Curtis v. Hawaiian Mission Academy

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-DEC-2025
08:54 AM
Dkt. 116 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

KALLIE L. CURTIS; DANIEL J. CURTIS;
NUBIA LIZETH CURTIS, Plaintiffs-Appellants,
v.
HAWAIIAN MISSION ACADEMY, domestic non-profit organization;
HAWAII CONFERENCE OF SEVENTH-DAY ADVENTISTS,
domestic non-profit organization;
RALPH S. WATTS, III; ERIK VANDENBURGH; JAY WARREN;
RHONDA ("MIKI") L. NELSON; JEAN-MARCEL CLOUZET; TAMMY CLOUZET;
JOE LEE, Defendants-Appellees,
and
DOE PERSONS 1-10; DOE PARTNERSHIPS 1-10;
ROE "NON-PROFIT" CORPORATIONS 1-10;
DOE UNINCORPORATED ORGANIZATIONS 1-10;
ROE GOVERNMENTAL ENTITIES 1-10, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, McCullen and Guidry, JJ.)

Plaintiffs-Appellants Kallie L. Curtis, Daniel J.

Curtis (Kallie's Father), and Nubia Lizeth Curtis (Kallie's

Mother) (collectively, the Curtis Family) appeal from the

Circuit Court of the First Circuit's May 30, 2023 Final
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Judgment. 1 On appeal, the Curtis Family challenges the circuit

court's denial of spoliation sanctions, grant of summary

judgment, and award of attorneys' fees. We affirm.

I. BACKGROUND

The underlying facts of this case are largely

undisputed. Jean-Marcel Clouzet (Mr. Clouzet) taught Bible

Studies at Hawaiian Mission Academy, a parochial school

affiliated with the Hawai‘i Conference of Seventh-Day Adventists

(the Conference). In February 2022, Mr. Clouzet invited his

wife (Mrs. Clouzet) to speak to the Bible Studies class about

marriage and relationships.

During the discussion, a student asked a question

related to white privilege. According to Kallie's deposition,

Mrs. Clouzet stated she herself benefited from white privilege

and pointed Kallie out, saying she had it too. Kallie

identifies as non-white/Hispanic.

The next day, Kallie's Father emailed the principal of

Hawaiian Mission Academy, Joe Lee (Principal Lee), expressing

that he found the incident "to be beyond offensive." He

reminded Principal Lee they were assured "that those type of

race views had no place at" Hawaiian Mission Academy. Kallie's

Father stated that "nothing short of [Mr. Clouzet's] near

1 The Honorable Gary W.B. Chang presided. We note that Kallie was
eighteen years old at the time of the incident.

2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

immediate resignation or termination from [Hawaiian Mission

Academy] would be a satisfactory resolution."

By February 17, 2022, eight days after the incident,

Mr. Clouzet had been fired. His personnel folder, which was

allegedly empty, was later destroyed by Principal Lee. The

Curtis Family brought a civil action seeking in excess of

$5,778,000.00 in damages arising from the incident.

Defendants-Appellees the Conference; Hawaiian Mission

Academy; Ralph S. Watts, III, former president of the Conference

(former President Watts); Erik Vandenburgh, the Conference

president that succeeded former President Watts (President

Vandenburgh); Jay Warren, deputy to the Conference president

(Deputy Warren); Rhonda "Miki" L. Nelson, the Conference

Superintendent of Education (Superintendent Nelson); Principal

Lee; and Mr. and Mrs. Clouzet (collectively, Defendants) moved

to dismiss all claims.

The circuit court dismissed Kallie's Mother's and

Father's claims against Mr. and Mrs. Clouzet but denied without

prejudice dismissal of all other claims against Defendants to

allow the Curtis Family to conduct discovery. 2 Following the

2 The Curtis Family did not appeal the dismissal of Kallie's Mother's
and Father's claims against Mr. and Mrs. Clouzet, nor did they challenge the
circuit court's grant of summary judgment on Counts V (Breach of Contract),
VII (Civil Conspiracy), or VIII (Loss of Consortium).

(continued . . . )

3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

close of discovery, Defendants moved seriatim to dismiss each

count, which the circuit court granted. On May 30, 2023, the

circuit court entered Final Judgment against the Curtis Family

and in favor of Defendants. The Curtis Family appeals from the

Final Judgment.

