***
NOT FOR PUBLICATION ***
NO. 26352
IN
THE SUPREME COURT OF THE STATE OF HAWAI`I
MITSUI
NORIN CO., LTD., Plaintiff/Counterclaim Defendant/Appellee
vs.
KAKAAKO
M-P DEVELOPMENT (KAKAAKO) and MOTOI KOSAN U.S.A., INC.,
Defendants/Counterclaim
Plaintiffs/Cross-Claim
Defendants/Appellants
and
HAWAII
COMMUNITY DEVELOPMENT AUTHORITY, STATE OF HAWAI`I,
Defendant/Counterclaim
Plaintiff/Cross-Claim Plaintiff/Appellee
and
CITY
AND COUNTY OF HONOLULU, Defendant-Appellee
APPEAL
FROM THE FIRST CIRCUIT COURT
(CIV. NO. 03-1-0648)
ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.
and Acoba, J., dissenting separately)
Upon review of the statements supporting and contesting jurisdiction,
the motion to dismiss the appeal, the papers in
support and in opposition, and the record, it appears that we do not
have jurisdiction over the appeal from the
December 22, 2003 order granting Plaintiff/Counterclaim
Defendant/Appellee Mitsui Norin Co., Ltd.'s, motion for an
order disqualifying the law firm of Carlsmith Ball, LLP, from
representing Defendants/Counterclaim Plaintiffs/Cross-Claim
Defendants/Appellants Kakaako M-P Development and Motoi Kosan U.S.A.,
Inc. (the Appellants). HRS § 641-1(a)
(1993) authorizes appeals only from final judgments, orders, or
decrees. An order granting or denying a motion to
disqualify a party's counsel "d[oes] not determine the merits of the
case, and it can be final for the purpose of appeal only if
it comes within the collateral order doctrine[.]" Gomes v. Kauwe's Heirs, 52
Haw. 126, 127, 472 P.2d 119, 120 (1970)
(citation omitted); Chuck v.
St. Paul Fire and Marine Ins. Co., 61 Haw. 552, 556-57, 606 P.2d
1320, 1323-24 (1980). "In
order to fall within the narrow ambit of the collateral order doctrine,
the order must [1] conclusively determine the disputed
question, [2] resolve an important issue completely separate from
the merits of the action, and [3] be effectively
unreviewable on appeal from a final judgment." Siangco v. Kasadate, 77
Hawai`i 157, 161, 883 P.2d 78, 82 (1994)
(citations and internal quotation marks omitted) (original brackets).
The December 22, 2003 order does not satisfy all three
requirements for appealability under the collateral order doctrine.
Furthermore, the Appellants did not obtain leave to file
an interlocutory appeal pursuant to HRS § 641-1(b) (1993).
Therefore, the appeal is premature, and we lack jurisdiction.
Accordingly,
IT
IS HEREBY ORDERED that this appeal is dismissed for lack of appellate
jurisdiction.
DATED:
Honolulu, Hawai`i, April 29, 2004.
I would not dismiss for lack of jurisdiction inasmuch as I believe the
appeal is permissible under the collateral order
doctrine.
(Dissenting J. Acoba)