76 Hawai'i 115, Jenkins v. Cades Schutte Fleming & Wright

• Decision Date: 14 March 1994
• Docket Number: No. 17634,17634
• Citation: 869 P.2d 1334,76 Hawaii 115
• Court: Hawaii Supreme Court
• Parties: 76 Hawai'i 115 Danny Harris JENKINS, Plaintiff-Appellant, v. CADES SCHUTTE FLEMING & WRIGHT, Attorneys at Law, Licensed to do Business in the State of Hawaii; Philip J. Leas; James H. Ashford; Orin S. Jackson; Doris M.J. Jackson; Zions Securities Corporation, A Utah Corporation Licensed to do Business in the State of Hawaii and Larry Gilbert, Defendants-Appellees.

Page 1334

869 P.2d 1334

76 Hawai'i 115

Danny Harris JENKINS, Plaintiff-Appellant, v. CADES SCHUTTE FLEMING & WRIGHT, Attorneys at Law, Licensed to do Business in the State of Hawaii; Philip J. Leas James H. Ashford; Orin S. Jackson; Doris M.J. Jackson Zions Securities Corporation, A Utah Corporation Licensed to do Business in the State of Hawaii and Larry Gilbert Defendants-Appellees.

No. 17634.

Supreme Court of Hawai'i.

March 14, 1994.

Syllabus by the Court

1. A statement of a superior court is binding on inferior tribunals, even though technically dictum, where it was passed upon by the court with as great care and deliberation as if it had been necessary to decide it, was closely connected with the question upon which the case was decided, and the opinion was expressed with a view to settling a question that would in all probability have to be decided before the litigation was ended.

2. The separate document provision of Rule 58 of the Hawai'i Rules of Civil Procedure was copied from a similar provision in the Federal Rules of Civil Procedure. Its sole purpose is to determine when the time for appeal commences.

3. The separate judgment rule is designed to simplify and make certain the matter of appealability.

4. An appeal may be taken from circuit court orders resolving claims against parties only after the orders have been reduced to judgment and the judgment has been entered in favor of and against the appropriate parties pursuant to Rule 58 of the Hawai'i Rules of Civil Procedure.

5. If a judgment purports to be the final judgment in a case involving multiple claims or multiple parties, the judgment (a) must specifically identify the party or parties for and against whom the judgment is entered, and (b) it must (i) identify the claims for which it is entered and (ii) dismiss any claims not specifically identified.

6. If a judgment resolves fewer than all claims against all parties or reserves any claim for later action by the court, an appeal may be taken only if the judgment contains the language necessary for certification under Rule 54(b) of the Hawai'i Rules of Civil Procedure.

7. An 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 Rule 54(b) of the Hawai'i Rules of Civil Procedure.

8. After March 31, 1994, an appeal from an order that purports to be a final order as to all claims and parties may be taken only after the order has been reduced to a judgment in favor of or against the parties. If claims are resolved by a series of orders, a final judgment upon all the claims must be entered. The "judgment shall not contain a recital of the pleadings," Rule 54(a) of the Hawai'i Rules of Civil Procedure, but it must, on its face, show finality as to all claims against all parties. An appeal from an order that is not reduced to judgment in favor of or against the party by the time the record is filed in the supreme court will be dismissed. If a judgment purports to be certified under Rule 54(b) of the Hawai'i Rules of Civil Procedure, the necessary finding of no just reason for delay must be included in the judgment.

Danny Harris Jenkins plaintiff-appellant, pro se.

J. Stephen Street and Bradford L. Tannen, Rush Moore Craven Sutton Morry & Beh, Honolulu, for defendant-appellee Zions Securities Corp.

Philip J. Leas and James H. Ashford, Honolulu, for defendants-appellees Cades Schutte Fleming & Wright, Philip J. Leas, James H. Ashford, Orin S. Jackson and Doris M.J. Jackson.

Larry Gilbert, Gilbert Jeynes & Bodbey, Honolulu.

Before MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ. and Circuit Judge YIM, in Place of KLEIN, J., Recused.

PER CURIAM.

Plaintiff-appellant Danny Harris Jenkins appeals from the First Circuit Court's orders granting defendants-appellees Cades Schutte Fleming & Wright, Philip J. Leas, James H. Ashford, Orin S. Jackson, and Doris M.J. Jackson (collectively, Jacksons) and Zions Securities Corporation's (Zions) motions to dismiss Jenkins' complaint and first amended complaint. Appellees Jacksons and Zions contest appellate jurisdiction by means of statements contesting jurisdiction filed pursuant to Rule 12.1 of the Hawai'i Rules of Appellate Procedure (HRAP). Appellant Jenkins, pro se, did not file a statement of jurisdiction although he was required to do so by HRAP 12.1 and bears the burden of showing appellate jurisdiction. See, e.g., Hong v. Kong, 67 Haw. 15, 675 P.2d 769 (1984) (former Hawai'i Supreme Court Rule 3(b), now HRAP 28(b) and 12.1, "is designed so that [opening] briefs filed in compliance therewith will clearly show ... there is appellate jurisdiction").

