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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-14-0000387
                                                               18-SEP-2017
                                                               07:59 AM




                              SCWC-14-0000387

             IN THE SUPREME COURT OF THE STATE OF HAWAI#I



   EARL C. CHARLES and PATRICIA A. CHARLES, in their individual
        capacities and as co-trustees of the Earl C. Charles
        and Patricia A. Charles Revocable Living Trust Dated
   December 12, 1990; PETER COAD JR. and JUDY E. COAD, in their
   individual capacities and as co-trustees of the Coad Family
     Trust Dated April 14, 2006; JOHN E. CORK; SUSAN M. CORK;
  AL P. BRENDE; DOUGLAS M. DROESE and RENEE S. DROESE, in their
    individual capacities and as co-trustees of the 1995 Droese
     Family Trust 08/02/95; MARTIN GIUFFRE; PATRICIA GIUFFRE;
 MATTHEW GIUFFRE; WILLIAM G. GLENNON and CAROLYN N. GLENNON, in
  their individual capacities and as co-trustees of the Glennon
    Living Trust dated 01/16/97; BRIAN HOYLE, in his individual
        capacity and as trustee of The Brian H. Hoyle Trust;
 WILLARD S. JOHNSTON, in his individual capacity and as trustee
     of The Willard Spencer Johnston Jr. Trust Dated 4-27-92;
 MICHAEL M. KEMPS, in his individual capacity and as co-trustee
 of the Kemps Family Trust Dated October 23, 2003; GEMMA KEMPS,
     in her individual capacity and as co-trustee of The Kemps
     Family Trust Dated October 23, 2003; DOCTOR ROHIT KHANNA;
  THERESA KHANNA; TERRY G. NEGENDANK and PAULA T. NEGENDANK, in
 their individual capacities and as co-trustees of The Terry G.
  Negendank and Paula T. Negendank 2000 Revocable Living Trust;
       JULIA NEGENDANK; HEIDI NEGENDANK; STEPHEN E. PENFOLD;
BARBARA A. PENFOLD; DONALD RECCHIO; MARIE WEBER; MARLON A. REYES;
   PATRICIA Y. SIGUENZA; THOMAS D. ROSINSKI; JANET S. ROSINSKI;
     CHARLES P. SCHULMAN; RICHARD J. STUART, in his individual
   capacity and as trustee of The Richard J. Stuart Trust Under
 Agreement Dated June 27, 2005; RICHARD VICKERS; NICOLE VITULLO;
    ANDREW H.W. BRANION; JOYCE L. ZIEBELL; WILLIAM BENDUSH and
       SOPHIA BENDUSH, in their individual capacities and as
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   co-trustees of The Bendush Family Trust Dated March 25, 1987;
  DOCTOR THOMAS M. PROSE; RONALD A. ABELMANN; JERYL J. ABELMANN;
  ABELMANN INVESTMENTS, LP; FRANCIS R. ZAMBON, in his individual
   capacity and as trustee of The Francis R. Zambon Living Trust
 Dated April 21, 2000, and as co-trustee of The Francis R. Zambon
       and Karen E. Zambon Living Trust Dated May 13, 2011;
  KAREN E. ZAMBON, in her individual capacity and as co-trustee
  of The Francis R. Zambon and Karen E. Zambon Living Trust Dated
May 13, 2011; JOHN R. HENKEL; SUSAN A. HENKEL; CAROLINE GAUTHIER;
        MARC LEFEBVRE; DOUGLAS C. MCCORD; TRACEY A. MCCORD;
   KEVIN R. DUNCAN; GREG H. GIESLER and ANN L. GIESLER, in their
  individual capacities and as co-trustees of the Giesler Family
       Trust; LEE J. CHIMERAKIS; THERESA A. CHIMERAKIS; JOHN
 FITZPATRICK; BARBARA FITZPATRICK; DAVID APLIN, in his individual
   capacity and as a trustee of The Aplin Kapalua Trust; RICHARD
  GIARAMITA; LISA GIARAMITA; DOCTOR ROBERT M. JACKSON and JUDITH
  JACKSON, in their individual capacities and as co-trustees of
    The Robert M. Jackson and Judith Jackson Revocable Trust;
      CRAIG L. CAPRETTA; ARLINDA CAPRETTA; ALEX WERNBERG; JANE
   WERNBERG; JEFFREY L. ROTHENBERGER and STACY L. ROTHENBERGER,
   in their individual capacities and as co-trustees of The Jeff
  Lynn Rothenberger and Stacy Leah Rothenberger Revocable Living
   Trust; WILLIAM C. GABRIELSON, in his individual capacity and
  as trustee of The William C. Gabrielson Trust; GLENNA ANTHONY;
     KEITH DELLER; AL A. KASHANI; TRI M. LA; JOHN W. HARKINS;
    RENEE LA FORCE HARKINS, Petitioners/Plaintiffs-Appellants,

                                     vs.

