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                                                     Electronically Filed
                                                     Intermediate Court of Appeals
                                                     CAAP-XX-XXXXXXX
                                                     29-JUN-2020
                                                     08:02 AM



                            NO. CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


                  TRICIA MORRIS, Plaintiff-Appellant,
                                   v.
                    THOMAS SEIDL, Defendant-Appellee

                           ____________________

                   BRUCE H. ERFER and LYNN N. ERFER,
                    Creditors-Intervenors-Appellees


         APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
                            WAILUKU DIVISION
                         (CIVIL NO. 16-1-1708)


                       SUMMARY DISPOSITION ORDER
      (By:    Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

             This appeal arises from an award of attorneys' fees and
costs in favor of Defendant-Appellee Thomas Seidl (Seidl) and
against Plaintiff-Appellant Tricia Morris (Morris) in this action
alleging unpaid rent and seeking summary possession. Morris
appeals from a "Judgment" entered on June 1, 2017, pursuant to,
inter alia, the "Findings of Facts, Conclusions of Laws, and
Order Granting Defendants' [sic] Motion for Attorneys' Fees and
Costs" (Fees and Costs Order) entered on May 8, 2017, by the
District Court of the Second Circuit (District Court).1                The
Judgment awarded $18,024.88 in attorneys' fees and $726.13 in
costs to Seidl from Morris.

     1
         The Honorable Adrianne N. Heely presided.
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          Morris contends on appeal that: (1) the District Court
erred in awarding attorneys' fees to Seidl under Hawaii Revised
Statutes (HRS) § 607-14.5 (2016) because the case was not decided
on the merits and her claims in this case were not frivolous or
made in bad faith; (2) the District Court erred in not limiting
its award of attorneys' fees to twenty-five percent of the
judgment under HRS § 607-14 (2016); and (3) the District Court
erred in applying HRS § 521-35 (2018) in its Fees and Costs Order
because the rental agreement did not contain a provision allowing
for an award of attorneys' fees.2
          Upon careful review of the record and briefs submitted
by the parties and having given due consideration to the
arguments and issues they raise, as well as the relevant legal
authority, we resolve Morris's points of error as follows, and we
affirm.
I.     The District Court did not err in awarding Seidl attorneys'
       fees and costs under HRS § 607-14.5
          Morris contends that the District Court erred in
awarding Seidl attorneys' fees and costs under HRS § 607-14.5
because the case was dismissed, not decided on the merits, and
her claims were not frivolous.
          The Fees and Costs Order was explicitly granted
pursuant to, inter alia, HRS § 607-14.5.3 HRS § 607-14.5
provides, in relevant part:
             (a) In any civil action in this State where a party seeks
             money damages or injunctive relief, or both, against another
             party, and the case is subsequently decided, the court may,
             as it deems just, assess against either party, whether or
             not the party was a prevailing party, and enter as part of
             its order, for which execution may issue, a reasonable sum
             for attorneys' fees and costs, in an amount to be determined
             by the court upon a specific finding that all or a portion


       2
         Morris does not provide argument as to some of her asserted points of
error, and therefore we only address those points that are argued. See
Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(7) ("Points not argued
may be deemed waived."). We further note that many of the factual statements
asserted in Morris's opening brief are not supported by record references, as
required by HRAP Rule 28(b)(3). Morris's counsel, Anthony Ranken, is
cautioned to provide appropriate record references in support of asserted
facts.
      3
         The Fees and Costs Order was granted pursuant to HRS §§ 607-14.5 and
607-9, and Hawai#i District Court Rules of Civil Procedure Rules 41 and 54(d).

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            of the party's claim or defense was frivolous as provided in
            subsection (b).
            (b) In determining the award of attorneys' fees and costs
            and the amounts to be awarded, the court must find in
            writing that all or a portion of the claims or defenses made
            by the party are frivolous and are not reasonably supported
            by the facts and the law in the civil action. . . .

