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NO. CAAP-16-0000559

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

PUBLIC ACCESS TRAILS HAWAI#I, a Hawai#i Nonprofit Corporation,

and DAVID BROWN, JOE BERTRAM, III; KEN SCHMITT; for themselves

individually, and on behalf of the certified class members,

Plaintiffs-Appellants,

v.

HALEAKALA RANCH COMPANY, a Hawai#i Corporation; STATE OF

HAWAI#I, WILLIAM AILA, JR., in his official capacity as the

Director of the State of Hawai#i DEPARTMENT OF LAND AND NATURAL

RESOURCES and chair of the State of Hawai#i BOARD OF LAND AND

NATURAL RESOURCES; DEPARTMENT OF LAND AND NATURAL RESOURCES,

Defendants-Appellees,

and

JOHN DOES 1-10, JANE DOES 1-10 AND DOE PARTNERSHIPS,

DOE CORPORATIONS, GOVERNMENTAL UNITS OR OTHER ENTITIES 1-10,

Defendants

DEPARTMENT OF LAND AND NATURAL RESOURCES,

STATE OF HAWAI#I, Cross-Claimant-Appellee,

v.

HALEAKALA RANCH COMPANY, a Hawai#i Corporation,

Cross-Claim Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CIVIL NO. 11-1-0031(3))

MEMORANDUM OPINION

(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)

Plaintiffs-Appellants Public Access Trails Hawai#i, and

David Brown, Joe Bertram III, and Ken Schmitt, for themselves

individually and on behalf of the certified class members

(collectively PATH), appeal from the "Final Judgment", entered on

Electronically Filed

Intermediate Court of Appeals

CAAP-16-0000559

26-FEB-2021

07:57 AM

Dkt. 125 MO
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July 11, 2016, by the Circuit Court of the Second Circuit

(Circuit Court).

1 As part of their appeal, PATH challenges the

"Order Granting, in Part, Plaintiffs' Motion for Attorneys' Fees

and Costs For Phase One of Trial" (AF Order), entered on March 4,

2015, the "Order Awarding Plaintiffs' Attorneys' Fees and Costs

for Phase One of Trial" (AF Award), entered on May 19, 2015, and

the "Order Denying Plaintiffs' Second Motion for Attorneys' Fees

and Costs for Phase One of Trial" (Order Denying Second AF

Motion), entered on July 13, 2015. 

On appeal, PATH contends that the Circuit Court erred

in: (1) concluding that PATH was not entitled to attorneys' fees

under the private attorney general doctrine for fees incurred

after the date that PATH and Defendants/Cross-Claim

Plaintiffs/Cross-Claim Defendants-Appellees State of Hawai#i,

Suzanne D. Case in her official capacity as the Chair of the

State of Hawai#i Department of Land and Natural Resources and

Chairperson of the State of Hawai#i Board of Land and Natural

Resources, State of Hawai#i Department of Land and Natural

Resources, and the State of Hawai#i Board of Land and Natural

Resources (collectively the State)

2 entered into a "Joint

Prosecution Agreement"; (2) denying PATH's request for attorneys'

fees incurred litigating the attorneys' fees issue; and (3)

concluding that Defendant/Cross-Claim Defendant/Cross-Claim

Plaintiff-Appellee Haleakala Ranch Company's (HRC) claim of

private ownership of the Haleakalâ Trail was not made in bad

faith thus denying PATH's request for attorneys' fees under

1 The Honorable Joseph E. Cardoza presided.

2 In the proceedings below, PATH named William Aila, Jr., in his

capacity as the Chair of the State of Hawai#i Department of Land and Natural

Resources and Chairperson of the State of Hawai#i Board of Land and Natural

Resources as a party defendant. As William Aila, Jr., no longer holds this

position, his successor, Suzanne D. Case, is automatically substituted as a

party in the instant appeal pursuant to Hawai#i Rules of Appellate Procedure

(HRAP) Rule 43(c)(1). 

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Hawaii Revised Statutes (HRS) § 607-14.5 (2016).3

For the reasons discussed below, we affirm the Circuit

Court.

