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                                                             Electronically Filed
                                                             Supreme Court
                                                             SCAP-14-0001363
                                                             27-SEP-2017
                                                             08:21 AM




          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                               ---O0O---


           MICHAEL PATRICK O’GRADY, individually; and
                 LEILONI O’GRADY, individually,
               Petitioners/Plaintiffs-Appellants,

                                   vs.

                      STATE OF HAWAIʻI and
         STATE OF HAWAIʻI DEPARTMENT OF TRANSPORTATION,
               Respondents/Defendants-Appellees,

                                   and

      THE COUNTY OF HAWAIʻI; HAWAIIAN ELECTRIC COMPANY;
     HAWAIIAN ELECTRIC LIGHT COMPANY; HAWAIIAN ELECTRIC
INDUSTRIES, INC.; HULU LOLO, INC.; and DOES 1-100, inclusive,
                         Defendants.


                           SCAP-14-0001363

      APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
            (CAAP-14-0001363; CIV. NO. 07-01-0372)

                          SEPTEMBER 27, 2017

   RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., AND
CIRCUIT COURT JUDGE CRABTREE, IN PLACE OF NAKAYAMA, J., RECUSED
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                OPINION OF THE COURT BY POLLACK, J.

                              I. INTRODUCTION

            After this court filed its opinion in O’Grady v.

State, No. SCAP-14-0001363, 2017 WL 2464970 (Haw. June 7, 2017),

Michael Patrick O’Grady and Leiloni O’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 Hawaiʿi Rules of Appellate Procedure

(HRAP) Rule 39, against the State of Hawaiʿi (State) and the

State of Hawaiʿi Department of Transportation (DOT)

(collectively, Respondents).      We grant the O’Gradys’ request for

costs but deny their request for attorney’s fees.

                            II.   DISCUSSION

       A.     Attorney’s fees under HRS §§ 662-9 and 662-12

            The 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,




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Respondents contend that the fees requested cannot be awarded as

sanctions because “the State was not the appealing party.”

          Our 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 (2013)).

          HRS § 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 §



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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.




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           HRS § 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, 662-12.1

           This 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

     1
            The limitation as to the amount of allowable attorney’s fees and
the manner in which attorney’s fees may be awarded, however, does not apply
if such fees are being awarded as sanctions. We also note that HRS § 662-12
applies only when the court is “rendering a judgment for the plaintiff.”
Thus, where the State is the prevailing party under HRS § 662-9, HRS § 662-12
does not “set by law” the amount of awardable attorney’s fees or the manner
in which such fees may be awarded, as this statute only applies to the
plaintiff; in such a situation, there must be another statute that
independently “set[s] by law” the attorney’s fees that may be awarded to the
State as the prevailing party. See HRS § 662-9.




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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.

            After 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 sanctions.

1979 Haw. Sess. Laws Act 152, §4 at 333.2

     2
            The Act, as it appears in the 1979 Session Laws, was not Ramseyer
formatted (i.e., repealed statutory material is bracketed and stricken and

                                                             (continued . . .)


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            The 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 explains:

            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 the disallowance of such an
            award is desirable and necessary.

H. Stand. Comm. Rep. No. 619, in 1979 House Journal, at

1434.

            The Senate Standing Committee amended the House Draft

“to make attorney’s fees payable out of judgments awarded to

plaintiffs, thus treating the problem more directly,” and this

change was confirmed by the Conference Committee.3


(. . . continued)

new statutory material is underscored), as was authorized by the 1978 version
of HRS § 23G-16.5 (providing that “[w]henever, in any Act, statutory material
to be repealed is bracketed and new material is underscored as a matter of
bill drafting style, the revisor, in printing the Act, need not include the
brackets, the bracketed material, or the underscoring). To clearly
illustrate the 1979 amendments, Ramseyer formatting was supplied to the block
quote.
      3
            See S. Stand. Comm. Rep. No. 861, in 1979 Senate Journal, at
1389, see H.B. 1634, H.D. 1, S.D. 1, 10th Leg. Reg. Sess. (1979); Conf. Comm.
Rep. No. 62, in 1979 Senate Journal, at 981; Conf. Comm. Rep. No. 60, in 1979
House Journal, at 1115.




