We hold first, that, Hawaii Revised Statutes (HRS) § 658A-28(a) (Supp.2005), 2 which enumerates the appeals that “may” be taken from a court order concerning an arbitration proceeding, does not represent an exclusive list of appealable orders. Thus, although not listed in HRS § 658A-28(a), the order compelling arbitration in the instant case, is sufficiently “final” under our collateral order doctrine to be appealable under the general civil matters appeal statute, HRS § 641-1 (Supp. 2005). 3 We therefore affirm the similar conclusion in the October 17, 2011 Order of the Intermediate Court of Appeals (ICA) Denying [the] September 19, 2011 Motion to Dismiss Appeal for Lack of Jurisdiction filed by Petitioners/Defendants-Appellees UniDev, LLC (UniDev) and UniDev Hawaii, LLC (UniDev Hawaii) (collectively, Petitioners). Second, we hold that under the circumstances of this ease, the scope of the arbitration clause contained in the “Development Services Agreement” (DSA) between Re-spondentyPlaintiff-Appellant County of Hawaii (Respondent) and UniDev encompassed all claims of Respondent and the counterclaims of Petitioners. To the extent that the ICA held otherwise, the ICA’s August 31, 2012 opinion and October 18, 2012 judgment on appeal are vacated. The December 17, 2010 Order Granting Counterclaimant [Uni-Dev’s] Motion to Compel Alternative Dispute Resolution and to Stay Proceedings, and the January 3, 2011 Amended Order Granting Counterclaimant [UniDev’s] Motion to Compel Alternative Dispute Resolution and to Stay Proceedings of the Circuit Court of the Third Circuit 4 (the court) are affirmed. This ease is remanded to the court for further proceedings consistent with this opinion.
I.
A.
In April 2005, Respondent awarded Uni-Dev a contract to develop an affordable hous
ing
The DSA also contained a provision regarding alternative dispute resolution. The parties agreed that if mediation of a dispute was not successful, the parties would proceed to arbitration under state law:
Any dispute arising under the terms of this Agreement that is not resolved within a reasonable period of time by authorized representatives of [UniDev] and [Respondent] shall be brought to the attention of the Chief Executive Officer of [UniDev] and the Executive Director of [Respondent] for joint resolution. Thereafter, if the matter in dispute is still unresolved, then the parties shall in good faith mutually appoint a mediator to mediate the dispute, provided that if the parties cannot agree to a mediator, then either party may petition a court of competent jurisdiction to appoint a mediator. If the matter in dispute is still not resolved by mediation, then the parties shall submit the matter to arbitration as provided in the “Uniform Arbitration Act” under State law.
(Emphases added.)
As anticipated under the DSA, Respondent transferred title to the Property to Hawai'i Island Housing Trust (HIHT), which subsequently leased the Property to Waikoloa Workforce Housing, LLC (WWH). Respondent, HIHT, and WWH signed a “Development Agreement,” which provided, in part, that HIHT and WWH would develop the Project according to Respondent’s requirements. Failure to do so would result in reversion of the Property to Respondent. Respondent then entered into an “Assignment and Assumption Agreement” (Assignment Agreement) with WWH, which stated in relevant part that Respondent “assigns unto [WWH] all right, title, and interest of [Respondent] in ... [the DSA].”
On February 21, 2008, UniDev and WWH entered into an “Amended and Restated Development Services Agreement” (ADSA). UniDev and WWH “wish[ed] to amend the DSA to reflect certain changes in facts and circumstances that [had] occurred since the DSA was first executed by [UniDev] and [Respondent].” Although the ADSA altered some aspects of the original agreement such as UniDev’s compensation, the provision relating to alternative dispute resolution remained largely unchanged.
On April 19, 2009, WWH instructed Uni-Dev to cease all work on the project. The Property was subsequently returned to Respondent.
B.
Following UniDev’s termination from the Project, Respondent filed a Complaint on July 1, 2009 with the court. The case initiated by the Complaint was designated Civil No. 09-01-264K. The Complaint asserted five causes of action, including (1) false claims, in violation of HRS § 46-171 (Supp. 2001), 6 (2) intentional misrepresentation, (3) fraudulent inducement, (4) negligent misrepresentation, and (5) negligence.
