Nelson v. University of Hawaii

• Decision Date: 23 September 2002
• Docket Number: No. 22236.,22236.
• Citation: 54 P.3d 433,99 Haw. 262
• Parties: Karyn NELSON, Plaintiff-Appellant, v. UNIVERSITY OF HAWAI`I, as body corporation; Bart Buxton, individually and in his official capacities as Athletic Training Education Director and Assistant Professor of the Health and Physical Education and Recreation Department, University of Hawai`i-Manoa; Kwok W. Ho, individually and in his official capacity as Chair of Health and Physical Education and Recreation Department, University of Hawai`i, Defendants-Appellees, and John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Unincorporated Organizations 1-10; and Doe Governmental Agencies 1-10, Defendants.
• Court: Hawaii Supreme Court

54 P.3d 433

99 Haw. 262

Karyn NELSON, Plaintiff-Appellant, v. UNIVERSITY OF HAWAI`I, as body corporation; Bart Buxton, individually and in his official capacities as Athletic Training Education Director and Assistant Professor of the Health and Physical Education and Recreation Department, University of Hawai`i-Manoa; Kwok W. Ho, individually and in his official capacity as Chair of Health and Physical Education and Recreation Department, University of Hawai`i, Defendants-Appellees, and John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Unincorporated Organizations 1-10; and Doe Governmental Agencies 1-10, Defendants.

No. 22236.

Supreme Court of Hawaii.

September 23, 2002.

As Amended on Denial of Reconsideration October 31, 2002.

R. Steven Geshell, on the motion, Honolulu, for plaintiff-appellant.

Kathleen N.A. Watanabe and Gary Hynds, Deputy Attorneys General, in opposition, for defendants-appellees.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

Opinion of the Court by MOON, C.J.

Following this court's opinion in Nelson v. University of Hawai`i, 97 Hawai`i 376, 38 P.3d 95 (2001), plaintiff-appellant Karyn Nelson filed a motion seeking: (1) $263.59 in costs, pursuant to Hawai`i Rules of Appellate Procedure (HRAP) Rule 39 (2000);<sup>1</sup> and (2) $16,761.60 in attorneys' fees for work on appeal, pursuant to HRAP Rule 53(b) (2001)<sup>2</sup> and Hawai`i Revised Statutes (HRS) § 378-5(c) (1993), see infra, a fee-shifting statute that mandates an award of reasonable fees for "any judgment awarded to" an employment discrimination plaintiff. Defendant-appellee University of Hawai`i (UH)³ opposes Nelson's motion for fees on the grounds that Nelson has not yet demonstrated that she is entitled to relief on the merits of any of her claims. For the reasons discussed herein, we agree with UH. We, therefore, hold that Nelson's motion be: (1) granted with respect to costs; and (2) denied with respect to fees, without prejudice to her ability to obtain reimbursement for fees should she obtain relief in the future, as discussed herein.

I. BACKGROUND

In 1996, Nelson, a former faculty member in the Department of Health, Physical Education, and Recreation at UH, filed suit against UH alleging, inter alia: disability discrimination, sex discrimination, and unlawful retaliation, in violation of HRS § 378-2; invasion of privacy; negligent infliction of emotional distress (NIED); and intentional infliction of emotional distress (IIED). See Nelson, 97 Hawai`i at 380-81,

38 P.3d at 99-100. Following a jury trial in which the jury returned a verdict in favor of Nelson on the NIED claim and in favor of UH on all other claims, the trial court granted UH's motion for judgment notwithstanding the verdict on the NIED claim and thereafter entered judgment on all claims in favor of UH. See id. at 384, 38 P.3d at 103. Nelson appealed, and this court vacated the trial court's judgment and remanded for a new trial on the employment discrimination, NIED, and IIED claims. See id. at 395, 38 P.3d at 114. The primary bases for this court's decision were that the trial court erred by: (1) refusing to permit certain rebuttal evidence offered by Nelson, see id. at 384-86, 38 P.3d at 103-05; (2) incorrectly instructing the jury on the elements of a sexual harassment claim, see id. at 386-92, 38 P.3d at 105-11; and (3) incorrectly ruling that Nelson's NIED claim was precluded by workers' compensation law, see id. at 392-95, 38 P.3d at 111-14. This court's opinion was filed on December 11, 2001, and the judgment on appeal was entered on January 30, 2002. Nelson timely filed her motion for fees and costs, UH timely filed a memorandum in opposition, and Nelson timely filed a reply.

