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IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

 

ZACHARY FRED BAILEY,

Respondent/Plaintiff-Appellee,

vs.

BURRELLE DAVID DUVAUCHELLE, TRUSTEE UNDER

DUVAUCHELLE FAMILY TRUST U/D/T DATED AUGUST 14, 2008,

Petitioner/Defendant-Appellant.

 

SCWC-14-0000883

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-14-0000883; CIV. NO. 06-1-0218(1))

JUNE 29, 2015

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.

In Jenkins v. Cades Schutte Fleming & Wright, 76

Hawai#i 115, 869 P.2d 1334 (1994) (per curiam), this court set

forth principles for determining whether an order or other

decision of the circuit court is appealable. Id. at 119, 869

Electronically Filed

Supreme Court

SCWC-14-0000883

29-JUN-2015

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P.2d at 1338. Those principles were rooted in our “policy

against piecemeal appeals[,]” and were intended to “simplify and

make certain the matter of appealability.” Id. at 118-19, 869

P.2d at 1337-38. 

This case requires us to determine the applicability of

those principles in the context of motions brought under Hawai#i

Rules of Civil Procedure (HRCP) Rule 60(b).

Specifically, this case requires us to determine

whether an order deciding a motion that was purportedly filed

pursuant to HRCP Rule 60(b) is appealable, where the underlying

ruling from which the party sought Rule 60(b) relief was not

appealable. We hold that such an order is not appealable. 

I. Background

This case arises from a dispute over a flag lot parcel

of land in Puko#o, located on the Island of Moloka#i, County of

Maui, State of Hawai#i (Parcel 27 or the “parcel”). 

On February 13, 2009, Respondent/Plaintiff-Appellee

Zachary Fred Bailey alleged in an amended complaint that

Petitioner/Defendant-Appellant Burrelle David Duvauchelle,

Trustee Under Duvauchelle Family Trust U/D/T Dated August 14,

2008 (hereinafter, “Duvauchelle”), was violating Bailey’s “right,

title and interest in and to, and use, possession, occupancy,

control, and full enjoyment” of Parcel 27, including the flagpole

portion. Bailey alleged that Duvauchelle, owner of an adjacent

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parcel (Parcel 59), “unlawfullly, trespassed, ousted and

prevented Bailey’s access to Parcel 27, improperly used the

flagpole portion of Parcel 27, and appropriated the flagpole

portion of Parcel 27 for [his] own private use and purpose.” 

Bailey alleged that he was the fee simple owner of

Parcel 27, including the flag pole portion. Specifically, Bailey

alleged that on December 11, 1990, Laurence H. Dorcy, Jr.,

conveyed Parcel 27 to Bailey by warranty deed. Bailey also

alleged that on October 2, 1984, William F. Petersen and Mary

Kekahaualani Petersen (collectively, the “Petersens”) conveyed

Parcel 27 to Dorcy by agreement of sale, and on December 14,

1990, the Petersens conveyed Parcel 27 to Dorcy by warranty deed. 

In the amended complaint, Bailey named Dorcy as a defendant, but

did not name the Petersens. 

Bailey raised eight claims for relief, as follows: 

ouster (Count I), declaratory relief (Count II), temporary

restraining order/injunctive relief (Count III), appropriation

(Count IV), trespass (Count V), easement by necessity (Count VI),

breach of warranty against Dorcy (Count VII), and punitive

damages (Count VIII). 

With respect to Count II, Bailey alleged, in pertinent

part, that:

51. Bailey is entitled to a judicial determination of

his rights in and to all of Parcel 27, including the

flagpole portion; to wit, that: (a) Bailey is the

rightful owner of Parcel 27, including the flagpole

portion; (b) Defendants Duvauchelle have no right,

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title or interest in or to any portion of Parcel 27,

including the flagpole portion; and (c) Defendants

Duvauchelle’s acts and omissions constitute an

unlawful, improper and unreasonable interference with

Bailey’s ownership, use, possession, occupancy,

development and full enjoyment of Parcel 27. This

determination is necessary and appropriate to

ascertain the rights, duties and obligations of

Defendants Duvauchelle and Bailey.

Dorcy’s answer to Bailey’s amended complaint contained

a third-party complaint against Mary Petersen for breach of

warranty, which the Circuit Court of the Second Circuit (circuit

court) later dismissed for lack of service.1

After numerous filings by the parties, the circuit

court entered orders granting Bailey’s motions for summary

judgment regarding record title and adverse possession, which

related specifically to Bailey’s claim for declaratory relief in

Count II. 

