McClurg v. Caulfield

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-NOV-2024
07:53 AM
Dkt. 49 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

MICHAEL MCCLURG and TROPICAL DREAM,
a general partnership, Petitioners-Appellants,
v.
JENNIFER CAULFIELD and LEE PICHÉ, Respondents-Appellees,

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CCV-XX-XXXXXXX)

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

Petitioners-Appellants Michael McClurg and Tropical

Dream (collectively McClurg)1 appeal from the "Order Granting

Respondent[-Appellee] Jennifer Caulfield's [(Caulfield)] Motion

to Dismiss Filed September 23, 2021 and Denying [McClurg's]

Cross-Motion for Summary Judgment Filed October 21, 2021"

1 The record reflects that McClurg, Caulfield, and Lee Piché
(Piché) entered into a general partnership, under the partnership name
"Tropical Dream." Pursuant to the terms of the Partnership Agreement,
McClurg holds a 50% interest in the partnership, and Caulfield and Piché, who
were married at the time they entered into the partnership and are now
divorced, hold an undivided 50% interest. McClurg brought this lawsuit on
behalf of himself and Tropical Dream.
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(Order), filed on November 23, 2021, and the Final Judgment

(Judgment), filed on November 26, 2021, by the Circuit Court of

the Third Circuit (circuit court).2

McClurg contends on appeal that the circuit court

erred by granting Caulfield's motion to dismiss, and denying his

cross-motion for summary judgment.3 Upon careful review of the

record and relevant legal authorities, and having given due

consideration to the arguments advanced and the issues raised by

the parties, we resolve McClurg's contentions as follows:

(1) At the outset, we address McClurg's contention

that the circuit court erred by not converting Caulfield's HRCP

Rule 12(b)(6) motion to dismiss to a motion for summary

judgment. "[A] motion seeking dismissal of a complaint is

transformed into a[n] [HRCP] Rule 56 motion for summary judgment

when the circuit court considers matters outside the pleadings."

Goran Pleho, LLC v. Lacy, 144 Hawaiʻi 224, 236, 439 P.3d 176, 188

(2019) (citation omitted).

The record reflects that declarations signed by

counsel, and McClurg and Piché, were filed in support of and in

2 The Honorable Wendy M. DeWeese presided.

3 McClurg sets forth four points of error on appeal, contending
that the circuit court erred by: (1) "[f]ailing [t]o [t]reat [Caulfield's
Hawaiʻi Rules of Civil Procedure (HRCP) Rule 12(b)(6)] [m]otion [t]o [d]ismiss
as [a] [m]otion [f]or [s]ummary [j]udgment"; (2) granting Caulfield's motion
to dismiss; (3) "failing to grant [McClurg's] [c]ross-[motion for summary
judgment] on procedural grounds, in light of [Caulfield's] refusal to file an
opposition"; and (4) denying McClurg's cross-motion for summary judgment.
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opposition to Caulfield's motion to dismiss. These declarations

presented "matters outside the pleadings." See id. We find

that the circuit court's apparent consideration of these

declarations effectively converted the motion to dismiss to an

HRCP Rule 56 motion for summary judgment, and we therefore

review the circuit court's ruling accordingly in section (2)

infra. See Lumford v. Yoshio Ota, 144 Hawaiʻi 20, 25, 434 P.3d

1215, 1220 (App. 2018) (finding that because "the court did not

expressly state that it was excluding matters outside the

pleadings in making its decision on the Motion to Dismiss . . .

the [c]ircuit [c]ourt properly treated the Motion to Dismiss as

a summary judgment motion and [it will] consider the [c]ircuit

[c]ourt's ruling in [that] light").

(2) McClurg contends that the circuit court erred by

granting Caulfield's motion to dismiss. We review the circuit

court's ruling de novo. State Farm Fire & Cas. Co. v. Pac.