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            The 1979 amendment and its accompanying committee

reports reflect that the legislature intended to reverse Levy’s

holding that fees under HRS § 662-12 would be awarded in

addition to the judgment.        Thus, the language of HRS § 662-12,

as it stands today, permits an award of attorney’s fees, but the

fee award of the court must not exceed twenty-five percent of

the amount recovered and must be paid from the proceeds of the

judgment, not in addition to it.4

            The United States District Court for the District of

Hawaii recently reached the same result in Kauhako v. State of

Hawaii Board of Education Department of Education, Civil No. 13-

00567 DKW-KJM, 2016 WL 7365206 (D. Haw. Nov. 28, 2016), adopted

by No. CV 13-00567 DKW-KJM, 2016 WL 7362835 (D. Haw. Dec. 19,

2016).    After looking at the 1979 amendments to HRS § 662-12,

the district court held that the statute permits an award of

fees payable out of the judgment, not in addition to it.              Id. at

*5.   Under the circumstances, it declined to award attorney’s


      4
            HRS § 662-12 does not require a court to award attorney’s fees,
and a decision not to do so may be particularly appropriate when there is an
attorney-client fee agreement exceeding the statutory amount or the presence
of other reasons not to award fees. See Kauhako v. State of Haw. Bd. of
Educ. Dep’t of Educ., Civil No. 13-00567 DKW-KJM, 2016 WL 7365206 (D. Haw.
Nov. 28, 2016), adopted by No. CV 13-00567 DKW-KJM, 2016 WL 7362835 (D. Haw.
Dec. 19, 2016) (recommending that the district court deny attorneys’ fee
award under HRS § 662-12 because the award would come out of and not be added
to the judgment); Viveiros v. State, 54 Haw. 611, 614, 513 P.2d 487, 489-90
(1973) (affirming trial court’s denial of awarding attorney’s fees under HRS
§ 662-12).




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fees to the plaintiff because doing so would only apportion the

judgment without “increas[ing] the net result to the moving

party.”   Id.

           The O’Gradys, on the other hand, suggest an

interpretation of HRS § 662-9 that would allow recovery of

attorney’s fees in full, in addition to the judgment.            According

to the O’Gradys, so long as they are the “prevailing part[ies]”

within the meaning of that phrase under HRS § 662-9, they can

recover the full amount of their attorney’s fees under HRS

§ 662-9 without regard to the restrictions and limitations in

HRS § 662-12.   This interpretation disregards the words “as set

by law” in HRS § 662-9 and the specific provisions in HRS § 662-

12 regarding recovery of attorney’s fees.         In particular, the

O’Gradys’ interpretation not only would allow parties to claim

attorney’s fees in addition to the judgment, it would also

circumvent the amount of attorney’s fees that may be awarded by

a court in suits brought under the State Tort Liability Act.

Further, the O’Gradys’ position would bypass the statutory

revisions made by the legislature through the 1979 amendment to

HRS § 662-12.

           The O’Gradys also contend that they can recover the

full amount of their attorney’s fees “as a sanction” under HRS §

662-12.   However, the exclusion in HRS § 662-12 that pertains to

“sanctions” means that, if sanctions were to be awarded pursuant


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to another legal authority, then it must be specifically