On October 25, 2010, the circuit court entered a final

judgment in favor of Bailey on Count II (declaratory relief). 

The circuit court declared that Bailey was “the rightful owner in

fee simple” of Parcel 27, including the flag pole portion;

Duvauchelle did “not own or have any legal or equitable right,

title or interest to any portion of Parcel 27, including the flag

pole portion by deed, devise or adverse possession”; and Bailey

was entitled to “immediate and exclusive use, right and

possession of all of Parcel 27[.]” The circuit court further

stated “[t]here is no just reason for delay in the entry of a

The Honorable Joel E. August presided. 1

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judgment with respect to [Count II] as it fully and finally

resolves the question of title to and ownership of Parcel 27 and

the flag pole portion.”2

Duvauchelle appealed, and the Intermediate Court of

Appeals (ICA) affirmed and entered a judgment on appeal on

August 14, 2012. Duvauchelle did not seek certiorari review. 

Subsequently, Bailey attempted to obtain a stipulation

from Duvauchelle for voluntary dismissal of the remaining claims

for relief, i.e., Counts I, and III through VIII, pursuant to

HRCP Rule 41(a)(1), but was unsuccessful. Bailey next moved for 3

HRCP Rule 54(b) (2000) provides as follows: 2

When more than one claim for relief is presented in an

action, whether as a claim, counterclaim, cross-claim,

or third-party claim, or when multiple parties are

involved, the court may direct the entry of a final

judgment as to one or more but fewer than all of the

claims or parties only upon an express determination

that there is no just reason for delay and upon an

express direction for the entry of judgment. In the

absence of such determination and direction, any order

or other form of decision, however designated, which

adjudicates fewer than all the claims or the rights

and liabilities of fewer than all the parties shall

not terminate the action as to any of the claims or

parties, and the order or other form of decision is

subject to revision at any time before the entry of

judgment adjudicating all the claims and the rights

and liabilities of all the parties.

(Emphases added). 

HRCP Rule 41(a)(1) (2012) provides: 3

An action may be dismissed by the plaintiff without

order of court (A) by filing a notice of dismissal at

any time before the return date as provided in Rule

12(a) or service by the adverse party of an answer or

of a motion for summary judgment, or (B) by filing a

stipulation of dismissal signed by all parties who

have appeared in the action. Unless otherwise stated

in the notice of dismissal or stipulation, the

(continued...)

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a court order of voluntary dismissal of those claims pursuant to

HRCP Rule 41(a)(2) (Motion for Order of Voluntary Dismissal). 4

After an April 18, 2013 hearing on the Motion for Order

of Voluntary Dismissal, the circuit court entered an order 5

granting the Motion for Order of Voluntary Dismissal on June 26,

2013. 

On July 16, 2013, the circuit court entered a purported

final judgment on the Motion for Order of Voluntary Dismissal,

which stated as follows:

In accordance with Rule 58 of the Hawai#i Rules

(...continued) 3

dismissal is without prejudice, except that a notice

of dismissal operates as an adjudication upon the

merits when filed by a plaintiff who has once

dismissed in any court of the United States, or of any

state, territory or insular possession of the United

States an action based on or including the same claim.

(Emphases added). 

HRCP Rule 41(a)(2) (2012) provides: 4

Except as provided in paragraph (1) of this

subdivision of this rule, an action shall not be

dismissed at the plaintiff’s instance save upon order

of the court and upon such terms and conditions as the

court deems proper. If a counterclaim has been

pleaded by a defendant prior to the service upon that

defendant of the plaintiff’s motion to dismiss, the

action shall not be dismissed against the defendant’s

objection unless the counterclaim can remain pending

for independent adjudication by the court. Unless

otherwise specified in the order, a dismissal under

this paragraph is without prejudice.

(Emphasis added).

The Honorable Rhonda I.L. Loo presided from that point forward. 5

At the hearing, Duvauchelle, appearing pro se, stated that he

opposed the Motion for Order of Voluntary Dismissal because he planned to file

a Rule 60(b) motion to present new evidence that would void the October 25,

2010 judgment. 

