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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-30142
                                                              19-FEB-2014
                                                              09:58 AM


           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                       KAREN GOO, et al.,
Petitioners/Plaintiffs/Counterclaim-Defendants/Appellants/Cross-
                            Appellees,

                                    vs.

  MAYOR ALAN ARAKAWA, Successor-In-Interest to Mayor Charmaine
 Tavares, WILLIAM SPENCE, Director of Planning, County of Maui,
   Successor-In-Interest to Director Jeff Hunt, County of Maui
 Respondents/Defendants/Cross-Claim Defendants/Appellees/Cross-
                   Appellants/Cross-Appellees,

                                    and

                 VP AND PK(ML) LLC, KCOM Corp.,
          Defendants/Intervenor-Defendants/Cross-Claim
  Defendants/Counterclaimants/Cross-Claimants/Appellees/Cross-
                   Appellees/Cross-Appellants,

                                    and

                     KILA KILA CONSTRUCTION,
         Defendant/Cross-Claim Defendant/Cross-Claimant,

                                    and

         (John G.) JOHN G’S DESIGN & CONSTRUCTION, INC.,
         Defendant/Cross-Claimant/Cross-Claim Defendant,

                                    and

                      NEW SAND HILLS LLC.,
Respondent/Defendant/Intervenor-Defendant/Counterclaimant/Cross-
    Claim Defendant/Appellee/Cross-Appellee/Cross-Appellant,
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                                    and

      DAVID B. MERCHANT; JOYCE TAKAHASHI; BRIAN TAKAHASHI,
                Defendants/Intervenor-Defendants,

                                    and

                     DIANE L. REASER, et al.,
       Defendants/Intervenor-Defendants/Counter-Claimants,

                                    and

     HOOKAI, LLC, SANDHILLS ESTATES COMMUNITY ASSOCIATION,
    Respondents/Intervenors/Appellees/Cross-Appellees/Cross-
                           Appellants,

                                    and

         CHERYL CABEBE, GERRY RIOPTA, and MELISSA RIOPTA,
        Intervenor-Defendants/Appellees/Cross-Appellants.



                               SCWC-30142

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (ICA NO. 30142; CIV. NO. 07-1-0258(1))

                           FEBRUARY 19, 2014

 RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          This case addresses the issue of the procedure that an

appellate court should follow when a case becomes moot on appeal

and one party seeks vacatur of the lower court’s judgment.

          We hold that the Intermediate Court of Appeals (ICA)

erred in vacating the circuit court’s judgments and December 31,

2008 Order Granting Partial Summary Judgment in this case and


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remanding the case for dismissal.         In addition, we conclude that

the ICA did not err in affirming the circuit court’s denial of

plaintiffs’ request for attorneys’ fees.

                            I.   Background

                                    A.

          On Maui, approval of development projects is a three-

phase process.    Phase I involves approval of ordinances by the

Maui County Council (Council) that include prescribing the height

and density of structures to be built in a project.           Phase II

requires approval of the preliminary plat by the Planning

Commission.   Phase III requires the approval of the final plat by

the director of the Department of Planning.          According to the

Charter of the County of Maui, the director of the Department of

Planning is charged with enforcing the zoning ordinances.             Maui

County Charter § 8-8.3(6).

          Approval of subdivisions requires the approval of

various state and county agencies.         Ultimately the planning

director can approve subdivisions if they “conform to . . . the

county general plan, community plans, land use ordinances, the

provisions of the Maui County Code, and other laws relating to

the use of land[.]”     Maui County Code § 18.04.030 (1993).

          At the time of the relevant events in this case, Title

19, Article II, of the Maui County Code (MCC), known as the

Comprehensive Zoning Ordinance (CZO), stated that “[n]o building


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shall exceed two stories nor thirty feet in height.”            Prior to

September 4, 1991, the CZO “definitions” section defined “height”

as the “vertical distance from finished grade to the highest

point of the finished roof surface[.]” (pre-1991 definition)

(Emphasis added).

          On September 29, 1988, an application was filed for

Phase I approval of the Maui Lani Project District (MLPD).             On

June 20, 1990, the Council enacted Ordinance 1924, which

constituted Phase 1 approval for the MLPD.         MCC Chapter 19.78,

which codified Ordinance 1924, restricted structures in

residential sub-districts to “two-stories, not exceeding thirty

feet.”

          On September 18, 1990, the MLPD received Phase II

approval when the Maui Planning Commission approved the MLPD’s

preliminary plat site plan.

                                    B.

          On September 4, 1991, the Council enacted Ordinance

2031 (Height Restriction Law), which changed the definition of

“building height.”    “Height” was defined as “the vertical

distance measured from a point on the top of a structure to a

corresponding point directly below on the natural or finish

grade, whichever is lower.”      (post-1991 definition) (Emphasis

added).




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            The Height Restriction Law also provided definitions

for “natural grade” and “finish grade.”         “Natural grade” was

defined as “the existing grade or elevation of the ground surface

which exists or existed prior to man-made alterations such as

grading, grubbing, filling, or excavating.”          “Finish grade” was

defined as “the final elevation of the ground surface after man-

made alterations such as grading, grubbing, filing, or excavating

have been made on the ground surface.”

            On October 18, 2003, the Sandhills Project within the

MLPD received preliminary subdivision approval, and on March 12,

2004, it received Phase III approval.        According to former

Planning Director Michael Foley (Planning Director), “[t]he

Planning Department reviewed the project relative to the finished

grade and did not consider the effect of fill on building

heights.”    In other words, the Planning Department did not

calculate fill into the allowable building heights of structures

in the MLPD.

            On August 2, 2004, the Department of Public Works and

Waste Management issued a Grading and Grubbing Permit for the

Sandhills project that included a warning that adding fill to any

lots would “reduce the allowable height to less than 30 feet from

finished grade.”    On the same day, the Fairways project within

the MLPD received preliminary subdivision approval.           The

preliminary subdivision approval letter for the Fairways project


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included a similar warning concerning the effect of fill on

building heights.

            On December 14, 2004, the Planning Director sent an

“Interdepartmental Transmittal” rescinding the Planning

Department’s recommendation of Phase III approval for the

Sandhills project based on the fact that the developers who were

building the project had raised the finished grade of the project

by adding tons of fill on top of the natural ground, and homes

built on the fill could violate the Height Restriction Law

because their rooftops would be higher than 30 feet from the

lower natural grade.

