Ke Noho Kai Community Association v. Sedano ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-JUN-2020
08:44 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
KE NOHO KAI COMMUNITY ASSOCIATION, by its Board of Directors,
Plaintiff-Appellant, v. ARMANDO SEDANO; Defendant-Appellee,
and JOHN DOES 1-5; JANE DOES 1-5; DOE PARTNERSHIPS 1-5;
DOE CORPORATIONS 1-5; DOE ENTITIES 1-5; and
DOE GOVERNMENTAL UNITS 1-5, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 17-1-0680-04 (DEO))
ORDER
DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
AND
DISMISSING ALL PENDING MOTIONS AS MOOT
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Upon review of the record, it appears that we lack
appellate jurisdiction over Plaintiff-Appellant Ke Noho Kai
Community Association's (Ke Noho Kai) appeal from the November 8,
2019 "Final Judgment Re: Order Denying Plaintiff's Motion For
Attorney's Fees and Costs Filed July 31, 2019" (11/8/19
Judgment), by the Circuit Court of the First Circuit (Circuit
Court), which was entered based on an order denying Ke Noho Kai's
motion for attorneys' fees and costs and requiring Ke Noho Kai to
pay Defendant-Appellee Armando Sedano's (Sedano) special counsel
fees. The 11/8/19 Judgment does not adjudicate any of Ke Noho
Kai's multiple causes of action alleged against Sedano.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Pursuant to Hawaii Revised Statutes (HRS) § 641-1(a)
(2016) and Rule 58 of the Hawai#i Rules of Civil Procedure
(HRCP), "[a]n 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).
Although Ke Noho Kai asserted three separate counts in
its April 26, 2017 complaint against Sedano, the 11/8/19 Judgment
does not resolve any of those claims. The 11/8/19 Judgment is
not appropriate for certification pursuant to HRCP Rule 54(b)
because HRCP Rule 54(b) "certification of finality is limited to
only those cases where . . . the judgment entered completely
disposes of at least one claim or all of the claims by or against
at least one party." Elliot Megdal & Assocs. v. Daio USA Corp.,
87 Hawai#i 129, 133, 952 P.2d 886, 890 (App.1998) (citation
omitted). In the instant case, the circuit court has not yet
adjudicated any of Ke Noho Kai's claims, which remain pending
before the circuit court.
A "circuit court's order awarding attorneys' fees and
costs may not be certified as a final judgment, pursuant to HRCP
Rule 54(b), because such an order is not a final decision with
respect to a claim for relief." Fujimoto v. Au, 95 Hawai#i 116,
136 n.16, 19 P.3d 699, 719 n.16 (2001) (citation and internal
quotation marks omitted); see also CRSC, Inc. v. Sage Diamond
Co., Inc., 95 Hawai#i 301, 307, 22 P.3d 97, 103 (App. 2001). In
Fujimoto, 95 Hawai#i at 122-23, 19 P.3d at 705-06, the Hawai#i
Supreme Court held it did not have appellate jurisdiction to
review a "final judgment" entered on April 20, 1999, that awarded
a defendant [Jorgensen] $7,591.48 in attorneys' fees and costs.
The court explained:
This court does not have jurisdiction over the appeal and
cross-appeal of the "judgment" in favor of Jorgensen and
against the plaintiffs, filed on April 20, 1999, inasmuch as
the document filed by the circuit court does not expressly
enter judgment in Jorgensen's favor with respect to the
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
plaintiffs' substantive claims against him, but merely
refers to the entry of the summary judgment orders that
disposed of those claims. Jenkins v. Cades Schutte Fleming &
Wright, 76 Hawai#i 115, 119, 869 P.2d 1334, 1338 (1994).
Absent entry of an appealable final judgment on the claims
against Jorgensen, the award of attorneys' fees and costs is
likewise not appealable.
Id. at 123, 19 P.3d at 706. Here, absent an appealable final
judgment on Ke Noho Kai's claims, the circuit court's judgment
awarding Sedano's special counsel fees is not yet eligible for
appellate review.
Further, the 11/8/19 Judgment is not appealable under
the collateral order doctrine. In Harada v. Ellis, 60 Haw. 467,
480-81, 591 P.2d 1060, 1070 (1979), the Hawai#i Supreme Court
held it had jurisdiction to review an order requiring defendants
to pay a sanction of $145.60 for failure to provide discovery.
The court explained that "the order directed payment of the
assessed sum and was immediately enforceable through contempt
proceedings[,]" citing to MDG Supply Co. v. Ellis, 51 Haw. 480,
463 P.2d 530 (1969). Here, the 11/8/19 Judgment is not a
sanction, nor is it immediately enforceable through contempt
proceedings.
Ke Noho Kai's appeal in CAAP-XX-XXXXXXX is thus
premature, and we lack appellate jurisdiction.
Therefore, IT IS HEREBY ORDERED that case number CAAP-
XX-XXXXXXX is dismissed for lack of appellate jurisdiction.
IT IS FURTHER HEREBY ORDERED that all pending motions
are dismissed as moot.
DATED: Honolulu, Hawai#i, June 4, 2020.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
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