MICHAEL PATRICK O'GRADY, individually; and LEILONI O'GRADY, individually, Petitioners/Plaintiffs-Appellants,
STATE OF HAWAI'I and STATE OF HAWAI'I DEPARTMENT OF TRANSPORTATION, Respondents/Defendants-Appellees, and THE COUNTY OF HAWAI'I; HAWAIIAN ELECTRIC COMPANY; HAWAIIAN ELECTRIC LIGHT COMPANY; HAWAIIAN ELECTRIC INDUSTRIES, INC.; HULU LOLO, INC.; and DOES 1-100, inclusive, Defendants.
FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CAAP-14-0001363;
CIV. NO. 07-01-0372)
G. Self and Rebecca A. Copeland for petitioners
Douglas S. Chin, Caron M. Inagaki, and Robin M. Kishi for
respondents State of Hawai'i and State of Hawai'i
Department of Transportation
RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., AND
CIRCUIT COURT JUDGE CRABTREE, IN PLACE OF NAKAYAMA, J.,
this court filed its opinion in 0'Grady v.
State, No. SCAP-14-0001363, 2017 WL 2464970 (Haw. June
7, 2017), Michael Patrick 0'Grady and Leiloni 0'Grady
(collectively, the O'Gradys or Petitioners) moved for an
award of attorney's fees in the amount of $15, 842.14 and
costs in the amount of $4, 815.17, pursuant to sections 662-9
and 662-12 of the Hawaii Revised Statutes (HRS) and
Hawai'i Rules of Appellate Procedure (HRAP) Rule 39,
against the State of Hawai'i (State) and the State of
Hawai'i Department of Transportation (DOT) (collectively,
Respondents). We grant the O'Gradys' request for
costs but deny their request for attorney's fees.
Attorney's fees under HRS §§ 662-9 and
O'Gradys contend that this court has the discretion to
award attorney's fees pursuant to HRS § 662-9 (2016)
and HRS § 662-12 (2016). Respondents oppose the
O'Gradys' request for attorney's fees, arguing
that under HRS § 662-12, "there must be a judgment
in favor of Petitioners against the State, " and that
"there has been no judgment" in this case. Thus,
Respondents assert that the O'Gradys' request for
attorney's fees is "at best, premature."
Further, Respondents contend that the fees requested cannot
be awarded as sanctions because "the State was not the
analysis commences with the statutory interpretation of HRS
§ 662-9 and HRS § 662-12. "Statutory
interpretation is a question of law reviewable de novo."
Boyd v. Haw. State Ethics Comm'n, 138
Hawai'i 218, 224, 378 P.3d 934, 940 (2016). The
established canons of statutory interpretation advise us to
begin with the plain-language interpretation of the
provisions of the statute at issue, bearing in mind that
"implicit in the task of statutory construction is our
foremost obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself." Id. (quoting Estate of Roxas v.
Marcos, 121 Hawai'i 59, 66, 214 P.3d 598, 605
(2009)). A court may examine other sources, including a
statute's legislative history, in order to "discern
the underlying policy [that] the legislature sought to
promulgate" in the enactment of the statute. State
v. Abel, 134 Hawai'i 333, 339, 341 P.3d 539, 545
(2014) (alteration in original) (quoting State v.
McKnight, 131 Hawai'i 379, 388, 319 P.3d 298, 307
§ 662-9 states as follows: "In an action under this
chapter, court costs and fees as set by law may be
allowed to the prevailing party." HRS § 662-9
(emphasis added). HRS § 662-9 thus allows an award of
"fees, " which includes attorney's fees.
See Fee, Black's Law Dictionary (10th
ed. 2014) (defining "fee" as "[a] charge or
payment for labor or services, esp. professional
services" and includes "attorney's fees").
The amount of fees awarded by a court, however, must be
determined as "set by law." HRS § 662-9.
Accordingly, while HRS § 662-9 provides discretionary
authority to the courts to award fees to the prevailing
party, the allowable amount and the manner in which such fees
is to be calculated are governed by another source of law.