            On December 22, 2004, as a result of the rescission,

representatives of the developers of the Sandhills and Fairways

projects (collectively, “subject projects”) had a private meeting

with Mayor Alan Arakawa (Mayor), the Planning Director, and

numerous representatives from various county agencies.            At this

meeting, the developers expressed their concerns about the

County’s application of the post-1991 definition of “height” to

the MLPD and the County’s “rescission” of final subdivision

approval.    The developers expressed their belief that Ordinance

1924, which had constituted Phase 1 approval for the MLPD,

authorized the application of the pre-1991 definition of height,

and the developers had already expended “substantial funds in

conjunction with the Sandhills project.”


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           As a result of this meeting and various internal

communications, the Mayor orally advised the developers that the

County “would continue to adhere to [the pre-1991 definition] to

interpret the height restriction since the Sandhills and the

Fairways Projects had already received Phase I and Phase II

Project District Approvals prior to the 1991 enactment of the

building height restriction amendment and were within the

[MLPD].”

           On May 31, 2005, the Mayor sent a letter to one of the

developers confirming this oral agreement.         The Mayor wrote that

to resolve the conflict over the issue of developments using fill

with regard to building projects, which were approved before the

1991 re-definition of height, “I made an administrative decision

to allow the project to proceed with the building heights

determined from the finished grade.”        The Mayor’s letter went on

to state, “Project District Phase III approval was granted based

on this decision.”

           A copy of this letter was sent to the Planning Director

on December 22, 2005, seemingly in response to the Planning

Director’s inquiry concerning the county’s granting of Phase III

approval for the Fairways project.        By mid-2007, both the

Sandhills and Fairways projects had received Phase III approval

pursuant to the Mayor’s decisions.




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                                     C.

             On July 18, 2007, in response to the grading and

compacting of “tons of dirt” allegedly over thirty feet high and

a retaining wall of equal size “loom[ing]” over their houses and

blocking their view planes over a “pleasant green valley,” Karen

Goo, et al. (Homeowners), filed a complaint against the Mayor and

the Planning Director (collectively, “County”) alleging that the

Mayor had unlawfully exempted the subject projects from the

Height Restriction Law.       The complaint also alleged tort claims

against the County, defendants VP and PK(ML), KCOM Corp and,

eventually, New Sand Hills (collectively, “Developers”)

alleging.1    Counts I and II sought declaratory and injunctive

relief requiring the County to enforce the Height Restriction Law

generally and specifically to projects in the MLPD.

             On November 16, 2007, Homeowners filed a motion for

partial summary judgment (MPSJ).          Homeowners’ MPSJ requested an

order that the County enforce the Height Restriction Law

definition of “height” on the subject projects, and Developers be




      1
            In addition to Counts I and II, Homeowners alleged various claims
for, inter alia, negligence, nuisance, and intentional and/or negligent
infliction of emotional distress against Developers. On April 10, 2008, over
the objection of Homeowners, the circuit court bifurcated Counts I and II from
the other claims, and this case proceeded on Counts I and II alone. The
circuit court also ruled that only the County would remain a defendant on
Counts I and II. On May 13, 2008, Developers filed a motion to intervene,
which was granted on June 4, 2008. Homeowners amended their complaint four
times. Defendant New Sand Hills was added as a defendant in an amended
complaint.

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required to remove any improvements made in violation of the

CZO’s post-1991 definition.

           On December 28, 2007, Developers filed a motion to

dismiss Homeowners’ complaint, which the County joined.

Developers argued, inter alia, that the complaint failed to join

indispensible parties, specifically “each and every lot owner

within the [MLPD] permitted after the 1991 Amendment[.]”            On

February 25, 2008, the circuit court partially granted

Developers’ motion to the extent that the circuit court ordered

Homeowners to provide notice of the lawsuit to “all lot or real

property owners within the [MLPD] whose rights would be affected

should [the circuit court] grant the relief sought by

[Homeowners] in Counts I and II.”         The order required that

Homeowners personally serve all of these “indispensable parties.”

           On May 21, 2008, the attorney for Homeowners submitted

a declaration confirming that all potential parties-in-interest

had been notified in accordance with the circuit court’s order.

A total of 337 parties acknowledged receipt of notice, while 523

parties received the notice, as indicated by certified mail

receipts, but had not responded.

           A hearing was held on Homeowners’ MPSJ on December 9,

2009.   On December 31, 2008, the circuit court issued its

Findings of Fact, Conclusions of Law, and Order Granting

Plaintiffs’ Motion for Partial Summary Judgment (Order Granting


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Partial Summary Judgment), granting Homeowners’ November 16, 2007

MPSJ.    In accordance with its Order Granting Partial Summary

Judgment, the Court ruled that the Height Restriction Law’s

definition of height applied to all projects in the MLPD and

enjoined the county from issuing any building permits to projects

that violated the post-1991 definition.          The order stated that

declaratory relief would apply to the MLPD as a whole; however,

the circuit court limited the scope of the injunctive relief to

the Sandhills and Fairways projects, “so that the remedy is no

more burdensome to Defendant County of Maui than necessary to

provide complete relief to plaintiffs.”          The order decreed:

                  1. The Maui Lani Project District, as a whole, is
            subject to the residential height restriction as determined
            in 1991 and codified at Maui County Code § 19.04.040,2 which
            states that building height “means the vertical distance
            measured from a point on top of a structure to a
            corresponding point directly below on the natural or finish
            grade, whichever is lower.”
                  2. Defendant, County of Maui, is enjoined from taking
            any action which conflicts with the Court's determination of
            the applicable height restriction relative to the Sandhills
            project and the Fairways project including, but not limited
            to, the issuance of building permits the result of which
            would be inconsistent with Maui County Code § 19.04.04.
                  3. This Order shall remain in effect until further
            order of the Court.

                                     D.

            On January 23, 2009, Homeowners made a motion for

attorneys’ fees pursuant to the private attorney general

doctrine.    Homeowners set forth the three prongs of the private

attorney general doctrine: “(1) the strength or societal



     2
            MCC § 19.04.040 refers to the CZO’s “definitions” section.

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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.”3

             Homeowners argued their lawsuit forced the county to

enforce important zoning laws, was necessary because the Mayor

had acted illegally, a significant burden had fallen upon

Homeowners because the County and Developers were actively

opposing Homeowners, and all the people of Maui stood to benefit

from the court’s ruling.

             On February 24, 2009, the circuit court held a hearing

on the motion for attorneys’ fees.         The circuit court concluded

that Homeowners met the first two prongs of the private attorney

general doctrine.     However, the circuit court found Homeowners

did not meet the third prong because of the limited immediate

applicability of the Height Restriction Law to only the subject

projects within the MLPD and the fact that the offending fill

blocking Homeowners’ views would not be removed, thus making it

unclear how many people would benefit from the circuit court’s

decision.4




      3
            In light of our disposition of this case, we do not expand upon
the arguments and court rulings concerning the first two prongs of the private
attorney general doctrine.
      4
            On April 3, 2009, the circuit court filed its order denying
Homeowners’ January 23, 2009, motion for attorneys’ fees.

