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N0. 30231 nn §§
§§
§§
:N THE 1NTERMED1ATE coURT 0F APPEALs iv ma
oF THE sTATE oF HAwAfI xi §§
GRANT K. KIDANI, V?
Plaintiff/Counterclaim-Defendant-Appellee, 33 §§

'\/'.

TARAATHoMAs,
Defendant/Counterclaim~Plaintiff/Appellant,

and
JACK THOMAS and DOES 1-100,
Defendants
APPEAL FROM THE CIRCUIT_COURT OF THE FIRST CIRCUIT
(CIVIL NO. 08-1-2143)
ORDER GRANTING (1) APPELLEE'S JANUARY 19, 2010 MOTION
TO DISMISS APPEAL AND (2) APPELLANT'S FEBRUARY 16, 2010
MOTION TO STRIKE APPELLEE'S FEBRUARY 2, 2010 REPLY MEMORANDUM
(By: Nakamura, C.J., Foley and Fujise, JJ.)
Upon review of (1) Plaintiff/Counterclaim-Defendant/

Appellee Grant K. Kidani's (Appellee) January 19, 2010 motion to
dismiss appellate court case number 30231 for lack of
jurisdiction, (2) Defendant/Counterclaim-Plaintiff/Appellant Tara
Thomas's (Appellant) February 1, 2010 (filed ex officio on
January 27, 2010) memorandum in opposition to Appellee's January
19, 2010 motion to dismiss, (3) Appellee's February 2, 2010 reply
memorandum in support of Appellee's January 19, 2010 motion to
dismiss, (4) Appellant's February 16, 2010 motion to strike
Appellee's February 2, 2010 reply memorandum in support of
Appellee's January 19, 2010 motion to dismiss, and (5) the
record, it appears that both of these motions have merit.

Rule 27 of the Hawafi Rules of Appellate Procedure

(HRAP) does not authorize a movant to file a reply memorandum in

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support of a motion. Appellee's February 2, 2010 reply
memorandum in support of Appellee's January 19, 2010 motion to
dismiss is in violation of HRAP Rule 27. Therefore,

IT IS HEREBY ORDERED that Appellant's February 16, 2010
motion to strike Appellee's February 2, 2010 reply memorandum in
support of Appellee's January 19, 2010 motion to dismiss is
granted. Appellee's February 2, 2010 reply memorandum in support
of Appellee's January 19, 2010 motion to dismiss is stricken, and
we will not consider it in the adjudication of Appellee Kidani's
January 19, 2010 motion to dismiss.

With respect to Appellee's January 19, 2010 motion to
dismiss appellate court case number 30231, we note that Appellant
is appealing from the Honorable Gary W. B. Chang's November 9,
2009 "0rder Granting Defendant and Counterc1aimant Tara Thomas'
Motion to Set Aside Order for Entry of Default Filed May 28,
2009, or in the Alternative, for Reconsideration, Filed on June
8, 2009" (the November 9, 2009 order setting aside entry of
default). Hawafi Revised Statutes (HRS) § 641-1(a) (1993 &

Supp. 2009) authorizes appeals to the intermediate court of
appeals only from final judgments, orders, or decrees. Appeals
under HRS § 641-1 "shall be taken in the manner . . . provided by
the rules of the court." HRS § 641-1(c). Rule 58 of the HawaiU_
Rules of Civil Procedure (HRCP) requires that "[e]very judgment
shall be set forth on a separate document." HRCP Rule 58. Based
on HRCP Rule 58, the Supreme Court of Hawai‘i holds "[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[.]"

_2_

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Jenkins v. Cades Schutte Fleming & Wriqht, 76 Hawafi 115,il19,
869 P.2d 1334, 1338 (1994). "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). The circuit court
has not yet entered a separate judgment in this case. Absent a
separate judgment, the November 9, 2009 order setting aside entry
of default is not eligible for appellate review.

Although exceptions to the final judgment requirement
exist under the doctrine expressed in Forgay v. Conrad, 47 U.S.
201 (1848), (the Forgay doctrine), the collateral order doctrine,
and HRS § 641-1(b), the November 9, 2009 order setting aside
entry of default does not satisfy the requirements for
appealability under the Forgay doctrine, the collateral order
doctrine, and HRS § 641-l(b). See Ciesla v. Reddish, 78 Hawafi

l8, 20, 889 P.2d 702, 704 (1995) (regarding the two requirements

for appealability under the Forgay doctrine); Abrams v. Cades

 

SChutt€, FlemiHQ & WriGht, 88 HaWafi 3l9, 322, 966 P.2d 63l, 634
(1998) (regarding the three requirements for appealability under
the collateral order doctrine); HRS § 641-1(b) (regarding the
requirements for an appeal from an interlocutory order). we note
in particular that, although the November 9, 2009 order setting
aside entry of default requires Appellant to satisfy several
conditions, none of the conditions subjects Appellant to
irreparable injury that is effectively unreviewable on appeal
from a final judgment. For example, although the November 9,
2009 order setting aside entry of default requires Appellant to
pay the attorneys' fees and costs of Appellee in the amount of

$2,500.00 within ten days as a condition for the circuit court's

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setting aside the entry of default, Appellant's failure to pay
the $2/500.00 would not result in contempt proceedings, but,
instead, such failure would result in the entry of a default and
a final judgment against Appellant, and Appellant could
immediately appeal the final judgment. See Harada v. Ellis, 60
HaW. 467, 480, 591 P.2d l060, 1070 (l979) (holding that an
interlocutory sanction order against a party satisfied the three
requirements for appealability under the collateral order
doctrine if "the order directed payment of the assessed sum and
was immediately enforceable through contempt proceedings.").
Furthermore, in most situations, the transfer of money is
unlikelv to create irreparable harm, for money can usually be
returned if improvidently given." Jalapeno Propertv Manaqement,
LLc v. Dukas, 265 F.zd 506, 512 n.s (eth cir._ 2001) (emphasis
added)¢ "[I]mmediate appeal is proper only if there is reason to
be concerned that payment would be irreversible, . . . because
the prevailing party will be unable or unwilling to repay if the
award is ultimately altered." Cleveland Hair Clinic, Inc. v.
§uigL 104 F.3d 123, 126 (7U Cir. 1997) (citation omitted). For

example,

Palmer v. Chicago, 806 F.2d 1316 (7” Cir. l986), therefore
holds that an award of interim attorneys' fees to a class of
prisoners is appealable, for the prospects of recoupment are
dim; but People Who Care v. Rockford Board of Education, 921
F2d 132 (7m Cir. 1991), holds that an award of interim
attorneys' fees to a law firm is not immediately appealable.

Cleveland Hair Clinic, Inc. v. Puiq, 104 F.3d at 126.
Consequently, an order requiring payment of money as a condition
for setting aside a default will usually got qualify as an
appealable interlocutory order. MacEwen Petroleum, Inc.. v.
Tarbell, 136 F.3d 263, 264 (2d Cir. 1998) (holding that an order

requiring defendants to post a $500,000.00 bond as a condition

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for vacating a default judgment is not an appealable order);
Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508, 512 (9m
Cir. 1986) (holding that an order requiring a defendants to pay
the attorneys' fees and costs of plaintiff as a condition for
setting aside the entry of default is not an appealable order).
We additionally note that the circuit court did not certify the
November 9, 2009 order setting aside entry of default for an
interlocutory appeal pursuant to HRS § 641-1(b). Therefore, the
November 9, 2009 order setting aside entry of default is not an
appealable order.

Absent an appealable separate judgment, Appellant's
appeal is premature, and we lack appellate jurisdiction over
appellate court case number 30231. Accordingly,

§ IT 18 HEREBY ORDERED that Appellee's January 11, 2010
motion to dismiss appellate court case number 3023l for lack of
appellate jurisdiction is granted, and appellate court case
number 30231 is dismissed.

DATED: Honolulu, Hawafi, March 4, 20l0.

Q’,é,¢_, 417 752/amiss

Chief Judge

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Associate Judge

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AssociateAJudge

