FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-JUN-2026
03:44 PM
Dkt. 66 OP
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
---o0o---RCA TRADE CENTER, INC., a Hawaii corporation; and
MP UNIT 21, LLC, a Texas limited liability company,
Plaintiffs-Appellants,
v.
WAYNE MASAO MUN KEONG HU, TARA LEIKO HU,
Defendants-Appellees, and
DOES 1–10, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)
JUNE 23, 2026
LEONARD, PRESIDING JUDGE, MCCULLEN AND GUIDRY, JJ.
OPINION OF THE COURT BY MCCULLEN, J.
Plaintiffs-Appellants RCA Trade Center, Inc., and MP
Unit 21, LLC, (collectively, RCA) appeal from the Circuit Court
of the First Circuit's May 20, 2024 order granting DefendantsAppellees Wayne and Tara Hu's (together, the Hus) motion to
dismiss brought pursuant to Hawaiʻi Revised Statutes (HRS)
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Chapter 634G, the Hawaiʻi Public Expression Protection Act
(HPEPA), and May 21, 2024 Final Judgment. 1
On appeal, RCA challenges the circuit court's
(1) finding of good cause for the Hus' untimely filing of their
HPEPA motion to dismiss, (2) dismissal of its complaint, and
(3) award of fees and costs. We affirm.
We hold that the circuit court did not (1) abuse its
discretion by finding good cause for the Hus' untimely filing or
(2) err by dismissing RCA's complaint under HPEPA. We further
hold that (3) RCA waived any challenge to the circuit court's
award of attorney's fees.
I. BACKGROUND
A. Factual Background
In 2016, the Hus acquired a unit within Marconi Point
Condominiums, an agricultural condominium project (the Project)
located in Kahuku, Oʻahu, Hawaiʻi. The Project comprises "two
(2) lots totaling 96 acres of AG-2 zoned lands" that were
"'condominiumized' by the developer into 32 units." "The
Project aims to develop agricultural condominiums for active
farming and other agricultural operations" and "is not a
residential development." "However, zoning laws allow 'farm
dwellings' to be constructed within the Project to house
individuals engaged in the Project's agricultural operations,
1 The Honorable John M. Tonaki presided.
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consistent with what is permitted under applicable zoning
ordinances."
In 2017, RCA applied for and received multi-building
permits from the City and County of Honolulu's Department of
Planning and Permitting (DPP) to construct eight pre-fabricated
steel warehouses on their various units within the Project.
Believing the "Project would remain a quiet
agricultural condominium project, with few farm dwellings and
neighbors" at the time they purchased the unit, the Hus became
concerned about "numerous questionable and possibly unlawful
activities occurring within the Project" over the next eight
years.
These activities — which the Hus believed
"substantially changed the nature and character of the Project[]
and[] . . . impacted the North Shore Community and the interest
of the public with respect to protecting both agricultural lands
from non-compliant uses as well as activities that adversely
affected the environment" — included (1) the "construction of
eight (8) massive metal warehouses . . . on the AG-2 zoned
lands[] . . . for the purpose of advertising and leasing spaces
. . . to the public for non-agricultural uses";
(2) noncompliance with DPP's special management area and
building permit requirements; (3) "hosting illegal and
noncompliant uses on AG-2 lands such as 'non-compliant farmers'
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markets', 'pop-up markets', weddings, craft fairs, and other
social gatherings, some of which utilized [RCA's] warehouse
spaces"; and (4) "allowing people vehicular access to the beach
areas for 'four-wheeling' in sensitive environmental areas
having endangered species."
As to the eight warehouses, RCA "applied for and
received a United States Department of Agriculture Rural
Development Business and Industrial Guaranteed Loan of
$7,883,000" (the Loan) to "finance the construction of the
warehouses." According to RCA, the "program does not provide
direct funding but only a federal guaranty to secure repayment
obligations in the event of a borrower's default." North Avenue
Capital was RCA's lender under the program.
Meanwhile, as discussed in more detail below, the
Hawaiʻi Legislature adopted the Uniform Law Commission's model
Uniform Public Expression Protection Act (UPEPA) as HPEPA in
2022. 2022 Haw. Sess. Laws Act 96, § 1 at 215-16.
Concerned "that the questionable activities put the
Project in danger of being investigated and cited by various
federal, state and county governmental agencies," the Hus hired
Peter J. Lenhart, Esq., to draft a letter to RCA addressing
these and other issues.
On August 29, 2023, Lenhart transmitted the "52-page
letter . . . together with Exhibits '1' through '17'" (the
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Letter) to RCA, its counsel, and ten additional governmental
entities, including DPP, the State of Hawaiʻi Department of Land
and Natural Resources, the State of Hawaiʻi Department of
Agriculture, and the U.S. Department of Agriculture (USDA).
