No. 28139 (Oct. 31, 2008)
Opinion [pdf]
OPINION OF THE COURT BY RECKTENWALD, C.J.
In this confidential guardianship proceeding, Petitioner/Appellant (Petitioner) appeals from the August 14, 2006 "Order on Petitioner's Motion for Attorney's Fees and Costs Pursuant to Rule 68, Hawaii Family Court Rules" filed in the Family Court of the Second Circuit (family court).
Petitioner filed a petition seeking to be appointed guardian for his mother (Mother), whom he claimed was incapacitated. His brother (Brother 1) and sister-in-law (Sister-in-Law) appeared at the initial hearing on the petition, and participated in the proceedings thereafter. Petitioner made a Hawai'i Family Court Rules (HFCR) Rule 68 offer to settle to Brother 1 and Sister-in-Law early in the litigation, and they did not respond to the offer. After trial, the family court found that Mother was incapacitated and appointed Petitioner as guardian. Petitioner then sought an award of attorney's fees and costs, pursuant to HFCR Rule 68, from Brother 1 and Sister-in-Law. The family court denied that motion, on the ground that Brother 1 and Sister-in-Law "were not adverse parties on ... the date the Rule 68 offer was tendered [.] " (Emphasis in original.)
On appeal, Petitioner argues that the family court erred in that conclusion, and that it accordingly should have required Brother 1 and Sister-in-Law to pay Petitioner's fees and costs for the period after Petitioner made the HFCR Rule 68 offer. Because we conclude that Brother 1 and Sister-in-Law were not parties to the proceeding when Petitioner made his Rule 68 offer, we affirm. [footnotes omitted]
