Appellate Nerd Alert: HAWSCT Clarifies "Final, Appealable Order" And Forgay Doctrine

by Robert Thomas, Inverse Condemnation January 13, 2014

If there's one thing that keeps appellate lawyers up at night, it's jurisdictional questions. Too late and you're toast: failing to appeal within the short appellate time frames are usually fatal to your case. Although there's usually no harm in an early filing, it can be awkward when you've teed up a case only to have the court of appeals find some problems and dismiss.

Hawaii appellate nerds know the latter problem as the "Jenkins" or "Cades" issue, after the seminal case reminding us that the sine qua non of civil appellate jurisdiction in most cases is the entry of a final judgment by the trial court disposing of all claims against all parties. See Jenkins v. Cades Schutte Fleming & Wright, 76 Haw. 115, 869 P.2d 1334 (1994).

And by "judgment" the Supreme Court means a separate piece of paper that has the magic words on it. Many a lawyer has been caught up by this when they -- and the trial court -- think there's been a final, appealable judgment entered, but something still remains, at least (not) on paper. Even the best of us. