In Re: The Arbitration between Kim v. Hickam Communities LLC

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-OCT-2024
07:57 AM
Dkt. 71 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE ARBITRATION BETWEEN

BRIAN S.I. KIM, Plaintiff-Appellant,
v.
HICKAM COMMUNITIES LLC, Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CSP-XX-XXXXXXX)

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

Brian S.I. Kim appeals from the November 18, 2021 Order
denying his motion to vacate an arbitration award and confirming
the award, entered by the Circuit Court of the First Circuit.1
We affirm.
Hickam Communities LLC terminated Kim's employment in
2013. Kim sued Hickam in 2014. Kim and Hickam had signed an
agreement that required arbitration of any employment dispute.
The parties stipulated to dismiss the lawsuit and arbitrate Kim's
claims through Dispute Prevention & Resolution, Inc. (DPR). They
selected an arbitrator. A prearbitration conference call was set
for January 6, 2016. Kim's attorney didn't call in because of a
calendaring error.

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The Honorable James H. Ashford presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Nothing happened until May 31, 2019, when Kim's
attorney emailed Hickam's attorney about the arbitration.
Hickam's attorney didn't respond.
On December 1, 2020, Kim's attorney emailed DPR to
reschedule the arbitration. The neutral the parties had selected
was no longer handling arbitrations, so the parties selected a
replacement.
Hickam moved to dismiss the arbitration on April 27,
2021, based on laches and waiver. It argued "two key witnesses"
were unavailable, and other witnesses' memories "will have
inevitably faded" in the more than seven years since Kim's
termination. Kim's opposition argued DPR had taken no action to
reschedule the prearbitration conference, and Hickam should have
reset it if Hickam was concerned about the passage of time. The
arbitrator made an Award granting Hickam's motion to dismiss.
The Award stated it was made "solely on the basis of waiver (and
not on the basis of laches, because prejudice to defendant has
not been sufficiently shown) due to the long period of no action
by [Kim] to pursue arbitration."
Kim moved to modify or correct the Award. He argued
that DPR's Arbitration Rules let any party or the arbitrator call
a conference, and required the arbitrator — not Kim — to set the
hearing date. Kim's motion was denied.
On September 14, 2021, Kim filed the special proceeding
below by moving to vacate the Award. The circuit court entered
the Order, which denied the motion to vacate and confirmed the
Award, on November 18, 2021. This appeal followed. We review de
novo. Tatibouet v. Ellsworth, 99 Hawai#i 226, 233, 54 P.3d 397,
404 (2002).
Kim contends the circuit court erred by confirming the
Award.

Judicial review of an arbitration award is confined to
the strictest possible limits, and a court may only vacate
an award on the grounds specified in [Hawaii Revised
Statutes (HRS)] § 658A-23 and modify or correct on the

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grounds specified in HRS § 658A-24. This standard applies
to both the circuit court and the appellate courts.

In re Hawai#i State Teachers Association, 140 Hawai#i 381, 391,
400 P.3d 582, 592 (2017) (cleaned up).
Kim argues the arbitrator "refused to consider the
evidence of the DPR Arbitration Rules[.]" A court may vacate an
arbitration award if the arbitrator "refused to consider evidence
material to the controversy . . . so as to prejudice
substantially the rights of a party to the arbitration
proceeding[.]" HRS § 658A-23(a)(3) (2016). Kim's argument is
not persuasive. DPR's rules are not evidence. An arbitrator's
misapplication of the law — or rules — is not a basis to vacate
an award. See Nordic PCL Constr., Inc. v. LPIHGC, LLC, 136
Hawai#i 29, 42, 358 P.3d 1, 14 (2015) (noting that "courts are
powerless to correct an arbitrator's . . . rulings on the law,
even if wrong").
Kim also argues the arbitrator "exceeded her powers" by
"finding a waiver by [Kim] of his right to arbitration[.]" A
court may vacate an arbitration award if the "arbitrator exceeded
the arbitrator's powers[.]" HRS § 658A-23(a)(4). An
arbitrator's power is determined by the arbitration agreement.
Tatibouet, 99 Hawai#i at 235, 54 P.3d at 406. DPR's arbitration
agreement provided:

Unless the parties' agreement provides otherwise, 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.

(Emphasis added.)
Kim doesn't argue that the Hickam arbitration agreement
restricts the arbitrator from granting any remedy the arbitrator
determines to be appropriate under the law. The arbitrator
determined that dismissal based on waiver was an appropriate
remedy under the law. The arbitrator acted within her power by
making the Award. The circuit court could not properly have

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vacated the Award even if it disagreed with the arbitrator's
findings of fact or application of the law. Nordic, 136 Hawai#i
at 42, 358 P.3d at 14.
The November 18, 2021 "Order (1) Denying Plaintiff
Brian S.I. Kim's Motion to Vacate Arbitration Award Dated
June 16, 2021 (Filed Sept. 14, 2021, DKT 1) and (2) Confirming
Arbitration Award Dated June 16, 2021" is affirmed.
DATED: Honolulu, Hawai#i, October 18, 2024.

On the briefs:
/s/ Katherine G. Leonard
Charles H. Brower, Acting Chief Judge
Michael P. Healy,
for Plaintiff-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Sarah O. Wang,
Andrea Lux Miyashita, /s/ Sonja M.P. McCullen
for Defendant-Appellee. Associate Judge

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