FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-MAY-2026 08:02 AM Dkt. 82 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
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GORDON KNOWLES, Plaintiff-Appellant, v. HAWAII PACIFIC UNIVERSITY, Defendant-Appellee, and JOHN DOES 1-5; JANE DOES 1-5; DOE CORPORATIONS 1-5; DOE PARTNERSHIPS 1-5; DOE NON-PROFIT ORGANIZATIONS 1-5; and DOE GOVERNMENTAL AGENCIES 1-5, Defendants
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CC181001241)
MAY 27, 2026
NAKASONE, CHIEF JUDGE, LEONARD AND GUIDRY, JJ.
OPINION OF THE COURT BY LEONARD, J.
This appeal stems from the award of attorneys' fees to
the defendant after a trial on a two-count complaint seeking
relief for an alleged breach of an employment contract and an
alleged violation of the Hawai i Whistleblower Protection Act
(HWPA). We hold, inter alia, that it is an abuse of discretion FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
to award the employer-defendant attorneys' fees in excess of the
amount allowable on the claim in the nature of assumpsit, even
where an apportionment of fees is impracticable, in light of the
express language, purpose, and remedial nature of the HWPA.
Plaintiff-Appellant Gordon Knowles (Knowles) appeals
from the June 18, 2024 Final Judgment Re: Attorneys' Fees and
Taxable Costs Awarded to Defendant[-Appellee] Hawai i Pacific
University [(HPU)] (Judgment on Fees) entered against him by the
Circuit Court of the First Circuit (Circuit Court).1 The
Judgment on Fees is vacated and this case is remanded for a
recalculation of the amount of attorneys' fees.
I. BACKGROUND
Knowles was a full-time professor at HPU. In January
of 2014, Knowles's supervisor, Dr. Carlos Suarez (Dr. Suarez),
learned that Knowles was also teaching at the University of
Hawai i and Honolulu Community College, in violation of HPU's
Conflict of Interest Policy. Dr. Suarez discussed this violation
with Knowles. Knowles replied that he was being unfairly
"targeted" and that HPU learned of Knowles's outside employment
because someone was "stalking" him. Knowles was informed that
HPU learned of his outside employment because HPU looked at
course offerings from other schools, not because of stalking.
1 The Honorable Karin L. Holma presided.
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In June of 2014, HPU offered Knowles a Regular Faculty
position for a five-year period from August 16, 2014, to
August 15, 2019. On October 30, 2014, Knowles sought a Temporary
Restraining Order (TRO) against several HPU faculty, alleging
stalking. The TRO was denied. In November of 2014, HPU received
reports from Knowles about stalking and initiated an internal
investigation. The investigator concluded that Knowles's
stalking claims were unfounded. Knowles failed to attend three
meetings scheduled with a faculty member to address Knowles's
allegations of stalking and noncompliance with HPU policy.
Thereafter, Knowles was placed on unpaid administrative leave.
On March 20, 2015, HPU informed Knowles that they would seek his
dismissal. On March 23, 2015, Knowles again sought a TRO against
HPU officials. This request was also denied.
On June 19, 2015, HPU terminated Knowles's employment,
citing Knowles's violation of HPU's Conflict of Interest Policy
and his failure to attend mandatory meetings. In December of
2016, after exhausting his administrative remedies, Knowles filed
a Complaint in the United States District Court for the District
of Hawai i (USDC), alleging Retaliation under the Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, violation of
the HWPA, Hawaii Revised Statutes (HRS) § 378-62 (2015), and
breach of contract. In response to an HPU discovery request
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concerning the amount of damages Knowles sought in the USDC suit,
Knowles stated, inter alia:
I had worked at [HPU] for seventeen years. During that time, my 401K had reached $200,000. Based upon my plan to work at [HPU] until 62, it would have reached a projected $600,000 (age 47 to 62= 15 years of additional employment). Additionally, my annual salary at HPU was $62,000. Based upon working at HPU until age 62, with an annual income of $62,000 for the next 15 years would be $930,000.
I had to "cash out" $114,619.16 of my 401K to afford health insurance for my cancer treatments and psychiatric care[.]
On July 10, 2018, the USDC suit concluded after the
federal court granted summary judgment in favor of HPU on the
Civil Rights Act claim and dismissed the remaining claims without
prejudice.
