Tavares v. McNair

LAW LIBRARY
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

NO. 29590
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I ric =

ELAINE TAVARES, Individually and as Personal
Representative for the ESTATE OF TERESA JARRETT |
JACOBER, Plaintiff-Appellee,
Vv.
CHARLES MCNAIR, Defendant-Appellant ‘ai wo
and
JOHN DOES 1-10;

JANE DOES 1-10; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; DOE JOINT VENTURERS 1-10; and DOE

GOVERNMENTAL ENTITIES 1-10, INCLUSIVE, Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 08-1-0250)

SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Ginoza, JJ.)

In an appeal arising out of a personal injury lawsuit
Defendant-Appellant Charles McNair

(McNair)
"Order Denying [McNair's]

appeals from the

Motion to Compel Arbitration of
Plaintiff's Claims Against [McNair] Under

[Hawaii Revised
Statutes (HRS) ]

§ 431:10C-213.5 Pursuant to Agreement" filed on
2009 in the Circuit Court of the Third Circuit?
(circuit court).

January 7,

On appeal, McNair contends the circuit court

erroneously denied his motion to compel arbitration because there

was an agreement between Plaintiff Elaine Tavares, Individually
and as Personal Representative for the Estate of Teresa Jarrett

Jacober, (Plaintiff) and McNair to a binding arbitration of

Plaintiff's claims against McNair under HRS § 431:10C-213.5 (2005
Repl.).

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, as

* The Honorable Glenn §. Hara presided
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

well as the relevant statutory and case law, we conclude that
there were genuine issues of material fact as to the existence of
an arbitration agreement and the circuit court properly denied
the motion to compel arbitration.

On October 18, 2007, McNair proposed private binding
arbitration, pursuant to HRS § 431:10C-213.5, to settle
Plaintiff's claims against him. On February 4, 2008, Plaintiff
responded by conditionally accepting the proposal: "In response
to your letter dated October 18, 2007, please be advised
[Plaintiff] has agreed to private binding arbitration of her
claim and the estate's claim against [McNair] pursuant to HRS

§ 431:10C-213.5 provided the parties are able to mutually agree

upon a single arbitrator." (Emphasis added.)

on February 20, 2008, McNair sent a letter to Plaintiff
in which McNair offered Plaintiff the names of four persons who
could possibly serve as an arbitrator.

On February 22, 2008, McNair sent an email to Evelyn
Johnson (Johnson) of Dispute Prevention and Resolution (DPR).
This email purported to confirm the selection of Judge Amano as
the mutually agreed-upon arbitrator: "This is to confirm that
the parties to this dispute have agreed to submit the question of
liability and damages arising from the death of Teresa Jacober to
binding private arbitration pursuant to HRS § 431:10C-213.5 with
Judge Amano serving as the agreed arbitrator under the terms of
this statute." McNair also sent a copy of the email to
Plaintiff's counsel on that date.

From February through September, 2008, the parties
attempted to resolve legal issues relevant to the arbitration,
including the impact of a joint tortfeasor on'the proceedings and
the necessity for probate approval. Because the statute of
limitations was about to run, Plaintiff filed a complaint on
August 4, 2008.

In August 2008, McNair learned that Johnson had left
DPR in May 2008 without opening a DPR file for the arbitration
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

with Judge Amano. On August 19, 2008, McNair wrote to Judge
Amano directly and requested that she arbitrate the parties!
dispute.

Three days later, Kelly Bryant (Bryant), case manager
at DPR, emailed McNair and Plaintiff and informed them of Judge
Amano's availability and her disclosures as a potential
arbitrator. On September 3, 2008, Plaintiff asked Bryant to put
the matter on hold. On September 5, 2008, Plaintiff sent a
letter to McNair disclaiming any purported agreement to arbitrate
between the parties.

On September 15, 2008, McNair filed a "Motion to Compel
Arbitration of Plaintiff's Claims Against [McNair] Under HRS
§ 431:10C-213.5 Pursuant to Agreement" (Motion to Compel).
Plaintiff opposed the motion. Plaintiff argued, among other
things, that there was no enforceable arbitration agreement
because there were unresolved issues regarding joint tortfeasor
liability ana probate approval and, therefore, no agreement on
the scope of the proposed arbitration. The circuit court denied
the Motion to Compel on the basis that there was not a mutually
agreed-upon agreement under HRS § 431:10C-213.5 to arbitrate. In
reaching this conclusion, the circuit court preliminarily found
at the hearing on the motion that a mutual agreement as to an
arbitrator was a condition precedent to arbitration. The circuit
court pressed McNair to produce evidence substantiating

Plaintiff's consent to Judge Amano's serving as the arbitrator:

[THE COURT:] So, [McNair's Counsel], I've read the
memos and I'm just wondering, do you have any argument or
any other thing you can point to me that says this is when
we -- [Plaintiff's Counsel] explicitly agreed to Judge Amano
as an arbitrator? I know that you have e-mails to DPR and
so forth saying, you know, set the arbitration up. But
anybody can do that. I mean, I can call Triple A right now
and say I want an arbitration without an arbitration
agreement. You know, but I can go ahead and start setting
stuff up in anticipation, for example, of getting an
arbitration hearing.