II. DISCUSSION

On appeal, the Curtis Family challenges (1) the denial

of spoliation sanctions; (2) the granting of summary judgment as

to Counts I (Negligence), II (Negligent Supervision),

III (Negligent Infliction of Emotional Distress (NIED)),

IV (Intentional Infliction of Emotional Distress (IIED)), and

VI (Defamation); and (3) the award of attorneys' fees. We

affirm.

A. No Abuse in Denying Spoliation Sanctions

First, the Curtis Family contends the circuit court

"abused its discretion by not sanctioning [Defendants] and/or by

not providing a remedy . . . in the form of a spoliation

presumption." (Formatting altered.) According to the Curtis

Family, the circuit court "should have issued a 'spoliation

presumption' that [Mr. Clouzet]'s 'empty' personnel file

(. . . continued)

The circuit court also dismissed all claims in Count I (Negligence)
that were premised on a theory of educational negligence, which is not
actionable under Hawai‘i law. See Nakamura v. Univ. of Hawai‘i, 145 Hawai‘i
295, 451 P.3d 875, No. CAAP-XX-XXXXXXX, 2019 WL 5849790, at *5 n.5
(App. Nov. 7, 2019) (mem. op.).

4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

contained evidence supportive of each count as they pertain to

[Mr. Clouzet] and his legal relationships with every other"

Defendant.

We review a circuit court's decision regarding

sanctions based on spoliation for an abuse of discretion.

Stender v. Vincent, 92 Hawai‘i 355, 362, 992 P.2d 50, 57 (2000).

In Richardson v. Sport Shinko (Waikiki Corp.), the

Hawai‘i Supreme Court explained its rationale for upholding

spoliation sanctions in an earlier case, Wong v. City & County

of Honolulu, 66 Haw. 389, 665 P.2d 157 (1983):

[K]ey to our holding in Wong was: (1) the City's
culpability in destroying a piece of potentially critical
evidence formally requested in discovery; (2) the resulting
prejudice to the plaintiffs' case; and (3) the inequity
that would occur in allowing the City to accrue a benefit
from its conduct.

Richardson, 76 Hawai‘i 494, 507, 880 P.2d 169, 182 (1994)

(emphasis added).

Here, the circuit court concluded that the Curtis

Family failed to carry their burden as to all three "elements"

under Richardson because nothing in the record suggested that

anything other than an empty folder was destroyed. As to the

first element, the circuit court concluded that the Curtis

Family failed to establish that the folder contained any

evidence, let alone "potentially critical evidence."

5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Indeed, the record does not show that "potentially

critical evidence" was destroyed. Principal Lee testified that

the folder he destroyed was empty. The Curtis Family did not

controvert that testimony. As the circuit court described, the

Curtis Family "had other discovery opportunities that they

refused or failed to pursue," such as deposing other school

employees working in the office with access to the records. The

circuit court also noted the Curtis Family could have questioned

Principal Lee "in greater detail during his deposition" but did

not.

Because the Curtis Family failed to prove this first

element, the circuit court did not abuse its discretion by

denying their requested spoliation relief.

B. No Error in Granting Summary Judgment

Next, the Curtis Family challenges the circuit court's

granting of summary judgment on Counts I (Negligence),

II (Negligent Supervision), III (NIED), IV (IIED), and

VI (Defamation).

We review the grant or denial of summary judgment de

novo. Hilo Bay Marina, LLC v. State, 156 Hawai‘i 478, 486,

575 P.3d 568, 576 (2025).

A defendant movant "may satisfy his or her initial

burden of production by either (1) presenting evidence negating

an element of the non-movant's claim, or (2) demonstrating that

6
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

the nonmovant will be unable to carry his or her burden of proof

at trial." Ralston v. Yim, 129 Hawai‘i 46, 60, 292 P.3d 1276,

1290 (2013). "Where the movant attempts to meet his or her

burden through the latter means, he or she must show not only

that the nonmovant has not placed proof in the record, but also

that the movant will be unable to offer proof at trial." Id. at

60-61, 292 P.3d at 1290-91 (emphasis omitted).

"Only when the moving party satisfies its initial

burden of production does the burden shift to the non-moving

party to respond to the motion for summary judgment and

demonstrate specific facts, as opposed to general allegations,

that present a genuine issue worthy of trial." French v. Hawaii

Pizza Hut, Inc., 105 Hawai‘i 462, 470, 99 P.3d 1046, 1054 (2004)

(emphasis omitted).

