictate that broad, all-encompassing grants of power to the agent must be discounted.”
Mercantile Trust Co. v. Harper,
Three reasons are mentioned for the application of the foregoing doctrine:
First, the power to make a gift of the principal’s property is a power that is potentially hazardous to the principal’s interests. Consequently, this power will not be lightly inferred from broad, all-encompassing grants of power to the agent. Accordingly, the agent must be circumspect with regard to the powers created—or the lack of them.
Second, the main duty of an agent is loyalty to the interest of his principal.... Thus, in exercising granted powers under a power of attorney, the attorney in fact is bound to act for the benefit of his principal and must avoid where possible that which is detrimental unless expressly authorized. ...
Third, it would be most unusual for an owner of property to grant a power of attorney authorizing the attorney in fact to give his property away. If a person has decided to make a gift of property, he or she usually decides as to who is going to be the donee.
King v. Bankerd,
In
Kaaukai v. Anahu,
In the present case, we similarly conclude that the clear and unambiguous language of the general power of attorney given by Mother to Defendant did not authorize Defendant to make a gift to himself of Mother’s property. Therefore, the circuit court correctly ruled as a matter of law that Defendant lacked authority to make a gift of Mother’s property to himself and properly granted Plaintiffs motion for partial summary judgment.
*73 II. The Punitive Damages Award
In its charge to the jury, the circuit court gave the following instruction regarding how punitive damages should be calculated:
If you allow punitive damages in this case then in assessing such damage you may take into consideration the following items: (I) such amount as will deter defendant from such future conduct; (2) an amount as shall be an example to others and deter them from such conduct; (8) [t]he probable and reasonable expense of the litigation including attorney’s fees, expert witness fees and the inconvenience and time involved in preparing for trial [.] The amount should not be so small as to be trifling nor so largе as to be unjust, but such as candid and dispassionate minds can approve as a punitive example and as a warning to others against a similar lapse of duty.
(Emphasis added.)
Defendant contends that the circuit court committed reversible error when it instructed the jury that attorney fees are an element of punitive damages. Defendant points out that the “longstanding rule of Hawai'i law” is that “no attorney fees may be awarded as damages or costs unless so provided by statute, stipulation or agreement” and no statute, stipulation, or agreement authorized the imposition of attorney fees in this ease. Therefore, Defendant contends, the court’s instruction provided an indirect means for Plaintiff to obtain compensation for attorney fees where none was allowed by law.
We find no error in the circuit court’s instruction.
A. The Law of Punitive Damages in Hawai‘i
The purpose of a punitive damages award in Hawai'i is not to compensate the plаintiff, but rather, to punish the defendant “for aggravated or outrageous misconduct and to deter the defendant and others ft’om similar conduct in the future.”
Masaki v. General Motors Corp.,
The Hawai'i Supreme Court has instructed that “the proper measurement of punitive damages should be ‘[t]he degree of malice, oppression, or gross negligence which forms the basis for the award and the amount of money required to punish the defendant....’”
Kang v. Harrington,
B. Attorney Fees as an Element of Punitive Damages in Other Jurisdictions
Courts in other jurisdictions disagree on whether a jury, or a judge sitting as fact finder, may consider a plaintiffs attorney fees or other litigation costs in determining an award of punitive damages.
See
Annotation,
Attorneys’ Fees or Other Expenses of Litigation as Element in Measuring Exemplary or Punitive Damages,
Several jurisdictions refuse to allow a jury to consider reasonable attorney fees in measuring an award of punitive damages, reasoning that (1) such fees are compensatory in
*74
nature and therefore not a proper consideration in measuring a punitive damages award, or (2) the jury ought to have unfettered discretion in deciding the amount of punitive damages subject only to a trial court’s remittitur if it deems the award еxcessive.
See, e.g., Viner v. Untrecht,
The majority of jurisdictions, however, regularly allow a jury to consider attorney fees in computing the amount of punitive damages.