On March 29, 2010, Petitioners answered Respondent’s Complaint and filed a counterclaim against Respondent, HIHT, and WWH. Petitioners’ counterclaim asserted four
On November 23, 2010, Respondent filed a second Complaint, initiating a second action against Petitioners, Civil No. 10-1-0427K. Respondent reiterated four of the five causes of action included in its original Complaint. Respondent again alleged causes of action for false claims pursuant to HRS § 46-171 (Count I), intentional misrepresentation (Count III), fraudulent inducement (Count IV), and negligent misrepresentation (Count V). Regarding all four causes of action, the second Complaint identified particular circumstances that constituted the bases of Respondent’s allegations. Respondent also alleged a new cause of action for unfair and deceptive practices (Count II), declaring that Petitioners violated HRS §§ 480-2 (1993) 7 and 481A-3 (1993) by engaging in several acts. 8 On December 16, 2010, the parties stipulated to consolidate Civil No. 09-01-264K with Civil No. 10-1-0427K. 9
C.
On July 30, 2010, Petitioners filed their arbitration motion. On December 17, 2010, the court issued an Order granting the motion. The Order stated in relevant part as follows:
1.[Petitioners] ha[ve] established the existence of a written agreement that requires [Respondent] and [Petitioners] to resolve disputes by means of alternative dispute resolution. Specifically, Section 13 of Rider A of the [DSA] and Section 13 of Rider A of the [ADSA] both require the parties to resolve “any dispute arising under the terms of this Agreement” through the alternative dispute resolution process described therein. [Respondent] concedes that it validly executed the DSA, and as to the alternative dispute resolution provisions, the ADSA simply restates the DSA.
2. [Respondent’s] claims fall within the scope of the alternative dispute resolution clause.... Aternative dispute resolution clauses must be broadly construed, and those covering claims “arising out of’ the agreement have been held to require alternative dispute resolution of fraud-based claims concerning the subject matter of the agreement, as do [Respondent’s] claims.
3. [Petitioners’] counterclaims against [Respondent] are also subject to the alternative dispute resolution provisions of the DSA and the ADSA, as [Petitioners] stated at the hearing. Some of the counterclaims are expressly based on the DSA and the ADSA, and others touch matters concerning the DSA and ADSA or arise out of the relationship between the parties created by those contracts.
(Emphases added.)
II.
A.
Respondent appealed to the ICA. After the parties had filed briefs on the merits, Pe
titioners
In opposition, Respondent cited
Volt Info. Scis., Inc. v. Bd. of Trs.,
On October 17, 2011, the ICA denied Petitioners’ Motion to Dismiss.
County of Hawai'i v. Unidev LLC,
No. CAAP-11-0000019,
B.
On May 25, 2011, Respondent filed its Opening Brief (OB) with the ICA. In pertinent part, Respondent argued (1) that it was not “required to arbitrate pursuant to the DSA [or] the ASDA,” and (2) that its claims were not subject to arbitration. 10 Petitioners filed an Answering Brief (AB) on August 4, 2011. Respondent filed a Reply Brief on August 24, 2011.
1.
As to its first argument, Respondent contended that “the assignment of the DSA to WWH constituted a novation;” “the ADSA [thus] replaced the DSA” and as a result, “the DSA was discharged and [Petitioners could] not enforce the arbitration provision of the DSA against [Respondent].” Also, Respondent asserted that Respondent was not a party to the ADSA, and moreover WWH was not its agent when WWH entered into the ADSA because WWH possessed neither actual authority nor apparent authority to enter into the ADSA on its behalf.
Petitioners responded in their Answering Brief that the Assignment Agreement was an assignment, and not a novation, and as such, did not relieve Respondent from its duties
2.
As to its second argument, Respondent pointed out that the arbitration clauses in the DSA and ADSA required arbitration for “any dispute arising under the terms of this Agreement,” and that “[c]ourts in the Ninth Circuit and Hawai'i have held [that] similar language is ‘relatively narrow,’ and only mandates arbitration of claims which related to the interpretation of the contract and matters of performance.” (Citing
Cape Flattery Ltd. v. Titan Maritime LLC,
607 F. Supp 2d 1179 (D.Haw.2009);
Mediterranean Enterprises, Inc. v. Seangyong Corp.,
Next, Respondent asserted that its claims were not based on Petitioners breaching either the DSA or ADSA, but instead, on Petitioners making fraudulent misrepresentations. Thus, its claims were “clearly actionable regardless of the existence of the DSA or ADSA,” inasmuch as “the claims asserted by [Respondent] are clearly tort claims, and, as a result, d[id] not arise under the DSA or ADSA....” Finally, Respondent declared that Petitioners’ counterclaims were not subject to arbitration, because those “claims necessarily rely upon [Respondent] not being a party to the DSA or ADSA” and, therefore, none of Petitioners’ four counterclaims “arose under the terms of the Agreement.”