1. Count I (Negligence)

As to Count I, the Curtis Family contends there was a

genuine issue of material fact as to whether Mr. Clouzet,

Mrs. Clouzet, or Principal Lee "breached their admitted duty of

care to Kallie." (Emphasis omitted.) The Curtis Family relies

on the following: Mrs. Clouzet "was an unauthorized guest

speaker, that Principal Lee was unaware that she was in

[Mr. Clouzet's] classroom, that [Mr. and Mrs. Clouzet] singled

out Kallie based on the color of her skin, and that

[Mr. Clouzet], per his own confession, 'was not paying

7
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

attention' to what [Mrs. Clouzet] was saying." (Emphasis

omitted.)

We note that the Curtis Family makes no argument

regarding any of the Defendants apart from Mr. and Mrs. Clouzet. 3

See Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(7)

("Points not argued may be deemed waived."). We further note

that the circuit court dismissed Kallie's Mother's and Father's

claims against Mr. and Mrs. Clouzet. Thus, we address Kallie's

claim against Mr. and Mrs. Clouzet.

A successful negligence claim requires proving

(1) duty, (2) breach, (3) causation, and (4) damages. Doe

Parents No. 1 v. State, Dep't of Educ. (Doe Parents), 100 Hawai‘i

34, 68, 58 P.3d 545, 579 (2002). Our appellate caselaw has

sustained negligent failure to protect claims against businesses

and hotels involving foreseeable criminal acts causing injury to

a patron or an employee. E.g., Knodle v. Waikiki Gateway Hotel,

Inc., 69 Haw. 376, 742 P.2d 377 (1987); Maguire v. Hilton Hotels

Corp., 79 Hawai‘i 110, 899 P.2d 393 (1995); Moyle v. Y & Y Hyup

Shin, Corp., 118 Hawai‘i 385, 191 P.3d 1062 (2008). Similarly,

3 The Curtis Family expressly asserted all eight counts against all
Defendants. To the extent the Curtis Family challenges Final Judgment in
favor of Hawaiian Mission Academy, the Conference, former President Watts,
President Vandenburgh, Deputy Warren, or Superintendent Nelson on any of the
Counts, we conclude that the circuit court did not err because the Curtis
Family failed to adduce material evidence to support their claims, as
discussed infra Section II.C.2.

8
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

our appellate courts have sustained negligent failure to protect

claims against state agencies where they have failed to protect

children under their care from sexual assault or physical abuse.

E.g., Doe Parents, 100 Hawai‘i at 86, 58 P.3d at 597;

Kahoʻohanohano v. Dep't of Hum. Servs., 117 Hawai‘i 262, 178 P.3d

538 (2008).

In moving for summary judgment, Defendants asserted

the Curtis Family could not prove Mr. and Mrs. Clouzet breached

their duty to care for Kallie. Defendants argued that Kallie's

own testimony showed Mr. Clouzet did not verbally berate,

assault, or harass Kallie. Defendants also argued that

Mrs. Clouzet's comments were not intended to be malicious, and

the topic of white privilege came from a student question.

Defendants cited persuasive authority that such

statements, without more, are not actionable under a negligent

failure to protect claim in an educational setting. See

generally Walsh v. Tehachapi Unified Sch. Dist., 827 F. Supp. 2d

1107, 1115, 1124-25 (E.D. Cal. 2011) (dismissing for failure to

state a claim for negligent failure to protect in a case arising

from a student's suicide where a teacher allegedly called the

student "fruity" in front of a classroom of students).

9
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

In sum, Defendants demonstrated that the Curtis Family

could not sustain their burden of showing Mr. and Mrs. Clouzet

breached a duty to care for Kallie. The burden then shifted to

the Curtis Family to provide specific facts showing Mr. and

Mrs. Clouzet breached their duty of care. The Curtis Family did

not.

And we could find no controlling authority suggesting

that isolated statements by a guest speaker in an educational

setting, offensive though they may be, constitute a breach of

duty to care for a student.

