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Bailey v. Duvauchelle

Supreme Court of Hawai'i

June 29, 2015

ZACHARY FRED BAILEY, Respondent/Plaintiff-Appellee,
v.
BURRELLE DAVID DUVAUCHELLE, TRUSTEE UNDER DUVAUCHELLE FAMILY TRUST U/D/T DATED AUGUST 14, 2008, Petitioner/Defendant-Appellant

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. (CAAP-14-0000883; CIV. NO. 06-1-0218(1)).

R. Steven Geshell and Hayden Aluli, for petitioner.

Jade Lynne Ching and Melissa M. Uhl, for respondent.

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION

Page 1025

[135 Hawai'i 483] RECKTENWALD, C.J.

In Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i 115, 869 P.2d 1334 (1994) (per curiam), this court set forth principles for determining whether an order or other decision of the circuit court is appealable. Id. at 119, 869 P.2d at 1338. Those principles were rooted in our " policy against piecemeal appeals[,]" and were intended to " simplify and make certain the matter of appealability." Id. at 118-19, 869 P.2d at 1337-38.

This case requires us to determine the applicability of those principles in the context of motions brought under Hawai'i Rules of Civil Procedure (HRCP) Rule 60(b).

Page 1026

Specifically, this case requires us to determine whether an order deciding a motion that was purportedly filed pursuant to HRCP Rule 60(b) is appealable, where the underlying ruling from which the party sought Rule 60(b) [135 Hawai'i 484] relief was not appealable. We hold that such an order is not appealable.

I. Background

This case arises from a dispute over a flag lot parcel of land in Puko'o, located on the Island of Moloka'i, County of Maui, State of Hawai'i (Parcel 27 or the " parcel" ).

On February 13, 2009, Respondent/Plaintiff-Appellee Zachary Fred Bailey alleged in an amended complaint that Petitioner/Defendant-Appellant Burrelle David Duvauchelle, Trustee Under Duvauchelle Family Trust U/D/T Dated August 14, 2008 (hereinafter, " Duvauchelle" ), was violating Bailey's " right, title and interest in and to, and use, possession, occupancy, control, and full enjoyment" of Parcel 27, including the flagpole portion. Bailey alleged that Duvauchelle, owner of an adjacent parcel (Parcel 59), " unlawfullly, trespassed, ousted and prevented Bailey's access to Parcel 27, improperly used the flagpole portion of Parcel 27, and appropriated the flagpole portion of Parcel 27 for [his] own private use and purpose."

Bailey alleged that he was the fee simple owner of Parcel 27, including the flag pole portion. Specifically, Bailey alleged that on December 11, 1990, Laurence H. Dorcy, Jr., conveyed Parcel 27 to Bailey by warranty deed. Bailey also alleged that on October 2, 1984, William F. Petersen and Mary Kekahaualani Petersen (collectively, the " Petersens" ) conveyed Parcel 27 to Dorcy by agreement of sale, and on December 14, 1990, the Petersens conveyed Parcel 27 to Dorcy by warranty deed. In the amended complaint, Bailey named Dorcy as a defendant, but did not name the Petersens.

Bailey raised eight claims for relief, as follows: ouster (Count I), declaratory relief (Count II), temporary restraining order/injunctive relief (Count III), appropriation (Count IV), trespass (Count V), easement by necessity (Count VI), breach of warranty against Dorcy (Count VII), and punitive damages (Count VIII).

With respect to Count II, Bailey alleged, in pertinent part, that:

51. Bailey is entitled to a judicial determination of his rights in and to all of Parcel 27, including the flagpole portion; to wit, that: (a) Bailey is the rightful owner of Parcel 27, including the flagpole portion; (b) Defendants Duvauchelle have no right, title or interest in or to any portion of Parcel 27, including the flagpole portion; and (c) Defendants Duvauchelle's acts and omissions constitute an unlawful, improper and unreasonable interference with Bailey's ownership, use, possession, occupancy, development and full enjoyment of Parcel 27. This determination is necessary and appropriate to ascertain the rights, duties and obligations of Defendants Duvauchelle and Bailey.

Dorcy's answer to Bailey's amended complaint contained a third-party complaint against Mary Petersen for breach of warranty, which the Circuit Court of the Second Circuit (circuit court) later dismissed for lack of service.[1]

After numerous filings by the parties, the circuit court entered orders granting Bailey's motions for summary judgment regarding record title and adverse possession, which related specifically to Bailey's claim for declaratory relief in Count II.

On October 25, 2010, the circuit court entered a final judgment in favor of Bailey on Count II (declaratory relief). The circuit court declared that Bailey was " the rightful owner in fee simple" of Parcel 27, including the flag pole portion; Duvauchelle did " not own or have any legal or equitable right, title or interest to any portion of Parcel 27, including the flag pole portion by deed, devise or adverse possession" ; and Bailey was entitled to " immediate and exclusive use, right and possession of all of Parcel 27[.]" The circuit court further stated " [t]here is no just reason for delay in the entry of a judgment with respect to [Count II] as it fully and finally resolves the question of title to and ownership of Parcel 27 and the flag pole portion." [2]

Page 1027

[135 Hawai'i 485] Duvauchelle appealed, and the Intermediate Court of Appeals (ICA) affirmed and entered a judgment on appeal on August 14, 2012. Duvauchelle did not seek certiorari review.

Subsequently, Bailey attempted to obtain a stipulation from Duvauchelle for voluntary dismissal of the remaining claims for relief, i.e., Counts I, and III through VIII, pursuant to HRCP Rule 41(a)(1),[3] but was unsuccessful. Bailey next moved for a court order of voluntary dismissal of those claims pursuant to HRCP Rule 41(a)(2)[4] (Motion for Order of Voluntary Dismissal).

After an April 18, 2013 hearing on the Motion for Order of Voluntary Dismissal,[5] the circuit court entered an order granting the Motion for Order of Voluntary Dismissal on June 26, 2013.

On July 16, 2013, the circuit court entered a purported final judgment on the Motion for Order of Voluntary Dismissal, which stated as follows:

In accordance with Rule 58 of the Hawai'i Rules of Civil Procedure, and pursuant to the Order Granting Plaintiff Zachary Fred Bailey's Motion for Order of Voluntary Dismissal With Prejudice the First Claim for Relief, and the Third Through Eighth Claims for Relief of Plaintiff's First Amended Complaint, filed February 13, 2009, Filed March 20, 2013 (" Order of Dismissal" ), filed herein, which dismissed the First Claim for Relief, and the Third through Eighth Claims for Relief with prejudice, those being ...

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