I. Background

On January 18, 2011, PATH filed a complaint against,

inter alia, the State and the HRC.4 The complaint included seven

claims for relief seeking to restore public access to a portion

of the Haleakalâ Trail situated on land owned by the HRC.5 On

March 31, 2011, the State filed a motion to dismiss PATH's

3 HRS § 607-14.5 provides:

§607-14.5 Attorneys' fees and costs in civil actions.

(a) In any civil action in this State where a party seeks

money damages or injunctive relief, or both, against another

party, and the case is subsequently decided, the court may,

as it deems just, assess against either party, whether or

not the party was a prevailing party, and enter as part of

its order, for which execution may issue, a reasonable sum

for attorneys' fees and costs, in an amount to be determined

by the court upon a specific finding that all or a portion

of the party's claim or defense was frivolous as provided in

subsection (b).

(b) In determining the award of attorneys' fees and

costs and the amounts to be awarded, the court must find in

writing that all or a portion of the claims or defenses made

by the party are frivolous and are not reasonably supported

by the facts and the law in the civil action. In determining

whether claims or defenses are frivolous, the court may

consider whether the party alleging that the claims or

defenses are frivolous had submitted to the party asserting

the claims or defenses a request for their withdrawal as

provided in subsection (c). If the court determines that

only a portion of the claims or defenses made by the party

are frivolous, the court shall determine a reasonable sum

for attorneys' fees and costs in relation to the frivolous

claims or defenses.

(c) A party alleging that claims or defenses are

frivolous may submit to the party asserting the claims or

defenses a request for withdrawal of the frivolous claims or

defenses, in writing, identifying those claims or defenses

and the reasons they are believed to be frivolous. If the

party withdraws the frivolous claims or defenses within a

reasonable length of time, the court shall not award

attorneys' fees and costs based on those claims or defenses

under this section. 

4 On May 24, 2013, PATH filed their first amended complaint. On August

30, 2013, PATH filed their second amended complaint.

5 The complaint included the following claims for relief: (1) count I

(Public Trust); count III (sic) (Customary and Traditional Access); (3) Count

III (Highways Act of 1892 and HRS § 264-1); (4) count IV (Quiet Title); (5)

count V (Public Nuisance); (6) count VI (HRS 6E Historic Preservation); (7)

count VII (Violation of Due Process). Count VII (Violation of Due Process) was

subsequently removed in PATH's second amended complaint.

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complaint, which HRC subsequently joined.6 On June 7, 2011, the

Circuit Court entered an order denying in part and granting in

part the State's motion to dismiss. 

On December 26, 2012, PATH and the State entered into a

"Joint Prosecution Agreement" (JP Agreement). Pursuant to the JP

Agreement, the State and PATH agreed to jointly prosecute count

III "Highways Act of 1892 and HRS § 264-1" and count IV "Quiet

Title" of PATH's complaint against the HRC, subject to the terms

and conditions of the agreement. As part of the JP Agreement,

PATH agreed to dismiss without prejudice their claims against the

State, and the State agreed to file a cross-claim against HRC so

that it could jointly prosecute the claims against HRC. 

On February 4, 2013, the Circuit Court entered an order

approving the JP Agreement as to the certified class members. 

Accordingly, the State filed its cross-claim against HRC on March

6, 2013,7 to quiet title to the disputed portion of the Haleakalâ

Trail, and the Circuit Court entered an order dismissing without

prejudice all of PATH's claims against the State on March 27,

2013. On October 4, 2013, HRC filed a cross-claim against the

State asserting sole and exclusive ownership of the disputed

portion of the Haleakalâ Trail.

On May 3, 2013, the Circuit Court entered an order

bifurcating this case into two phases. Pursuant to subsequent

orders, the Circuit Court determined that the first phase would

address: (1) the State's second amended cross-claim against HRC

to quiet title to the disputed portion of the Haleakalâ Trail;

(2) "[t]he first element (public right of way) of Count V (Public

Nuisance) of [PATH's] Second Amended Complaint"; and (3) HRC's

cross-claim against the State seeking a judgment that HRC is the

6 Many of the filings in this case were filed ex officio. The ex

officio filing date of such documents prevails over the file stamped date to

the extent that the dates differ from each other. Cochrane v. Azman, No.

