Island Insurance Company, Ltd v. Blockbuster, Inc. ( 2010 )

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 30493
IN THE INTERMEDIATE COURT OF APPEALS
oF THE STATE oF HAWAI‘I
v.
BLOCKBUSTER, INC., Defendant-Appellant, §§
and
JOHN DOES 1-100, JANE DOES 1-100,
DOE PARTNERSHIPS 1-100, et al., Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 09-1~2590) .``
ORDER GRANTING AUGUST 9, 2010 MO'I'ION TO DISMISS APPEAL
(By: Fujise, Presiding Judge, Reifurth and Ginoza, JJ.)
Upon review of (1) Plaintiff#Appellee Island Insurance
Company, Ltd.'s (Appellee Island Insurance Company) August 9,
2010 motion to dismiss appellate court case number 30493 for lack
of jurisdiction (“Motion to dismiss”), (2) Defendant-Appellant
Blockbuster, Inc.'s (Appellant Blockbuster), August 16, 2010
memorandum in opposition to the motion to dismiss and (3) the
record, it appears that we lack jurisdiction over Appellant``
Blockbuster's interlocutory appeal from the Honorable Glenn J.
Kim's two April 9, 2010 interlocutory summary judgment orders,
because (a) the requirements for a timely interlocutory appeal
were not met; and (b) the Honorable Glenn J. Kim's May 21, 2010
order granting Appellant Blockbuster leave to file an
interlocutory appeal from the two April 9, 2010 interlocutory
summary judgment orders does not contain the conclusion and
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
findings that are necessary under Hawafi Revised Statutes (HRS)
§ 641-1(b) (1993 & Supp. 2009) for the certification of an
interlocutory appeal.
"When a civil appeal is permitted by law, the notice of
appeal shall be filed within 30 days after entry of the judgment
or appealable order." HRAP Rule 4(a)(1). HRS § 641-1(b) is the
law that permits interlocutory appeals from civil cases to the
intermediate court of appeals:
(b) Upon application made within the time provided by
the rules of court, an appeal in a civil matter may be
allowed by a circuit court in its discretion from an order
denying a motion to dismiss or from any interlocutory
judgment, order, or decree whenever the circuit court may
think the same advisable for the speedy termination of
litigation before it. The refusal of the circuit court to
allow an appeal from an interlocutory judgment, order, or
decree shall not be reviewable by any other court.
HRS § 641-1(b) (1993 & Supp. 2009) (emphases added). The Supreme
Court of Hawafi has explained its interpretation of HRAP
Rule 4(a)(1) as follows:
we have interpreted HRAP Rule 4(a)(1)'s requirement that the
notice of interlocutory appeal be filed "within 30 days
after the date of entry of the . . . . order appealed from"
to mean that . . . [i t is necessary for a party wanting to
take an interlocutory appeal to move for an order allowing
the appeal, for the court to enter the order and for the
appellant to file the notice of appeal all within 30 days
from the filing of the order appealed from, unless the time
for appeal is extended pursuant to HRAP Rule 4(a)(5).
State V. IrVine, 88 HaWaiT_404, 406, 967 P.2d 236, 238 (l99é)
(some emphasis added; citation and block quotation format
omitted). "The order appealed from on an interlocutory appeal is
not made final, for any purpose, by the allowance of the
interlocutory appeal and the time period runs from the entry of
the order, not from the allowance of the appeal." King v.
wholesale Produce Dealers Ass'n of Hawaii, 69 Haw. 334, 335, 741
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
P.2d 721, 722 (1987).1 Thus, for example, we have held that we
did not have jurisdiction over an appeal from an interlocutory
``order pursuant to HRS § 641-1(b) when "the court did not enter
its written order allowing an interlocutory appeal within thirty
days of the entry of the order from which P1aintiffs wished to
appeal, despite Plaintiffs' prompt motion for such an ordern"
Kohala Aqriculture, 86 HawaiYi at 311, 949 P.2d at 151.