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          On March 16, 2009, this court decided Sierra Club v.

Department of Transportation of State of Hawai#i, 120 Hawai#i 181,

202 P.2d 1226 (2009) (Superferry II).        On March 31, 2009,

Homeowners filed a motion for reconsideration of the denial of

their motion for attorneys’ fees.         Homeowners argued they met the

third prong because their lawsuit benefited the entire population

of Maui by promoting the rule of law on Maui through enforcement

of the zoning code, emphasized the importance of public

participation in the zoning process, and reduced the likelihood

of “future developers claiming an exemption from the zoning law

after holding a closed-door meeting with the mayor.”

          On April 23, 2009, the circuit court held a hearing on

Homeowners’ motion for reconsideration.         The circuit court found

that, based on its reading of Superferry II, Homeowners failed to

satisfy the first prong of the private attorney general doctrine

as well as the third prong.

          Concerning the number of people benefitted in relation

to the third prong, the circuit court noted Homeowners’ complaint

concerned only two subdivisions and not a statute of statewide

application.   The circuit court noted further that the entire

case was limited only to several homeowners living adjacent to

the projects involved.     While recognizing that its ruling had

county-wide implications, the circuit court observed that more

people could be harmed by its decision than benefitted because


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the owners of property in the MLPD would not be able to build

homes.

            On June 3, 2009, the circuit court entered its order

denying Homeowners’ motion for reconsideration.

            The County and Developers appealed the circuit court’s

final judgments.5      Homeowners appealed the circuit court’s

denial of attorneys’ fees.

                       II.   Appellate Proceedings

                                     A.

            On March 19, 2010, Homeowners filed their Opening

Brief.6   Homeowners raised a single point of error:

            Whether the trial court erred in denying Homeowners’ request
            for attorneys’ fees against the County under the private
            attorney general doctrine.

            Homeowners argued in their Opening Brief that their

lawsuit satisfied the third prong of the private attorney general

doctrine because it benefitted the entire population of Maui and

any persons who may purchase property on Maui in the future, and

denying Homeowners’ request for attorneys’ fees would discourage

future lawsuits such as theirs.

            On August 28, 2011, after the briefing was submitted to

the ICA, the Council adopted a bill that became Ordinance 3848.

      5
            The circuit court issued three final judgments in this case on
January 12, 2009, April 3, 2009 and September 30, 2009.
      6
            Neither the County nor the Developers sought a writ of certiorari
from the ICA’s decision in this case. Similarly Defendant Sandhills Estates
Community Association also filed a cross-appeal, but did not seek review of
the ICA decision.

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Karen Goo, et al., v. Mayor Alan Arakawa, et al., No. SCWC-30142,

2013 WL 5289010, at *3 (App. Oct. 7, 2013) (mem.).           Ordinance

3848 amended the CZO’s definition of height to the following:

“[f]or structures within project districts that received phase II

approval prior to September 4, 1991, finish grade shall be used

to determine height.”     Goo, 2013 WL 5289010, at *3.        On June 12,

2013, the ICA ordered the parties to file supplemental briefs on

the question of “whether, in light of Ordinance 3848, any of the

issues raised on appeal are moot.”        Id. at *4.   The ICA’s

supplemental briefing order did not require the parties to brief

the issue of vacatur.

           On June 28, 2013, Homeowners filed their supplemental

brief.   Homeowners argued that all of the issues raised by the

County and Developers were moot because Ordinance 3848 granted

the County and Developers the exact relief they requested, namely

allowing the subject projects to measure building height from

finished grade.

           Homeowners contended, however, that their appeal

concerning attorneys’ fees was not moot.         Homeowners argued that

it would be absurd to allow the County’s passage of a law making

previously illegal conduct legal to defeat a claim for attorneys’

fees under the private attorney general doctrine with regard to a

lawsuit that forced the change in the law.

           On July 2, 2013, both the County and Developers


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submitted their supplemental briefs.        The County argued that its

appeal and Homeowners’ appeals were moot.         The County contended,

however, that Homeowners’ appeal concerning attorneys’ fees was

also moot.

           The County argued further that the ICA should vacate

the circuit court’s decision because “merely dismissing the

appeal due to mootness could result in the trial court’s judgment

imposing collateral estoppel.”       The County argued that it was not

issuing building permits for the subject projects because of the

circuit court’s 2008 order.      Therefore, the County requested that

the order be vacated so that building could proceed pursuant to

Ordinance 3848.

           Developers also contended in their memorandum that the

case was not moot because the County was not issuing building

permits.

                                    B.

           The ICA issued its Memorandum Opinion on September 19,

2013.   The ICA found that Ordinance 3848 settled the primary

issue of whether the “pre-1991 definition of height or the more

restrictive 1991 definition of height applies to the [subject

projects] within the [MLPD]” and, thus, that issue was moot.

Goo, 2013 WL 5289010, at *5-6.




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             The ICA stated that Developers’ concerns “should be

assuaged” by its decision to vacate the circuit court’s order and

judgments.     Id. at *7 n.9, *8.

             The ICA’s analysis with respect to the issue of vacatur

was as follows:

             As recognized in Aircall of Haw., Inc. v. Home Props., Inc.,
             6 Haw App. 593, 733 P.2d 1231 (1987), “where appellate
             review has been frustrated due to mootness[,]” the circuit
             court’s judgment, which is unreviewable because of mootness,
             could lead to issue preclusion. Id. at 595, 733 P.2d at
             1232. In Aircall of Haw., and subsequently, in Exit Co.
             Ltd. P’ship v. Airlines Capital Corp., 7 Haw. App. 363, 766
             P.2d 129 (1988), this court noted that such a result would
             be unfair and resolved the potential for issue preclusion
             where a case is rendered moot on appeal by adopting “the
             federal practice of having the appellate court vacate the
             judgment of the trial court and direct dismissal of the
             case.” Exit Co., 7 Haw. App. at 367, 766 P.2d at 131
             (citation and internal quotation marks omitted). We
             likewise apply this resolution to the present case.

Id. at *8.     Thus, because appellate review of the Height

Restriction Law issue was frustrated based on mootness and the

judgment had the potential to “lead to issue preclusion,” the ICA

vacated the circuit court’s December 31, 2008 Order Granting

Partial Summary Judgment and final judgments7 with respect to

Counts I and II of Homeowners’ complaint for Declaratory and

Injunctive Relief.       Id. at *8.    The ICA remanded the case to the

circuit court with orders to dismiss the action.             Id.