In their Answering Brief, Petitioners responded that Respondent’s claims fell within the scope of both arbitration clauses; for clauses that require the party to arbitrate “any dispute arising under the terms of this Agreement” have been consistently construed as “broad.” Thus, Petitioners asserted that the arbitration clauses in the DSA and ADSA covered any claims that “touch matters covered by the parties’ contract” or that “have their roots in the relationship created by the contract.” (Citing
PRM Energy Sys., Inc. v. Primenergy, L.L.C.,
Additionally, Petitioners maintained that Respondent’s causes of action fell within the arbitration clauses because either they “require[d] interpretation of [] the DSA and [ADSA] ” or because the claims would not have occurred “unless the DSA and [ADSA] existed.” Regarding Petitioners’ counterclaims, Petitioners claimed that their “relationship with [Respondent] arises out of[,] and would not have existed without the DSA.” “Thus,” Petitioners urged, “any claims related to that relationship arise out of and are related to the DSA.”
III.
A.
The ICA held, regarding Respondent’s first argument, that Respondent was bound by the DSA, but not the ADSA As to the DSA, the ICA ruled that because neither the Assignment Agreement nor the ADSA was a novation with regard to the DSA, Petitioners did not agree to the discharge of Respon
dent’s
However, with respect to the ADSA, the ICA decided that Respondent “was not a signatory” and Respondent neither gave WWH the authority to bind it to the ADSA nor ratified the ADSA.
Id.
at 397-98,
B.
Regarding Respondent’s second argument, the ICA analyzed each cause of action alleged in the complaints and the counterclaims. The ICA observed that a split in authority existed as to whether clauses that mandated arbitration for disputes “arising under” or “arising out of’ an agreement were broad or narrow.
Id.
at 399,
The ICA explained that “[b]y choosing the specific and clear language in the DSA arbitration provision, the parties indicated their intent to require arbitration when a dispute implicates or involves the terms of the DSA.” Id. (emphasis added). Hence, “arbitration [was] required for claims that involve construction or interpretation of the DSA’s terms, or that require a determination of the parties’ rights and/or obligations under the terms of the DSA.” Id. Applying its interpretation of the DSA’s arbitration clause, the ICA held that Respondent’s negligence claim in its first complaint was subject to the arbitration clause, as was Petitioners’ counterclaim for breach of contract “to the extent [that it alleged] that [Respondent] breached the DSA.” Id. However, the remainder of Respondent’s claims and Petitioners’ counterclaims did not “involve the terms of the DSA,” and therefore were not within the scope of the DSA’s arbitration clause. Id.
IV.
In their Application, Petitioners ask (1) whether this court’s decision in Swinerton was “nullified by the adoption of the [Revised Uniform Arbitration Act (RUAA) ], (2) whether the ICA erred by “adopting the minority view regarding [the] ‘arising under’ language” in the arbitration provisions and “drastically narrow[ing] the scope of the parties’ arbitrable claims,” and (3) whether it was grave error to exclude Respondent’s claims and Petitioners’ counterclaims from arbitration. Respondent filed a Response on December 31,2012. Petitioners filed a Reply on January 7, 2012.
V.
As an initial matter, neither party challenges the ICA’s conclusion that Respondent is bound by the arbitration clause of the DSA.
Unidev II,
Further, Petitioners did not argue below that Respondent was bound by the arbitration clause in the ADSA. At oral argument, Petitioners contended that they “raised the ratification argument” at every stage of the proceedings. To the contrary, before the court and before the ICA, Petitioners argued that by asserting claims under the ADSA Respondent ratified WWH’s signing of the ADSA as a part of an agency theory. AI of the cases cited by Petitioner related to agency status.
14
The ICA rejected Petitioners’ ratification argument because Petitioners could not demonstrate “that WWH entered into the ADSA on behalf of Respondent.”
Unidev II,
Before this court, Petitioners did not challenge the ICA’s determination that Petitioners could not prove that WWH was acting on behalf of Respondent. Instead, Petitioners cited eases that suggested Respondent was bound by the ADSA’s arbitration clause solely because Respondent asserted claims under the ADSA The analysis in the cases cited does not utilize an agency theory, but instead one of estop-pel.
15
Thus, Petitioners raise their estoppel
VI.
A.
