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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-DEC-2025
08:00 AM
Dkt. 92 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE ARBITRATION OF

NORDIC PCL CONSTRUCTION, INC., formerly known as NORDIC
CONSTRUCTION, LTD.,
a corporation, Claimant/Counterclaim Respondent-Appellee, v.
LPIHGC, LLC, Respondent/Counterclaimant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1SP101000346)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Hiraoka and Guidry, JJ.)

LPIHGC, LLC appeals from the Final Judgment entered by
the Circuit Court of the First Circuit on September 23, 2025.1
LPIHGC challenges the October 20, 2017 order granting Nordic PCL
Construction, Inc.'s motion for taxation of costs.2 We hold:
(1) the Circuit Court was authorized, under Hawaii Revised
Statutes (HRS) § 658A-25(b) (2016), to award Nordic its
reasonable costs incurred on appeal once it vacated the
arbitration award after conducting the evidentiary hearing
mandated by the supreme court, and premiums for a supersedeas
bond are costs taxable under HRS § 607-9 (2016); but (2) certain

1
The Honorable Karin L. Holma presided.
2
The Honorable Jeffrey P. Crabtree presided.
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of Nordic's bond premium payments were not reasonable; and
(3) certain of the costs awarded to Nordic were not taxable.
Accordingly, we vacate the Final Judgment and remand for further
proceedings. Nordic's October 7, 2025 Motion to Remand to
Correct Omission of Costs Order from Judgment is denied as
unnecessary.
LPIHGC and Nordic arbitrated a contract dispute. The
arbitrator made an award for LPIHGC. LPIHGC opened the
proceeding below to confirm the award. Nordic moved to vacate
it, claiming evident partiality by the arbitrator. The Circuit
Court confirmed the award and entered a judgment for LPIHGC in
2011. In re Arb. of Nordic PCL Constr., Inc. v. LPIHGC, LLC, 136
Hawai#i 29, 38, 358 P.3d 1, 10 (2015) (Nordic I). Nordic
appealed, and posted a supersedeas bond. We vacated the judgment
because the arbitrator hadn't made certain disclosures. In re
Arb. of Nordic PCL Constr., Inc. v. LPIHGC, LLC,
No. CAAP–11–0000350, 2014 WL 624870 (Haw. App. Feb. 14, 2014)
(mem. op.), vacated by Nordic I. On certiorari, the supreme
court vacated our judgment on appeal and the Circuit Court's
judgment, and directed the Circuit Court to hold an evidentiary
hearing "to determine whether reasonable inquiry and disclosure
standards were met[.]" Nordic I, 136 Hawai#i at 54, 358 P.3d at
26.
In 2017, after conducting an evidentiary hearing, the
Circuit Court vacated the award and ordered a new arbitration
before a different arbitrator.3 Nordic then moved for taxation
of costs. It requested "$229,602 for premiums for the
supersedeas bond Nordic was required to post in order to stay
execution of the judgment[.]" Nordic explained it paid premiums
of "$48,000 per year until the ICA's [2014] decision" ($144,000,
which we had awarded but the supreme court vacated), "and then
$28,534 per year for the next three years [(2015-17)]." The

3
The Honorable Jeannette H. Castagnetti presided.

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Circuit Court granted the motion, entering the order from which
LPIHGC now appeals.
LPIHGC and Nordic rearbitrated their dispute. The
arbitrator found that Nordic materially breached its subcontract;
LPIHGC was not entitled to all of its claimed damages, or to
withhold costs that Nordic budgeted but did not spend; Nordic was
not entitled to recover delay damages or an early completion
bonus; and Nordic was liable for liquidated damages and premiums
LPIHGC paid for a bond to release the mechanics lien Nordic had
filed against the project. The arbitrator awarded attorney fees
to LPIHGC. The net award to LPIHGC was $1,937,474. Nordic PCL
Constr., Inc. v. LPIHGC, LLC, No. CAAP-XX-XXXXXXX, 2025 WL
751940, at *2-3 (Haw. App. Mar. 18, 2025) (mem. op.) (Nordic II),
cert. rejected, SCWC-XX-XXXXXXX, 2025 WL 2902945 (Haw. Oct. 13,
2025).
LPIHGC opened a new proceeding, JIMS No.
1CSP-XX-XXXXXXX, to confirm the award.4 The circuit court
confirmed the award. A judgment for LPIHGC against Nordic was
entered in 1CSP-XX-XXXXXXX on December 1, 2023.5 Nordic II, 2025
WL 751940, at *1.
On December 29, 2023, LPIHGC filed a notice of appeal
from the October 20, 2017 order below taxing costs. We dismissed
the appeal for lack of jurisdiction. In re the Arb. of Nordic
PCL Constr., Inc. v. LPIHGC, LLC, 156 Hawai#i 16, 568 P.3d 76
(App. 2024), vacated, Nordic PCL Constr., Inc. v. LPIHGC, LLC,
156 Hawai#i 325, 574 P.3d 1273 (2025) (Nordic III). Nordic
petitioned for certiorari. The supreme court held that an order
denying confirmation of an arbitration award, vacating the award,

