Ke Kailani Development LLC v. Ke Kailani Partners LLC

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

NO. CAAP-12-0000759

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI'I

KE KAILANI DEVELOPMENT LLC, a Hawai'i limited liability company, and MICHAEL J. FUCHS, Plaintiffs-Appellants

v.

KE KAILANI PARTNERS LLC, a Hawaii limited liability company,

HAWAII RENAISSANCE BUILDERS LLC, a Delaware limited liability

company registerred in Hawai'i, et al., Defendants-Appellees

and

JOHN DOES 1-50, JANE DOES 1-50, DOE PARTNERSHIPS 1-50, DOE

CORPORATIONS 1-50, DOE LIMITED LIABILITY COMPANIES 1-50, DOE

ENTITIES 1-50, and DOE GOVERNMENTAL UNITS 1-50, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 11-1-1577)

ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION

(By: Foley, Presiding Judge, Reifurth and Ginoza, JJ.)

Upon review of the record on appeal, it appears that we

do not have jurisdiction over this appeal that Plaintiffs-

Appellants Ke Kailani Development, LLC, and Michael J. Fuchs

(Appellants) have asserted from the Honorable Bert I. Ayabe's

April 23, 2012 judgment, because the April 23, 2012 judgment does

not satisfy the requirements for an appealable final judgment

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

under Hawaii Revised Statutes (HRS) 641-1(a) (1993 & Supp. 2011),

Rules 54(b) and 58 of the Hawai'i Rules of Civil Procedure (HRCP)

and the holding in Jenkins v. Cades Schutte Fleming & Wright, 76

Hawai'i 115, 119, 869 P.2d 1334, 1338 (1994).

HRS § 641-1(a) 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 court." HRS § 641-1(c). HRCP Rule 58

requires that "[e]very judgment shall be set forth on a separate

document." Based on HRCP Rule 58, the Supreme Court of Hawai'i

requires 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 and against the appropriate parties pursuant

to HRCP [Rule] 58[.]" Jenkins, 76 Hawai'i at 119, 869 P.2d at

1338. "[A]n 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)." Id. (original

emphasis). The finding necessary for certification is "an

express determination that there is no just reason for delay . .

. for the entry of judgment." HRCP Rule 54(b). Therefore, when

a party seeks appellate review of an order that adjudicates one

or more but fewer than all of the claims, the "party cannot

appeal from [the] circuit court order even though the order may

contain [HRCP Rule] 54(b) certification language; the order must

be reduced to a judgment and the [HRCP Rule] 54(b) certification

language must be contained therein." Oppenheimer v. AIG Hawaii

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Ins. Co., 77 Hawai'i 88, 93, 881 P.2d 1234, 1239 (1994) (emphasis

added).

The April 23, 2012 judgment does not resolve all claims

against all parties in this case. Neither does it contain the

express finding of "no just reason for delay” in the entry of

judgment that is necessary for a judgment on one or more but

fewer than all claims pursuant to HRCP Rule 54(b). Therefore,

under the circumstances, the April 23, 2012 judgment does not

satisfy the requirements for an appealable final judgment under

HRS § 641-1(a), HRCP Rule 54(b), HRCP Rule 58, and the holding in

Jenkins. Absent an appealable final judgment in this case, the

Appellants' appeal is premature and we lack jurisdiction over

Appeal No. CAAP-12-0000759.

IT IS HEREBY ORDERED that Appeal No. CAAP-12-0000759 is

dismissed for lack of jurisdiction.

DATED: Honolulu, Hawai'i, October 1, 2012.

Presiding Judge

Associate Judge

Associate Judge

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