Rent-All, Inc., 90 Hawaiʻi 315, 322, 978 P.2d 753, 760 (1999)

(reviewing "the challenged motions to dismiss [de novo] pursuant

to the standard relating to summary judgment" where "the parties

presented various matters outside of the pleadings to the

circuit court"). The court applies the following standard,

Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
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fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and inferences drawn therefrom in
the light most favorable to the party opposing the motion.

Ralston v. Yim, 129 Hawaiʻi 46, 55—56, 292 P.3d 1276, 1285—86

(2013).

The Hawaiʻi Supreme Court has recognized that,

If there is an enforceable agreement to arbitrate, the
court's power is limited by [Hawaii Revised Statutes (HRS)]
Chapter 658. The court cannot act except as allowed by that
Chapter. The court can compel the parties to arbitrate
under HRS § 658-3. It can name the arbitrator under HRS §
658-4. It can compel witnesses to attend under HRS § 658-7.
In addition, the court can confirm, modify, or vacate a
final award under HRS §§ 658-8, -9, and -10. However, under
HRS § 658-5, the court cannot try or decide issues or
controversies that are referred to or are referable to the
arbitrator.

Bateman Constr., Inc. v. Haitsuka Bros., Ltd., 77 Hawaiʻi 481,

484, 889 P.2d 58, 61 (1995) (emphasis added).4

HRS § 658A-6 (2016) instructs that,

(a) An agreement contained in a record to submit to
arbitration any existing or subsequent controversy
arising between the parties to the agreement is valid,
enforceable, and irrevocable except upon a ground that
exists at law or in equity for the revocation of a
contract.

4 HRS chapter 658 was repealed in 2001, and replaced with HRS
chapter 658A (Uniform Arbitration Act). 2001 Haw. Sess. Laws Act 265, §§ 1,
5 at 810-20. Although Bateman Constr., Inc. references HRS chapter 658, the
legal principles set forth above, including that courts cannot decide issues
or controversies referable to arbitration, apply to arbitration clauses
governed by HRS chapter 658A. See United Pub. Workers, AFSCME, Local 646,
AFL-CIO v. City & Cnty. of Honolulu, Bd. of Water Supply, No. 27945, 2010 WL
706522, at *3 n.4 (Haw. App. Feb. 25, 2010) (mem. op.) ("HRS Chapter 658A is
similar in many respects to the repealed HRS Chapter 658, and therefore
certain decisions under HRS Chapter 658 remain instructive.")
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(b) The court shall decide whether an agreement to
arbitrate exists or a controversy is subject to an
agreement to arbitrate.

"[I]n order to be valid and enforceable, an

arbitration agreement must have the following three elements:

(1) it must be in writing; (2) it must be unambiguous as to the

intent to submit disputes or controversies to arbitration; and

(3) there must be bilateral consideration." Siopes v. Kaiser

Found. Health Plan, Inc., 130 Hawaiʻi 437, 447, 312 P.3d 869, 879

(2013) (citation omitted).

The parties do not dispute the existence of the

Partnership Agreement, which incorporates the following

arbitration clause,

XI. SETTLING DISPUTES

All Partners agree to enter into mediation before filing
suit against any other Partner or the Partnership for any
dispute arising from this Agreement or Partnership. All
Partners agree to attend one session of mediation before
filing suit. The Partners agree that any and all disputes,
claims or controversies arising out of or relating to this
Agreement shall be submitted to the American Arbitration
Association, or similar dispute resolution service, for
mediation, and if the matter is not resolved through
mediation, then it shall be submitted to the American
Arbitration Association, or similar dispute resolution
service, for final and binding arbitration. Judgment on the
Award may be entered in any court having jurisdiction. If
the dispute is not settled after one session of mediation
and if the arbitration process does not resolve the
dispute, the Partners are free to file suit. Any law suits
will be under the jurisdiction of the state of Hawaii.

(Emphasis added.)

The record reflects that the written arbitration

agreement referenced above unambiguously provided that "any and

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all disputes, claims or controversies arising out of or relating

to" the Partnership Agreement shall, if not resolved through

mediation, "be submitted to the American Arbitration

Association, or similar dispute resolution service, for final

and binding arbitration." The Partnership Agreement was signed

by all three partners -- McClurg, Piché, and Caulfield -- and

memorialized their agreement to make "initial contributions"

towards the building of "a custom home" that they would sell and

to "share the net profits sale of the house[,]" pursuant to the

terms of the agreement.

