Bailey v. Duvauchelle.Bailey v. Duvauchelle.
We therefore hold that in applying the substantial justice standard to the amount of attorney‘s fees and cost imposed as a condition to voluntary dismissal, the court should consider such factors as (1) the reasonableness of the amount of attorney‘s fees and costs; (2) whether another cause of action concerning the same subject matter is contemplated by the plaintiff against the defendant; (3) whether some work or materials produced for the case subject to dismissal could be utilized in the litigation of the later-filed case; and (4) the prejudicial effect of dismissal to the defendant beyond the prospect of subsequent litigation.
In its motion for attorney‘s fees, VIPDesk submitted a summary of its fees and expenses incurred in defending against Tagupa‘s claims, totaling $16,800.41 in attorney‘s fees and $288.87 in costs. The court granted the full amount of VIPdesk‘s requested fees and costs, and it appears that the court simply accepted VIPdesk‘s accounting of fees and costs and did not engage in the requisite weighing of the relevant equities to arrive at its award to VIPdesk. See McCants, 781 F.2d at 857. The district court‘s order reflects no finding that the amount of attorney‘s fees and costs were calculated to accomplish substantial justice in light of the facts and circumstances of this case.24 Hence, upon remand, the district court should also consider the foregoing approach in setting the amount of attorney‘s fees and costs if the court, in its discretion, decides to impose such a condition for voluntary dismissal.
viding Tagupa with an opportunity to choose between accepting this condition or withdrawing her motion to dismiss. Finally, we find that the district court abused its discretion by failing to evaluate, and make findings on, whether the award and amount of attorney‘s fees and costs accords substantial justice to both parties. Accordingly, we vacate the judgment of the ICA and the district court‘s June 17, 2013 Judgment and June 17, 2013 Order Granting Defendant‘s Motion for Award of Attorney‘s Fees and Costs and remand the case to the district court for proceedings consistent with this opinion.
IV. CONCLUSION
Although we find that the trial court has discretion to impose attorney‘s fees as a term or condition of voluntary dismissal under
Jade Lynne Ching and Melissa M. Uhl, Honolulu, for respondent.
Opinion of the Court by 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
Specifically, this case requires us to determine whether an order deciding a motion that was purportedly filed pursuant to
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 10, 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).1
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.
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 in or 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
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
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 the only remaining claims in the First Amended Complaint, filed by Plaintiff Zachary Fred Bailey on February 13, 2009,
IT IS ORDERED, ADJUDGED AND DECREED that Final Judgment is hereby entered on the Order of Dismissal. No other claims, parties or issues remain in this case.
Duvauchelle appealed from the July 16, 2013 judgment, and on January 15, 2014, the ICA entered an order dismissing the appeal for lack of appellate jurisdiction (First Dismissal Order). The ICA held that the July 16, 2013 judgment did “not satisfy the requirements for an appealable final judgment” under
The ICA first concluded that the July 16, 2013 judgment did not need to resolve Count II (declaratory relief) because the circuit court entered a
Duvauchelle did not seek certiorari review. Further, there is no indication in the record that after the ICA‘s First Dismissal Order, the circuit court amended, or that the parties requested that the circuit court amend, the circuit court‘s July 16, 2013 judgment so as to make it appealable.
On April 3, 2014, Duvauchelle moved to vacate the July 16, 2013 judgment and June 26, 2013 order pursuant to
In opposition, Bailey first argued that Duvauchelle was “time-barred” by
Bailey next argued that the ICA‘s affirmance of the October 25, 2010 final judgment in its August 14, 2012 judgment on appeal was “the law of the case.” Bailey contended that the October 25, 2010 final judgment and August 13, 2012 judgment on appeal established that “(1) Bailey is the fee simple owner of Parcel 27, including the flag pole portion, and (2) the Duvauchelles had not acquired title to the flag pole portion by adverse possession.” Bailey contended that although a trial court is “free to hear” a Rule 60(b) motion, it must accord deference to the rulings of the appellate court.
Bailey also argued that “Duvauchelle‘s purported ‘new evidence’ is insufficient to warrant [HRCP] Rule 60(b)(2) relief” to vacate either the October 25, 2010 final judgment or the July 16, 2013 judgment. Bailey contended that relief under Rule 60(b)(2) was “time-barred” and that Duvauchelle‘s purported new evidence, i.e., “a summary of various, previously used surveys, deeds, and maps” was “really belated ‘expert’ opinion that Duvauchelle could have obtained years ago.”
Finally, Bailey argued that relief under
In reply, Duvauchelle argued that the Rule 60(b) Motion was “not tardy, as the judgment was filed July 16, 2013 and the Order filed June 26, 2013“; the law of the case doctrine was inapplicable because Duvauchelle had “newly discovered evidence which [would] change the result“; Duvauchelle‘s new evidence satisfied the “new-evidence rules“; Rules 60(b)(1) (mistake, inadvertence, surprise, or excusable neglect) and 60(b)(4) (void judgment) were applicable; and “the judgment was obtained by illegitimate means and basically a fraud on the Court.”
