SAFEWAY, INC., Plaintiff-Appellee vs. NORDIC PCL CONSTRUCTION, INC., a Hawaii corporation, Defendant-Appellant, and VERSAFLEX INCORPORATED, a Missouri corporation, CB TECH SERVICES, INC., a Hawaii corporation, HAWAII NUT & BOLT, INC., a Hawaii corporation, CASCADE INDUSTRIES, INC., a Hawaii corporation, Defendants-Appellees and JOHN DOES 1-50, JANE DOES 1-50, DOE PARTNERSHIPS 1-50, DOE CORPORATIONS 1-50, DOE ENTITIES 1-50, Defendants and CASCADE INDUSTRIES, INC., Third-Party Plaintiff-Appellee vs. GRANT HENRY, DIVISION SEVEN CONSULTING OF HAWAII, INC., Third-Party Defendants-Appellee and JOHN DOES 2-50, JANE DOES 2-50, DOE PARTNERSHIPS 1-50, DOE CORPORATIONS 2-50, and DOE ENTITIES 1-50, Third-Party Defendants and VERSAFLEX INCORPORATED, a Missouri corporation, Third-Party Plaintiff-Appellee vs. BENNER STANGE ASSOCIATES ARCHITECTS, INC., Third-Party Defendant-Appellee.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorneys for Defendant-Appellant Nordic PCL Construction, Inc.:
David Schulmeister and Jeffrey M. Osterkamp of Cades Schutte LLP
Wayne M. Sakai, Michiro Iwanaga, and Daniel M. Chen of Sakai Iwanaga Sutton Law Group
Attorneys for Plaintiff-Appellee Safeway Inc.:
Terence J. O’Toole and Judith Ann Pavey of Starn O’Toole Marcus & Fisher
Attorneys for Defendants-Appellees Division Seven Consulting of Hawaii, Inc. and Grant Henry:
Lorraine H. Akiba, Paul B.K. Wong, and Jordon J. Kimura of McCorriston Miller Mukai MacKinnon
COURT: Leonard, Reifurth and Ginoza, JJ.
[ Listen to the entire audio recording in mp3 format ] (Long leadtime. Starts at 3:30 into audio)
Defendant/Counterclaim Plaintiff/Cross-Claim Defendant/Appellant Nordic PCL Construction, Inc. ("Nordic") appeals from a Circuit Court order, filed on July 1, 2010, denying Nordic's motion to compel arbitration regarding claims between it and Plaintiff/Counterclaim-Defendant/Appellee Safeway, Inc. ("Safeway"). The underlying claims concern a retail site construction project for which Nordic was selected by Safeway to be the general contractor.
In the proceedings below, Nordic sought to enforce an arbitration clause that it believed to have been made part of its contract with Safeway. Safeway contended that a section of another document had been incorporated into the contract, which effectively deleted the arbitration clause. The Circuit Court agreed with Safeway's argument regarding incorporation, and thereby concluded that there was no unambiguous intent between the parties to submit disputes to arbitration. It therefore denied Nordic's motion to compel arbitration, as well as Nordic's subsequent motion for an evidentiary hearing to resolve predicate factual issues previously addressed by the court.
In its appeal, Nordic contends that the Circuit Court erred by concluding that the document section in question had been incorporated into the contract. Nordic also contends that the Circuit Court erred by denying that portion of its motion for reconsideration that sought an evidentiary hearing to resolve contested factual issues.