Wednesday, July 15, 2020
Hawai'i Free Press

Current Articles | Archives

Monday, January 13, 2014
Hawaii Supreme Court Clarifies "Final, Appealable Order" And Forgay Doctrine
By Robert Thomas @ 10:07 AM :: 3164 Views :: Judiciary

Appellate Nerd Alert: HAWSCT Clarifies "Final, Appealable Order" And Forgay Doctrine

by Robert Thomas, Inverse Condemnation January 13, 2014

If there's one thing that keeps appellate lawyers up at night, it's jurisdictional questions. Too late and you're toast: failing to appeal within the short appellate time frames are usually fatal to your case. Although there's usually no harm in an early filing, it can be awkward when you've teed up a case only to have the court of appeals find some problems and dismiss.

Hawaii appellate nerds know the latter problem as the "Jenkins" or "Cades" issue, after the seminal case reminding us that the sine qua non of civil appellate jurisdiction in most cases is the entry of a final judgment by the trial court disposing of all claims against all parties. See Jenkins v. Cades Schutte Fleming & Wright, 76 Haw. 115, 869 P.2d 1334 (1994).

And by "judgment" the Supreme Court means a separate piece of paper that has the magic words on it. Many a lawyer has been caught up by this when they -- and the trial court -- think there's been a final, appealable judgment entered, but something still remains, at least (not) on paper. Even the best of us. Even after the case was fully briefed and awaiting argument.

Not us, of course. We'd never, ever fall into that trap.

What we're getting at is that we appreciate anything that makes the rules about when you can appeal -- and when you must appeal -- clearer. So we're glad the Hawaii Supreme Court has added Lambert v. Teisina, No. SCWC-12-0001024 (Jan. 10, 2014) to the Hawaii Reports, because it does just that.

The case was a dispute over two parcels on Oahu's north shore. The trial court ultimately ordered partition, but did not dispose of the entire case. You can read the short per curiam opinion for the details. But suffice it to say that as part of its ruling, the trial court ordered one part of one parcel to be partitioned and auctioned.

When one party appealed from this order, the ICA dismissed the case under Jenkins, part way through the briefing. The Hawaii Supreme Court accepted cert, and asked the parties for additional briefing on whether Forgay v. Conrad, 47 U.S. 201 (1848) was applicable, since apparently that case had not been raised in the cert papers. In Forgay, the U.S. Supreme Court held that a non-final order may be immediately appealable if hardship or irreparable injury would result by waiting for final judgment. Although the Hawaii Supreme Court had mentioned Forgay in dictum, it had never said the magic words "we hold that..."

Now it has:

Although narrow in scope and limited in use, the Forgay doctrine permits a direct appeal from a non-final, interlocutory order or decree that commands the immediate transfer of property, where the losing party will be subjected to undue hardship and irreparable injury if appellate review must wait until the final outcome of the litigation. The Forgay doctrine is therefore an appropriate exception to the final judgment requirement in light of the consequences of an order or decree requiring an immediate change in the ownership or possession of real property.

Slip op. at 10-11 (citations omitted).

The court held that a partition order is a decree requiring an immediate change in the ownership or possession of real property, even though it "does not command the immediate execution of the property." Slip op. at 13. It's appealable because it confirms the sale of the land to a trustee, directs a commissioner to convey the property, and orders the current owners to surrender it. Thus, it "effectively terminates" the present owners' rights, "and they will suffer irreparable injury if appellate review is postponed until final judgment." Slip op. at 13-14.

Clarity is good. It helps us sleep nights.

PDF: Lambert v. Teisina, No. SCWC-12-0001024 (Haw. Jan. 10, 2014)

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

808 State Update AM940

ABCDEFG Blog

ACA Signups Hawaii

ACCE

ALEC

Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii

AMVETS-Hawaii

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust 

Build More Hawaiian Homes Working Group

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

ChinaTownWatch.com

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

CSIS Pacific Forum

DAR Hawaii

DeedySupport.com

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii

FIRE

Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Habele.org

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling

HIEC.Coop 

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube

HPACC

Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes

KeyWiki

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii

NARTH

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Hawaiian

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Save Dillingham Airfield

School Choice in Hawaii

SenatorFong.com

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT