Surfrider Foundation v. Kyo-Ya Hotels & Resoirts, LP ( 2015 )

***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***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***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***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