Noel Madamba Contracting LLC v. Romero
Opinion
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 29-NOV-2021 07:58 AM Dkt. 81 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
NOEL MADAMBA CONTRACTING LLC, Movant/Cross-Respondent-Appellant, v.
RAMON ROMERO and CASSIE ROMERO, Respondents/Cross-Petitioners-Appellees, and
A&B GREEN BUILDING LLC, Cross-Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (S.P. NO. 12-1-0210)
SUMMARY DISPOSITION ORDER (By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)
Movant/Cross-Respondent-Appellant Noel Madamba Contracting LLC (NMC) appeals from the following two interlocutory orders (collectively, the Interlocutory Orders), both entered on May 30, 2017, in the Circuit Court of the First Circuit (circuit court):1/ (1) Order Granting in Part and Denying in Part Respondents/Cross-Petitioners[-Appellees] Ramon Romero and Cassie Romero's [(the Romeros)] Motion to Compel Rehearing Before New Arbitrator (Order Re Arbitration Rehearing); and (2) Order Denying [NMC's] Motion for Attorney's Fees and Costs.
1/ The Honorable Rhonda A. Nishimura presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
The circuit court had previously entered an August 27, 2012 order confirming an arbitration award in favor of the Romeros and a September 20, 2012 judgment on that arbitration award, both of which NMC appealed pursuant to Hawaii Revised Statutes (HRS) § 658A–28(a)(1) and (3) (Supp. 2013).2/ In 2015, the Hawai#i Supreme Court vacated, among other things, the August 27, 2012 order confirming the arbitration award and the September 20, 2012 judgment, and remanded the case for further proceedings consistent with the court's opinion. See Noel Madamba Contracting LLC v. Romero (Madamba I), 137 Hawai#i 1, 16–17, 364 P.3d 518, 533–34 (2015). On May 10, 2016, the supreme court also awarded attorneys' fees and costs incurred in the appellate proceedings to NMC.
On remand, the parties filed several motions, and the circuit court entered, inter alia, the Interlocutory Orders. On August 3, 2017, the circuit court entered orders allowing NMC to appeal from the Interlocutory Orders under HRS § 641-1(b) (2016)3/ (August 3, 2017 Orders). On August 9, 2017, NMC filed a
2/ HRS § 658A–28 provides:
(a) An appeal may be taken from: (1) An order denying a motion to compel arbitration;
(2) An order granting a motion to stay arbitration; (3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award; (5) An order vacating an award without directing a rehearing; or
(6) A final judgment entered pursuant to this chapter.
(b) An appeal under this section shall be taken as from an order or a judgment in a civil action.
3/ HRS § 641-1(b) provides:
Upon application made within the time provided by the rules of court, an appeal in a civil matter may be allowed by a circuit court in its discretion from an order denying a motion to dismiss or from any interlocutory judgment, order, or decree whenever the circuit court may think the same advisable for the speedy termination of litigation before it. The refusal of the circuit court to allow an appeal from an interlocutory judgment, order, or decree shall not be reviewable by any other court.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
notice of appeal from the Interlocutory Orders.
On appeal, NMC contends that the circuit court erred:
(1) in ordering a rehearing before a new arbitrator; and (2) in denying NMC's motion for attorney's fees and costs for time spent in the circuit court seeking to have the 2012 arbitration award set aside. In their answering brief, the Romeros assert that this court lacks jurisdiction to review the Interlocutory Orders.
After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve the parties' contentions as follows.
(1) The circuit court's August 3, 2017 Orders conclude that an interlocutory appeal from the respective Interlocutory Orders is advisable for the speedy determination of the litigation between the parties, pursuant to HRS § 641-1(b). We have jurisdiction over this appeal.
(2) NMC contends that the circuit court erred in ordering a rehearing before a new arbitrator, because the order exceeded the supreme court's mandate in Madamba I. Specifically, NMC argues that in Madamba I, the supreme court remanded the case "to the circuit court with instructions to vacate the arbitration award and for further proceedings consistent with this opinion[,]" 137 Hawai#i at 17, 364 P.3d at 534, and did not remand for a rehearing. NMC further argues that because the supreme court awarded appellate attorneys' fees and costs to NMC pursuant to HRS § 658A-25,4/ which authorizes such an award where the court's judgment vacates without directing a rehearing, the circuit court's order compelling a rehearing exceeded the supreme court's mandate and thus the circuit court's authority.
"On remand, a trial court must closely adhere to the true intent and meaning of the appellate court's mandate." In re
4/ HRS § 658A-25(c) (Supp. 2015) provides:
On application of a prevailing party to a contested judicial proceeding under section 658A-22, 658A-23, or 658A-24, the court may add reasonable attorney's fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made to a judgment confirming, vacating without directing a rehearing, modifying, or correcting an award.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Hawai#i Elec. Light Co., Inc., 149 Hawai#i 239, 241, 487 P.3d 708, 710 (2021) (citing State v. Lincoln, 72 Haw. 480, 485, 825 P.2d 64, 68 (1992)). "The 'true intent and meaning' of a reviewing court's mandate is not to be found in a solitary word or decontextualized phrase, but rather in the opinion, as a whole, read in conjunction with the judgment and interpreted in light of the case's procedural history and context." Id. (citing Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302, 305 (Mo. 1991)). In Lincoln, the court explained:
This is not to say that a trial court is bound to perform the mandate of an appellate court under subsequently changed circumstances or is not free to decide issues not covered in the mandate. See, e.g., Liberty Mut. Ins. Co. v. E.E.O.C., 691 F.2d 438 (9th Cir. 1982) (when matters are not explicitly or by "necessary implication" decided on prior appeal, "lower courts are free to decide issue on remand"). But in the instant case, nothing had changed between our mandate and the dismissal of the case.
72 Haw. at 485, 825 P.2d at 68.
In Madamba I, the supreme court held that the arbitrator's failure to disclose his potential attorney-client relationship with the Romeros' counsel's law firm created a reasonable impression of partiality, resulting in a violation of the disclosure requirements set forth in HRS § 658A-12. 137 Hawai#i at 2, 364 P.3d at 519. The court further held that pursuant to HRS § 658A-23(a)(2)(A), where there is evident partiality on the part of a neutral arbitrator, the award must be vacated. Id. at 3, 364 P.3d at 520. Accordingly, the supreme court vacated the judgments of this court and the circuit court and "remand[ed] to the circuit court with instructions to vacate the arbitration award." Id. The concluding sentence of the Madamba I opinion stated: "We remand to the circuit court with instructions to vacate the arbitration award and for further proceedings consistent with this opinion."5/ Id. at 17, 364 P.3d at 534.
While the supreme court's instructions to vacate the arbitration award were specific, the remand "for further
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