NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC
REPORTER
NO. 28744
IN THE
INTERMEDIATE COURT OF APPEALS
OF THE
STATE OF
JIM ANDREWS
and THE LANDSCAPE WORKS, INC., Plaintiffs-Appellees
v.
MARCUS D.E. ROSEHILL and MARCUS R. ROSEHILL REVOCABLE
LIVING
TRUST and VIOLET MARIE M. REVOCABLE LIVING TRUST,
dated December 23, 1986, Defendants-Appellants
(CIV. NO.
06-1-1976)
MARCUS
ROSEHILL, Trustee of the MARCUS F. ROSEHILL REVOCABLE
LIVING TRUST and VIOLET MARIE M. ROSEHILL REVOCABLE LIVING TRUST,
Plaintiffs,
v.
JIM ANDREWS
and THE LANDSCAPE WORKS, INC., Defendants
(CIV. NO. 06-1-1982)
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION
(By: Recktenwald, C.J., Watanabe and Nakamura, JJ.)
Upon review of the statements in support of
jurisdiction and contesting jurisdiction, and the record and files herein, it
appears that we lack jurisdiction over Trustee Marcus Rosehill's
appeal from the Honorable Glenn J. Kim's August 20, 2007 order denying
Trustee Rosehill's motion to dismiss the complaint in
Civ. No. 06-1-1976-11, where
(1) the August 20, 2007 order is not a final order or
judgment under HRS § 641-1(a) (Supp. 2005), Rule 58 of the Hawai‘i Rules of Civil Procedure (HRCP), and the
holding in Jenkins v. Cades Schutte Fleming &
Wright, 76 Hawai‘i 115, 119, 869 P.2d 1334,
1338 (1994);
(2) Trustee Rosehill's September 13, 2007 notice of appeal is not
a "premature filing of appeal that may be considered filed immediately
after the time the judgment or order becomes final" pursuant to HRAP Rule
4(a)(2);
(3)
exceptions to the finality
requirement encompassed by the Forgay doctrine (1) and the collateral order doctrine do not
apply; and
(4) an interlocutory appeal was not certified consistent with
HRS § 641-1(b).
HRS § 641-1(a) (Supp. 2006)
authorizes appeals from "final judgments, orders, or decrees[.]"
"When a written judgment, order, or decree ends the litigation by fully deciding all rights and liabilities of all parties,
leaving nothing further to be adjudicated, the judgment, order, or decree is
final and appealable." Casumpang v. ILWIJ, Local
142, 91 Hawai‘i 425, 426, 984 P.2d 1251,
1252 (1999) (citation omitted). Furthermore, pursuant to the separate
document rule under Rule 58 of the Hawai‘i
Rules of Civil Procedure (HRCP), "[a]n appeal may be taken from circuit court
orders resolving claims against parties only after the orders have been reduced
to a judgment and the judgment has been entered in favor of and against the
appropriate parties pursuant to HRCP [Rule] 58[.]" Jenkins
v. Cades Schutte Fleming & Wright, 76 Hawai‘i 115, 119, 869 P.2d 1334, 1338 (1994).
Moreover, "a judgment or order in a consolidated case, disposing of
fewer than all claims among all parties, is not appealable in the absence of [HRCP] Rule 54(b)
certification." Leslie v. Estate of Tavares, 109 Hawai‘i 8, 13, 122 P.3d 803, 808 (2005) (emphases and
brackets added). The August 20, 2007 order was not a final order where it
did not end the litigation, did not dispose of all claims among all parties in
the consolidated case, and was not reduced to a separate judgment.
Although HRAP Rule 4(a)(2)
permits a premature notice of appeal in a civil case to be considered filed
"immediately after the time the judgment or order becomes final for
purposes of appeal[,]" the notice of appeal must have been filed
"after the announcement of a decision but before entry of the judgment or
order." In the instant case, it appears that no "announcement of a
decision" resolving all consolidated claims in Civil No. 06-1-1982
and Civil No. 06-1-1976 had occurred as of the September 13, 2007 date of
appeal, and that no final judgment appears in the record on appeal.
Although the Forgay
doctrine and the collateral order doctrine provide exceptions to the finality
requirement, the August 20, 2007 order does not satisfy all of the factors
for appealability under the Forgay
doctrine or the collateral order doctrine. See Ciesla
v. Reddish, 78 Hawai‘i 18, 20, 889 P.2d
702, 704 (1995) (regarding the Forgay
doctrine), and Abrams v. Cades, Schutte, Fleming
& Wright, 88 Hawai‘i 319, 321, 966 P.2d
631, 633 (1998) (regarding the collateral order doctrine).
HRS § 641-1(b) (Supp. 2006)
provides that a circuit court may allow an appeal "from an order denying a
motion to dismiss or from any interlocutory judgment, order, or decree whenever
the circuit court may think the same advisable for the speedy termination of
litigation before it." The circuit court did not certify the
August 20, 2007 order for interlocutory appeal. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed
for lack of appellate jurisdiction.
DATED:
1. Forgay
v. Conrad, 47