NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REP()RTER
NO. 30lO3
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IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI@f
CFI, INC., a Hawaii corporation,
Plaintiff~Appellant,
V.
TEX, INC., a Hawaii corporation, ALA KAI REALTY, INC.,
a Hawaii corporation, ERNEST B. TEXEIRA, HAMAKUA
COAST REALTY, INC., a Hawaii corporation, et al.,
Defendants-Appellees,
and
ALA KAI REALTY, INC. and ERNEST B. TEXEIRA,
Third-Party Plaintiffs,
'\/'.
DONALD J. COOK, et al.,
Third-Party Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 06-1-O380)
ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION
(By: Nakamura, Chief Judge, Foley and Fujise, JJ.)
Upon review of the record in this case, it appears that
we lack jurisdiction over the appeal that Plaintiff-Appellant
CFI, Inc. (Appellant CFI), has asserted from the Honorable
Elizabeth Strance's October 8, 2008 "Judgment in Favor of
Defendant Tex Inc. and Against Plaintiff CFI Inc." (October 8,
2008 judgment), September 4, 2009 "Judgment in Favor of Defendant
Tex Inc. and Against CFI Inc. on Remaining Claims" (the
September 4, 2009 judgment), and the November l3, 2009 "Judgment
in Favor of Defendant Tex Inc. and Against Plaintiff CFI Inc. for
Attorney's Fees" (the November l3, 2009 judgment awarding
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
attorney's fees), because these three judgments are not
appealable.
Hawaii Revised Statutes (HRS)§ 641-l(a) (l993 & Supp.
2008) authorizes appeals to the intermediate court of appeals
only from final judgments, orders, or decrees. Appeals under HRS
§ 641-l "shall be taken in the manner . . . provided by the rules
of the court." HRS § 641-l(c). Rule 58 of the Hawafi Rules of
Civil Procedure (HRCP) requires that "[e]very judgment shall be
set forth on a separate document." HRCP Rule 58. Based on
HRCP Rule 58, the Supreme Court of Hawafi holds 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 v. Cades Schutte Fleming & Wright, 76 HawaFi ll5, ll9,
869 P.2d l334, 1338 (l994).
[I]f a judgment purports to be the final judgment in a case
involving multiple claims or multiple parties, the judgment
(a) must specifically identify the party or parties for and
against whom the judgment is entered, and (b) must (i)
identify the claims for which it is entered, and
(ii) dismiss any claims not specifically identified[.]
lQ; Furthermore, "if the judgment resolves fewer than all claims
against all parties, or reserves any claim for later action by
the court, an appeal may be taken only if the judgment contains
the language necessary for certification under HRCP
[Rule] 54(b)[.]" ;Q; Therefore, "an 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)."
lQ;
Although the parties have asserted multiple claims
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
against multiple parties in this case, neither the October 8,
2008 judgment nor the September 4, 2009 judgment resolves all
claims against all parties. Although both the October 8, 2008
judgment and the September 4, 2009 judgment resolve some, but not
all, of the parties' claims, neither the October 8, 2008 judgment
nor the September 4, 2009 judgment contains the express finding
of no just reason for delay in the entry of judgment that is
necessary certification under HRCP Rule 54(b) for an appeal from
a judgment that resolves one or more but less than all of the
parties' claims. Therefore, neither the October 8, 2008 judgment
nor the September 4, 2009 judgment satisfies the requirements for
an appealable final judgment pursuant to HRS § 641-l(a), HRCP
Rule 58 and the holding in Jenkins.
The November l3, 2009 judgment awarding attorney's fees
also does not satisfy the requirements for an appealable final
judgment pursuant to HRS § 64l=l(a), HRCP Rule 58 and the holding
in Jenkins. The November l3, 2009 judgment awarding attorney's
fees does not resolve any of the parties' substantive claims,
but, instead, the November l3, 2009 judgment awarding attorney's
fees awards attorney's fees in favor of Defendant-Appellee Tex,
Inc. (Appellee Tex), and against Appellant CFI. The Supreme
Court of HawaFi has explained "that [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 Hawafi ll6, l36 n.l6, 19 P.3d 699,
719 n.l6 (200l) (citation and internal quotation marks omitted).
"The entry of judgment and taxation of costs are separate legal
acts." CRSC, Inc. v. Sage Diamond Co., Inc., 95 Hawafi 30l,
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307, 22 P.3d 97, l03 (App. 200l) (citation, internal quotation
marks and brackets omitted). Therefore, "[a]bsent entry of an
appealable final judgment on the claims [to which an award of
attorneys' fees and costs relates], the award of attorneys' fees
and costs is . . . not appealable." Fujimoto, 95 Hawafi at l23,
lO P.3d at 706; CRSC, Inc., 95 Hawafi at 306, 22 P.3d at lO2.
As already explained, the circuit court has not yet entered an
appealable final judgment on Appellant CFI's claims against
Appellee Tex. Therefore, the November l3, 2009 judgment awarding
attorney's fees is not eligible for appellate review.
Absent a timely appeal from an appealable final
judgment, Appellant CFI's appeal is premature and we lack
appellate jurisdiction. Therefore,
IT IS HEREBY ORDERED that appellate court case number
30l03 is dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawafi, March 4, 20lO.