On September 1, 2023, North Avenue Capital contacted
RCA for more information about the Letter, which it received
from the USDA. Following the USDA's inquiry into the Letter,
North Avenue Capital "informed [RCA] that [it] would be putting
a hold on draws from the loan proceeds, which were needed to pay
for ongoing construction costs."
Although RCA attempted to assuage North Avenue
Capital's concerns, in part by filing the instant lawsuit, North
Avenue Capital ultimately "declared [RCA] to be in default of
[its] obligations under the loan." "Since December 2023, [RCA
has] been able to resolve [North Avenue Capital]'s concern,
pending USDA consent to the loan modification." 2
B. Procedural Background
On October 25, 2023, less than two months after
receiving the Letter, RCA filed a three-count complaint against
the Hus, asserting causes of action for Declaratory Relief,
Tortious Interference, and Injunctive Relief.
Count I (Declaratory Relief) sought a "declaratory
ruling that the warehouses may remain on [RCA's] Units, that
2 RCA does not explain how or why the Loan was modified.
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[RCA is] not required to remove the warehouse[s] that have
already been constructed, and that [RCA] may continue with
construction of the warehouses as intended":
COUNT I
DECLARATORY RELIEF
59. Plaintiffs incorporate by reference each of the
allegations in all previous paragraphs.
60. A controversy exists between Plaintiffs and
Defendants concerning Plaintiffs' construction of the
warehouses.
61. Construction of the warehouses is permitted
under all applicable laws and the Declaration.
62. A declaratory ruling will serve to terminate the
uncertainty or controversy giving rise to this proceeding.
63. Plaintiffs are entitled to a declaratory ruling
that the warehouses may remain upon Plaintiffs' Units, that
Plaintiffs are not required to remove the warehouse [sic]
that have already been constructed, and that Plaintiffs may
continue with construction of the warehouses as intended.
Count II (Tortious Interference) alleged the Hus
"intended to purposefully interfere with the contractual
relationship among [RCA], [North Avenue Capital], and the
federal government":
COUNT II
TORTIOUS INTERFERENCE
64. Plaintiffs incorporate by reference each of the
allegations in all previous paragraphs.
65. The USDA Loan constitutes a valid and binding
contract among Plaintiff RCA Trade Center, its lender, and
the federal government.
66. Defendants have knowledge of the USDA Loan and
underlying contractual relationship, in light of the fact
that they transmitted their [Letter] to the USDA and
questioned the use of federal funds for construction of the
warehouses (although as explained above, the USDA has not
actually provided any federal funding, only a guaranty).
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67. By transmitting their [Letter] to the USDA and
other governmental agencies, Defendants intended to
purposefully interfere with the contractual relationship
among Plaintiff RCA Trade Center, its lender, and the
federal government.
68. As a direct and proximate result of Defendants'
interference, Plaintiffs have incurred damages.
69. The damages incurred by Plaintiffs include
without limitation, additional costs associated with
responding to and mitigating the effects of Defendants'
untruthful allegations, reassuring Plaintiff RCA Trade
Center's lender, and otherwise confirming the propriety of
Plaintiffs' past and anticipated construction activities,
both through the declaratory rulings sought in this lawsuit
and otherwise.
70. Defendants' actions were made with the intent
and malice to harm Plaintiffs' contractual and business
relationships without legal justification.
71. Under the foregoing circumstances, Plaintiffs
are entitled to an award of damages in an amount to be
proven at trial.
Count III (Injunctive Relief) alleged RCA was entitled
to an injunction preventing the Hus from further interfering
with its contractual relationships:
COUNT III
INJUNCTIVE RELIEF
72. Plaintiffs incorporate by reference each of the
allegations in all previous paragraphs.
73. Plaintiffs are entitled to an injunction
enjoining Defendants from interfering with Plaintiffs'
contractual, business, and other relationships with
Plaintiff RCA Trade Center's lender and the government.
The Hus were served with RCA's complaint on
November 30, 2023. That same day, in a telephone conference
between Lenhart and RCA's counsel, the parties agreed to extend
the deadline for responsive filings to January 17, 2024.
Lenhart had requested an extension in order to secure insurance
defense counsel from one of the Hus' three insurance carriers.
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But Lenhart's efforts were ultimately unsuccessful.
All three insurance carriers denied the Hus' request for
indemnification and defense, with the last denial letter
received on January 20, 2024.
"Pending resolution of [the Hus'] insurance coverage
matters," RCA and the Hus nevertheless agreed, in a joint report
(conferred on January 11, 2024 and signed and filed on
January 25, 2024) "to delay Initial Disclosures." 3
On March 15, 2024, the Hus filed a motion to dismiss
RCA's complaint pursuant to HPEPA. RCA opposed the motion as
untimely, and the circuit court heard arguments on April 24,
2024.
