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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-16-0000011
                                                              30-JUN-2017
                                                              10:18 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                         RAEVYN WAIKIKI,
      Respondent/Plaintiff-Counterclaim Defendant-Appellee,

                                    vs.

        HO#OMAKA VILLAGE ASSOCIATION OF APARTMENT OWNERS,
      Respondent/Defendant-Cross-Claim Plaintiff-Appellee,

                                    and

                           VIOLET JHUN,
     Petitioner/Defendant-Cross-Claim Defendant-Counterclaim
            Plaintiff-Third-Party Plaintiff-Appellant,

                                   and

                  WADE KIOSHI KALEOLANI SHIMOJO,
            Respondent/Third-Party Defendant-Appellee.


                            SCWC-16-0000011

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-16-0000011; CIV. NO. 13-1-2391-09)

                              JUNE 30, 2017

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, and WILSON, JJ.

                               PER CURIAM

          Petitioner/third-party plaintiff-appellant Violet Jhun

(“Jhun”) applies for certiorari review of the Intermediate Court

of Appeals’ (“ICA”) March 15, 2016 order dismissing her appeal
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from an unfavorable summary judgment order (“Dismissal Order”).

The ICA dismissed Jhun’s appeal for lack of appellate

jurisdiction based on the absence of an appealable final judgment

and also dismissed as moot her motion requesting the ICA compel

the circuit court to enter a final judgment.          Jhun acknowledges

that a final judgment has not been entered in the case and took

steps to obtain such a judgment, but was unsuccessful.            Entry of
a final appealable judgment would have perfected Jhun’s appeal.

          Based on the record presented on appeal, it appears

that all claims against all parties have been resolved and entry

of a final appealable judgment was warranted.          Accordingly, we

vacate the ICA’s March 15, 2016 Dismissal Order and remand the

matter to the ICA with instructions to temporarily remand the

case to the circuit court to enter an appealable final judgment,

to direct the circuit court to supplement the record on appeal

with the final judgment, and to then proceed to consider the

appeal accordingly.

                              I. Background

     A.   Brief Factual History

          Raevyn Waikiki (“Waikiki”) and Jhun were neighbors in

the Ho#omaka Village apartment complex in Waipahu, Hawai#i.            One

evening in 2011, as Waikiki was returning to her apartment from

walking her dog, she was injured by Jhun’s dog.




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     B.      Procedural History

             1.    The Lawsuit

             On September 4, 2013, Waikiki filed a lawsuit against

Jhun and the Ho#omaka Village Association of Apartment Owners

(“AOAO”) for monetary damages.1         The AOAO answered the complaint

and filed a cross-claim against Jhun.          Jhun answered the

complaint and filed a counterclaim against Waikiki, claiming that
Waikiki’s dog bit and injured her.          Jhun also filed a third-party

complaint against Wade Shimojo (“Shimojo”), who lived with

Waikiki, alleging that Shimojo and Waikiki’s dog provoked Jhun’s

dogs earlier in the day prior to the attack.            Additionally, Jhun

answered the cross-claim filed by the AOAO.

             Jhun’s counterclaim against Waikiki was dismissed early

in the case.

             In 2015, Shimojo moved for summary judgment against

Jhun with respect to the third-party complaint.2            The circuit

court granted the motion and entered a written order on June 18,

2015.     The order provided as follows:

                   Third-Party Defendant WADE KIOSHI KALEOLANI
             SHIMOJO’s (“Shimojo”) Motion for Summary Judgment
             filed herein on March 6, 2015 (“motion”) came on for
             hearing before the Honorable Karl K. Sakamoto, Judge
             of the above-entitled Court, on Friday, May 8, 2015 at
             10:00 a.m., with Janice D. Heidt appearing for
             Plaintiff RAEVYN WAIKIKI (“Plaintiff”), Charlene


     1
          The Honorable Karl K. Sakamoto presided over the case.

     2
         Based on a review of the record on appeal, it does not appear that
Shimojo filed an answer to the third-party complaint.