excluded from the statutory amount that a court may award

pursuant to HRS § 662-12.       See HRS § 662-12.      HRS § 662-12, by

itself, does not provide sufficient grounds for awarding

attorney’s fees “as sanctions,” and the O’Gradys do not identify

any authority that would permit this court to award attorney’s

fees as sanctions.5

             We therefore conclude that HRS § 662-9 allows a court

to award attorney’s fees only to the extent permitted under HRS

§ 662-12.    Consequently, we evaluate the O’Gradys’ request for a

court award of attorney’s fees pursuant to the parameters of HRS

§ 662-12.6

      5
            This conclusion is supported by the legislative history of the
1979 amendment to HRS § 662-12. The Conference Committee exempted
“sanctions” from the application of the twenty-five-percent cap and the
requirement that the attorney’s fees be awarded from the judgment awarded to
plaintiffs because “it is necessary that the authority of the court to award
sanctions against the Attorney General and his staff should not be negated by
implication.” Conf. Comm. Rep. No. 62, in 1979 Senate Journal, at 981—82;
Conf. Comm. Rep. No. 60, in 1979 House Journal, at 1115. The Conference
Committee noted that “sanctions are to be allowed similarly as against all
other party litigants whenever unreasonable conduct by the Attorney General
or his staff is deemed by the court to have unfairly required accrual of
attorney’s fees and costs by the opposing party.” Conf. Comm. Rep. No. 62,
in 1979 Senate Journal, at 981—82; Conf. Comm. Rep. No. 60, in 1979 House
Journal, at 1115. Thus, the legislature, in amending HRS § 662-12,
recognized that the courts already had a preexisting power to impose
sanctions pursuant to various other laws, and the exception for “sanctions”
included in the 1979 amendment to HRS § 662-12 simply acknowledged that power
and structurally conformed HRS § 662-12 with that power so that the statute
would not conflict or implicitly negate that power. HRS § 662-12, therefore,
did not create an independently sufficient authority for a court to award
attorney’s fees as sanctions.
     6
            The holding in this case is based upon our analysis of HRS §§
662-9 and 662-12 and does not address other statutory provisions or
applicable law allowing an award of attorney’s fees against the State.




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B.    The O’Gradys’ request for recovery of attorney’s fees under
                 HRS §§ 662-9 and 662-12 is premature

           As discussed, in a suit brought under the State Tort

Liability Act, HRS §§ 662-9 and 662-12 permit a “court rendering

a judgment for the plaintiff” to “determine and allow reasonable

attorney’s fees” to the “prevailing” plaintiff, but the fees

awardable by a court may not exceed twenty-five per cent of the

amount that the plaintiff recovered and must be paid “out of the

judgment awarded to the plaintiff.”         HRS §§ 662-9 (2016), 662-12

(2016).

           Accordingly, the first issue for this court to address

regarding the O’Gradys’ request for attorney’s fees is whether

this court’s judgment on appeal in O’Grady v. State, No. SCAP-

XX-XXXXXXX, 2017 WL 2464970 (Haw. June 7, 2017), is a “judgment

for” the O’Gradys under HRS § 662-12.         Generally, “[a] judgment

is the final action of a court, which disposes of the matter

before it.”    Inter-Island Resorts, Ltd. v. Akahane, 44 Haw. 93,

96, 352 P.2d 856, 859 (1960); accord Final Judgment, Black’s Law

Dictionary (10th ed. 2014) (defining “final judgment” as “[a]

court’s last action that settles the rights of the parties and

disposes of all issues in controversy”).

           We have discussed the concept of a judgment “for” a

party, as a requirement for fee-shifting, in Nelson v.

University of Hawaii, 99 Hawaii 262, 54 P.3d 433 (2002).            In



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Nelson, the petitioner sought appellate attorney’s fees pursuant

to HRS § 378-5(c) (1993),7 after this court vacated a circuit

court judgment favoring the defendant university and remanded

the case for a new trial.      Id. at 264, 54 P.3d at 435.        HRS §

378-5(c) directs an award of attorney’s fees for “any judgment

awarded” to an employment discrimination plaintiff.           HRS § 378-

5(c).    After looking to HRS § 378-5 as a whole, the Nelson court

held that “the phrase ‘judgment awarded to the plaintiff’ refers

generally to favorable relief or damages that follow as a result

of a finding that the defendant engaged in discriminatory

practice.”   Nelson, 99 Hawaii at 266, 54 P.3d at 437.

Consequently, this court denied the request for attorney’s fees

because the judgment on appeal “merely vacate[d] a trial court

judgment unfavorable to the plaintiff and place[d] the plaintiff

back where [she] started.”      Id.

           HRS § 662-12 is substantially similar to HRS § 378-

5(c), the fee-shifting statute at issue in Nelson.           Read as a

whole, HRS § 662-12 provides that an award of attorney’s fees

may be paid out of (1) “a judgment for the plaintiff,” or (2) an


     7
           HRS § 378-5(c) provides as follows:

                 In any action brought under this part, the court, in
           addition to any judgment awarded to the plaintiff or plaintiffs,
           shall allow costs of action, including costs of fees of any
           nature and reasonable attorney’s fees, to be paid by the
           defendant.




