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NO. CAAP-19-0000519 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

THE WEST MOLOKAI RESORT ASSOCIATION OF APARTMENT OWNERS, 

Plaintiff-Counter-Claim Defendant-Appellee, v. 

KALUAKOI POOLSIDE, LLC, Defendant-Counterclaimant-Appellant, 

MOLOKAI PROPERTIES, LTD., Intervenor-Defendant-Appellant, 

and, JOHN DOES 1-100; JANE DOES 1-100; 

DOE CORPORATIONS 1-100; DOES PARTNERSHIPS 1-100, 

Defendants. 

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT 

(CASE NO. 2CC161000404) 

SUMMARY DISPOSITION ORDER 

(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.) 

 Defendant-Counterclaimant-Appellant Kaluakoi Poolside, 

LLC (Kaluakoi) and Intervenor-Defendant-Appellant Molokai 

Properties, Ltd. (Molokai Properties) appeal from the Circuit 

Court of the Second Circuit's1 (1) June 21, 2019 order denying 

Kaluakoi's motion to modify or correct the arbitrator's award 

1 The Honorable Peter T. Cahill presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000519

14-MAY-2024

08:23 AM

Dkt. 111 SO
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and Molokai Properties' joinder to Kaluakoi's motion to modify 

or correct (Order); and (2) June 21, 2019 final judgment. 

Kaluakoi and Molokai Properties contend the circuit 

court erred in confirming a Partial Final Award of Arbitrator 

and a Final Award of Arbitrator (together, Arbitration Award) 

and entering final judgment against them in favor of PlaintiffCounterclaim Defendant-Appellee West Molokai Resort Association 

of Apartment Owners (Association) because Molokai Properties was 

not a party to the arbitration, and the Arbitration Award and 

final judgment should have been against Kaluakoi only.2

2 More specifically, Kaluakoi contends the circuit court erred in 

refusing to correct or modify the Arbitration Award where: 

(1) the Arbitration Award contains an evident mistake referencing 

"Respondents" (plural) even though Kaluakoi was the only 

participating respondent; 

(2) the arbitrator "made an award on a claim not submitted" 

because there is no theory binding Molokai Properties; 

(3) the Arbitration Award is "imperfect as a matter of form not 

affecting the merits of the decision" as it references both 

"Respondent" (singular) and "Respondents" (plural); and 

(4) the Arbitration Award "purports to bind non-party Molokai 

Properties without any cogent legal or factual reasons to do 

so."

 

Molokai Properties contends:

(1) "Vacatur (and/or modification) was warranted under HRS 658A";

(2) it was denied procedural due process; and

(3) the circuit court should have held an evidentiary hearing on 

its purported participation in the arbitration proceedings.

In its answering briefs, Association asserts there was no error by the 

Arbitrator or the circuit court in confirming the Arbitration Award because 

Kaluakoi is a wholly owned subsidiary of Molokai Properties, has "no

identity separate and apart from" Molokai Properties, and Molokai Properties 

was notified of and participated in the arbitration.
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 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 this 

appeal as discussed below. 

Under Hawai‘i Revised Statutes (HRS) chapter 658A, the 

Uniform Arbitration Act, the court may vacate an arbitration 

award if the arbitrator exceeded their authority or there was no 

agreement to arbitrate, unless the person participated in the 

arbitration without objecting. HRS § 658A-23 (2016). HRS 

chapter 658A also allows the court to modify or correct an award 

if there is an evident mistake or the award was made on a claim 

not submitted. HRS § 658A-24 (2016). 

If a party files a motion to vacate an arbitration 

award and presents a prima facie basis for vacating the award, 

the circuit court should conduct an evidentiary hearing and 

render findings of fact and conclusions of law in support of 

granting or denying the motion to vacate if material facts are 

in dispute. Nordic PCL Constr. Inc. v. LPIHGC, LLC, 136 Hawaiʻi 

29, 43-44, 358 P.3d 1, 15-16 (2015). 

Kaluakoi requested the circuit court vacate, correct, 

or modify the Arbitration Award pursuant to HRS §§ 658A-23, -24. 

Kaluakoi asserted that Molokai Properties was "not a party to 

this Circuit Court action and did not participate as a party in 

the underlying arbitration[.]" Kaluakoi also asserted that 
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Molokai Properties "never signed any arbitration agreement 

regarding the 2016 Arbitration Proceeding." 

In rendering its decision, the circuit court did not 

conduct an evidentiary hearing. Instead, the circuit court 

"presumed" the Arbitrator thought Molokai Properties 

participated in the arbitration because (1) the Arbitrator 

listed Molokai Properties in the caption; (2) the Arbitration 

Award repeatedly referred to respondents (plural); and (3) Todd 

Svetin (Svetin) attended the arbitration proceedings for Molokai 

Properties.

First, the Arbitrator listing Molokai Properties in 

the caption of the Arbitration Award did not establish Molokai 

Properties participated in the arbitration because the 

Arbitrator used different captions. For example, the caption in 

the Arbitrator's April 5, 2018 decision (concluding Association 

and Kaluakoi did not reach a binding settlement following the 

2015 settlement discussions) did not include Molokai Properties. 