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of Civil Procedure, and pursuant to the Order Granting

Plaintiff Zachary Fred Bailey’s Motion for Order of

Voluntary Dismissal With Prejudice the First Claim for

Relief, and the Third Through Eighth Claims for Relief

of Plaintiff’s First Amended Complaint, filed

February 13, 2009, Filed March 20, 2013 (“Order of

Dismissal”), filed herein, which dismissed the First

Claim for Relief, and the Third through Eighth Claims

for Relief with prejudice, those being the only

remaining claims in the First Amended Complaint, filed

by Plaintiff Zachary Fred Bailey on February 13, 2009,

IT IS ORDERED, ADJUDGED AND DECREED that Final

Judgment is hereby entered on the Order of Dismissal. 

No other claims, parties or issues remain in this

case.

Duvauchelle appealed from the July 16, 2013 judgment,

and on January 15, 2014, the ICA entered an order dismissing the

appeal for lack of appellate jurisdiction (First Dismissal

Order). The ICA held that the July 16, 2013 judgment did “not

satisfy the requirements for an appealable final judgment” under

Hawai#i Revised Statutes (HRS) § 641-1(a), HRCP Rule 58, and the 6 7

holding in Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai#i

115, 869 P.2d, 1334 (1994) (per curiam). As discussed in further

detail below, Jenkins set forth specific requirements for appeals

HRS § 641-1(a) (Supp. 2014) provides, as it did at the time of 6

Duvauchelle’s appeal, that “[a]ppeals shall be allowed in civil matters from

all final judgments, orders, or decrees . . . .”

HRCP Rule 58 (2010) provides: 7

Unless the court otherwise directs and subject to the

provisions of Rule 54 of these rules and Rule 23 of

the Rules of the Circuit Courts, the prevailing party

shall prepare and submit a proposed judgment. The

filing of the judgment in the office of the clerk

constitutes the 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.

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from circuit court rulings. Jenkins, 76 Hawai#i at 119, 869 P.2d

at 1338. 

The ICA first concluded that the July 16, 2013 judgment

did not need to resolve Count II (declaratory relief) because the

circuit court entered a HRCP Rule 54(b) certified judgment with

regard to that count on October 25, 2010. The ICA next concluded

that, nevertheless, the July 16, 2013 judgment was required to

but did not “resolve all remaining claims in the case” because

the judgment did not: (1) “expressly enter judgment in favor of

or against the appropriate parties on [Counts I, and III through

VIII]” or “expressly dismiss those claims”; (2) “address, much

less resolve” claims against the third parties, i.e., Dorcy or

Mary Petersen; or, alternatively, (3) contain the language

necessary for HRCP Rule 54(b) certification. 

Duvauchelle did not seek certiorari review. Further,

there is no indication in the record that after the ICA’s First

Dismissal Order, the circuit court amended, or that the parties

requested that the circuit court amend, the circuit court’s

July 16, 2013 judgment so as to make it appealable.

On April 3, 2014, Duvauchelle moved to vacate the

July 16, 2013 judgment and June 26, 2013 order pursuant to HRCP

Rule 60(b)(1)-(4) (Rule 60(b) Motion). Duvauchelle argued that 8

HRCP Rule 60(b) (2006) provides: 8

(continued...)

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the circuit court “reversibly erred dismissing the remainder of

[Bailey’s] claims where Duvauchelle was in the process of moving

to vacate the [October 25, 2010] final judgment based on newly

discovered evidence proving the judgment was void.” Duvauchelle

appeared to argue that the circuit court’s dismissal of Counts I,

and III through VIII with prejudice was error because it

precluded Duvauchelle from moving to vacate the October 25, 2010

judgment, pertaining to Count II (declaratory relief), based on

newly discovered evidence. Bailey alleged that he intended to

(...continued) 8

On motion and upon such terms as are just, the court

may relieve a party or a party’s legal representative

from a final judgment, order, or proceeding for the

following reasons: (1) mistake, inadvertence,

surprise, or excusable neglect; (2) newly discovered

evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule

59(b); (3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party; (4) the judgment is

void; (5) the judgment has been satisfied, released,

or discharged, or a prior judgment upon which it is

based has been reversed or otherwise vacated, or it is

no longer equitable that the judgment should have

prospective application; or (6) any other reason

justifying relief from the operation of the judgment. 

