***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-14-0000387
18-SEP-2017
07:59 AM
SCWC-14-0000387
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
EARL C. CHARLES and PATRICIA A. CHARLES, in their individual
capacities and as co-trustees of the Earl C. Charles
and Patricia A. Charles Revocable Living Trust Dated
December 12, 1990; PETER COAD JR. and JUDY E. COAD, in their
individual capacities and as co-trustees of the Coad Family
Trust Dated April 14, 2006; JOHN E. CORK; SUSAN M. CORK;
AL P. BRENDE; DOUGLAS M. DROESE and RENEE S. DROESE, in their
individual capacities and as co-trustees of the 1995 Droese
Family Trust 08/02/95; MARTIN GIUFFRE; PATRICIA GIUFFRE;
MATTHEW GIUFFRE; WILLIAM G. GLENNON and CAROLYN N. GLENNON, in
their individual capacities and as co-trustees of the Glennon
Living Trust dated 01/16/97; BRIAN HOYLE, in his individual
capacity and as trustee of The Brian H. Hoyle Trust;
WILLARD S. JOHNSTON, in his individual capacity and as trustee
of The Willard Spencer Johnston Jr. Trust Dated 4-27-92;
MICHAEL M. KEMPS, in his individual capacity and as co-trustee
of the Kemps Family Trust Dated October 23, 2003; GEMMA KEMPS,
in her individual capacity and as co-trustee of The Kemps
Family Trust Dated October 23, 2003; DOCTOR ROHIT KHANNA;
THERESA KHANNA; TERRY G. NEGENDANK and PAULA T. NEGENDANK, in
their individual capacities and as co-trustees of The Terry G.
Negendank and Paula T. Negendank 2000 Revocable Living Trust;
JULIA NEGENDANK; HEIDI NEGENDANK; STEPHEN E. PENFOLD;
BARBARA A. PENFOLD; DONALD RECCHIO; MARIE WEBER; MARLON A. REYES;
PATRICIA Y. SIGUENZA; THOMAS D. ROSINSKI; JANET S. ROSINSKI;
CHARLES P. SCHULMAN; RICHARD J. STUART, in his individual
capacity and as trustee of The Richard J. Stuart Trust Under
Agreement Dated June 27, 2005; RICHARD VICKERS; NICOLE VITULLO;
ANDREW H.W. BRANION; JOYCE L. ZIEBELL; WILLIAM BENDUSH and
SOPHIA BENDUSH, in their individual capacities and as
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co-trustees of The Bendush Family Trust Dated March 25, 1987;
DOCTOR THOMAS M. PROSE; RONALD A. ABELMANN; JERYL J. ABELMANN;
ABELMANN INVESTMENTS, LP; FRANCIS R. ZAMBON, in his individual
capacity and as trustee of The Francis R. Zambon Living Trust
Dated April 21, 2000, and as co-trustee of The Francis R. Zambon
and Karen E. Zambon Living Trust Dated May 13, 2011;
KAREN E. ZAMBON, in her individual capacity and as co-trustee
of The Francis R. Zambon and Karen E. Zambon Living Trust Dated
May 13, 2011; JOHN R. HENKEL; SUSAN A. HENKEL; CAROLINE GAUTHIER;
MARC LEFEBVRE; DOUGLAS C. MCCORD; TRACEY A. MCCORD;
KEVIN R. DUNCAN; GREG H. GIESLER and ANN L. GIESLER, in their
individual capacities and as co-trustees of the Giesler Family
Trust; LEE J. CHIMERAKIS; THERESA A. CHIMERAKIS; JOHN
FITZPATRICK; BARBARA FITZPATRICK; DAVID APLIN, in his individual
capacity and as a trustee of The Aplin Kapalua Trust; RICHARD
GIARAMITA; LISA GIARAMITA; DOCTOR ROBERT M. JACKSON and JUDITH
JACKSON, in their individual capacities and as co-trustees of
The Robert M. Jackson and Judith Jackson Revocable Trust;
CRAIG L. CAPRETTA; ARLINDA CAPRETTA; ALEX WERNBERG; JANE
WERNBERG; JEFFREY L. ROTHENBERGER and STACY L. ROTHENBERGER,
in their individual capacities and as co-trustees of The Jeff
Lynn Rothenberger and Stacy Leah Rothenberger Revocable Living
Trust; WILLIAM C. GABRIELSON, in his individual capacity and
as trustee of The William C. Gabrielson Trust; GLENNA ANTHONY;
KEITH DELLER; AL A. KASHANI; TRI M. LA; JOHN W. HARKINS;
RENEE LA FORCE HARKINS, Petitioners/Plaintiffs-Appellants,
vs.