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          S.P.T. Murata appearing for Defendant HO#OMAKA
          VILLAGE, ASSOCIATION OF APARTMENT OWNERS (“AOAO”),
          Walter R. Schoettle appearing for Defendant and Third-
          Party Plaintiff VIOLET JHUN (“Jhun”) and Daniel T. Kim
          appearing for Shimojo, due notice having been given.
          The Court, having reviewed and considered the motion
          and the reply memorandum filed by Shimojo on April 17,
          2015, the memorandum in opposition filed by Jhun on
          April 14, 2015, the statement of no position filed by
          AOAO on April 15, 2015, the joinder filed by Plaintiff
          on April 20, 2015, the oral arguments of counsel, the
          record and file of the matter and being fully advised
          in the premises, and good cause appearing therefor,
                IT IS HEREBY ORDERED ADJUDGED AND DECREED that
          Third-Party Defendant WADE KIOSHI KALEOLANI SHIMOJO’s
          Motion for Summary Judgment filed on March 6, 2015 is
          GRANTED.
                This Order may be approved as to form by the
          parties in counterparts, each of which when executed
          shall, irrespective of the date of its execution and
          delivery be deemed an original, and said counterparts
          together shall constitute one and the same instrument.

The order did not include any language regarding certification

under Hawai#i Rules of Civil Procedure (“HRCP”) Rule 54(b) or any

language resolving all of the claims in the action.

          Sometime thereafter, Waikiki, Jhun, and the AOAO

proceeded to resolve their claims through the Court Annexed

Arbitration Program.     The arbitrator ultimately determined that

Waikiki was 5% at fault, Jhun was 95% at fault, and the AOAO was

0% at fault, and noted that Shimojo was “out on summary

judgment.”    After applying her contributory percentage to the

total damages awarded by the arbitrator, Waikiki was awarded

$83,094.87.   Jhun appealed the arbitrator’s decision to the

circuit court.




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          On December 9, 2015, several months after Jhun appealed

the arbitrator’s decision, Waikiki, Jhun, and the AOAO filed a

stipulation, pursuant to HRCP Rule 41(a)(1)(B),3 dismissing their

claims in the lawsuit:

                IT IS STIPULATED AND AGREED by and between
          Plaintiff/Third-Party Defendant RAEVYN WAIKIKI
          (hereinafter “Plaintiff”)and Defendant HO#OMAKA
          VILLAGE, ASSOCIATION OF APARTMENT OWNERS and
          Defendant/Third-Party Plaintiff VIOLET JHUN
          (hereinafter “Defendants”), through their respective
          counsel, that pursuant to Rule 41(a)[(]1)(B) of the
          Hawaii Rules of Civil Procedure, all claims asserted
          in the Complaint filed on September 4, 2013 against
          the Defendants; all Counter-Claims filed November 15,
          2013 by Violet Jhun against Raevyn Waikiki; and all
          Cross-Claims filed September 12, 2013 by Ho#omaka
          Village, Association of Apartment Owners against
          Violet Jhun are hereby dismissed with prejudice.
                All other claims and parties are dismissed.
          Each party to this Stipulation shall bear their own
          attorneys’ fees and costs.

The stipulation was signed by Waikiki’s counsel, Jhun’s counsel,

and the AOAO’s counsel.     Neither Shimojo nor his counsel signed


     3

          Rule 41. Dismissal of actions.
            (a) Voluntary dismissal; Effect thereof.
            (1) BY PLAINTIFF; BY STIPULATION. An action may
          be dismissed by the plaintiff without order of court
          (A) by filing a notice of dismissal at any time before
          the return date as provided in Rule 12(a) or service
          by the adverse party of an answer or of a motion for
          summary judgment, or (B) by filing a stipulation of
          dismissal signed by all parties who have appeared in
          the action, in the manner and form prescribed by Rule
          41.1 of these rules. Unless otherwise stated in the
          notice of dismissal or stipulation, the dismissal is
          without prejudice, except that a notice of dismissal
          operates as an adjudication upon the merits when filed
          by a plaintiff who has once dismissed in any court of
          the United States, or of any state, territory or
          insular possession of the United States an action
          based on or including the same claim.