The motion shall be made within a reasonable time, and

for reasons (1), (2), and (3) not more than one year

after the judgment, order, or proceeding was entered

or taken. A motion under this subdivision (b) does

not affect the finality of a judgment or suspend its

operation. This rule does not limit the power of a

court to entertain an independent action to relieve a

party from a judgment, order, or proceeding, or to set

aside a judgment for fraud upon the court. Writs of

coram nobis, coram vobis, audita querela, and bills of

review and bills in the nature of a bill of review,

are abolished, and the procedure for obtaining any

relief from a judgment shall be by motion as

prescribed in these rules or by an independent action.

(Emphases added). 

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introduce “new survey evidence [that] came to light only after

the [ICA] decided this case,” which would establish that Bailey’s

survey of Parcel 27 was “defective” and that “mistakes [were]

made on the boundaries and misrepresentation made on the meets

[sic] and bounds of the disputed properties.” Duvauchelle did

not request that the circuit court amend the July 16, 2013

judgment to be appealable, in accordance with the ICA’s First

Dismissal Order. 

In opposition, Bailey first argued that Duvauchelle was

“time-barred” by HRCP Rule 60(b) from challenging the October 25,

2010 final judgment. Bailey contended that Duvauchelle’s time to

file a Rule 60(b)(2) (new evidence) motion to vacate the

October 25, 2010 final judgment had expired on October 25, 2011.9

Bailey next argued that the ICA’s affirmance of the

October 25, 2010 final judgment in its August 14, 2012 judgment

on appeal was “the law of the case.” (Initial capitalizations

omitted). Bailey contended that the October 25, 2010 final

judgment and August 13, 2012 judgment on appeal established that

“(1) Bailey is the fee simple owner of Parcel 27, including the

flag pole portion, and (2) the Duvauchelles had not acquired

Under HRCP Rule 60(b), motions based on “(1) mistake, 9

inadvertence, surprise, or excusable neglect; (2) newly discovered evidence

which by due diligence could not have been discovered in time to move for a

new trial under Rule 59(b); [and] (3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse

party,” must be made “within a reasonable time” and “not more than one year

after the judgment, order, or proceeding was entered or taken.” 

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title to the flag pole portion by adverse possession.” Bailey

contended that although a trial court is “free to hear” a Rule

60(b) motion, it must accord deference to the rulings of the

appellate court. 

Bailey also argued that “Duvauchelle’s purported ‘new

evidence’ is insufficient to warrant [HRCP] Rule 60(b)(2) relief”

to vacate either the October 25, 2010 final judgment or the

July 16, 2013 judgment. (Initial capitalizations omitted). 

Bailey contended that relief under Rule 60(b)(2) was “timebarred” and that Duvuachelle’s purported new evidence, i.e., “a

summary of various, previously 0used surveys, . . . deeds, and

maps” was “really belated ‘expert’ opinion that Duvauchelle could

have obtained years ago.” 

Finally, Bailey argued that relief under HRCP Rules

60(b)(1) (mistake, inadvertence, surprise, or excusable neglect)

and 60(b)(3) (fraud, misrepresentation, or other misconduct of an

adverse party) was “time-barred,” and that in any event, Rules

60(b)(1), 60(b)(3), and 60(b)(4) (void judgment) were

inapplicable. 

In reply, Duvauchelle argued that the Rule 60(b) Motion

was “not tardy, as the judgment was filed July 16, 2013 and the

Order filed June 26, 2013”; the law of the case doctrine was

inapplicable because Duvauchelle had “newly discovered evidence

which [would] change the result”; Duvauchelle’s new evidence

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satisfied the “new-evidence rules”; Rules 60(b)(1) (mistake,

inadvertence, surprise, or excusable neglect) and 60(b)(4) (void

judgment) were applicable; and “the judgment was obtained by

illegitimate means and basically a fraud on the Court.” 

After a May 1, 2014 hearing on the Rule 60(b) Motion,

the circuit court entered an order denying the motion on May 14,

2014. 

Duvauchelle appealed to the ICA, and on October 10,

2014, the ICA entered an order dismissing the appeal for lack of

appellate jurisdiction (Second Dismissal Order). The ICA noted

that under Ditto v. McCurdy, 103 Hawai#i 153, 80 P.3d 974 (2003),

post-judgment orders are generally appealable without entry of a

separate judgment pursuant to HRCP Rule 58 and Jenkins, 76

Hawai#i 115, 860 P.2d 1334. The ICA concluded, however, that the

Order re Rule 60(b) Motion was not appealable because the circuit

court had not entered a valid final judgment on the underlying

claims at issue (Counts I, and III through VIII). 

