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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-AUG-2020
07:51 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE MATTER OF THE ARBITRATION BETWEEN
UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
Union-Appellant,
and
CITY AND COUNTY OF HONOLULU, DEPT. OF HUMAN
RESOURCES (ROUTE SELECTION) BM-12-02 (2014-022),
Employer-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P. NO. 17-1-0123)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Chan and Wadsworth, JJ.)
Union-Appellant United Public Workers, AFSCME, Local
646, AFL-CIO (UPW) appeals from the April 17, 2018 Final Judgment
(Final Judgment), entered in favor of Employer-Appellee City and
County of Honolulu (the City), by the Circuit Court of the First
Circuit (Circuit Court).1 UPW also challenges the Circuit
1
The Honorable Jeffrey P. Crabtree presided.
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Court's April 17, 2018 Order Denying Motion for Civil Contempt
Citation Mandate for Payment of Monetary Judgment, and for Other
Appropriate Relief (Order Denying Contempt Motion).
UPW raises four points of error on appeal, contending
that the Circuit Court erred by: (1) refusing to give final and
binding effect to the September 1, 2017 First Amended Decision
that was entered in the underlying arbitration proceeding (First
Amended Decision), modifying the deadlines set by the arbitrator,
and collaterally attacking its own November 13, 2017 Amended
Judgment confirming the First Amended Decision (Amended
Judgment); (2) denying UPW's November 24, 2017 request for a
civil contempt remedy; (3) denying UPW's request for mandamus
against the City to comply with the non-monetary aspects of the
Amended Judgment; and (4) denying UPW's November 24, 2017 request
for attorneys' fees and costs.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve UPW's points of error as follows:
(1) UPW argues that the Circuit Court collaterally
attacked the First Amended Decision and the Amended Judgment by
giving the City until January 16, 2018, to demonstrate compliance
with the terms of the First Amended Decision. The First Amended
Decision ordered the City to make certain payments and take other
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actions within specified periods of time. It is undisputed that
the City did not comply with those deadlines.
A collateral attack is defined as "an attempt to
impeach a judgment or decree in a proceeding not instituted for
the express purpose of annulling, correcting or modifying such
judgment or decree." Kim v. Reilly, 105 Hawai#i 93, 96, 94 P.3d
648, 651 (2004) (citation omitted). As we explained in Smallwood
v. City & County of Honolulu:
The word collateral, in this connection, is always used as
the antithesis of direct, and it is therefore wide enough to
embrace any independent proceeding. To constitute a direct
attack upon a judgment, it is said, it is necessary that a
proceeding be instituted for that very purpose. . . . But
if that action or proceeding has an independent purpose and
contemplates some other relief or result, although the
overturning of the judgment may be important or even
necessary to its success, then the attack upon the judgment
is collateral and falls within the rule. A direct attack on
a judicial proceeding is an attempt to avoid or correct it
in some manner provided by law. A collateral attack on a
judicial proceeding is an attempt to avoid, defeat, or evade
it, or to deny its force and effect in some manner not
provided by law.
118 Hawai#i 139, 147–48, 185 P.3d 887, 895–96 (App. 2008)
(citation omitted).
UPW relies on Kim, 105 Hawai#i at 96-97, 94 P.3d at
651-52, wherein a defendant challenged an underlying judgment,
arguing the amount of the award should be reduced pursuant to
statute, in response to the plaintiff's motion to enforce. The
supreme court held that the defendant's challenge constituted an
improper collateral attack, because the defendant failed to raise
the statute during the arbitration, challenge the confirmation,
or file an appeal. Id. at 96, 94 P.3d at 651. This case is
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distinguishable from Kim, because here, in response to UPW's
contempt motion, which had the stated goal of enforcing the First
Amended Decision, the City did not challenge the First Amended
Decision; and, in denying the motion, the Circuit Court did not
modify either the First Amended Decision or its judgment
confirming it. The City argued that it intended to comply with
the First Amended Decision, but that it was delayed by
"processing the funding requisitions, obtaining funding
authorizations, and actual 'cutting' of the checks." We cannot
conclude that the City's failure to fully comply with the First
Amended Decision constitutes a collateral attack on the First
Amended Decision. Likewise, the Circuit Court's Amended Judgment
confirmed the First Amended Decision, and awarded additional
attorneys' fees, costs and interest against the City. In denying
the contempt motion and fashioning other enforcement mechanisms,
the Circuit Court did not collaterally attack the First Amended
Decision or the Amended Judgment. The January 16, 2018 deadline
was set to ensure the City's compliance with the Circuit Court's
order that the City fully comply with the payments and actions
set forth in the First Amended Decision. We conclude that, under
the circumstances here, the collateral attack doctrine does not
apply. Accordingly, the first point of error is without merit.