At the hearing, as to the timeliness issue, Lenhart
explained that he interpreted the statement in the joint report
to mean "that opposing counsel was agreeing that we were going
to put everything kind of on hold on this proceeding until we
knew whether or not" one of the insurance carriers was going to
defend the Hus against RCA's complaint. As such, Lenhart
"treated the receipt of the final insurance denial letter [on
January 20, 2024,] as the start of a new 'clock' as to the 60-day period for filing Defendants' Anti-SLAPP Motion."
The circuit court ultimately found in Lenhart's
explanation good cause for the late filing, because "there
3 Initial disclosures were to be made on or before February 15, 2024.
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seem[ed] to have been some understanding [between RCA and the
Hus] that everything would be delayed or put off until the
insurance matter was scheduled."
As to the substantive issues presented by the motion,
the circuit court determined (1) the Letter fell within HPEPA's
scope, (2) RCA did not state claims for which relief could be
granted, and (3) DPP was not a party:
[T]he Court does find that the instant claims by plaintiffs
fall under Chapter 634G and that the defendants were
exercising their constitutional First Amendment rights or
the rights of any citizen to bring complaints regarding the
permitting and other issues surrounding this property. And
that under 634G the claims of the plaintiff should be
dismissed.
The Court is also concerned -- I mean, in addition to
the finding that it falls under political speech, what the
defendants did, the Court is also concerned that the claims
don't [state] claims to which relief can be granted as
against the defendants.
The declaratory relief, injunctive relief, some type
of approval of the structures involved or the developments
involved, the Court would need to hear from the building
department as a party. The Hus don't have any jurisdiction
or any power over the granting [of] those permits.
(Formatting altered and emphases added.)
The circuit court entered its order granting the Hus'
motion on May 20, 2024. In addition to finding good cause for
the untimely filing, the circuit court ruled that the Letter
fell under HRS Chapter 634G:
3. Plaintiffs' claims arose in part following
Defendants' [Letter] to Plaintiffs, copies of which were
also sent to various government agencies. Although the
[Letter] was directed to Plaintiffs, because it was also
transmitted to government agencies, this action constitutes
an exercise of Defendants' constitutional right to petition
the government. Therefore, the claims asserted in the
[Letter] fall under the scope of [Hawaiʻi] Revised Statutes
ch. 634G.
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The circuit court entered its final judgment on May 21, 2024.
RCA appealed.
II. SLAPP and HPEPA
SLAPP is an acronym for a "Strategic Lawsuit Against
Public Participation." Perry v. Perez-Wendt, 129 Hawaiʻi 95, 99,
294 P.3d 1081, 1085 (App. 2013). "The paradigm SLAPP is a suit
filed by a large developer against environmental activists or a
neighborhood association intended to chill the defendants'
continued political or legal opposition to the developers'
plans." Hupp v. Freedom Commc'ns, Inc., 163 Cal. Rptr. 3d 919,
922 (Cal. Ct. App. 2013). "While SLAPP suits 'masquerade as
ordinary lawsuits' the conceptual features which reveal them as
SLAPPs are that they are generally meritless suits brought by
large private interests to deter common citizens from exercising
their political or legal rights or to punish them for doing so."
Hernandez v. Zook, 351 A.3d 795, 798 (Pa. Super. Ct. 2026)
(quoting Unif. Pub. Expression Prot. Act § 1 cmt. (Unif. L.
Comm'n 2020)).
An "anti-SLAPP law is designed to protect persons from
lawsuits intended to chill their free speech or petitioning
activities related to public issues." City & County of Honolulu
v. Chevron Corp., 157 Hawaiʻi 340, 341, 577 P.3d 82, 83
(App. 2025).
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In 2020, UPEPA sought to harmonize the different
states' varying approaches to combating SLAPP suits "by
enunciating a clear process through which SLAPPs can be
challenged and their merits fairly evaluated in an expedited
manner." Unif. Pub. Expression Prot. Act Prefatory Note (Unif.
L. Comm'n 2020). UPEPA thus "serves two purposes: protecting
individuals' rights to petition and speak freely on issues of
public interest while, at the same time, protecting the rights
of people and entities to file meritorious lawsuits for real
injuries." Unif. Pub. Expression Prot. Act Prefatory Note
(Unif. L. Comm'n 2020).
In 2022, the Hawaiʻi Legislature repealed HRS
Chapter 634F, Hawaiʻi's previous anti-SLAPP statute, and adopted
UPEPA by enacting HRS Chapter 634G, HPEPA. 2022 Haw. Sess. Laws
Act 96, § 1 at 215-16.
