NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-FEB-2024
08:32 AM
Dkt. 58 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
GREEN GLOBAL COMMUNITIES INC.,
a Hawaii Corporation, Plaintiff-Appellee, v.
NEIGHBORHOOD POWER CORPORATION,
a California Corporation, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CC171000361)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant Neighborhood Power Corporation
(Neighborhood Power) appeals from the Circuit Court of the
Second Circuit's January 24, 2018 "Order Denying Defendant's
Motion to Compel Arbitration and Dismiss Claims and Motion for
Attorney's Fees, Filed October 25, 2017." 1 On appeal,
Neighborhood Power raises two points of error, challenging the
1 The Honorable Peter T. Cahill presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
circuit court's denial of its motion to compel arbitration and
request for attorneys' fees.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
points of error as discussed below, and affirm.
"[I]n order to be valid and enforceable, an
arbitration agreement must have the following three elements:
(1) it must be in writing; (2) it must be unambiguous as to the
intent to submit disputes or controversies to arbitration; and
(3) there must be bilateral consideration." Siopes v. Kaiser
Found. Health Plan, Inc., 130 Hawai‘i 437, 447, 312 P.3d 869, 879
(2013) (citations omitted). "The party seeking to compel
arbitration carries the initial burden of establishing that an
arbitration agreement exists between the parties. . . . If this
initial burden is met, the burden shifts to the opposing party
to 'present evidence on its defenses to the arbitration
agreement.'" Id. at 446, 312 P.3d at 878 (citations omitted).
We review a trial court's order granting or denying a motion to
compel arbitration de novo, "using the same standard employed by
the trial court and based upon the same evidentiary materials as
2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
were before [it] in determination of the motion." Id. (citation
omitted).
Assuming arguendo, Neighborhood Power established the
three elements under Siopes, the burden would then shift to
Plaintiff-Appellee Green Global Communities, Inc. (Green Global)
to raise any defenses. As a defense, Green Global argued
because "there are no 'rules of the County of Maui' for the
parties to arbitrate under[,] such an arbitration is impossible
and the Court cannot enforce that which is impossible to
perform."
Here, the arbitration clause required disputes be
arbitrated "under the rules of the county of Maui" as follows:
All disputes arising out of this Agreement between the
Developers that is not resolvable by good faith
negotiations by the same, shall be filed in the county of
Maui, and shall be settled by binding arbitration under the
rules of the county of Maui. In so agreeing the parties
expressly waive their right, if any, to a trial by jury of
these claims and further agree that the award of the
arbitrator shall be final and binding upon them as though
rendered by a court of law and enforceable in any court
having jurisdiction over the same.
(Emphasis added.)
In the first sentence of the arbitration clause, the
parties agreed all disputes arising from the agreement "shall"
be arbitrated "under the rules of the county of Maui." There is
nothing ambiguous about this sentence or the parties' intent.
3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
See generally, Siopes, 130 Hawai‘i at 447, 312 P.3d at 879. As
drafted, the parties made conducting the arbitration "under the
rules of the county of Maui" an integral part of their
agreement. See generally, 6 C.J.S. Arbitration § 36 (2023)
(explaining "if the parties' agreement specifies that the laws
and procedures of a particular forum shall govern any
arbitration between them, that forum selection clause is an
important part of the arbitration agreement").
The only problem is no one can comply with this
contractual mandate because, as the parties agree, there are no
"rules of the county of Maui" governing arbitration. See
generally, 30 Richard A. Lord, Williston on Contracts §§ 77:1,
77:7 (4th ed. 2021) ("The doctrine of impossibility excuses
performance of a contract when the thing to be done cannot by
any means be accomplished . . ." and impossibility "of
performance under a contract [is a] complete defense[] where a
fact essential to performance is assumed by the parties but does
not exist at the time for performance.").
Neighborhood Power urged the circuit court to "blue
pencil," sever, or simply disregard the language "under the
rules of the county of Maui." But, the agreement did not
provide for these proposed solutions. To the contrary, the
agreement stated, "[t]his agreement constitutes the entire
agreement of the parties and may not be altered, unless the same
4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
is agreed upon in writing signed and acknowledged by the
parties." Moreover, "it is the function of courts to construe
and enforce contracts made by the parties, and not to make or
alter them." Scotella v. Osgood, 4 Haw. App. 20, 24, 659 P.2d
73, 76 (1983); see generally, Sher v. Cella, 114 Hawai‘i 263,
267, 160 P.3d 1250, 1254 (App. 2007) ("Arbitration is a matter
of contract[.]") (citation omitted).
The agreement between the parties also provided that
the "agreement shall be governed and construed by the laws of
the State of Hawaii." Hawai‘i Revised Statutes § 658A-7(a)(2)
(2016) provides where there is a motion to compel arbitration,
"the court shall proceed summarily to decide the issue and order
the parties to arbitrate unless it finds that there is no
enforceable agreement to arbitrate." The circuit court here did
that, by determining it could not enforce the arbitration
provision in this agreement because it could not order the
parties to arbitrate their dispute under the non-existent "rules
of the county of Maui." Thus, the circuit court did not err in
denying Neighborhood Power's motion to compel arbitration.
We need not address Neighborhood Power's point of
error on attorneys' fees as we affirm the circuit court's denial
of its motion to compel.
For the above reasons, we affirm the circuit court's
January 24, 2018 "Order Denying Defendant's Motion to Compel
5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Arbitration and Dismiss Claims and Motion for Attorney's Fees,
Filed October 25, 2017."
DATED: Honolulu, Hawai‘i, February 29, 2024.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Rebecca A. Copeland,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Gary Robert,
for Plaintiff-Appellee. /s/ Sonja M.P. McCullen
Associate Judge
6