As to the first Application question, Petitioners contend, contrary to their position before the ICA, that Hawai'i law does not permit interlocutory appeals from orders compelling arbitration. According to Petitioners, this court’s decision in
Swinerton,
Petitioners maintain that at the time
Swinerton
was decided, Hawai'i’s arbitration statute was “silent with regard to appeals of orders concerning arbitration.” Thus, “the
Swinerton
decision properly turned upon general principles of appealability.” Petitioners read
Swinerton
as holding that under the “collateral order doctrine,”
16
the Hawai'i general appeals statute, HRS § 641-l(a) (1993)
17
, allowed “interlocutory appeals from orders denying arbitration as well as orders compelling arbitration.” (Citing
Swinerton,
Petitioners state, however, that “fifteen years after
Swinerton,
the Hawai'i legislature adopted the RUAA,” and under the RUAA, “HRS § 658A-[2]8 permits appeals of orders denying arbitration,” but “does not authorize appeals challenging orders compelling arbitration.”
18
(Emphases in original.) That “omission is significant,” according to Petitioners, “for ‘this court has consistently applied the rule of expressio unius est exclu-sio alterius—the express inclusion of a provision in a statute implies the exclusion of another—in interpreting statutes.’ ” (Quoting
Fought & Co. v. Steel Eng’g,
Also, Petitioners assert that the majority of jurisdictions adopting the RUAA do not allow appeals from orders compelling arbitration. Hence, this court must “interpret and construe the RUAA as to effectuate [the RUAA’s] general purpose to make uniform the laws of the states and territories which enacted [it].” (Citing HRS § 1-24 (Repl. 2003).) 19 Finally, Petitioners maintain that allowing appeals from orders compelling arbitration will “encourage[ ] delays, add[ ] costs, and wast[e] judicial resources and the parties resources.”
B.
1.
Respondent responds first, that Petitioners have waived the argument that Hawaii law forbids appealing orders that compel arbitration, by not raising that issue before the ICA. “It is well established,” Respondent maintains, “that an issue raised for the first time on appeal will not be considered by the reviewing court.” (Citing
State v. Schnabel,
2.
In answer to Petitioners’ position that the RUAA supplants this court’s decision in
Swinerton,
Respondent posits that “HRS § 641-l(a) provides additional authority for appeals.” Respondent cites the ICA’s decision in
Picardy v. Sky River Mgmt., LLC.,
No. 29824,
Relying on
Picardy,
Respondent contends that “several other jurisdictions [ ] have noted [that] similar statutes ... do not represent an exclusive list of appealable orders.”
22
VII.
As an initial matter, Respondent’s contention that Petitioners have waived their argument that Hawai'i law does not permit appeals from an order compelling arbitration is incorrect. “If a court lacks jurisdiction over the subject matter of a proceeding, any judgment rendered in that proceeding is invalid.”
Bush v. Hawaiian Homes Comm’n.,
Respondent also argues that “the ICA never decided” the issue of whether the ICA had jurisdiction under Hawai'i law and therefore, “there is nothing to correct.” However, as discussed
supra,
a jurisdictional question can be raised at any point in the proceedings. Therefore, whether or not the ICA’s opinion contained error is not controlling; the lack of jurisdiction can be raised for the first time before this court. Additionally, Respondent’s assertion that the ICA “never decided th[e] issue” is wrong. The ICA held that “[ujnder Hawai'i state law, an order compelling arbitration is appealable under HRS § 641-l(a) and the collateral order doctrine.”
Unidev I,
VIII.
A
In HRS § 658A-28, which adopted the RUAA appeals provision, the legislature expressly enumerated six circumstances in which an interlocutory appeal may be taken from proceedings related to arbitration. Although the statute specifically allows for appeals from “[a]n order denying a motion to compel arbitration,” it is silent as to the appealibility of orders granting a motion to compel arbitration. HRS § 658A-28 (emphasis added). Under the canon of expressio unius est exclusio alterius, “the mention of one thing implies the exclusion of another.”
Int’l Sav. and Loan Ass’n v. Wiig,
There is a “natural association of ideas” between an order denying a motion to compel arbitration and an order granting a mo
tion to compel arbitration, because both involve the circuit court’s decision regarding a motion to compel arbitration. Hence, the failure to include an order granting a motion to compel arbitration in the list of appealable orders in HRS § 658A-28 may suggest that the legislature did not intend to allow such appeals.
See, e.g., Chem-Ash, Inc. v. Arkansas Power and Light Co.,
However, HRS § 658A-28 and HRS § 641-1 are both statutes regarding the courts’ jurisdiction to hear appeals. It is well settled that “where there is a plainly irreconcilable conflict between a general and a specific statute concerning the same subject matter, the specific will be favored.”