4
The supreme court advised that a motion to confirm the second
award should have been filed in the proceeding in which the circuit court
vacated the first award and ordered a new arbitration before a different
arbitrator. Nordic PCL Constr. Inc. v. LPIHGC, LLC, 156 Hawai#i 325, 338, 574
P.3d 1273, 1286 (2025) (Nordic III).
5
The supreme court also advised that 1CSP-XX-XXXXXXX should have
been consolidated with the proceeding below, and the circuit court should have
issued "one final judgment regarding the two special proceedings."
Nordic III, 156 Hawai#i at 338, 574 P.3d at 1286.

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and ordering a rehearing before a new arbitrator is not an
appealable order. Nordic III, 156 Hawai#i at 337, 574 P.3d at
1285.
The supreme court noted that no judgment had been
entered below. Nordic III, 156 Hawai#i at 337, 574 P.3d at 1285.
Although a judgment was entered in 1CSP-XX-XXXXXXX, it did not
allow appellate review of the order taxing costs below. Id. The
court directed us, "[i]n furtherance of [its] policy of
permitting litigants, where possible, to appeal and to have their
cases heard on the merits," to

temporarily remand the case to the circuit court in
1SP101000346 (the first special proceeding); with
instructions to treat 1CSP-XX-XXXXXXX (the second special
proceeding) as a continuation of 1SP101000346, enter a final
judgment in the first special proceeding consistent with the
judgment entered in the second special proceeding, and to
supplement the record on appeal with the new final judgment.

Id. (emphasis added).
We ordered a temporary remand as directed by the
supreme court. The Circuit Court entered the Final Judgment "in
favor of [LPIHGC] and against [Nordic] on all claims herein."
That was "consistent with the judgment entered in the second
special proceeding," Nordic III, 156 Hawai#i at 337, 574 P.3d at
1285, which was for LPIHGC and against Nordic. Nordic II, 2025
WL 751940, at *1.
After the supplemental record on appeal was filed,
Nordic moved for another remand "to issue an amended judgment
that includes the Circuit Court's award of $251,747.31 in costs
to Nordic[.]" LPIHGC responded that "the Judgment entered in
LPIHGC's favor is entirely consistent with the outcome of these
proceedings, the Supreme Court's order, and this Court's
instructions to the Circuit Court." Rather than delay these
proceedings and have the parties incur additional fees and costs

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to file an Ariyoshi motion,6 and potentially have to file another
notice of appeal,7 we construe Nordic's motion to remand and
LPIHGC's response as supplemental briefs, consistent with the
supreme court's "policy of permitting litigants, where possible,
to . . . have their cases heard on the merits," Nordic III, 156
Hawai#i at 337, 574 P.3d at 1285.
LPIHGC contends: (1) supersedeas bond premiums can be
awarded only by an appellate court under Hawai#i Rules of
Appellate Procedure (HRAP) Rule 39 and are otherwise not costs
taxable under HRS § 607-9; (2) Nordic's bond premiums were not
reasonable; and (3) certain other costs should not have been
awarded.
(1) LPIHGC contends that supersedeas bond premiums can
be awarded only by an appellate court under HRAP Rule 39(a).
Nordic counters that the circuit courts may tax supersedeas bond
premiums under HRS §§ 658A-25, 607-9. LPIHGC replies that Nordic
should have requested taxation of costs from the supreme court
because "HRAP Rule 39 specifically addresses supersedeas bond
premiums as appellate costs [and] HRS § 607-9 and HRS
§ 658A-25(b) do not — rather they are more general statutes which
generally address the award of costs."
We review the interpretation of court rules and
statutes de novo, using principles of statutory construction.
Eason v. State, 157 Hawai#i 252, 263, 576 P.3d 765, 776 (2025).
We start with the language of the rule or statute. Id.
Relevant to this appeal, HRAP Rule 39 provides:

6
See Life of the Land v. Ariyoshi, 57 Haw. 249, 252, 553 P.2d 464,
466 (1976) (while case is on appeal, a Haw. R. Civ. P. Rule 60(b) "motion may
be made and considered in the circuit court" and, if circuit court "indicates
that it will grant the motion," appellant may then move the appellate court
for a temporary remand).
7
If the Circuit Court granted an Ariyoshi motion and entered an
amended judgment on a temporary remand, LPIHGC would arguably have to file a
new notice of appeal and pay another filing fee. See Enos v. Pac. Transfer &
Warehouse, Inc., 80 Hawai#i 345, 355–56, 910 P.2d 116, 126–27 (1996) ("[S]ince
an amended notice of appeal relates back to the notice of appeal it purports
to amend, it does not appeal an order, judgment, or decree entered subsequent
to the notice of appeal it purports to amend.").

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(a) Civil costs; to whom allowed. [In a civil
case], . . . if a judgment is reversed . . . costs shall be
taxed against the appellee . . . unless otherwise ordered;
if a judgment is . . . vacated, . . . the costs shall be
allowed only as ordered by the appellate court.
. . . .

(c) Costs defined. Costs in the appellate courts
are defined as: . . .(2) the premiums paid for supersedeas
bonds or other bonds to preserve rights pending appeal[.]

LPIHGC argues that HRAP Rule 39(a)'s statement, "if a
judgment is . . . vacated, . . . costs shall be allowed only as
ordered by the appellate court[,]" means that only an appellate
court can tax costs incurred on an appeal. We construe HRAP
Rule 39 in pari materia with HRAP Rule 35. Cf. HRS § 1-16 (2009)
("Laws in pari materia, or upon the same subject matter, shall be
construed with reference to each other."); Wells Fargo Bank, N.A.
v. Omiya, 142 Hawai#i 439, 450, 420 P.3d 370, 381 (2018).
HRAP Rule 35(e) states, "the word 'reverse' ends
litigation on the merits, and the phrase 'vacate and remand'
indicates the litigation continues in the court or agency in
accordance with the appellate court's instruction." The word
"shall" in HRAP Rule 39(a), read with Rule 35(e), does not mean
only an appellate court can tax costs if a judgment is vacated.
It reflects that a decision vacating a judgment does not
automatically determine a prevailing party; costs in that
situation "shall" be taxed only if ordered by the appellate
court; it does not mean no other court can tax costs, for
example, on remand.
LPIHGC cites Wong v. Takeuchi, 88 Hawai#i 46, 55, 961
P.2d 611, 620 (1998) for the proposition that "[r]ecovery of
costs is court level specific." In that case, the supreme court
noted that the prevailing party's "cost request incorporates the
costs for preparing both the motion for costs on appeal and the
motion for costs at the circuit court." The supreme court held
that "costs incurred after the conclusion of the circuit court
proceeding, solely for the purpose of preparing a motion for