(Emphases added).
          We first note that HRS § 607-14.5 does not require a
case to be decided on the merits, either by trial or by summary
judgment, before a court may award attorneys' fees as Morris
contends. The plain language of HRS § 607-14.5 only requires
that a case be "subsequently decided," and authorizes the award
of attorneys' fees "against either party, whether or not the
party was a prevailing party[.]" Here, the District Court
"decided" this case when it entered its "Order Granting Defendant
Thomas Seidl's Motion to Dismiss Amended Complaint" (Dismissal
Order) on March 3, 2017, which, inter alia, dismissed Morris's
claims in her Amended Complaint with prejudice. The fact that
the case did not proceed to trial or was not decided by way of
summary judgment did not preclude the District Court from
awarding attorneys' fees under HRS § 607-14.5.4
          We further conclude that the District Court did not
clearly err in finding that Morris's claims were frivolous and
made in bad faith.5
          "Pursuant to HRS § 607-14.5(a) and (b), to award
attorney's fees for a frivolous claim, the court must make a


      4
         Morris relies on Kukui Nuts of Hawaii, Inc. v. R. Baird & Co., Inc.,
6 Haw. App. 431, 726 P.2d 268 (1986), in support of her contention that a case
must be decided on its merits before a court may award attorneys' fees under
HRS § 607-14.5. However, Kukui Nuts of Hawaii, Inc. is distinguishable
because that case involved an appeal from judgments awarding attorneys' fees
that were entered prior to resolution of the claims in that case. Id. at 437
n.8, 726 P.2d at 272 n.8.
      5
         A trial court's conclusion as to whether a claim was made in bad
faith and thus frivolous under HRS § 607-14.5 presents mixed questions of fact
and law. Coll v. McCarthy, 72 Haw. 20, 28, 804 P.2d 881, 886 (1991). "Where
the court's conclusions are dependent upon the facts and circumstances of each
individual case, the clearly erroneous standard of review applies." Id.
(citations omitted). The appellate courts review a lower court's award of
attorneys' fees for abuse of discretion. In re Trust Agreement Dated June 6,
1974, 145 Hawai#i 300, 309, 452 P.3d 297, 306 (2019).

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specific finding in writing that all or a portion of the claims
made by the party are frivolous and are not reasonably supported
by the facts and law in the civil action." Tagupa v. VIPDesk,
135 Hawai#i 468, 479, 353 P.3d 1010, 1021 (2015) (internal
quotation marks and ellipses omitted). "A frivolous claim is a
'claim so manifestly and palpably without merit, so as to
indicate bad faith on the pleader's part such that argument to
the court was not required.'" Id. (internal brackets omitted)
(quoting Coll, 72 Haw. at 29, 804 P.2d at 887). "A finding of
frivolousness is a high bar; it is not enough that a claim be
without merit, there must be a showing of bad faith." Id.
(citing Canalez v. Bob's Appliance Serv. Ctr., Inc., 89 Hawai#i
292, 300, 972 P.2d 295, 303 (1999)).
          In its Fees and Costs Order, the District Court made a
number of findings of facts (FOF) and conclusions of law (COL)
pertaining to its award to Seidl, including the following:
          40.   On the date of the filing of [Morris's] complaint and
                amended complaint, Defendant Seidl was a month to
                month tenant, pursuant to H.R.S. §521-22, and was
                required to receive a 45 day notice.

          41.   [Morris], had no right or basis for seeking summary
                possession, her claim that she was entitled to
                September and October rent from Mr. Siedl [sic], as
                well as her claim that she was entitled to possession
                pursuant to a 45 day notice, which was never given to
                Tenant, until after the filing of the Amended
                complaint, was frivolous, made in bad faith, without
                merit, and arguably to circumvent the July 26, 2016
                Garnishee Summons Order to the Tenants of 598 Kumulani
                Drive, which was served upon Mr. Seidl prior to
                [Morris] filing the instant suit.
          42.   This court finds that the 25 percent cap is not
                applicable, not only because the claims by Ms. Morris
                were made in bad faith, and initially in the nature of
                assumpsit, rent claims, and amended to monetary and
                non-monetary/possession claims which were subsequently
                ordered to be withdrawn by the Receiver, not only
                confusing to Mr. Seidl, but prejudiced him into
                defending a suit, and incurring actual legal fees and
                costs.

          43.   [Morris's] claims, including the amended complaint,
                are manifestly and palpably without merit, so as to
                indicate bad faith.

(Emphases added) (citation, internal quotation mark, and
footnotes omitted).

