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Bowen Hunsaker Hirai Consulting, Inc. v. Turk

Intermediate Court of Appeals of Hawaii

September 30, 2013

BOWEN HUNSAKER HIRAI CONSULTING, INC., Petitioner-Appellee and Cross-Appellant
v.
DAVID TURK, HARUMI TURK, MARJET INC., HAYASHI TRANSPACIFIC, INC. and HAYASHI TRANSPACIFIC AIRCRAFT, INC., Respondents-Appellants and DAVID TURK, LLLC, Respondent Cross-Appellee

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (S.P. NO. 09-1-0227)

Brian K. Yomono for Respondents-Appellants and Cross-Appellees, and Respondent Cross-Appellee.

Shelton G.W. Jim On (SJO & Associates, LLLC) for Petitioner-Appellee and Cross-Appellant.

Foley, Presiding Judge, Leonard and Reifurth, JJ.

SUMMARY DISPOSITION ORDER

Respondents-Appellants David Turk (Turk), Harumi Turk (Harumi), Marjet, Inc. (Marjet), Hayashi Transpacific, Inc. (Hayashi Transpacific), and Hayashi Transpacific Aircraft, Inc. (Hayashi Transpacific Aircraft), (collectively "Appellants"), appeal from a Circuit Court of the First Circuit (Circuit Court) October 19, 2009 Order Granting in Part and Denying in Part Petitioner Bowen Hunsaker Hirai Consulting, Inc.'s Petition to Compel Mediation and/or Binding Arbitration and a September 28, 2010 Final Judgment entered (1) in favor of Petitioner Bowen Hunsaker Hirai Consulting, Inc., (Bowen), as against Appellants, and (2) in favor of Respondent David Turk LLLC (Turk LLLC), as against Bowen.[1]

Appellants raise four points of error, contending that the Circuit Court erred: (1) in granting Bowen's July 10, 2009 Petition to Compel Mediation and/or Binding Arbitration against all Appellants; (2) in ruling that there were no genuine issue of material fact regarding whether Turk had signed the January 10, 2008 arbitration agreement with Bowen, and/or on behalf of Harumi; (3) in ruling that Turk and Harumi were equitably estopped from raising their non-execution of Bowen's January 10, 2008 Arbitration Agreement; and (4) in ruling that Bowen had not waived its right to arbitration.

Bowen cross-appeals, raising three points of error which assert that: (1) the Circuit Court erred in denying Bowen's Petition to Compel Mediation against Turk LLLC based on an alleged oral and/or implied agreement; (2) the Circuit Court abused its discretion in failing to order mediation pursuant to HRCC Rule 12.2; and (3) the Circuit Court erred when it entered judgment in favor of Turk LLLC and against Bowen because there were genuine issues of material fact in dispute and there was no notice, hearing or opportunity to be heard prior to the court's entry of judgment.

I. DISCUSSION

A. Appellants' Points of Error

(1) Appellants assert various procedural flaws in the Circuit Court proceedings in which Bowen sought to compel mediation and arbitration; Appellants' arguments in support of its first point of error focus on the issue of mediation.

First, we reject Appellants' argument that the Circuit Court improperly considered "new" arguments and exhibits set forth in Bowen's reply memorandum. Bowen's reply properly responded to arguments made in Appellants' memorandum in opposition to Bowen's petition seeking to compel mediation and arbitration.

Second, we reject Appellants' argument that the Circuit Court lacked the authority to order the parties to mediation. "When a court orders the parties to enter mediation, they have no choice but to obey." Arquette v. State, 128 Hawai'i 423, 445-46, 290 P.3d 493, 515-16 (2012); see also HRS § 603-21.9(6) (1993) (granting Hawai'i circuit courts with the inherent power and authority to control the litigation process before them and "[t]o make and award such judgments, decrees, orders, and mandates . . . and do such other acts and take such other steps as may be necessary to carry into full effect the powers which are or shall be given to them by law or for the promotion of justice in matters pending before them"). HRCC Rule 12.2 (1997)[2] provides:

Alternative Dispute Resolution. The court, in its discretion or upon motion by a party, may order the parties to participate in an alternative dispute resolution process ...

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