             The ICA found that Homeowners’ appeal concerning

attorneys’ fees was not moot, but concluded that Homeowners

failed to meet the first and third prongs of the private attorney


      7
            It appears the ICA did not vacate the circuit court’s April 3,
2009 final judgment.

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general doctrine.8    Id. at *9.    On the third prong, the ICA found

that the number of people benefitting from the circuit court’s

ruling was unclear, probably limited, and the three-prong test of

the private attorney general doctrine was intended to constrain

the doctrine’s application to “exceptional circumstances.”              Id.

Therefore, the ICA concluded that the circuit court did not abuse

its discretion in denying Homeowners’ motions for attorneys’

fees, and affirmed the circuit court’s April 3, 2009 order

denying Homeowners’ motion for attorneys’ fees.           Id. at *12.

           On September 27, 2013, Homeowners filed a timely motion

for reconsideration addressing the ICA’s vacation of the circuit

court’s judgments and order, and attaching what they stated were

meeting minutes created after the circuit court’s judgment that

showed Ordinance 3848 was only passed as part of a “global

settlement.”    The ICA denied the motion.

               III.   Application for Writ of Certiorari

                                     A.

           On October 25, 2013, Homeowners timely filed their

application for writ of certiorari (Application) and present the

following questions:

           A. Whether the declaratory judgment obtained by Homeowners
           should be vacated and dismissed because the County’s [sic]
           caused the mooting of the underlying controversy, or are
           Homeowners entitled to keep the record of their success as



      8
            The ICA did not address the second prong because it found
Homeowners failed to meet the first and third prongs. Goo, 2013 WL 5289010,
at *10.

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            the prevailing party and to guide government officials in
            the future regarding the challenged illegal actions?

            B. Whether Homeowners are entitled to their attorney’s fees
            against the County under the private attorney general
            doctrine because their suit vindicated important public
            interests and benefitted the public broadly by compelling
            the County to faithfully and equally enforce its zoning
            laws, instead of exempting favored persons from the law’s
            reach?

            Homeowners argue the ICA erred in vacating the circuit

court’s “declaratory judgment.”        Homeowners agree the appeals of

the County and Developers were moot, but contend that if a party

to a suit causes the mootness, that party’s actions preclude the

equitable remedy of vacatur.        Citing to “Minutes of Maui County

Council Planning Committee,” Homeowners maintain that the County

passed Ordinance 3848 as part of a “global settlement” of various

lawsuits concerning the post-1991 definition of height and its

effects on the subject projects.        Homeowners also quote “a County

attorney” testifying before the Council recommending the passage

of Ordinance 3848 so as to correct the decision of the circuit

court in this case.9

            Thus, Homeowners, relying on U.S. Bancorp Mortgage Co.

v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994), argue that

vacatur was inappropriate in this case because the mootness of

the primary issue did not occur through happenstance but rather

as the result of a concerted effort by the County and Developers

to circumvent the circuit court’s decision.           Homeowners

      9
            These documents were apparently created after Council meetings in
2011 and 2009, respectively. The circuit court rendered its ruling against
the County and Developers in 2008.

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acknowledge that the injunction can be vacated, but argue the

declaratory judgment should be kept in place as recognition of

Homeowners’ challenge to the Mayor’s illegal conduct and their

vindication of the important public policy of equal enforcement

of zoning laws.

           Homeowners also contend the ICA erred in affirming the

circuit court’s denial of attorneys’ fees, arguing that denying

their request for attorneys’ fees would have a chilling effect on

lawsuits filed by “ordinary” people seeking to enforce zoning

laws.   Homeowners maintain their personal interest in the outcome

did not preclude an award of fees under the private attorney

general doctrine.    They argue further that the hundreds of

notices the circuit court ordered Homeowners to mail demonstrated

that the case had a widespread effect.

                                    B.

           The County, in its Response to Homeowners’ Application,

argues that the vacatur by the ICA was proper. The County reasons

that the Maui County Council is an independent branch of

government from the County executive branch defendants and thus,

regardless of lobbying by the executive branch, the County “is in

a position akin to a party who finds its case mooted on appeal by

‘happenstance,’ rather than by events within its control.”




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            The County maintains that the ICA properly found that

the circuit court did not abuse its discretion in denying

Homeowners attorneys’ fees.

            Developers in their Response to Homeowners’ Application

also argue that vacatur was proper because the underlying appeal

was moot.   In addition to arguments made by the County,

Developers maintain that Homeowners’ citations to the Maui County

Council Planning Committee Reports and Minutes were inappropriate

because they were not accompanied with citations to the Record on

Appeal.   Developers also contend that Homeowners were judicially

estopped from arguing against the vacatur of the circuit court’s

declaratory judgment because Homeowners argued in their

supplemental briefing on mootness that all issues in the case

were moot, and they did not ask the ICA to affirm the circuit

court’s declaratory judgment.

            Further, Developers assert that lot owners who cannot

build on their lots may sue Developers and rely on the circuit

court’s declaratory judgment “for the proposition that the law at

the time the lot owners purchased their lots prohibited or

limited construction on lots with fill.”         This would result in

Developers being unfairly “forced to expend time, effort, and

expense defending against the legal claims that would likely

arise if the declaratory judgment is not vacated.”




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                                    C.

          Homeowners replied to both the County’s and Developers’

responses.   Homeowners contend that because the County was

defending an illegal action by the Mayor, rather than a pre-

existing law, the Council’s passing of an ordinance retroactively

legalizing the Mayor’s conduct amounted to a voluntary action by

the County to moot this case.       Homeowners argue that vacatur is

an equitable remedy, and the action by the Council to legalize

the Mayor’s illegal conduct did not entitle the County to such a

remedy.

          In reply to Developers, Homeowners argue that they

brought the issue of vacatur to the attention of the ICA in their

motion for reconsideration.      Homeowners maintain that the ICA did

not order them to brief the issue of vacatur, and the first

chance Homeowners had to raise the issue was in their motion for

reconsideration.    Homeowners contend that the Meeting Minutes

they referenced could not be part of the Record on Appeal as the

minutes were created after the Record on Appeal was created.

Finally, Homeowners conclude that vacatur of the declaratory

judgment was a “last slap in the faces of [Homeowners] . . . who

sought judicial recognition that the mayor’s actions were

contrary to law[.]”     Thus, Homeowners request that this court

“remand the matter to the trial court for further proceedings




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regarding the effect of [Ordinance 3848] on the injunction but

preserving the Declaratory Judgment[.]”

                            IV.     Discussion

                               A.    Vacatur

                                     1.

          In U.S. Bancorp Mortgage Co. v. Bonner Mall

Partnership, 513 U.S. 18, 22 (1994), the Supreme Court held that

in cases where “a judgment has become moot while awaiting review,

this Court may not consider its merits, but may make such

disposition of the whole case as justice may require.”            The Court

explained that vacatur is an “extraordinary remedy.”            Id. at 26

(brackets omitted).

