July 16, 2012
SAINGOEN DAVIS, PETITIONER/PLAINTIFF-APPELLANT/CROSS-APPELLEE,
GARY W. VANCIL; MARK VAN PERNIS; AND VAN PERNIS-VANCIL, A LAW CORPORATION, RESPONDENTS/DEFENDANTS-APPELLEES/CROSS-APPELLANTS/ CROSS-CLAIM PLAINTIFF, AND NICHOLLE DAVIS, DEFENDANT/CROSS-CLAIM DEFENDANT.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. CAAP-11-0000999; CIVIL NO. 08-1-352K)
Electronically Filed Supreme Court SCWC-11-0000999 16-JUL-2012
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI,
VACATING ICA ORDER DISMISSING APPEAL AND CROSS-APPEAL FOR LACK OF JURISDICTION, AND REMANDING APPEAL AND CROSS-APPEAL TO ICA (By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ. and Circuit Judge Crandall, assigned by reason of vacancy)
Petitioner/plaintiff-appellant/cross-appellee Saingoen Davis filed a timely application for writ of certiorari on June 7, 2012 to review the intermediate court of appeals' (ICA) May 8, 2012 Order Dismissing Appeal and Cross-Appeal for Lack of Jurisdiction. Petitioner and respondents appealed and cross- appealed the November 21, 2011 Final Judgment entered in Civil No. 08-1-352K. The ICA concluded that the November 21, 2011
Final Judgment did not resolve the Vancil defendants' cross-claim -- and therefore did not resolve all claims of all the parties, as required by Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai#i 115, 119, 869 P.2d 1333, 1338 (1994) -- because: (1) the final paragraph of the judgment declared that the judgment did not dispose of the cross-claim "which may be resurrected" after the appeal of the good faith determination order and (2) the cross-claim was in fact resurrected on February 24, 2012 when the ICA vacated the good faith determination order. However, paragraph 11 of the November 21, 2011 judgment stated that "[the Vancil defendants] cross-claim against Defendant Nicholle . . . was dismissed." The judgment, on its face, resolved the cross- claim, notwithstanding the caveat that the cross-claim "may be resurrected" after the appeal of the good faith determination order. The finality and appealability of the November 21, 2011 judgment was not affected by the subsequent vacatur of the good faith determination order and reinstatement of the cross-claim on February 24, 2012.
Petitioner's application for writ of certiorari is accepted. The ICA's May 8, 2012 Order Dismissing Appeal and
Cross-Appeal for Lack of Jurisdiction is vacated. Petitioner's appeal and respondents' cross-appeal are remanded to the ICA for disposition.
/s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Simeon R. Acoba, Jr. /s/ Sabrina S. McKenna /s/ Virginia L. Crandall
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