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“award” or “settlement” pursuant to alternative resolution of

the case under HRS § 662-11 (2016).8        All of these dispositions

of a case involve the payment of damages to the plaintiff

pursuant to a determination (or admission) that the State is

liable in tort.     The language of HRS § 662-12 thus indicates

that “a judgment for the plaintiff” must, at minimum, order

payment of damages or other favorable relief in favor of the

plaintiff.     See Nelson, 99 Hawaii at 266, 54 P.3d at 437.

          In this case, the judgment on appeal will vacate the

circuit court’s judgment and remand the case for further

proceedings.     We stated in our opinion that the circuit court

“misapprehended the relevant standard for evaluating legal

causation” and clarified the correct test.         O’Grady, 2017 WL

2464970, at *1.     Accordingly, we instructed the circuit court to

determine, on remand, “whether the State’s breach of its duty

was the legal cause . . . of the O’Gradys’ injuries” by applying

the analytical standard set forth in our opinion.           Id. at *13.

It follows that we did not ourselves determine the question of

     8
          HRS § 662-11 provides:

                (a) The attorney general may arbitrate, compromise,
          or settle any claim cognizable under this chapter.
                (b) Claims arbitrated, compromised, or settled by the
          attorney general for $10,000 or less shall be paid from the
          state risk management revolving fund. Claims arbitrated,
          compromised, or settled by the attorney general for more
          than $10,000 shall be paid only after funds are
          appropriated by the legislature for the payment of those
          claims.




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legal causation.     Neither did we resolve whether the O’Gradys

had established their negligence claim against the State nor

order the State to pay damages to the O’Gradys.           Like the

plaintiff in Nelson, our judgment in this case merely returns

the O’Gradys to a prior position in the proceedings, and the

judgment therefore “does not, in itself, provide any grounds for

an award of fees” to the O’Gradys.         Nelson, 99 Hawaii at 266, 54

P.3d at 437.    Thus, we hold that the O’Gradys’ request for

attorney’s fees under HRS § 662-12 is premature because there

has been no judgment for the O’Gradys in this case.9            See id.

           C.    Appellate costs pursuant to HRAP Rule 39

           The O’Gradys argue that they are entitled to costs

pursuant to HRAP Rule 39.       The O’Gradys maintain that, when a

judgment is vacated, HRAP Rule 39(a) enables courts to tax costs

at their discretion, that HRAP Rule 39(d) enables courts to tax

costs against the State “if an award of costs is authorized by


     9
            Because, at the outset, we conclude that the request for
attorney’s fees is premature, it is not necessary to consider arguments
regarding the quantum or reasonableness of fees to which the O’Gradys contend
they are entitled. Similarly, we do not need to resolve Respondents’
argument pertaining to the applicability of this court’s opinion in DFS Group
L.P. v. Paiea Properties, which held “that the twenty-five per cent limit [in
HRS § 607-14] does not apply in cases that involve ‘only an adjudication of
rights in which no monetary liability is in issue.’” 110 Hawaii 217, 221,
131 P.3d 500, 504 (2006) (quoting Food Pantry, Ltd. v. Waikiki Bus. Plaza,
Inc., 58 Haw. 606, 621, 575 P.2d 869, 880 (1978)). Finally, the O’Gradys
assert that, since the ultimate damage award is unknown at this stage, any
attorney’s fees immediately awarded would be an offset from the fees
ultimately awarded. The O’Gradys do not provide any authority to support
this contention, and we do not address it in light of our disposition.




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law,” and that HRAP Rule 39(c) provides a definition for

“appellate costs.”

          Respondents, on the other hand, assert that HRAP Rule

39(b), which governs “Costs for and against the State of

Hawaiʿi,” applies in this case rather than HRAP Rule 39(a).

Therefore, Respondents argue that “there must be some other law

authorizing costs against the State under the circumstances.”

Respondents then note that the O’Gradys “do not cite to any

specific law that expressly authorizes the award of costs

against the State.”     In the alternative, if the court holds that

HRAP Rule 39(a) applies, Respondents request this court to

decline to award appellate costs because “[i]n this case

[Respondents] neither participated in inappropriate conduct

below nor filed a frivolous appeal.”

