Oral Arguments before the Hawai`i Supreme Court

NO. 28278 - Tuesday, October 13, 2009 - 1:30 p.m.

KOGA ENGINEERING & CONSTRUCTION, INC., Petitioner-Respondent/Plaintiff-Appellee, vs. STATE OF HAWAI`I, Petitioner-Respondent/Defendant-Appellant. (Contract)

Attorney(s) for Petitioner-Respondent/Defendant-Appellant(s)
Honorable Mark J. Bennett, Attorney General, and Rebecca A. Copeland, Deputy Attorney General, State of Hawai`i

Attorney(s) for Respondent-Plaintiff-Appellee(s)
Bert T. Kobayashi, Jr. and Christopher T. Kobayashi (Kobayashi Sugita & Goda)

NOTE: Order assigning Judge Glenn Kim in place of Recktenwald, recused, filed 7/14/09.

NOTE: Order allowing Koga Engineering leave to file request to postpone oral argument and postponing oral argument, filed 9/11/09.

NOTE: Order allowing Koga Engineering leave to file request to postpone oral argument and postponing oral argument, filed 9/11/09.

COURT: RTYM, CJ; PAN, SRA & JED, JJ. and Circuit Judge Glenn Kim in place of Recktenwald, recused.

[ Listen to the entire audio recording in mp3 format ]

Brief description:

On July 8, 2009, both Petitioner & Respondent/Defendant-Appellant State of Hawai`i (the State) and Respondent & Petitioner/Plaintiff-Appellee Koga Engineering & Construction, Inc. (Koga) filed separate Applications for Writ of Certiorari, requesting that this court review the judgment of the Intermediate Court of Appeals (the ICA) in Koga Engineering & Construction, Inc., v. State, No. 28278 (App. Mar. 13, 2009) affirming in part and reversing in part the final judgment of the circuit court of the first circuit (the court) in this construction contract case.

In the State's Application, the State argues that the ICA erred in upholding the court's grant of Koga's motion for partial summary judgment and denying the State's motion for summary judgment because (1) the State did not waive the contractual requirement that Koga provide notice of its claim for additional compensation, and (2) Koga's claim is contractually barred because Koga's failure to give the State timely notice of the claim prejudiced the State.

In Koga's Application, Koga argues that the ICA erred in reversing the portion of the court's final judgment awarding Koga retainage held by the State for allegedly uncompleted work because (1) the State had notice of the claim and Koga could cite to the contractual provision breached by the State, (2) the court constructively amended the pleadings pursuant to Hawai`i Rules of Civil Procedure Rule 15(b), and (3) the court's conclusion that Koga was entitled to retainage was supported by the court's findings of fact.

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