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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 03:35 PM* ** FOR PUB LICAT ION I N WES T’S HAWAI # I REPORTS AND PACIFI C REPORTER *** 

### 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. Baile y is entit led t o a j udici al de termi natio n of his r ights in a nd to all of Pa rcel 27, i nclud ing t he flagp ole p ortio n; to wit, that : (a ) Bai ley i s the right ful o wner of Pa rcel 27, i nclud ing t he fl agpol e porti on; ( b) De fenda nts D uvauc helle have no r ight,



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title or i ntere st in or t o anyport ion o f Par cel 2 7, inclu ding the f lagpo le po rtion ; and(c) Defen dants Duvau chell e’s a cts a nd om issio ns co nstit ute a n unlaw ful, impro per a nd un reaso nable inte rfere nce w ith Baile y’s o wners hip, use, posse ssion , occ upanc y, devel opmen t andfull enjo yment of P arcel 27. This deter minat ion i s nec essar y andappr opria te to ascer tain the r ights , dut ies a nd ob ligat ions of Defen dants Duva uchel le an d Bai ley. 

### 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 H onora ble J oel E . Aug ust p resid ed. 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) (200 0) pr ovide s as follo ws: 2

When more than one c laim for r eliefis p resen ted i n an actio n, wh etheras a clai m, co unter claim , cro ss-cl aim, or th ird-p arty claim , or when multi ple p artie s are invol ved, the c ourt may d irect the entryof a fina l judgm ent a s to one o r mor e but fewe r tha n all of t he claim s or parti es on ly up on an expr ess d eterm inati on that there is n o jus t rea son f or de lay a nd up on an expre ss di recti on fo r the entr y of judgm ent. In t he absen ce ofsuchdete rmina tion and d irect ion, any o rder or ot her f orm o f dec ision , how ever desig nated , whi ch adjud icate s few er th an al l the clai ms orthe right s and l iabil ities of f ewer than all t he pa rties shal l not t ermin ate t he ac tion as to any of th e cla ims o r parti es, a nd th e ord er orothe r for m of decis ion i s subje ct to revi sion at an y tim e bef ore t he en try o f judgm ent a djudi catin g all the claim s andthe right s and l iabil ities of a ll th e par ties. (Emph ases added ).

HRCP Rule 41(a) (1) ( 2012) prov ides: 3

An ac tion may b e dis misse d by the p laint iff w ithou t orderof c ourt (A) b y fil ing a noti ce ofdism issal at any t ime b efore the retur n dat e as provi ded i n Rul e 12(a) or s ervic e by the a dvers e par ty ofan a nsweror of a motio n forsumm ary j udgme nt, o r (B) by f ilinga stipu latio n of dismi ssal signe d by all p artie s who have appea red i n the acti on. Unles s oth erwis e sta ted in th e not ice o f dis missa l or stipu latio n, th e (cont inued ...) 

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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 ac corda nce w ith Rule 5 8 of the H awai # i Rul es

(...c ontin ued) 3 dismi ssal is wi thout prej udice , exc ept t hat a noti ce of di smiss al op erate s as an ad judic ation upon the merit s whe n fil ed bya pl ainti ff wh o has once dismi ssed in an y cou rt ofthe Unite d Sta tes, or ofany state , ter ritor y or insul ar po ssess ion o f the Unit ed State s an actio n bas ed on or i nclud ing t he sa me cl aim. (Emph ases added ).

HRCP Rule 41(a) (2) ( 2012) prov ides: 4 Excep t as provi ded i n par agrap h (1) of t his subdi visio n of this rule, an a ction shal l not be dismi ssed at th e pla intif f’s i nstan ce sa ve up on or der of th e cou rt an d upo n suc h ter ms an d con ditio ns as the court deem s pro per. If a coun tercl aim h as be en plead ed bya de fenda nt pr ior t o the serv ice u pon t hat defen dant of th e pla intif f’s m otion to d ismis s, th e actio n sha ll no t be dismi ssed again st th e def endan t’s objec tion unles s the coun tercl aim c an re main pendi ng for i ndepe ndent adju dicat ion b y the cour t. U nless other wise speci fied in th e ord er, a dism issal unde r this parag raph is wi thout prej udice

. (Emph asis added ).

The H onora ble Rhonda I.L. Loo presi ded f rom t hat p oint forwa rd. 5

At th e hea ring, Duva uchel le, a ppear ing p ro se , sta ted t hat h e oppos ed th e Mot ion f or Or der o f Vol untar y Dis missa l bec ause he pl annedto f ile a Rul e 60( b) mo tion to pr esent new evide nce t hat w ould void the O ctobe r 25, 2010 judgm ent. 

