In Re: The Appointment of an Arbitrator in Blue Tile Beach House, LLC v. Napuawailupe LP

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-MAR-2024
07:55 AM
Dkt. 50 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

IN THE MATTER OF THE APPOINTMENT OF AN ARBITRATOR
IN BLUE TILE BEACH HOUSE, LLC, Respondent-Appellee,
vs.
NAPUAWAILUPE LP, Petitioner-Appellant, DPR CASE NO. 18-0176-A

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(S.P. NO. 18-1-0035(2))

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

Petitioner-Appellant Napuaowailupe LP (Napua) appeals

from the Circuit Court of the Second Circuit's (Circuit Court's)1

February 8, 2019 Order Denying [Napua's] Non-Hearing Motion for

Reconsideration and to Alter or Amend Order Denying [Napua's]

Petition to Strike Proposed Arbitrator David W. Scofield

[(Scofield)] and Declare He Is Not a Neutral as Required by

Hawai<i Law [(Petition)] (Order Denying Reconsideration). Napua

also challenges the Circuit Court's December 6, 2018 Order

Denying [the Petition] (Order Denying Petition).

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The Honorable Peter T. Cahill presided.
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Napua raises two related points of error on appeal,

contending that the Circuit Court erred in: (1) failing to find

that Scofield's failures to disclose constitute evidence

partiality; and (2) requiring Napua to proceed with a full

arbitration without resolving Napua's challenge to Scofield

serving as an arbitrator.

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, we resolve Napua's
points of error as follows:

Napua owns certain Property on Maui (Property).

Respondent-Appellee Blue Tile Beach House, LLC (Blue Tile) is

Napua's lessee with respect to the Property under a long-term

lease (Lease) that includes an arbitration provision providing

for a three-person arbitration panel in case of a dispute with

each party appointing an arbitrator and the two party-appointed

arbitrators appointing the third arbitrator.2

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The Lease's arbitration provision states:
A. ARBITRATION. If at any time during the term of
this lease or after the termination thereof any dispute,
difference or question shall arise between the parties
hereto touching this lease or the construction, meaning, or
effect of these presents or anything herein contained or the
rights or liabilities of the parties under these presents or
otherwise in relation to the premises, then every such
dispute, difference or question shall at the request of
either party be submitted to and determined by arbitrators
appointed in the following manner:
The Lessors and Lessee shall each promptly name one
such arbitrator and give written notice thereof to the other
party, and in case either party shall fail so to do within
ten (10) days after appointment of the first arbitrator,
arbitrator already appointed shall name a second one, and
the two thus appointed in either manner shall appoint a
third arbitrator, and in case of their failure so to do
within then (10) days after appointment of the second
arbitrator, either party hereto may have such third
(continued...)

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A dispute arose between the parties and Blue Tile

demanded arbitration. Scofield was appointed by Blue Tile.

Napua appointed Kale Feldman, and Scofield and Feldman named

Douglas Codiga as the third arbitrator. Scofield filed

disclosures identifying certain relationships with Blue Tile's

attorney. Napua objected to Scofield serving as an arbitrator.

After submitting the issue of Scofield's appointment to Dispute

Prevention and Resolution, Inc. (DPR), DPR stated that it had no

authority to strike Scofield as arbitrator. The three
arbitrators agreed that the issue should be resolved before the

arbitration proceeded, but concluded that they did not have the

authority to rule on whether Scofield could serve as an

arbitrator.

Napua filed the Petition and requested, inter alia,

that Scofield be stricken as an arbitrator due to his failure to

adequately disclose his relationship with Blue Tile's attorney.

When the Petition came on for hearing before the

Circuit Court, the court initially questioned its authority to

act before a final arbitration award was entered. Napua's

attorney pointed to Hawaii Revised Statutes (HRS) § 658A-8(a)

(2016). Napua's attorney represented to the court, "although we

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(...continued)
arbitrator appointed by any judge of the Circuit Court of
the State of Hawaii, and the three so appointed shall
thereupon proceed to determine the matter in question, and
the decision of said arbitrators or a majority of them shall
be final, conclusive and binding upon both parties. Each
party shall pay the expenses of their own arbitrator and
attorney and shall share equally the fee and expenses of the
third arbitrator. Judgment may be entered thereon as
provided in Chapter 658, Hawaii Revised Statutes, as the
same now is or may from time to time be amended. Pending
such arbitration, full performance of all covenants other
than the one in dispute shall be required.

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may suspect actual biased [sic], we've proceeded under the second

method, which is a failure to disclose. And so this is a case

having to do with a failure to disclose."

The court then asked Napua's counsel whether there

should be an evidentiary hearing on the matter, and Napua's

counsel declined, stating that "there's no need for an

evidentiary hearing to establish further facts" and Scofield

would be further prejudiced against Napua if an evidentiary

hearing were held.
Ultimately, the Circuit Court concluded that pursuant

to HRS § 658A-8(b)(2), the court could provide a provisional

remedy only if the matter is urgent and the arbitrator is not

able to act timely or the arbitrator could not provide an

adequate remedy. The Circuit Court concluded that it had the

authority to grant relief, but that it did not find a factual

basis for doing so.

Although Napua attached to the Petition a copy of

Scofield's disclosures and [Napua's] Objection to Selection of

Scofield as Arbitrator, both of which had been submitted to DPR,

no declaration or other evidence supporting the removal of

Scofield was presented to the Circuit Court other than a

declaration of counsel. We conclude that the Circuit Court did

not err in concluding that there was no factual basis to grant

the Petition. Therefore, we need not reach Napua's further

arguments concerning the Order Denying Petition.3

3
Napua makes no argument in support of its challenge to the Order
Denying Reconsideration.

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The Circuit Court's December 6, 2018 Order Denying

Petition and February 8, 2019 Order Denying Reconsideration are

affirmed.

DATED: Honolulu, Hawai#i, March 28, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Deborah K. Wright,
Keith D. Kirschbraun, /s/ Karen T. Nakasone
Douglas R. Wright, Associate Judge
(Wright & Kirschbraun),
for Petitioner-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Paul Howard Peters,
for Respondent-Appellee.

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