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reimbursement of costs already incurred," were not taxable. Id.
The court's statement, "This is an improper commingling of two
separate actions[,]" id., was thus dicta.
Here, the supreme court vacated the judgment confirming
the first award and remanded for the Circuit Court to hold an
evidentiary hearing "to determine whether reasonable inquiry and
disclosure standards were met[.]" Nordic I, 136 Hawai#i at 54,
358 P.3d at 26. Nordic was not yet a prevailing party entitled
to recover costs. Cf. Deutsche Bank Nat'l Tr. Co. v. Kozma, 140
Hawai#i 494, 499, 403 P.3d 271, 276 (2017) (stating that when
judgment on appeal "merely vacates a trial court judgment
unfavorable to a party and places that party back where the party
started, the judgment [on appeal] does not, in itself, provide
any grounds for an award of attorney's fees to the party"
(cleaned up)).
It wasn't until the Circuit Court entered its findings
of fact, conclusions of law, and order vacating the award that
Nordic became the prevailing party entitled to taxation of costs.
HRS § 658A-25(b) then allowed the Circuit Court to award
"reasonable costs of the motion [to . . . vacate . . .] and
subsequent judicial proceedings." (Emphasis added.) In re Arb.
Between United Public Workers, AFSCME, Local 646 & City & Cnty.
of Honolulu, 119 Hawai#i 201, 209–10, 194 P.3d 1163, 1171–72
(App. 2008). Nordic's appeal from the denial of its motion to
vacate was a subsequent judicial proceeding. We conclude that
the Circuit Court was authorized, under HRS § 658A-25(b), to
award Nordic its reasonable costs incurred on appeal once the
first award was vacated after the evidentiary hearing mandated by
the supreme court.
LPIHGC contends that premiums for supersedeas bonds are
not costs taxable under HRS § 607-9. The statute contains a
nonexclusive list of "actual disbursements" that when, "sworn to
by an attorney or a party, and deemed reasonable by the court,
may be allowed in taxation of costs." Premiums for supersedeas
bonds, when reasonable, may be taxed as costs under HRS § 607-9.

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Cf. Dade v. Kuhta, 3 Haw. App. 89, 641 P.2d 989 (1982)
(attachment bond premium allowed in taxation of costs). We
examine reasonableness in the next section.
(2) LPIHGC contends that some of the bond premiums
Nordic paid were not reasonable, and should not have been taxed.
"The award of a taxable cost is within the discretion of the
trial court and will not be disturbed absent a clear abuse of
discretion." Wong, 88 Hawai#i at 52, 961 P.2d at 617.
A supersedeas bond protects an appellee from potential
loss created by a stay of execution on a judgment if the judgment
is affirmed on appeal. Kelepolo v. Fernandez, 148 Hawai#i 182,
188, 468 P.3d 196, 202 (2020). LPIHGC argues it was not
reasonable for Nordic to pay premiums to continue the bond after
the supreme court vacated the judgment.
The supreme court's Nordic I opinion originally stated:

Accordingly, we vacate the ICA's April 4, 2014
Judgment on Appeal and remand this case to the circuit court
for an evidentiary hearing and entry of findings of fact and
conclusions of law on Nordic's motion to vacate.

. . . .
Accordingly, we vacate the ICA's Judgment on Appeal
and remand to the circuit court for further proceedings
consistent with this opinion.

Nordic moved for reconsideration. It argued that
because the supreme court vacated our judgment on appeal, "the
circuit court's Final Judgment, which ruled in favor of LPIHGC
and against Nordic on all three arguments raised by Nordic may be
seen as continuing to be valid, in whole or in part."
The supreme court granted reconsideration and amended
its opinion. The amended opinion stated:

Accordingly, we vacate the ICA's April 4, 2014
Judgment on Appeal, and the circuit court's March 24, 2011
Final Judgment, thereby vacating the associated orders
(1) granting LPIHGC's motion to confirm the Arbitration
Award, and (2) denying Nordic's motion to vacate the
Arbitration Award, and remand this case to the circuit court
for an evidentiary hearing and entry of findings of fact and
conclusions of law on Nordic's motion to vacate.

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. . . .
Accordingly, we vacate the ICA's Judgment on Appeal,
and the circuit court's March 24, 2011 Final Judgment,
thereby vacating the associated orders (1) granting LPIHGC's
motion to confirm the Arbitration Award, and (2) denying
Nordic's motion to vacate the Arbitration Award, and remand
this case to the circuit court for further proceedings
consistent with this opinion.

Nordic I, 136 Hawai#i at 31, 54, 358 P.3d at 3, 26 (emphasis
added).
The supreme court's judgment on appeal was entered on
August 27, 2015. Premiums paid to extend the bond after
August 27, 2015, were not reasonable because after that date,
there was no judgment that could have been executed against
Nordic. See Kelepolo, 148 Hawai#i at 188, 468 P.3d at 202.
The one-year supersedeas bond incepted on April 6,
2011. Premiums were billed on April 25, 2011, February 24, 2012,
March 19, 2013, and August 1, 2014, for coverage from April 6,
2011 until April 6, 2015. LPIGHC does not contest the
reasonableness of those premiums.
LPIGHC argues that premiums for coverage after
August 27, 2015, or "just under $57,068 or whatever the prorated
amount would have been between April and August of 2015 + 2016 –
2017 fees should not have been granted[.]"
"Because there is a presumption that the prevailing
party may be awarded its costs, the burden of showing that a
particular cost request is unreasonable is more properly on the
adverse party." Wong, 88 Hawai#i at 53, 961 P.2d at 618. It was
reasonable for Nordic to renew the bond for coverage from
April 6, 2015 to April 6, 2016. LPIGHC points to nothing in the
record showing whether Nordic could have obtained a pro-rated
refund of premiums paid before August 27, 2015, for coverage
between August 27, 2015 and April 6, 2016. The Circuit Court did
not err by taxing $28,534.00 for that premium period against
LPIHGC.

