  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




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  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


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



                                   2
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


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


                                    3
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


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


                                  4
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


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;


                                  5
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


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


                                  6
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


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.




                                  7
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


           (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"

                                  8
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


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.




                                  9
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


          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.




                                  10