                                     5
the stipulation.

            2.    The Appeal

            On January 8, 2016, Jhun filed a notice of appeal in

the ICA appealing from the June 18, 2015 summary judgment order

on the third-party complaint entered in favor of Shimojo.             Jhun

cited Hawai#i Revised Statutes (“HRS”) §§ 641-1(a)4 and 667-515 as

the basis for her appeal and contended that the summary judgment

order was made final by the December 9, 2015 stipulation that

dismissed all the remaining claims and parties.

            On February 5, 2016, Shimojo filed a statement

contesting jurisdiction.       He argued that the December 9, 2015

stipulation for dismissal terminated Jhun’s right to relitigate

her third-party claims against him and divested the ICA of

jurisdiction over the appeal.        Shimojo acknowledged that Jhun

could have filed an appeal from a final judgment but explained

that “a final judgment was never filed, the parties in the

ongoing lawsuit settled and filed a Stipulation for Dismissal

with prejudice of all claims and all parties which then precluded

her from adjudicating the third-party claim again on appeal.”

Shimojo maintained that once the stipulation was signed, the

circuit court lost jurisdiction over the claims in the lawsuit.



      4
         HRS § 641-1(a) provides that “[a]ppeals shall be allowed in civil
matters from all final judgments, orders, or decrees of circuit and district
courts and the land court to the intermediate appellate court, subject to
chapter 602.”
      5
         HRS § 667-51 governs appeals in foreclosure cases. Inasmuch as this
case is not a foreclosure case, HRS § 667-51 does not provide Jhun a statutory
basis for her appeal.

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          On February 10, 2016, Jhun filed her jurisdictional

statement.   She conceded that the June 18, 2015 summary judgment

order was not final and appealable when it was entered but argued

that the execution of the December 9, 2015 stipulation for

dismissal was sufficient to render the summary judgment order

final and appealable.     She noted, however, that at the time the

parties executed the stipulation, Shimojo’s counsel did not sign
the stipulation and, therefore, it was unclear whether the

summary judgment order had become final and appealable in the

absence of a final judgment.      Jhun explained that, to the extent

the ICA may determine the appeal to be premature, she had

recently mailed a separate final judgment disposing of all of the

claims to all parties for approval and, thus, asked the ICA to

defer ruling on the jurisdictional issue until the circuit court

entered a proper final judgment and she filed an amended notice

of appeal.

          On February 18, 2016, Jhun submitted a proposed final

judgment to the circuit court for approval.          The proposed final

judgment was not signed by any of the parties and was accompanied

with a letter informing the court of the pending appeal and the

jurisdictional issue raised by Shimojo.         The proposed judgment

provided as follows:




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                                    FINAL JUDGMENT
                   The “ORDER GRANTING THIRD PARTY DEFENDANT WADE KI[]OSHI
            KALEOLANI SHIMOJO’S MOTION FOR SUMMARY JUDGMENT, FILED MARCH 6,
            2015,” having been filed herein on June 18, 2015; and
            all other claims by all other parties having been
            dismissed by stipulation of the parties thereto, filed
            herein on December 9, 2015; now, therefor:
                   IT IS HEREBY ORDERED ADJUDGED AND DECREED that
            Final Judgment on the said Third-Party Complaint be,
            and hereby is, entered in favor of Third-Party
            Defendant, WADE KIOSHI KALEOLANI SHIMOJO, and against
            Third-Party Plaintiff, VIOLET JHUN. All other claims
            by all other parties are dismissed with prejudice,
            pursuant to the stipulation of the parties thereto,
            filed on December 9, 2015. This is a Final Judgment
            disposing of all of the claims of all of the parties.

