There is a single question that is key to every appeal filed in Hawaii. Does the appellate court have jurisdiction to consider your appeal? The HSBA Appellate Section’s program at the 2014 Bar Convention included a panel consisting of Intermediate Court of Appeals Chief Judge Craig Nakamura, ICA Staff Attorney Dan Kunkel, and Deputy Attorney General Deirdre Marie-Iha (with the AG’s Appellate Division). The panel offered the following advice and practice pointers on appellate jurisdiction:
- Be wary of filing a premature appeal, the ICA will dismiss the appeal & the party initiating the appeal will have to start over after an appealable final judgment is entered;
- Over 20 years ago, the HAWSCT issued its opinion in Jenkins v. Cades Schutte Fleming & Wright, 76 Haw. 115, 869 P.2d 1334 (1994), but the ICA still sees numerous appeals from judgments that do not comply with Jenkins;
- The time for appeal is jurisdictional, therefore you must file a timely appeal or the court is not permitted to consider the appeal on its merits;
- The filing of the record on appeal is the key date under Jenkins to ensure that a final judgment is entered;
- A Jenkins judgment must on its face resolve all claims and parties;
- There is no real incentive for any party but the one who did not prevail at the trial court to ensure the final judgment complies with Jenkins;
- For interlocutory orders, you must obtain a Rule 54(b) certification;
- One way to ensure a judgment complies with the final judgment rule is to include a clause at the end of the judgment that dismisses any claims not already dismissed;
- If you file an appeal, but are unsure the court has jurisdiction, consider filing a “Motion to Determine Jurisdiction”;
- Filing some kind of motion is key because unless you file a motion you have not actually asked the court do to anything – thus, for example, merely filing a Statement Contesting Jurisdiction (if you are the appellee) may not be sufficient to get the court to immediately act on the jurisdictional issue.
Mahalo to the panelists for providing us with this advice and much more!