(2nd Amended 12/15/15)

 No. SCWC-14-0000472, Thursday, January 7, 2016, 11:15 a.m.

GOLD COAST NEIGHBORHOOD ASSOCIATION, Respondent/Plaintiff-Appellee, vs. STATE OF HAWAI`I, Petitioner/Defendant-Appellant. STATE OF HAWAI`I BY ITS ATTORNEY GENERAL, Petitioner/Plaintiff-Appellant, vs. TROPIC SEAS, INC.; THE ASSOCIATION OF APARTMENT OWNERS OF DIAMOND HEAD BEACH, INC.; OLIVIA CHEN LUM, TRUSTEE OF THE OLIVIA CHEN LUM REVOCABLE LIVING TRUST; CLARENCE KWON HOU LIM, TRUSTEE OF THE CLARENCE KWON HOU LUM TRUST AND TRUSTEE UNDER THE WILL AND ESTATE OF CHOW SIN KUM LUM; JEANNE S.J. CHAN AND HOWARD N. H. CHAN, TRUSTEES OF THE JEANNE S.J. CHAN TRUST; DIAMOND HEAD AMBASSADOR HOTEL, LTD.; DIAMOND HEAD APARTMENTS, LTD.; C S APARTMENTS, LTD.; THE ASSOCIATION OF APARTMENT OWNERS OF 2987 KALAKAUA CONDOMINIUM; TAHITIENNE, INCORPORATED; THE ASSOCIATION OF APARTMENT OWNERS OF 3003 KALAKAUA, INC.; THE ASSOCIATION OF APARTMENT OWNERS OF 3019 KALAKAUA, INC., Respondents/Defendants-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner State of Hawai`i:

William J. Wynhoff, Deputy Attorney General

Attorneys for Respondents Gold Coast Neighborhood, et al.:

Robert G. Klein, Randall K. Schmitt, Jordon J. Kimura, and Troy J.H. Andrade

Attorney for Respondent Diamond Head Ambassador Hotel:

Stephen K.C. Mau

NOTE: Order accepting Application for Writ of Certiorari, filed 11/19/15.

NOTE: Certificate of Recusal, by Associate Justice Michael D. Wilson, filed 11/25/15.

NOTE: Order assigning Circuit Court Judge Edwin C. Nacino, in place of Wilson, J., recused, filed 12/03/15.

NOTE:    Certificate of Recusal, by Substitute Justice Nacino, filed 12/09/15.

NOTE:    Order assigning Circuit Court Judge Jeannette H. Castagnetti, in place of Substitute Justice Nacino, recused, filed 12/09/15.

COURT:  MER, CJ; PAN, SSM, and RWP, JJ., and Circuit Court Judge Castagnetti, in place of Substitute Justice Nacino, recused, who was previously assigned in place of Wilson, J., recused.

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Brief Description:

This case arises from a dispute between Respondent/Plaintiff-Appellee Gold Coast Neighborhood Association (Gold Coast), a non-profit organization, and Petitioner/Defendant-Appellant State of Hawai`i (the State) over who owns and is responsible for a stretch of seawall (the seawall) that is on or near the seaward boundaries of property between 2943 Kalakaua Avenue and 3019 Kalakaua Avenue on the Waikiki coastline.

On July 12, 2007, Gold Coast filed a complaint for declaratory relief, seeking an order from the court that the State is responsible to maintain and keep the seawall in good and safe condition. Subsequently, on April 26, 2010, the State filed its own complaint, also seeking an order from the court that the State does not own and is not responsible for the seawall.

On November 29, 2013, the Circuit Court of the First Circuit (circuit court) held that the State owns the seawall and the real property under the seawall pursuant to the theories of surrender and implied dedication. The circuit court subsequently held in a separate order that Gold Coast was not entitled to attorneys’ fees because the State was protected by sovereign immunity.

Both parties appealed the circuit court’s orders. On June 30, 2015, the Intermediate Court of Appeals (ICA) issued a published opinion in which it affirmed the circuit court’s order holding that the State owns the seawall under the theories of surrender and implied dedication, and reversed the circuit court’s order denying Gold Coast attorneys’ fees, concluding that the State waived its sovereign immunity when it filed its own complaint against Gold Coast.

In its application for writ of certiorari, the State contends that the ICA erred when it held that: 1) the seawall could be transferred to the State without the State’s approval; 2) the seawall could be transferred to the State even though the seawall property owners were not parties to the case; and 3) the State waived its sovereign immunity.