29562, 2011 WL 661714, at *1 n.3 (App. Feb. 22, 2011) (Mem. Op.). 

7 On May 29, 2013, the State filed its first amended cross-claim

against HRC. On September 16, 2013, the State filed its second amended crossclaim.

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sole and exclusive owner of the disputed portion of the Haleakalâ

Trail (collectively the Phase One Issues). 

On March 17, 2014, a jury trial commenced to determine

the Phase One Issues. The trial took over five weeks, concluding

on April 23, 2014. On December 19, 2014, the Circuit Court

entered judgment relating to the State's second amended crossclaim and the first element of count V of PATH's second amended

complaint in favor of the State and PATH in accordance to the

Jury's Special Verdict Form (Phase One Judgment). The HRC's

cross-claim against the State was dismissed without prejudice via

a stipulation between the State and HRC filed November 21, 2014. 

On December 16, 2014, PATH filed "[PATH's] Motion for

Attorneys' Fees and Costs for Phase One of Trial" (First

Attorneys' Fees Motion). The First Attorneys' Fees Motion sought

from HRC $1,108,915.30 in attorneys' fees incurred for the period

from January 18, 2011, the date HRC was served with PATH's

complaint, through April 23, 2014, the date of the jury verdict. 

The motion sought attorneys' fees under three theories, including

the private attorney general doctrine and under HRS

§ 607-14.5.8

In the meantime, the State, PATH, and HRC agreed to

resolve all remaining issues in this case in a handwritten

mediated settlement agreement dated December 19, 2014. Pursuant

to the settlement agreement, HRC agreed that it would not pursue

a new trial and/or appeal from the Circuit Court's Phase One

Judgment, or seek to acquire the disputed portion of the

Haleakalâ Trail through a proposed land exchange with the State,

which was previously discussed before trial. Additionally, the

parties agreed that the Circuit Court would independently decide

the First Attorneys' Fees Motion, and that the court's decision

would be appealable by either PATH or the HRC. Finally, the

8 PATH also sought attorneys' fees for HRC's failure to admit to

requests for admission under Hawai#i Rules of Civil Procedure (HRCP) Rule 36,

which the Circuit Court awarded. This fee award is not relevant to this

appeal, so we do not discuss it further.

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parties agreed that PATH would move to dismiss with prejudice the

remaining issues that were to be determined at the second phase

of the trial.9 On July 11, 2016, the Circuit Court entered its

order approving the Settlement Agreement.

On March 4, 2015, the Circuit Court entered its AF

Order, which granted in part and denied in part PATH's First

Attorneys' Fees Motion. In the AF Order, the Circuit Court

determined, inter alia, that under the private attorney general

doctrine, PATH was entitled to reasonable fees and costs from HRC

through December 26, 2012, the date that PATH entered into the JP

Agreement with the State. The Circuit Court further determined

that the record did not support a finding that HRC's claim of

private ownership of the Haleakalâ Trail was made in bad faith,

and thus PATH was not entitled to attorneys' fees and costs

pursuant to HRS § 607-14.5. Accordingly, on May 19, 2015, the

Circuit Court filed its AF Award, awarding, inter alia,

$227,560.52 in reasonable attorneys' fees to PATH from HRC.

On May 6, 2015, PATH filed a motion seeking an

additional award of attorneys' fees against HRC for the time

incurred litigating the attorneys' fees issue. On July 13, 2015,

the Circuit court entered its Order Denying Second AF Motion. On

July 11, 2016, the Circuit Court entered its Final Judgment. 

This appeal follows.

II. Standards of Review

A. The Private Attorney General Doctrine

This court reviews trial court awards of attorneys'

fees and costs under the abuse of discretion standard. Honolulu

Const. and Draying Co., Ltd. v. State, Dept. of Land and Nat.

