BRIAN E. BENNETT and DEBRA S. BENNETT, Respondents/Plaintiffs-Appellees-Cross-Appellants,
SAMUEL JONG HOON CHUNG and LINDA HYUNKONG CHUNG, Petitioners/Defendants-Appellants-Cross-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-16-0000784; CIVIL NO. 11-1-0882)
H. Osaki for petitioners/defendants-
E. Badger for
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
an arbitrator issues an arbitration award, parties to the
arbitration proceeding may file motions to confirm or to
vacate the award in court. Generally, a party must file a
motion to vacate an arbitration award within ninety days
after it receives notice of the award. Hawai'i Revised
Statutes (HRS) § 658A-23 (Supp. 2001) . On the other
hand, a party may file a motion to confirm the award at any
time after receiving notice of the award. HRS § 658A-22
(Supp. 2001). This case presents two related questions
involving these provisions: first, whether the time to file a
motion to vacate an arbitration award is limited by the
opposing party's filing of a motion to confirm; and
second, how an order denying a motion to vacate an
arbitration award can be properly appealed.
case, Respondents/Plaintiffs-Appellees-Cross-Appellants Brian
E. Bennett and Debra S. Bennett (collectively, "the
Bennetts"), after receiving notice of an
arbitrator's award in their favor, filed a motion to
confirm the award in the Circuit Court of the First Circuit
(circuit court). Before the ninety-day period in which
Petitioners/Defendants-Appellants-Cross-Appellees Samuel Jong
Hoon Chung and Linda Hyunkong Chung (collectively, "the
Chungs") could file a motion to vacate the award had
expired, the circuit court granted the Bennetts' motion
to confirm. The Chungs then filed a motion to vacate the
award within the ninety-day period. The circuit court denied
their motion to vacate, and the Chungs appealed the judgment
of confirmation and the order denying the motion to vacate.
The Intermediate Court of Appeals (ICA) dismissed the
Chungs' appeal after they failed to file a jurisdictional
statement and opening brief.
the circuit court, the Chungs filed a motion to amend the
previous order denying their motion to vacate because they
believed that the arbitration statute barred such orders from
being appealed. The circuit court agreed, and amended its
order to "again confirm" the award to allow the
Chungs to appeal. However, the ICA dismissed the Chungs'
subsequent appeal for lack of appellate jurisdiction. On
certiorari, the Chungs argue that the ICA erred in dismissing
agree. As a preliminary matter, the Chungs could not have
appealed from the circuit court's first order denying
their motion to vacate the award because HRS Chapter 658A
does not permit appeals from such orders. Therefore, the
circuit court properly amended its order and judgment and
reconfirmed the award to allow the Chungs to appeal. Second,
because HRS § 658A-23 clearly provides that the Chungs
had ninety days, not less, to file a motion to vacate, and
they filed a motion to vacate within that period, the Chungs
had a right to timely appeal from the circuit court's
amended order and amended judgment.
conclude that the ICA has appellate jurisdiction to
adjudicate the Chungs' appeal. Accordingly, we vacate the
ICA's August 8, 2017 Order Dismissing Appeal for Lack of
Appellate Jurisdiction and remand the case to the ICA to
resolve the Chungs' appeal on the merits.
Chungs and the Bennetts were involved in a dispute arising
out of the sale of real property, and decided to resolve the
dispute through arbitration. On February 11, 2015, an
arbitrator issued a final award that awarded the Bennetts
money damages and attorneys' fees and costs. On February
12, 2015, the Chungs were notified of the arbitrator's
award by email.
Circuit Court Proceedings - Motion to Confirm
February 17, 2015, five days after the Chungs were notified
of the arbitrator's award, the Bennetts filed a motion in
the circuit court to confirm the arbitrator's award
(Motion to Confirm) pursuant to HRS §
March 2, 2015, the Chungs filed a memorandum in opposition to
the Motion to Confirm. In their memorandum, the Chungs
informed the circuit court that they "intend[ed] to file
a motion to vacate under Section 658A-23 of the Hawaii
Revised Statutes,  thus making the [Bennetts' Motion to
Confirm] premature." They further explained that under
HRS § 658A-23(b), they "[had] a statutory right to
file a motion to vacate by May 13, 2015." The Chungs
therefore requested "that the Court defer any decision
on the [Bennetts' Motion to Confirm] until it can decide
a motion to vacate on the merits." The Chungs did not
argue any issue on the merits or provide any substantive
reason to deny the Bennetts' Motion to Confirm at that
hearing was held on the Bennetts' Motion to Confirm on
March 10, 2015, approximately one month after the Chungs
received notice of the arbitration award. At that time, the
Chungs had not yet filed a motion to vacate the award. At the
hearing, the issue of whether the circuit court was required
to wait to confirm the arbitration award until the Chungs
filed a motion to vacate the award was discussed. First, the
Chungs contended that confirming the award without waiting
the requisite ninety days prejudiced them:
[THE CHUNGS' COUNSEL:] I mean, we have 90 days. And what
has happened here and I guess what you could do, according to
the [Bennetts], if the award comes out, you just move to
confirm the next day. And it forces a party on the other side
like myself and the Chungs to, like, move fast on this. ... I
mean, I have the pieces, but I would like to put together a
good motion to vacate and, I mean, I can't do that to
beat this motion, and I don't think the way the statute
is written it's intended to do that. And I think what the
Court should do is just delay this decision on this motion
until the motion to vacate is filed.