On August 8, 2018, Knowles filed a two-count complaint
against HPU in the Circuit Court, alleging breach of his
employment contract and violation of the HWPA (Complaint). The
Complaint did not pray for a specific amount of damages. A bench
trial was held on October 30 and 31, 2023. 2 In Knowles's
proposed Findings of Fact and Conclusions of Law, Knowles
asserted that his damages from HPU's breach of his employment
contract were $213,099. Thereafter, the Circuit Court ruled
against Knowles and entered judgment in favor of HPU on all
claims.
2 The Honorable Jeffrey P. Crabtree presided.
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On February 28, 2024, HPU filed a Motion for Attorneys'
Fees and Taxable Costs, requesting $258,818.22 in fees pursuant
to, inter alia, HRS § 607-14 (2016). HPU argued that this amount
was less than 25% of the amount Knowles identified in his USDC
interrogatory response, i.e., $930,000, plus $114,619.16.
Knowles opposed HPU's motion, arguing, inter alia, that an award
of attorneys' fees should be reduced by the $87,116.72 in fees
attributable to the USDC suit. In addition, Knowles argued that
an award of fees should be limited to 25% of $213,099, the amount
Knowles sought on the breach of contract claim. In reply, HPU
argued that the fees accrued for assumpsit and non-assumpsit
claims were inextricably intertwined and could not be apportioned
because, as evidenced by the billing records, attorney time was
generally devoted to the litigation as a whole.
On May 24, 2024, the Circuit Court entered an Order
Granting in Part and Denying in Part [HPU's] Motion for
Attorneys' Fees and Taxable Costs (Order re Attorneys' Fees).
The Circuit Court found that the case was in the nature of
assumpsit and the claims were so inextricably intertwined that it
was impracticable to apportion them between the assumpsit and
non-assumpsit claims. Based on HRS § 607-14 (only), the Circuit
Court awarded attorneys' fees to HPU in the amount of
$180,583.50. Knowles timely filed a notice of appeal.
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II. POINT OF ERROR
Knowles raises a single point of error on appeal,
arguing that the Circuit Court erred when it awarded HPU's
attorneys' fees in the amount of $180,583.50.
III. APPLICABLE STANDARD OF REVIEW
We review the Circuit Court's grant or denial of
attorneys' fees for an abuse of discretion. Kahala Royal Corp.
v. Goodsill Anderson Quinn & Stifel, 113 Hawai i 251, 266, 151
P.3d 732, 747 (2007). "A court abuses its discretion if it
clearly exceeded the bounds of reason or disregarded rules or
principles of law or practice[.]" State v. Enos, 147 Hawai i
150, 163, 465 P.3d 597, 610 (2020).
IV. DISCUSSION
It is well-established that under the American Rule,
each party is generally responsible for his or her own attorneys'
fees. Cowan v. Exclusive Resorts PBL1, LLC, 156 Hawai i 268,
273, 574 P.3d 288, 293 (2025). Attorneys' fees are shifted to
the losing party only when authorized by statute, court rule,
agreement, or case law. Id. HRS § 607-14 provides, in relevant
part: In all the courts, in all actions in the nature of assumpsit and in all actions on a promissory note or other contract in writing that provides for an attorney's fee, there shall be taxed as attorneys' fees, to be paid by the losing party and to be included in the sum for which execution may issue, a fee that the court determines to be reasonable[.] The court shall then tax attorneys' fees, which the court determines to be reasonable, to be paid by the losing party; provided that this amount shall not exceed twenty-five per cent of the judgment . . . and upon the amount sued for if the defendant obtains judgment.
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Assumpsit is "a common law form of action which allows
for the recovery of damages for non-performance of a contract,
either express or implied, written or verbal, as well as quasi
contractual obligations." TSA Int'l Ltd. v. Shimizu Corp., 92
Hawai i 243, 264, 990 P.2d 713, 734 (1999) (quoting Schulz v.
Honsador, 67 Haw. 433, 435, 690 P.2d 279, 281 (1984)). In
determining whether to award fees under HRS § 607-14 in a suit
that includes both assumpsit and non-assumpsit claims, a court
must determine whether the nature of the suit sounds in
assumpsit. Id. "Furthermore, in awarding attorneys' fees in a
case involving both assumpsit and non-assumpsit claims, a court
must base its award of fees, if practicable, on an apportionment
of the fees claimed between assumpsit and non-assumpsit claims."
