The Association of Apartment Owners of Moana Pacific v. Nishimura

• Court: Hawaii Supreme Court
• Decided: June 22, 2012
• Docket: SCPW-12-000536
• Status: Published

Opinion

Electronically Filed Supreme Court SCPW-12-0000536 22-JUN-2012 10:11 AM

NO. SCPW-12-0000536

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

THE ASSOCIATION OF APARTMENT OWNERS OF MOANA PACIFIC, Petitioner,

vs.

THE HONORABLE RHONDA A. NISHIMURA, JUDGE OF THE FIRST CIRCUIT COURT OF THE STATE OF HAWAI#I; KC RAINBOW DEVELOPMENT CO., LLC, a Hawaii limited liability company; KCR DEVELOPMENT, INC., a Delaware corporation; EVERSHINE 1, LLC, a California limited partnership; HAWAIIAN DREDGING CONSTRUCTION COMPANY, INC., a Hawaii corporation; PERMASTEELISA NORTH AMERICA CORPORATION; a Delaware corporation; BEACHSIDE ROOFING, LLC, a Hawaii corporation; ALL POOL & SPA, INC., a Hawaii corporation; DORVIN D. LEIS CO., INC., a Hawaii corporation; WASA ELECTRICAL SERVICES, INC., a Hawaii corporation; GROUP BUILDERS, INC., a Hawaii corporation; and UPONOR INC., aka UPONOR NORTH AMERICA, fka WIRSBO, a Minnesota corporation, Respondents.

ORIGINAL PROCEEDING (Civil No. 09-1-0922-04)

ORDER DENYING PETITION FOR WRIT OF MANDAMUS (By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ. and Circuit Judge Castagnetti, assigned by reason of vacancy)

Upon consideration of petitioner Association of

Apartment Owners of Moana Pacific's petition for a writ of

mandamus and the papers in support, it appears that the

respondent judge had inherent power, pursuant to HRS § 603-

21.9(6), to prohibit petitioner from replacing the Moana Pacific

PEX water system until completion of the HRS Chapter 672E process. Prohibiting petitioner from replacing the PEX system

until the HRS Chapter 672E process is complete was not a flagrant

and manifest abuse of discretion. Therefore, petitioner is not

entitled to mandamus relief. See Kema v. Gaddis, 91 Hawai#i 200,

204, 982 P.2d 334, 338 (1999) (A writ of mandamus is an

extraordinary remedy that will not issue unless the petitioner

demonstrates a clear and indisputable right to relief and a lack

of alternative means to redress adequately the alleged wrong or

obtain the requested action. Such writs are not intended to supersede the legal discretionary authority of the lower courts,

nor are they intended to serve as legal remedies in lieu of

normal appellate procedures. Where a court has discretion to

act, mandamus will not lie to interfere with or control the

exercise of that discretion, even when the judge has acted

erroneously, unless the judge has exceeded his or her

jurisdiction, has committed a flagrant and manifest abuse of

discretion, or has refused to act on a subject properly before

the court under circumstances in which it has a legal duty to

act.). Accordingly,

IT IS HEREBY ORDERED that the petition for a writ of

mandamus is denied.

DATED: Honolulu, Hawai#i, June 22, 2012.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Simeon R. Acoba, Jr.

/s/ Sabrina S. McKenna

/s/ Jeannette H. Castagnetti