Res. (Irwin Park II), 130 Hawai#i 306, 313, 310 P.3d 301, 308

(2013). However, "we review de novo whether the trial court

disregarded rules of principles of law that arise in deciding

whether or not a party satisfies the three factors of the private

attorney general doctrine." Id.

9 Portions of the Settlement Agreement apparently relating to the

issues of attorneys' fees were redacted.

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B. Fees Requested Due to HRC's Allegedly Frivolous Claim

A trial court's conclusion that a party's claim was

"made in good faith" and thus not frivolous for purposes of an

award of attorneys' fees presents mixed questions of fact and

law. Thus the clearly erroneous standard of review applies in

making this conclusion. See Coll v. McCarthy, 72 Haw. 20, 28,

804 P.2d 881, 886 (1991). "A finding is clearly erroneous where

the court is left with a firm and definite conviction that a

mistake has been committed." Id. at 28, 804 P.2d at 887

(citation omitted). 

III. Discussion

A. Attorneys' Fees Under the Private Attorney General Doctrine

In their first point of error, PATH asserts that the

Circuit Court erred in its AF Order and AF Award by determining

that PATH was not entitled under the private attorney general

doctrine to attorneys' fees incurred after the State and PATH

entered into the JP Agreement. We disagree.

"The private attorney general doctrine sets forth an

equitable rule enabling an award of attorneys' fees for

vindication of important public rights." Irwin Park II, 130

Hawai#i at 308, 310 P.3d at 303 (citation omitted). In applying

this doctrine, courts consider three basic factors:

(1) the strength or societal importance of the public policy

vindicated by the litigation, (2) the necessity for private

enforcement and the magnitude of the resultant burden on the

plaintiff, and (3) the number of people standing to benefit

from the decision.

Id. (citation and brackets omitted). 

Here, the Circuit Court determined that PATH satisfied

all three factors of the private attorney general doctrine until

PATH and the State entered into the JP Agreement.10 In regards

to the second factor, the necessity for private enforcement and

the magnitude of the resultant burden on the plaintiff, the

Circuit Court stated:

10 No party challenges the Circuit Court's determination of the first

and third prongs of the private attorney general doctrine. 

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Next, [PATH's] efforts to preserve the trail were

necessary in light of the State's initial reluctance to

preserve the trail and its joint proposal with HRC to

exchange the trail for another site of less importance. 

Until the State and [PATH] entered into a [JP Agreement],

the State actively defended and opposed [PATH's] claims

herein. Prior to the [JP Agreement], [PATH] had to assume

the entire burden of the litigation herein.

. . . . 

Based on the foregoing, [PATH is] entitled to

reasonable fees and costs through the date that [PATH]

entered into a [JP Agreement] with the State. Although at

times the joint relationship between [PATH] and the State

was not on a solid foundation, these parties continued with

their joint prosecution of the claims pursued during phase

one of the trial. Under these circumstances, it would be

inappropriate to apply the private attorney general doctrine

beyond the date of the joint prosecution agreement.

(Emphasis added). 

PATH contends that even after the parties executed the

JP Agreement, PATH bore the brunt of the litigation burden and

the State continued to act adversely against its interest to

preserve public access to the Haleakalâ Trail. Accordingly, PATH

asserts that their private enforcement continued to be necessary

even after the State and PATH entered into the JP Agreement, and

thus PATH should have been awarded attorneys' fees accordingly. 

We conclude that the Circuit Court did not abuse its discretion

in denying fees to PATH under the private attorney general

doctrine after the parties entered into the JP Agreement.

The Supreme Court of Hawai#i has recognized that the

second prong of the private attorney general doctrine may be

fulfilled where the government either "abandons" or "actively

opposes" the plaintiff's cause such that the plaintiff is "solely

responsible" for advocating the public interest. See Sierra Club

v. Dep't of Transp. of State of Hawai#i, 120 Hawai#i 181, 220-21,

202 P.3d 1226, 1265-66 (2009); In re Water Use Permit

Applications (Waiahole II), 96 Hawai#i 27, 31, 25 P.3d 802, 806

(2001). 