2. Count II (Negligent Supervision)

As to Count II, the Curtis Family argues that it was

for the trier of fact to determine "whether [Mr. Clouzet] was

acting 'outside' or 'within' the scope of his employment on

February 9, 2022." And, "whether [Mr. Clouzet] was acting

within or without the scope of his employment must be informed

by the evidence that: (1) [Mrs. Clouzet] is not an employee of

[Hawaiian Mission Academy] or [the Conference];

(2) [Mr. Clouzet] was not authorized to bring [Mrs. Clouzet] to

speak; and (3) Principal Lee was unaware of 'what's going on on

campus'."

As discussed above, the Curtis Family failed to

present specific facts showing Mr. and Mrs. Clouzet breached

their duty of care to Kallie. It thus follows that Mr. Clouzet,

10
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

as Mrs. Clouzet's supervisor, and Principal Lee, as

Mr. Clouzet's supervisor, would not be liable for Mrs. Clouzet's

statements. See Pulawa v. GTE Hawaiian Tel, 112 Hawai‘i 3, 18,

143 P.3d 1205, 1220 (2006).

Moreover, "negligent supervision may only be found

where an employee is acting outside the scope of his or her

employment." Id. (quoting Dairy Rd. Partners v. Island Ins.

Co., 92 Hawai‘i 398, 427, 992 P.2d 93, 122 (2000)). The Hawai‘i

Supreme Court adopted the approach of the Restatement (Second)

of Agency to determine whether a servant acts within the scope

of employment:

In Henderson, we cited the Restatement (Second) of Agency
§ 228 (1958) for the definition of "scope of employment":

(1) Conduct of a servant is within the scope of
employment if, but only if:

(a) it is of the kind he is employed to
perform;

(b) it occurs substantially within the
authorized time and space limits; [and]

(c) it is actuated, at least in part, by a
purpose to serve the master[.]

. . . .

(2) Conduct of a servant is not within the scope of
employment if it is different in kind from that
authorized, far beyond the authorized time or
space limits, or too little actuated by a
purpose to serve the master.

Wong-Leong v. Hawaiian Indep. Refinery, Inc., 76 Hawai‘i 433,

438, 879 P.2d 538, 543 (1994) (alterations in original).

11
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

At summary judgment, Defendants argued that the Curtis

Family was estopped from arguing that Mr. and Mrs. Clouzet were

acting outside the scope of their employment because the First

Amended Complaint alleged that Defendants were "at all relevant

times . . . acting within the course and scope of their duties

as employees." 4 Defendants are correct; the Curtis Family made

no claim that Mr. Clouzet acted outside the scope of his

employment.

Nonetheless, we note that nothing in the record

suggested Mr. Clouzet acted outside the scope of his employment.

He was a pastor at the Seventh-Day Adventist Church in Wahiawā

and a Bible Studies teacher at Hawaiian Mission Academy since

2019. He was teaching a class he was required (incidentally,

also as a volunteer) to teach in the classroom he was assigned

during the normal class time. See id.

The Curtis Family presented no specific facts showing

Mr. Clouzet was prohibited from engaging a guest speaker, or

that Mr. Clouzet's actions were "far beyond the authorized time

or space limits, or too little actuated by a purpose to serve

the master." See id.

4 The Curtis Family requested that this court strike Defendants'
reproduction of the relevant portion of the First Amended Complaint from
Defendants' Answering Brief. Because the First Amended Complaint is in the
record, the request is denied.

12
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Based on the foregoing, the circuit court did not err

in granting summary judgment in favor of Defendants on Count II.

3. Count III (NIED)

As to Count III, the Curtis Family argues the circuit

court erred in not finding Kallie's cutting was a sufficient

physical injury to survive summary judgment.

The Hawai‘i Supreme Court explained in Doe Parents that

"an NIED claim is nothing more than a negligence claim in which

the alleged actual injury is wholly psychic and is analyzed

'utilizing ordinary negligence principles.'" 100 Hawai‘i at 69,

58 P.3d at 580 (quoting Larsen v. Pacesetter Sys., Inc.,

74 Haw. 1, 41, 837 P.2d 1273, 1293, reconsideration granted in

part and denied in part, 74 Haw. 650, 843 P.2d 144 (1992)).

Thus, the Doe Parents court explained that the ordinary elements

of a negligence claim apply. Id. at 71, 58 P.3d at 582.

