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NOT FOR PUBLICATION  WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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NOT FOR PUBLICATION [N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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