KAPALUA BAY, LLC, MAUI LAND & PINEAPPLE CO., INC.;
THE RITZ-CARLTON HOTEL COMPANY, LLC; THE RITZ-CARLTON
DEVELOPMENT CO., INC.; MARRIOTT INTERNATIONAL, INC.;
EXCLUSIVE RESORTS, LLC; MARRIOTT VACATIONS WORLDWIDE
CORPORATION; THE RITZ-CARLTON MANAGEMENT COMPANY, LLC;
MARRIOTT TWO FLAGS, LP; MH KAPALUA VENTURE, LLC; MLP KB
PARTNER, LLC; EXCLUSIVE RESORTS CLUB I HOLDINGS, LLC;
EXCLUSIVE RESORTS DEVELOPMENT COMPANY, LLC; ER KAPALUA
INVESTORS FUND HOLDINGS, LLC; ER KAPALUA INVESTORS FUND, LLC;
KAPALUA BAY HOLDINGS, LLC, Respondents/Defendants-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0000387; CIV. NO. 13-1-0640)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson JJ.)
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Petitioners/Plaintiffs-Appellants (Petitioners) seek
review of the September 9, 2015 Order Granting in Part and
Denying in Part Without Prejudice Motion for an Award of
Attorneys’ Fees and Costs, in which the Intermediate Court of
Appeals (ICA) granted Petitioners’ request for appellate costs
and denied Petitioners’ request for appellate attorney’s fees
“without prejudice to Plaintiffs-Appellants submitting a request
for attorneys’ fees to the Circuit Court of the Second Circuit
(circuit court), including the fees incurred on this appeal, at
the conclusion of this case in the circuit court.”
On certiorari, Petitioners contend that the ICA erred
in not awarding attorney’s fees by failing to recognize that an
arbitrability dispute is a separate action under Hawai#i Revised
Statutes (HRS) § 607-14, and that in prevailing in the
arbitrability dispute, Petitioners were entitled to attorneys’
fees.
With respect to appellate attorneys’ fees, we conclude
that, for the purposes of HRS § 607-14, the appeal of the
arbitrability issue is a separate action from the underlying
dispute on the merits. We determine that Petitioners prevailed
in the arbitrability action and are entitled to reasonable
attorneys’ fees under HRS § 607-14 and the fee-shifting provision
in the Purchase Agreement. We award Petitioners $54,974.00 in
attorneys’ fees incurred on appeal before the ICA, to be taxed
jointly and severally among Respondents/Defendants-Appellees.
With respect to Petitioners’ request for an order
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stating that they are entitled to attorneys’ fees and costs
incurred in proceedings before the circuit court and in
arbitration, we affirm the ICA’s denial without prejudice to
Petitioners’ right to request fees and costs from the circuit
court.
We also affirm the ICA’s award of $474.60 in appellate
costs.
Accordingly, we reverse the portion of the ICA’s
September 9, 2015 order denying Petitioners’ request for
appellate attorneys’ fees, and affirm the portions of the ICA’s
September 9, 2015 order granting Petitioners’ request for
appellate costs and denying Petitioners’ request for fees and
costs incurred in the circuit court without prejudice to
Petitioners’ right to request fees and costs in the circuit
court.
DATED: Honolulu, Hawai#i, September 18, 2017.
Mark J. Bennett and /s/ Mark E. Recktenwald
Andrew J. Lautenbach
for petitioners
/s/ Paula A. Nakayama
Bert T. Kobayashi, Jr.,
Lex R. Smith, Maria Y. /s/ Sabrina S. McKenna
Wang, and Aaron R. Mun
for respondents The /s/ Richard W. Pollack
Ritz-Carlton Hotel
Company, LLC, The Ritz- /s/ Michael D. Wilson
Carlton Development
Co., Inc., Marriott
International, Inc.,
Marriott Vacations
Worldwide Corporation;
The Ritz-Carlton Management
Company, LLC; Marriott Two
Flags, LP; and MH Kapalua
Venture, LLC
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