                                                    Electronically Filed
                                                    Supreme Court
                                                    30740
                                                    04-NOV-2010
                                                    10:24 AM
                            NO. 30740



          IN THE SUPREME COURT OF THE STATE OF HAWAI'I


           DAVID J. LUJAN and ANNA LUJAN, Petitioners,



                               vs.



   THE HONORABLE KARL K. SAKAMOTO, JUDGE OF THE CIRCUIT COURT

           OF THE FIRST CIRCUIT, STATE OF HAWAI'I; and

KEITH WAIBEL, as Trustee of the JLH PACIFIC TRUST, Respondents. 



                       ORIGINAL PROCEEDING


                    (CIVIL NO. 08-1-2071-10)



                               ORDER


        (By: Recktenwald, C.J., Nakayama and Duffy, JJ.,

     Circuit Judge Browning, in place of Acoba, J., recused,

    and Circuit Judge Pollack, assigned by reason of vacancy)



          Upon consideration of petitioners David J. Lujan's and
Anna Lujan's petition for a writ of mandamus and the papers in
support, it appears that the October 28, 2009 order compelling
arbitration of all claims in Civil No. 08-1-2071 was a final
determination only of Count III (mandatory arbitration) of the
plaintiff's complaint and was certifiable pursuant to HRCP 54(b)
only as to Count III. Certification of Count III pursuant to
HRCP 54(b) was within the discretion of the respondent judge and
the denial of certification was not a flagrant and manifest abuse
of discretion. The October 28, 2009 order was a collateral order
compelling arbitration of claims other than Count III and was an
appealable final order from which petitioners could have, but did
not appeal. Therefore, petitioners are not entitled to
extraordinary relief. See Kema v. Gaddis, 91 Hawai'i 200, 204,
982 P.2d 334, 338 (1999) (A writ of mandamus is an extraordinary
remedy that will not issue unless the petitioner demonstrates a
clear and indisputable right to relief and a lack of alternative


means to redress adequately the alleged wrong or obtain the


requested action. Such writs are not intended to supersede the
 

legal discretionary authority of the lower courts, nor are they


intended to serve as legal remedies in lieu of normal appellate


procedures. Where a court has discretion to act, mandamus will
 

not lie to interfere with or control the exercise of that


discretion, even when the judge has acted erroneously, unless the


judge has exceeded his or her jurisdiction, has committed a


flagrant and manifest abuse of discretion, or has refused to act


on a subject properly before the court under circumstances in


which it has a legal duty to act.). Accordingly,
 

          IT IS HEREBY ORDERED that the petition for a writ of


mandamus is denied.


          DATED: Honolulu, Hawai'i, November 4, 2010.

                              /s/ Mark E. Recktenwald



                              /s/ Paula A. Nakayama



                              /s/ James E. Duffy, Jr. 


                              /s/ R. Mark Browning



                              /s/ Richard W. Pollack






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