Consistent with these principles, the Circuit Court

determined that PATH was entitled to attorneys' fees under the

private attorney general doctrine until the parties entered into

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the JP Agreement, because until that point of the litigation the

State had actively opposed PATH's efforts to preserve the

disputed portion of the Haleakalâ Trail, thus making PATH "solely

responsible" for advocating the public interest. See Sierra

Club, 120 Hawai#i at 220-21, 202 P.3d at 1265-66. The Circuit

Court further determined, however, that PATH was not entitled to

attorneys' fees after the parties entered into the JP Agreement

because the parties had "continued with their joint prosecution

of the claims pursued during the phase one of the trial." This

determination is also consistent with our precedent because

pursuant to the JP Agreement, the State was no longer abandoning

or actively opposing PATH's cause, and PATH was no longer "solely

responsible" for advocating the public interest.11 See id. Thus,

the Circuit Court acted within its discretion and in

consideration of the applicable principles of law in determining

not to award attorneys' fees under the private attorney general

doctrine beyond the date of the JP Agreement. See Sierra Club,

120 Hawai#i at 220, 202 P.3d at 1265; Waiahole II, 96 Hawai#i at

31-32, 25 P.3d at 806-07.

11 The terms of the JP Agreement further show that upon its execution,

the parties had agreed to support each other in jointly prosecuting their

claims against HRC such that PATH was no longer "solely responsible" for

advocating the public interest. The provision entitled "Other Consideration

by the State and Related State Issues" in the JP Agreement provides:

1. The State shall, at minimum, join with [PATH] on

substantive motions in Court against HRC with respect to the

Joint Prosecution Claim, or join and support any appellate

arguments in either or both of the Hawai#i appellate courts

related to the Joint Prosecution Claim.

2. The State shall coordinate with [PATH] in the

preparation of evidence for motions, evidentiary hearings,

and/or trial against HRC on the Joint Prosecution Claim. 

This may include, but not be limited to, assisting with and

providing declarations or testimony from experts from the

State of Hawai#i, such as Na Ala Hele abstractor on title or

abstract issues.

3. In the event that [PATH] prevail[s] on any

claims for relief against HRC, the State shall not object to

any efforts by [PATH] to seek from HRC attorneys' fees and

costs of suit pursuant to the private attorney general

doctrine, and/or as otherwise permitted by law.

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PATH relies heavily on Irwin Park II in support of

their contention that the Circuit Court erred in not applying the

private attorney general doctrine after the parties entered into

the JP Agreement. In Irwin Park II, the Hawai#i Supreme Court

held that the second factor of the private attorney general

doctrine was satisfied even where another private party was named

as a respondent alongside the organization representing the

public interest, Scenic Hawai#i Inc. (Scenic Hawai#i), and the

City and County of Honolulu had intervened in the suit, and

joined Scenic Hawai#i in its motion to dismiss. Irwin Park II,

130 Hawai#i at 305-07, 310 P.3d at 310-12. The Court

acknowledged that "a party representing the public interest along

with other parties may still be 'solely responsible' for

advocating the public interest . . . despite the fact that

private parties are named in the litigation." Id. at 316, 310

P.3d at 311 (citation omitted). PATH thus asserts that it still

should have been considered "solely responsible" for advocating

the public interest even after the State agreed to jointly

prosecute the claims against HRC. Irwin Park II is, however,

distinguishable from the instant case.

In Irwin Park II, a government entity, the Aloha Tower

Development Corporation (ATDC), actively opposed Scenic Hawaii's

efforts to vindicate the public interest throughout the entirety

of the litigation. Id. at 316-17, 310 P.3d at 311-12. The State

of Hawai#i, and the State of Hawai#i Department of Land and

Natural Resources also opposed Scenic Hawaii's cause once they

entered the litigation. Id. at 317, 310 P.3d at 312. The

Supreme Court noted that this was distinguishable from prior

cases where the court denied attorneys' fees in part because the

government entity "had not wholly abandoned or actively opposed

the plaintiff's cause." Id. (citing to Maui Tomorrow v. State,

Bd. Of Land and Nat. Res. Of State of Hawai#i, 110 Hawai#i 234,

245, 131 P.3d 517, 528 (2006). In contrast, here, the State

actively opposed PATH's cause until the parties entered into the

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JP Agreement, upon which the parties entered into a cooperative

agreement to jointly prosecute their claims against the HRC.

