Reaffirming the Non-Appealability of Orders Vacating Arbitration Awards with Rehearing under HRS § 658A-28 and Mandating “In Aid of Jurisdiction” Remands for Final Judgments in Special Proceedings

Introduction

In Nordic PCL Construction, Inc. v. LPIHGC, LLC, the Supreme Court of Hawaiʻi resolved a recurring jurisdictional question at the intersection of arbitration law and appellate procedure: may a party immediately appeal a circuit court order that denies confirmation and vacates an arbitration award while also directing a rehearing? The Court answered no, reaffirming its intermediate court’s earlier “bright-line” rule in State of Hawaii Organization of Police Officers (SHOPO) v. County of Kauaʻi, and rejecting a more permissive approach that would have allowed such appeals when the circuit court orders a full rehearing before a new arbitrator.

The case arises out of a long-running construction dispute between Nordic PCL Construction, Inc. (Nordic) and LPIHGC, LLC (LPIHGC) related to the Honua Kai project on Maui. An initial arbitration award in LPIHGC’s favor was confirmed, then vacated on remand after an evidentiary hearing on evident partiality; the circuit court directed a rehearing before a new arbitrator. After a second arbitration again produced an award for LPIHGC, LPIHGC appealed a 2017 costs order entered against it in the first special proceeding. The Intermediate Court of Appeals (ICA) dismissed that appeal as untimely in a published decision (Nordic 2024), reasoning the March 3, 2017 vacatur-and-rehearing order was itself an appealable order; therefore the 2017 costs order should have been appealed within 30 days. Nordic sought certiorari—not to protect its favorable costs award, but to correct the ICA’s published jurisdictional rule with broad implications for arbitration practice.

The Supreme Court granted certiorari and held that an order vacating an arbitration award and directing a rehearing is not appealable under HRS § 658A‑28. It reaffirmed the majority approach under the Uniform Arbitration Act (UAA) and rejected the ICA’s attempt to distinguish SHOPO based on whether the rehearing is “partial” or “full.” Although the Court disagreed with the ICA’s timeliness rationale, it nonetheless determined that appellate jurisdiction remained lacking because there was still no appealable final order or judgment. To “promote justice” and avoid forfeiture of appellate rights over a curable finality defect, the Court directed the ICA to temporarily remand to the circuit court for entry of a final judgment in the first special proceeding—explicitly authorizing the courts to treat the second special proceeding as a continuation of the first—so that the ICA can then address the costs issues on the merits.

Summary of the Judgment

• Holding on appealability: An order that denies confirmation of an arbitration award, vacates the award, and directs a rehearing (whether partial or full, and whether before the same or a new arbitrator) is not an appealable order under HRS § 658A‑28(a). The phrase “without directing a rehearing” in § 658A‑28(a)(5) must be given effect and precludes appeals when a rehearing is ordered.
• Reaffirmation of SHOPO: The Court reaffirmed the ICA’s earlier SHOPO “bright-line” rule adopting the UAA majority view; it rejected the ICA’s 2024 attempt to carve out an exception for “full rehearings” before a new arbitrator.
• Disposition: The Court vacated the ICA’s dismissal of LPIHGC’s appeal as untimely. However, it concluded appellate jurisdiction is still presently lacking due to the absence of a final appealable order or judgment in the first special proceeding. The Court remanded to the ICA with instructions to temporarily remand to the circuit court to:
  • Treat the later special proceeding (confirming the second award) as a continuation of the first;
  • Enter a final judgment in the first special proceeding consistent with the second proceeding’s judgment; and
  • Supplement the record on appeal with that judgment.
  The ICA can then reach the merits of LPIHGC’s appeal of the 2017 costs order.
• Guidance to courts and practitioners: The Court issued clear practice guidance to avoid recurrence of these problems—file any motion to confirm an award after a rehearing in the original special proceeding; include any earlier costs orders in the final judgment; or, if a new special proceeding is used, the circuit court should consolidate the proceedings and issue a single final judgment. The ICA should use its “in aid of jurisdiction” power (HRS § 602‑57(3)) to temporarily remand for entry of a final judgment in special proceedings when that is the only jurisdictional defect.