By letter dated February 24, 2016, Waikiki and Shimojo objected

to the submission of the proposed final judgment on the ground

that the circuit court lacked jurisdiction over the case pursuant

to the December 9, 2015 stipulation.               They explained that the

December 9, 2015 stipulation dismissing all claims and all

parties with prejudice amounted to an adjudication on the merits

of all issues that were raised or could have been raised in the

lawsuit; therefore, any subsequent litigation was barred by res

judicata.    In response, Jhun argued that while a HRCP Rule

41(a)(1)(B) stipulation for dismissal of all claims is generally

equivalent to a final judgment, the December 9, 2015 stipulation

did not include the third-party claim that was previously decided

on summary judgment pursuant to the June 18, 2015 summary

judgment order.      On March 3, 2016, the circuit court appears to




                                          8
have declined to enter the proposed final judgment.6

            Subsequently, on March 10, 2016, pursuant to HRS § 602-

57(3),7 Jhun filed a “Motion for Order or Writ in Aid of

Jurisdiction” in the ICA.       Jhun asked the ICA to issue an order

or writ compelling the circuit court to execute a final judgment

in the case if the ICA deemed such a judgment was necessary to

establish appellate jurisdiction from the June 18, 2015 summary

judgment order.     Jhun argued that appellate jurisdiction depended

upon the finality of the June 18, 2015 summary judgment order on

the third party complaint and, therefore, a final judgment must

be entered in the case.       Jhun contended that, absent action from

the ICA, because the circuit court denied the proposed final

judgment, it would be necessary to petition the supreme court for

a writ of mandamus to compel the circuit court to enter a final

judgment and then file another notice of appeal.

            By order entered on March 15, 2016, the ICA dismissed

the appeal for lack of jurisdiction and dismissed the pending

motion.   The ICA concluded that, because the circuit court had

not yet entered a separate final judgment disposing of all the

claims in the lawsuit, it lacked jurisdiction over the appeal:




      6
         A copy of the document list for the underlying case from the Hawai#i
State Judiciary’s Ho#ohiki electronic database describes the entry for docket
number 89 as follows: “(DENIED, 1ST DIVISION) FINAL JUDGMENT[.]” It is
unclear from the record the basis upon which the circuit court declined to
enter the proposed final judgment.
      7
         HRS § 602-57(3) provides that the ICA has jurisdiction “[t]o make or
issue any order or writ necessary or appropriate in the aid of its
jurisdiction[.]”

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             When a party attempts to assert an appeal from a
       civil circuit court case, HRS § 641-1(a) and HRCP Rule
       58 require that such an “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)] (emphasis added). “Thus, based on Jenkins,
       and HRCP Rule 58, an order is not appealable, even if
       it resolves all claims against the parties, until it
       has been reduced to a separate judgment.” Carlisle v.
       One (1) Boat, 119 Hawai#i 245, 254, 195 P.3d 1177,
       1186 (2008); Bailey v. Duvauchelle, 135 Hawai#i 482,
       489, 353 P.3d 1024, 1031 (2015). Furthermore, “an
       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).” 76 Hawai#i at 119, 869 P.2d at
       1338. The Supreme Court of Hawai#i noted that

             [i]f we do not require a judgment that resolves
             on its face all of the issues in the case, the
             burden of searching the often voluminous circuit
             court record to verify assertions of
             jurisdiction is cast upon this case. Neither
             the parties nor counsel have a right to cast
             upon this court the burden of searching a
             voluminous record for evidence of finality, . .
             . and we should not make such searches necessary
             by allowing the parties the option of waiving
             the requirements of HRCP [Rule] 58.

       Jenkins, 76 Hawai#i at 119, 869 P.2d at 1338 (original
       emphasis). “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.” Id. at 120, 869 P.2d at 1339 (footnote
       omitted).
             On January 28, 2016, the circuit court clerk
       filed the record on appeal for appellate court case
       number CAAP-16-0000011, which does not contain an
       appealable final judgment. Therefore, we lack
       appellate jurisdiction.
             Although the June 18, 2015 interlocutory order
       completely resolves an entire substantive claim, the


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           Supreme Court of Hawai#i has explained that, “based on
           Jenkins and HRCP Rule 58, an order is not appealable,
           even if it resolves all claims against the parties,
           until it has been reduced to a separate judgment.”
           Carlisle, 119 Hawai#i at 254, 195 P.3d at 1186;
           Bailey, 135 Hawai#i at 489, 353 P.3d at 1031.