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of Ci vil P roced ure, and p ursua nt to the OrderGran ting Plain tiff Zacha ry Fr ed Ba iley’ s Mot ion f or Or der o f Volun tary Dismi ssal With Preju dice the F irst Claimfor Relie f, an d the Thir d Thr ough Eight h Cla ims f or Re lief of Pl ainti ff’s First Amen ded C ompla int, filed Febru ary 1 3, 20 09, F iled March20, 2013 (“Ord er of Dismi ssal” ), fi led h erein , whi ch di smiss ed th e Fir st Claimfor Relie f, an d the Thir d thr ough Eight h Cla ims for R eliefwithprej udice , tho se be ing t he on ly remai ning claim s in the F irst Amend ed Co mplai nt, f iled by Pl ainti ff Za charyFredBail ey on Febr uary 13, 2 009,

IT IS ORDE RED, ADJUD GED AND DE CREEDthat Fina l Judgm ent i s her eby e ntere d on the O rder of Di smiss al 

### . No ot her c laims , par ties or is sues remai n 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 . 201 4) pr ovide s, as it d id at the time of 6 Duvau chell e’s a ppeal , tha t “[a ]ppea ls sh all b e all owed in ci vil m atter s fro m all f inal judgm ents, orde rs, o r dec rees . . . .”

HRCP Rule 58 (2 010) provi des: 7

Unles s the cour t oth erwis e dir ects and s ubjec t to the provi sions of Rule 5 4 of these rule s andRule 23 o f the Rules of th e Cir cuit Court s, th e pre vaili ng pa rty shall prep are a nd su bmit a pro posedjudgment. The filin g of the j udgme nt in the offic e of the c lerk const itute s the entr y of the j udgme nt; a nd th e judgm ent i s not effe ctive befo re su ch en try. The entryof t he ju dgmen t sha ll no t be delay ed fo r the taxin g of costs . Ev ery j udgme nt sh all b e set fort h on a sep arate docu ment. 

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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) (200 6) pr ovide s: 8 (cont inued ...) 

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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

(...c ontin ued) 8 On mo tion and u pon s uch t erms as ar e jus t, th e cou rt may r eliev e a p arty or a party ’s le gal r epres entat ive from a fin al ju dgmen t, or der, or pr oceed ing f or th e follo wing reaso ns: (1) m istak e, in adver tence , surpr ise, or ex cusab le ne glect ; (2) newl y dis cover ed evide nce w hich by du e dil igenc e cou ld no t hav e bee n disco veredin t ime t o mov e fora ne w tri al un der Rule 59(b) ; (3) frau d (wh etherhere tofor e den omina ted intri nsic or ex trins ic), misre prese ntati on, o r oth er misco nduct of a n adv erse party ; (4) the judgm ent i s void; (5) the j udgme nt ha s bee n sat isfie d, re lease d, or di schar ged, or a priorjudgment upon whichit i s basedhas been rever sed o r oth erwis e vac ated, or i t is no lo nger equit able that the j udgme nt sh ould have prosp ectiv e app licat ion; or (6 ) anyothe r rea son justi fyingreli ef fr om th e ope ratio n of the j udgme nt. The m otion shal l be made withi n a r eason able time, and for r eason s (1) , (2) , and(3) not m ore t han o ne ye ar afterthe judgm ent, order , or proce edingwas enter ed or ta ken. A mo tion underthis subd ivisi on (b ) doe s not a ffect the final ity o f a j udgme nt orsusp end i ts opera tion. Thi s rul e doe s not limi t the powe r of a court to e ntert ain a n ind epend ent a ction to r eliev e a partyfroma ju dgmen t, or der, or pr oceed ing, or to set aside a ju dgmen t forfrau d upo n the cour t. W rits of coramnobi s, co ram v obis, audi ta qu erela , andbill s of revie w andbill s in the n ature of a bill of r eview , are a bolis hed, and t he pr ocedu re fo r obt ainin g any relie f fro m a j udgme nt sh all b e by motio n as presc ribedin t hese rules or b y an indep enden t act ion. (Emph ases 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

UnderHRCPRule 60(b ), mo tions base d on “(1) mista ke, 9 inadv erten ce, s urpri se, o r exc usabl e neg lect; (2) newlydisc overe d evi dence whichby d ue di ligen ce co uld n ot ha ve be en di scove red i n tim e to move for a new t rial underRule 59(b ); [a nd] ( 3) fr aud ( wheth er he retof ore d enomi nated intri nsic or ex trins ic), misre prese ntati on, o r oth er mi scond uct o f an adver se party ,” mu st be made “wit hin a reas onabl e tim e” an d “no t mor e tha n one year afterthe judgm ent, order , or proce edingwas enter ed ortake n.” 

