Kersh v. O'Brien

LAW uss/any NOT FOR PUBLICATION WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER NO. 30ll5 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAfI V. FRANCES T. O'BRugN and @G=Z us w onvmaz DAVID KERSH, Plaintiff-Appellant, RANDALL Y.K. CHAR, Jointly and Severally, Defendants-Appellees APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 06-1-2208) ORDER GRANTING JULY 20, 2010 MOTION TO DISMISS APPEAL (By: Fujise, Presiding Judge, Reifurth and Ginoza, JJ.) Upon review of (1) Defendants-Appellees Francis T. (AppelleeS O'Brien and Char) O'Brien and Randall Y.K. Char's July 20, 2010 motion to dismiss this appeal for lack of appellate jurisdiction, (2) Plaintiff-Appellant David Kersh's (Appellant Kersh) August 10, O'Brien and Char's July 20, the record in this case, and (3) jurisdiction over Appellant Kersh's appeal from the Honorable 2009 "Order of Final Judgment" 2010 memorandum in opposition to Appellees 2010 motion to dismiss this appeal, it appears that we lack Victoria S. Marks's September 21, 2009 order of final judgment), because the (the September 21, 2009 order of final judgment does not satisfy the September 21, requirements for an appealable final judgment under HawaiH_ ReViSed StatuteS (HRS) § 641-l(a) (l993 & Supp. 2009), Rule 58 Of the Hawafi Rules of Civil Procedure (HRCP), and the holding in 76 Hawai‘i 115, 119, Jenkins v. Cades Schutte Fleming & Wright, 869 P.2d l334, 1338 (l994). Appellees O'Brien and Char argue that we should grant their July 20, 2010 motion to dismiss this appeal because (l) the circuit court has not entered a final judgment in this case and (2) Appellant Kersh did not file his opening brief in appellate We grant Appellees O'Brien case number 30115 in a timely manner. 2010 motion to dismiss this appeal, but we do and Char's July 20, so based solely on the fact that the September 21, 2009 order of NOT FOR PUBLICATION [N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER final judgment does not satisfy the requirements for an appealable final judgment. we initially note that, although Appel1ant Kersh filed a motion (that we received on October 2, 2009) in appellate court case number 29494 that we have deemed to serve as a notice of appeal from the September 21, 2009 order of final judgment, Appe11ant Kersh is entitled to appellate review in appellate court case number 30115 only if the September 21, 2009 order of final judgment satisfies the requirements for an appealable final judgment under HRS § 641-1(a), HRCP Ru1e 58, and the holding in Jenkins that are necessary for invoking our appellate jurisdiction. HRS § 641-1(a) authorizes appeals to the intermediate court of appeals from final judgments, orders, or decrees. Appea1s under HRS § 641-1 "shall be taken in the manner provided by the rules of the court." HRS § 641-1(c). HRCP Ru1e 58 requires that "[e]very judgment shall be set forth on a separate document." Based on this requirement, the Supreme Court of Hawafi has held that "[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, 76 HawaFi at 119, 869 P.2d at 1338. "An appeal from an order that is not reduced to a judgment in favor or against the party by the time the record is filed in the supreme court will be dismissed." LdL at 120, 869 P.2d at 1339 (footnote omitted). Consequent1y, "an order disposing of a circuit court case is appealable when the order is reduced to a separate judgment." A1ford v. CitV and Count of Honolu1u, 109 Hawaid 14, 20, 122 P.3d 809, 815 (2005) (citation omitted). For eXample, the Supreme Court of HawaiU. has explained that, "[a]1though RCCH [Rule] 12(q) [(regarding dismissal for want of prosecution)] does not mention the necessity of filing a separate document, HRCP [Ru1e] 58, as amended in 1990, expressly requires that 'every judgment be set forth on a separate document.'" Price v. ObaVashi Hawaii COrQOratiOn, 81 Hawai‘i 171, 1'76, 914 P.2d 1364, 1369 (1996). [2] NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER [I]f a judgment purports to be the final judgment in a case involving multiple claims or multiple parties, the judgment (a) must specifically identify the party or parties for and against whom the judgment is entered, and (b) must §i) identify the claims for which it is entered, and (ii) dismiss any claims not specifically identified[.] Jenkins, 76 HawaFi at 119, 869 P.2d at 1338 (emphasis added). For example: "Pursuant to the jury verdict entered on (date), judgment in the mount of $___ is hereby entered in favor of Plaintiff X and against Defendant Y upon counts 1 through IV of the complaint." A statement that declares "there are no other outstanding claims" is not a judgment. If the circuit court intends that claims other than those listed in the judgment language should be dismissed, it must say soc for example, "Defendant Y's counterclaim is dismissed," or "Judgment upon Defendant Y's counterclaim is entered in favor of Plaintiff/Counter-Defendant Z," or "a1l other claims, counterclaims, and cross-claims are dismissed." 9 Id. at 119-20 n.4, 869 P.2d at 1338-39 n.4 (emphasis added). The September 21, 2009 order of final judgment neither enters judgment on any claim, nor does it expressly dismiss the claims in this case. Therefore, the September 21, 2009 order of final judgment does not satisfy the requirements for an appealable final judgment under HRS § 641-1(a), HRCP Rule 58 and the holding in Jenkins. Absent an appealable final judgment, Appellant Kersh's appeal is premature and we lack jurisdiction over appellate court case number 30115. Therefore, 1T 1S HEREBY ORDERED that Appellees O'Brien and Char's July 20, 2010 motion to dismiss this appeal is granted, and this appeal is dismissed for lack of appellate jurisdiction. This dismissal is without prejudice to the parties seeking an appeal in the event that the circuit court enters an appealable final judgment. DATED= Hc>nolulu, Hawai‘i, August; 17, 2010. On the motion: 2 ’O f P esiding Jud Francis T. O'Brien and » Randall Y.K. Char, Defendants-Appellees, pro se. Associate Judge Associate JdEge