Analysis

Precedents Cited and Their Influence

The Court canvassed the statutory text and case law under the Uniform Arbitration Act (UAA) and its Revised version (RUAA), emphasizing national uniformity. The core precedents fall on two sides:

• Majority approach (followed here):
  • SHOPO v. County of Kauaʻi, 123 Hawaiʻi 128, 230 P.3d 428 (App. 2010): ICA previously held that orders vacating an award and directing any form of rehearing are not appealable; finality is lacking until the arbitration process concludes.
  • Karcher Firestopping v. Meadow Valley Contractors, Inc., 125 Nev. 111, 204 P.3d 1262 (2009): Ordering supplemental arbitration “extends” the arbitral process and is not an appealable final order.
  • Nebraska Dep’t of Health & Human Servs. v. Struss, 623 N.W.2d 308 (Neb. 2001): Under identical language to § 658A‑28(a), an order vacating and directing rehearing (including before a new arbitrator) is not appealable; otherwise the “without directing a rehearing” clause is rendered superfluous.
  • Connerton, Ray & Simon v. Simon, 791 A.2d 86 (D.C. 2002): Specific-over-general canon supports reading the rehearing clause (§ 16‑4317(a)(5)) as controlling over the general denial-of-confirmation provision (§ 16‑4317(a)(3)); treats “rehearing ordered” cases as non-appealable.
  • Dep’t of Transportation v. State Employees Association, 581 A.2d 813 (Me. 1990): Same conclusion; appeals lie only from vacatur orders that do not direct a rehearing.
  • Jenkins v. Cades Schutte (final judgment rule), 76 Hawaiʻi 115, 869 P.2d 1334 (1994); Waikiki v. Hoʻomaka Village AOAO, 140 Hawaiʻi 197, 398 P.3d 786 (2017); State by OCP v. Joshua, 141 Hawaiʻi 91, 405 P.3d 527 (2017): These cases inform how appellate courts should cure finality defects—by temporarily remanding for entry of final judgment rather than dismissing outright when that is the only barrier to review.
  • Murasko v. Loo, 125 Hawaiʻi 39, 252 P.3d 58 (2011): No immediate appeal lies from orders granting a new trial in civil matters; supports the non-appealability of orders that “restart” adjudication (akin to rehearings in arbitration).
  • In re Amberson, 57 F.4th 205 (5th Cir. 2023): Recognizes that both premature appeals and delayed appeals can entail resource costs; reinforces the policy of limiting interlocutory appeals absent finality.
• Minority approach (rejected here):
  • E. Texas Salt Water Disposal Co. v. Werline, 307 S.W.3d 267 (Tex. 2010): Allowed an appeal when the trial court denied confirmation and ordered a full rehearing before a new arbitrator; reasoned that denial-of-confirmation language authorizes appeal and the “rehearing” clause does not expressly bar it.
  • Nat’l Ave. Bldg. Co. v. Stewart, 910 S.W.2d 334 (Mo. Ct. App. 1995); Morgan Keegan & Co. v. Smythe, 401 S.W.3d 595 (Tenn. 2013): Similar minority reading of UAA/RUAA appealability provisions.
• Related Hawaiʻi authority:
  • County of Hawaiʻi v. UNIDEV, LLC, 129 Hawaiʻi 378, 301 P.3d 588 (2013): HRS § 658A‑28 is not an exclusive list of appealable orders; recognized the collateral order doctrine for orders compelling arbitration under HRS § 641‑1. The Court explained that principle does not help where—unlike collateral orders—finality is lacking because the arbitration process is ongoing by virtue of a directed rehearing.
  • Ditto v. McCurdy, 103 Hawaiʻi 153, 880 P.2d 974 (2003): Cited by the ICA to limit Jenkins’ reach to complaint cases; the Supreme Court clarified that the ICA’s temporary-remand authority under HRS § 602‑57(3) to cure finality defects is not so limited and extends to special proceedings.