State v. Hussein,
Two statutes conflict where “it is not possible to give effect to both.”
Schnabel,
B.
But nothing in the text of HRS § 658A-28 indicates that its list of appealable orders is exclusive. To the contrary, the plain meaning of the text demonstrates that HRS § 658A-28 may be read in conjunction with the general appeals statute, HRS § 641-1.
See State v. Ribbel,
C.
This interpretation of HRS § 658A-28 is consistent with the approach followed in the majority of cases cited by Petitioners and
Even in the majority of the decisions cited by Petitioners, courts do not conclude that statutes based on the UAA or RUAA are exclusive. Instead, those decisions conclude that (1) orders compelling arbitration are not listed under the RUAA appeals provision, and (2) that the appealability of orders compelling arbitration “must also be examined” under that jurisdiction’s general appeals statute. Ch
em-Ash,
Therefore, in consonance with the decisions of the majority of jurisdictions that have adopted either the UAA or RUAA’s appeals provision, HRS § 658A-28 represents a non-exclusive list of appealable orders. In that regard, HRS § 641-1, Hawaii’s final judgment statute, allows appeals from “all final judgments, orders or decrees.” To reiterate, under the collateral order doctrine, “orders ... compelling arbitration are appealable final orders.”
Swinerton,
D.
The Commentary to the RUAA does not address the RUAA section on appeals. The Prefatory Note to the RUAA does state that the RUAA “revis[ed] the original [UAA] in light of the increasing use of arbitration, the greater complexity of many disputes resolved by arbitration, and the developments of the law in this area.” Prefatory Note to the RUAA. In other words, the RUAA is a “revision of the UAA.” Id. The Prefatory Note to the original UAA explained that “[t]he section on Appeals is intended to remove doubts as to what orders are appealable and to limit appeals prior to judgment as to those instances where the element of finality is present.” Prefatory Note to the UAA. 30
As discussed
supra,
however, the plain language of HRS § 658A-28, i.e. “may,” indicates that the statute’s list of appealable orders was not exclusive. “Departure from the plain and unambiguous language of the statute cannot be justified without a clear showing that the legislature intended some other meaning would be given [to] the language.”
Singleton v. Liquor Comm’n, Cnty. of Hawai'i,
Moreover, this court’s decision in
Swiner-ton
is not inconsistent with the Prefatory Note to the UAA, inasmuch as the Note emphasized that the purpose of the appeals provision was to “limit appeals prior to judgment as to those instances where the element of finality is present.” (Emphasis added.)
Swinerton
explained that “what determines the finality of an order ... is the nature and effect of the order.”
E.
Finally, Petitioners argue pursuant to HRS § 1-24, that this court should interpret HRS § 658A-28 in a manner that is uniform with the other states adopting RUAA (Internal quotation marks and brackets omitted). First, as discussed supra, the majority of UAA or RUAA states to address this issue apparently recognize that the appeals provision of both model statutes are not exclusive. Hence, interpreting HRS § 658A-28 as a non-exclusive list is consistent with the practices of other jurisdictions. Second, other UAA or RUAA states are not uniform in disallowing appeals from orders compelling arbitration. Decisions from several UAA or RUAA states, including Nebraska, New Jersey, Oklahoma, and New Mexico permit appeals from orders compelling arbitration. Given conflicting interpretations of the UAA or RUAA appeals provision in other states, HRS § 658A-28 is not being interpreted in a non-uniform manner.
VIII.
A.
Regarding the second Application question, Petitioners first contend that the ICA erred in relying on
In re Kinoshita,
The language in the DSA states that “any dispute arising under the terms of the agreement” is subject to arbitration. Acknowledging the split in federal authority interpreting “arising under,” the ICA stated that “[w]e need not decide that particular issue.”
Unidev II,
B.
As to their second argument regarding the second question, Petitioners contend that “[cjourts that examine nearly identical arbitration clauses [to the arbitration clause at issue in this case] refuse to characterize the controlling language as being narrow.” Petitioners assert that in
Goldberg v. Focus Affiliates, Inc.,
According to Petitioners, in Gregory, the “Eleventh Circuit held that fraudulent inducement claims were within the scope of an agreement requiring arbitration of ‘any dispute ... which may arise hereunder.’ ” Further, Petitioners contend that in Campos, which dealt with an agreement “requiring arbitration for ‘any and all disputes over the terms and implementation of this Agreement,’ ” the court characterized the arbitration agreement as “broad in scope.” (Emphasis added.) Consequently, Petitioners argue that the DSA’s arbitration provision should be construed “broadly.”