Upon a motion to dismiss based on HPEPA, the court
must dismiss a cause of action or part of a cause of action if
(1) the movant proves HPEPA applies; (2) the non-movant fails to
prove an exception applies; and either (3)(A) the non-movant
fails to prove a prima facie case as to each element of each
cause of action or (3)(B) the movant proves the non-movant
failed to state a cause of action upon which relief can be
granted or the movant proves there is no genuine issue of
material fact:
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[§634G-6] Dismissal of cause of action.
(a) In ruling on a motion under section 634G-3(a), the
court shall dismiss with prejudice a cause of action or
part of a cause of action if:
(1) The moving party establishes under section
634G-2(a) that this chapter applies;
(2) The responding party fails to establish under
section 634G-2(b) that this chapter does not
apply; and
(3) Either:
(A) The responding party fails to establish a
prima facie case as to each essential
element of the cause of action; or
(B) The moving party establishes that:
(i) The responding party failed to
state a cause of action upon which
relief can be granted; or
(ii) There is no genuine issue as to any
material fact and the party is
entitled to judgment as a matter of
law on the cause of action or part
of the cause of action.
HRS § 634G-6(a) (Supp. 2022) (formatting altered and emphases
added).
HPEPA is to be "construed liberally to fully
effectuate its purposes and intent to protect the exercise of
the right of freedom of speech and of the press, the right to
assemble and petition, and the right of association, guaranteed
by the United States Constitution or [Hawaiʻi] State
Constitution." HRS § 634G-10 (Supp. 2022). Hawaiʻi appellate
courts must also consider the rulings of other states that
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enacted UPEPA, "to promote uniformity of the law with respect to
its subject matter." HRS § 634G-11 (Supp. 2022). 4
A motion to dismiss under HPEPA must be filed "no
later than sixty days after a party is served with a complaint,
crossclaim, counterclaim, third-party claim, or other pleading
. . . or at a later time on a showing of good cause." HRS
§ 634G-3(a) (Supp. 2022).
III. DISCUSSION
RCA's points of error on appeal challenge the circuit
court's (1) finding of good cause for the Hus' untimely filing
of their motion to dismiss; (2) dismissal under HPEPA; and
(3) award of attorney's fees and costs.
A. Circuit Court Did Not Abuse Its Discretion When It Found
Good Cause for the Untimely Filing
First, RCA contends the circuit court "should have
denied the motion as untimely under" HRS § 634G-3(a), because
the Hus' "delay in filing the Motion to wait for insurance
coverage determinations is not good cause." (Some formatting
altered.)
A motion to dismiss a complaint under HPEPA must be
filed within sixty days of being served with the complaint "or
at a later time on a showing of good cause":
4 Hawaiʻi courts may also refer to the commentary to UPEPA to aid in interpreting HPEPA. Cf. State v. Hopkins, 60 Haw. 540, 543 n.2, 592 P.2d 810, 812 n.2 (1979) (referring to statutory commentary to "aid in understanding the section" but not as an indication "of legislative intent").
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[§634G-3] Required procedures; motions;
stays. (a) Notwithstanding any law to the contrary,
including rules of the court, no later than sixty days
after a party is served with a complaint, crossclaim,
counterclaim, third-party claim, or other pleading that
asserts a cause of action to which this chapter applies, or
at a later time on a showing of good cause, the party may
file a special motion to dismiss the cause of action or
part of the cause of action.
HRS § 634G-3(a) (emphasis added).
"Good cause depends upon the circumstances of the
individual case, and a finding of its existence lies largely in
the discretion of the officer or court to which the decision is
committed." Chen v. Mah, 146 Hawaiʻi 157, 178, 457 P.3d 796, 817
(2020) (citation modified).
Here, the Hus were served with RCA's complaint on
November 30, 2023. In a declaration to the court, Lenhart
declared that he called RCA's counsel that same day and
explained he might not be counsel of record in the proceeding,
because he was "in the process of tendering defense of this
matter" to the Hus' "various insurance carriers." Lenhart
further explained that he "wished to avoid submitting
substantive pleadings that might [have] conflict[ed] with the
approach of insurance defense counsel" and wished to avoid
charging the Hus for duplicative work that the insurance
carriers might have undertaken.
The parties agreed to extend the deadline to answer
the complaint to January 17, 2024.
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All three insurance carriers, however, ultimately
denied the Hus' request for indemnification and defense, with
the last denial letter received on January 20, 2024. Lenhart
filed the Hus' answer to RCA's complaint on January 17, 2024,
and the First Amended Answer on January 31, 2024, to avoid
default.
In a joint report, the parties agreed that, "[p]ending
resolution of [the Hus'] insurance coverage matters, the parties
have agreed to delay Initial Disclosures" and then set forth
various deadlines.
Lenhart argued that he interpreted the statement in
the joint report to mean "that opposing counsel was agreeing
that we were going to put everything kind of on hold on this
proceeding until we knew whether or not" one of the insurance
carriers was going to defend the Hus against RCA's complaint.
