Surfrider Foundation v. Kyo-Ya Hotels & Resoirts, LP

• Court: Hawaii Supreme Court
• Decided: November 2, 2015
• Docket: SCAP-14-0000379
• Status: Published

Opinion

***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Electronically Filed Supreme Court SCAP-14-0000379 02-NOV-2015 09:59 AM

SCAP-14-0000379

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

SURFRIDER FOUNDATION; HAWAII’S THOUSAND FRIENDS; KA IWI COALITION; and KAHEA – THE HAWAIIAN-ENVIRONMENTAL ALLIANCE, Respondents/Appellants-Appellees,

vs.

KYO-YA HOTELS & RESORTS, LP, Petitioner/Appellee-Appellant,

and

ZONING BOARD OF APPEALS, CITY & COUNTY OF HONOLULU; DIRECTOR OF THE DEPARTMENT OF PLANNING & PERMITTING, CITY & COUNTY OF HONOLULU; and 20,000 FRIENDS OF LABOR, Respondents/Appellees-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-14-0000379; CIV. NO. 13-1-0874-03) SUMMARY DISPOSITION ORDER (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

Upon consideration of Petitioner/Appellee-Appellant

Kyo-ya Hotels & Resorts LP’s (Kyo-ya) appeal from the Circuit

Court of the First Circuit’s “Order Denying Appellee Kyo-ya ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Hotels & Resorts LP’s Motion for Attorneys’ Fees and Costs Under

HRS § 607-14.5 Filed on 11/13/2013” (Order Denying Kyo-ya’s

Attorneys’ Fees), entered on January 6, 2014, together with all

submissions in support thereof, and in light of our decision in

Surfrider Found. v. Zoning Bd. of Appeals, No. SCAP-13-0005781,

2015 WL 5597179 (2015), we conclude that the claims presented by

Respondents/Appellants-Appellees are not frivolous within the

meaning of HRS § 607-14.5 (Supp. 2014) so as to merit recovery

by Kyo-ya of attorneys’ fees and costs. See Tagupa v. VIPDesk,

135 Hawai#i 468, 479, 353 P.3d 1010, 1021 (2015) (“A frivolous

claim is a ‘claim so manifestly and palpably without merit, so

as to indicate bad faith on the [pleader’s] part such that

argument to the court was not required.’” (alteration in

original) (quoting Coll v. McCarthy, 72 Haw. 20, 29—30, 804 P.2d

881, 887 (1991)). Accordingly,

IT IS HEREBY ORDERED that the Order Denying Kyo-ya’s

Attorneys’ Fees is affirmed.

DATED: Honolulu, Hawai#i, November 2, 2015.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson