City and County of Honolulu v. Midkiff, 6161

• Decision Date: 21 September 1976
• Docket Number: No. 6161,6161
• Citation: 57 Haw. 273,554 P.2d 233
• Parties: CITY AND COUNTY OF HONOLULU, a Municipal Corporation, Plaintiff-Appellee, v. Frank Elbert MIDKIFF et al., Defendants, and Robert H. Snyder, Defendant-Appellant, and John J. Stanford et al., Interveners.
• Court: Hawaii Supreme Court

Page 233

554 P.2d 233

57 Haw. 273

CITY AND COUNTY OF HONOLULU, a Municipal Corporation Plaintiff-Appellee, v. Frank Elbert MIDKIFF et al., Defendants and Robert H. Snyder, Defendant-Appellant and John J. Stanford et al., Interveners.

No. 6161.

Supreme Court of Hawai'i.

Sept. 21, 1976.

Syllabus by the Court

1. Requirement that notice of appeal designate judgment or part thereof appealed from is not jurisdictional, and strict compliance is not required. Rule 73(b), H.R.C.P.

2. Where disposition of a case involving multiple claims or multiple parties is embodied in several orders, no one of which embraces the entire controversy but which collectively do so, the date of entry of the last of the series of orders is the date of entry of final judgment for the purpose of determining the timeliness of an appeal. Rules 54(b) and 73(a), H.R.C.P.

Carl Tom, Honolulu, for appellant.

Robert Bruce Graham, Jr. (Hamilton, Gibson, Nickelsen, Rush & Moore, Honolulu, of counsel) for defendants-appellees.

Samuel P. King, Jr., Deputy Corp. Counsel, City and County of Honolulu, Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

PER CURIAM.

Appellees have moved to dismiss this appeal, asserting that it was taken from interlocutory orders which were not appealable. We hold that the appeal is before us on a timely and sufficient notice of appeal.

This action was brought by the City and County of Honolulu (City) against the trustees of the Bernice P. Bishop Estate (Trustees) and Appellant to condemn a parcel of land which was owned by the Trustees and leased to Appellant. Appellant's answer asserted that the City had failed to follow General Plan amendment procedures and asked that the proceeding be dismissed, or in the alternative that Appellant be compensated for his leasehold interest. Appellant cross-claimed against the Trustees for relief from the provisions relating to condemnation in the lease agreement and for reimbursement of lease premiums together with the value of Appellant's rights in the parcel. An 'Order Granting Motion for Summary Judgment and Summary Judgment' against Appellant in favor of the Trustees was entered on December 3, 1975, declaring that the rights of Appellant to share in any condemnation award were to be determined pursuant to the lease agreement. An 'order Granting Motion for Summary Judgment' against Appellant in favor of the City was entered on December 9, 1975, determining that the City could proceed with the condemnation under existing zoning and dismissing all claims of Appellant against the City for damages and compensation. Appellant moved for reconsideration of the last mentioned order. On December 30, 1975, Appellant filed a notice of appeal 'from the Order and Final Judgment entered in these actions on December 3, 1975.' On January 21, 1976, an 'Order on Motion for Reconsideration' was entered determining, as an alternative to the determination expressed in the order of December 9, 1975, that the City had complied with the requirements for amendment of the General Plan, and denying Appellant's motion for reconsideration of the December 9 order. On January 28, 1976, a 'Stipulated Judgment' was entered pursuant to the consent of the City and the Trustees, determining that the Trustees were the owners of the parcel and that the total just compensation had been deposited by the City and withdrawn by the Trustees, and condemning the parcel. A 'Final Order of Condemnation' was entered on January 28, 1976. Thereafter, on February 18, 1976, Appellant filed a notice of appeal 'from the Order and Final Judgment entered in these actions on January 21, 1976.'

The City and the Trustees have separately moved to dismiss the appeal, asserting that Appellant has appealed only from the orders of December 3, 1975 and January 21, 1976, neither of which was final and appealable under Rule 54(b), H.R.C.P., and that no appeal was taken from the judgment and order of condemnation entered January 28, 1976, by which the case was finally disposed of.

Rule 54(b) renders nonfinal and nonappealable an order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, in the absence of the trial court's express determination that there is no just reason for delay and its express direction for the entry of judgment. Such an order remains nonfinal and nonappealable until the entry of judgment...