Guardianship of F.Y.

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NOT FOR PUBLICATI()N IN WEST‘S HAWA.[‘I REPORTS AN’D PACIFIC REPORTER

No. 29e90
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GUARDIANSHIP OF F.Y., an Incapacitated Pers _ §§
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APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (HILO)
(FC»G NO. 05-l~OOO6)

ORDER GRANTING OCTOBER l4, 2009 MOTlON
TO DISMISS APPEAL FOR LACK OF JURISDICTION
(By: Nakamura, Chief Judge, Foley and Leonard, JJ.)

Upon review of (l) Petitioner-Appellee State of Hawafi
Department of Human Services' (Appellee DHS) October l4, 2009
motion to dismiss appellate court case number 29690 for lack of
jurisdiction and (2) the record, it appears that we do not have
jurisdiction over the appeal that Respondent-Appellant Velda M.
Yamanaka (Appellant Yamanaka) has asserted from a January 7, 2009
order that Appellant Yamanaka claims the Honorable Glenn S. Hara
filed in this case. The record on appeal does not contain an
order dated January 7, 2009. Appellee DHS argues that Appellant
Yamanaka's March 5, 2009 notice of appeal is not timely as to the
two most recent orders in this case, i;g4,

0 the Honorable Glenn S. Hara's June 6, 2008 "Order Granting
Ex Parte Motion for Order Authorizing the Ward's Placement
on the Mainland[,]" and `

¢ the Honorable Ben H. Gaddis's March 8, 2005 "Order
Appointing Guardian of the Person[.]"

However, rather than concluding that Appellant Yamanaka's

March 5, 2009 notice of appeal is untimely, we conclude that the
family court has not entered a judgment or an order that is
appealable pursuant to Hawaii Revised Statutes (HRS) § 571-54

(2006) and Rule 34 of the Hawafi Probate Rules (HPR).

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Therefore, Appellant Yamanaka's appeal is premature, and we lack
appellate jurisdiction. For this reason, Appellee DHS's
October l4, 2009 motion to dismiss appellate court case number
29690 for lack of jurisdiction has merit.

Appellee DHS initiated this proceeding by petitioning a
family court to appoint a guardian for an incapacitated adult
person pursuant to HRS § 560:5-304 (2006). The family court
appears to have assumed jurisdiction over this guardianship
proceeding pursuant to HRS § 5jl~l4(d) (2006). At the conclusion
of a family court proceeding, "[a]n interested party aggrieved by
any order or decree of the court may appeal to the intermediate
appellate court for review of questions of law and fact upon the
same terms and conditions as in other cases in the circuit
court[.]" hRS § 571-54_(2006)§ In circuit court cases, a party
may appeal from "final judgments, orders, or decrees[.]" HRS
§ 041-l(a) (1993 & Supp. 2008). Appeals under HRS § 641-1 "shall
be taken in the manner . . . provided by the rules of the court."
HRS § 641-l(c). Pursuant to HPR Rule l, the Hawafi Probate
Rules apply to guardianship proceedings under HRS Chapter 560,
Article V, Part 3. HPR Rule 34 generally requires the trial
court to reduce an order establishing 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 proceedinq, may
be certified for appeal in the manner provided by Rule 54(b)
of the Hawai’i Rules of Civil Procedure.

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NOT FOR PUBLICATI()N IN WEST’S H.AWAI°I REP()RTS AND PACIFIC R_EP()R'I`ER

(b) Interlocutory Orders. fn 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 64l~l§b of the Hawai‘i Revised Statutes.

(c) Final Judgment Closing Proceeding. At the
conclusion of the proceeding, a final judgment 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 judgments as to all claims and`
parties, certified iudqments, 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). 0ne exception to the requirement
for a judgment is in HPR Rule 34(b), which authorizes an appeal
if the probate court certifies an interlocutory order for appeal
in accordance with HRS § 641-1(b). "Rule 34 is written to
conform probate practice to the policy against piecemeal appeals,
see, e.q., Jenkins v. Cades Schutte Fleminq & Wright, 76 Haw.
ll5, 869 P.2d l334, 1994 Haw. LEXIS l9 (l994)." C0mmentary to
HPR Rule 34. Under the holding in Jenkins, "[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, 76
Hawai‘i 115, 119, 369 P.zd 1334, 1333 (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)." lQ; Therefore, under HRS § 571-54 and HPR Rule
34, an order from a family court guardianship proceeding is

eligible for appellate review only if the family court either

(a) reduces the order to a separate judgment pursuant to
HPR Rule 34(a),

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I\,'()T F()R PMUBLICA'I`ION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

{b) certifies the order for appeal in the manner provided
by Rule S¢L(b) of the Hawai‘i Rules of Civil Procedure
{HRCP} pursuant to HPR Rule 34(3.), or

(c) certifies the order for an interlocutory appeal in
accordance with HRS § 641-1{1)) pursuant to HPR Rule 34(}:)).

The family court has not reduced any of its orders in this
guardianship proceeding to a separate judgment. The family court
has not certified any of its orders in this guardianship
proceeding for appeal in the manner provided by HRCP Rule 54(b).
The family court has not certified any of its orders in this
guardianship proceeding for an interlocutory appeal in accordance
with HRS § 64l~l(b). Therefore, family court has not entered a
judgment or an order that is appealable pursuant to HRS § 571-54
and HPR Rule 34. Absent an appealable judgment or an appealable
order, Appellant Yamanaka's appeal is premature and we lack
appellate jurisdiction. Therefore,
IT IS HEREBY ORDERED that Appellee DHS‘s October l4,
2009 motion to dismiss appellate court case number 29690 for lack
of jurisdiction is granted, and appellate court case number 29690
is dismissed for lack of appellate jurisdiction.
DaTED: Honolulu, HawaiUq January 5, 2010_

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Chief Judge

Associate Jud§:TiX§é;\
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