Eichelberger v. Spear

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-MAY-2025
08:24 AM
Dkt. 47 SO
NO. CAAP-XX-XXXXXXX
(CONSOLIDATED WITH NO. CAAP-XX-XXXXXXX)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

DEBBIE EICHELBERGER, Plaintiff-Appellee, v.
RANDALL SPEAR; DAN JEFFERS, Defendants-Appellants,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; DOE LIMITED LIABILITY COMPANIES 1-10;
AND DOE ENTITIES 1-10, Defendants.

APPEALS FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC141000478)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, and McCullen and Guidry, JJ.)

In these consolidated appeals, Defendants-Appellants
Randall Spear (Spear) and Dan Jeffers (Jeffers) (together,
Defendants) appeal from the January 24, 2022 "Order Granting in
Part and Denying in Part 'Defendants['] . . . Motion to Confirm
in Part and Vacate in Part the Final Award of Arbitrator' Filed
on December 27, 2017" (Confirmation Order), and the April 5, 2022
"Judgment on [Confirmation Order]," both entered by the Circuit
Court of the First Circuit.1/

I. Background

On February 21, 2014, Plaintiff-Appellee Debbie
Eichelberger (Eichelberger) filed a complaint against Defendants,
asserting twelve claims related to the ownership and management
of two bars operating as Arnold's Beach Bar and Grill (Arnold's)

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The Honorable Gary W.B. Chang presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

and King's Pub (King's).2/ On April 1, 2014, Defendants answered
the complaint, and Spear filed a counterclaim asserting ownership
of Arnold's and King's. Eichelberger and Defendants agreed to
have their claims resolved through arbitration with the Honorable
Patrick K.S.L. Yim (Ret.) serving as the arbitrator (Arbitrator).
The Arbitrator bifurcated the case into two segments.
The first segment comprised arbitration hearings that were held
on January 8, 9, and 23, February 6 and 12, March 5, 6, and 8,
and April 9 and 10, 2015.
On August 21, 2015, the Arbitrator issued a Partial
Final Award of Arbitrator (Partial Final Award), which, among
other things, awarded joint ownership of Ruma, Arnold's and
King's (the Businesses) as follows: 75% to Eichelberger, 25% to
Spears, and 0% to Jeffers. The Arbitrator ordered Defendants to
perform all acts necessary to restore Eichelberger as sole and
controlling manager of the Businesses, and reserved jurisdiction
to determine certain monetary claims and any other remedies
deemed by the Arbitrator to be fair and reasonable in furtherance
of the Partial Final Award.
On August 28, 2015, Eichelberger filed a motion for an
order confirming the Partial Final Award, which Defendants
opposed. On September 2, 2015, Defendants filed a motion to
vacate the Partial Final Award, which Eichelberger opposed. On
October 7, 2015, the Circuit Court entered: (1) an order denying
Defendants' motion to vacate the Partial Final Award; (2) an
order granting Eichelberger's motion for an order confirming the
Partial Final Award; and (3) a related judgment.
Meanwhile, the Arbitrator held a further hearing on
June 13, 2017, and issued his Final Award of Arbitrator (Final
Award) on September 28, 2017. The Arbitrator denied the parties'
claims for monetary damages and fees and costs, and relinquished
jurisdiction.
On December 27, 2017, Defendants filed a motion to
confirm in part and vacate in part the Final Award (Motion to
Confirm/Vacate), which Eichelberger opposed. Defendants

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Eichelberger alleged that Ruma Spear, LLC ( Ruma) owns and operates
Arnold's and that Blu Boy, Inc. operates, i.e., does business as, King's.

