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Waikiki v. Ho'omaka Village Association of Apartment Owners

Supreme Court of Hawaii

June 30, 2017

RAEVYN WAIKIKI, Respondent/Plaintiff-Counterclaim Defendant-Appellee,
v.
HO'OMAKA VILLAGE ASSOCIATION OF APARTMENT OWNERS, Respondent/Defendant-Cross-Claim Plaintiff-Appellee, and VIOLET JHUN, Petitioner/Defendant-Cross-Claim Defendant-Counterclaim Plaintiff-Third-Party Plaintiff-Appellant, and WADE KIOSHI KALEOLANI SHIMOJO, Respondent/Third-Party Defendant-Appellee.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000011; CIV. NO. 13-1-2391-09)

          Walter R. Schoettle for petitioner Violet Jhun.

          Richard Turbin, Rai Saint Chu, and Janice D. Heidt for respondent Wade Kioshi Kaleolani Shimojo.

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

          PER CURIAM

         Petitioner/third-party plaintiff-appellant Violet Jhun ("Jhun") applies for certiorari review of the Intermediate Court of Appeals' ("ICA") March 15, 2016 order dismissing her appeal from an unfavorable summary judgment order ("Dismissal Order"). The ICA dismissed Jhun's appeal for lack of appellate jurisdiction based on the absence of an appealable final judgment and also dismissed as moot her motion requesting the ICA compel the circuit court to enter a final judgment. Jhun acknowledges that a final judgment has not been entered in the case and took steps to obtain such a judgment, but was unsuccessful. Entry of a final appealable judgment would have perfected Jhun's appeal.

         Based on the record presented on appeal, it appears that all claims against all parties have been resolved and entry of a final appealable judgment was warranted. Accordingly, we vacate the ICA's March 15, 2016 Dismissal Order and remand the matter to the ICA with instructions to temporarily remand the case to the circuit court to enter an appealable final judgment, to direct the circuit court to supplement the record on appeal with the final judgment, and to then proceed to consider the appeal accordingly.

         I. Background

         A. Brief Factual History

         Raevyn Waikiki ("Waikiki") and Jhun were neighbors in the Ho'omaka Village apartment complex in Waipahu, Hawai'i. One evening in 2011, as Waikiki was returning to her apartment from walking her dog, she was injured by Jhun's dog.

         B. Procedural History

         1. The Lawsuit

         On September 4, 2013, Waikiki filed a lawsuit against Jhun and the Ho'omaka Village Association of Apartment Owners ("AOAO") for monetary damages.[1] The AOAO answered the complaint and filed a cross-claim against Jhun. Jhun answered the complaint and filed a counterclaim against Waikiki, claiming that Waikiki's dog bit and injured her. Jhun also filed a third-party complaint against Wade Shimojo ("Shimojo"), who lived with Waikiki, alleging that Shimojo and Waikiki's dog provoked Jhun's dogs earlier in the day prior to the attack. Additionally, Jhun answered the cross-claim filed by the AOAO.

         Jhun's counterclaim against Waikiki was dismissed early in the case.

         In 2015, Shimojo moved for summary judgment against Jhun with respect to the third-party complaint.[2] The circuit court granted the motion and entered a written order on June 18, 2015. The order provided as follows:

Third-Party Defendant WADE KIOSHI KALEOLANI SHIMOJO's ("Shimojo") Motion for Summary Judgment filed herein on March 6, 2015 ("motion") came on for hearing before the Honorable Karl K. Sakamoto, Judge of the above-entitled Court, on Friday, May 8, 2015 at 10:00 a.m., with Janice D. Heidt appearing for Plaintiff RAEVYN WAIKIKI ("Plaintiff"), Charlene S.P.T. Murata appearing for Defendant HO'OMAKA VILLAGE, ASSOCIATION OF APARTMENT OWNERS ("AOAO"), Walter R. Schoettle appearing for Defendant and Third-Party Plaintiff VIOLET JHUN ("Jhun") and Daniel T. Kim appearing for Shimojo, due notice having been given. The Court, having reviewed and considered the motion and the reply memorandum filed by Shimojo on April 17, 2015, the memorandum in opposition filed by Jhun on April 14, 2015, the statement of no position filed by AOAO on April 15, 2015, the joinder filed by Plaintiff on April 20, 2015, the oral arguments of counsel, the record and file of the matter and being fully advised in the premises, and good cause appearing therefor,
IT IS HEREBY ORDERED ADJUDGED AND DECREED that Third-Party Defendant WADE KIOSHI KALEOLANI SHIMOJO's Motion for Summary Judgment filed on March 6, 2015 is GRANTED.
This Order may be approved as to form by the parties in counterparts, each of which when executed shall, irrespective of the date of its execution and delivery be deemed an original, and said counterparts together shall constitute one and the same instrument.

         The order did not include any language regarding certification under Hawai'i Rules of Civil Procedure ("HRCP") Rule 54(b) or any language resolving all of the claims in the action.

         Sometime thereafter, Waikiki, Jhun, and the AOAO proceeded to resolve their claims through the Court Annexed Arbitration Program. The arbitrator ultimately determined that Waikiki was 5% at fault, Jhun was 95% at fault, and the AOAO was 0% at fault, and noted that Shimojo was "out on summary judgment." After applying her contributory percentage to the total damages awarded by the arbitrator, Waikiki was awarded $83, 094.87. Jhun appealed the arbitrator's decision to the circuit court.

         On December 9, 2015, several months after Jhun appealed the arbitrator's decision, Waikiki, Jhun, and the AOAO filed a stipulation, pursuant to HRCP Rule 41(a)(1)(B), [3] dismissing their claims in the lawsuit:

IT IS STIPULATED AND AGREED by and between Plaintiff/Third-Party Defendant RAEVYN WAIKIKI (hereinafter "Plaintiff") and Defendant HO'OMAKA VILLAGE, ASSOCIATION OF APARTMENT OWNERS and Defendant/Third-Party Plaintiff VIOLET JHUN (hereinafter "Defendants"), through their respective counsel, that pursuant to Rule 41(a)[(]1)(B) of the Hawaii Rules of Civil Procedure, all claims asserted in the Complaint filed on September 4, 2013 against the Defendants; all Counter-Claims filed November 15, 2013 by Violet Jhun against Raevyn Waikiki; and all Cross-Claims filed September 12, 2013 by Ho'omaka Village, Association of Apartment Owners against Violet Jhun are hereby dismissed with prejudice.
All other claims and parties are dismissed. Each party to this Stipulation shall bear their own attorneys' fees and costs.

         The stipulation was signed by Waikiki's counsel, Jhun's counsel, and the AOAO's counsel. Neither Shimojo nor his counsel signed the stipulation.

         2. The Appeal

         On January 8, 2016, Jhun filed a notice of appeal in the ICA appealing from the June 18, 2015 summary judgment order on the third-party complaint entered in favor of Shimojo. Jhun cited Hawai'i Revised Statutes ("HRS") §§ 641-1(a)[4] and 667-51[5] as the basis for her appeal and contended that the summary judgment order was made final ...


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