Id.
To determine whether an action is in assumpsit, Hawai i
courts look to "the essential character of the underlying action
in the trial court." Leslie v. Est. of Tavares, 93 Hawai i 1, 5,
994 P.2d 1047, 1051 (2000). "The character of the action should
be determined from the facts and issues raised in the complaint,
the nature of the entire grievance, and the relief sought."
Blair v. Ing, 96 Hawai i 327, 332, 31 P.3d 184, 189 (2001)
(citation omitted).
Suits that seek damages for the failure to perform a
contract are generally in the nature of assumpsit. See Hong v.
Kong, 5 Haw. App. 174, 182–83, 683 P.2d 833, 841 (1984)
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(rescission and restitution are in the nature of assumpsit). On
the other hand, common law actions that sound in tort are not
actions in the nature of assumpsit. Blair, 96 Hawai i at 332, 31
P.3d at 189. Statutory causes of action that do not provide for
damages based on an underlying contract are not actions in
assumpsit. 808 Dev., LLC v. Murakami, 111 Hawai i 349, 366, 141
P.3d 996, 1013 (2006); TSA Int'l Ltd., 92 Hawai i at 264, 990
P.2d at 734.
For example, the Hawai i Supreme Court has held that a
suit brought under the mechanic's lien statute is not in the
nature of assumpsit. Murakami, 111 Hawai i at 366, 141 P.3d at
1013. The supreme court reasoned that the mechanic's lien
statute was not a common law claim and the statute's remedy, lien
attachment, was not akin to contract damages. Id.
It is undisputed that Knowles's breach of employment
contract claim is in the nature of assumpsit. However, Knowles's
HWPA claim is statutory in nature, based on the following:
§ 378-62 Discharge of, threats to, or discrimination against employee for reporting violations of law. An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:
(1) The employee, or a person acting on behalf of the employee reports or is about to report to a public body, verbally or in writing, a violation or a suspected violation of:
(A) A law, rule, ordinance, or regulation, adopted pursuant to law of this State, a political subdivision of this State, or the United States[.]
HRS § 378-62 (2015).
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The HWPA provides for statutory remedies as follows:
§ 378-64 Remedies ordered by court. A court, in rendering a judgment in an action brought pursuant to this part, shall order, as the court considers appropriate, reinstatement of the employee or public employee, payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney's fees and witness fees, if the court determines that the award is appropriate.
HRS § 378-64 (2015).
A claim under HWPA does not sound in assumpsit. Akin
to the mechanic's lien claim discussed in Murakami, an HWPA claim
does not arise from a common law cause of action or a contractual
promise. Instead, the statute imposes an independent legal duty
on employers: an employer may not "discharge, threaten, or
otherwise discriminate against an employee" because the employee
reports a violation of "a law, rule, ordinance, or regulation[.]"
HRS § 378-62(1)(A). And, it provides unique remedies tailored to
its remedial purpose, such as reinstatement to position,
seniority, and fringe benefits. See HRS § 378-64. Notably, if
appropriate, HRS § 378-64 allows for an award of litigation
costs, including attorneys' fees, to an HWPA complainant –
without any reciprocal provision allowing an award of such costs
to an HWPA defendant.
Accordingly, Knowles brought both assumpsit and non-
assumpsit claims. "[I]n awarding attorneys' fees in a case
involving both assumpsit and non-assumpsit claims, a court must
base its award of fees, if practicable, on an apportionment of
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the fees claimed between assumpsit and non-assumpsit claims."
Blair, 96 Hawai i at 332, 31 P.3d at 189. Apportionment may not
be practicable, however, where the claims are "inextricably
linked." Id. at 333, 31 P.3d at 190.
This court has acknowledged that "there is no
prescribed method of determining when claims are too closely
related to segregate them[.]" Porter v. Hu, 116 Hawai i 42, 67,
169 P.3d 994, 1019 (App. 2007). However, the general inquiry
revolves around whether the prosecution or defense of a claim was
devoted "to the litigation as a whole," making it difficult to
allocate the hours on a claim by claim basis. Id. at 68, 169
P.3d at 1020 (citation omitted). Hawai i courts look to the
incident(s) giving rise to litigation, whether the claims arise
from the same common core of facts, and whether "counsels' time
was devoted largely to the litigation as a whole and not
divisible into discrete slivers neatly matching each claim
advanced." Id. at 69, P.3d at 1021. In cases where attorneys'
fees are recoverable on one cause of action but not another,
apportionment may not be required where "nearly every fact in
[the] case relate[s] in some way" to the other claims. Id.
