Klemme v. Banks

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
02-APR-2026
08:30 AM
Dkt. 22 ODSLJ
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MIKAEL KLEMME, Plaintiff-Appellee,
v.
DARRYL BANKS; BANKS PACIFIC CONSTRUCTION, INC.,
Defendants-Appellants,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10, Defendants.

BANKS PACIFIC CONSTRUCTION, INC.,
Counterclaimant-Appellant,
v.
MIKAEL KLEMME; CHRIS HANSEN,
Counterclaim Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CCV-XX-XXXXXXX)

ORDER GRANTING MOTION TO DISMISS APPEAL
(By: Nakasone, Chief Judge, Hiraoka and Wadsworth, JJ.)

Upon consideration of Plaintiff-Appellee Mikael
Klemme's (Klemme) March 16, 2026 Motion to Dismiss Appeal for
Lack of Appellate Jurisdiction and for Sanctions, the papers in
support and in opposition, and the record, it appears that Klemme
seeks dismissal of the appeal for lack of jurisdiction and an
award of sanctions against Defendants-Appellants Darryl Banks and
Banks Pacific Construction, Inc. (Banks Parties) for filing a
frivolous appeal.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Banks Parties appeal from the Circuit Court of the
Second Circuit's October 13, 2025 "Order Granting Plaintiff
Mikael Klemme's Motion for Partial Summary Judgment on Count IV
(Unfair and Deceptive Trade Practices) and Count VII (Violation
of HRS Chapter 444) of the First Amended Complaint, Filed on
July 19, 2022, Filed on September 12, 2025 [Dkt. 176]." The
court lacks jurisdiction because the Circuit Court has not
entered a final, appealable order or judgment, see Hawai#i
Revised Statutes (HRS) § 641-1(a) (2016); Hawai#i Rules of Civil
Procedure Rules 54(b), 58; Jenkins v. Cades Schutte Fleming &
Wright, 76 Hawai#i 115, 119, 869 P.2d 1334, 1338 (1994), and the
October 13, 2025 order from which Banks Parties appeal is not
independently appealable under the collateral-order1 or Forgay2
doctrines, nor has the Circuit Court granted leave for
interlocutory appeal under HRS § 641-1(b). See Greer v. Baker,
137 Hawai#i 249, 253, 369 P.3d 832, 836 (2016) (setting forth the
requirements for appealability under the collateral-order
doctrine and the Forgay doctrine); HRS § 641-1(b) (specifying
requirements for leave to file interlocutory appeal).
The court declines to grant Klemme's request for
sanctions in conjunction with this dismissal order, because
Hawai#i Rules of Appellate Procedure Rule 38 only allows such an
award where the court "determines that an appeal decided by it
was frivolous." (Emphasis added).
Therefore, IT IS HEREBY ORDERED that the March 16, 2026
Motion to Dismiss Appeal for Lack of Appellate Jurisdiction and
for Sanctions is granted in part and denied in part as follows:
1. The appeal is dismissed for lack of jurisdiction;
and

1
Contrary to Banks Parties' argument, whether a party is a "consumer"
for purposes of a claim under HRS § 480-2 (2008) is an issue of standing, not
immunity from suit. See Guieb v. Guieb, 156 Hawai #i 162, 168, 571 P.3d 382,
388 (2025) ("Because Roland was not a consumer, the AG, or director of the
office of consumer protection, he had no standing to bring a UDAP claim.").
2
Forgay v. Conrad, 47 U.S. 201 (1848).

2