(Underlining and some brackets in the original; some brackets

added.)   The ICA also noted that the December 9, 2015 stipulation

failed to satisfy the requirements of HRCP Rule 41(a)(1)(B) for a

voluntary dismissal because it was not signed by Shimojo, who was

a party to the lawsuit and who appeared in the action:

                 In addition, with respect to the December 9,
           2015 stipulation to dismiss all claims, we note that
           the parties have failed to comply with the
           requirements of HRCP Rule 41(a)(1)(B) for a
           stipulation to dismiss. HRCP Rule 41(a)(1)(B)
           provides that a stipulation to dismiss must be “signed
           by all parties who have appeared in the action”:

                 Rule 41. Dismissal of actions.
                       (a) Voluntary dismissal: Effect thereof.
                             (1) By plaintiff; by stipulation.
                 An action may be dismissed by the plaintiff
                 without order of the court (A) by filing a
                 notice of dismissal at any time before the
                 return date as provided in Rule 12(a) or service
                 by the adverse party of an answer or of a motion
                 for summary judgment, or (B) by filing a
                 stipulation of dismissal signed by all parties
                 who have appeared in the action, in the manner
                 and form prescribed by Rule 41.1 of these rules.
                 Unless otherwise stated in the notice of
                 dismissal or stipulation, the dismissal is
                 without prejudice, except that a notice of
                 dismissal operates as an adjudication upon the
                 merits when filed by a plaintiff who has once
                 dismissed in any court of the United States, or
                 of any state, territory or insular possession of
                 the United States an action based on or
                 including the same claim.

           (Emphases added).   In the instant case, Appellee


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          Shimojo did not sign the December 9, 2015 stipulation
          to dismiss, despite that Appellee Shimojo appeared in
          this case. Therefore, the December 9, 2015
          stipulation to dismiss does not appear to satisfy the
          requirements under HRCP Rule 41(a)(1)(B).

(Underlining in the original.)

          3.    The Application for Writ of Certiorari

          On April 14, 2016, Jhun timely filed an application for

writ of certiorari, which this court accepted for review.             Jhun

presents one question -- Did the ICA gravely err by dismissing

her appeal for lack of jurisdiction rather than ordering the

circuit court to file a final judgment?         Jhun argues that her

notice of appeal was premature, that she addressed the potential

jurisdictional defect in her jurisdictional statement, and that

she asked the ICA to refrain from dismissing the appeal but

rather allow her to obtain a judgment from the circuit court to

perfect her appeal.     Jhun explains that based on her perceived

jurisdictional defect, she had the option of seeking a writ of

mandamus from this court to direct the circuit court to enter a

final judgment but chose to seek relief in the ICA pursuant to

HRS § 602-57, which would be “just, speedy and inexpensive.”

Jhun contends that “[t]he modern ‘Rules of Civil Procedure were

not meant to be a game of skill where one misstep by counsel

would be decisive to the outcome.’” (Citing Au v. Au, 63 Haw.

210, 221, 626 P.2d 173, 181 (1981), Conley v. Gibson, 355 U.S.

41, 47 (1957), and Hall v. Kim, 53 Haw. 215, 491 P.2d 541


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(1971)).   Jhun posits that “[t]he rule of Jenkins simply cannot

be applied in a case such as this, where the Circuit Court

refuses to file a final judgment.         Instead, the ICA should have

ordered the Circuit Court to file the judgment and assumed

jurisdiction pursuant to H.R.A.P., Rule 4(a)(2).”            (Italics

omitted and underlining added.)

           Shimojo timely filed an opposition.          Shimojo argues

that the ICA properly dismissed the appeal.           Shimojo first

addresses the ICA’s point that the December 9, 2015 stipulation

was not signed by him.      Shimojo explains that his counsel’s

failure to sign the stipulation was an oversight because the

third-party claims against him had previously been “dismissed” on

summary judgment and he was no longer participating in the

ongoing litigation.      He argued that because the stipulation

lacked the signatures of all the parties, it was not a final

determination of the case and the circuit court retained

jurisdiction.8

           In reply, Jhun explains that she is not arguing that

the ICA has appellate jurisdiction; rather, the appeal is

premature and the ICA committed grave error when it “ignored” her

motion for an order directing the circuit court to enter a final

judgment by dismissing the appeal and denying her motion as moot.

