Noel Madamba Contracting LLC v. Romero

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER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.

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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.

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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

5/
Similarly, the concluding sentence of the May 25, 2016 Judgment on
Appeal stated: "IT IS FINALLY ORDERED, this case is remanded to the circuit
court with instructions to vacate the arbitration award and for further
proceedings consistent with this opinion."

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proceedings consistent with this opinion" was broader in scope.
In particular, the supreme court did not foreclose the
possibility that on remand, the circuit court could order a
rehearing before a new arbitrator; indeed, HRS § 658A-23(c)
(2016)6/ authorized the circuit court to do so. Moreover,
nothing in the supreme court's opinion as a whole, read in
conjunction with the judgment and interpreted in light of the
case's procedural history and context, foreclosed the possibility
of the circuit court ordering a rehearing or otherwise suggested
that such an order would not be consistent with the supreme
court's opinion. Because the matter of a rehearing was not
explicitly or by necessary implication decided by the supreme
court, the circuit court was free to decide the issue on remand.
See Lincoln, 72 Haw. at 485, 825 P.2d at 68.
The supreme court's award of appellate attorneys' fees
to NMC does not change our conclusion. Because the supreme
court's judgment vacated the circuit court's judgment and did not
direct a rehearing, such an award was authorized under HRS §
658A-25. However, nothing in HRS § 658A-25 prevented the supreme
court from vacating the circuit court's judgment without
directing a rehearing, and remanding the case to the circuit
court for further proceedings, thus permitting the circuit court
to determine whether a rehearing should be ordered. For the
reasons discussed above, the circuit court's determination of
this issue was consistent with the supreme court's opinion, read
as a whole and in context, and did not exceed the supreme court's
mandate.
Accordingly, the circuit court did not err in ordering
a rehearing before a new arbitrator.
(3) NMC contends that the circuit court erred 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. NMC argues that "[a]lthough the [c]ircuit [c]ourt did
not state the reason for denying [NMC] an award of fees and

6/
HRS § 658A-23(c) states, in relevant part: "If the court vacates
an award on a ground other than that set forth in subsection (a)(5), it may
order a rehearing. If the award is vacated on a ground stated in subsection
(a)(1) or (2), the rehearing shall be before a new arbitrator. . . ."

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costs, it is apparent that the [c]ircuit [c]ourt did not believe
it was authorized by [HRS § 658A-25(c)] to make such an award
because it was ordering a rehearing before a new arbitrator."
For the reasons previously discussed, we have concluded
that the circuit court did not err in ordering a rehearing before
a new arbitrator. We further conclude that the circuit court did
not abuse its discretion in denying NMC's motion for attorney's
fees and costs, given HRS § 658A-25(c).
For these reasons, we affirm the following orders,
entered on May 30, 2017, in the Circuit Court of the First
Circuit:
(1) Order Granting in Part and Denying in Part
Respondents/Cross-Petitioners Ramon Romero and
Cassie Romero's Motion to Compel Rehearing Before
New Arbitrator; and
(2) Order Denying Movant Noel Madamba Contracting
LLC's Motion for Attorney's Fees and Costs.

DATED: Honolulu, Hawai#i, November 29, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Samuel P. King, Jr. Chief Judge
for Movant-Appellant.

Keith Y. Yamada, /s/ Katherine G. Leonard
Kirk M. Neste, and Associate Judge
Mallory T. Martin
(Cades Schutte LLP)
for Respondents-Appellees. /s/ Clyde J. Wadsworth
Associate Judge

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