Although the Curtis Family focuses on the injury

element, their NIED claim fails for the same reason their

negligence claim fails: the Curtis Family failed to

"demonstrate specific facts, as opposed to general allegations,

that present a genuine issue worthy of trial" on the breach

element of their negligence claims. See French, 105 Hawai‘i at

470, 99 P.3d at 1054 (emphasis omitted).

13
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Thus, even when viewing the evidence in the light most

favorable to the Curtis Family, we cannot conclude the circuit

court erred by granting summary judgment in favor of Defendants

on Count III.

4. Count IV (IIED)

As to Count IV, the Curtis Family argues the circuit

court erred in determining that Mrs. Clouzet's statement that

Kallie benefited from white privilege was not outrageous and

that, given Kallie's young age, Mrs. Clouzet's position of power

as a guest speaker, the public nature and classroom setting of

her statement, as well as its racial quality, the issue should

have been put to a jury.

A successful IIED claim requires proof that the

conduct (1) was intentional or reckless, (2) was outrageous, and

(3) caused (4) "extreme emotional distress to another." Goran

Pleho, LLC v. Lacy, 144 Hawai‘i 224, 237, 439 P.3d 176, 189

(2019).

"The term 'outrageous' has been construed to mean

without just cause or excuse and beyond all bounds of decency."

Id. (quoting Enoka v. AIG Hawai‘i Ins. Co., 109 Hawai‘i 537, 559,

128 P.3d 850, 872 (2006)). The Hawai‘i Supreme Court has further

explained that "[t]here is 'no clear definition of the

prohibited outrageous conduct,' and the correct inquiry is

simply whether 'an average member of the community' would

14
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

exclaim, 'Outrageous!'" Id. at 238, 439 P.3d at 190 (quoting

Young v. Allstate Ins. Co., 119 Hawai‘i 403, 425, 198 P.3d 666,

688 (2008)).

Courts have held that, "although '[r]acial

discrimination can amount to extreme or outrageous conduct,'

Park v. Hyatt Corp., 436 F. Supp. 2d 60, 65 (D.D.C. 2006), that

is typically only the case where there is a 'pattern of

harassment,' as opposed to 'a few isolated incidents,' Paul v.

Howard Univ., 754 A.2d 297, 308 (D.C. 2000)." Bonner v. S-Fer

Int'l, Inc., 207 F. Supp. 3d 19, 25 (D.D.C. 2016); accord Silva

v. Town of Uxbridge, 771 F. Supp. 3d 56, 75 (D. Mass. 2025)

("[P]assive conduct and isolated remarks do not form the basis

for an IIED claim."). Additionally, "[t]he question whether the

actions of the alleged tortfeasor are unreasonable or outrageous

is for the court in the first instance, although where

reasonable people may differ on that question it should be left

to the jury." Goran Pleho, 144 Hawai‘i at 237, 439 P.3d at 189

(emphasis added) (quoting Young, 119 Hawai‘i at 429, 198 P.3d at

692).

At summary judgment, Defendants, citing commentary to

the Restatement (Second) of Torts § 46, argued there was "no

evidence that any of the Defendants engaged in any outrageous

acts," and "liability clearly does not extend to mere insults

[or] indignities."

15
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Stating Kallie benefited from white privilege was not

outrageous. The burden then shifted to the Curtis Family to

provide specific facts showing Defendants engaged in outrageous

conduct. The Curtis Family did not.

Thus, even when viewing the evidence in the light most

favorable to the Curtis Family, we cannot conclude the circuit

court erred in exercising its gatekeeper role, consistent with

our caselaw, by granting summary judgment in favor of Defendants

on Count IV.

5. Count VI (Defamation)

As to Count VI, the Curtis Family argues the circuit

court erred in granting summary judgment "because telling a

class full of 'non-white looking' teenagers that the one 'white

looking' girl has a privilege over the rest of them could very

well create resentment against the poor girl, thereby 'harming

her reputation' and 'lowering her in the estimation' of her

classmates." (Emphasis omitted.)

Although the Curtis Family claimed the white privilege

statement was defamatory in their First Amended Complaint, they

abandoned that claim during the April 25, 2023 hearing on

Defendants' summary judgment motion as to Count VI. During the

hearing, counsel for the Curtis Family stated:

16
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

• "[H]ow both Court and the counsel are setting

each other up for this straw man's argument as if

that we are claiming that the white privilege was

the defamatory comment. We didn't."