As such, Lenhart "treated the receipt of the final insurance
denial letter as the start of a new 'clock' as to the 60-day
period for filing" the Hus' HPEPA motion to dismiss.
Lenhart filed the HPEPA motion on March 15, 2024,
fifty-five days after receiving the last denial letter.
The circuit court admonished Lenhart for not
specifically requesting an extension of the sixty-day deadline
to file the motion to dismiss, but ultimately found good cause
for the delay because "there seem[ed] to have been some
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understanding that everything would be delayed or put off until
the insurance matter was scheduled."
Considering there was some uncertainty as to who would
represent the Hus, RCA was aware of that uncertainty, the
parties agreed to postpone some deadlines based on that
uncertainty, and the Hus filed their HPEPA motion to dismiss
within sixty days of the resolution of that uncertainty, we
cannot say the circuit court abused its discretion in finding
good cause existed for the untimely filing.
B. Circuit Court Did Not Err by Dismissing RCA's Complaint
Under HPEPA
In its second and third points of error, RCA
challenges the dismissal of its complaint. RCA asserts that the
circuit court erred in holding that the Letter fell under the
scope of HRS Chapter 634G, because the Hus "did not show that
the dispute between the parties is a matter of public concern";
instead, the Letter "is nothing more than a personal grievance."
RCA further asserts that, even if the Letter fell under HRS
Chapter 634G, it met its prima facie burden as to all of its
causes of action.
We review the circuit court's decision de novo.
Anderson v. Anderson, No. A25-1075, 2026 WL 1128755, at *4
(Minn. Ct. App. Apr. 27, 2026) (explaining that it reviews "a
district court's decision on a special motion for expedited
relief [under UPEPA] de novo"); Valve Corp. v. Bucher L. PLLC,
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571 P.3d 312, 318 (Wash. Ct. App. 2025) ("We review the denial
of a UPEPA motion to dismiss de novo."); Andes Roofing, LLC v.
Rusnak, 726 S.W.3d 13, 17 (Ky. Ct. App. 2025) (reviewing lower
court's decision under UPEPA de novo); see HRS § 634G-11 ("In
applying and construing this uniform act, consideration shall be
given to the need to promote uniformity of the law with respect
to its subject matter among states that enact it.").
As stated above, the court must dismiss a cause of
action or part of a cause of action if (1) the movant proves
HPEPA applies; (2) the non-movant fails to prove an exception
applies; and either (3)(A) the non-movant fails to prove a prima
facie case as to each element of each cause of action or
(3)(B) the movant proves the non-movant failed to state a cause
of action upon which relief can be granted or the movant proves
there is no genuine issue of material fact. HRS § 634G-6.
1. HPEPA Applies
For the first factor, the movant must establish "under
section 634G-2(a) that this chapter applies[.]" HRS § 634G6(a)(1). Under HRS § 634G-2(a) (Supp. 2022), the movant must
establish that the non-movant's cause of action was based on
communications made in governmental proceedings, communications
about issues under consideration in governmental proceedings, or
speech or conduct on a matter of public concern:
[§634G-2] Scope of chapter. (a) Except as otherwise
provided in subsection (b), this chapter shall apply to a
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cause of action asserted against a person based on the
person's:
(1) Communication in a legislative, executive,
judicial, administrative, or other governmental
proceeding;
(2) Communication on an issue under consideration
or review in a legislative, executive,
judicial, administrative, or other governmental
proceeding; or
(3) Exercise of the right of freedom of speech or
of the press, the right to assemble or
petition, or the right of association,
guaranteed by the United States Constitution or
the [Hawaiʻi] State Constitution, on a matter of
public concern.
(Emphasis added.)
On appeal, RCA argues that the Letter's content was
not a matter of public concern. Thus, we focus our analysis on
whether the Hus' Letter was on a matter of public concern.
HPEPA, however, does not define "on a matter of public
concern." HRS § 634G-2.
The Hawaiʻi Supreme Court "generously interprets the
civil rights bestowed by the Hawaiʻi Constitution," holding that
"article I, section 4 provides free speech rights 'at least as
expansive as those provided by the United States Constitution.'"
In re KAHEA, 150 Hawaiʻi 43, 56, 497 P.3d 58, 71 (2021) (emphasis
omitted) (quoting State v. Russo, 141 Hawaiʻi 181, 190, 407 P.3d
137, 146 (2017)). The United States Supreme Court has explained
that "[s]peech deals with matters of public concern when it can
be fairly considered as relating to any matter of political,
social, or other concern to the community, or when it is a
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subject of legitimate news interest; that is, a subject of
general interest and of value and concern to the public."
Snyder v. Phelps, 562 U.S. 443, 453 (2011) (citation modified).
