ORIGINAL PROCEEDING (CIVIL NO. 09-1-1935-08; ICA NO. CAAP-10-0000080)
Electronically Filed Supreme Court SCPW-12-0000350 26-APR-2012 11:05 AM
(By: Nakayama, Acting C.J., Acoba, Duffy, and McKenna, JJ., and Circuit Judge To'oto'o, in place of Recktenwald, C.J., recused)
Upon consideration of petitioners Ronald Hanson and Kathy Hanson's petition for a writ of mandamus and the papers in support, it appears that, as to the actions of the Intermediate Court of Appeals in CAAP-10-0000080: (1) the January 12, 2011 order dismissing petitioners' appeal for lack of jurisdiction was reviewable by this court by application for a writ of certiorari filed pursuant to HRS § 602-59 (Supp. 2010) and HRAP 40.1, but no application was filed; (2) the April 6, 2011 award of attorney's fees and costs was authorized by HRS § 607-14, the Declaration of Covenants, Conditions and Restrictions, Article III, Section 7.02, and HRAP 39(a), and petitioners fail to demonstrate that the amount of fees and costs awarded was unreasonable; and (3) the August 4, 2011 order correctly struck petitioners' motions filed six months after the dismissal of petitioners' appeal.
It further appears that, as to the actions of the respondent circuit judge in Civil No. 09-1-1935: (1) entry of final judgment pursuant to HRCP 54(b) on some of the parties' claims was within the respondent judge's discretion and the denial of HRCP 54(b) certification was not a flagrant and manifest abuse of discretion, and (2) all orders on all of the parties' motions will be appealable by petitioners upon entry of a final judgment. Therefore, petitioners are not entitled to mandamus relief. See Kema v. Gaddis, 91 Hawaii 200, 204, 982 P.2d 334, 338 (1999) (A writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action. Such writs are not intended to supersede the legal discretionary authority of the lower courts, nor are they intended to serve as legal remedies in lieu of normal appellate procedures. Where a court has discretion to act, mandamus will not lie to interfere with or control the exercise of that discretion, even when the judge has acted erroneously, unless the judge has exceeded his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused to act on a subject properly before the court under circumstances in which it has a legal duty to act.). Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied.
/s/ Simeon R. Acoba, Jr. /s/ James E. Duffy, Jr. /s/ Sabrina S. McKenna /s/ Fa'auuga To'oto'o
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