See e.g., Afro-American Publishing Co. v. Jaffe,
Under the majority approach, “ ‘attorney fees are not aUowed as compensation [to the plaintiff] but rather as punishment for defendant’s wrongful and malicious act. They are not aUowed in addition to the sum assessed as [punitive] damages, and their recovery is never permitted in a separate action....’”
Brewer v. Home-Stake Production Co.,
Courts that have adopted the majority view generally reason that aUowing a jury to consider the amount of a plaintiffs attorney fees in calculating punitive damages diminishes the potential for arbitrary and abusive punitive damages awards. In
St. Luke Evangelical Lutheran Church, Inc. v. Smith,
First, because the jury wiU be offered objective guidance in calculating the amount of its punitive award, punitive damages wiU be more accurately'measured and the potential for abuse decreased. Second, the plaintiff can be made truly whole in precisely those kinds of cases in which the defendant’s wrongful conduct is found to be at its most flagrant, for only in such cases are punitive damages warranted.
The majority view is consistent with the approach advocated by the Restatement (Second) of Torts (1958). The Restatement recognizes that “damages in a tort action do not ordinarily include compensation for attorney fees or other expenses of the litigation.” Id. § 914(1), at 492. However, the Restatement also states that “[i]n awarding punitive damages when they are otherwise aUowable, the trier of fact may consider the actual or probable expense incurred by the plaintiff in bringing the action.” Id., comment a, at 493. See also Restatement (Second) of Torts § 908, comment e, at 467 (in determining the amount of punitive damages, the trier of fact can consider the extent of harm to the injured person, including “the fact that the plaintiff has been put to trouble and expense in the protection of his interests, as by legal proceedings in this or in other suits”).
C. Attorney Fees as an Element of Punitive Damages in HawaVi
In
Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc.,
Without statutory (or at least common-law) standards for the determination of how large an award of punitive damages is appropriate in a given case, juries are left largely to themselves in making this important, and potentially devastating, decision. Indeed, the jury [in Brouming-Ferris ] was sent to the jury room with nothing more than the following terse instruction: ‘In determining the amount of punitive damages, ... you may take into account the character of the defendants, their financial standing, and the nature of their acts.’ [Citation omitted.] Guidance like this is scarcely better than no guidance at all. I do not suggest that the instruction itself was in error; indeed, it appears to have been a correct statement of [state] law. The point is, rather, that the instruction reveals a deeper flaw: the fact that punitive damages are' imposed by juries guided by little more than the admonition to do what they think is best.
Subsequently, in
Pacific Mut. Life Ins. Co. v. Haslip,
The Court’s majority initially conceded “that unlimited jury discretion—or unlimited judicial discretion for that matter—in the fixing of punitive damages may invite extreme results that jar one’s constitutional sensibilities.”
Id.
at 18,
(a) whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant’s conduct as well as the harm that actually has occurred; (b) the degree of reprehensibility of thе defendant’s conduct, the duration of that conduct, the defendant’s awareness, any concealment, and the existence and frequency of similar past conduct; (c) the profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss; (d) the “financial position” of the defendant; (e) all the costs of litigation; (f) the imposition of criminal sanctions on the defendant for its conduct, these to be taken in mitigation; and (g) the existence of other civil awards against the defendant for the same conduct, these also to be taken in mitigation.
Id.
at 21-2,
The Court held that the application of the foregoing standards “impose[d] a sufficiently definite and meaningful constraint on the
*76
discretion of Alabama fact finders in awarding punitive damages[,]” and “ensure[d] that punitive damages awards are not grossly out of proportion to the severity of the offense and have some understandable relationship to compensatory damages.”
Id.
at 22,
If a reviewing court may consider a plaintiff’s litigation expenses in evaluating the propriety of a punitive damages award, we see no reason to preclude a jury from considering such expenses in calculating the award. Indeed, Justice O’Connor suggested as much in her dissent in
Haslip,
in which she strongly criticized the vagueness of the instructions concerning punitive damages provided to the jury and strongly urged that the same factors which the Court held that appellate courts could consider in reviewing punitive damages awards “could assist
juries
to make fair, rational decisions.”