• "I specifically said it's the comment where

[Mr. Clouzet] called Kallie white is defamatory."

• "Why are we engaging in straw man arguments, oh,

counsel, do you think white privilege is

defamatory? Oh, I don't think so, Judge. We

never claimed that."

• "[W]hy are we focusing on white privilege?"

• "We never said anything about white privilege.

That was regarding other issues. Here defamatory

comment -- I'm going to make the record clear and

then you can go ahead and decide whatever you're

going to decide. Our defamatory comments are

based on the fact that [Mr. Clouzet] specifically

said she's white when she wasn't . . . and, two,

that he lied about their church attendance.

That's it." 5

5 The Curtis Family makes no argument on appeal that the statement that
Kallie was "white" or Mr. Clouzet's statements regarding the Curtis Family's
church attendance were defamatory and therefore waive any such argument. See
HRAP Rule 28(b)(7).

17
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Based on the Curtis Family's arguments during the

hearing, they waived any claim that the white privilege

statement was defamatory. Thus, we decline to address their

contention as to this issue on appeal.

C. No Abuse in Awarding Attorneys' Fees

Finally, the Curtis Family challenges the circuit

court's award of attorneys' fees under Hawai‘i Revised Statutes

(HRS) §§ 607-14 (2016) (Assumpsit) and -14.5 (2016)

(Frivolousness). 6

"The trial court's grant or denial of attorney's fees

and costs is reviewed under the abuse of discretion standard."

Maunalua Bay Beach Ohana 28 v. State, 157 Hawai‘i 150, 156,

575 P.3d 783, 789 (2025) (quoting Sierra Club v. Dep't of

Transp. (Superferry II), 120 Hawai‘i 181, 197, 202 P.3d 1226,

1242 (2009)).

1. HRS § 607-14 (Assumpsit)

The Curtis Family argues that the circuit court erred

in awarding attorneys' fees incurred while litigating Count V

under HRS § 607-14 because the circuit court determined that the

claim did not sound in contract but instead in tort. Defendants

counter that the nature and character of Count V as plead

6 Although the Curtis Family challenges the award of costs in their
points of error, they make no argument on this issue. Thus, we deem any
challenge to costs waived. See HRAP Rule 28(b)(7).

18
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

required them to defend the claim as though it was in the nature

of assumpsit.

HRS § 607-14 authorizes the award of reasonable

attorneys' fees against the losing party "in three types of

cases: (1) all actions in the nature of assumpsit; (2) all

actions on a promissory note; and (3) contracts in writing that

provides [sic] for an attorney's fee." Eastman v. McGowan,

86 Hawai‘i 21, 31, 946 P.2d 1317, 1327 (1997). The Hawai‘i

Supreme Court provided guidance for determining when a claim is

"in the nature of assumpsit" under HRS § 607-14:

In ascertaining the nature of the proceeding on appeal,
this court has looked to the essential character of the
underlying action in the trial court. The character of the
action should be determined from the facts and issues
raised in the complaint, the nature of the entire
grievance, and the relief sought. Where there is doubt as
to whether an action is in assumpsit or in tort, there is a
presumption that the suit is in assumpsit.

Blair v. Ing, 96 Hawai‘i 327, 332, 31 P.3d 184, 189 (2001)

(citation modified).

Here, the Curtis Family raised eight counts in their

First Amended Complaint. Of those eight counts, Count V

expressly claimed breach of contract. The Curtis Family stated

they paid about $14,000.00 for Kallie's tuition, and that

tuition served as a contract "for the specific educational

services and religion instruction."

In defending against Count V, Defendants asserted that

there was no contract, and Count V is "nothing more than a

19
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

restated negligent education claim." In the alternative,

Defendants argued that even if a contract existed, they did not

breach that contract.

The circuit court granted summary judgment in

Defendants' favor. Thus, the Curtis Family lost on Count V, and

they did not appeal the circuit court's decision on Count V.

Defendants sought $446,716.17 in fees, inclusive of

general excise tax. The circuit court concluded that "a fair

and reasonable way to apportion Defendants' attorneys' fees is

to pro rate the attorneys' fees equally among all of the eight

claims." The circuit court found that one-eighth of the fees

requested was $55,839.52. 7 See id. ("[I]n awarding attorneys'

fees in a case involving both assumpsit and non-assumpsit

claims, a court must base its award of fees, if practicable, on

an apportionment of the fees claimed between assumpsit and non-

assumpsit claims.").