At least two state courts interpreting their state's
version of UPEPA have applied this definition to determine
whether speech is a matter of public concern. See M.G. v.
Bainbridge Island Sch. Dist. #303, 566 P.3d 132, 145 (Wash. Ct.
App. 2025); Mackey v. Krause, 575 P.3d 1162, 1173-74 (Utah
2025). We likewise apply this definition. See HRS § 634G-11
("In applying and construing this uniform act, consideration
shall be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.").
The court must "consider the parties' pleadings, the
motion, any replies and responses to the motion, and any
evidence that could be considered in ruling on a motion for
summary judgment under the applicable" Hawaiʻi Rules of Civil
Procedure. HRS § 634G-5 (Supp. 2022).
Here, RCA's causes of action were based on the Letter.
The Letter was sent to RCA and various government agencies. The
content of the Letter alleged, among other things, that the
Project "and the many illegal structures and activities at
Marconi Point Condominium Project" were affecting "the sensitive
coastal environment," the impacts of which were initially
reported on by Environment Hawaiʻi in November 2022.
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In particular, the Letter alleged RCA allowed
"vehicular access to the beach areas for '4-wheeling' in
sensitive environmental areas having nesting native birds and
turtles"; dredged "wetlands areas at the Marconi Project (having
endemic ('native') birds) and disturb[ed] that wildlife without
a dredging permit from the Army Corps of Engineers and/or from
the U.S. Fish & Wildlife Service"; and allowed "the construction
of illegal structures (including construction and occupancy of
illegal commercial and industrial warehouses) for residential,
commercial, and industrial uses and purposes at the Marconi
Point Condominium Project and renting such structures out to the
public." (Emphasis omitted.) Among other laws and ordinances,
the Letter alleged the aforementioned activity violated federal
and state environmental laws.
Given the robust environmental protections enshrined
in our state constitution, the Hus' speech regarding development
of agricultural land and degradation of the environment can
fairly be considered as relating to a matter of value and
concern to the people of Hawaiʻi. Cf. Haw. Const. art. XI, §§ 1,
3, 9; In re KAHEA, 150 Hawaiʻi at 54, 497 P.3d at 69 ("KAHEA's
opposition to development on Mauna Kea falls squarely within the
heartland of the First Amendment's protections."). Thus, the
Letter's content was on a matter of public concern.
As such, HPEPA applies.
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2. RCA Failed to Prove Its Causes of Action Fell
Under an Exception
Because the Hus established that HPEPA applied, the
burden then shifted to RCA to demonstrate its causes of action
were exempt from HPEPA under HRS § 634G-2(b) (Supp. 2022). HRS
§ 634G-6(a)(2). Under HRS § 634G-2(b), causes of action brought
against or by government employees or entities acting in an
official capacity or against those offering goods or services
are exempt from HPEPA:
(b) This chapter shall not apply to a cause of
action asserted:
(1) Against a governmental unit or an employee or
agent of a governmental unit acting or
purporting to act in an official capacity;
(2) By a governmental unit or an employee or agent
of a governmental unit acting in an official
capacity to enforce a law to protect against an
imminent threat to public health or safety; or
(3) Against a person primarily engaged in the
business of selling or leasing goods or
services if the cause of action arises out of a
communication related to the person's sale or
lease of the goods or services.
HRS § 634G-2(b).
Here, RCA's opposition to the Hus' motion to dismiss
argued only that the Hus did not meet their burden of showing
HPEPA applied; RCA did not argue that its causes of action were
exempt, nor does it make any such argument on appeal. And the
record does not demonstrate RCA could make such an argument.
As such, RCA failed to show its causes of action fell
under an exemption to HPEPA.
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3. RCA Failed to Establish a Prima Facie Case as to
Each Element of Its Three Causes of Action
The third factor is satisfied if either (A) the nonmovant fails to prove a prima facie case as to each element of
each cause of action or (B) the movant proves the non-movant
failed to state a cause of action upon which relief can be
granted or the movant proves there is no genuine issue of
material fact. HRS § 634G-6(a)(3).
RCA's complaint asserted three causes of action:
Count I (Declaratory Relief), Count II (Tortious Interference),
and Count III (Injunctive Relief).
a. Count I (Declaratory Relief)
RCA contended it would "likely prevail on the merits
of Count I because DPP has issued building permits for the
warehouses."
To establish a prima facie case for declaratory relief
under HRS § 632-1 (2016), the complainant must produce evidence
demonstrating that a declaratory judgment "will serve to
terminate the uncertainty or controversy giving rise to the
proceeding":
[A] party has standing to seek declaratory relief in a
civil case brought pursuant to HRS § 632-1 (1) where
antagonistic claims exist between the parties (a) that
indicate imminent and inevitable litigation, or (b) where
the party seeking declaratory relief has a concrete
interest in a legal relation, status, right, or privilege
that is challenged or denied by the other party, who has or
asserts a concrete interest in the same legal relation,
status, right or privilege; and (2) a declaratory judgment
will serve to terminate the uncertainty or controversy
giving rise to the proceeding.
