Case Notes

• Publication year: 2017
• Citation: Vol. 21 No. 12

CASE NOTES

Supreme Court

Attorney's Fees

O'Grady v. State, No. SCAP-14-0001363, September 27, 2017, (Pollack, J.). After the Hawaii Supreme Court filed its opinion in O'Grady v. State, No. SCAP-14-0001363, 2017 WL 2464970 (Haw. June 7, 2017), 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 Haw. Rev. Stat. §§ 662-9 and 662-12 and Haw. R. App. P. Rule 39, against the State of Hawaii and the State of Hawaii Department of Transportation (DOT). The Hawaii Supreme Court granted Petitioners' request for costs but denied their request for attorney's fees. The Hawaii Supreme Court noted that the 1979 amendment and its accompanying committee reports reflected that the legislature intended to reverse the holding in Levy v. Kimball, 51 Haw. 540, 465 P.2d 580 (1970), that fees under Haw. Rev. Stat. § 662-12 would be awarded in addition to the judgment. Therefore, Haw. Rev. Stat. § 662-12 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. As to costs, Petitioners sought costs pursuant to Haw. Rev. Stat. § 662-9. Respondents challenged the source of authority that Petitioners identified, arguing that Haw. Rev. Stat. § 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 argued that because Petitioners did not cite any such law, costs should not be awarded. The Hawaii Supreme Court ruled that under Haw. R. App. P. Rule 39(b), costs must be "authorized by law." Haw. R. App. P. Rule 39(b) reiterates the general rule that costs cannot be awarded against the State of Hawaii unless there is a clear relinquishment of the State's sovereign immunity. Thus, there must be a law that clearly relinquishes the State's sovereign immunity from court costs and authorizes an award of such costs. The Hawaii Supreme Court previously established "that the State has waived immunity to suit . . . to the extent as specified in HRS chapter [] . . . 662." Nelson v. Hawaiian Homes Comm'n, 130 Hawaii 162, 169, 307 P.3d 142, 149 (quoting Taylor-Rice v. State, 105 Hawaii 104, 110, 94 P.3d 659, 665 (2004)). The plain language of Haw. Rev. Stat. § 662-9 specifically grants a court discretion to award "court costs . . . as set by law . . . to the prevailing...