(2) UPW argues that the Circuit Court erred by not
holding the City in contempt for failing to comply with certain
remedial terms of the First Amended Decision, which was confirmed
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in the Amended Judgment. The power to hold a party in contempt
is an inherent power of the court to do what is necessary to
carry out justice. LeMay v. Leander, 92 Hawai#i 614, 621, 994
P.2d 546, 553 (2000) (citing Kukui Nuts of Hawaii, Inc. v. R.
Baird & Co., Inc., 6 Haw. App. 431, 436, 726 P.2d 268, 271
(1986)). Whether a party is in civil contempt is reviewed for
an abuse of discretion. Id. at 620, 994 P.2d at 552.
The moving party in a civil contempt action must
establish: "(1) the order with which the contemnor failed to
comply is clear and unambiguous; (2) the proof of noncompliance
is clear and convincing; and (3) the contemnor has not diligently
attempted to comply in a reasonable manner." Id. at 625, 994
P.2d at 557 (citing King v. Allied Vision, Ltd., 65 F.3d 1051,
1058 (2d Cir. 1995)). The movant is "required to establish all
three factors[.]" Maui Muscle Sports Club Kahana, LLC v. Ass'n
of Apartment Owners of Valley Isle Resort, CAAP–13–0000452, 2014
WL 3671565, *11 (Haw. App. July 23, 2014) (mem. op.). These
factors must be proven by clear and convincing evidence. LeMay,
92 Hawai#i at 624–25, 994 P.2d at 556–57 (citation omitted).
The Circuit Court denied the motion for contempt
because it found that its language in the Amended Judgment
ordering the City to comply with the terms of the First Amended
Decision "forthwith" was ambiguous. UPW points to the plain
language meaning of forthwith. Black's Law Dictionary defines
"forthwith" as: "1. Immediately; without delay. 2. Directly;
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promptly; within a reasonable time under the circumstances."
Black's Law Dictionary 725 (9th ed. 2009). While it is clear
that "forthwith" requires prompt action, the Circuit Court
interpreted the use of the word in its own judgment as lacking
sufficient clarity to warrant a finding of contempt.
Whether an action can be considered done forthwith may
depend on the circumstances. In ruling on the contempt motion,
the Circuit Court referred to Hawaii Revised Statutes (HRS)
§ 651-34, the execution statute, to establish a deadline for
compliance with the Amended Judgment. This was not an abuse of
discretion, particularly given that UPW's contempt motion
referred to a writ of execution, and UPW explained that it was
also requesting mandamus relief because execution on the monetary
portion of the Amended Judgment (namely the attorneys' fees owed
to UPW) was not an available remedy against the City.
UPW posits that the Circuit Court should have enforced
the deadlines established in the First Amended Decision.
However, these deadlines had already passed. Moreover, under
Hawaii's contempt jurisprudence, the meaning of the order alleged
to have been violated must be ascertained from the four corners
of the order itself. "[T]o hold a party in civil contempt, there
must be a court decree that sets forth in specific detail an
unequivocal command that the contemnor violated, and the
contemnor must be able to ascertain from the four corners of the
order precisely what acts are forbidden." LeMay, 92 Hawai#i at
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625, 994 P.2d at 557 (citation and internal quotation marks
omitted).
