NO. 23868



IN THE SUPREME COURT OF THE STATE OF HAWAII

YVETTE MARKUS and ASHLEY D. MARKUS, Individually and as Special Administrators of THE ESTATE OF JACOB ASHLEY MAKANA NOHONA MARKUS, Deceased, Plaintiffs-Appellants



vs.



ASAHI JYUKEN U.S.A., INC., a Hawaii corporation; KUILIMA RESORT COMPANY, a Hawaii general partnership; ASAHI PLAZA HAWAII, INC., a Hawaii corporation; A.J. PLAZA

HAWAII CO., LTD., a Hawaii corporation;

AMERICAN SAVINGS BANK, F.S.B., Defendants-Appellees



and



JOHN DOES 1-10; et al., Defendants



and



AMERICAN SAVINGS BANK. F.S.B., Third-Party Plaintiff



vs.



JOHN DOES 1-10 AND JANE DOES 1-10, Third-Party Defendants



and



ASAHI JYUKEN U.S.A., INC., KUILIMA RESORT COMPANY;

ASAHI PLAZA HAWAII, INC., and A.J. PLAZA HAWAII CO., LTD., Fourth-Party Plaintiffs



vs.



BYRON CRISTOBAL, et al., Fourth-Party Defendants



APPEAL FROM THE FIRST CIRCUIT COURT

(CIV. NO. 97-1972)



ORDER DISMISSING APPEAL

(By: Moon, C.J., Levinson,

Nakayama, Ramil, and Acoba, JJ.)



Upon review of the record, it appears that entry of the October 4, 2000 stipulated dismissal of claims did not give rise to a right to appeal the August 8, 2000 order denying the motion to certify individuals as Doe Defendants 1 and 2 inasmuch as the stipulated dismissal with prejudice is not appealable. See 8 Moore's Federal Practice, § 41.34[7][b] (Matthew Bender 3d. ed.) ("A party may not appeal from a stipulated dismissal with prejudice because it is not an involuntary adverse judgment.").

Insofar as the October 4, 2000 stipulated dismissal of claims purports to preserve the plaintiffs' right to appeal the August 8, 2000 order denying the motion to certify individuals as Doe Defendants, appellate jurisdiction cannot be invoked by agreement of the parties. Francone v. McClay, 40 Haw. 475, 477 (1954).

It further appears that the October 4, 2000 stipulated dismissal of claims purports to except the claims against Doe Defendants 1 and 2 from the dismissal by stating that those claims are "not dismissed." In that case, absent entry of judgment on the claims against Doe Defendants 1 and 2, the appeal of the August 8, 2000 order relating to those claims is an appeal of an interlocutory order that was not certified for appeal pursuant to HRS § 641-1(b). Therefore,

IT IS HEREBY ORDERED that this appeal is dismissed for lack of appellate jurisdiction.

DATED: Honolulu, Hawaii, February 14, 2001.