In response, Respondent reiterates that under
Cape Flattery Ltd., Mediterranean Enterprises,
and
Tracer Research,
the arbitration agreement at issue in this ease is “relatively narrow.” Respondent also cites
Hamada v. Westcott,
C.
Under Hawai'i law, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.”
Lee v. Heftel, 81
Hawai'i 1, 4,
Those courts deciding that the phrase “arising under” should be interpreted narrowly emphasize that the choice to use “arising under” instead of language such as “arising out of or in relation to” must be meaningful.
See Mediterranean Enterprises,
In contrast, the majority of federal courts conclude that the policy favoring arbitration requires arbitration provisions containing “general language,” such as the language at issue in the instant case, be construed broadly.
Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress Int'l, Ltd.,
Several other courts have also interpreted arbitration provisions containing “arising under” language as “general” arbitration clauses whose scope is broad. For example, in
PRM Energy Systems,
the arbitration clause at issue “cover[ed] ‘all disputes arising under’ the agreement.”
Under the circumstances of this case, the reasoning of the federal courts in construing similar arbitration clauses broadly is persuasive. Respectfully, the ICA’s interpretation of the arbitration provision’s scope, i.e., that the clause only mandates arbitration for claims that involve “construction or interpretation of the DSA’s terms,” appears unnecessarily narrow. We conclude that the arbitration clause in the instant case constitutes a “general” arbitration clause. As discussed infra, this application of the arbitration clause in the DSA covers the claims and counterclaims raised by the parties in the instant case.
Moreover, as in
Sweet Dreams Unlimited
and
PRM Energy,
the general arbitration clause contained “no limiting language” that
IX.
A.
As to the third question raised in the Application, Petitioners argue that all of Respondent’s claims and Petitioners’ counterclaims are subject to arbitration. Whether a claim falls within the scope of an arbitration agreement turns on the factual allegations in the complaint.
See Heftel,
As to (1), (2), and (3), the invoices that Respondent objects to all requested payment for work allegedly performed on behalf of the project. Thus, the invoices that Respondent alleges are fraudulent are covered by the general language referring to disputes arising under the DSA inasmuch as the payments involved Petitioners’ obligation to develop the Project for Respondent.
Similarly, as to (4), Respondents allege that the purpose of Petitioners’ misrepresentations was to obtain further funding for the Project. Because the contractual relationship created by the DSA between Petitioners and Respondent initiated the development of the Project, these allegations also arose under the DSA.
As to (5), Petitioner claims that the contract itself was fraudulently induced. In
Heftel,
this court concluded that “a broad arbitration clause will be held to encompass arbitration of the claim that the contract itself was induced by fraud.”
Finally, for its negligence claim in its first complaint, Respondent alleged that Petitioners failed to abide by the terms of the DSA, which required Petitioners to obtain prior approval for certain consultant contracts and their expenses. In other words, Respondent alleges that Petitioners did not meet the contractual obligations set forth in the DSA. Thus, as the ICA recognized, this allegation arose under the DSA
As to Petitioners’ counterclaims, Petitioners allege that (1) WWH breached the DSA and ADSA, (2) Respondent and WWH were unjustly enriched because they did not pay Petitioners for the benefits of their services, (3) Respondent interfered with the contract between WWH and Petitioners, and (4) WWH fraudulently transferred land to Respondent to avoid paying Petitioners what they were owed under the ADSA All four claims relate to the relationship between WWH and Petitioners. The DSA foresaw that Respondent would transfer the Property to WWH, and that WWH would work with Petitioners to complete the Project. As the court recognized, then, Petitioners’ counterclaims “arise out of the relationship between the parties” created by the DSA.
X.
Thus, Respondent’s claims and Petitioners’ counterclaims fall within the scope of the DSA arbitration provision, and are subject to arbitration. To the extent that the ICA held otherwise, respectfully, the ICA erred. Based on the foregoing, the ICA’s October 17, 2011, Order Denying September 19, 2011 Motion to Dismiss Appeal for Lack of Jurisdiction is affirmed. In light of the reasons stated herein, the ICA’s August 31, 2012 opinion and October 18, 2012 judgment on appeal are vacated in part and affirmed in part. The case is remanded to the court for further proceedings consistent with this opinion.
Notes
. HRS § 658A-28 provides as follows:
§ 658A-28 Appeals.
(a) An appeal may be taken from:
(1) An order denying a motion to compel arbitration;
(2) An order granting a motion to stay arbitration;
(3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award;
(5) An order vacating an award without directing a rehearing; or
(6)A final judgment entered pursuant to this chapter.