Referencing its First Dismissal Order, the ICA

concluded that neither the July 16, 2013 judgment nor the

June 26, 2013 order constituted an appealable final judgment and

therefore, the Order re Rule 60(b) Motion was “interlocutory” and

not appealable. 

The ICA concluded that because there was no valid final

judgment on Counts I, and III through VIII, when Duvauchelle

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submitted the Rule 60(b) Motion, “he was not actually invoking

the circuit court’s authority under HRCP Rule 60(b) to grant

relief from a judgment, but, instead, . . . was invoking the

circuit court’s inherent authority to revise any and all

interlocutory orders prior to the entry of a judgment.” 

The ICA noted that in the federal courts, the test for

determining whether a judgment is final for purposes of seeking

relief under Federal Rules of Civil Procedure (FRCP) Rule 60(b)

is usually the same as the test for determining whether a

judgment is final for purposes of a direct appeal. The ICA cited

to United States v. Martin, 226 F.3d 1042 (9th Cir. 2000), in

which the United States Court of Appeals for the Ninth Circuit

explained that “[FRCP] Rule 60(b) . . . applies only to motions

attacking final, appealable orders[.]” Id. at 1048 n.8. 

Finally, the ICA stated that the Order re Rule 60(b)

Motion is “an interlocutory order that is potentially eligible

for appellate review when and if a party asserts a timely appeal

from the entry of a future appealable final judgment that

resolves all remaining claims in the case” because under Ueoka v.

Szymanski, 107 Hawai#i 386, 114 P.3d 892 (2005), appealing from a

valid final judgment brings up all interlocutory orders that

otherwise would not be directly appealable. 

Duvauchelle timely sought certiorari review, presenting

the following question:

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Whether the ICA gravely erred and the magnitude of

such error or inconsistency dictates the need for

further appeal where the ICA dismissed Duvauchelle’s

appeal based on lack of jurisdiction where the Circuit

Court filed a Final Judgment on all of the Bailey

claims against Duvauchelle holding no other claims,

parties, or issues remain in the case and denied

Duvauchelle’s post-judgment motions to vacate said

judgment. 

II. Standard of Review

“The existence of jurisdiction is a question of law

that [this court] review[s] de novo under the right/wrong

standard.” Amantiad v. Odum, 90 Hawai#i 152, 158, 977 P.2d 160,

166 (1999). 

III. Discussion

The question before us is whether an order deciding a

motion that was purportedly filed pursuant to HRCP Rule 60(b) is

appealable, where the underlying ruling from which the party

sought Rule 60(b) relief was not appealable. We hold that such

an order is not appealable. 

HRS § 641-1(a) provides that “[a]ppeals shall be

allowed in civil matters from all final judgments, orders, or

decrees . . . .” (Emphasis added). 

HRCP Rule 54(a) (2000) defines “judgment” as follows: 

“‘Judgment’ as used in these rules includes a decree and any

order 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.” (Emphases added). 

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HRCP Rule 54(b), which applies to judgments involving

multiple claims or multiple parties, provides as follows:

When more than one claim for relief is presented in an

action, whether as a claim, counterclaim, cross-claim,

or third-party claim, or when multiple parties are

involved, the court may direct the entry of a final

judgment as to one or more but fewer than all of the

claims or parties only upon an express determination

that there is no just reason for delay and upon an

express direction for the entry of judgment. In the

absence of such determination and direction, any order

or other form of decision, however designated, which

adjudicates fewer than all the claims or the rights

and liabilities of fewer than all the parties shall

not terminate the action as to any of the claims or

parties, and the order or other form of decision is

subject to revision at any time before the entry of

judgment adjudicating all the claims and the rights

and liabilities of all the parties.

(Emphasis added).

HRCP Rule 60(b), which provides for post-judgment

relief, states:

On motion and upon such terms as are just, the court

may relieve a party or a party’s legal representative

from a final judgment, order, or proceeding for the

following reasons: (1) mistake, inadvertence,

surprise, or excusable neglect; (2) newly discovered

evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule

59(b); (3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party; (4) the judgment is

void; (5) the judgment has been satisfied, released,

or discharged, or a prior judgment upon which it is

based has been reversed or otherwise vacated, or it is

no longer equitable that the judgment should have

prospective application; or (6) any other reason

justifying relief from the operation of the judgment. 