At present, the parties agree that a dispute exists

between McClurg and Caulfield. McClurg appears to contend that

the partnership property was sold for a loss after accounting

for construction expenses and costs, there are no net profits to

distribute, and judicial dissolution of the partnership is

appropriate. Caulfield appears to contend that she is entitled

to 25% of the net profit of the sale of the property, which is

being held in escrow by Title Guaranty, and that an accounting

is necessary to determine the calculation of the partnership's

profit. Pursuant to the Partnership Agreement, to which

Caulfield was a signatory, Caulfield shares an undivided 50%

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partnership interest with Piché.5 She disputes the distribution

of the partnership assets; the arbitration clause of the

Partnership Agreement reflects the agreement between the three

partners that all partnership "disputes, claims or

controversies" must be referred to arbitration before any

partner may file suit.

We conclude that the circuit court was not wrong in

ruling as a matter of law "that the [partnership] dispute that

[was] before [it] [was] a dispute that was intended to be

covered by the [P]artnership [A]greement" and, as such, needed

to be submitted for arbitration before it could be adjudicated

by the court.

(3) McClurg contends that the circuit court erred by

failing to grant McClurg's cross-motion for summary judgment on

"procedural grounds." McClurg appears to argue that the circuit

court should have granted McClurg's cross-motion for summary

judgment because Caulfield "did not file an opposition to the

5 Caulfield and Piché, who were married when the Partnership
Agreement was executed, divorced in March 2018. Caulfield contends that,
pursuant to the divorce agreement, she holds a 25% interest in the
partnership. McClurg appears to contend that Caulfield, pursuant to the
terms of the Partnership Agreement, holds an undivided 50% interest with
Piché, and, as such, Caulfield cannot independently (without Piché's
agreement) invoke the arbitration provision. McClurg cites no legal
authority for this proposition. We find that, whether Caulfield's interest
is properly characterized as a 25% interest or an undivided 50% interest,
Caulfield possessed, as a signatory and named partner to the Partnership
Agreement, a partnership interest that was governed by the arbitration
clause.
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[c]ross-[motion for summary judgment] or respond by affidavit or

otherwise, setting forth specific facts showing that there are

genuine issues for trial." Because the circuit court denied

McClurg's cross-motion for summary judgment without reaching the

merits, as discussed infra in section (4), we conclude that

McClurg's contention lacks merit.

(4) McClurg contends that the circuit court erred by

denying his cross-motion for summary judgment. At the hearing

on Caulfield and McClurg's respective motions, the circuit court

informed the parties that "[it was] not reaching [McClurg's]

cross-motion for summary judgment, because [it was] granting

[Caulfield's] motion to dismiss without prejudice." Consistent

with the above, the circuit court's Order stated that

"[McClurg's] Cross Motion for Summary Judgment is DENIED WITHOUT

PREJUDICE."

The record reflects that the circuit court summarily

denied McClurg's cross-motion for summary judgment after ruling

that this dispute, pursuant to the Partnership Agreement, must

first be submitted for arbitration. The circuit court thus

declined to address the merits of McClurg's cross-motion for

summary judgment on the basis that the lawsuit was not properly

before the court at that time. We conclude that the circuit

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court was not wrong in denying McClurg's cross-motion for

summary judgment, without prejudice, on this basis.

For the foregoing reasons, we affirm the Order, filed

November 23, 2021, and Judgment, filed November 26, 2021.

DATED: Honolulu, Hawaiʻi, November 14, 2024.

On the briefs:
/s/ Katherine G. Leonard
David H. Lawton, Acting Chief Judge
for Petitioners-Appellants.
/s/ Karen T. Nakasone
Robert Goldberg, Associate Judge
for Respondent-Appellee.
/s/ Kimberly T. Guidry
Associate Judge

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