No. SCWC-30484, Thursday, May 16, 2013, 9 a.m.

IN THE MATTER OF THE APPLICATION OF HONOLULU CONSTRUCTION AND DRAYING COMPANY, LIMITED, to register and confirm title to land situate at Honolulu, City and County fo Honolulu, State of Hawaiʻi, ALOHA TOWER DEVELOPMENT CORPORATION, Respondent/Petitioner, vs. STATE OF HAWAI`I, DEPARTMENT OF LAND AND NATURAL RESOURCES, TRUSTEES OF THE WILLIAM G. IRWIN CHARITY FOUNDATION, SCENIC HAWAIʻI, INC., THE OUTDOOR CIRCLE, HISTORIC HAWAI`I FOUNDATION, HAWAIʻI’S THOUSAND FRIENDS, LIFE OF THE LAND, WILLIAM OLDS, JR., AND JANE OLDS BOGART, AND INTERVENOR, CITY AND COUNTY OF HONOLULU, Respondents/Respondents, and SCENIC HAWAIʻI, INC., Petitioner/Respondent-Cross-Appellee, vs. ALOHA TOWER DEVELOPMENT CORPORATION, Respondent/Petitioner-Cross-Appellant.

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

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

Attorneys for Petitioner SCENIC HAWAI`I, INC.:

John T. Hoshibata, Rex Y. Fujichaku, and Dana A. Barbata of Bronster Hoshibata

Attorney for Respondent ALOHA TOWER DEVELOPMENT CORP.:

Deirdre Marie-Iha, Deputy Solicitor General Roy F. Epstein

Attorney for Respondents WILLLIAM L. OLDS, JR. AND JANE OLDS BOGART:

Susan M. Ichinose

NOTE: Order accepting Application for Writ of Certiorari, filed 05/01/13.

COURT: MER, CJ; PAN, SRA, SSM, & RWP, JJ.

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Brief Description:

Respondent Aloha Tower Development Corporation filed a Petition to expunge certain restrictive covenants in the deed and trust agreement governing the use and maintenance of Irwin Park, which is located near Honolulu Harbor. Petitioner Scenic Hawai`i, Inc. intervened in the subsequent litigation in order to preserve Irwin Park as a public park, taking the position that the restrictive covenants should not be expunged. After a bench trial, the court denied the Petition.

At the conclusion of litigation, Scenic Hawaiʻi sought attorneys’ fees and costs for its involvement in the litigation, as against Aloha Tower Development Corporation. The court granted attorneys’ fees and costs to Scenic Hawai`i under the private attorney general doctrine. Aloha Tower Development Corporation appealed to the Intermediate Court of Appeals (ICA), arguing that Scenic Hawai`i was not entitled to attorneys’ fees and costs because the court had improperly applied the private attorney general doctrine.

The ICA overturned the court’s award of fees and costs, holding that Scenic Hawai`i had not satisfied all three of the relevant factors of the private attorney general doctrine. In its Application, Scenic Hawaiʻi asks whether the ICA erred in concluding that Scenic Hawai`i did not satisfy the doctrine because it was not advocating for the public interest in the underlying litigation, and that there was no necessity for private enforcement of the public interest in this case.