No. SCWC-23-0000757, Tuesday, April 29, 2025, 9 a.m., Nordic v. LPIHGC

NORDIC PCL CONSTRUCTION, INC., fka NORDIC CONSTRUCTION, LTD., a corporation, Petitioner/Claimant/Counterclaim Respondent-Appellee, vs. LPIHGC, LLC, Respondent/Respondent/Counterclaimant-Appellant.

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The above-captioned case has been set for oral argument on the merits.

The oral argument will be held remotely and will be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Olelo at olelo.org/tv-schedule/.

Attorneys for Petitioner/Claimant/Counterclaim Respondent-Appellee NORDIC PCL CONSTRUCTION, INC., fka NORDIC CONSTRUCTION, LTD.:

     David Schulmeister, Keith Y. Yamada and Michael R. Soon Fah of Cades Schutte and Anna H. Oshiro of Damon Key Leong Kupchak Hastert

Attorneys for Respondent/Respondent/Counterclaimant-Appellant LPIHGC, LLC:

     Terence J. O’Toole, Judith A. Pavey and Kukui Claydon of Starn O’Toole Marcus & Fisher

NOTE: Certificate of Recusal, by Associate Justice Vladimir P. Devens, filed 12/02/24.

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 01/02/25.

NOTE: Order assigning Circuit Court Judge Kirstin M. Hamman and Circuit Court Judge Steven R. Nichols, in place of Recktenwald, C.J., recused, and Devens, J., recused, filed 01/09/25.

NOTE: Order accepting Application for Writ of Certiorari, filed 01/09/25.

COURT: McKenna, Eddins, and Ginoza, JJ., and Circuit Judge Hamman and Circuit Judge Nichols, in place of Recktenwald, C.J., recused, and Devens, J., recused.

Brief Description:

This appeal arises out of a construction dispute between Plaintiff-Appellant Nordic PCL Construction, Inc. (“Nordic”) and Defendant-Appellee LPIHGC, LLC (“LPI”). The dispute was arbitrated in 2010 and resulted in an arbitration award which was eventually vacated due to the arbitrator’s evident partiality. The circuit court consequently denied confirmation of the award and directed a rehearing before a new arbitrator in an order issued on March 3, 2017.

Nordic’s motion for taxation of costs was then granted, which LPI sought to appeal. The circuit court denied LIP’s motion for  interlocutory appeal. Years later, after the second arbitration resulted in award which was confirmed in a separate special proceeding, LPI appealed the taxation of costs order.

The Intermediate Court of Appeals (“ICA”) dismissed the appeal, holding that the circuit court’s March 3, 2017 order (denying confirmation of the first arbitration award, vacating the award, and ordering a rehearing before a new arbitrator) was an appealable final judgment under Hawai‘i Revised Statute (“HRS”) § 658A-28(a). The ICA held Nordic’s motion for taxation of costs was therefore  a post-judgment motion that was appealable when it was granted. Because LPI filed its appeal more than 30 days after the costs order the ICA dismissed the appeal for lack of jurisdiction based on untimeliness.

Nordic raises two questions on certiorari:

1. 1. Did the ICAS gravely err when it effectively overruled the “bright line” rule of its previously published SHOPO decision [State of Hawaii Org. of Police Officers (SHOPO) v. Cnty. Of Kauai, 123 Hawaiʻi 128, 230 P.3d 428 (App. 2010)] by holding that the [March 3, 2017 order] was a final order that terminated the proceedings for purposes of appellate jurisdiction notwithstanding the fact that it retained the matter for further proceedings by vacating the underlying arbitration award and directing a rehearing before a new arbitrator?
   2. Did the ICA gravely err by retrospectively applying this change in Hawaii law regarding when an order vacating an arbitration award becomes appealable to the substantial prejudice of both parties?