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In re Application of Honolulu Construction and Draying Co.

Supreme Court of Hawaii

August 9, 2013

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 of Honolulu, State of Hawai'i, ALOHA TOWER DEVELOPMENT CORPORATION, Respondent/Petitioner,
STATE OF hawai'i, DEPARTMENT OF LAND AND NATURAL RESOURCES, trustees of the william g. irwin charity foundation, scenic hawai'i, inc., the outdoor circle, historic hawai'i foundation, hawai'i'S THOUSAND FRIENDS, LIFE OF THE LAND, WILLIAM OLDS, JR. AND JANE OLDS BOGARD, AND INTERVENOR, CITY AND COUNTY OF HONOLULU, Respondents/Respondents, and SCENIC hawai'i, inc., Petitioner/Respondent-Cross-Appellee,
ALOHA TOWER DEVELOPMENT CORPORATION, Respondent/Petitioner-Cross-Appellant.


John T. Hoshibata, Rex Y. Fujichaku, and Dana A. Barbata, for petitioner.

Deirdre Marie-Iha, for respondent.




We hold that the Land Court (the court)[1] was right in awarding attorneys' fees and costs under the private attorney general doctrine, see Sierra Club v. Dep't of Transp. of State of Hawai'i, 120 Hawai'i 181, 218, 202 P.3d 1226, 1263 (2009) (Sierra Club II), to Petitioner/Respondent-Cross-Appellee Scenic Hawai'i, Inc. (Scenic Hawai'i)[2], inasmuch as (1) the subject litigation vindicated the important public policy of preserving public parks and historic sites, (2) the early and prompt intervention of Scenic Hawai'i was necessary in light of the efforts by Aloha Tower Development Corporation (ATDC), Respondent/Petitioner-Cross-Appellant, represented by the Attorney General (AG), to rescind the park status of the park involved, [3] and (3) a significant number of people will benefit from the use of the park and its preservation as a historical site, and from the general precedential value of this case in enforcing the dedication of land for public parks and as historic sites.

Because the Intermediate Court of Appeals (ICA) held to the contrary, we vacate the January 18, 2013 judgment of the ICA filed pursuant to its December 19, 2012 Published Opinion[4], and affirm the March 29, 2010 Final Judgment of the court.


The private attorney general doctrine was first discussed by this court in In re Water Use Permit Applications, 96 Hawai'i 27, 25 P.3d 802 (2001) (Waiahole II). "[N]ormally, pursuant to the ''American Rule, ' each party is responsible for paying his or her own litigation expenses." Sierra Club II, 120 Hawai'i at 218, 202 P.3d at 1263 (quoting Fought & Co. v. Steel Eng'g and Erection, Inc., 87 Hawai'i 37, 50-51, 951 P.2d 487, 500-01 (1998) (brackets omitted)). However, this court has recognized the private attorney general doctrine as an exception to this general rule. See, e.g., Sierra Club II, 120 Hawai'i at 181, 202 P.3d at 1226; Maui Tomorrow v. Bd. of Land & Natural Res., 110 Hawai'i 234, 131 P.3d 517 (2006); Waihole II, 96 Hawai'i at 29, 25 P.3d at 804 (2001). The private attorney general doctrine sets forth an equitable rule enabling an award of attorneys' fees for vindication of important public rights. Sierra Club II, 120 Hawai'i at 218, 202 P.3d at 1263 ("within the equitable powers of the judiciary to provide, is the award of substantial attorneys fees to those public-interest litigants and their attorneys . . . .") (quoting Serrano v. Priest, 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303, 1313-14 (1977)).

Courts applying the doctrine 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. (quoting Maui Tomorrow, 110 Hawai'i at 244, 131 P.3d at 527) (brackets omitted)(emphasis added).



