Waikiki v. Ho'omaka Village Ass'n of Apartment Owners ( 2017 )

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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.
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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
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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[.]”
18
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
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
19