The motion shall be made within a reasonable time, and

for reasons (1), (2), and (3) not more than one year

after the judgment, order, or proceeding was entered

or taken. A motion under this subdivision (b) does

not affect the finality of a judgment or suspend its

operation. This rule does not limit the power of a

court to entertain an independent action to relieve a

party from a judgment, order, or proceeding, or to set

aside a judgment for fraud upon the court. Writs of

coram nobis, coram vobis, audita querela, and bills of

review and bills in the nature of a bill of review,

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are abolished, and the procedure for obtaining any

relief from a judgment shall be by motion as

prescribed in these rules or by an independent action.

(Emphases added). 

HRCP Rule 58, the separate judgment rule, provides

that:

Unless the court otherwise directs and subject to the

provisions of Rule 54 of these rules and Rule 23 of

the Rules of the Circuit Courts, the prevailing party

shall prepare and submit a proposed judgment. The

filing of the judgment in the office of the clerk

constitutes the 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.

(Emphasis added).

In Jenkins, this court interpreted the requirements of

HRS § 641-1(a), and HRCP Rules 54 and 58, and explicitly stated

that the opinion was “intended to establish bright line rules so

there will be little doubt in most cases about when an appeal may

be taken.” Jenkins, 76 Hawai#i at 119, 869 P.2d at 1338. 

Accordingly, this court held as follows:

(1) An appeal may be taken from circuit court orders

resolving claims against parties 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 58; (2) 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) must

(i) identify the claims for which it is entered, and

(ii) dismiss any claims not specifically identified;

(3) if the 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 HRCP 54(b); and (4) an appeal from

any judgment will be dismissed as premature if the

judgment does not, on its face, either resolve all

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claims against all parties or contain the finding

necessary for certification under HRCP 54(b).[10]

Id. at 119, 869 P.2d at 1338 (emphasis in original); see also

Carlisle v. One (1) Boat, 119 Hawai#i 245, 254, 195 P.3d 1177,

1186 (2008) (“[B]ased on Jenkins and HRCP Rule 58, an order is

not appealable, even if it resolves all claims against the

parties, until it has been reduced to a separate judgment.”). 

The purpose of adopting the bright line rule in Jenkins

was to relieve the appellate courts of “the burden of searching a

voluminous record for evidence of finality . . . .” Jenkins, 76

Hawai#i at 119, 869 P.2d at 1338. This court considered and

rejected the approach utilized by federal courts, under which

parties can waive the FRCP Rule 58 separate judgment requirement. 

Id. at 118, 119, 869 P.2d at 1337, 1338. 

Subsequently, in Ditto, this court held that “the

separate judgment requirement articulated in Jenkins is

This court also provided model language for complying with these 10

“bright line rules,” as follows:

For example: “Pursuant to the jury verdict entered on

(date), judgment in the amount of $ __ is hereby

entered in favor of Plaintiff X and against Defendant

Y upon counts I through IV of the complaint.” A

statement that declares “there are no other

outstanding claims” is not a judgment. If the circuit

court intends that claims other than those listed in

the judgment language should be dismissed, it must say

so; for example, “Defendant Y’s counterclaim is

dismissed,” or “Judgment upon Defendant Y’s

counterclaim is entered in favor of

Plaintiff/Counter–Defendant Z,” or “all other claims,

counterclaims, and cross-claims are dismissed.”

Jenkins, 76 Hawai#i at 120 n.4, 869 P.2d at 1339 n.4.

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inapposite to the post-judgment context.” Ditto, 103 Hawai#i at

158, 80 P.3d at 979. This court further explained:

Clearly, the rule in Jenkins--to wit, that circuit

court orders resolving claims against parties must

generally be reduced to a judgment and the judgment

must be entered in favor of or against the appropriate

parties pursuant to HRCP Rule 58 before an appeal may

be taken--is limited to circuit court orders disposing

of claims raised in a circuit court complaint.

Id. at 159, 80 P.3d at 980 (emphasis in original). 

Ditto held that “[a]n order denying a motion for postjudgment relief under HRCP 60(b) is an appealable final order

under HRS § 641–1(a).” Id. at 160, 80 P.3d at 981. 11

Accordingly, the circuit court’s order denying the plaintiff’s

October 9, 2000 Rule 60(b) motion subsequent to entry of judgment

“was an appealable final order . . . .” Id. at 155, 160, 80 P.3d

at 981, 976.

Although Ditto held that a circuit court’s ruling on a

post-judgment motion, including a HRCP Rule 60(b) motion, is

appealable without entry of a Rule 58 separate judgment, Ditto 12

did not determine whether an order deciding a motion purportedly

filed pursuant to HRCP Rule 60(b) is appealable, where the

Specifically, under Ditto, “a post-judgment order is an appealable

11

final order under HRS 641-1(a) if the order ends the proceedings, leaving

nothing further to be accomplished. Correlatively, an order is not final if

the rights of a party involved remain undetermined or if the matter is

retained for further action.” Ditto, 103 Hawai#i at 157, 80 P.3d at 978

(citation omitted). 

Indeed, Ditto held that entering a separate judgment on the post- 12

judgment order at issue was “superfluous” and that the time to appeal started

upon entry of the post-judgment order, not upon later entry of the unnecessary

separate judgment. Ditto, 103 Hawai#i at 159-60, 80 P.3d at 980-81. 

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underlying ruling from which the party sought Rule 60(b) relief

was not appealable. 

Later, in Cho v. State, 115 Hawai#i 373, 382, 168 P.3d

17, 26 (2007), this court held that a HRCP Rule 60(b) motion “‘is

authorized only in situations involving final judgments.’” Id. at

382, 168 P.3d at 26 (2007) (citing Crown Properties, Inc. v. Fin.

Sec. Life Ins. Co., 6 Haw. 105, 112, 712 P.2d 504, 509 (App.

1985)); see also Tradewinds Hotel, Inc. v. Cochran, 8 Haw. App.

256, 262, 799 P.2d 60, 65 (1990) (“Rule 60(b) applies to motions

seeking to amend final orders in the nature of judgments. . . . 

The order denying Plaintiff’s original motion to enjoin

Defendant’s alleged unauthorized practice of law was not a final

judgment or order.”). This court further “defined ‘final order’

to mean ‘an order ending the proceedings, leaving nothing further

to be accomplished.’” Cho, 115 Hawai#i at 383, 168 P.3d at 27

(citing Bobalcos v. Kapiolani Med. Ctr. for Women & Children, 89

Hawai#i 436, 439, 974 P.2d 1026, 1029 (1999)). 

Cho held that the trial court’s order imposing

discovery sanctions was “merely interlocutory” because the order

was “not a final order” and because a “final judgment or order

had not yet been entered at the time the State filed its

[purported Rule 60(b)] motion for reconsideration.” Cho, 115

Hawai#i at 383, 168 P.3d at 27. “Accordingly, relief pursuant to

HRCP Rule 60(b) was not available[.]” Id. This court further

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concluded that regardless, the trial court had “inherent power”

to reconsider the order imposing discovery sanctions because “the

trial court has inherent power to reconsider interlocutory

orders.” Id. at 383-84, 168 P.3d at 27-28. Cho, however, did

not decide whether the principles of finality set forth in

Jenkins were applicable to judgments underlying HRCP Rule 60(b)

motions.

We now hold that relief under HRCP Rule 60(b) requires

an underlying judgment that comports with the principles of

finality set forth in Jenkins. Absent an underlying appealable

final judgment, the circuit court’s rulings on a purported Rule

60(b) motion are interlocutory and not appealable until entry of

such a judgment. Cho, 115 Hawai#i at 383-84, 168 P.3d at 27-28;

see Ueoka v. Szymanski, 107 Hawai#i 386, 396, 114 P.3d 892, 902

(2005) (“An appeal from a final judgment ‘brings up for review

all interlocutory orders not appealable directly as of right

which deal with issues in this case.’”) (quoting Pioneer Mill Co.

v. Ward, 34 Haw. 686, 694 (Haw. Terr. 1938)). Correlatively,

until entry of an appealable final judgment, the timing

requirements that would otherwise apply to HRCP Rule 60(b)

motions are inapplicable. See Carter v. Beverly Hills Savings &

Loan Ass’n, 884 F.2d 1186, 1189 (9th Cir. 1989) (stating, “the

time requirements of Rule 60(b) only commence running upon

‘entry’ of final judgment that complies with Rule 58,” and “[i]t

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follows that where a final judgment complying with Rule 58 was

never entered, a post-judgment motion may not be deemed

untimely.”).

This approach comports with the plain language of HRCP

Rules 54 and 60(b), and 58. Rule 54(a) defines “judgment” for

purposes of the rules as “any order from which an appeal lies.” 