          In Bancorp, at issue was whether vacatur should be

granted where mootness results from a settlement agreement

between the parties.     Id. at 20.       In resolving this question, the

Court first noted that in the prior leading case on vacatur,

United States v. Munsingwear, Inc., 340 U.S. 36 (1950), the Court

had stated that vacatur “clears the path for future relitigation

of the issues between the parties and eliminates a judgment,

review of which was prevented through happenstance.”            Bancorp,

513 U.S. at 22-23 (quoting 340 U.S. at 40).          The parties in

Bancorp had agreed that pursuant to Munsingwear, vacatur must be

ordered for judgments rendered moot “through happenstance”; that

is, “where a controversy presented for review has become moot due


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to circumstances unattributable to any of the parties.”               Id. at

23 (quotation marks omitted).          However, the Court disagreed,

characterizing the reference to “happenstance” in Munsingwear as

“dictum.”      Id. at 23.

             In any event, the Bancorp Court held that the

“principles that have always been implicit in our treatment of

moot cases counsel against extending Munsingwear to settlement,”

as the Court had always “disposed of moot cases in the manner

most consonant to justice in view of the nature and character of

the conditions which have caused the case to become moot.”                Id.

at 24 (quotation marks and ellipses omitted).             “The reference to

‘happenstance’ in Munsingwear” was merely an “allusion to this

equitable tradition of vacatur,” given that “[a] party who seeks

review of the merits of an adverse ruling, but is frustrated by

the vagaries of circumstance, ought not in fairness be forced to

acquiesce in the judgment.”         Id. at 25.

             Thus, “[t]he principal condition to which [the Court]

looked [was] whether the party seeking relief from the judgment

below caused the mootness by voluntary action.”             Id. at 24.     The

Court emphasized that the settlement of a case is not a result of

“happenstance,” but a voluntary act of the parties.              Id. at 23-

27.    The Court held that “[w]here mootness results from

settlement . . . the losing party has voluntarily forfeited his

legal remedy by the ordinary processes of appeal or certiorari,


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thereby surrendering his claim to the equitable remedy of

vacatur.”      Id. at 25.

             Additionally, the Court explained that its holding

“must also take account of the public interest,” which “requires”

that the “demands of orderly procedure [of appeal]               . . . be

honored when they can.”        Id. at 26-27.      The Court declared,

“[j]udicial precedents are presumptively correct and valuable to

the legal community as a whole.          They are not merely the property

of private litigants and should stand unless a court concludes

that the public interest would be served by a vacatur.”               Id. at

26 (quotation marks and citation omitted).            Because the primary

route for parties to seek relief from judgments was through

appeal and certiorari, “[t]o allow a party who steps off the

statutory path to employ the secondary remedy of vacatur as a

refined form of collateral attack on the judgment would—quite

apart from any considerations of fairness to the parties—disturb

the orderly operation of the federal judicial system.”               Id. at

27.

             The Bancorp Court thus held that where a case has

become moot because the losing party voluntarily abandoned its

right of review, e.g., through settlement, vacatur is not

justified, although “exceptional circumstances may conceivably

counsel in favor of such a course.”           Id. at 29.    Moreover, the

Court held that, in all situations, the party requesting relief


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from the status quo had the burden of proving “equitable

entitlement to the extraordinary remedy of vacatur.”            Id. at 26.

Finally, the Court determined that “even in the absence of, or

before considering the existence of, extraordinary circumstances,

a court of appeals presented with a request for vacatur of a

district-court judgment may remand the case with instructions

that the district court consider the request, which it may do

pursuant to Federal Rule of Civil Procedure 60(b).”           Id. at 29.

          Thus, Bancorp established a presumption against vacatur

in situations where the party requesting vacatur voluntarily

caused the case to become moot.       The case also overruled what had

become a federal practice under Munsingwear, of automatically

vacating judgments that had become moot on appeal so as to avoid

issue preclusion attaching to a judgment that could not be

reviewed on appeal.     340 U.S. at 39-40.      See also Valero

Terrestrial Corp. v. Paige, 211 F.3d 112, 120 (4th Cir. 2000) (in

the forty-four years between the Court’s decision in

Munsingwear and its decision in Bancorp, the prevailing practice

among district courts was to follow the appellate court practice

of automatically vacating moot judgments, pursuant to

Munsingwear).

          This practice had led to a situation where “repeat

litigants,” such as insurance companies, were settling cases

after losing at the trial level against “one-time litigants,”


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such as policy-holders, but only on the condition that judgments

adverse to the interests of the repeat litigant were vacated.

Eugene R. Anderson, et. al., Out of the Frying Pan and into the

Fire: The Emergence of Depublication in the Wake of Vacatur, 4 J.

App. Prac. & Process 475, 476 (2002).          Thus, “[t]hrough vacatur,

insurance companies [could] eradicate or reduce the number of

pro-policy holder decisions and then argue that the weight of

authority [was] in their favor.”10

            Bancorp responded to this practice by holding that

appellate courts could no longer vacate lower court judgments

based solely on a settlement agreement, which represents a

voluntary abandonment of the right to appellate review, absent

“exceptional” or “extraordinary” circumstances.           While Bancorp

preserved Munsingwear’s dictum that mootness resulting from

“happenstance” provides sufficient reason to vacate, 513 U.S. at

25 n.3, the Court clearly emphasized the need to consider the

public interest in preserving judicial precedents and “the

orderly operation of the federal judicial system” when granting

equitable relief such as vacatur.          513 U.S. at 26-27.

Furthermore, as noted, Bancorp explicitly states that, even

before considering the existence or absence of “extraordinary


      10
            Cf. Am. Games, Inc. v. Trade Prods., Inc., 142 F.3d 1164, 1170
(9th Cir. 1998) (finding that in cases of merger, the courts should evaluate
the “economics and incentives of the transaction to smoke out” whether the
merging parties are manipulating the common law through a “buy and bury”
strategy of vacating adverse judgments through merger).

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circumstances,” an appellate court presented with a request for

vacatur may remand to the trial court pursuant to the federal

rules.   Id. at 29.   Thus, Bancorp clearly allows an appellate

court to weigh the equities of vacatur or to simply remand to the

trial court to determine whether a judgment should be vacated

based upon consideration of the equities in the case.

           The Ninth Circuit’s decision in American Games, Inc. v.

Trade Products, Inc., 142 F.3d 1164 (9th Cir. 1998), demonstrates

the value in an appellate court having the option of remanding in

situations where a case has become moot, even by happenstance.