But is there anything that you can point to that would
indicate that [Plaintiff's Counsel] agreed beforehand to
* Judge Amano as the arbitrator?
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

([MCNAIR'S COUNSEL]: Nothing, Your Honor, in writing
other than what I've already given you. I offered
[Plaintiff's Counsel] a letter before the e-mail to DPR,
offering the names of Judge Lim, [sic] Judge Amano --

THE COURT: Was there any kind of response saying,
yeah, that's okay, I agree?

[MCNAIR'S COUNSEL]: Not in writing, but there was
verbally. And that's why I wrote the --

THE COURT: Well I. don't see any indication of that in
your declarations, and that's why I'm asking. That there
was any kind of an oral response, when it was, what
circumstances were? It's kind of -- it was kind of vague
around that point. And it kind of skipped on the fact that
you proposed Judge Amano and all of a sudden went into these
things that were submitted to DPR.

We review the circuit court's denial of the motion to
compel arbitration under the same standards that apply toa
motion for summary judgment. In Koolau Radiology, Inc. v.

Queen's Medical Center, 73 Haw. 433, 834 P.2d 1294 (1992), the

Hawai'i Supreme Court established the applicable standards for

addressing a motion to compel arbitration, as follows:

The trial court can only decide, as a matter of law, whether
to compel the parties to arbitrate their dispute if there is
no genuine issue of material fact regarding the existence of
a valid.agreement to arbitrate. See Par-Knit Mills, Inc. v.
Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980).
Therefore, we hold that the standard of review applicable to
the trial court's decision in this case should be that which
is applicable to a motion for summary judgment.

Accordingly, we review this case de novo, using the same
standard employed by the trial court and based upon the same
evidentiary materials "as were before [it] in determination
of the motion." Feliciano v. Waikiki Deep Water, Inc., 69
Haw. 605, 607, 752 P,2d 1076, 1078 (1988) (citation
omitted); see also Cuba v. Fernandez, 71 Haw. 627, 631, 801
P.2d 1208, 1211 (1990); First Hawaiian Bank v. Weeks, 70
Haw. 392, 396, 772 P.2d 1187, 1190 (1989).

Id. at 439-40, 834 P.2d at 1298; accord Peters v. Aipa, 118
Hawai'i 308, 312-13, 188 P.3d 822, 826-27 (App. 2008).

Based on our review of the current record, there are

genuine issues of material fact as to the existence of an
arbitration agreement. On this basis, similar to a summary
judgment motion, the circuit court's denial of the motion to
compel arbitration was proper. However, because we determine

that there are genuine issues of material fact, the question
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

cannot be decided as a matter of law. Therefore, the circuit
court's ruling and our instant order do not foreclose the parties
or the circuit court from further addressing the issue ona
fuller record,’

Therefore,

IT IS HEREBY ORDERED that the "Order Denying Defendant
Charles McNair's Motion to Compel Arbitration of Plaintiff's
Claims Against Defendant McNair Under HRS § 431:10C-213.5
Pursuant to Agreement" filed on January 7, 2009 in the Circuit
Court of the Third Circuit is affirmed.

DATED: Honolulu, Hawai‘i, June 24, 2010.

On the briefs:

Kathy K. Higham Ona YW. Portas

(Kessner Umebayashi Bain
& Matsunaga) Chief Judge
for Defendant-Appellant.

Dwayne Stephen Lerma
Jo Anne E. Goya ‘ {2
(Lerma & Goya) .

for Plaintiff-Appellee. Associate Judge

Associate Judge

2 HRS § 658A-7(a) (2) (Supp. 2009) provides that "the court shail
proceed summarily to decide the issue" of whether an agreement to arbitrate
exists. Chapter 658A is based on the revised version of the Uniform
Arbitration Act (2000) (RUAA). The comment to section 7 of the RUAA notes
that the term "summarily" is also in the older version of the Uniform
Arbitration Act and "has been defined to mean that a trial court should act
expeditiously and without a jury trial to determine whether a valid
arbitration agreement exists." Uniform Arbitration Act § 7 cmt. (2000). An
evidentiary hearing would therefore be appropriate in this regard.

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