NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER


NO. 29172





IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I





In the Matter of the LORRAINE M. THOMPSON
REVOCABLE LIVING TRUST AGREEMENT dated May 12, 1998.




APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. TRUST 07-1-0002)





ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)

Upon review of the record, it appears that we do not have jurisdiction over the appeal that Petitioners-Appellants Petitioners-Appellants Sue E. Thompson, Charles N. Thompson, Katrina Thompson, and Fawn L. Thompson (the Thompson Appellants) have asserted from the Honorable Kathleen N. A. Watanabe's April 21, 2008 findings of fact, conclusions of law and order granting in part and denying in part the Thompson Appellants' November 9, 2007 petition for distribution, accounting, constructive trust, removal of trustee, and surcharge of trustee (the April 21, 2008 order), because the April 21, 2008 order is not an appealable judgment or appealable order pursuant to Hawaii Revised Statutes (HRS) § 641-1(a) (1993 & (Supp. 2007) and Rule 34 of the Hawai‘i Probate Rules (HPR).

HRS § 641-1(a) (1993 & Supp. 2007) is the law that authorizes appeals from "final judgments, orders, or decrees[.]" HRS § 641-1(a) (1993 & Supp. 2007). HPR Rule 34 generally requires the probate court to reduce an order to a separate judgment as a prerequisite for appealability:

RULE 34. ENTRY OF JUDGMENT, INTERLOCUTORY ORDERS, APPEALS

(a) Entry of Judgment. All formal testacy orders, orders of intestacy and determination of heirs, orders establishing conservatorship and/or guardianship, and orders establishing protective arrangements shall be reduced to judgment and the judgment shall be filed with the clerk of the court. Such judgments shall be final and immediately appealable as provided by statute. Any other order that fully addresses all claims raised in a petition to which it relates, but that does not finally end the proceeding, may be certified for appeal in the manner provided by Rule 54(b) of the Hawai'i Rules of Civil Procedure.

(b) Interlocutory Orders. In order to appeal from any other order prior to the conclusion of the proceeding, the order must be certified for appeal in accordance with Section 641-1(b) of the Hawai'i Revised Statutes.

(c) Final Judgment Closing Proceeding. At the conclusion of the proceeding, a final judgment closing the proceeding shall be entered and filed with the clerk of the court, at which time all prior uncertified interlocutory orders shall become immediately appealable.

(d) Appeals. Final judgments as to all claims and parties, certified judgments, certified orders, and other orders appealable as provided by law may be appealed pursuant to the Hawai'i Rules of Appellate Procedure applicable to civil actions.

HPR Rule 34 (emphases added). One exception to the requirement for a judgment is in HPR Rule 34(b), which authorizes an appeal if the probate court certifies an interlocutory order for appeal in accordance with HRS § 641-1(b) (1993 & Supp. 2007). "Rule 34 is written to conform probate practice to the policy against piecemeal appeals, see, e.g., Jenkins v. Cades Schutte Fleming & Wright, 76 Haw. 115, 869 P.2d 1334, 1994 Haw. LEXIS 19 (1994)." Commentary to HPR Rule 34. Under the holding in Jenkins v. Cades Schutte Fleming & Wright, "[a]n appeal may be taken . . . 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). "[A]n appeal from any judgment will be dismissed as premature if the judgment does not, on its face, either resolve all claims against all parties or contain the finding necessary for certification under HRCP [Rule] 54(b)." Id. Therefore, under HRS § 641-1 (1993 & Supp. 2007) and HPR Rule 34, a probate court order is eligible for appellate review only if the probate court either

(a)     reduces the order to a separate judgment pursuant to HPR Rule 34(a),

(b)     certifies the order for appeal in the manner provided by Rule 54(b) of the Hawai‘i Rules of Civil Procedure
         (HRCP) pursuant to HPR Rule 34(a), or

(c)     certifies the order for appeal in accordance with HRS § 641-1(b) (1993 & Supp. 2007) pursuant to HPR
         Rule 34(b).

The probate court has not reduced the April 21, 2008 order to a separate judgment. The probate court has not certified the April 21, 2008 order for appeal in the manner provided by HRCP Rule 54(b). The probate court has not certified the April 21, 2008 order for appeal in accordance with HRS § 641-1(b) (1993 & Supp. 2007). Therefore, the April 21, 2008 order is not appealable pursuant to HRS § 641-1(a) (1993 (Supp. 2007) and HPR Rule 34. Absent an appealable judgment or an appealable order, we lack appellate jurisdiction. Therefore,

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

DATED: Honolulu, Hawai‘i, September 17, 2008.