Punitive damages are a powerful weapon. Imposed wisely and with restraint, they have the potential to advance legitimate state interests. Imposed indiscriminately, however, they have a devastating potential for harm. Regrettably, common-law procedures for awarding punitive damages fall into the latter category. States routinely authorize civil juries to impose punitive damages without providing them any meaningful instructions on how to do so. Rarely is a jury told anything more specific than “do what you think best.”
In my view, such instructions are so fraught with uncertainty that they defy rational implementation. Instead, they encourage inconsistent and unpredictable results by inviting juries to rely on private beliefs and personal predelietions. Juries are permitted to target unpopular defendants, penalize unorthodox or controversial views, and redistribute wealth. Multimillion dollar losses are inflicted on a whim. While I do not question the general legitimacy of punitive damages, I see a strong need to provide juries with standards to constrain their discretion so that they may exercise their power wisely, not capriciously or maliciously. The Constitution requires as muсh.
Id. at 42-3,
More recently, in
Honda Motor Co. v. Oberg,
512 U.S. -,
requiring] the factfinder to apply ... objective criteria [when calculating punitive damages is] more likely to prompt rational and fair punitive damage decisions than are the post hoc checks [by appellate courts] employed in jurisdictions following Alabama’s pattern.
Id.
at -,
We agree with Justices Brennan, O’Con-nor, and Ginsburg that meaningful standards are needed to guide a jury in its award of punitive damages. Accordingly, we adopt the majority view that a jury should be allowed to consider a plaintiffs attorney fees in determining the amount of a punitive damages award. We also conclude that, in the instant ease, the circuit court’s instruction to the jury to this effect was proper.
III. The Circuit Court’s Evidentiary Rulings
A. Evidence of Defendant’s Refusal to Comply with Circuit Court’s Order
At trial, the jury was repeatedly allowed to hear evidence about Defendant’s refusal to comply with the circuit court’s Partial Summary Judgment order directing Defendant to return to the administrator of Mother’s estate the assets he had wrongfully conveyed to himself. In explaining the rele-vanee of such evidence, Plaintiffs counsel stated it was necessary for the jury to understand that its task was not to determine whether Defendant should return property to Mother’s estate, but to assess the damages caused by Defendant’s breach of duty. Plaintiffs counsel also explained that this evidence was relevant to establishing that Defendant’s behavior was willful:
The gist of my question, Your Honor, is the mental intent which I have to establish for punitive damages. My analysis of the case is that the question of intent breaks down into two parts post Judge Klein’s order which is a separate element of punitive damages. This disobedience of the court’s order and pre Judge Klein’s order when he—what is his intent in breaching his fiduciary duties as an attorney in fact. So what I am getting at right now is his disregard, callous, wanton, and wilful disregard of Judge Klein’s order and it goes into the punitive damages on the post Judge Klein issue.
Defendant contends that evidence of his refusal to comply with the Partial Summary Judgment Order should have been excluded at trial. Based on
Kang v. Harrington,
In
Kang, supra,
the Hawai'i Supreme Court ruled that a non-jury award of $20,000 in punitive damages was excessive because it appeared that the trial court, in making its determination, improperly considered a defendant’s subsequent actions in attempting to perpetrate a fraud on the court, as well as on the plaintiff.
“The proper measurement of punitive damages should be ‘[t]he degree of malice, oppression, or gross negligence which forms the basis for the award and the amount of the money required to punish the defendant....’ Howell v. Associated Hotels, [40 Haw. 492 , 501 (1954)]. Further, in determining that degree, the anal *78 ysis is limited to an examination of defendant’s state of mind at the time of the act. O’Harra v. Pundt,210 Or. 533 ,310 P.2d 1110 (1957). Consequently, defendant’s subsequent actions and state of mind during trial are irrelevant.”