          The construction of a court rule is subject to de novo

review.   In re Ishida-Waiakamilo Legacy Tr., No. SCWC-13-

0000449, 2017 WL 2590870, at *4 (Haw. June 15, 2017).            HRAP Rule

39(b) provides:

                (b) Costs for and against the State of Hawaiʿi. In
          cases involving the State of Hawaiʿi or an agency or officer
          thereof, if an award of costs against the State is
          authorized by law, costs shall be awarded in accordance
          with the provisions of this Rule; otherwise costs shall not
          be awarded for or against the State of Hawaiʿi, its
          agencies, or its officers acting in their official
          capacities.

HRAP Rule 39(b) (2016).     Therefore, as to costs, the first issue

is whether the O’Gradys have identified a law that authorizes an


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award of costs against the State of Hawaiʿi.         If so, HRAP Rule

39(b) directs that the provisions of HRAP Rule 39 apply as they

ordinarily would.    See Oahu Publ’ns, Inc. v. Abercrombie, 134

Hawaiʿi 16, 24 n.5, 332 P.3d 159, 167 n.5 (2014) (holding that

HRAP Rule 39(a) would apply where requesting party cited statute

authorizing recovery of “reasonable attorney’s fees and all

other expenses”).

          The O’Gradys seek costs pursuant to HRS § 662-9, which

states that, “[i]n an action under [the State Tort Liability

Act], court costs and fees as set by law may be allowed to the

prevailing party.”    HRS § 662-9 (2016).       Respondents challenge

the source of authority that the O’Gradys identified, arguing

that HRS § 662-9 does not itself permit an award of costs

against the State but merely implies that “there must be some

other law” authorizing the award of such costs.          Respondents

argue that, since the O’Gradys do not cite any such law, costs

should not be awarded.

          Under HRAP Rule 39(b), costs must be “authorized by

law.”   HRAP Rule 39(b) reiterates the general rule that costs

cannot be awarded against the State of Hawaiʿi unless there is a

“clear relinquishment” of the State’s sovereign immunity.             See

Nelson v. Hawaiian Homes Comm’n, 130 Hawaii 162, 168, 307 P.3d

142, 148 (2013) (“[A]n award of costs and fees to a prevailing

party is inherently in the nature of a damage award.


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Accordingly, to properly award . . . costs against [the State] .

. ., there must be ‘a clear relinquishment’ of the State’s

immunity in this case.” (first and third alterations in

original) (footnote omitted) (citation omitted)).           Thus, there

must be a law that clearly relinquishes the State’s sovereign

immunity from court costs and authorizes an award of such costs.

HRAP Rule 39(b); Nelson, 130 Hawaii at 168, 307 P.3d at 148.

          This court has previously established “that the State

has waived immunity to suit . . . to the extent as specified in

HRS chapter[] . . . 662.”      Nelson, 130 Hawaii at 169, 307 P.3d

at 149 (footnote omitted) (quoting Taylor–Rice v. State, 105

Hawaii 104, 110, 94 P.3d 659, 665 (2004)).         The plain language

of HRS § 662-9 specifically grants a court discretion to award

“court costs . . . as set by law . . . to the prevailing party.”

Thus, HRS § 662-9 clearly relinquishes the State’s immunity from

court costs awardable to prevailing parties in suits brought

under the State Tort Liability Act.        Id.   As such, HRS § 662-9

“authorize[s] by law” the award of court costs under HRAP Rule

39(b).

          Respondents misapprehend the plain language of HRS §

662-9 in arguing that HRS § 662-9, by itself, is not sufficient

to “authorize by law” the award of costs under HRAP Rule 39(b).

Contrary to Respondents’ position, the phrase “as set by law” in




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HRS § 662-9 is not fundamentally equivalent to the phrase “as

authorized by law” in HRAP Rule 39(b).