In sum, as pled, Count V was in the nature of

assumpsit. That Defendants successfully defended the claim on

the basis that there was no contract and the Curtis Family was

merely repackaging a tort claim does not render a request for

attorneys' fees under HRS § 607-14 invalid.

7 $446,716.17 ÷ 8 = $55,839.52.

20
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Thus, the circuit court did not abuse its discretion

in awarding attorneys' fees in favor of Defendants on Count V.

2. HRS § 607-14.5 (Frivolousness)

The Curtis Family also argues that the circuit court

abused its discretion in awarding attorneys' fees under HRS

§ 607-14.5 8 as frivolous because the circuit court's findings of

frivolousness were insufficient to support its award of

attorneys' fees.

8 HRS § 607-14.5, "Attorneys' fees and costs in civil actions,"
provides:

(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 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. In
determining whether claims or defenses are frivolous, the
court may consider whether the party alleging that the
claims or defenses are frivolous had submitted to the party
asserting the claims or defenses a request for their
withdrawal as provided in subsection (c). If the court
determines that only a portion of the claims or defenses
made by the party are frivolous, the court shall determine
a reasonable sum for attorneys' fees and costs in relation
to the frivolous claims or defenses.

(c) A party alleging that claims or defenses are
frivolous may submit to the party asserting the claims or
defenses a request for withdrawal of the frivolous claims
or defenses, in writing, identifying those claims or
defenses and the reasons they are believed to be frivolous.

(continued . . .)

21
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

The award of fees under HRS § 607-14.5 "is conditioned

upon a finding that the claim or appeal is frivolous."

Morrison-Knudsen Co. v. Makahuena Corp., 66 Haw. 663, 672 n.5,

675 P.2d 760, 767 n.5 (1983).

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. 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.

Tagupa v. VIPDesk, 135 Hawai‘i 468, 479, 353 P.3d 1010, 1021

(2015) (citation modified).

Here, the circuit court made specific written findings

that the Curtis Family's claims in their First Amended Complaint

against President Vandenburgh, former President Watts, Deputy

Warren, and Superintendent Nelson were without support in the

record:

• President Vandenburgh was not president at the time

of the incident.

• Deputy Warren did not supervise Hawaiian Mission

Academy teachers.

(. . . continued)

If the party withdraws the frivolous claims or defenses
within a reasonable length of time, the court shall not
award attorneys' fees and costs based on those claims or
defenses under this section.

(Emphases added.)

22
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

• There was no evidence presented linking former

President Watts to the incident.

• There was no evidence presented linking

Superintendent Nelson to the incident.

Further, the circuit court found that Defendants

requested withdrawal of the allegedly frivolous claims in

writing under HRS § 607-14.5(c), but the Curtis Family

maintained claims against these four individuals nonetheless.

Contrary to the Curtis Family's argument on appeal, these

findings were sufficient to support the circuit court's

determination of frivolousness.

The circuit court then found that "a fair

apportionment or weighting of the total attorneys' fees that are

attributable to the defense of the aforementioned 4 of the 9

individual Defendants is 10% of the total attorneys' fees that

were incurred, or $44,671.62." 9 The circuit court awarded

$44,671.62 in attorneys' fees for having "to defend the

frivolous claims against the said 4 of the 9 defendants." The

Curtis Family makes no assertion that apportioning ten percent

of the requested attorneys' fees was an abuse of the court's

discretion.

9 $446,716.17 ÷ 10 = $44,671.62.

23
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Thus, the circuit court did not abuse its discretion

in awarding attorneys' fees in favor of Defendants under HRS

§ 607-14.5.

III. CONCLUSION

Based on the foregoing, we affirm the circuit court's

May 30, 2023 Final Judgment.

DATED: Honolulu, Hawaiʻi, December 19, 2025.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Robert G. Klein,
Kurt W. Klein, /s/ Sonja M.P. McCullen
David A. Robyak, Associate Judge
James M. Yuda,
(Klein Law Group) /s/ Kimberly T. Guidry
for Plaintiffs-Appellants. Associate Judge

Mark G. Valencia,
James W. Rooney,
(Case Lombardi)
for Defendants-Appellees.

24