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requested that the Circuit Court: (1) confirm the Final Award as
to the parties' monetary claims for the period from September 1,
2013 through September 15, 2015; (2) vacate the Final Award as to
the Arbitrator's determination that Eichelberger owned 75% and
Spear owned 25% of Arnold's and King's, and any finding on the
parties' monetary claims for the period prior to September 1,
2013; and (3) find that the Arbitrator made no determination as
to the parties' monetary claims from September 16, 2015, going
forward.
On January 24, 2022, the Circuit Court entered the
Confirmation Order. The court granted Defendants' request to
confirm the Final Award to the extent the Arbitrator denied all
claims by the parties for monetary relief. The court denied
Defendants' request (a) to vacate the Arbitrator's determination
regarding ownership of Arnold's and King's, and (b) to find that
the Arbitrator made no determination as to the parties' monetary
claims from September 16, 2015, going forward.
On appeal, Defendants contend that the Circuit Court
erred in denying their request to vacate the Final Award, where
the Arbitrator: (1) exceeded his powers under Hawaii Revised
Statutes (HRS) § 658A-23(a)(4) and violated public policy in
determining the parties' ownership percentages of the Businesses;
(2) conducted the arbitration hearing contrary to the provisions
of HRS § 658A-15; and (3) violated HRS § 658A-23(a)(3) by failing
to postpone the second arbitration hearing. Eichelberger
contends as a threshold matter that this court lacks jurisdiction
over Defendants' appeal, because Defendants' points of error all
involve the denial of their request to vacate portions of the
Final Award.
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.

II. Discussion

Initially, we conclude that we have jurisdiction over
Defendants' appeal from the judgment on the Confirmation Order.

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See HRS § 658A-28(a)(6) ("An appeal may be taken from . . . (6)
[a] final judgment entered pursuant to this chapter." (formatting
altered)).
We resolve Defendants' points of error as follows, and
affirm:
(1) Defendants contend that the Arbitrator exceeded his
powers under HRS § 658A-23(a)(4)3/ and violated public policy in
determining the parties' ownership percentages of the Businesses,
where the parties submitted for arbitration the issue of which of
two parties, Eichelberger or Spear, owned the Businesses, and "it
was clear the two parties could not co-exist."
The Hawai#i Supreme Court has stated:

In determining whether an arbitrator has exceeded his
or her authority under the agreement, "there should be no
'second guessing' by the court" of the arbitrator's
interpretation of his or her authority so long as the
arbitrator's interpretation "could have rested on an
interpretation and application of the agreement." Local
Union 1260 Int'l Bhd. of Elec. Workers v. Hawaiian Tel. Co.,
49 Haw. 53, 56, 411 P.2d 134, 136 (1966); [Univ. of Haw.
Prof'l Assembly v. Univ. of Haw.], 66 Haw. [207,] 210, 659
P.2d [717,] 719 [(1983) (per curiam)] (explaining that the
issue of arbitrability should be decided by the arbitrator,
rather than the court, because "the parties agreed to submit
to the arbitrator" disputes of arbitrability); see also Haw.
State Teachers Ass'n v. Univ. Lab. Sch., 132 Hawai #i 426,
432, 322 P.3d 966, 972 (2014) (upholding the principle that
questions of arbitrability are reserved for the arbitrator);
[Univ. of Haw. v. Univ. of Haw. Prof'l Assembly], 66 Haw.
[228,] 230, 659 P.2d [729,] 731 [(1983) (per curiam)] ("It
is the arbitrator's construction of the contract which was
bargained for." (alterations omitted) (quoting United
Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S.
593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960))[)].

In re Grievance Arbitration Between State Org. of Police Officers
and Cnty. of Kaua#i (SHOPO), 135 Hawai#i 456, 463, 353 P.3d 998,
1005 (2015) (footnote omitted).
The one-page Agreement to Participate in Binding
Arbitration (Arbitration Agreement) signed by Eichelberger,
Spear, Jeffers, and the Arbitrator states that at the request of
the parties, the Arbitrator "agreed to conduct a binding
arbitration of the matters in controversy between them." The

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HRS § 658A-23(a)(4)(2016) provides: "Upon motion to the court by
a party to an arbitration proceeding, the court shall vacate an award made in
the arbitration proceeding if: . . . [a]n arbitrator exceeded the arbitrator's
powers[.]" (Formatting altered.)