            As relevant to this case, the ordinary signification

of the word “authorize” is “[t]o give legal authority” or “to

empower.”    Authorize, Black’s Law Dictionary (10th ed. 2014);

see State v. Guyton, 135 Hawaii 372, 378, 351 P.3d 1138, 1144

(2015) (“In conducting a plain meaning analysis, ‘this court may

resort to legal or other well accepted dictionaries as one way

to determine the ordinary meaning of certain terms not

statutorily defined.’” (quoting State v. Pali, 129 Hawaii 363,

370, 300 P.3d 1022, 1029 (2013))).         In contrast, to “set” means

“to fix or decide on as a time, limit, or regulation”; “to fix

at a certain amount”;10 to “[p]ut or bring into a specified

state”; or to “[f]ix (a price, value, or limit) on something.”11

            Thus, while HRAP Rule 39(b) requires some law that

gives legal authority or empowers an appellate court to award

costs to a plaintiff who prevails in a suit brought under the

State Tort Liability Act, HRS § 662-9 provides that the quantum

of costs that may be awarded under the statute must be regulated

and fixed by law and may not exceed the limits to the amount

      10
            Set, Merriam-Webster, https://www.merriam-
webster.com/dictionary/set (last visited Aug. 17, 2017).
     11
            Set, English Oxford Living Dictionaries,
https://en.oxforddictionaries.com/definition/set (last visited Aug. 17,
2017).




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that the applicable law prescribes.        Therefore, HRS § 662-9

fulfills the requirement in HRAP Rule 39(b) that “an award of

costs against the State is authorized by law,” but the manner in

which costs is computed and awarded is informed and regulated by

other applicable law.     HRS § 662-9; HRAP Rule 39(b).

           Further, reading HRS § 662-9 in pari materia with HRAP

Rule 39(b), the provisions of Rule 39 “set[s] by law”--i.e.,

regulates and limits--the amount of costs that can be awarded to

a prevailing plaintiff in a suit brought under the State Tort

Liability Act.    HRS § 662-9; HRAP Rule 39(b).        HRAP Rule 39(b)

states that “if an award of costs against the State is

authorized by law, costs shall be awarded in accordance with the

provisions of this Rule.”      Because HRS § 662-9 “authorize[s] by

law” the award of costs in this case, the provisions of HRAP

Rule 39 control the amount of awardable costs and the

evidentiary burden that must be satisfied in order to be

entitled to such costs.     HRAP Rule 39(b).      This is consistent

with our conclusion that the phrase “as set by law” in HRS §

662-9 means that the computation and amount that may be awarded

as costs against the State must be limited by other governing

law, which, in this case, are the relevant provisions of HRAP

Rule 39.

           This interpretation is further supported by the

decision in Educators Ventures, Inc. v. Bundy, 3 Haw. App. 435,


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652 P.2d 637 (1982).     Pursuant to HRS § 467-16 (1976), the

circuit court in that case ordered the payment of $10,000 from

the real estate recovery fund to each of the plaintiffs for

damages, court costs and fees, and attorney’s fees.           Id. at 436—

37, 652 P.2d at 638.     HRS § 467-16 provided that persons

aggrieved by the acts of a licensed real estate broker or

salesman

           may recover by order of the circuit court or district court
           of the county where the violation occurred, an amount of
           not more than $10,000 for damages sustained by the fraud,
           misrepresentation, or deceit, including court costs and
           fees as set by law, and reasonable attorney fees as
           determined by the court.

HRS § 467-16 (emphasis added).       The ICA affirmed the circuit

court’s award and held that the 10,000-dollar limit in HRS §

467-16 applied not only to damages and court costs and fees, it

applied equally to attorney’s fees.        Educators Ventures, Inc., 3

Haw. App. at 437, 652 P.2d at 638.        Although the phrase “set by

law” appears in HRS § 467-16, the ICA affirmed the circuit

court’s award and did not look to other statutes or legal

authority that would independently permit the circuit court’s

award to the plaintiffs.      See id. at 437—41, 652 P.2d at 638—40.

Implicit in the ICA’s opinion is that HRS § 467-16 sufficed to

empower the circuit court to render an award that included

“court costs and fees as set by law.”        See id.    This is

consistent with our determination in this case that HRS § 662-9

provides authority to this court to award costs and that the


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phrase “as set by law” does not mean that another statute or

legal source must independently allow for the award of costs

against the State.    We therefore conclude that HRS § 662-9

“authorize[s] by law” the award of costs against Respondents in

this case, and the amount of awardable costs and the manner in

which such costs can be awarded are “set by law” by the

provisions of HRAP Rule 39.