In that case, a district court judgment resolving a controversy

between two parties was mooted while the case was on appeal to

the Ninth Circuit, due to an “asset sale that effectively merged

the two companies.”     Id. at 1165-66.     The parties then “requested

dismissal of the appeal and vacation of the district court

judgment.”    Id. at 1166.     Rather than weighing the equities of

vacatur, the Ninth Circuit dismissed the appeal and remanded the

case to the district court “for the purpose of considering the

motion for vacatur.”     Id.

           On remand, the district court allowed a third-party

corporation that had an interest in the preclusionary value of

the mooted judgment to intervene and argue against vacatur.             Id.

at 1166-67.    The defendant-corporation (the result of the

merger), argued that the judgment should be vacated pursuant to


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Munsingwear because the merger was “happenstance.”            Id. at 1166.

The district court decided that the case “[fell] somewhere

between [Bancorp] (mootness by settlement) and [Munsingwear]

(mootness by happenstance).”       Id.     However, after balancing the

equities, the district court found that the “merger was motivated

by legitimate business reasons only incidental to the mooted

case, and not for the purpose of settling the case.”             Id.   The

district court thus issued the vacatur order.           Id.   The Ninth

Circuit affirmed the vacatur order, holding that due to the

“fact-intensive” nature of the “happenstance” inquiry, the

district court could conduct an equitable balancing test instead

of an “extraordinary circumstances” test.          Id. at 1169-70.

           Am. Games thus exemplifies how factually complex a

“happenstance” vs. “voluntary” analysis can be.           Am. Games also

demonstrates how, through the “orderly operation of the federal

judicial system,” Bancorp, 513 U.S. at 27, appellate courts can

utilize remand to trial courts to develop a fuller record before

deciding the issue of vacatur.

           The concurrence in Keahole Defense Coalition, Inc. v.

Board of Land & Natural Resources, 110 Hawai#i 419, 437, 134 P.3d

585, 603 (2006) (Del Rosario, Circuit Judge, concurring),11 also

recognized that the Bancorp “exceptional circumstances” test



      11
           Justice Acoba wrote the majority opinion and joined the concurring
opinion.

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applied only to appellate court vacatur.         Id.   Citing to Am.

Games, the concurrence explained that trial courts, on the other

hand, could vacate their own judgments based on an equitable

balancing test, even in the presence of voluntary action by the

party requesting vacatur.      Id. (citing 142 F.3d at 1169-70).

          In this case, the ICA held that vacatur was proper

because, “‘where appellate review has been frustrated due to

mootness[,]’ the circuit court’s judgment, which is unreviewable

because of mootness, could lead to issue preclusion.”            Goo, 2013

WL 5289010, at *8 (citing Aircall of Haw., Inc. v. Home Props.,

Inc., 6 Haw App. 593, 733 P.2d 1231 (1987)).           The ICA concluded,

based on Exit Co. Ltd. Partnership v. Airlines Capital Corp., 7

Haw. App. 363, 367, 766 P.2d 129, 131 (1988), which in turn cited

to Aircall, that such a result would be unfair to defendants and

resolved this unfairness “by adopting ‘the federal practice of

having the appellate court vacate the judgment of the trial court

and direct dismissal of the case.’”        Goo, 2013 WL 5289010, at *8

(quoting Exit Co., 7 Haw. App. at 367, 766 P.2d at 131).

          Aircall, however, relied on Munsingwear to justify the

“practice” of appellate courts vacating moot trial court

judgments solely to avoid issue preclusion.          6 Haw App. at 595,

733 P.2d at 1233 (“Vacation of the [circuit court’s order] and

remand of the case to the circuit court with direction to dismiss

the action will prevent the . . . Order, which is ‘unreviewable


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because of mootness, from spawning any legal consequences.’

[Munsingwear], 340 U.S. at 41[.]”).        However, as set forth above,

Bancorp essentially abolished this federal practice.

            In its place, Bancorp established the “extraordinary

circumstances” test for appellate court vacatur of lower court

judgments rendered moot by the voluntary actions of the parties,

and directed federal appellate courts to “take account of the

public interest” before vacating cases mooted by “happenstance.”

The procedural history in Am. Games demonstrated further that

even cases apparently mooted on appeal by “happenstance” may

require “fact-intensive” inquiries that are best left to trial

courts to resolve.

            Here, the ICA did not evaluate whether the Council’s

passage of the ordinance was “happenstance,” an action not

attributable to the voluntary action of the parties, which would

have justified vacatur under Munsingwear as affirmed by Bancorp.

Munsingwear, 340 U.S. at 39-40; Bancorp, 513 U.S. at 25 n.3.                The

ICA did not explain how the defendants carried their burden of

establishing their “equitable entitlement to the extraordinary

remedy of vacatur.”     Bancorp, 513 U.S. at 26.       Finally, the ICA

did not “take account” of how vacatur would serve the public

interest.    Id. at 26-27.

            Homeowners also maintain their motion for

reconsideration was the first opportunity they had to address the

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question of vacatur,12 and Ordinance 3848 was passed only as part

of a “global settlement.”       Homeowners also quoted what was

contended to be “Minutes of Maui County Council Planning

Committee” purporting to show that Ordinance 3848 was part of

this settlement, but the Minutes were not in the record because

the case became moot after the record was developed.             Although

the record would not be able to reflect the existence of such a

settlement because the case became moot due to actions taken by

the Council after the appeal was taken, if a settlement agreement

had been demonstrated the ICA would have had to find

“extraordinary circumstances” to justify vacatur under Bancorp.

513 U.S. at 29.

            Thus, the ICA did not properly analyze the vacatur

issue.

                                     2.

            The County and Homeowners agree that the circuit

court’s judgment was rendered moot as a result of the Council’s

enactment of Ordinance 3848.        They also agree that the injunction

can be vacated.     Homeowners argue, however, that the Council’s

passage of Ordinance 3848 was attributable to the County because

the County lobbied for its passage, Ordinance 3848 was part of a

      12
            The ICA’s supplemental briefing order did not require the parties
to brief the issue of vacatur. Additionally, Homeowners filed their
supplemental brief before the County and Developers, and thus did not have an
opportunity to respond to the defendants’ requests for vacatur in their
briefs. Thus, Developers’ argument that Homeowners waived their right to
argue against vacatur is without merit.

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“global settlement,” and the County was defending an illegal

action by the Mayor as opposed to an existing law.           The County

counters that actions of the legislative branch were not

attributable to the executive branch, and thus the County “is in

a position akin to a party who finds its case mooted on appeal by

‘happenstance,’ rather than by events within its control.”