(b) An appeal under this section shall be taken as from an order or a judgment in a civil action.
(Emphases added.)
. HRS § 641-1 provides in relevant part as follows;
(a) Appeals shall be allowed in civil matters from all final judgments, orders, or decrees of circuit and district courts and the land court to the intermediate appellate court, subject to chapter 602.
(Emphasis added.)
. The Honorable Elizabeth A. Strance presided.
. The ICA’s decision in this case consolidated two cases, CAAP-10-0000188 and CAAP-11-0000019.
. HRS § 46-171 provides, in relevant part as follows:
§ 46-171 Actions for false claims to the counties; qui tam actions.
(a) Any person who:
(1) Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;
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shall be liable to the county for a civil penalty of not less than $5,500 and not more than $11,000, plus three times the amount of damages that the county sustains due to the act of that person.
. HRS § 480-2 provides in relevant part as follows:
§ 480-2 Unfair competition, practices, declared unlawful.
(a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.
. HRS § 481A-3 provides in relevant part as follows:
§ 481A-3 Deceptive trade practices.
(a) A person engages in a deceptive trade practice when, in the course of the person’s business, vocation, or occupation, the person:
(1) Passes off goods or services as those of another;
(2) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
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(12) Engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
.Petitioners did not file an answer or counterclaims to the second complaint, apparently because the court’s December 17, 2010 Order granting Petitioner’s Motion to Compel Alternative Dispute Resolution (arbitration motion) stayed "all proceedings in this court.”
. Respondent also argued that Petitioners waived their right to request arbitration. The ICA held that Petitioners did not waive their arbitration rights, and neither party has challenged that holding.
County of Hawai'i v. Unidev, LLC,
. Respondent did object to the ICA’s holding regarding the DSA at oral argument. However, Respondent did not cross-appeal the holding of the ICA or raise this issue in its Response. Thus, it has been waived.
See
Hawai'i Rules of Appellate Procedure (HRAP) Rule 40.1. In any event, it appears that the ICA correctly rejected Respondent’s arguments that neither the Assignment Agreement nor the ADSA effected a novation and discharged Respondent’s obligations under the DSA. As the ICA recognized, Petitioners’ assent to the discharge of Respondent’s duties under the DSA was required to effectuate a novation. Restatement (Second) of Contracts § 280 cmt. d ("For a novation to take place, the obligee must assent to the discharge of the obligor's duty in consideration for the promise of the third party to undertake that duty.”) (emphasis added);
see also Hawai'i Builders Supply Co. v. Kaneta,
.Petitioners' Application does not explain why the question of whether or not Respondent is bound by the ADSA is relevant to the ultimate disposition of the case. Whether Petitioners are bound by the arbitration clause in the ADSA may have been relevant under the ICA’s holding that arbitration clauses in the DSA and ADSA extend only to claims requiring "construction or interpretation” of the terms of those agreements.
Unidev II,
. Petitioners point to Count 1 of Respondent’s first complaint, which alleged that Petitioners submitted to Respondent invoices that Respondent was not contractually obligated to pay, and even if Respondent was obligated to pay, those invoices "request payment for amounts that even under the ADSA ... would not be due to [Petitioners].” (Emphasis added.) Petitioners claim that this citation to the ADSA “requires interpretation of the ADSA’s payment provisions.”
.
See, e.g., Hawai'i County v. Purdy,
.
See, e.g., Boucher v. Alliance Title Company, Inc.,
. The collateral order doctrine allows appeals from orders "falling in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”
Swinerton,
. At the time of Swinerton, HRS § 641-1 (a) (1985 Repl.) provided as follows:
(a) Appeals shall be allowed in civil matters from all final judgments, orders, or decrees of circuit and district courts and the land court, to the supreme court or to the intermediate appellate court, except as otherwise provided by law and subject to the authority of the intermediate appellate court to certify reassignment of a matter directly to the supreme court and subject to the authority of the supreme court to reassign a matter to itself from the intermediate appellate court.
(Emphasis added.)
HRS § 641-1 (a) was subsequently amended to require that appeals be heard by the ICA. To reiterate, HRS § 641-1 (a) now provides as follows:
(a) Appeals shall be allowed in civil matters from all final judgments, orders, or decrees of circuit and district courts and the land court to the intermediate appellate court, subject to chapter 602.
(Emphasis added.)