          In light of the foregoing, we proceed to the

determination of whether the O’Gradys are entitled to costs

pursuant to HRAP Rule 39(b) and HRS § 662-9.          Under HRS § 662-9,

“costs . . . may be allowed to the prevailing party.”            HRS §

662-9’s requirement is mirrored by the intent underlying HRAP

Rule 39: “to allow the party prevailing on appeal to recover

those costs reasonably incurred in prosecuting the appeal.”                Jou

v. Argonaut Ins. Co., 133 Hawaii 471, 477, 331 P.3d 449, 455

(2014) (quoting Leslie v. Estate of Tavares, 93 Hawaii 1, 7, 994

P.2d 1047, 1053 (2000)).      Thus, the O’Gradys may be awarded

costs only if they are the prevailing party in their appeal to

this court.   Nelson, 130 Hawaii at 165, 307 P.3d at 145 (“The

first step in analyzing whether Plaintiffs are entitled to

attorneys’ fees (and costs) is to determine whether they are the

‘prevailing party.’”).     The O’Gradys argue that they prevailed

on the main disputed issue in the appeal--“whether the circuit




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court erred in deciding that the State was not the cause of the

O’Grady’s [sic] injuries”--because this court vacated the

circuit court’s judgment in favor of the State on the issue of

causation.     Hence, the O’Gradys assert that they were the

“prevailing party” in the appeal and are entitled to costs under

HRS § 662-9.

          “The ‘prevailing party’ is the one who “prevails on

the disputed main issue.”      Nelson, 130 Hawaii at 165, 307 P.3d

at 145 (quoting Food Pantry, Ltd. v. Waikiki Bus. Plaza, Inc.,

58 Haw. 606, 620, 575 P.2d 869, 879 (1978)).          In determining

which party prevailed on the disputed main issue on appeal, a

court can compare the relief sought with the relief awarded.

Jou, 133 Hawaii at 477, 331 P.3d at 455.         But “[e]ven if the

party does not prevail ‘to the extent of his original

contention, he will be deemed to be the successful party for the

purpose of taxing costs.’”      Nelson, 130 Hawaii at 165, 307 P.3d

at 145 (quoting Food Pantry, Ltd., 58 Haw. at 620, 575 P.2d at

879).

          The disputed main issues on appeal were (1) whether

“the circuit court erred in holding that the State’s breach of

its duty of care was not a legal cause of the [O’Gradys’]

injuries” and (2) whether the discretionary function exception

applied in this case.     O’Grady v. State, No. SCAP-14-0001363,




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2017 WL 2464970, at *1 (Haw. June 7, 2017).           This court held

that the circuit court “misapprehended the relevant standard for

evaluating legal causation,” id., by requiring the O’Gradys to

prove factual and legal matters that are not relevant to

determining the existence of legal causation, id. at *9—13.

Additionally, we held that “the State ha[d] not established that

it [was] relieved from liability under the discretionary

function exception with regard to the duty recognized by the

circuit court.”     Id. at *17.    Thus, we vacated the second

amended judgment and remanded the case to the circuit court for

further proceedings consistent with the opinion.            Id. at *18.

           In light of the issues raised on appeal, our

conclusions with respect to each of them, and our disposition in

this case, the O’Gradys were the “prevailing part[ies].”12             See

Nelson, 130 Hawaii at 166, 307 P.3d at 146 (concluding that the

plaintiffs were the prevailing parties because this court held

that “the political question doctrine did not bar determination”

of certain substantive issues underlying the case, affirming on



     12
            The relief that the O’Gradys requested was for this court to
“reverse the circuit court’s judgment in favor of the State, and render
judgment in the O’Gradys’ favor.” This court, on the other hand, vacated the
judgment and remanded the case for further proceedings. The fact that the
relief requested and the relief awarded are not the same does not change the
conclusion that the O’Gradys were the prevailing parties on appeal: the
vacatur of the circuit court’s judgment, although short of what the O’Gradys
requested, is still favorable for the O’Gradys. Nelson, 130 Hawaii at 165,
307 P.3d at 145.




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narrower grounds the ICA’s vacatur of the circuit court’s

decision predicated on the political question doctrine).