Even if we were to conclude that the Circuit Court's
order effectively extending the deadline for compliance with the
First Amended Decision was an abuse of discretion, any such error
was harmless where the purpose of the contempt motion was
fulfilled. A civil contempt proceeding is intended to provide a
remedy for one of the parties. Hawaii Pub. Emp't Relations Bd.
v. United Pub. Workers, Local 646, 66 Haw. 461, 479, 667 P.2d
783, 795 (1983). In contrast to criminal contempt, which is
intended "to punish past defiance of a court's judicial
authority, thereby vindicating the court," LeMay, 92 Hawai#i at
621, 994 P.2d at 553 (citation omitted), the civil contempt
sanction is intended as a coercive tool to enforce compliance
with an order of the court. "[T]he significant and essential
characteristic of a sanction imposed for civil contempt is that
the penalty can be avoided by compliance with the court order."
Hawaii Pub. Emp't Relations Bd., 66 Haw. at 479, 667 P.2d at 795
(citation omitted) (emphasis in original).
Here, the remedy sought was obtained. When the Circuit
Court entered the Order Denying Contempt Motion on April 17,
2018, the City had complied with the terms of the Amended
Judgment. We conclude that the Circuit Court did not abuse its
discretion in denying the UPW's motion for contempt.
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(3) UPW argues that the Circuit Court wrongfully
denied mandamus relief against the City to enforce compliance
with the First Amended Decision and Amended Judgment. However,
whatever mandamus power the circuit courts once had was
superceded by the 1972 adoption of the Hawai#i Rules of Civil
Procedure (HRCP). HRCP Rule 81.1 expressly abolished the writ of
mandamus in the circuit courts, except when directed to a court
of inferior jurisdiction. Accordingly, we conclude that the
Circuit Court did not err when it refused to issue a writ of
mandumus in this case.
(4) UPW argues that the Circuit Court abused its
discretion in declining to award it attorneys' fees and costs
incurred in bringing its contempt motion. Citing In re Hawai#i
State Teachers Ass'n [(HSTA)], 140 Hawai#i 381, 402, 400 P.3d
582, 603 (2017), UPW argues that public policy favors a grant of
attorneys' fees as a way to "discourage all but the most
meritorious challenges to arbitration awards." This court,
however, has also previously pointed to judicial efficiency as a
policy concern in denying attorneys' fees in an enforcement
action. See In re Arbitration Between United Public Workers,
Local 646, [(UPW)] and City & County of Honolulu, 119 Hawai#i
201, 212, 194 P.3d 1163, 1174 (App. 2008) (citing Rev. Unif.
Arbitration Act (2000) (RUAA), Prefatory Note, 7 U.L.A. 3 (2005))
(goals of arbitration act include "promoting the relative speed,
lower cost, and greater efficiency of the arbitration process"
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and "minimizing court involvement once an arbitration award is
finalized"). We held that the purposes of RUAA § 25, the model
for HRS § 658A-25, were not "subverted" by disallowing attorneys'
fees on an enforcement motion after an arbitration award had been
confirmed. Id. Furthermore, we held that denying attorneys'
fees on the denial of enforcement would harmonize the law on
arbitration with the general policy of prohibiting recovery of
legal fees associated with executing a judgment. Id. at 211, 194
P.3d at 1173 (citing RUAA § 25 cmt. 4, 7 U.L.A. 86). UPW argues
that the more recent precedent in In re HSTA should be applied
instead of the "narrower" reading of In re UPW. However, in In
re HSTA, the issue was whether HRS § 658A-25 authorized
attorneys' fees on appeal from an order confirming an arbitration
award, whereas here, UPW sought fees on a motion to enforce an
arbitration award. In addition, here, although the Circuit Court
did take steps to enforce the Amended Judgment, it did not grant
the remedies requested by UPW in UPW's November 24, 2017 motion.
Under these circumstances, we conclude that the Circuit Court did
not abuse its discretion by not awarding UPW a further attorneys'
fees award in conjunction with the contempt motion.
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For these reasons, the Circuit Court's April 17, 2018
Final Judgment is affirmed.
DATED: Honolulu, Hawai#i, August 7, 2020.
On the briefs:
/s/ Katherine G. Leonard
Herbert R. Takahashi, Presiding Judge
Rebecca L. Covert,
(Takahashi and Covert), /s/ Derrick H.M. Chan
for Union-Appellant. Associate Judge
Ernest H. Nomura, /s/ Clyde J. Wadsworth
Deputy Corporation Counsel, Associate Judge
for Employer-Appellee.
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