THE COURT: Okay. But they did move fast ... to confirm, but
the award is issued February 11th, right? Motions [sic] filed
six days late, February 17th. The hearing is today, so you
had about 30 days to file.
[THE CHUNGS' COUNSEL:] Yes. Yes. And I have sixty more
days to file. It is not my intent, Your Honor, to delay until
the 90 day. ... I mean, conversely, if the Court says,
"I confirm now," then the statutory right to move
to vacate is meaningless. And all I'm asking for, Your
Honor, is time within that statutory period to get the motion
filed there and heard, and then the Court can decide.
Bennetts argued that any court order confirming the award at
that time would not hamper the rights of the Chungs to file a
motion to vacate in the future:
[A]s I read the law, the rights of the defendant or
respondent in this matter are not abridged by the Court
granting the motion to affirm. If [the Chungs bring] a motion
which identifies a valid basis, legal and factual, upon which
the Court concludes that vacating the award is appropriate
under the circumstances, the Court will vacate and that will
terminate and seize whatever benefits we have. . But I'm
entitled to by - we're - for 658-22 says,
"shall" not "may." This is one of those
kinds of rules are black and white [sic]. And so I'm
entitled to the affirmation of the award today without
prejudice to whatever [the Chungs' counsel] thinks he has
or doesn't have.
response, the Chungs' counsel argued that in the interest
of judicial economy, it would be better for the circuit court
to wait to rule on the Bennetts' Motion to Confirm until
the Chungs filed their motion to vacate, even if no motion to
vacate was currently pending. Specifically, the Chungs'
counsel voiced his concern that an order granting the
Bennett's Motion to Confirm would trigger appellate
deadlines that would differ from the deadlines triggered by a
subsequent order on the Chungs' motion to vacate.
acknowledging the Chungs' argument regarding judicial
economy, the circuit court nevertheless concluded:
[T]he court is guided by 658-22. And, to me, it's very
clear that it requires me [sic]. It says, "shall issue a
confirming order unless the award is modified or corrected
pursuant to those sections or is vacated pursuant to Section
The award was issued February 11th. The motion was filed
February 17th. The hearing is set today. [The Chungs] had
about 30 days to file. If a motion to vacate had been filed
and was currently pending before the Court, then I - it would
be very clear to me that I would look, also, to 658A-23. And
at that point the concerns of judicial economy would, to me,
seem to dictate that there just be one hearing on both
motions. But at this point the motion to vacate is being
discussed just purely in hypothetical terms and it has not
been filed yet, although [the Chungs] have represented that
they are going to file one .
Given my reading of 658-22, the Court's - my decision is
going to be to grant the confirmation of the award. I think
I'm constrained by this particular section which I agree
with the movants is very clear that I shall issue the
confirming order. So for those reasons and other reasons
indicated in the moving papers, the Court is going to grant
the motion .
April 6, 2015, the circuit court entered a written order
granting the Bennetts' Motion to Confirm (Order Granting
Motion to Confirm), and a final judgment (Judgment of
Confirmation) in favor of the Bennetts. The Chungs did not
appeal the Order Granting Motion to Confirm or the Judgment
Circuit Court Proceedings and First Appeal - Motion to
13, 2015, the Chungs filed, within the statutory ninety-day
window provided by HRS § 658A-23(b), a motion to vacate
the arbitration award (Motion to Vacate). Therein, the
Chungs' alleged evident partiality by the arbitrator. The
Bennetts filed a memorandum in opposition to the Chungs'
Motion to Vacate and challenged the Chungs' claims
regarding the arbitrator's evident partiality.
circuit court held a hearing on the Chungs' Motion to
Vacate on June 26, 2015. At the hearing, the parties disputed
whether the arbitrator demonstrated evident partiality. At
the conclusion of the hearing, the circuit court orally
denied the Chungs' Motion to Vacate. Specifically, the
circuit court stated that it was not persuaded that the
arbitrator demonstrated evident partiality and case law was
"very clear that the Court's role is not to
second-guess the arbitrator's award."
22, 2015, the circuit court entered a written order denying
the Motion to Vacate (Order Denying Motion to Vacate) .
Chungs filed a notice of appeal from the April 6, 2015
Judgment of Confirmation and the July 22, 2015 Order Denying
Motion to Vacate. The Chungs subsequently did not file a
jurisdictional statement or opening brief. However, on
November 2, 2015, in response to the Bennetts' motion to
dismiss, the Chungs filed a memorandum noting that
"there may be a jurisdictional issue."
Specifically, the Chungs stated that "an appeal does not
lie from an order denying a motion to vacate an arbitration
award," and cited HRS § 658A-28 (Supp. 2001)
Therefore, the Chungs concluded that the way to properly
appeal the circuit court's Order Denying Motion to Vacate
was "to have the trial court enter an amended judgment,
such that an appeal can be taken which would be sanctioned by
December 23, 2015, the ICA dismissed the Chungs' appeal
pursuant to Hawai'i Rules of Appellate Procedure (HRAP)
Rule 30 because the Chungs did not timely file a
jurisdictional statement or opening brief, and did not
otherwise respond to the subsequent notice of default.
Circuit Court Proceedings of the Instant Appeal
August 15, 2016, eight months after the ICA dismissed the
Chungs' first appeal, the Chungs filed a motion to enter
an amended judgment in the circuit court "in order to
appeal the denial of their motion to vacate arbitration
award" (Motion to Amend). In their Motion to Amend, the
Chungs stated that they believed they could not have appealed
the circuit court's Order Denying Motion to Vacate,
because denials of motions to vacate are not appealable
orders under HRS § 658A-28. Therefore, they requested
that an amended judgment be entered so that a proper appeal
could be taken.
September 22, 2016, the circuit court held a hearing on the
Chungs' Motion to Amend. At the hearing, the Bennetts
conceded that the Chungs' Motion to Vacate was timely.
However, the Bennetts appeared to argue that because the
circuit court granted their Motion to Confirm, it also ruled
on any motion to vacate at that time:
[THE BENNETTS' COUNSEL:] But the idea that there's a
second different, dispositive, segregable set of facts and
law that would entitle [the Chungs] to separate and different
legal rights is simply incorrect. The fact that [the
Chungs' counsel] has - that he has to file - if we had
filed nothing and he filed his motion in 90 days and then
there was a motion to confirm afterwards, it would have been
fine. But the courts would have considered the motion to
confirm and reserved the motion to vacate, considered exactly
the same set of facts and law, and if it didn't, it's
because [the Chungs' counsel] didn't bring that
information to the court's attention when the motion to
confirm was argued and briefed.
THE COURT: He had 90 days to file his motion to vacate.
[THE BENNETTS' COUNSEL:] Which he did.
THE COURT: Yeah.
[THE BENNETTS' COUNSEL:] But I've never said his
motion to vacate was untimely. I'm saying that the motion
to vacate is the other side of the motion to confirm, the two
are identical sets of facts and law.
Chungs' counsel disputed that the facts and law on which
a party might rely in a motion to confirm were the same as
the facts and law in a motion to vacate:
So when [the Bennetts' counsel] said this is the
different side of the same coin, it is not the different side
of the same coin. They're two different things. Because I
can put together a petition to confirm an arbitration award
in half an hour. I cannot put together a motion to vacate
that fast. And that's why I asked for the abeyance, to
hold it in abeyance, to give me what the legislature gave me,
which was the 90 days, in order to prepare and present the
motion to vacate, which is different, qualitatively
different. And if the legislature said, oh, you know what, if
a petition to confirm comes a couple days after the award is
issued, well, you're out of luck then. We don't -
this 90-day thing is just out the window. Legislature's
not saying that. They're saying, here is the time you got
to test the award. And no one's saying I didn't do
that right. I did.
Chungs further argued that this court's decision in
Salud v. Financial Security Insurance Co., 69 Haw.
427, 430, 745 P.2d 290, 293 (1987), provided the means in
which a party could appeal an order denying a motion to
vacate an arbitration award.
October 25, 2016, the circuit court filed an Amended Order
Denying Defendants' Motion to Vacate Arbitration Award
(Amended Order). In amending its previous Order Denying
Motion to Vacate, the circuit court explained:
5. The nonappealability of an order denying a motion to
vacate is consistent with case law. In [Salud], the
Hawaii Supreme Court interpreted the predecessor Chapter 658,
which also did not provide for a direct appeal of an order
denying a motion to vacate an arbitration award.
6. The Salud Court, however, noted that the lack of
a statutory right to appeal a denial of a motion to vacate,
did not mean that such orders could never be reviewed.
7. Salud's holding that "a confirmation
should follow" a court's denial of a motion to
vacate award, is consistent with the current pertinent
provision contained in HRS § 658A-23(d).
8. HRS § 658-23, entitled "Vacating award,"
governs a motion to vacate an award. Subsection (d) states
"[i]f the court denies a motion to vacate an award, it
shall confirm the award unless a motion to modify or correct
the award is pending." This means that a court must
confirm an award following a denial of a motion to vacate an
9. In this case, this court did not confirm the award after
denying the motion to vacate, as required by HRS §
10. Because the award had already been confirmed prior to the
filing of the motion to vacate award, it did not occur to the
court, nor to any of the parties, that the award should be
confirmed again, to ...