NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000394

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

NAPUAOWAILUPE, a Hawai#i limited partnership,

Plaintiff-Appellee,

vs.

BLUE TILE BEACH HOUSE, LLC, a Hawai#i limited liability

company, Defendant-Appellant, and WILLIAM MCCORMICK and

LINDA GALLAGHER, Individually, Jointly and Severally,

Defendants-Appellees

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT

(CIVIL NO. 19-1-0367)

SUMMARY DISPOSITION ORDER

(By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.)

Defendant-Appellant Blue Tile Beach House, LLC (Blue

Tile) appeals from the District Court of the Second Circuit's

(District Court)

1 June 4, 2019 Order Denying [Blue Tile's] Motion

to Compel Arbitration Filed April 29, 2019 (Order Denying Motion

to Compel Arbitration), in favor of Plaintiff-Appellee

Napuaowailupe LP (Napuaowailupe). Blue Tile also challenges the

District Court's Writ of Possession, Judgment for Possession, and

multiple other rulings of the District Court. 

1 The Honorable Blaine J. Kobayashi presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000394

10-MAY-2024

07:57 AM

Dkt. 69 SO
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Blue Tile raises four points of error on appeal,

contending that: (1) the District Court lacked subject matter

jurisdiction; (2) the District Court erred in entering the Order

Denying Motion to Compel Arbitration; (3) the District Court

erred when it denied Blue Tile's demand for a jury trial; and (4)

the District Court violated Blue Tile's due process rights.

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 Blue Tile's points of error as follows:

It appears that the only issue properly before this

court is Blue Tile's challenge of the Order Denying Motion to

Compel Arbitration. Blue Tile's amended notices of appeal

purport to appeal from the May 30, 2019 Judgment for Possession,

May 30, 2019 Writ of Possession, and other orders entered

subsequent to Blue Tile's May 20, 2019 Notice of Appeal. 

However, the Hawai#i Supreme Court has held that "'an amended

notice of appeal relates back to the notice of appeal it purports

to amend, it does not appeal an order, judgment, or decree

entered subsequent to the notice of appeal it purports to

amend.'" Enos v. Pac. Transfer & Warehouse, Inc., 80 Hawai#i

345, 355-56, 910 P.2d 116, 126-27 (1996) (quoting Chan v. Chan, 7

Haw. App. 122, 129, 748 P.2d 807, 811 (1987)). Therefore, this

court lacks jurisdiction to review the orders, writ and judgment

filed after May 20, 2019 – other than the appealed-from Order

Denying Motion to Compel Arbitration.

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Regarding the Order Denying Motion to Compel

Arbitration, "[w]hen presented with a motion to compel

arbitration, the court is limited to answering two questions: 1)

whether an arbitration agreement exists between the parties; and

2) if so, whether the subject matter of the dispute is arbitrable

under such agreement." Safeway, Inc. v. Nordic PCL Const., Inc.,

130 Hawai#i 517, 524, 312 P.3d 1224, 1231 (App. 2013) (citation

and quotation marks omitted). 

Here, the first issue is undisputed. There is an

arbitration provision in the lease agreement between the parties.

Regarding the second issue, the District Court

concluded that the arbitration provision does not apply to a

default on the payment of rent. On appeal, Blue Tile argues,

inter alia, that the District Court wrongly decided the issue of

the disputed rent amount due, which Blue Tile submits was subject

to arbitration. Blue Tile makes no cogent argument that the

issue of summary possession for failure to pay rent was subject

to arbitration. 

 We conclude that the District Court did not err in

denying Blue Tile's motion to compel arbitration with respect to

the issues of rent default, i.e., non-payment of rent and

possession. However, the issue of Napuaowailupe's demand for an

increase of rent, from $57,000 to $143,000, effective January 1,

2018, was subject to the arbitration provision. The amount of

rent due from and after January 1, 2018, must be determined prior

to the entry of any damages for unpaid rent. Therefore, the

District Court erred to the extent that it denied Blue Tile's

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motion to compel arbitration on the issue of the amount of the

rents due after January 1, 2018.

For these reasons, the District Court's June 4, 2019

Order Denying Motion to Compel Arbitration is affirmed in part

and vacated in part; this case is remanded to the District Court

for further proceedings consistent with this Summary Disposition

Order.2

DATED: Honolulu, Hawai#i, May 10, 2024.

On the briefs: /s/ Katherine G. Leonard

Acting Chief Judge

Paul Howard Peters,

for Defendant-Appellant. /s/ Clyde J. Wadsworth

Associate Judge

Deborah K. Wright,

Keith D. Kirschbraun, /s/ Sonja M.P. McCullen

Douglas R. Wright, Associate Judge

(Wright & Kirschbraun),

for Plaintiff-Appellee.

2 It appears that the remanded issues may be moot based on an April

16, 2020 Order Dismissing Complaint (Rules of the District Court of the State

of Hawai#i Rule 12). However, the issue of mootness is better addressed in

the District Court, if necessary, and we decline to address it here.

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