See id. HRS § 662-12, entitled
"Attorney's fees, " of the State Tort Liability
Act is a statute that "set[s] by law" the manner in
which attorney's fees may be determined and awarded by a
court under HRS § 662-9. See State v. Alangcas,
134 Hawai'i 515, 527, 345 P.3d 181, 193 (2015)
("Laws in pari materia, or upon the same subject matter,
shall be construed with reference to each other....."
(quoting State v. Kamana'o, 118
Hawai'i 210, 218, 188 P.3d 724, 732 (2008))).
In pertinent part, HRS § 662-12 reads as follows:
The court rendering a judgment for the plaintiff pursuant to
this chapter . . . may, as a part of such judgment, . . .
determine and allow reasonable attorney's fees which
shall not, however, exceed twenty-five per cent of the amount
recovered and shall be payable out of the judgment awarded to
the plaintiff; provided that such limitation shall not
include attorney's fees and costs that the court may
award the plaintiff as a matter of its sanctions.
HRS § 662-12.
§ 662-12 provides courts with discretionary authority to
"determine and allow reasonable attorney's fees,
" and it also governs the allowable amount of
attorney's fees ("twenty-five per cent of the amount
recovered") and the manner in which it may be awarded to
the plaintiff ("payable out of the judgment
awarded") subject to an exception (if the fees are
"a matter of . . . sanctions"). HRS § 662-12.
Reading HRS § 662-12 in pari materia with HRS §
662-9, when the plaintiff is the prevailing party in a suit
brought under the State Tort Liability Act, the court
rendering a judgment for the plaintiff may, pursuant to HRS
§ 662-12, allow reasonable attorney's fees not to
exceed twenty-five percent of the amount recovered and
payable out of the judgment awarded to the plaintiff. HRS
§§ 662-9, 662-12.
interpretation is supported by Levy v. Kimball, 51
Haw. 540, 465 P.2d 580 (1970), which interpreted HRS §
662-12, and by the amendments to HRS § 662-12 that the
legislature enacted subsequent to our decision in
Levy. At the time that Levy was decided,
HRS § 662-12 provided as follows: "The court
rendering a judgment for the plaintiff pursuant to this
chapter . . . may, as a part of such judgment, award, or
settlement, determine and allow reasonable attorney's
fees which shall not, however, exceed twenty per cent of the
amount recovered." 51 Haw. at 543, 465 P.2d at 582
(quoting HRS § 662-12 (1968)). The State in
Levy argued that the phrase "as a part of such
judgment" in HRS § 662-12 implied that the
attorney's fees awarded under the statute would be paid
out of the judgment, not in addition to it. Id.
Rejecting the argument, this court held that "HRS §
662-12 authorizes the trial court to award an attorney's
fee up to 20 per cent of the judgment, in addition to the
judgment and not out of the judgment." Id. at
546, 465 P.2d at 584.
Levy was decided, the legislature amended HRS §
662-12 in 1979, as follows:
Attorney's fees. The court rendering a judgment for the
plaintiff pursuant to this chapter or the attorney general
making a disposition pursuant to section 662-11 may, as a
part of such judgment, award, or settlement, determine and
allow reasonable attorney's fees which shall not,
however, exceed [twenty] twenty-five
per cent of the amount recovered and shall be payable out of
the judgment awarded to the plaintiff; provided that such
limitation shall not include attorney's fees and costs
that the court may award the plaintiff as a matter of its
1979 Haw. Sess. Laws Act 152, §4 at 333.
original House Bill-H.B. 1634, H.D. 1, 10th Leg. Reg. Sess.
(1979)--"would have repealed section 662-12 ... on the
theory that such repeal would discontinue the present
practice by judges of allowing attorney's fees in
addition to judgments awarded in favor of plaintiffs."
S. Stand. Comm. Rep. No. 861, in 1979 Senate Journal, at
1389. The accompanying House Standing Committee Report
Your Committee heard testimony that because the 20% award is
made over and above the judgment, it is 20% higher than would
be made against any other defendant. Your Committee feels
that there is no reasonable basis for such a differentiation
and finds that ...