After a May 1, 2014 hearing on the Rule 60(b) Motion, the circuit court entered an order denying the motion on May 14, 2014.
Duvauchelle appealed to the ICA, and on October 10, 2014, the ICA entered an order dismissing the appeal for lack of appellate jurisdiction (Second Dismissal Order). The ICA noted that under Ditto v. McCurdy, 103 Hawai‘i 153, 80 P.3d 974 (2003), post-judgment orders are generally appealable without entry of a separate judgment pursuant to
Referencing its First Dismissal Order, the ICA concluded that neither the July 16, 2013 judgment nor the June 26, 2013 order constituted an appealable final judgment and therefore, the Order re Rule 60(b) Motion was “interlocutory” and not appealable.
The ICA concluded that because there was no valid final judgment on Counts I, and III through VIII, when Duvauchelle submitted the Rule 60(b) Motion, “he was not actually invoking the circuit court‘s authority under
The ICA noted that in the federal courts, the test for determining whether a judgment is final for purposes of seeking relief under
Finally, the ICA stated that the Order re Rule 60(b) Motion is “an interlocutory order that is potentially eligible for appellate review when and if a party asserts a timely appeal from the entry of a future appealable final judgment that resolves all remaining claims in the case” because under Ueoka v. Szymanski, 107 Hawai‘i 386, 114 P.3d 892 (2005), appealing from a valid final judgment brings up all interlocutory orders that otherwise would not be directly appealable.
Duvauchelle timely sought certiorari review, presenting the following question:
Whether the ICA gravely erred and the magnitude of such error or inconsistency dictates the need for further appeal where the ICA dismissed Duvauchelle‘s appeal based on lack of jurisdiction where the Circuit Court filed a Final Judgment on all of the Bailey claims against Duvauchelle holding no other claims, parties, or issues remain in the case and denied Duvauchelle‘s post-judgment motions to vacate said judgment.
II. Standard of Review
“The existence of jurisdiction is a question of law that [this court] review[s] de novo under the right/wrong standard.” Amantiad v. Odum, 90 Hawai‘i 152, 158, 977 P.2d 160, 166 (1999).
III. Discussion
The question before us is whether an order deciding a motion that was purportedly filed pursuant to
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
(Emphasis added).
On motion and upon such terms as are just, the court may relieve a party or a party‘s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
(Emphases added).
Unless the court otherwise directs and subject to the provisions of Rule 54 of these rules and Rule 23 of the Rules of the Circuit Courts, the prevailing party shall prepare and submit a proposed judgment. The filing of the judgment in the office of the clerk constitutes the entry of the judgment; and the judgment is not effective before such entry. The entry of the judgment shall not be delayed for the taxing of costs. Every judgment shall be set forth on a separate document.
(Emphasis added).
In Jenkins, this court interpreted the requirements of
(1) An appeal may be taken from circuit court orders resolving claims against parties only after the orders have been reduced to a judgment and the judgment has been entered in favor of and against the appropriate parties pursuant to HRCP 58; (2) if a judgment purports to be the final judgment in a case involving multiple claims or multiple parties, the judgment (a) must specifically identify the party or parties for and against whom the judgment is entered, and (b) must (i) identify the claims for which it is entered, and (ii) dismiss any claims not specifically identified; (3) if the judgment resolves fewer than all claims against all parties, or reserves any claim for later action by the court, an appeal may be taken only if the judgment contains the language necessary for certification under HRCP 54(b); and (4) an appeal from any judgment will be dismissed as premature if the judgment does not, on its face, either resolve all claims against all parties or contain the finding necessary for certification under HRCP 54(b).10
Id. at 119, 869 P.2d at 1338 (emphasis in original); see also Carlisle v. One (1) Boat, 119 Hawai‘i 245, 254, 195 P.3d 1177, 1186 (2008) (“[B]ased on Jenkins and HRCP Rule 58, an order is not appealable, even if it
The purpose of adopting the bright line rule in Jenkins was to relieve the appellate courts of “the burden of searching a volumnous record for evidence of finality....” Jenkins, 76 Hawai‘i at 119, 869 P.2d at 1338. This court considered and rejected the approach utilized by federal courts, under which parties can waive the FRCP Rule 58 separate judgment requirement. Id. at 118, 119, 869 P.2d at 1337, 1338.