Thus, it was within the Circuit Court's discretion to deny

attorneys' fees beyond this point in the litigation.

Finally, PATH asserts that its participation continued

to be necessary after the JP Agreement because the State

continued to act adversely to its cause, including discussing

with HRC a proposed land exchange "in which the State would

exchange its property interest in Haleakalâ Trail for a yet-to

be-built jeep road located on the leeward side of Haleakalâ." 

However, as noted by the HRC, the JP Agreement contains a

provision that allows the parties to seek relief from the Circuit

Court "to return the case to the status quo before [the JP

Agreement] was signed" in the event of a material breach. While

PATH asserts that they had informed the State that its actions

were in violation of the JP Agreement, it never exercised its

right to seek relief from the Circuit Court. Thus, the Circuit

Court, within its discretion, determined that although PATH and

the State's relationship at times was "not on a solid

foundation[,]" it would be inappropriate to apply the doctrine

beyond the date of the JP Agreement because the parties

ultimately "continued with their joint prosecution of the claims"

in the phase one trial.

Based on the foregoing, we conclude that the Circuit

Court did not abuse its discretion in its AF Order and AF Award

in denying attorneys' fees under the private attorney general

doctrine after the State and PATH entered into the JP Agreement. 

B. Fees Incurred Litigating the Attorneys' Fees Issue

In their second point of error, PATH contends that the

Circuit Court erred in denying their second motion for attorneys'

fees, which sought an award for the fees incurred litigating the

attorneys' fees issue. We conclude that the Circuit Court did

not abuse its discretion in denying PATH's second motion for

attorneys' fees because the settlement agreement entered into by

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the parties did not appear to contemplate PATH's subsequent

request for attorneys' fees.

As previously noted, PATH, the State, and HRC entered

into a handwritten mediated settlement agreement, which settled

all remaining claims following the Phase 1 Trial. The settlement

agreement contains provisions pertaining to PATH's First

Attorneys' Fees Motion, which state:

The parties agree as follows with respect to Plaintiff's

attorneys' fees motion:

The motion will be heard by Judge Cardoza, whose decision

may be appealed by either party[.]

. . . . 

Plaintiff's motion for attorneys' fees will be heard by

Judge Cardoza in his courtroom in the normal course[.] 

At the June 24, 2015 hearing on PATH's motion, the

Circuit Court noted that, in its view, the terms of the

settlement agreement "did not specifically address one way or the

other whether a second motion for the fees related to the

litigation over the fees and costs would be awarded." While the

Circuit Court also acknowledged that our appellate courts have

not yet addressed whether plaintiffs are entitled to fees

incurred litigating for attorneys' fees under the private

attorney general doctrine, it noted that in its view, the parties

only contemplated a single motion for fees and costs in the

settlement agreement, and thus determined that it would be

inappropriate to grant PATH's subsequent motion for fees.

We find no abuse in the Circuit Court's determination. 

The language of the settlement agreement only refers to a single

motion for attorneys' fees. Further, the record supports the

Circuit Court's determination that the parties never contemplated

PATH's second attorneys' fee motion when they entered into the

settlement agreement. The settlement agreement is dated December

19, 2014. At that time, only PATH's First Attorneys' Fees Motion

was before the Circuit Court, which did not include or mention

any request for fees incurred litigating this issue. PATH's

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second motion for attorney's fees was filed on May 6, 2015,

nearly five months after the December 19, 2014 settlement

agreement. Finally, at the April 22, 2015 hearing on PATH's

First Attorneys' Fees Motion, PATH first informed the Circuit

Court that it intended to file "a supplemental motion requesting

attorney's fees for the prosecution of [PATH's] attorney's fees." 

