Martinez v. Tam ( 2010 )

LAW x_:ssARY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 30l83
IN THE INTERMEDIATE COURT OF APPEALS
oF_THE sTATE oF HAWAI‘I
MARSHALL MARTINEZ, Plaintiff-Appellant v.
JOHN E. TAM, et al., Defendants-Appellees
93 ».g, m 92 sav am
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 09-1-O44l) l
ORDER DISMISSING APPEAL
_(By: Nakamura, Chief Judge, Foley and Leonard, JJ.)
Upon review of the record, it appears that we lack
jurisdiction over this appeal that Plaintiff-Appellant Marshall
Martinez (Appellant Martinez) has asserted from the Honorable
Derrick H.M. Chan's October 23, 2009 "Order Granting Defendants
State of Hawafi's Motion to Dismiss Complaint Filed on j
February 23, 2009" (the October 23, 2009 dismissal order),
because the circuit court has not reduced the October 23, 2009
dismissal order to a separate judgment that resolves all claims
in this case pursuant to Rule 58 of the Hawafi Rules of Civil
Procedure (HRCP).
Hawafi Revised Statutes (HRS) § 641-l(a) (l993 & Supp.
2009) authorizes appeals to the intermediate court of appeals
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).
The supreme court has
specifically required that "[e]very judgment shall be set forth
on a separate document." HRCP Rule 58 (emphasis added). Based
on this requirement, the supreme court 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 andy
against the appropriate parties pursuant to HRCP [Rule] 58[.]"
Jenkins v. Cades Schutte Fleming & Wriqht, 76 Hawafi at ll9, 869
P.2d at l338. The separate judgment must "either resolve all
claims against all parties or contain the finding necessary for
certification under HRCP [Rule] 54(b)." Id. "An appeal from an
order that is not reduced to a judgment in favor or against the
GB"\\.:!
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PAC.IFIC REPORTER
party by the time the record is filed in the supreme court will
be dismissed." ;Qp at 120, 869 P.2d at 1339 (footnote omitted).
Consequently, "an order disposing of a circuit court case is
appealable when the order is reduced to a separate judgment."
Alford v. Citv and Count of Honolulu, 109 Hawafi 14, 20, 122
P.3d 809, 815 (2005) (citation omitted) (emphasis added). For
example, the supreme court has explained that, "[a]lthough_
RCCH [Rule] 12(q) [(regarding dismissal for want of prosecution)]
does not mention the necessity of filing a separate document,
HRCP [Rule] 58, as amended in 1990, expressly requires that
'every judgment be set forth on'a separate document.'" Price v.
ObaVashi Hawaii Corporation, 81 Hawafi 171, 176, 914 P.2d 1364,
1369 (1996) (emphases added).
The October 23, 2009 dismissal order is not a judgment,
but, instead, it is an interlocutory order. On January 19, 2010,
the appellate court clerk filed the record on appeal for
appellate court case number 30183, at which time the record on
appeal did not contain a separate judgment that resolves all
claims in this case. Absent a separate, appealable judgment,
Appellant Martinez's appeal is premature and we lack appellate
jurisdiction. Therefore,
_ IT IS HEREBY ORDERED that appellate court case number
30183 is dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawafi, Apri1 26, 2010_
Chief Judge
Associate Judge