Bedell v. Bartholomew

LAW LIBRARY

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

NO. 30089

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

a3

MARGARET H. BEDELL,

TAY o¢ vi Ol0z

Vv.

LUCINDA LOPEZ BARTHOLOMEW, formerly known as
LUCINDA LOPEZ and LINDA LOPEZ

LUCINDA WHITTEMORE-LOPEZ,
BARTHOLOMEW, Defendant/Counterclaim-Plaintiff/Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 08-1-0229)

ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION
(By: Foley, Presiding Judge, Fujise and Leonard, JU.)
Upon review of the record in this case, it appears that
we lack jurisdiction over the appeal that Defendant/Counterclaim-

formerly known as

Plaintiff/Appellant Lucinda Lopez Bartholomew,
Lucinda Lopez and Linda Lopez

Lucinda Whittemore-Lopez,
has asserted from the Honorable Joseph

Bartholomew (Appellant),
"Amended Order Granting in

E. Cardoza's August 26, 2009
Part/Denying in Part Plaintiff's Motion for Summary Judgment
because the circuit

2009 amended interlocutory order)
2009 amended interlocutory

(the

August 26,
court has not reduced the August 26,
order to a separate, appealable final judgment, .and, thus,

(1993 & Supp.

Appellant's appeal is premature.
Hawaii Revised Statutes (HRS) § 641-1(a)

2009) authorizes appeals to the intermediate court of appeals
or decrees. Appeals under HRS

only from final judgments,
"shall be taken in the manner provided by the rules
Rule 58 of the Hawai‘i Rules of

of the court." HRS § 641-1(c).
Civil Procedure (HRCP) requires that "[e]lvery judgment shall be

set forth on a separate document." Based on HRCP Rule 58, the

Supreme Court of Hawai‘i has held that "[a]n appeal may be
only after the orders have been reduced to a judgment

orders,

§ 641-1

taken...
and the judgment has been entered in favor of and against the
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

appropriate parties pursuant to HRCP [Rule] 58[.]" Jenkins v.
Cades Schutte Fleming & Wright, 76 Hawai‘i 115, 119, 869 P.2d
1334, 1338 (1994). "An appeal from an order that is not reduced

to a judgment in favor or against the party by the time the
record is filed in the supreme court will be dismissed." Id. at
120, 869 P.2d at 1339 (footnote omitted).

The circuit court has not yet entered a separate final
judgment that resolves all of the claims in this case.
Therefore, absent an exception to the general rule requiring a
final judgment for an appeal, Appellant's appeal is premature,
and we lack appellate jurisdiction.

Although exceptions to the final judgment requirement
exist under the Forgay doctrine and the collateral order
doctrine, the August 26, 2009 amended interlocutory order does

not satisfy all of the requirements for appealability under the

Forgay doctrine or the collateral order doctrine. See Ciesla v.
Reddish, 78 Hawai‘i 18, 20, 889 P.2d 702, 704 (1995) (regarding
the two requirements for appealability under the Forgay doctrine
and Forgay v. Conrad, 47 U.S. 201 (1848)) and Abrams v. Cades,
Schutte, Fleming & Wright, 88 Hawai'i 319, 322, 966 P.2d 631, 634
(1998) (regarding the three requirements for appealability under
the collateral order doctrine) . We note that the August 26, 2009

amended interlocutory order appoints a commissioner and directs
the sale of the real estate that is the subject of Plaintiff/
Counterclaim-Defendant/Appellee Margaret H. Bedell's (Appellee)
complaint for partition. The August 26, 2009 amended
interlocutory order directly addresses the merits of Appellee’s
complaint for partition, and, thus, the August 26, 2009 amended
interlocutory order does not qualify as a collateral order.
Furthermore, the August 26, 2009 amended interlocutory order does
not require the immediate execution of a command that the subject
property be delivered to Appellant's adversary, Appellee, as the
Forgay doctrine requires. Under similar circumstances in a prior
appeal, the Supreme Court of Hawai‘i granted a "mo[tion] to
dismiss the appeal . . . from an order appointing [a]
commissioner, directing appraisal and sale, entered by the

circuit judge on April 6, 1959, in a partition proceeding[.]"
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

Cooke Trust Company, Ltd. v. Ho, 43 Haw. 243, 243 (1959).

[The appealed order] appointed a commissioner to appraise
the lands involved in the partition proceeding and to sell
such lands at public auction in accordance with R.L.H. 1955,
Ch. 337. It also directed the commissioner to report his
appraisal to the court prior to the sale, and provided that
the sale shall be subject to confirmation by the court.
Clearly the order is not final.

Id. at 245. Similarly in the instant case, the August 26, 2009
amended interlocutory order appointed a commissioner ina
partition proceeding, directed the sale of the subject property,
and provided that the sale will be subject to confirmation by the
circuit court. Likewise, the August 26, 2009 amended
interlocutory order is not eligible for appellate review without
a final judgment.

Finally, the circuit court has not certified August 26,
2009 amended interlocutory order for an interlocutory appeal
pursuant to HRS § 641-1(b). Therefore, August 26, 2009 amended
interlocutory order is not appealable pursuant to HRS § 641-1(b).

Absent a separate, appealable, final judgment,
Appellant's appeal is premature and we lack appellate
jurisdiction. Accordingly,

IT IS HEREBY ORDERED that Appeal No. 30089 is dismissed
for lack of appellate jurisdiction.

DATED: Honolulu, Hawai‘i, March 30, 2010.

hd .Ls

Presiding Judge

A

fsociate Jiidge