.Petitioners acknowledge that twice since the adoption of the RUAA, this court has restated its holding in
Swinerton
that appeals are allowable under the collateral order doctrine. (Citing
Luke,
. HRS § 1-24 provides as follows:
§ 1-24 Interpretation of uniform acts.
All provisions of uniform acts adopted by the State shall be so interpreted and construed as to effectuate their general purpose to make uniform the laws of the states and territories which enact them.
. HRS § 602-59 provides in relevant part as follows:
(b) The application for writ of certiorari shall tersely state its grounds, which shall include:
(1) Grave errors of law or of fact; or
(2) Obvious inconsistencies in the decision of the intermediate appellate court with that of the supreme court, federal decisions, or its own decision, and the magnitude of those errors or inconsistencies dictating the need for further appeal.
. Respondent argues that
Picardy
is a decision of this court. Westlaw has published the opinion as from the “Supreme Court of Hawaii.”
Picar-dy,
. Respondent cites
Kremer,
788 N.W.2d at SAY-AS;
Wein
v.
Morris,
. In Reply, Petitioners argue that they cannot have waived their jurisdictional argument because "[t]he ICA's improper exercise of appellate jurisdiction is a grave error of law that may be raised at any time.” (Citing
Hous. Fin. & Dev. Corp. v. Castle,
. The ICA reached the same conclusion in
Pi-cardy,
holding that “HRS § 641-1 provides additional authority for appeals, authorizing appeals to the [ICA] from final judgments, orders, or decrees."
. The UAA appeals section is virtually identical to the RUAA appeals section. The UAA section governing appeals provides as follows:
§ 19 Appeals.
(a) An appeal may be taken from:
(1) An order denying a motion to compel arbitration made under Section 2;
(2) An order granting a [motion] to stay arbitration made under Section 2(b);
(3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award;
(5) An order vacating an award without directing a rehearing; or
(6) A judgment or decree entered pursuant to the provisions of this act.
(b) An appeal under this section shall be taken as from an order or a judgment in a civil action.
. HRS § 658A-28 is adopted verbatim from the RUAA. The RUAA section governing appeals provides as follows:
§ 28 Appeals.
(а) An appeal may be taken from:
(1) An order denying a [motion] to compel arbitration;
(2) An order granting a [motion] to stay arbitration;
(3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award;
(5) An order vacating an award without directing a rehearing; or
(б) A final judgment entered pursuant to this [Act],
(b) An appeal under this section shall be taken as from an order or a judgment in a civil action.
. Other jurisdictions that permit appeals from orders compelling arbitration based on an interpretation of similar provisions as being non-exclusive are
Kremer,
. Other cases cited by Petitioners that address both the appeals provision in the UAA or RUAA and that jurisdiction’s general appeals statute before holding that orders compelling arbitration are not appealable are
Powell v. Cannon,
. At oral argument, Petitioners stated that "forty-nine” jurisdictions have adopted the UAA or RUAA, and of those jurisdictions “about forty-one” do not allow appeals from orders compelling arbitration. Petitioner cited as authority the American Law Reports annotation on orders compelling arbitration. See Annotation, Appeala-bility of State Court’s Order or Decree Compelling or Refusing to Compel Arbitration, 6 A.L.R.4th 652 (Originally published in 1981). Petitioner apparently was citing the Prefatory Note to the RUAA, which stated that “forty-nine jurisdictions have arbitration statutes, 35 of those have adopted the UAA and 14 have adopted substantially similar legislation." Prefatory Note to the RUAA.
But, confusion apparently exists as to which jurisdictions have not adopted the UAA.
Compare Birmingham News Co. v. Horn,
Second, in the ALR article identified by Petitioner, decisions from twenty UAA or RUAA states (Arizona, Arkansas, Colorado, Florida, Kentucky, Maine, Massachusetts, Maryland, Minnesota, Missouri, Nevada, North Carolina, Oregon, Pennsylvania, South Carolina, Texas, Utah, Virginia, Washington, and Wyoming) are cited as refusing to allow appeals from orders compelling arbitration. 6 A.L.R. 4th at § 3[b]-3[c]. Of those twenty states, decisions from nineteen states (all but Nevada) are cited as "based in whole or in part upon the consideration that the particular order lacked such finality as to fall within the purview of a statute or rule of practice authorizing appeals from final orders or judgments.” Id. at § 3[b] (emphasis added). Hence, even under the authority cited by Petitioner, the clear majority of states do not consider the UAA or RUAA appeals provision to be exclusive.
. Neither the UAA nor RUAA establishes the weight to be given to either the Commentary or the Prefatory Note in interpreting those acts.
. In
Hamada,