          Regardless of which party is correct, this is precisely

the type of equity-balancing, fact-intensive situation that is

best left to the circuit court to evaluate.          Because this case

became moot while on appeal, Goo, 2013 WL 5289010, at *3, the

parties did not have an opportunity to adduce evidence, present

memoranda, or make arguments to the circuit court judge, who

would have been in the best position to make factual

determinations as to the cause of the mootness and to balance the

equities of the case.     The record on the vacatur issue is not

only incomplete, it is virtually non-existent, as all, or

virtually all, of the actions resulting in the case becoming moot

occurred after the appeals were filed.

          A remand to the lower court is commonly invoked by

appellate courts when a case becomes moot while awaiting a

decision on appeal.     See Am. Games, 142 F.3d at 1168 (describing

the Ninth Circuit’s “established procedure of remanding so the

district court can decide whether to vacate its judgment in light

of the consequences and attendant hardships of dismissal or


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refusal to dismiss and the competing values of finality of

judgment and right to relitigation of unreviewed disputes”

(quotation marks omitted)).

          Given the “fact-intensive” nature of the inquiry into

whether the party seeking vacatur caused the case to become moot,

a trial court is better equipped than an appellate court

operating at a distance to fashion equitable relief.            See id. at

1170 (“Given the fact-intensive nature of the inquiry required,

it seems appropriate that a district court should enjoy greater

equitable discretion when reviewing its own judgments than do

appellate courts operating at a distance.”).          See also Rio Grande

Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1139

(10th Cir. 2010) (Henry, J., dissenting) (“the district court is

better equipped than we are to fashion equitable relief, and we

afford it considerable discretion in doing so”).           Remand to the

lower court also better protects the “orderly operation of the

judicial system” by leaving fact-finding powers with the trial

courts and review of the trial courts’ discretion to the

appellate courts.    Bancorp, 513 U.S. at 27.

          Moreover, unlike an appellate court that is more likely

to be in the position of rendering an “all or nothing”

determination (vacating or not vacating), a lower court may

modify a judgment to address the interests of both parties.




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          Thus, the better rule to apply is that, when a case

becomes moot on appeal and the trial court has not had an

opportunity to evaluate a motion for vacatur, the appellate

court, in the absence of exceptional circumstances, should remand

the case to the trial court to give the court the first

opportunity to evaluate the cause of the mootness based on a

complete record.

          Bancorp’s preservation of Munsingwear’s “happenstance”

analysis is, in practice, impractical.         As shown by Am. Games,

even the analysis of “happenstance” is “fact-intensive.”            142

F.3d at 1170.   Additionally, if a case became moot while on

appeal, there would likely be no record on which an appellate

court could properly analyze whether the “controversy . . . has

become moot due to circumstances unattributable to the parties.”

Bancorp, 513 U.S. at 23.

          Enabling the trial court to evaluate the issue first,

and perhaps reach a middle ground, or allow agreement of the

parties, would also be consistent with the policy of preserving

judgments.   Bancorp, 513 U.S. at 26-27 (judicial precedents are

valuable to the legal community as a whole).          A remand to the

trial court also furthers the interests of judicial economy, as

it avoids a situation in which an appellate court analyzes a

motion for vacatur, denies it, and then a party below files an




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HRCP Rule 60(b) motion for vacatur in the circuit court.13            Am.

Games, 142 F.3d at 1169 (“[A trial court] is not precluded by [an

appellate court’s denial of a request for vacatur] from vacating

its own judgment after an independent review of the equities, and

we therefore follow our established practice of remanding the

case to the [trial court] for such a determination.”            (quoting

Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996))).

          Accordingly, when a case is mooted while on appeal, the

appellate court should, absent exceptional circumstances, remand

the case to the trial court for a consideration of the vacatur

issue.

                                      3.

          The ICA erred by vacating the circuit court’s December

31, 2008 Order Granting Partial Summary Judgment and judgments

and remanding to the court for dismissal given that the more

equitable rule for cases that have been rendered moot on appeal



     13
          HRCP Rule 60(b) provides:

          On motion and upon such terms as are just, the court may
          relieve a party or a party’s legal representative from a
          final judgment, order, or proceeding for the following
          reasons:

          . . . .

          (5) the judgment has been satisfied, released, or
          discharged, or a prior judgment upon which it is based has
          been reversed or otherwise vacated, or it is no longer
          equitable that the judgment should have prospective
          application; or (6) any other reason justifying relief from
          the operation of the judgment.


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is for appellate courts, in the absence of extraordinary

circumstances, to remand to the trial court to evaluate the issue

of vacatur based upon a developed record.         The case should have

therefore been remanded to the circuit court to allow that court

an opportunity to consider an HRCP Rule 60(b) motion for vacatur.

The circuit court may then make factual findings, balance the

equities of the case, and exercise its discretion as to whether

its own judgment should be vacated in whole or in part.            Am.

Games, 142 F.3d at 1168, 1170.       See also Keahole, 110 Hawai#i at

437, 134 P.3d at 603 (Del Rosario, Circuit Judge, concurring);

Bancorp, 513 U.S. at 29.

               B.   Private Attorney General Doctrine

          “[N]ormally, pursuant to the ‘American Rule,’ each

party is responsible for paying his or her litigation expenses.”

Superferry II, 120 Hawai#i at 218, 202 P.3d at 1263 (quotation

marks, brackets and citation omitted).         This general rule is

subject to several exceptions, including the private attorney

general doctrine.    Id.

          The private attorney general doctrine “is an equitable

rule that allows courts in their discretion to award [attorneys’]

fees to plaintiffs who have vindicated important public rights.”

Id. (quoting Maui Tomorrow v. State, 110 Hawai#i 234, 244, 131

P.3d 517, 527 (2006)).     Courts applying this doctrine consider

three basic factors: “(1) the strength or societal importance of

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the public policy vindicated by the litigation, (2) the necessity

for private enforcement and the magnitude of the resultant burden

on the plaintiff, (3) the number of people standing to benefit

from the decision.”     Superferry II, 120 Hawai#i at 218, 202 P.3d

at 1263.   All three prongs must be satisfied by the party seeking

attorneys’ fees.    See Waiahole II, 96 Hawai#i at 31, 25 P.3d at

806 (although the parties satisfied the first and third prongs,

failure to satisfy the second prong meant the private attorney

general doctrine did not apply).       Maui Tomorrow, 110 Hawai#i at

245, 131 P.3d at 528 (the private attorney general doctrine did

not apply because the plaintiffs’ case failed to satisfy the

second prong of the private attorney general doctrine).

           The circuit court in this case denied attorneys’ fees

to Homeowners, holding that Homeowners failed to satisfy the

first and third factors of the doctrine.         The ICA agreed with the

circuit court’s analysis and affirmed the court’s order denying

Homeowners’ motion for attorneys’ fees.         Goo, 2013 WL 5289010, at

*8-12.