HRC's counsel noted that it was "baffled" by PATH's second

request for attorney's fees, noting that such motion may be

inconsistent with the settlement agreement. 

Given the record, we conclude that the Circuit Court

did not abuse its discretion in denying PATH's second motion for

attorneys' fees.

C. PATH's Claim for Attorneys' Fees Under HRS § 607-14.5

In their final point of error, PATH contends that the

Circuit Court erred in concluding that HRC's claim of private

ownership of the Haleakalâ Trail was not made in bad faith, thus

denying PATH's request for attorneys' fees under HRS § 607-14.5. 

HRS § 607-14.5 provides in relevant part, that "the

court may, as it deems just, assess against either party . . . a

reasonable sum for attorneys' fees . . . upon a specific finding

that . . . the party's claim or defense was frivolous . . . ." 

"A frivolous claim has been defined as 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." 

Yoneji v. Yoneji, 137 Hawai#i 299, 313, 370 P.3d 704, 718 (App.

2016) (citation and internal quotation marks omitted). Further,

"a finding of frivolousness is a high bar; it is not enough that

a claim be without merit, there must be a showing of bad faith." 

Id. (emphasis added) (citation, brackets, and internal quotation

marks omitted).

PATH contends that the record establishes that HRC had

no evidence to support their claim of private ownership of the

disputed portion of Haleakalâ Trail. PATH specifically asserts

that HRC's claim of ownership relied solely on the "absence of

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reservation" in relevant deeds conveying the title to HRC, which

it asserts is directly contradicted by Hawai#i law. PATH also

asserts that the Circuit Court's rulings at trial on PATH's

motions in limine precluding HRC from introducing evidence

relating to their claim of private ownership further established

that HRC had no law or evidence in support of its claim. 

Although the record may indicate that HRC's claim of ownership of

the Haleakalâ Trail may have been weak or even without merit, we

cannot say that the Circuit Court clearly erred in determining

there was not bad faith on the part of HRC in asserting its

claim. See Lee v. Hawai#i Pacific Health, 121 Hawai#i 235, 246-

47, 216 P.3d 1258, 1269-70 (App. 2009) (noting that although

plaintiff's arguments were without merit, the commencement of the

action was not frivolous because plaintiff did not act in bad

faith). 

Further, as HRC points out on appeal, the Circuit Court

denied PATH's motion for summary judgment seeking to establish

public ownership of Haleakalâ Trail and denied PATH's motion for

judgment as a matter of law after the close of evidence at the

Phase 1 trial.12 Such rulings by the Circuit Court support the

inference that HRC's claim was not frivolous. See Kawaihae v.

Hawaiian Ins. Cos., 1 Haw. App. 355, 362, 619 P.2d 1086, 1091

(1980) (noting that where a trial court's determination that

appellee's claim "was not an appropriate matter for action by way

of a directed verdict or summary judgment, an inference is

certainly raised that the issue of [appellee's claim] is not

frivolous.")

Accordingly, the Circuit Court was not clearly

erroneous in concluding that the record did not establish that

HRC's claim of private ownership of the Haleakalâ Trail was made

12 PATH asserts that the Circuit Court's denial of PATH's motion for

partial summary judgment only established a good faith basis to dispute the

location, and not the ownership, of the disputed portion of the Haleakal â

Trail. However, the Circuit Court's order denying PATH's motion makes no such

distinction, instead only stating that "[PATH has] not met their burden with

respect to a motion for partial summary judgment[.]"

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in bad faith, and did not abuse its discretion in denying PATH

attorneys' fees under HRS § 607-14.5. 

IV. Conclusion

Based on the foregoing, the "Final Judgment" entered on

July 11, 2016, by the Circuit Court of the Second Circuit is

affirmed. 

DATED: Honolulu, Hawai#i, February 26, 2021.

On the briefs:

Tom Pierce,

Peter N. Martin, 

for Plaintiff-Appellants. 

Michael W. Gibson, 

Francis P. Hogan, 

Clara Park, 

for Defendant-Appellee. 

/s/ Lisa M. Ginoza

Chief Judge

/a/ Keith K. Hiraoka

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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