***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***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Hotels & Resorts LP’s (Kyo-ya) appeal from the Circuit Court of the First Circuit’s “Order Denying Appellee Kyo-ya ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** Hotels & Resorts LP’s Motion for Attorneys’ Fees and Costs Under HRS § 607-14.5 Filed on 11/13/2013” (Order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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