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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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Wheth er th e ICAgrav ely e rred and t he ma gnitu de of such erroror i ncons isten cy di ctate s the needfor furth er ap peal where the ICA d ismis sed D uvauc helle ’s appea l bas ed on lackof j urisd ictio n whe re th e Cir cuit Court file d a F inal Judgm ent o n all of t he Ba iley claim s aga inst Duvau chell e hol ding no ot her c laims , parti es, o r iss ues r emain in t he ca se an d den ied Duvau chell e’s p ost-j udgme nt mo tions to v acate said judgm ent. 

### 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 c laim for r eliefis p resen ted i n an actio n, wh etheras a clai m, co unter claim , cro ss-cl aim, or th ird-p arty claim , or when multi ple p artie s are invol ved, the c ourt may d irect the entryof a fina l judgm ent a s to one o r mor e but fewe r tha n all of t he claim s or parti es on ly up on an expr ess d eterm inati on that there is n o jus t rea son f or de lay a nd up on an expre ss di recti on fo r the entr y of judgm ent. In t he absen ce ofsuchdete rmina tion and d irect ion, any o rder or ot her f orm o f dec ision , how ever desig nated , whi ch adjud icate s few er th an al l the clai ms orthe right s and l iabil ities of f ewer than all t he pa rties shal l not t ermin ate t he ac tion as to any of th e cla ims o r parti es, a nd th e ord er orothe r for m of decis ion i s subje ct to revi sion at an y tim e bef ore t he en try o f judgm ent a djudi catin g all the claim s andthe right s and l iabil ities of a ll th e par ties. 

### (Emphasis added).

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

On mo tion and u pon s uch t erms as ar e jus t, th e cou rt may r eliev e a p arty or a party ’s le gal r epres entat ive from a fin al ju dgmen t, or der, or pr oceed ing f or th e follo wing reaso ns: (1) m istak e, in adver tence , surpr ise, or ex cusab le ne glect ; (2) newl y dis cover ed evide nce w hich by du e dil igenc e cou ld no t hav e bee n disco veredin t ime t o mov e fora ne w tri al un der Rule 59(b) ; (3) frau d (wh etherhere tofor e den omina ted intri nsic or ex trins ic), misre prese ntati on, o r oth er misco nduct of a n adv erse party ; (4) the judgm ent i s void; (5) the j udgme nt ha s bee n sat isfie d, re lease d, or di schar ged, or a priorjudgment upon whichit i s basedhas been rever sed o r oth erwis e vac ated, or i t is no lo nger equit able that the j udgme nt sh ould have prosp ectiv e app licat ion; or (6 ) anyothe r rea son justi fyingreli ef fr om th e ope ratio n of the j udgme nt. The m otion shal l be made withi n a r eason able time, and for r eason s (1) , (2) , and(3) not m ore t han o ne ye ar afterthe judgm ent, order , or proce edingwas enter ed or ta ken. A mo tion underthis subd ivisi on (b ) doe s not a ffect the final ity o f a j udgme nt orsusp end i ts opera tion. Thi s rul e doe s not limi t the powe r of a court to e ntert ain a n ind epend ent a ction to r eliev e a partyfroma ju dgmen t, or der, or pr oceed ing, or to set aside a ju dgmen t forfrau d upo n the cour t. W rits of coramnobi s, co ram v obis, audi ta qu erela , andbill s of revie w andbill s in the n ature of a bill of r eview ,



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are a bolis hed, and t he pr ocedu re fo r obt ainin g any relie f fro m a j udgme nt sh all b e by motio n as presc ribedin t hese rules or b y an indep enden t act ion. 

### (Emphases added).

HRCP Rule 58, the separate judgment rule, provides
that:

Unles s the cour t oth erwis e dir ects and s ubjec t to the

provi sions of Rule 5 4 of these rule s andRule 23 o f the Rules of th e Cir cuit Court s, th e pre vaili ng pa rty shall prep are a nd su bmit a pro posedjudgment. The filin g of the j udgme nt in the offic e of the c lerk const itute s the entr y of the j udgme nt; a nd th e judgm ent i s not effe ctive befo re su ch en try. The entryof t he ju dgmen t sha ll no t be delay ed fo r the taxin g of costs . Ev ery j udgme nt sh all b e set fort h on a sep arate docu ment. 