Here, the gravamen of Knowles's claims is that HPU
violated his employment contract and the HWPA by terminating his
employment due to his allegations that he was being unfairly
targeted, subjected to workplace violence, and stalked. HPU
argued that it terminated Knowles because Knowles breached their
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contract by engaging in outside employment and insubordination.
The same factual allegations underlie both of Knowles's claims
and the defense to both claims. A review of the HPU's attorney
time sheets shows that the claims were not defended independently
of one another. Thus, it appears that this is not a case that we
can divide "into discrete slivers neatly matching each claim
advanced." See Porter, 116 Hawai i at 69, 169 P.3d at 1021.
Nonetheless, legislative intent and equitable
principles compel some limitation on the total amount of
attorneys' fees in this case. Looking to the legislative history
of HRS § 607-14's predecessor statute, the supreme court has
stated that "in enacting HRS § 607–17 (and in amending HRS
§ 607–14 to incorporate the provisions of HRS § 607–17), the
legislature's purpose was to place some limit on the amount of
attorney's fees that a prevailing party could reasonably
recover." Piedvache v. Knabusch, 88 Hawai i 115, 119, 962 P.2d
374, 378 (1998). The supreme court noted: The legislative history of HRS § 607–17 indicates clearly . . . that the statute was intended to prohibit the collection of excessive attorney's fees[.] HRS § 607–17 had its genesis in Act 194, § 1, 1955 Haw. Sess. Laws 171, which imposed a thirty-three and one-third percent cap, not to exceed $250, on the amount of attorney's fees awardable in lawsuits instituted in the district courts on written contracts. In 1959, the legislature extensively revised the statute to, among other things, reduce the amount of attorney's fees which could be awarded, prohibit the collection of such fees unless collection was provided for by a written instrument, prohibit the practice of pyramiding fees, and apply the cap on attorney's fees to lawsuits brought in both the district and the circuit courts. Act 218, § 1, 1959 Haw. Sess. Laws 146. In recommending passage of the bill which was ultimately enacted as Act 218, the House Judiciary Committee stated in pertinent part as follows: ["]Your Committee
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finds . . . that an attorney's fee . . . of thirty-three and one-third per cent is a heavy burden to place on a debtor[."] Hse. Stand. Comm. Rep. No. 103, in 1959 House Journal at 617.
Id. at 119-20, 962 P.2d at 378-79 (citation omitted).
The supreme court recognized that the "legislative
goal" of HRS § 607-14, and its predecessor statute, was to
"circumscrib[e] attorney's fees awards where the amount of the
potential judgment is ascertainable." Id. at 120, 962 P.2d at
379. The supreme court concluded: Just as it would be "inequitable" to deny a prevailing defendant any award of attorney's fees merely because no monetary amount has been sued for in his opponent's pleadings, it would be equally inequitable to award a prevailing defendant attorney's fees in an amount nearly twice that which the plaintiff could have recovered had he or she prevailed. Where, as here, the maximum possible judgment is capable of determination, it should serve as a limit on the amount of the defendant's attorney's fees pursuant to HRS § 607–14.
Id. (emphasis added).
Here, notwithstanding that Knowles's assumpsit and non-
assumpsit claims are inextricably intertwined, there is a
determinable maximum that should limit the amount of attorneys'
fees recoverable under HRS § 607-14. "The measure of recovery by
a wrongfully discharged employee is the amount of compensation
agreed upon for the remaining period of service, less the amount
which the employer affirmatively proves the employee has earned
or with reasonable effort might have earned from other
employment." Vieira v. Robert's Hawai i Tours, Inc., 2 Haw. App.
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237, 239, 630 P.2d 120, 122 (1981). 3 Knowles's contract ran from
August 16, 2014, to August 15, 2019. Thus, for his claim
sounding in assumpsit, Knowles was only potentially entitled to
"future pay" on his employment contract from the date of his
termination on June 19, 2015, until the employment contract
expired on August 15, 2019. Therefore, we conclude that the
maximum possible damages Knowles could have received based on the
breach of contract claim is determinable.