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But on this record, the Circuit Court acted outside its
discretion by awarding Nordic its $28,534.00 bond premium cost
for coverage after April 6, 2016.
(3) LPIHGC contends that certain other of Nordic's
costs — "first class airfare, messenger fees, and attorneys' fees
paid by Nordic to a third party in connection with a third-party
subpoena" — should not have been awarded.
Nordic claimed "$1,187.02 for intrastate travel." HRS
§ 607-9 allows taxation of costs for "intrastate travel expenses
for witnesses and counsel[.]" LPIHGC argues that "first-class
airfare is not a reasonable expense." It does not cite Hawai#i
authority for the proposition, nor do we find any. The Circuit
Court acted within its discretion to tax that cost, which was
actually paid by Nordic.
Nordic claimed "$372 for messenger delivery fees."
Messenger fees are part of a firm's overhead, Cnty. of Hawai#i v.
C&J Coupe Fam. Ltd. P'ship, 120 Hawai#i 400, 409, 208 P.3d 713,
722 (2009), and are not a taxable cost "except in the rare
circumstance where the need in a particular case is extraordinary
in its volume or nature[.]" Buscher v. Boning, 114 Hawai#i 202,
222, 159 P.3d 814, 834 (2007). Nordic's motion did not explain
why the messenger fees were necessary because the case was
extraordinary in volume or nature. On this record, the Circuit
Court acted outside its discretion by taxing Nordic's messenger
delivery fees against LPIHGC.
Nordic claimed "$2,602.09 in disbursements paid for the
[Queen Lili#uokalani Trust]'s attorneys' fees in responding to
Nordic's subpoena" of the Trust's records. HRS § 607-9(a)
provides: "No other costs of court shall be charged in any court
in addition to those prescribed in this chapter in any suit,
action, or other proceeding, except as otherwise provided by
law." Nordic cites no provision in HRS Chapter 607 or other law
prescribing attorney fees for responding to a subpoena duces
tecum, and we find none. Cf. HRS § 607-8(a) (2016) (mileage for
serving civil subpoena duces tecum); HRS § 607-12 (2016) (witness

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attendance, mileage, and travel fees). The Circuit Court acted
outside its discretion by taxing the Trust's attorney fees
against LPIHGC.
The September 23, 2025 Final Judgment is vacated and
the October 27, 2017 order granting Nordic's motion for taxation
of costs is vacated in part consistent with this summary
disposition order.
This case is remanded to the Circuit Court. On remand,
the Circuit Court should (1) consolidate this case with
1CSP-XX-XXXXXXX; then (2) enter an amended judgment (a) for
LPIHGC and against Nordic confirming the interim and final awards
from the second arbitration, (b) taxing costs for Nordic against
LPIHGC consistent with this summary disposition order, and (c)
dismissing any claims not specifically mentioned, see Jenkins v.
Cades Schutte Fleming & Wright, 76 Hawai#i 115, 119-20, 869 P.2d
1334, 1338-39 (1994).
Nordic's October 7, 2025 Motion to Remand to Correct
Omission of Costs Order from Judgment is denied as unnecessary.
DATED: Honolulu, Hawai#i, December 8, 2025.

On the briefs:
/s/ Karen T. Nakasone
Terence J. O'Toole, Chief Judge
Judith A. Pavey,
Kukui Claydon, /s/ Keith K. Hiraoka
for Respondent/ Associate Judge
Counterclaimant-Appellant.
/s/ Kimberly T. Guidry
David Schulmeister, Associate Judge
Keith Y. Yamada,
Anna H. Oshiro,
Michael R. Soon Fah,
for Claimant/Counterclaim
Respondent-Appellee.