Subsequently, in Ditto, this court held that “the separate judgment requirement articulated in Jenkins is inapposite to the post-judgment context.” Ditto, 103 Hawai‘i at 158, 80 P.3d at 979. This court further explained:
Clearly, the rule in Jenkins—to wit, that circuit court orders resolving claims against parties must generally be reduced to a judgment and the judgment must be entered in favor of or against the appropriate parties pursuant to HRCP Rule 58 before an appeal may be taken—is limited to circuit court orders disposing of claims raised in a circuit court complaint.
Id. at 159, 80 P.3d at 980 (emphasis in original).
Ditto held that “[a]n order denying a motion for post-judgment relief under HRCP 60(b) is an appealable final order under HRS § 641-1(a).”11 Id. at 160, 80 P.3d at 981. Accordingly, the circuit court‘s order denying the plaintiff‘s October 9, 2000 Rule 60(b) motion subsequent to entry of judgment “was an appealable final order....” Id. at 155, 160, 80 P.3d at 976, 981.
Although Ditto held that a circuit court‘s ruling on a post-judgment motion, including a
Later, in Cho v. State, 115 Hawai‘i 373, 382, 168 P.3d 17, 26 (2007), this court held that a
Cho held that the trial court‘s order imposing discovery sanctions was “merely interlocutory” because the order was “not a final order” and because a “final judgment or order had not yet been entered at the time the State filed its [purported Rule 60(b)] motion for reconsideration.” Cho, 115 Hawai‘i at 383, 168 P.3d at 27. “Accordingly, relief pursuant to
This approach comports with the plain language of
In addition, federal case law also supports this approach. See United States v. Martin, 226 F.3d 1042, 1048 n. 8 (9th Cir.2000) (“Rule 60(b), like Rule 59(e), applies only to motions attacking final, appealable orders.“); United States v. Baus, 834 F.2d 1114, 1119 (1st Cir.1987) (“The stated test for finality under Rule 60(b), like that of Rule 54, is whether the judgment is appealable.“); see also 12 James W.M. Moore, et al., Moore‘s Federal Practice § 60.23 at 60-81 & n. 6 (3d ed. 2014) (stating that “[t]he standard test for whether a judgment is ‘final’ for Rule 60(b) purposes is usually stated to be whether the judgment is sufficiently ‘final’ to be appealed,” and “‘[f]inality’ for Rule 60(b) purposes is usually identical to ‘finality’ required for appeal“); id. § 60.03 at 60-25 (“[A] party who contemplates filing a Rule 60(b) motion in litigation that involves multiple claims or multiple parties must consult Rule 54(b) to determine whether the judgment or order from which relief is sought is ‘final.’ “).
Further, interpreting a “judgment” for purposes of seeking relief under
Without an underlying appealable final judgment, the appellate court would bear the “burden of searching the often voluminous circuit court record,” Id. at 119, 869 P.2d at 1334, to determine whether a
In sum, relief under
This case illustrates the problems that can arise when the requirements of finality set
IV. Conclusion
For the foregoing reasons, we affirm the ICA‘s October 10, 2014 “Order Dismissing Appeal for Lack of Appellate Jurisdiction.”
Notes
(Emphases added).When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
(Emphases added).An action may be dismissed by the plaintiff without order of court (A) by filing a notice of dismissal at any time before the return date as provided in Rule 12(a) or service by the adverse party of an answer or of a motion for summary judgment, or (B) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States, or of any state, territory or insular possession of the United States an action based on or including the same claim.
(Emphasis added).Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff‘s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon that defendant of the plaintiff‘s motion to dismiss, the action shall not be dismissed against the defendant‘s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
At the hearing, Duvauchelle, appearing pro se, stated that he opposed the Motion for Order of Voluntary Dismissal because he planned to file a Rule 60(b) motion to present new evidence that would void the October 25, 2010 judgment.
Unless the court otherwise directs and subject to the provisions of Rule 54 of these rules and Rule 23 of the Rules of the Circuit Courts, the prevailing party shall prepare and submit a proposed judgment. The filing of the judgment in the office of the clerk constitutes the entry of the judgment; and the judgment is not effective before such entry. The entry of the judgment shall not be delayed for the taxing of costs. Every judgment shall be set forth on a separate document.
(Emphases added).On motion and upon such terms as are just, the court may relieve a party or a party‘s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
For example: “Pursuant to the jury verdict entered on (date), judgment in the amount of $____ is hereby entered in favor of Plaintiff X and against Defendant Y upon counts I through IV of the complaint.” A statement that declares “there are no other outstanding claims” is not a judgment. If the circuit court intends that claims other than those listed in the judgment language should be dismissed, it must say so; for example, “Defendant Y‘s counterclaim is dismissed,” or “Judgment upon Defendant Y‘s counterclaim is entered in favor of Plaintiff/Counter-Defendant Z,” or “all other claims, counterclaims, and cross-claims are dismissed.”
Jenkins, 76 Hawai‘i at 120 n. 4, 869 P.2d at 1339 n. 4.