(Emphasis added). Rule 54(b) requires “entry of final judgment”

before a party may appeal from a ruling involving multiple claims

or multiple parties. (Emphasis added). Similarly, Rule 60(b)

provides that “[o]n motion and upon such terms as are just, the

court may relieve a party or a party’s legal representative from

a final judgment, order, or proceeding.” (Emphasis added). Rule

58 states that “[e]very judgment shall be set forth on a separate

document.” (Emphasis added). There is nothing in the plain

language of the rules to indicate that a “judgment” for purposes

of an appeal under Rule 54 and Rule 58 differs from a “judgment”

for purposes of seeking relief under Rule 60(b). 

In addition, federal case law also supports this

approach. See United States v. Martin, 226 F.3d 1042, 1048 n.8

(9th Cir. 2000) (“Rule 60(b), like Rule 59(e), applies only to

motions attacking final, appealable orders.”); United States v.

Baus, 834 F.2d 1114, 1119 (1st Cir. 1987) (“The stated test for

finality under Rule 60(b), like that of Rule 54, is whether the

judgment is appealable.”); see also 12 James W.M. Moore, et al.,

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Moore’s Federal Practice § 60.23 at 60-81 & n.6 (3d ed. 2014)

(stating that “[t]he standard test for whether a judgment is

‘final’ for Rule 60(b) purposes is usually stated to be whether

the judgment is sufficiently ‘final’ to be appealed,” and

“‘[f]inality’ for Rule 60(b) purposes is usually identical to

‘finality’ required for appeal”); id. § 60.03 at 60-25 (“[A]

party who contemplates filing a Rule 60(b) motion in litigation

that involves multiple claims or multiple parties must consult

Rule 54(b) to determine whether the judgment or order from which

relief is sought is ‘final.’”).

Further, interpreting a “judgment” for purposes of

seeking relief under HRCP Rule 60(b) differently from a

“judgment” for purposes of an appeal would complicate appellate

procedure and create the types of problems that Jenkins was

intended to eliminate. Similar to Jenkins, this decision is

intended to “simplify and make certain the matter of

appealability.” Jenkins, 76 Hawai#i at 118, 869 P.2d at 1337. 

Without an underlying appealable final judgment, the

appellate court would bear the “burden of searching the often

voluminous circuit court record,” id. at 119, 869 P.2d at 1334,

to determine whether a HRCP Rule 60(b) motion was timely filed,

i.e., “within a reasonable time” or “not more than one year”

after the judgment. Relatedly, the appellate court would be

tasked with deciphering the nature and scope of the circuit

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court’s underlying non-final ruling for purposes of reviewing the

merits of an appeal from a ruling on a purported Rule 60(b)

motion. 

In sum, relief under HRCP Rule 60(b) requires an

underlying judgment that comports with the principles of finality

set forth in Jenkins. Therefore, the ICA did not err in

concluding that it lacked appellate jurisdiction to review the

Order re Rule 60(b) Motion.

This case illustrates the problems that can arise when

the requirements of finality set forth in Jenkins are not met. 

The circuit courts are required to render appealable final

judgments that comport with the requirements of Jenkins, and

should resolve any material deficiency in a judgment that is

brought to their attention. Where a party requests that the

circuit court enter an appealable judgment after an appellate

court dismisses an appeal for lack of appellate jurisdiction

based on non-compliance with Jenkins, and the circuit court

intended its ruling to be final and appealable, the circuit court

must enter an appealable judgment. Also, upon learning of such 13

a dismissal and determining that there are no further proceedings

in the appellate courts, the circuit court should consider

appropriate steps to correct the deficiency, including directing

If the circuit court denies a party’s request to amend such 13

judgment, the party may seek relief in this court. See Hawai#i Rules of

Appellate Procedure Rule 21 (2010).

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the prevailing party to prepare and submit a proposed appealable

final judgment. See HRCP Rule 58. Lastly, we emphasize that the

parties should assist the courts in ensuring that appealable

final judgments are entered, including when an appellate court

dismisses an appeal on that basis.14

IV. Conclusion

For the foregoing reasons, we affirm the ICA’s

October 10, 2014 “Order Dismissing Appeal for Lack of Appellate

Jurisdiction.” 

R. Steven Geshell

and Hayden Aluli

for petitioner

Jade Lynne Ching

and Melissa M. Uhl

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

Indeed, the lack of a final judgment can have adverse consequences

14

for the parties. As illustrated here, until entry of an appealable final

judgment, a non-final judgment may indefinitely be subject to a purported Rule

60(b) motion. 

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