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Ching v. Case, 145 Hawaiʻi 148, 173, 449 P.3d 1146, 1171 (2019)
(emphasis added) (quoting Tax Found. of Hawaiʻi v. State, 144
Hawaiʻi 175, 202, 439 P.3d 127, 154 (2019)). Thus, "the
dispositive question is whether 'the court is satisfied . . .
that a declaratory judgment will serve to terminate the
uncertainty or controversy giving rise to the proceeding,'"
which is a question of law. Island Ins. Co. v. Perry, 94 Hawaiʻi
498, 502, 17 P.3d 847, 851 (App. 2000).
In Island Insurance Co., this court held that an
insured is a necessary and indispensable party where the insurer
seeks a declaratory judgment to determine its liability to the
insured. 94 Hawaiʻi at 502, 17 P.3d at 851. This court
explained that, without the insured, the declaratory judgment
does not bind the insured and the insured could relitigate the
matter. Id. Thus, the declaratory judgment would not "serve to
terminate the uncertainty or controversy giving rise to the
proceeding." Id. This court remanded the case "for the entry
of an order dismissing this case for lack of jurisdiction to
enter a declaratory judgment." Id.
In Ohana Control Systems, Inc. v. Hayashi, a
contractor sought a declaratory judgment that the State of
Hawaiʻi Department of Education (DOE) was not entitled to recover
under performance bonds issued by an insurance company. 157
Hawaiʻi 490, 580 P.3d 670, No. CAAP-XX-XXXXXXX, 2025 WL 3633441,
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at *1, *5 (App. Dec. 15, 2025) (mem. op.). This court held
that, because the insurance company was not a party to the
action, the insurance company would not be bound by such a
declaratory judgment, and thus, the circuit court "lacked
jurisdiction to enter a declaratory judgment about DOE's
entitlement to recover under [the insurance company's]
performance bonds." Ohana Control Sys., Inc., 2025 WL 3633441,
at *5.
Here, RCA sought "a declaratory ruling that the
warehouses may remain upon [RCA's] Units, that [RCA is] not
required to remove the warehouse [sic] that have already been
constructed, and that [RCA] may continue with the construction
of the warehouses as intended."
In other words, RCA wanted the circuit court to
confirm that its permits were valid and that it had an
affirmative right to build its warehouses.
But RCA did not join the State or City and County of
Honolulu through its relative agencies.
Similar to the declaratory judgments sought in Island
Insurance Co. and Ohana Control Systems, Inc., any declaratory
judgment that RCA's permits were valid and construction could
continue would not have bound the state or city agencies tasked
with regulating the construction of structures on the Property,
and the same concerns raised by the Letter related to
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construction of the warehouses could be relitigated. See HRS
§ 632-1; Island Ins. Co., 94 Hawaiʻi at 502, 17 P.3d at 851;
Ohana Control Sys., Inc., 2025 WL 3633441, at *5. Accordingly,
RCA failed to show that a declaratory judgment would "serve to
terminate the uncertainty or controversy giving rise to the
proceeding." See Ching, 145 Hawaiʻi at 173, 449 P.3d at 1171.
Thus, RCA failed to establish a prima facie case as to
the second element for obtaining a declaratory judgment.
b. Count II (Tortious Interference)
Count II (Tortious Interference) of RCA's complaint
alleged that the Hus' "actions were made with the intent and
malice to harm [RCA's] contractual and business relationships
without legal justification."
"Hawaiʻi recognizes two separate torts: (1) tortious
interference with contractual relations and (2) the tort of
intentional or tortious interference with prospective business
advantage." Wadsworth v. KSL Grand Wailea Resort, Inc., 818
F. Supp. 2d 1240, 1252 (D. Haw. 2010) (first citing Meridian
Mortg. Inc. v. First Hawaiian Bank, 109 Hawaiʻi 35, 45, 47-48,
122 P.3d 1133, 1143, 1145-46 (App. 2005); then citing Robert's
Hawaii Sch. Bus, Inc. v. Laupahoehoe Transp. Co., 91 Hawaiʻi 224,
258-59, 982 P.2d 853, 887-88 (1999)).
While similar, each tort contains its own distinct
elements that must be satisfied. See id. Because RCA, in its
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opposition, focuses on the elements for tortious interference
with contractual relations, we, too, narrow our analysis to that
specific tort. See id.