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Arbitration Agreement further provided that "the Arbitrator shall
determine all issues submitted to arbitration by the parties and
may grant any and all remedies that the Arbitrator determines to
be just and appropriate under the law."
Eichelberger's complaint sought a declaratory judgment
"adjudicating the rights and liabilities of the parties to
ownership and control of [Arnold's, King's] and Ruma . . . ."
Defendants do not point to anything in the record that restricted
or limited the Arbitrator's powers in determining the ownership
of the Businesses or that required the Arbitrator to choose
between Eichelberger or Spear as the sole owner of the
Businesses. On this record, we conclude that the Arbitrator did
not exceed his powers in determining the parties' ownership
percentages of the Businesses.
As to Defendants' public policy argument, the following
analytic framework applies:

First, the court must determine whether there is an
explicit, well defined, and dominant public policy that is
ascertained by reference to the laws and legal precedents
and not from general considerations of supposed public
interests. Second, the court must determine whether the
arbitration award itself is clearly shown to be contrary to
the explicit, well-defined, and dominant public policy.

SHOPO, 135 Hawai#i at 465, 353 P.3d at 1007 (internal quotation
marks and citations omitted; emphases added).
Defendants argue that the Arbitrator's decision "made
two persons who could not get along partners, violating public
policy." (Emphasis omitted.) But Defendants do not cite any
specific Hawai#i law or legal precedent that prohibits persons
who do not like each other from co-owning a business. Absent an
"explicit, well defined, and dominant" public policy, Defendants'
argument fails.
Defendants also argue that "the [A]rbitrator's decision
that 75% ownership of Arnold's . . . is awarded to . . .
Eichelberger orders the Honolulu Liquor Commission [(HLC)] to
recognize an ownership mandated by the arbitrator and not the
[HLC]," contrary to the requirements of HRS § 281-41.
We note, however, that the Arbitrator did not order the
HLC to do anything. The Partial Final Award, which was

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incorporated by reference into the Final Award, awarded ownership
in the Businesses seventy-five percent to Eichelberger, and
ordered Defendants to restore Eichelberger to her position as
sole and controlling manager of the Businesses. The Arbitrator
did not order the HLC to "recognize" any "ownership," did not
require the HLC to approve the transfer of any liquor license,
and did not otherwise require any party to violate HRS § 281-41.
On this record, Defendants have not clearly shown that the Final
Award was contrary to any explicit, well defined, and dominant
public policy embodied in HRS § 281-41.
(2) Defendants contend that "the [A]rbitrator conducted
the [arbitration] hearing contrary to the provisions of HRS
§ 658A-154/ by: (i) not allowing Defendants to utilize Arnold
Greene [(Greene)] as a witness when the [A]rbitrator . . .
advise[d] Greene of his Fifth Amendment constitutional right
against self-incrimination . . . , where such conduct by the
[A]rbitrator prejudiced the rights of Defendants under HRS
§ 658A-23(a)(2)(C)[];5/ and (ii) . . . not allowing [Defendants]
to call all of their witnesses at the initial arbitration hearing
which began on January 23, 2015." (Footnotes added.)
It is important to note that Defendants do not contend
that the Arbitrator refused to allow Greene to testify. Rather,
they argue that when the Arbitrator advised Greene of his Fifth
Amendment rights, it "had a chilling effect" when Green chose not
to testify. Defendants cite no Hawai#i authority prohibiting an
arbitrator from advising a witness of the privilege against self-
incrimination. See Territory of Hawai#i v. Lanier, 40 Haw. 65,
77 (Haw. Terr. 1953) (recognizing that a judge has discretion to
advise a witness of the privilege against self-incrimination but
is not required to do so (citing Republic of Hawai#i v. Parsons,
10 Hawai#i 601 (Haw. Rep. 1896))). Moreover, Defendants point to

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HRS § 658A-15(d) states that "a party to the arbitration
proceeding has a right to be heard, to present evidence material to the
controversy, and to cross-examine witnesses appearing at the hearing."
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HRS 658A-23(a)(2)(C) provides: "Upon motion to the court by a
party to an arbitration proceeding, the court shall vacate an award made in
the arbitration proceeding if: . . . [t]here was . . . [m]isconduct by an
arbitrator prejudicing the rights of a party to the arbitration proceeding[.]"
(Formatting altered.)