Legal Reasoning

The decision turns on a textual conflict within HRS § 658A‑28(a), the appealability provision of Hawaiʻi’s Uniform Arbitration Act:

• Subsection (a)(3) authorizes appeals from an “order confirming or denying confirmation of an award.”
• Subsection (a)(5) authorizes appeals from an “order vacating an award without directing a rehearing.”

When a circuit court denies confirmation, vacates an award, and directs a rehearing, both subsections appear to speak. The Court resolved this in favor of subsection (a)(5), for four principal reasons:

• Anti-surplusage: Reading subsection (a)(3) to permit appeals even when a rehearing is ordered would render the phrase “without directing a rehearing” in subsection (a)(5) meaningless. Courts must, where practicable, give effect to all words in a statute.
• Specific-over-general: The “rehearing” clause is the more specific provision addressing the jurisdictional effect of a directed rehearing and thus controls over the general “denial of confirmation” clause.
• Legislative purpose and uniformity: Hawaiʻi adopted the UAA to “standardize Hawaiʻi’s arbitration laws with those used in other states.” The majority of UAA/RUAA jurisdictions disallow appeals when rehearings are ordered. Following the majority furthers uniformity.
• Finality policy: The statutory structure permits appeals only from orders bringing an element of finality to the arbitration process. A vacatur coupled with a directed rehearing—full or partial—does not end the process; it restarts it.

The Court expressly rejected the ICA’s distinction between partial and full rehearings (and between same versus new arbitrators). Nothing in the text of § 658A‑28(a)(5) supports that dichotomy, and the majority of states do not draw it. Whether the rehearing is narrow or sweeping, it signals that arbitral adjudication is not complete and the order lacks the finality necessary for immediate appeal.

Finally, the Court analogized to civil new-trial orders. In Hawaiʻi, a party may not immediately appeal an order granting a new trial; review must await a final judgment after the second trial. The same logic applies to arbitral rehearings: appellate review generally follows completion of the rehearing and entry of a proper final judgment.

Impact

This decision delivers clarity on two fronts—appealability under the UAA and the mechanics of final judgment in special proceedings—while forestalling procedural traps.

• Appealability clarified:
  • Bright-line rule restored: No appeal lies from an order vacating an arbitration award if a rehearing is directed—regardless of whether the rehearing is “partial” or “full,” and regardless of whether it proceeds before the same or a new arbitrator.
  • Practitioners should not file immediate appeals from vacatur-and-rehearing orders. Instead, proceed to rehearing and seek review after entry of a final judgment.
• Final judgment protocols in arbitration special proceedings:
  • File motions to confirm any later award in the original special proceeding whenever possible; include any prior costs/fee orders in the final judgment.
  • If a new special proceeding is used for the later award, the circuit court should consolidate it with the original and issue one final judgment covering both.
  • The ICA must use HRS § 602‑57(3) to temporarily remand for entry of a final judgment in special proceedings when lack of finality is the sole jurisdictional defect; Jenkins’ separate-judgment logic informs but does not limit that remedial authority.
  • The courts may treat a later special proceeding as a continuation of the earlier one (per HRS § 602‑5(a)(6)) to cure finality and facilitate merits review.
• Systemic effects:
  • Aligns Hawaiʻi with the UAA majority, enhancing predictability for multi-state arbitration practice.
  • Reduces wasteful satellite appeals on midstream arbitration orders while preserving ultimate review after final judgment.
  • Arms the ICA with a proactive remedial tool—temporary remand—to prevent forfeiture of appeals due to fixable finality defects in special proceedings.

