Today, the HAWSCT will hear oral arguments at 9AM in In the Matter of the Application of Honolulu Construction and Draying Company, Ltd. v. State of Hawaii, Department of Land and Natural Resources et al., Scenic Hawaii, and Aloha Tower Development Corp., SCWC-30484, concerning the award of attorneys' fees under the private attorney general doctrine. The Land Court awarded attorneys' fees and costs totaling over $135,000.00 to Scenic Hawaii, and the ICA reversed.
The underlying case involved the land that is now known as Irwin Memorial Park, located mauka of the Aloha Tower Marketplace, and originally set aside as a public park. The Aloha Tower Development Corporation later sought to expunge the public park deed restrictions in Land Court in order to build a parking structure on the land. The Land Court denied the Corporation's petition, and awarded attorneys' fees and costs.
In an opinion authored by Judge Leonard (and jointed by Judges Foley and Fujise), the ICA held that the Land Court erred in awarded fees under the private attorney general doctrine. The doctrine is a judicially created exception to the general rule that each party is responsible for paying its own attorneys' fees. Fees may be awarded under the doctrine (1) if an important public policy is vindicated by the litigation, (2) consideration of the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff, and (3) consideration of the number of people standing to benefit from the decision. The ICA held that the first two elements had not been met, and thus did not address the third factor. Therefore, the court held that the Land Court abused its discretion in awarding the fees.
On cert, Scenic Hawaii argues that (1) the ICA failed to consider the State's sudden filing of a petition which would have resulted in irreparable damage to Irwin Park and the public interest; (2) the ICA erred in reversing the Land Court's award of attorneys' fees as abuse of discretion; (3) Scenic Hawaii vindicated important public policy, (4) Scenic Hawaii's intervention into the litigation was necessary; and (5) the people of Hawaii and its visitors benefit from the decision.
For more information on this case, visit my colleage Robert Thomas's inversecondemnation.com blog here.
The HAWSCT accepted cert on May 1, 2013, and the order is available here.
The ICA's opinion is available here
The cert application is available here.
The opposition to cert is available here.
The Answering Brief filed in the ICA is available here.
The Reply Brief filed in the ICA is available here.