      8
         Shimojo states that on March 17, 2016, after the ICA issued its
Dismissal Order, a stipulation was filed in the circuit court that included
his counsel’s counter-part signature. The document referenced by Shimojo is
not part of the record in the case before this court.

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Jhun further contends that the stipulation signed by Shimojo’s

counsel after the ICA issued its March 15, 2016 Dismissal Order

constitutes a “fraud upon the court” because neither Shimojo nor

his counsel were parties to the stipulation agreement.             Moreover,

Jhun argues that Shimojo’s counsel’s counterpart signature on the

stipulation was invalid because at the time of signing (March 17,

2016), counsel no longer represented Shimojo.9           Jhun asks the

court to grant the certiorari application, vacate the ICA’s

Dismissal Order, and remand the appeal to the ICA to order the

circuit court to enter a final judgment and thereafter consider

the merits of the appeal.

                             II.   Discussion

      A.    The Requirement of a Final Judgment

            In Jenkins, this court set forth principles for

determining whether an order or other decision of the circuit

court is appealable.      Those principles are rooted in this court’s

“policy against piecemeal appeals[,]” and were intended to

“simplify and make certain the matter of appealability.”

Jenkins, 76 Hawai#i at 118-19, 869 P.2d at 1337-338.

            HRS § 641-1(a) authorizes appeals in civil matters from

“all final judgments, orders, or decrees[.]”           To be effective,

“[the] appeal must be taken in the manner . . .            provided by the

      9
         On February 5, 2016, before the ICA issued its Dismissal Order, Greg
Markham and Keith Kato of Chee Markham & Feldman withdrew as counsel for
Shimojo and Richard Turbin and Janice Heidt of Turbin Chu Heidt, who also
represent Waikiki, appeared as counsel for Shimojo.

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rules of court.”    HRS § 641-1(c).      Rule 58 of the Hawai#i Rules

of Civil Procedure (“HRCP”) specifically requires that “[e]very

judgment shall be set forth on a separate document[:]”

                Unless the court otherwise directs and subject
          to the provisions of Rule 54 of these rules and Rule
          23 of the Rules of the Circuit Courts, the prevailing
          party shall prepare and submit a proposed judgment.
          The filing of the judgment in the office of the clerk
          constitutes the entry of the judgment; and the
          judgment is not effective before such entry. The
          entry of the judgment shall not be delayed for the
          taxing of costs. Every judgment shall be set forth on
          a separate document.

Accordingly, “[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 Hawai#i at 119, 869 P.2d at

1338.

          In cases involving multiple claims or multiple parties,

a final judgment may be entered as to one or more of the claims

or parties but only upon an express determination that there is

no just reason for delay and upon an express direction for the

entry of judgment:

                When more than one claim for relief is presented
          in an action, whether as a claim, counterclaim, cross-
          claim, or third-party claim, or when multiple parties
          are involved, the court may direct the entry of a
          final judgment as to one or more but fewer than all of
          the claims or parties only upon an express
          determination that there is no just reason for delay
          and upon an express direction for the entry of
          judgment. In the absence of such determination and
          direction, any order or other form of decision,
          however designated, which adjudicates fewer than all
          the claims or the rights and liabilities of fewer than


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          all the parties shall not terminate the action as to
          any of the claims or parties, and the order or other
          form of decision is subject to revision at any time
          before the entry of judgment adjudicating all the
          claims and the rights and liabilities of all the
          parties.

HRCP Rule 54(b).

          Thus, as aptly stated in Jenkins:

          (1) An 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 58; (2) if 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;
          (3) if the judgment resolves fewer than all claims
          against all parties, or reserves any claim for later
          action by the court, an appeal may be taken only if
          the judgment contains the language necessary for
          certification under HRCP 54(b); and (4) an 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 54(b).