Complex Concepts Simplified

• Appealable final order: An order that resolves the case or a discrete proceeding so nothing remains but execution. Orders that require further adjudication (like rehearings) generally lack finality and are not immediately appealable.
• HRS § 658A‑28(a)(3) vs. (a)(5): Subsection (a)(3) says an appeal may be taken from an order confirming or denying confirmation of an award. Subsection (a)(5) limits appeals of vacatur orders to those entered “without directing a rehearing.” Read together, if a court both denies confirmation and directs a rehearing, the more specific (a)(5) controls: no immediate appeal.
• Special proceeding: A stand-alone proceeding (like a petition to confirm/vacate an arbitration award) that is not initiated by a traditional civil complaint. It still requires a final, appealable judgment to support appellate jurisdiction.
• Jenkins separate-judgment rule: In complaint-initiated civil cases, appealable orders must be reduced to a separate judgment under HRCP Rule 58. While Jenkins speaks to complaints, the ICA’s “in aid of jurisdiction” power to temporarily remand for entry of a final judgment applies equally in special proceedings.
• Temporary remand “in aid of jurisdiction”: When the only barrier to appellate jurisdiction is the absence of an appealable final judgment, the appellate court may temporarily remand to the trial court for entry of a proper judgment and supplementation of the record, rather than dismiss the appeal.
• Evident partiality: A statutory ground to vacate an arbitration award when a neutral arbitrator exhibits bias or fails to disclose relationships that could reasonably create an impression of bias.
• Supersedeas bond: A bond posted by an appellant to stay enforcement of a judgment pending appeal, often a significant cost item. Whether and where such costs are taxable was among the merits issues in LPIHGC’s appeal (which the ICA will reach after final judgment is entered).
• Collateral order doctrine (UNIDEV): A narrow exception allowing immediate appeals from orders that resolve important questions separate from the merits and are effectively unreviewable later. It has limited applicability in arbitration and does not convert a vacatur-and-rehearing order into an appealable order because the arbitral merits are still being adjudicated.

Practical Guidance for Practitioners and Courts

The Court supplied process-focused guidance to ensure appeal rights are preserved and appellate resources are conserved:

• When a circuit court vacates an award and orders a rehearing:
  • Do not appeal that order; it is not appealable.
  • Proceed to the rehearing (whether before the same or a new arbitrator).
• After the rehearing award:
  • Move to confirm the new award in the original special proceeding. Include prior cost/fee orders (from the pre-rehearing phase) in the final judgment.
  • If a new special proceeding is used, the circuit court should consolidate it with the original and enter a single final judgment to encompass all relevant orders.
• If a party prematurely appeals due to lack of final judgment:
  • The ICA should not dismiss outright if finality is the only defect; it should temporarily remand for entry of a final judgment “in aid of its jurisdiction” under HRS § 602‑57(3).
  • Consistent with this decision, the appellate courts may deem a later special proceeding a continuation of the earlier one under HRS § 602‑5(a)(6) to cure finality.
• Preserving issues:
  • Parties wishing to challenge a vacatur-and-rehearing order or costs tied to earlier proceedings should preserve objections on the record and be ready to raise them after entry of a final judgment following the rehearing.

Conclusion

The Supreme Court’s decision restores a clear, uniform rule under Hawaiʻi’s Uniform Arbitration Act: when a circuit court vacates an arbitration award and orders a rehearing, there is no immediate right to appeal—regardless of whether the rehearing is full or partial, and regardless of whether it proceeds before the same or a new arbitrator. This ruling honors the text of HRS § 658A‑28(a)(5), avoids rendering statutory language superfluous, advances the Legislature’s goal of uniformity with UAA jurisdictions, and reinforces the finality principles that limit interlocutory appeals.

Equally important, the Court clarified that the ICA’s “in aid of jurisdiction” power is available in special proceedings to temporarily remand for entry of a final judgment, preventing dismissal where the only defect is a curable lack of finality. The Court provided concrete guidance to circuit courts on consolidating or treating sequential special proceedings as a single continuum and to practitioners on how to structure motions and judgments to ensure clean appellate paths.

Key takeaways:

• No appeal lies from an order vacating an arbitration award that directs a rehearing.
• The SHOPO bright-line rule is reaffirmed; the “full vs. partial rehearing” distinction is rejected.
• The ICA must use temporary remands to cure finality defects in special proceedings, just as in complaint cases.
• Circuit courts should keep the arbitration lifecycle within one special proceeding where possible, or consolidate and issue a single comprehensive final judgment.

By resolving the conflict introduced by the ICA’s 2024 published opinion and by supplying remedial instructions to streamline appellate practice, the Court’s opinion will reduce jurisdictional missteps, align Hawaiʻi with the national mainstream of arbitration law, and promote more efficient resolution of arbitral disputes and their judicial aftermath.