Kim v. Mel Cummins Building Contractor, Inc.

552 P.2d 1117, 57 Haw. 186, 1976 Haw. LEXIS 128
CourtHawaii Supreme Court
DecidedAugust 3, 1976
DocketNO. 5764
StatusPublished
Cited by8 cases

This text of 552 P.2d 1117 (Kim v. Mel Cummins Building Contractor, Inc.) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kim v. Mel Cummins Building Contractor, Inc., 552 P.2d 1117, 57 Haw. 186, 1976 Haw. LEXIS 128 (haw 1976).

Opinions

[187]*187OPINION OF THE COURT BY

KOBAYASHI, J.

This is an appeal by Mel Cummins Building Contractor, Inc. (contractor) from the order of the circuit court denying contractor’s motion to vacate or modify award of arbitrators and from the judgment of said court which incorporates the arbitrators’ finding, determination and award. For reasons stated below, we affirm.

ISSUES

The contractor contends that the arbitrators’ award must be vacated for the following reasons:

1. the arbitrators’ award is contrary to the evidence adduced, or lácks sufficient supportive evidences; and/or

2. the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final, and definite award, upon the subject matter submitted, was not made.

At the outset we hold that the contractor cannot maintain his first contention for it does not fall within the provisions of HRS § 658-9.

Section 658-9 provides as follows:
§658-9 Vacating award. In any of the following cases, the court may make an order vacating the award, upon the application of any party to the arbitration:
(1) Where the award was procured by corruption, fraud, or undue means;
(2) Where there was evident partiality or corruption in the arbitrators, or any of them;
(3) Where the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence, pertinent and material to the controversy; or of any other misbehavior, by which the rights of any party have been prejudiced;
(4) Where the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final, and definite award, upon the subject matter submitted, was not made.
[188]*188Where an award is vacated and the time, within which the agreement required the award to be made, has not expired, the court may in its discretion direct a rehearing by the arbitrators.

In Mars Constructors, Inc. v. Tropical Enterprises, Ltd., 51 Haw. 332, 460 P.2d 317 (1969), we held as follows:

This court has decided to confine judicial review to the strictest possible limits. [51 Haw. at 335, 460 P.2d at 319]
Thus, assuming that the arbitrators here erred in construing the construction contract, as a mistake in the application of law and in their findings of fact, this mistake is not one of the three grounds specified in HRS § 658-10, and the circuit court correctly ruled that it was powerless to modify or correct the award. Also the circuit court could not have vacated the award because of the alleged mistake as the authority of the court to vacate awards was restricted to the four grounds specified in § 658-9. ... [51 Haw. at 336, 460 P.2d at 319]
We believe that the legislative intent in § 658-9 and § 658-10 was to restrict and curtail all judicial review of arbitration awards and not only review by circuit courts, and we hold that § 658-9 and § 658-10 also restrict the authority of this court to review judgments entered by circuit courts confirming the arbitration awards pursuant to the provisions of the Arbitration and Awards statute. [51 Haw. at 336, 460 P.2d at 320]

The second contention of the contractor requires a more detailed consideration since the contention meets the provision of HRS § 658-9(4).

The parties herein entered into two stipulations empowering the arbitrators, to-wit:

First stipulation provides:

It is hereby stipulated by and between the parties hereto, by and through their respective counsel, that the following controversy be submitted to the arbitrators herein for a finding, determination and award:
MEL CUMMINS BUILDING CONTRACTOR, INC., (hereinafter “Contractor”) entered into an agree[189]*189ment with THOMAS H. D. KIM and ALICE H. KIM (hereinafter “Owners”) on or about September 6,1972, to perform work consisting of constructing a new dwelling at Ihiloa Loop, Waialae-iki View Lots, Lot No. 137, Tax Map Key: 3-5-67-09 in accordance with the contract including all plans and specifications pursuant thereto.
Contractor agreed to complete said contract in the manner provided in the contract for the sum of SIXTY SEVEN THOUSAND EIGHT HUNDRED THIRTY DOLLARS ($67,830.00), subject, however, to such additions and deductions as would be mutually agreed upon in writing.
Contractor and Owner agree that the arbitrators are to decide all claims, controversies, demands, disputes, differences and matters whatsoever now pending between Contractor and Owner or contemplated by them relating to or arising out of the contract with its component parts and the performance thereof in connection with the following issues:
1. Whether Contractor neglected to perform the work under the contract properly, or performed any portion of the work defectively, or performed any portion of the work not in accordance with the plans and specifications, and if so, whether such neglect or defective or inadequate performance constitutes a material breach placing Contractor in default under the contract.
2. It is further stipulated that when the arbitrators have made a finding and determination with respect to the rights and obligations or the default, if any, of the parties as set forth, then such determination shall be final and binding on the parties hereto, except as otherwise provided by Hawaii Revised Statutes Sections 658-9 and 658-10, and an award when made, shall be in writing, signed by the arbitrators or a majority of or a majority of them, and acknowledged. It may then be filed with the First Circuit Court, State of Hawaii, for confirmation and entry in the minutes, as provided by Sections 658-8 and 658-13. On such entry, judgment shall be rendered in [190]*190favor of the party to whom the sum of money shall have been awarded by such award, with cost thereon as provided in Section 658-12.
It is further stipulated that each party shall pay one-half (Vz) of the costs of the neutral arbitrator’s fees and one-half (V2) of the Court Reporter’s fees, except the fees for the costs of any transcript of the proceedings, which shall be borne in its entirety by the party ordering such transcript.
Second stipulation provides:
It is further stipulated by and between the parties hereto, by and through their respective counsel, that the issues to be determined by the arbitrators are as follows:
1.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lum v. City and County of Honolulu
728 F. Supp. 1452 (D. Hawaii, 1989)
Strickland v. Seiple
680 P.2d 533 (Hawaii Intermediate Court of Appeals, 1984)
Morrison-Knudsen Co. v. Makahuena Corp.
675 P.2d 760 (Hawaii Supreme Court, 1983)
Gadd v. Kelley
667 P.2d 251 (Hawaii Supreme Court, 1983)
Kim v. Mel Cummins Building Contractor, Inc.
552 P.2d 1117 (Hawaii Supreme Court, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
552 P.2d 1117, 57 Haw. 186, 1976 Haw. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kim-v-mel-cummins-building-contractor-inc-haw-1976.