Davis v. Wildson

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-FEB-2023
08:00 AM
Dkt. 27 OGMD
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

KENT DAVIS, an individual,
Plaintiff/Counterclaim Defendant-Appellant,
v. MARY WILDSON, an individual,
Defendant/Counterclaimant-Appellee, and
JOHN and/or JANE DOES 1-50, DOE PARTNERSHIPS 1-50,
DOE CORPORATIONS 1-50, DOE ENTITIES 1-50,
DOE GOVERNMENTAL UNITS, 1-50, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CCV-XX-XXXXXXX)

ORDER GRANTING MOTION TO DISMISS APPEAL
(By: Ginoza, Chief Judge, Nakasone and Chan, JJ.)
Upon consideration of the "Plaintiff, Appellant's
Request for 20 Days to File Appellant's Jurisdiction Statement
Appellant Requests the Court to Grant a 60 Day Continuance to
File Appellants [sic] Opening Brief" (Extension Motion), filed
January 18, 2023, by self-represented Plaintiff/Counter
Defendant-Appellant Kent Davis (Davis), and the
"Cross-Complainant/Appellee's Opposition to Appellant's Request
for Continuance to File Jurisdiction Statement and Opening Brief;
Motion to Dismiss Appeal" (Motion to Dismiss), filed January 25,
2023, by Defendant/Counterclaimant-Appellee Mary Wildson
(Wildson), the papers in support, and the record, it appears that
Davis seeks an extension of time to file the statement of
jurisdiction and opening brief, and Wildson opposes any
extension, and further requests that the court dismiss the appeal
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

for lack of jurisdiction, as Davis does not appeal from a final,
appealable order.
Even construing Davis's October 28, 2022 notice of
appeal as a premature appeal1 from the circuit court's
December 6, 2022 written "Order Denying Plaintiff's Non-Hearing
Motion for Recusal and Disqualify [sic] Counsel Edward Fetzer for
Conflict of Interest and Failure to Acquire Written Permission
from Plaintiff to Represent the Defendant" (12/6/22 Order), the
court nonetheless lacks appellate jurisdiction, as the 12/6/22
Order is not an appealable order, and the circuit court has not
otherwise entered a final, appealable order or judgment in the
underlying case. See Hawaii Revised Statutes (HRS) § 641-1(a)
(2016); Hawai i Rules of Civil Procedure Rules 54(b), 58; Jenkins
v. Cades Schutte Fleming & Wright, 76 Hawai i 115, 119, 869 P.2d
1334, 1338 (1994). Moreover, the 12/6/22 Order is not
independently appealable under the collateral-order doctrine, the
Forgay2 doctrine, or HRS § 641-1(b). See Greer v. Baker, 137
Hawai i 249, 253, 369 P.3d 832, 836 (2016) (setting forth the
requirements for appealability under the collateral-order
doctrine and the Forgay doctrine); Gomes v. Kauwe's Heirs, 52
Haw. 126, 472 P.2d 119 (1970)(dismissing an appeal from an order
denying a motion to disqualify opposing party's counsel because
the order was not subject to the collateral-order doctrine); HRS
§ 641-1(b) (specifying requirements for leave to file
interlocutory appeal).
Therefore, IT IS HEREBY ORDERED that the Motion to
Dismiss is granted, and the appeal is dismissed for lack of
appellate jurisdiction.

1
Hawai i Rules of Appellate Procedure Rule 4(a)(2) provides: "If a
notice of appeal is filed after announcement of a decision but before entry of
the judgment or order, such notice shall be considered as filed immediately
after the time the judgment or order becomes final for the purpose of appeal."

2
Forgay v. Conrad, 47 U.S. 201 (1848).

2
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

IT IS HEREBY FURTHER ORDERED that all pending motions
are dismissed, including, without limitation, the Extension
Motion.
DATED: Honolulu, Hawai i, February 13, 2023.

/s/ Lisa M. Ginoza
Chief Judge

/s/ Karen T. Nakasone
Associate Judge

/s/ Derrick H.M. Chan
Associate Judge

3