Jenkins, 76 Hawai#i at 119, 869 P.2d at 1338 (emphasis omitted);

see also Carlisle v. One (1) Boat, 119 Hawai#i 245, 254, 195 P.3d

1177, 1186 (2008) (“[B]ased on Jenkins and HRCP Rule 58, an order

is not appealable, even if it resolves all claims against the

parties, until it has been reduced to a separate judgment.”).

     B.   The ICA Should Have Exercised Its Authority Under
          HRS § 602-57(3) to Order the Circuit Court to Enter an
          Appealable Final Judgment

          The June 18, 2015 summary judgment order on the third-

party complaint entered in favor of Shimojo, from which Jhun

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seeks to appeal, has not been reduced to a separate appealable

final judgment pursuant to HRS § 641-1, HRCP Rules 54 and 58, and

Jenkins.

            The record on appeal indicates that all claims against

all parties have been resolved.        Jhun’s third-party claims

against Shimojo were disposed of by the summary judgment order;

the remaining claims were disposed of by stipulation.                The

absence of a final judgment appears to be the sole factor

hindering Jhun’s appeal.

            Jhun made several attempts to secure a final judgment.

While the appeal was pending, Jhun submitted a proposed final

judgment to the circuit court for approval and entry.                It is

unclear why the circuit court did not enter a final judgment.10

Jhun also sought relief from the ICA for an order or writ to

compel the circuit court to execute a final judgment if the ICA

determined that it was necessary to establish jurisdiction but


      10
         In Bailey v. Duvauchelle, 135 Hawai#i 482, 353 P.3d 1024 (2015), we
addressed the jurisdictional problems that may arise for litigants when the
requirements for finality set forth under Jenkins are not met. We explained
the circumstances under which the circuit courts are required to enter an
appealable judgment upon a request of a party litigant:

            The circuit courts are required to enter appealable
            final judgments that comport with the requirements of
            Jenkins, and should resolve any material deficiency in
            a judgment that is brought to their attention. When a
            party requests that the circuit court enter an
            appealable judgment after an appellate court dismisses
            an appeal for lack of appellate jurisdiction based on
            non-compliance with Jenkins, and the circuit court
            intended its ruling to be final and appealable, the
            circuit court must enter an appealable judgment.

Bailey, 135 Hawai#i at 492, 353 P.3d at 1034 (footnote omitted).

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the ICA dismissed the motion as moot after it dismissed the

appeal for lack of jurisdiction.

           Until the circuit court enters an appealable final

judgment, Jhun will not be able to seek review of the June 18,

2015 summary judgment order.        In light of the record before this

court, and in the interest of judicial economy, the more

favorable course is for a final appealable judgment to be entered

by the circuit court.      Having determined that it lacked

jurisdiction over the appeal due to the absence of a final

judgment and in light of Jhun’s motion requesting that it issue

an order directing the circuit court to execute a final judgment,

the ICA should have exercised its authority under HRS § 602-

57(3)11 to direct the circuit court to enter an appropriate

appealable final judgment.         Once an appealable final judgment is

entered, the pending appeal will be perfected.           See HRAP Rule

4(a)(2) (“If a notice of appeal is filed after announcement of a

decision but before entry of the judgment or order, such notice

shall be considered as filed immediately after the time the

judgment or order becomes final for purposes of appeal.”).

                            III.    Conclusion

           Based on the foregoing, the ICA’s March 15, 2016

Dismissal Order is vacated.        The case is remanded to the ICA with

instructions to temporarily remand the case to the circuit court


     11
         HRS § 602-57(3) authorizes the ICA “[t]o make or issue any order or
writ necessary or appropriate in the aid of its jurisdiction[.]”

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to enter an appealable final judgment, to direct the circuit

court to supplement the record on appeal with the final judgment,

and to then proceed to consider the appeal accordingly.

Walter R. Schoettle                    /s/ Mark E. Recktenwald
for petitioner Violet Jhun
                                       /s/ Paula A. Nakayama
Richard Turbin, Rai Saint Chu,
and Janice D. Heidt                    /s/ Sabrina S. McKenna
for respondent Wade Kioshi
Kaleolani Shimojo                      /s/ Richard W. Pollack

                                       /s/ Michael D. Wilson




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