Appellees Zions and Jacksons argue that this court lacks appellate jurisdiction because: (1) the orders dismissing the complaint did not resolve claims against defendant Larry Gilbert; and (2) judgment has not been entered pursuant to Rule 58 of the Hawai'i Rules of Civil Procedure. We agree and dismiss this appeal. ¹

I. BACKGROUND

Jenkins filed a multi-count complaint against Zions, Jacksons, and Larry Gilbert. Jenkins later filed a similar first amended complaint. Zions and Jacksons moved to dismiss the complaint and the first amended complaint.

On November 15 and 18, 1993 the circuit court entered substantially similar orders that state, in relevant part:

IT IS HEREBY ORDERED that the Jackson Motion and the Zions Motion are granted for dismissal of all claims based upon the Court's finding that all claims in the Complaint and the First Amended Complaint are either barred by the doctrine of res judicata or are claims which Plaintiff has no standing to pursue.

On December 14, 1993, Jenkins filed a notice of appeal from the two orders.

II. DISCUSSION

We note at the outset that the orders appealed from merely granted Zions and Jacksons' motions to dismiss. Neither order mentions claims made against defendant Larry Gilbert and neither order contains language entering judgment in favor of or against any party. Absent certification under Hawai'i Rules of Civil Procedure (HRCP) 54(b), these deficiencies are sufficient to show a lack of appellate jurisdiction. See, e.g., Familian Northwest Inc. v. Central Pacific Boiler & Piping, Ltd., 68 Haw. 368, 370, 714 P.2d 936, 937 (1986) (supreme court's jurisdiction is limited to review of final judgments, orders, and decrees; an order is not final if the rights of a party remain undetermined or if the matter is retained for further action); M.F. Williams, Inc. v. City and County of Honolulu, 3 Haw.App. 319, 322-24, 650 P.2d 599, 603 (1982) (an order granting a motion for summary judgment is not a judgment unless it contains appropriate language entering judgment in favor of and against the relevant parties).

Although not absolutely necessary to the disposition of this case, we take this opportunity to address a vexing problem that is partly responsible for clogging our docket with appeals that are not ripe for disposition--non-compliance with the separate document requirement of HRCP 58 (1990). We expect parties, attorneys, and circuit courts to heed our words. See Robinson v. Ariyoshi, 65 Haw. 641, 655, 658 P.2d 287, 298 (1982) ("a statement of a superior court [is] binding on inferior tribunals, even though technically dictum, where it was 'passed upon by the court with as great care and deliberation as if it had been necessary to decide it, was closely connected with the question upon which the case was decided, and the opinion was expressed with a view to settling a question that would in all probability have to be decided before the litigation was ended' ").

Rule 54(a) of the Hawai'i Rules of Civil Procedure (1991) provides:

"Judgment" as used in these rules includes a decree and any order ² from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings.

The orders granting the motions to dismiss in this case were never reduced to a judgment pursuant to HRCP 58. In relevant part that rule provides:

The filing of the judgment in the office of the clerk constitutes entry of the judgment; and the judgment is not effective before such entry. The entry of the judgment shall not be delayed for the taxing of costs. Every judgment shall be set forth on a separate document.

HRCP 58 (emphasis added). The separate document provision was added to HRCP 58 by order of this court on July 26, 1990 and has been generally ignored by practitioners and circuit courts alike.

The separate document provision was copied from a similar provision in the Federal Rules of Civil Procedure. Its sole purpose is to determine when the time for appeal commences. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 98 S.Ct. 1117, 1119, 55 L.Ed.2d 357 (1978); 6A Moore's Federal Practice p 58.02.1 (1993). The separate judgment rule is designed to simplify and make certain the matter of appealability. It was not designed as a trap for the inexperienced. It should be interpreted to prevent the loss of the right to an appeal, not to facilitate it. In the federal courts the parties may waive the formality of entering a separate judgment and may treat an order as a judgment. Bankers Trust, 435 U.S. at 386-88, 98 S.Ct. at 1120-21.

We must decide whether to allow parties to waive the requirements of HRCP 58 when appealing from orders entered in the circuit courts of the State of Hawai'i.

We have considerable sympathy for the proposition that requiring entry of a separate judgment is a waste of time and is unnecessarily rigid when the record shows that the order from which the appeal is taken is the order that resolves the last issue in the case and, therefore, that the case is ripe for appeal. ³ We are mindful, however, that we may hear appeals from only final judgments, orders, or decrees except as otherwise provided by law. HRS § 641-1(a) (1985); Kernan v....