### (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) A n app eal m ay be take n fro m cir cuit court orde rs resol ving claim s aga inst parti es on ly af ter t he or ders have been reduc ed to a ju dgmen t andthe judgm ent h as been enter ed in favo r of and a gains t the appr opria te parti es pu rsuan t to HRCP 58; ( 2) ifa ju dgmen t purpo rts t o be the f inal judgm ent i n a c ase i nvolv ing multi ple c laims or multip le pa rties , the judgment (a) must speci fical ly id entif y the part y or parti es fo r and a gains t who m the judgment is en tered , and(b) must (i) i denti fy th e cla ims f or wh ich i t is enter ed, a nd (ii) dismi ss an y cla ims n ot sp ecifi callyiden tifie d; (3) i f the judgment resol ves f ewer than all c laims again st al l par ties, or r eserv es an y cla im fo r lat er actio n by the c ourt, an a ppeal may be ta ken o nly i f the j udgme nt co ntain s the lang uage neces sary for certi ficat ion u nder HRCP 54(b) ; and(4) an ap peal from any j udgme nt wi ll be dism issedas p remat ure i f the judgm ent d oes n ot, o n its face , eit her r esolv e all



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claim s aga inst all p artie s or conta in th e fin ding neces sary for c ertif icati on un der H RCP 5 4(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 prov ided model lang uage for c omply ing w ith t hese 10 “brig ht li ne ru les,” as f ollow s:

For e xampl e: “ Pursu ant t o the juryverd ict e ntere d on (date ), ju dgmen t in the a mount of $ __ i s her eby enter ed in favo r of Plain tiff X andagai nst D efend ant Y upo n cou nts I thro ugh I V of the c ompla int.” A state ment that decla res “ there are no ot her outst andin g cla ims” is no t a j udgme nt. If th e cir cuit court inte nds t hat c laims othe r tha n tho se li sted in the j udgme nt la nguag e sho uld b e dis misse d, it must say so; f or ex ample , “De fenda nt Y’ s cou nterc laim is dismi ssed, ” or “Judgment upon Defen dant Y’s count ercla im is ente red i n fav or of Plain tiff/ Count er–De fenda nt Z, ” or “all otherclai ms, count ercla ims, and c ross- claim s are dism issed .”
Jenki ns, 7 6 Haw ai # i at 120 n .4, 8 69 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:

Clear ly, t he ru le in Jenk ins-- to wi t, th at ci rcuit court orde rs re solvi ng cl aims again st pa rties must gener ally be re ducedto a judgment and t he ju dgmen t must be en teredin f avor of oragai nst t he ap propr iate parti es pu rsuan t to HRCP Rule 58 be fore an ap peal may be ta ken-- is li mitedto c ircui t cou rt or ders dispo sing of cl aims raise d in a cir cuit court comp laint

. 

### 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. 1 1 

### 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 1 2 

### did not determine whether an order deciding a motion purportedly filed pursuant to HRCP Rule 60(b) is appealable, where the

Speci fical ly, u nder Ditto , “a post- judgm ent o rder is an appe alabl e 11 final orde r und er HR S 641 -1(a) if t he or der e nds t he pr oceed ings, leav ing nothi ng fu rtherto b e acc ompli shed. Cor relat ively , an orderis n ot fi nal i f the r ights of a part y inv olvedrema in un deter minedor i f the matt er is retai ned f or fu rtheracti on.” Ditt o, 10 3 Haw ai # i at 157, 80 P. 3d at 978 (cita tion omitt ed).

Indee d, Di tto h eld t hat e nteri ng a separ ate j udgme nt on the post- 12 judgm ent o rder at is sue w as “s uperf luous ” andthat the time to ap peal start ed upon entryof t he po st-ju dgmen t ord er, n ot up on la ter e ntry of th e unn ecess ary separ ate j udgme nt. Ditto , 103 Hawa i # i at 159-6 0, 80 P.3dat 9 80-81

. 

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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 1 3 

### 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 th e cir cuit court deni es a party ’s re quest to a mend such 13 judgm ent, the p arty may s eek r eliefin t his c ourt. See Hawa i # i Rul es of Appel late Proce dure Rule 21 (2 010). 

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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. 1 4


### 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

Indee d, th e lac k of a fin al ju dgmen t can have adve rse c onseq uence s 14 for t he pa rties . As illu strat ed he re, u ntil entryof a n app ealab le fi nal judgm ent, a non -fina l jud gment may indef inite ly be subj ect t o a p urpor ted Rule 60(b) moti on. 

### -24-