Martinez v. Tam

• Court: Hawaii Intermediate Court of Appeals
• Decided: April 26, 2010
• Docket: 30183
• Status: Published

Opinion

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PAC.IFIC REPORTER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