RAEVYN WAIKIKI, Respondent/Plaintiff-Counterclaim Defendant-Appellee,
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.
TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000011; CIV.
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,
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
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.
Brief Factual History
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
September 4, 2013, Waikiki filed a lawsuit against Jhun and
the Ho'omaka Village Association of Apartment Owners
("AOAO") for monetary damages. 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.
counterclaim against Waikiki was dismissed early in the case.
2015, Shimojo moved for summary judgment against Jhun with
respect to the third-party complaint. 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.
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
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.
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),
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
stipulation was signed by Waikiki's counsel, Jhun's
counsel, and the AOAO's counsel. Neither Shimojo nor his
counsel signed the stipulation.
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) and 667-51 as the basis for her appeal and
contended that the summary judgment order was made final ...