         KAPALUA BAY, LLC, MAUI LAND & PINEAPPLE CO., INC.;
       THE RITZ-CARLTON HOTEL COMPANY, LLC; THE RITZ-CARLTON
        DEVELOPMENT CO., INC.; MARRIOTT INTERNATIONAL, INC.;
        EXCLUSIVE RESORTS, LLC; MARRIOTT VACATIONS WORLDWIDE
      CORPORATION; THE RITZ-CARLTON MANAGEMENT COMPANY, LLC;
     MARRIOTT TWO FLAGS, LP; MH KAPALUA VENTURE, LLC; MLP KB
       PARTNER, LLC; EXCLUSIVE RESORTS CLUB I HOLDINGS, LLC;
      EXCLUSIVE RESORTS DEVELOPMENT COMPANY, LLC; ER KAPALUA
  INVESTORS FUND HOLDINGS, LLC; ER KAPALUA INVESTORS FUND, LLC;
   KAPALUA BAY HOLDINGS, LLC, Respondents/Defendants-Appellees.


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-14-0000387; CIV. NO. 13-1-0640)

                     SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson JJ.)


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            Petitioners/Plaintiffs-Appellants (Petitioners) seek

review of the September 9, 2015 Order Granting in Part and

Denying in Part Without Prejudice Motion for an Award of

Attorneys’ Fees and Costs, in which the Intermediate Court of

Appeals (ICA) granted Petitioners’ request for appellate costs

and denied Petitioners’ request for appellate attorney’s fees

“without prejudice to Plaintiffs-Appellants submitting a request

for attorneys’ fees to the Circuit Court of the Second Circuit
(circuit court), including the fees incurred on this appeal, at

the conclusion of this case in the circuit court.”

            On certiorari, Petitioners contend that the ICA erred

in not awarding attorney’s fees by failing to recognize that an

arbitrability dispute is a separate action under Hawai#i Revised

Statutes (HRS) § 607-14, and that in prevailing in the

arbitrability dispute, Petitioners were entitled to attorneys’

fees.

            With respect to appellate attorneys’ fees, we conclude

that, for the purposes of HRS § 607-14, the appeal of the

arbitrability issue is a separate action from the underlying

dispute on the merits.       We determine that Petitioners prevailed

in the arbitrability action and are entitled to reasonable

attorneys’ fees under HRS § 607-14 and the fee-shifting provision

in the Purchase Agreement.       We award Petitioners $54,974.00 in

attorneys’ fees incurred on appeal before the ICA, to be taxed

jointly and severally among Respondents/Defendants-Appellees.

            With respect to Petitioners’ request for an order

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stating that they are entitled to attorneys’ fees and costs

incurred in proceedings before the circuit court and in

arbitration, we affirm the ICA’s denial without prejudice to

Petitioners’ right to request fees and costs from the circuit

court.

            We also affirm the ICA’s award of $474.60 in appellate

costs.

            Accordingly, we reverse the portion of the ICA’s
September 9, 2015 order denying Petitioners’ request for

appellate attorneys’ fees, and affirm the portions of the ICA’s

September 9, 2015 order granting Petitioners’ request for

appellate costs and denying Petitioners’ request for fees and

costs incurred in the circuit court without prejudice to

Petitioners’ right to request fees and costs in the circuit

court.

            DATED:   Honolulu, Hawai#i, September 18, 2017.

Mark J. Bennett and                  /s/ Mark E. Recktenwald
Andrew J. Lautenbach
for petitioners
                                     /s/ Paula A. Nakayama
Bert T. Kobayashi, Jr.,
Lex R. Smith, Maria Y.               /s/ Sabrina S. McKenna
Wang, and Aaron R. Mun
for respondents The                  /s/ Richard W. Pollack
Ritz-Carlton Hotel
Company, LLC, The Ritz-              /s/ Michael D. Wilson
Carlton Development
Co., Inc., Marriott
International, Inc.,
Marriott Vacations
Worldwide Corporation;
The Ritz-Carlton Management
Company, LLC; Marriott Two
Flags, LP; and MH Kapalua
Venture, LLC

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