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          Morris contends the District Court erred in finding and
concluding that her claims in this case were frivolous and made
in bad faith as contemplated under HRS § 607-14.5. We conclude
that the District Court made sufficient findings in writing,
which are supported by the record in this case, to support the
award for attorneys' fees and costs to Seidl under HRS § 607-
14.5.
          Morris's complaint, filed on September 16, 2016,
alleged that there was an expired written rental agreement for
the subject property which was broken by Seidl due to his failure
to pay rent as of September 5, 2016, that Seidl owed $2,050, and
that Seidl was served with a written 5-day notice of non-payment
on September 8, 2016.6 The complaint also indicates that Seidl
was a month-to-month tenant.
          On September 30, 2016, Bruce H. Erfer and Lynn N. Erfer
(the Erfers) moved to intervene in this case. In their motion,
the Erfers asserted an interest in the rental income of the
subject property pursuant to a judgment entered on March 20,
2014, in a separate unrelated action (Erfer Lawsuit) in the
Circuit Court of the Second Circuit (Circuit Court).7 Attached
to the Erfers' motion to intervene is a "Garnishee Summons and
Order" (Garnishee Summons Order) in the Erfer Lawsuit dated July
26, 2016, which the record reflects was served on Seidl on
September 9, 2016. Thus, the record shows that Seidl was served
with the Garnishee Summons Order in the Erfer Lawsuit seven days
before Morris filed the Complaint in this case on September 16,
2016. The Garnishee Summons Order directs the garnishees,
designated as tenants of the subject property, to disclose to the
Circuit Court whether Morris was in receipt of, inter alia, their
rental income, and further ordered the garnishees to hold and
secure any money from the time of service of the Garnishee

      6
         The complaint alleges that the written rental agreement was broken
because of unpaid rent in the amount of "$1875 + $75 GET" and a late fee in
the amount of $100.
      7
         The Honorable Peter T. Cahill presided over the Circuit Court
proceedings.

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Summons Order until further ordered by the court. At the October
3, 2016 return hearing in this case, the Erfers asserted that
Morris had a "modus operandi of getting people that we garnish
out of the property and replace them with people that have not
been served [with the Garnishee Summons Order] yet."
          In its Fees and Costs Order, the District Court
concluded that Morris's claims were made "arguably to circumvent
the July 26, 2016 Garnishee Summons Order to the Tenants of 598
Kumulani Drive, which was served upon Mr. Seidl prior to [Morris]
filing the instant suit." (Footnote omitted). The record
confirms that Seidl was served with the Garnishee Summons Order
prior to Morris filing her complaint. Further, in her opening
brief, Morris acknowledges that Seidl informed her that he was
served with the Garnishee Summons Order before she filed her
Complaint in this case. The record in this case, including that
Morris initiated this action against Seidl on the basis of his
failure to pay rent despite already knowing that Seidl was
precluded from paying her rent under the Garnishee Summons Order,
supports the District Court's finding that Morris's claims were
without merit and made in bad faith. Cf. Coll, 72 Haw. at 30,
804 P.2d at 888 (holding that Plaintiff's knowledge at the time
of the filing of his complaint that his allegation in his
complaint was false is a clear indication of bad faith).
          Morris filed an Amended Complaint on October 3, 2016,
in which she alleged that as of October 3, 2016, Seidl owed her
$4,000 for rent unpaid in September and October. The District
Court found, and the record supports the finding, that the
Amended Complaint likewise had no merit and was brought in bad
faith. In this regard, notwithstanding that the Garnishee
Summons Order had been served on Seidl in September, the Amended
Complaint continued to assert that Seidl owed rent to Morris for
both September and October. The Amended Complaint further states
written notice was given to Seidl on September 8, 2016 and June
15, 2016, "to correct this situation as follows: . . . 45-day
termination of month-to-month tenancy[.]" However, the District


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Court specifically found, and Morris does not challenge the
finding, that a 45 day notice was not given to Seidl until after
the filing of the Amended Complaint.
          Based on the foregoing, the District Court did not
clearly err in its findings, including that Morris's claims were
"manifestly and palpably without merit, so as to indicate bad
faith." Thus, the District Court did not err in awarding Seidl
attorneys' fees and costs under HRS § 607-14.5.
II.  Morris's remaining points of error
          In light of our holding that the District Court did not
err in awarding Seidl attorneys' fees and costs under HRS § 607-
14.5, we need not reach Morris's other points of error asserting
that attorneys' fees were not appropriate under HRS §§ 607-14 and
521-35.
III. Conclusion
          Based on the foregoing, the Judgment entered on June 1,
2017, and the "Findings of Facts, Conclusions of Laws, and Order
Granting Defendants' Motion for Attorneys' Fees and Costs,"
entered on May 8, 2017, by the District Court of the Second
Circuit, are affirmed.
          DATED: Honolulu, Hawai#i, June 29, 2020.


On the briefs:                        /s/ Lisa M. Ginoza
                                      Chief Judge
Anthony L. Ranken,
for Plaintiff-Appellant.              /s/ Katherine G. Leonard
                                      Associate Judge
Calvert G. Chipchase,
Amanda M. Jones,                      /s/ Clyde J. Wadsworth
Kirk M. Neste,                        Associate Judge
for Defendant-Appellee.




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