"Therefore, we conclude[d] that Plaintiffs' appeal of the
[interlocutory] order was untimely and we [we]re without
jurisdiction of that appeal." ;Qy
In the instant case, Appellee Blockbuster filed its
May 6g 2010 notice of appeal within thirty days after entry of
the two April 9, 2010 interlocutory summary judgment orders, but
the circuit court did not enter its May 21, 2010 order allowing
an interlocutory appeal under HRS § 641-1(b) within thirty days
after entry of the two April 9, 2010 interlocutory summary
judgment orders, as HRAP Rule 4(a)(1) and HRS § 641-1(b) require
under Irvine and King. Therefore, the requirements for a timely
interlocutory appeal were not met.
Even if Appellant Blockbuster's appeal were timely, we
would lack jurisdiction over this interlocutory appeal because
the May 21, 2010 order that purports to allow Appellant
Blockbuster to file an interlocutory appeal from the two April 9,
1 With respect to certification of a circuit court's adjudication of
one or more but less than all claims for an appeal pursuant to HRCP Rule
54(b), the Supreme Court of Hawaii has stated that Jenkins v. Cades Schutte
Fleming & Wright, 76 Hawaii 115, 869 P.2d 1334 (l994), overruled King.
Oppenheimer v. AIG Hawaii Ins. Co., 77 HawaiH.88, 93, 881 P.2d 1234, 1239
(1994). However, the holding in Jenkins "does not appear to disturb the
holding in King with respect to HRS § 641-1(b)." Koha1a Aqriculture v.
Deloitte & 'I'OuChe, 86 Hawai‘i 301,' 311 n.l9, 949 P.2d 141, 151 n.l9 (App.
1997) .
_3_
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2010 interlocutory summary judgment orders does not contain an
express conclusion that an interlocutory appeal is advisable for
the speedy termination of this litigation, and the reasons in
support of that conclusion. In determining whether an
interlocutory appeal is advisable for the speedy termination of
the litigation before it, the circuit court's discretion is not
unfettered. Lui v. Citv and Countv of Honolulu, 63 Haw. 668,
672, 634 P.2d 595, 598 (1981). Therefore, when the circuit court
concludes that an interlocutory appeal is advisable for the
speedy termination of the litigation before it, then the circuit
court must "set forth, in the order allowing the appeal, its
reasons for that conclusion." Mason v. Water Resources
InternatiOnal, 67 Haw. 510, 512, 694 P.2d 388, 389 (1985).
Consequently, the Supreme Court of HawaFi has dismissed an
interlocutory appeal when a circuit court has purported to "allow
an interlocutory appeal without expressing any determination on
the matter."2 The May 21, 2010 order allowing an interlocutory
appeal does not include an express conclusion that an
interlocutory appeal is advisable for the speedy termination of
the litigation before it, nor does the May 21, 2010 order include
the circuit court's supporting reasons for that conclusion, as
required under the holding in Ma§gn. Therefore, we do not have
jurisdiction over this interlocutory appeal from the two April 9,
2 Blockbuster incorrectly relies on McCabe v. Berdon, 67 Haw. 178,
681 P.2d 571 (1984) to assert that we may look to the record -- beyond the
May 21, 2010 order -~ for the lower court's determination that interlocutory
appeal is advisable for the speedy termination of the litigation. McCabe was
decided prior to Mason. In Mason, the Hawaii Supreme Court set out the
“guidelines for bench and bar which are to be followed from now on.” 67 Haw.
at 511, 684 P.2d at 388. The Mason guidelines require that the lower court's
determination be set forth in the order allowing the appeal. '
_.4..
NOT FOR PUBLICATION lN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
2010 interlocutory summary judgment orders. Accordingly, ~
IT is HEREBY oRDERED that Appe11ee island Insurance
Company's August 9, 2010 motion to dismiss is granted, and this
appeal is dismissed for lack of jurisdiction.
DATED: Honolulu, Hawafi, S€Pt€mb€r 231 2010-
Presiding Judge
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Associate Judge
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Associate Judge