          Having concluded that HRS § 662-9 authorizes the award

of costs against the State in this case and that the O’Gradys

are the prevailing parties under HRS § 662-9, we now determine

the amount of costs that can be awarded “in accordance with the

provisions of . . . Rule [39].”       HRAP Rule 39(b).      Because this

court vacated the circuit court’s judgment and remanded the case

for further proceedings, the amount that may be awarded to the

O’Gradys is set by law in HRAP Rule 39(a): “if a judgment . . .

is vacated, . . . the costs shall be allowed only as ordered by

the appellate court.”     In situations where the circuit court’s

judgment is vacated, “courts have routinely ordered an award of

appellate costs to the party that prevailed on the main disputed

issue on appeal.”    Jou, 133 Hawaii at 479, 331 P.3d at 457.

          Costs, for the purposes of Rule 39, include “the cost

of the original and one copy of the reporter’s transcripts if

necessary for the determination of the appeal; . . . the fee for

filing the appeal; [and] the cost of printing or otherwise

producing necessary copies of briefs and appendices, provided

that copying costs shall not exceed 20¢ per page.”           HRAP Rule

39(c).   In substantiating a request for costs, “where

appropriate, copies of invoices, bills, vouchers, and receipts”

shall be attached as support.       HRAP Rule 39(d)(1).


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           Insofar as Respondents do not make “a specific

objection” to the O’Gradys’ itemized cost request--and the State

in fact asks this court to award the full amount of requested

costs if we find that the O’Gradys are entitled to costs--we

grant in full the costs that the O’Gradys request in the amount

of $4,815.17.13    Wong v. Takeuchi, 88 Hawaii 46, 53, 961 P.2d

611, 618 (1998) (“Unless there is a specific objection to an

expense item, the court ordinarily should approve the item.”

(quoting Lewis, Wilson, Lewis & Jones, Ltd. v. First Nat’l Bank

of Tuscumbia, 435 So.2d 20, 23 (Ala. 1983))); accord Haw.

Ventures, LLC v. Otaka, Inc., 116 Hawaii 465, 480, 173 P.3d

1122, 1137 (2007).

                              III.     CONCLUSION

           In a suit brought under the State Tort Liability Act,

the authority of the court to award attorney’s fees to a

prevailing plaintiff under HRS § 662-9 is defined and bounded by

the provisions of HRS § 662-12.        The O’Gradys’ request for

attorney’s fees is premature under HRS §§ 662-9 and 662-12


     13
            The costs that the O’Gradys seek consist of (1) $4,416.36 for
thirteen transcripts, all of which were “necessary for the determination of
the appeal” as they contain relevant testimony from witnesses at the trial
pertinent to this court’s holding on the merits of this case, see HRAP Rule
39(c), and supported by invoices for the transcripts and the corresponding
checks that their counsel paid, see HRAP Rule 39(d)(1); (2) filing fees in
the amount of $315.00, which are allowed under HRAP Rule 39(c)(3); and (3)
photocopying costs in the amount of $86.81, which is allowed and complies
with the 20 cents per page limitation under HRAP Rule 39(c)(4).




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because there has been no “judgment for” them within the meaning

of that phrase in HRS § 662-12.       As to costs, we conclude that

HRS § 662-9 authorizes by law the award of fees to a prevailing

plaintiff but that the awardable amount, the manner in which the

amount may be requested and the award made, and the

documentation necessary to support the request are governed by

the relevant provisions of HRAP Rule 39.         We award the O’Gradys

costs in the amount of $4,815.17 pursuant to HRS § 662-9 and

HRAP Rule 39 because the O’Gradys were the “prevailing party on

appeal,” and the State did not lodge specific objections to any

of the expense items included in the O’Gradys’ request for

costs.

Ronald G. Self and                       /s/ Mark E. Recktenwald
Rebecca A. Copeland
for petitioners                          /s/ Sabrina S. McKenna

Douglas S. Chin,                         /s/ Richard W. Pollack
Caron M. Inagaki, and
Robin M. Kishi                           /s/ Michael D. Wilson
for respondents State of
Hawaii and State of Hawaii             /s/ Jeffrey P. Crabtree
Department of Transportation




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