In 1930, Helene Irwin Fagan (Fagan) dedicated Irwin Park[5] to the Territory of Hawai'i (Territory) in trust "to be used as a public park to beautify the entrance to Honolulu Harbor." The deed and trust agreement between Fagan and the Territory included four restrictive covenants (Restrictions and Conditions) that governed the use and maintenance of Irwin Park, including preserving and using Irwin Park as a public park. The pertinent Restrictions and Conditions are as follows:

(1) [t]he [Territory] shall . . . within three (3) years from and after the date hereof have converted all of said land, into a public park to be designated as the "Irwin Memorial Park."
(2) The [Territory] shall, at all times hereafter, suitably maintain all of said real property as a public park under the jurisdiction and control of the . . . Harbor Commissioners, or their successors in office ....
(4) In the event that . . . all of said land shall not be suitably maintained by the [Territory] at any time hereafter as a public park, or if said public park shall at any time cease to be designated as "Irwin Memorial Park[, ]" or if at any time hereafter any portion of said land shall be abandoned as a public park, . thereupon forthwith all right, title [, ] and interest of the [Territory], and its successors and thereof, shall forthwith terminate, and title to all of said real property hereby conveyed shall forthwith immediately and without further act of either party to this agreement, their successors or assigns, revert to [Fagan], and her heirs and assigns, in fee simple absolute

(Emphasis added.)

On March 13, 1931, Territorial Governor Lawrence M. Judd issued Executive Order No. 473 (Executive Order) which set aside and converted the property into a public park and adopted the Restrictions and Conditions set forth in the deed of Fagan to the Territory. This Executive Order has been and remains in full force and effect since March 13, 1931.

Prior to 1951, the Territory, through its Department of Public Works (DPW), developed plans to improve, construct, and widen Nimitz Highway. The plans required encroachment upon a portion of Irwin Park that totaled 24, 303 square feet. By a letter dated August 7, 1951, the Territory, through R. M. Belt, the then Superintendent of the DPW, wrote to Fagan to request her consent to the construction and waiver of all of the Restrictions and Conditions.

On January 25, 1952, Wilford D. Godbold (Godbold), a Special Deputy Attorney General with the DPW, wrote to Fagan regarding the Nimitz Highway Plan. Godbold's letter to Fagan stated, in relevant part:

In connection with the above referred matter [regarding construction of the Nimitz Highway] an opinion has been received from the Territorial Attorney General and an appraisal has been obtained from the Territorial Board of Appraisers whereby an exchange has been held proper in connection with [] Fagan's reversionary interest in the portion of Irwin Memorial Park. The Territorial land which can be exchanged for such interest is of course limited to the value of $5, 000.00. Pursuant to your request, an appraisal is now being made of the Hana Airport land by the Territorial Board of Appraisers ....
It is therefore requested that you confirm, on the enclosed copy of this letter, your previous statement that [] Faqan would waive all of the reversionary provisions contained in that deed dated November 7, 1930 and recorded in Registration Book 99, Page 229, in the Bureau of Conveyances at Honolulu. The necessary instruments to formalize this waiver and proposed exchange will be prepared as soon as possible. You will be informed immediately upon the receipt of the appraisal of the Maui land.

(Emphases added.) Fagan responded to Godbold's letter on January 31, 1952 by signing a copy of his letter with the following insertion over her signature:

Waiver is hereby made of any and all damages resulting from a breach of the conditions contained in that certain deed above referred to. It is hereby agreed that the restrictive conditions contained in such deed will be withdrawn and cancelled.

Nimitz Highway was constructed and the construction encroached upon Irwin Park. However, the proposed exchange of Hana land never occurred, and the agreement set forth by Fagan in the January 31, 1952 letter she wrote in response to Godbold's January 25, 1952 letter was never consummated. There was apparently no further communication or documentation regarding the proposed exchange.

Fagan died on May 30, 1966 in California. William L. Olds, Jr (Olds) and Jane Olds Bogart (Bogart) are Fagan's grandchildren and heirs. The William G. Irwin Charity Foundation (Foundation) is named in Fagan's will as the principal beneficiary of her residuary estate.

In 1981, the Hawai'i State Legislature enacted Hawai'i Revised Statutes (HRS) Chapter 206J. HRS § 206J-4 (Supp. 2008)[6]established the ATDC. HRS § 206J-1 (2001), entitled "Findings and Purpose", setting forth the purpose of the chapter, states in relevant part that, "[t]he legislature finds that the area in downtown Honolulu on the waterfront, including . . . Irwin Memorial Park ... is one of the most valuable properties in downtown Honolulu .... The legislature finds and determines that the purpose of this chapter is in the public interest and constitutes a valid public purpose."

Additionally, HRS § 206J-6 (2001), in part, codified Executive Order 472 by placing limitations on the ATDC with respect to Irwin Park. HRS § 206J-6(c) provides that "Irwin Memorial Park shall be retained as a public park subject to the reservations and conditions set forth in the deed ...

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