II. DISCUSSION

A. Costs

UH does not dispute Nelson's request for costs pursuant to HRAP Rule 39, see supra note 1. The request includes photocopying and transcript preparation costs allowable under HRAP Rule 39 and are reasonable. Accordingly, we award Nelson $263.59 for costs attributable to this appeal.

B. Fees

Pursuant to HRS § 378-5(c), Nelson seeks fees for work performed by her attorney on her appeal. Relying on federal authority interpreting analogous federal law, UH contends that, because Nelson has not yet actually prevailed on the merits of any of her claims, she is not entitled to attorneys' fees. Nelson counters that the language of HRS § 378-5(c) differs from analogous federal statutes and that the language of HRS § 378-5(c) entitles her to receive fees for her attorney's appellate work because the appellate "judgment" was in her favor. Although Nelson is correct that the language of HRS § 378-5(c) differs from analogous federal law, we believe that, under established principles of statutory interpretation, the language of HRS § 378-5(c) nonetheless does not entitle her to fees at this time.

To begin, it is helpful to review this court's oft-stated principles of statutory construction.

When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.

In construing an ambiguous statute, "the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning." HRS § 1-15(1) (1993). . . .

Furthermore, the legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality. See also HRS § 1-15(3) (1993) ("Every construction which leads to an absurdity shall be rejected.").

Gray v. Administrative Director of the Court, 84 Hawai`i 138, 148, 931 P.2d 580, 590 (1997) (some brackets, ellipses, internal quotation marks, and citations omitted) (block quotation format omitted) (footnote omitted).

HRS § 378-5, entitled "Remedies[,]" states:

(a) The [Hawai`i Civil Rights Commission] may order appropriate affirmative action, including, but not limited to, hiring, reinstatement, or upgrading of employees, with or without backpay, restoration to membership in any respondent labor organization, or other remedies as provided under chapter 368, which in the judgment of the commission, will effectuate the purpose of this part [pertaining to discriminatory employment practices], including a requirement for reporting on the manner of compliance.

(b) In any civil action brought under this part, if the court finds that a respondent has engaged in or is engaging in any unlawful discriminatory practice as defined in this part, the court may enjoin the respondent from engaging in such unlawful discriminatory practice and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement, hiring, or upgrading of employees, with or without backpay, or restoration of membership in any respondent labor organization, or any other equitable relief the court deems appropriate. Backpay liability shall not accrue from a date more than two years prior to the filing of the complaint with the commission.

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

Subsection (c), the provision at issue here, requires the court to allow fees for "any action" brought under the employment discrimination provisions of HRS chapter 378. An "action" is generally defined as a "proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Leslie v. Estate of Tavares, 93 Hawai`i 1, 4, 994 P.2d 1047, 1050 (2000) (quoting Black's Law Dictionary 28 (6th ed.1990)) (internal quotation marks omitted). An appeal is not a new action, but rather, a continuation of an original action. See Leslie, 93 Hawai`i at 4,

994 P.2d at 1050. Moreover, the statute requires the allowance of fees for "any judgment" received during the action. Thus, attorneys' fees may be awarded for work on appeal in appropriate cases. Cf. S. Utsunomiya Enters., Inc. v. Moomuku Country Club, 76 Hawai`i 396, 398-99, 879 P.2d 501, 503-04 (1994) (language of HRS § 607-14 (1993) providing for payment of attorneys' fees involving actions in the nature of assumpsit in "all the courts" permits appellate court to award attorneys' fees incurred on appeal).

However, in this case, the judgment on appeal simply vacated the trial court's judgment in favor of UH and remanded the case for a new trial on the merits. Therefore, in order to determine if Nelson has been awarded a "judgment" within the meaning of HRS § 378-5(c), we must look to the statute in its entirety. In so doing, we note that, immediately preceding the sentence containing the phrase "in addition to any judgment awarded to the plaintiff" in subsection (c), is subsection (b), which, in particular, provides examples of relief that could constitute part of a "judgment" to a plaintiff. These include various forms of injunctive relief, such as reinstatement, hiring or upgrading of employees, and damages, such as backpay. All of these forms of relief are predicated on the trial court finding that the defendant "has engaged in or is engaging in any unlawful discriminatory practice as defined in this part[.]" Therefore, considering HRS § 378-5 as a whole, the phrase "judgment awarded to the plaintiff" refers generally to favorable relief or damages that follow as a result of a finding that the defendant...