In re Guardianship of SIMC

LAW LIBRARY

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

NO. 30411
IN THE INTERMEDIATE COURT OF APPEALS | =
rd =>
OF THE STATE OF HAWAI‘I = “
wie NO
In the Matter of the Guardianship of the Person of SIMC non '
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCULT, oo
(FC-G NO. 09-1-0024Kk) _
wo

ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION
(By: Fujise, Presiding Judge, Reifurth and Ginoza, JJ.)

Upon review of the record, it appears that we do not

have jurisdiction over the appeal that Respondent-Appellant Ian

Narod has asserted from the Honorable Aley K. Auna, Jr.'s

t

March 24, 2010 "Court's Decision" in FC-G No. 09-1-0024K (the

March 24, 2010 decision), because the March 24, 2010 decision is

not appealable pursuant to Hawai‘i Revised Statutes § 641-1 (1993

& Supp. 2009) and Rule 34 of the Hawai'i Probate Rules (HPR).

HRS § 641-1(a) authorizes 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). HPR Rule 34 requires a trial court to reduce an order

establishing a guardianship to a separate judgment as a

prerequisite for appealability:

RULE 34. ENTRY OF JUDGMENT, INTERLOCUTORY ORDERS, APPEALS

(a) Entry of Judgment. All formal testacy orders,
orders of intestacy and determination of heirs, orders
establishing conservatorship and/or guardianship, and orders
establishing protective arrangements shall be reduced to
judgment and the judgment shall be filed with the clerk of
the court. Such judgments shall be final and immediately
appealable as provided by statute. Any other order that
fully addresses all claims raised in a petition to which it~
relates, but that does not finally end the proceeding, may

be certified for appeal in the manner provided by Rule 54 (b)
of the Hawai'i Rules of Civil Procedure.

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

(b) Interlocutory Orders. In order to appeal from any
other order prior to the conclusion of the proceeding, the
order must be certified for appeal in accordance with
Section 641-1(b) of the Hawai'i Revised Statutes.

(c) Final Judgment Closing Proceeding. At the
conclusion of the proceeding, a_final judqment closing the
proceeding shall be entered and filed with the clerk of the
court, at which time all prior uncertified interlocutory
orders shall become immediately appealable.

(d) Appeals. Final judqments as to all claims and
parties, certified judgments, certified orders, and other
orders appealable as provided by law may be appealed
pursuant to the Hawai'i Rules of Appellate Procedure
applicable to civil actions.

HPR Rule 34 (emphases added). "Rule 34 is written to conform
probate practice to the policy against piecemeal appeals, see,

e.g., Jenkins v. Cades Schutte Fleming & Wright, 76 Haw. 115, 869

P.2d 1334, 1994 Haw. LEXIS 19 (1994)." Commentary to HPR

Rule 34. Under the holding in Jenkins, "[aln 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 115, 119, 869 P.2d 1334, 1338 (1994). "(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. Therefore, "an order disposing of a circuit
court case is appealable when the order is reduced to a separate

judgment." Alford v. City and Count of Honolulu, 109 Hawai‘i 14,

21, 122 P.3d 809, 816 (2005) (citation omitted). "An appeal from
an order that is not reduced to a judgment in favor of or against
the party by the time the record is filed in the supreme court
will be dismissed." Jenkins, 76 Hawai‘i at 120, 869 P.2d at.
1339. Accordingly, HRS § 641-1(a) and HPR Rule 34 require the

entry of a separate judgment for the purpose of obtaining

-2-
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

appellate review of a guardianship proceeding that a court has
finally ended and closed.

The March 24, 2010 decision appears to be an order
that establishes a guardianship, but the family court has not yet
reduced the March 24, 2010 decision to a separate judgment in
FC-G 09-1-024K, as HPR Rule 34 requires for a guardianship
proceeding. Therefore, the March 24, 2010 decision is not
appealable under HRS § 641-1(a) and HPR Rule 34. Absent an -
appealable judgment, we lack jurisdiction over appellate court
case number 30411. Accordingly,

IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.

DATED: Honolulu, Hawai‘i, July 26, 2010.

Presiding Ju
Fowsnumectt Qijcee

Associate Judge

Associate Judge