Dalomba v. Mueller

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-MAY-2022
08:15 AM
Dkt. 12 OGMD
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ALICE ANDRADE DALOMBA, Plaintiff-Appellee, v.
JASON RAY MUELLER, Defendant-Appellant;
VILLAGE OF KAPOLEI ASSOCIATION; FIRST HAWAIIAN BANK,
and DOES 1-50, Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC161001468)

ORDER GRANTING MOTION TO DISMISS APPEAL
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Upon consideration of the Motion to Dismiss for Lack of
Jurisdiction (Motion), filed on March 31, 2022, by Plaintiff-
Appellee Alice Andrade Dalomba, the papers in support and in
opposition, and the record, it appears that we lack appellate
jurisdiction over Defendant-Appellant Jason Ray Mueller's
(Mueller) appeal from the Circuit Court of the First Circuit's
(circuit court) March 17, 2022 "Order Granting in Part and
Denying in Part [Dalomba]'s Motion for Partition by Sale, Filed
February 7, 2022" (Order) because the circuit court has not
entered a final, appealable judgment, and the Order is not
independently appealable.
An aggrieved party cannot obtain appellate review of a
circuit court's interlocutory orders in a civil case, under
Hawaii Revised Statutes (HRS) § 641-1(a) (2016), until the
circuit court has reduced its dispositive rulings to an
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

appealable, final judgment under Hawai#i Rules of Civil Procedure
Rule 58. Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai#i
115, 119, 869 P.2d 1334, 1338 (1994). Here, the circuit court
has not entered a final, appealable judgment.
Further, the Order is not independently appealable
under the collateral-order doctrine or HRS § 641-1(b). See Greer
v. Baker, 137 Hawai#i 249, 253, 369 P.3d 832, 836 (2016)
(reciting the requirements for appeals under the collateral-order
doctrine); HRS § 641-1(b) (2016) (reciting the requirements for
leave to file an interlocutory appeal); see also Lambert v.
Teisina, 131 Hawai#i 457, 462 n.11, 319 P.3d 376, 381 n.11 (2014)
("[A]n order appointing a commissioner and directing a partition
sale (e.g., a partition decree) is an interlocutory order that is
not appealable unless allowed by the trial judge.").
In addition, the Order is not independently appealable
under the Forgay doctrine because it does not confirm the sale of
the subject property (Property), direct the distribution of sale
proceeds, or direct Mueller to surrender his interest in the
Property within a specified time period. See Greer, 137 Hawai#i
at 253, 369 P.3d at 836 (reciting the requirements for appeals
under the Forgay doctrine); see also Fernandes v. D. Napua Law,
No. CAAP-XX-XXXXXXX, 2018 WL 4784076, at *2 (App. Oct. 4, 2018)
(interlocutory order adopting commissioner's report and directing
partition of real property, and interlocutory order denying
motion for reconsideration of order, was not appealable under
Forgay doctrine because it did not (1) require immediate
execution of command that property be delivered to appellants'
adversary, and (2) appellants would not be subjected to
irreparable injury if appellate review had to wait final outcome
of litigation); cf. Lambert, 131 Hawai#i at 462, 319 P.3d at 381
(interlocutory order confirming partition sale and directing
distribution of sale proceeds was appealable under Forgay
doctrine because it confirmed sale of property, directed

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

commissioner to convey property to trustee, and ordered parties
to surrender property within thirty days of conveyance).
Therefore, IT IS HEREBY ORDERED that the Motion is
granted and the appeal is dismissed for lack of appellate
jurisdiction.
DATED: Honolulu, Hawai#i, May 24, 2022.

/s/ Keith K. Hiraoka
Presiding Judge

/s/ Clyde J. Wadsworth
Associate Judge

/s/ Karen T. Nakasone
Associate Judge

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