Reset A A Font size: Print

Intermediate Court of Appeals of Hawai‘i.

THOMAS SCHMIDT, Plaintiff-Appellant, v. GARY VICTOR DUBIN; DUBIN LAW OFFICES, Defendants/Third-Party Plaintiffs/Third-Party Counterclaim Defendants-Appellees,

JOHN AND MARY DOES 1-10; DOE CORPORATIONS; PARTNERSHIPS AND OTHER ENTITIES 1-10, Defendants. GARY VICTOR DUBIN; DUBIN LAW OFFICES, Defendants/Third-Party Plaintiffs/Third-Party Counterclaim Defendants-Appellees, v. JOHN S. CARROLL, Third-Party Defendant/Third-Party Counterclaim Plaintiff-Appellee.

NO. CAAP-17-0000042

Decided: June 29, 2017

(By: Leonard, Presiding Judge, Reifurth and Ginoza, JJ.)


Upon review of the record in CAAP-17-0000042, it appears that this court lacks appellate jurisdiction over the appeal. Plaintiff-Appellant Thomas Schmidt (Appellant) appeals pro se from the “Order Granting Defendants Gary Victor Dubin and Dubin Law Offices' Motion for Partial Summary Judgment #1 On All Claims Based on an Alleged Debt, Filed On September 23, 2016” (Order), filed on December 27, 2016, in the Circuit Court of the First Circuit.

The Order granted summary judgment on Appellant's claims for recovery of an alleged debt and/or which are premised upon an alleged debt, and as to legal malpractice, in favor of Defendants-Third Party Plaintiffs-Appellees Gary Victor Dubin and Dubin Law Offices (Dubin).

HRS § 641-1(a) (Repl. 2016) authorizes appeals from final judgments, orders, or decrees from the Circuit Court. Appeals under HRS § 641-1 “shall be taken in the manner ․ provided by the rules of court.” HRS § 641-1 (c). Rule 58 of the Hawai‘i Rules of Civil Procedure (HRCP) requires that “[e]very judgment shall be set forth on a separate document.” The Supreme Court of Hawai‘i has held that “ [a]n appeal may be taken ․ 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 [Rule] 58[.] “ Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai‘i 115, 119, 869 P.2d 1334, 1338 (1994). “Thus, based 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.” Carlisle v. One (1) Boat, 119 Hawai‘i 245, 254, 195 P.3d 1177, 1186 (2008). “An appeal from an order that is not reduced to a judgment in favor or against the party by the time the record is filed in the supreme court will be dismissed.” Jenkins, 76 Hawai‘i at 120, 869 P.2d at 1339 (footnote omitted).

All of the claims have not been resolved or dismissed. Specifically, Dubin's third-party claim against Third-Party Defendant-Appellee John S. Carroll was not adjudicated or dismissed. In addition, no separate judgment on the Order was entered, as required by Jenkins. Therefore, the appeal is premature and this court lacks appellate jurisdiction.

IT IS HEREBY ORDERED that the appeal is dismissed for lack of appellate jurisdiction.

IT IS FURTHER ORDERED that all pending motions for appellate case number CAAP-17-0000042 are dismissed as moot.