           This court reviews circuit court awards of attorneys’

fees under the abuse of discretion standard.          Honolulu Const. &

Draying Co., Ltd. v. State, Dep't of Land & Natural Res. (Irwin

Park II), 130 Hawai#i 306, 313, 310 P.3d 301, 308 (2013).

However, “we review de novo whether the trial court disregarded

rules or principles of law that arise in deciding whether or not


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a party satisfies the three factors of the private attorney

general doctrine.”     Id.

            In Waiahole II, the court held that the third prong of

the private attorney general doctrine appeared to be met, as the

case “involved constitutional rights of profound significance,

and all of the citizens of the state, present and future, stood

to benefit from the decision.”       96 Hawai#i at 31, 25 P.3d at 806.

The court found the impact of the decision similar to cases in

other jurisdictions that applied the doctrine to award fees in

situations involving the public trust doctrine.          Id.

            In Superferry II, the third criterion was satisfied

because the underlying action resulted in “generally applicable

law that established procedural standing in environmental law and

clarified the need to address secondary impacts in environmental

review[.]”    120 Hawai#i at 221, 202 P.3d at 1266.        Thus, the

decision would “benefit large numbers of people over long periods

of time.”    Id.   The court in the underlying case had expressly

stated that “‘[a]ll parties involved and society as a whole’

would have benefitted had the public been allowed to participate

in the review process of the Superferry project, as was

envisioned by the legislature when it enacted the Hawai#i

Environmental Policy Act.”      Id. (quoting Sierra Club I, 115

Hawai#i at 343, 167 P.3d at 336)).




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           Similarly in Kaleikini v. Yoshioka, the third prong was

satisfied because the court’s opinion “established ‘generally

applicable law’ regarding standing to enforce historic

preservation laws” and ensure that such laws would be enforced as

written, “for the public good” and “in the public interest[.]”

129 Hawai#i 454, 466, 304 P.3d 252, 264 (2013).          The court in

Nelson v. Hawaiian Homes Commission also found the third prong

satisfied where the underlying decision allowed the Department of

Hawaiian Home Lands to shift funding from administrative expenses

to operating expenses, thereby “provid[ing] a benefit to the

Hawaiian Home Lands trust, impacting at least the tens of

thousands of known beneficiaries on the waiting list, and

ultimately benefitting the State as a whole, because stewardship

of Hawaiian Home Lands was an obligation taken on by the State as

a condition for admission into the union.”         130 Hawai#i 162, 167-

68, 307 P.3d 142, 147-48 (2013).

           In Irwin Park II, the court considered the application

of the third prong in “a situation where the public policy

involves a discrete property or historic site open to the general

public.”   130 Hawai#i at 317-18, 310 P.3d at 312-13.          The court

explained that the underlying decision, which denied a petition

to expunge a deed restriction requiring a historic site to be

preserved as a public park, resulted in “benefits [that] would

clearly accrue to residents and tourists who visit the Aloha


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Tower area through the continued preservation of Irwin Park.”

Id. at 318, 310 P.3d at 313.

           The court recognized that the case “involved a discrete

determination, rather than a direct challenge to a law or

policy.”   Id.   However, although the “litigation concerned a

specific property, . . . the result vindicated the dedication of

public parks and historic sites across the state.”           Id.   The

court noted that the litigation prevented the state agency from

“altering a historic site and acting in contravention” of

applicable laws and the original grantor’s intent in dedicating

the property to be used as a public park.         Id. at 318-19, 310

P.3d at 313-14.    Thus, the case had “general precedential value

for enforcing governmental adherence to the dedication of private

land for public parks and as historic sites, and for the

enforcement of the government’s commitments to the preservation

of such parks and historic sites.”        Id. at 319, 310 P.3d at 314.

           This case in contrast did not involve the enforcement

of a law of general state-wide applicability, did not benefit a

substantial number of people on a scale comparable to decisions

such as Superferry II or Waiahole II, and lacks general

precedential value.

           The circuit court’s order in this case established that

the MLPD as a whole was subject to the Height Restriction Law.

The circuit court enjoined the County from taking any action that

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would conflict with the court’s determination of the applicable

height restrictions, as applied to the MLPD.          Thus, the direct

impact of the court’s order was limited to the MLPD subdivisions.

           Even within the MLPD, as the circuit court recognized,

it was “very unclear” how many people would actually benefit from

the court’s ruling that the Height Restriction Law applied.             The

court’s ruling did not result in removing the improvements that

blocked Homeowners’ view, and did not benefit the other lot

owners within the MLPD who were prevented from building homes on

their property.

           Finally, this case involved private property and lacks

precedential value, given the subsequent enactment that modified

the Height Restriction Law by establishing that the pre-1991

height definition governed project districts that received phase

II approval prior to September 4, 1991.

           Accordingly, this case does not satisfy the third prong

of the private attorney general doctrine pertaining to the number

of people standing to benefit from the decision.           Because we find

that Homeowners’ failed to satisfy the third prong of the private

attorney general doctrine, we do not examine the first two

prongs.   Waiahole II, 96 Hawai#i at 31, 25 P.3d at 806; Maui

Tomorrow, 110 Hawai#i at 245, 131 P.3d at 528.          Thus, the ICA did

not err in finding that the circuit court did not abuse its

discretion in denying Homeowners’ request for attorneys’ fees.

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                             V.   Conclusion

          For the foregoing reasons, we vacate that portion of

the ICA’s judgment that vacated the circuit court’s judgments and

December 31, 2008 Order Granting Partial Summary Judgment.             The

case is remanded to the circuit court for further proceedings

consistent with this opinion.       We affirm that portion of the

ICA’s judgment that affirmed the circuit court’s denial of

Homeowners’ request for attorneys’ fees.

David J. Gierlach and                     /s/ Mark E. Recktenwald
Lance D. Collins
for petitioners                           /s/ Paula A. Nakayama

Patrick K. Wong,                          /s/ Simeon R. Acoba, Jr.
Caleb P. Rowe,
Brian T. Moto, and                        /s/ Sabrina S. McKenna
Jane E. Lovell (Madelyn S.
D’Enbeau on the briefs)                   /s/ Richard W. Pollack
for respondents Mayor Alan
Arakawa, Successor-in-
Interest to Mayor Charmaine
Tavares, William Spence,
Director of Planning, County
of Maui, Successor-in-
Interest to Director Jeff
Hunt, County of Maui

Ronald T. Ogomori,
Nathan H. Yoshimoto, and
T.F. Mana Moriarty
for respondents New Sand
Hills, LLC., VP and PK (ML),
LLC., KCOM Corp., and
Sandhills Estates Community
Association




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