Instead, the caption named various doe defendants, and 

Association used this same caption in its circuit court 

complaint. And the caption in the Arbitrator's August 10, 2017 

decision (finding the Cades firm was disqualified from 

representing Kaluakoi) listed both Kaluakoi and Molokai 

Properties as respondents, matching the caption Association used 
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in its Statement of Claim. But no explanation was provided for 

these varying captions.

Next, although the Arbitration Award may have 

repeatedly referred to "respondents," there were no findings or 

conclusions explaining why Molokai Properties would be liable 

under the Cross Easement Declaration, the 2009 Partial 

Arbitration Award, or 2011 Modifying Agreement. Rather, the 

Arbitrator found that after Molokai Properties acquired the 

hotel in 2002, it conveyed the hotel to Kaluakoi, its 

subsidiary. The Arbitrator did not explain why Molokai 

Properties would remain liable after the conveyance. And, at 

the arbitration hearing, although one of the McCorriston 

attorneys indicated she represented the "respondents," the other 

two McCorriston attorneys indicated they represented the 

"respondent." 

Finally, Svetin introduced himself at the July 25, 

2018 arbitration hearing by stating, "Good morning, Todd Svetin 

for Molokai Properties." Svetin, however, did not expressly 

indicate whether he was appearing as a party or as a witness. 

Based on the arbitration hearing excerpts in the record, Svetin 

appears to have testified as a witness, as he was questioned by 

Association's counsel, Kaluakoi's counsel, and the Arbitrator. 

If Svetin was appearing as more than a witness, under the 

Dispute Prevention and Resolution (DPR) rules "[a]ny legal or 
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other authorized representative who will be participating in an 

arbitration proceeding must enter an appearance in writing with 

DPR and the other party(s) at least thirty (30) days before the 

commencement of the arbitration hearing."3 Arb. Rules, Proc. & 

Protocols of Disp. Prevention & Resol., Inc. Rule IV(4) (2015), 

https://dprhawaii.com/dpr-rules/ [https://perma.cc/CN6R-SKB3]. 

Association does not point to where in the record Svetin made 

such an appearance.

Thus, the record does not support the bases upon which 

the circuit court made its decision, and it is not apparent from 

the record that Molokai Properties agreed to, or participated 

in, the arbitration at issue. 

Moreover, after granting Molokai Properties' motion to 

intervene at the May 24, 2019 hearing on Kaluakoi's motion to 

modify or correct, the circuit court noted Molokai Properties 

was only a party "as of today" and acknowledged it "glossed 

over" the distinction between Molokai Properties and Kaluakoi 

3 We note that, according to the record, Svetin is not an attorney. 

Although not in effect at the time of the 2018 arbitration hearing, the 

current DPR rules conform with common law requiring a corporation to be 

represented by an attorney. Arb. Rules, Proc. & Protocols of Disp. 

Prevention & Resol., Inc. Rule IV(4) (2019) (providing that "except in 

limited circumstances, corporations, partnerships, limited liability 

companies and other entities must be represented by licensed attorneys")

https://dprhawaii.com/wp-content/uploads/2019/12/2019-12-30-2020-ArbitrationRules-Final-Version.pdf [https://perma.cc/YBF8-848J]; see Oahu Plumbing & 

Sheet Metal, Ltd. v. Kona Constr., Inc., 60 Haw. 372, 374, 590 P.2d 570, 572 

(1979) (explaining "a corporation cannot appear and represent itself either 

in proper person or by its officers, but can do so only by an attorney 

admitted to practice law"); 9A Fletcher Cyclopedia of the Law of 

Corps. § 4463 (2023). 
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during earlier arguments on Association's motion to confirm the 

Arbitration Award. 

Because the circuit court did not conduct an 

evidentiary hearing or make findings in support of its decision, 

and it is not apparent from the record Molokai Properties agreed 

to, or participated in, the arbitration, we vacate the June 21, 

2019 Order and final judgment, and we remand this case to the 

circuit court for further proceedings consistent with this 

summary disposition order. 

 DATED: Honolulu, Hawai‘i, May 14, 2024. 

On the briefs: 

David J. Minkin, 

Shanlyn A.S. Park, 

Jesse J.T. Smith, 

(McCorriston Miller Mukai 

MacKinnon), 

for DefendantCounterclaimant-Appellant 

Kaluakoi Poolside, LLC. 

Joachim P. Cox, 

Robert K. Fricke, 

Abigail M. Holden, 

(Cox Fricke), 

for Intervenor-DefendantAppellant Molokai Properties, 

Ltd. 

Terrance M. Revere, 

Amanda L. Dutcher, 

for Plaintiff-Counterclaim 

Defendant-Appellee West 

Molokai Resort Association of 

Apartment Owners. 

/s/ Keith K. Hiraoka 

Presiding Judge 

/s/ Clyde J. Wadsworth 

Associate Judge 

/s/ Sonja M.P. McCullen 

Associate Judge