In addition, we are cognizant of the well-established
public policy behind remedial, fee-shifting statutes. "[F]ee-
shifting statutes are generally enacted to 'strengthen the
enforcement of selected . . . laws by ensuring that private
persons seeking to enforce those laws [can] retain competent
counsel.'" Schefke v. Reliable Collection Agency, Ltd., 96
Hawai i 408, 449 n.89, 32 P.3d 52, 93 n.89 (2001) (citation
omitted); see also Wiginton v. Pac. Credit Corp., 2 Haw. App.
435, 446, 634 P.2d 111, 120 (1981)("Although one purpose of
granting attorney's fees is to make the plaintiff whole, another
purpose is to encourage private enforcement of certain
statutes."). For example, in the context of Hawaii's Sunshine
Law, the supreme court noted: The main purpose behind HRS § 92–12(c) was to encourage citizens to pursue claims of violations of the sunshine law, and an award of attorneys' fees against a citizen who challenged a sunshine law violation and lost
3 We also note that there is no provision that allows a plaintiff to recover future pay under the HWPA. See HRS § 378-64.
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would have a "'chilling effect' and deter citizens from filing HRS § 92–12(c) suits in the future."
Kahana Sunset Owners Ass'n v. Maui Cnty. Council, 86 Hawai i 132,
136 n.4, 948 P.2d 122, 126 n.4 (1997).
The HWPA is a remedial statute that should be construed
liberally to "accomplish the purpose for which it was enacted."
Crosby v. State Dep't of Budget & Fin., 76 Hawai i 332, 342, 876
P.2d 1300, 1310 (1994). The legislative history confirms that,
like other statutes that allow for one-sided fee shifting, the
HWPA was enacted to encourage enforcement of the law: The purpose of this bill is to provide protection to employees in the private and public sectors who report suspected violations of law from any form of retaliation by their employers.
Your Committee on Judiciary heard testimony from the State Ethics Commission strongly supporting this bill. Your Committee agrees that providing protection to government employees and citizens who are willing to "blow the whistle" when they are aware of ethical or other violations of law will help the State maintain high standards of ethical conduct.
Sen. Stand. Comm. Rep. No. 1127, in 1987 Senate Journal at 1392.
Defendants are entitled to only limited fees under HRS
§ 607-14 and they are not entitled to any fees under the HWPA.
It would therefore be inequitable to allow a defendant to recover
fees beyond HRS § 607-14's 25% limit merely because a plaintiff
also asserted an HWPA claim. As noted above, the HWPA allows
plaintiffs, and plaintiffs alone, to recover attorneys' fees in
order to encourage employees to 'blow the whistle' on illegal
conduct. Id. Allowing defendants to recover fees for the
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defense of an HWPA claim would have a "chilling effect" like the
one the supreme court sought to avoid in Kahana Sunset, and
undermine the legislative intent to "provide protection to
employees." Sen. Stand. Comm. Rep. No. 1127, in 1987 Senate
Journal at 1392. Thus, we hold that the Circuit Court abused its
discretion in failing to limit HPU's attorneys' fees award to an
amount based on the maximum possible judgment on Knowles's breach
of contract claim.
Finally, we note that, to the extent that it did so,
the Circuit Court clearly erred in determining the amount sued
for in this case – and in turn determining the allowable amount
of attorneys' fees – based on Knowles's interrogatory response in
the USDC suit, rather than, for example, Knowles's requested
damages in his proposed Findings of Fact and Conclusions of Law
in this case. Upon remand, the proper inquiry involves the
amount of damages sought in this case based on Knowles's breach
of contract claim against HPU, without regard to any additional
relief that might have provided under the HWPA.
V. CONCLUSION
Based on the foregoing, the Circuit Court's June 18,
2024 Judgment on Fees and May 24, 2024 Order re Attorneys' Fees
are vacated and this case is remanded to the Circuit Court for a
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recalculation of the award of attorneys' fees consistent with
this Opinion.
DATED: Honolulu, Hawai i, May 27, 2026.
On the briefs: /s/ Karen T. Nakasone Chief Judge Charles H. Brower, Michael P. Healy, /s/ Katherine G. Leonard for Plaintiff-Appellant Associate Judge
Anna Elento-Sneed, /s/ Kimberly T. Guidry Samantha M.P. Sneed, Associate Judge (ES&A, Inc.), For Defendant-Appellee