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nothing in the record indicating that the Arbitrator's advisement
amounted to an abuse of discretion in the circumstances of this
case.
Defendants make the blanket assertion that the
Arbitrator did not "allow[ them] to call six witnesses at the
2015 arbitration hearing." They do not point to where in the
record they established a ruling by the Arbitrator excluding
these proposed witnesses, and what offer of proof they made to
the Arbitrator as to what evidence would be adduced from each of
them. We are not obligated to search the record for this
information. Hawaii Ventures, LLC v. Otaka, Inc., 114 Hawai#i
438, 480, 164 P.3d 696, 738 (2007) (quoting Lanai Co. v. Land Use
Comm'n, 105 Hawai#i 296, 309 n.31, 97 P.3d 372, 385 n.31 (2004)).
Additionally, Defendants make no argument on appeal as to how
they were prejudiced by the Arbitrator's purported ruling. See
HRAP Rule 28(b)(7). We decline to address Defendants'
contention, which was not properly preserved or presented.
(3) Defendants contend that the Arbitrator violated HRS
§ 658A-23(a)(3)6/ by failing to postpone the June 13, 2017 hearing
"when [Eichelberger] provided documents [to Defendants] one day
before the arbitration hearing and there still was discovery
outstanding." Defendants assert that they "moved to continue the
arbitration hearing . . . because [Eichelberger] had only
provided some of the requested discovery . . . the day before the
arbitration hearing." They further argue that the Arbitrator, in
denying Defendants' June 2, 2017 motion for sanctions against
Eichelberger, "was wrong in asserting that there was no prejudice
to [Defendants]" caused by Eichelberger's failure to comply with
the Arbitrator's discovery order.
Eichelberger argued below, and continues to assert on
appeal, that Defendants did not actually request a continuance of
the June 13, 2017 arbitration hearing. The Circuit Court
concluded that "there was no formal motion to continue the second

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HRS § 658A-23(a)(3) provides: "Upon motion to the court by a
party to an arbitration proceeding, the court shall vacate an award made in
the arbitration proceeding if: . . . [a]n arbitrator refused to postpone the
hearing upon showing of sufficient cause for the postponement . . . ."
(Formatting altered.)

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arbitration [hearing]" and "no actual request for a continuance,
although the matter of a continuance was referred to in the
papers."7/
Even if we assume that Defendants did request a
continuance of the June 13, 2017 hearing, on appeal, they offer
no argument as to how they were prejudiced by the claimed denial
of that request. They argue generally that "documents that were
essential for the arbitration hearing were not provided by
Eichelberger," but they do not explain how any specific requested
documents were material, much less "essential," to Defendants'
claims or defenses. On this record, we cannot say that the
Circuit Court erred in denying Defendants' request to vacate in
part the Final Award based on the alleged failure of the
Arbitrator to postpone the June 13, 2017 arbitration hearing.

III. Conclusion

For the reasons discussed above, we affirm the
January 24, 2022 "Order Granting in Part and Denying in Part
'Defendants['] . . . Motion to Confirm in Part and Vacate in Part
the Final Award of Arbitrator' Filed on December 27, 2017" and
the April 5, 2022 "Judgment on [Confirmation Order]," both
entered by the Circuit Court of the First Circuit.

DATED: Honolulu, Hawai#i, May 19, 2025,

On the briefs:
/s/ Clyde J. Wadsworth
Keith M. Kiuchi Presiding Judge
for Defendants-Appellants.
/s/ Sonja M.P. McCullen
Mark S. Kawata Associate Judge
for Plaintiff-Appellee.
/s/ Kimberly T. Guidry
Associate Judge

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In Defendants' reply in support of their motion for sanctions,
they specifically argued against another continuance, instead urging the
Arbitrator to dismiss Eichelberger's claims. Nevertheless, in a declaration
of counsel supporting Defendants' Motion to Confirm/Vacate, counsel stated
that at the June 13, 2017 hearing on the motion for sanctions, counsel asked
for the arbitration hearing to be continued, and the Arbitrator denied the
request.

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