A viable prima facie case for tortious interference
with contractual relations is supported by evidence
demonstrating six elements:
(1) a contract between the plaintiff and a third party;
(2) the defendant's knowledge of the contract; (3) the
defendant's intentional inducement of the third party to
breach the contract; (4) the absence of justification on
the defendant's part; (5) the subsequent breach of the
contract by the third party; and (6) damages to the
plaintiff.
Buscher v. Boning, 114 Hawaiʻi 202, 215 n.6, 159 P.3d 814, 827
n.6 (2007) (quoting Kahala Royal Corp. v. Goodsill Anderson
Quinn & Stifel, 113 Hawaiʻi 251, 267 n.17, 151 P.3d 732, 748 n.17
(2007)).
RCA failed to establish a prima facie case as to the
fourth element, "absence of justification on the defendant's
part." RCA contended the Hus' "conduct was not justified
because the warehouse construction is fully permitted." It
attached, as Exhibit 1 to its opposition, DPP website printouts,
showing that the construction of the eight warehouses in
question was permitted.
But the Hus' Letter also takes issue with the uses to
which RCA puts the warehouses, not merely the structures
themselves. For example, the Letter points to the
"advertisement for and leasing of warehouse space to individuals
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and entities who are not leasehold or fee owners of the
Project"; the "false advertisement of the warehouses as being in
an 'industrial park'"; and the "use of the Project for illegal
and noncompliant functions[,]" among others. See id. Because
the website printouts of the permits do not address the use of
the warehouses, the printouts do not establish that the Hus'
conduct was unjustified.
Thus, RCA failed to establish a prima facie case as to
the fourth element of tortious interference with contractual
relations.
c. Count III (Injunctive Relief)
A viable prima facie case for injunctive relief
requires the plaintiff to produce evidence as to the following
three elements:
(1) whether the plaintiff has prevailed on the merits;
(2) whether the balance of irreparable damage favors the
issuance of a permanent injunction; and (3) whether the
public interest supports granting such an injunction.
Off. of Hawaiian Affs. v. Hous. & Cmty. Dev. Corp. of Hawaii,
117 Hawaiʻi 174, 212, 177 P.3d 884, 922 (2008), rev'd and
remanded, 556 U.S. 163 (2009), reconsidered, 121 Hawaiʻi 324, 219
P.3d 1111 (2009). 5
5 The 2008 Supreme Court of Hawaiʻi case was reversed and remanded on a federal question by the United States Supreme Court. It was subsequently reconsidered on state law grounds in the Supreme Court of Hawaiʻi's 2009 decision.
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Here, RCA's opposition did not present any argument as
to the elements of Count III (Injunctive Relief), but instead
summarily asserted that, should it prevail on Count II (Tortious
Interference), it would also "be entitled to injunctive relief
under Count III, preventing further interference with [RCA's]
contractual and business relationships." Nothing in RCA's
opposition before the circuit court, or in its opening brief on
appeal, supports a determination that the "balance of
irreparable damage favors the issuance of a permanent
injunction" or that the "public interest supports granting such
an injunction." See Off. of Hawaiian Affs., 117 Hawaiʻi at 212,
177 P.3d at 922.
Thus, RCA did not establish a prima facie case as to
each element for injunctive relief.
In sum, because the Hus demonstrated that HPEPA
applied to RCA's causes of action, RCA failed to show its causes
of action fell under an exemption to HPEPA, and RCA failed to
prove a prima facie case as to its three causes of action, the
circuit court did not err in dismissing RCA's complaint. See
Reyes v. Kuboyama, 76 Hawaiʻi 137, 140, 870 P.2d 1281, 1284
(1994) ("This court may affirm a grant of summary judgment on
any ground appearing in the record, even if the circuit court
did not rely on it." (citations omitted)).
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C. Challenge to Attorney's Fees and Costs Is Waived
Finally, RCA challenges the award of the Hus'
attorney's fees and costs based on its assertion that the
circuit court erred in dismissing its complaint under HPEPA.
RCA otherwise presents no argument in the argument section of
its opening brief to support this point of error. Thus, we deem
this point waived. See Hawaiʻi Rules of Appellate Procedure
Rule 28(b)(7) (requiring an opening brief to include an argument
section "containing the contentions of the appellant on the
points presented and the reasons therefor" and stating that
"[p]oints not argued may be deemed waived").
IV. CONCLUSION
Based on the foregoing, we affirm the circuit court's
May 20, 2024 order granting the Hus' HPEPA motion to dismiss and
May 21, 2024 Final Judgment.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Michael A. Yoshida,
Gregory W. Kugle, /s/ Sonja M.P. McCullen Ross Uehara-Tilton, Associate Judge
David H. Abitbol,
(Damon Key Leong Kupchak /s/ Kimberly T. Guidry Hastert), Associate Judge
for Plaintiffs-Appellants.
Peter J. Lenhart
Tori R.K. Maeshiro,
for Defendants-Appellees.
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