Id.
at 663,
[t]he distinction between appellant’s fraud on the court and his fraud on appellee is crucial since a finding of fraud on the court is unrelated to the fraud on appellee аnd will not provide a basis for an award of punitive damages. In assessing punitive damages the trial court should have ignored appellant’s fraud upon the court and looked only to his fraud on appellee.
Id.
at 660,
In this case, Defendant’s conduct in violating the circuit court’s Partial Summary Judgment Order is similarly distinguishable from Defendant’s fraud upon Sisters and cannot form a basis for an award of punitive damages. While Defendant’s conduct may appropriately subject Defendant to contempt of court sanctions, such evidence is irrelevant to Defendant’s state of mind at the time he allegedly committed fraud in conveying Mother’s property to himself.
Accordingly, the circuit court erred in allowing such evidence to be admitted at trial. Because the jury’s award of punitive damages may have been based on the foregoing evidence, we must remand this case for a new trial on thе punitive damages issue.
B. The Circuit Court’s Other Evidentiary Rulings
In view of our remand of this case for a new trial, we find it unnecessary to address Defendant’s remaining arguments on appeal.
CONCLUSION
Based on the foregoing discussion, we affirm the First Circuit Court’s July 14, 1989 order granting partial summary judgment in Plaintiff’s favor. We vacate that part of the June 9, 1992 Amended Judgment which awarded Plaintiff $95,000 in punitive damages and remand this ease for a new trial on the punitive damages issue. In all other respects, we affirm the June 9, 1992 Amended Judgment. In view of our vacatur of part of the June 9, 1992 Amended Judgment, we also vacate the April 26,1991 Order Denying Defendant’s Motion for Reconsideration of [the February 4,1991 Order Denying] Defendant’s Motions for (A) Judgment Notwithstanding the Verdict, (B) Reconsideration of Order Denying Motion for Directed Verdict and (C) New Trial.
Notes
. This lawsuit was filed by Plaintiff-Appellee Blossom Joshua Kunewa (Plaintiff) against Defendant-Appellant Isaac K. Joshua, Jr., also known as Isaac Kahele Joshua, Jr., (Defendant) on March 16, 1988. On December 20, 1988, Gladys K. Brash (Gladys), Lorraine K. Daniel (Lorraine), and Doris K. Farm (Doris) moved to intervene in the lawsuit as plaintiffs, and then-motion was granted on April 17, 1989. In the meantime, however, on December 29, 1988, Plaintiff filed a motion for partial summary judgment which was granted on July 14, 1989. Because the intervention was granted after Plaintiff’s motion for partial summary judgment had been filed, a question arose as to whether the partial summary judgment could be entered in favor of Gladys, Lorraine, and Doris, in addition to Plaintiff. To obviate this question, Gladys, Lorraine, and Doris stipulated with Defendant that they would dismiss with prejudice the prosecution of their claims against Defendant, but that Plaintiff's claims for "payment of rents and proceeds,” “fraud,” and "willful, wanton and callous disregard of ... trust” would be tried. Gladys, Lorraine, and Doris also agreed to be *67 bound by the judgment entered by the circuit court on the issues that were tried.
. Hawaii Revised Statutes (HRS) § 456-15 (1993) requires, in part, that ”[e]veiy notary public shall record at length in a book of records all acts, protests, depositions, and other things, by the notary noted or done in the notary’s official capacity.”
. Under the will of Rose K. Joshua (Mother), all of Mother’s property was to be divided equally among her five children. The same division of property would result if Mother had died intestate. HRS § 560:2-103(1) (1993).
. The affiants who signed the affidavits were as follows: Defendant; Defendant’s wife, Maile Joshua; and Rose Kajioka Brash, Mother’s niece.
. In
Masaki v. General Motors Corp.,
. United States Supreme Court Justice Ginsburg noted that in
Pacific Mut. Life Ins. Co. v. Haslip,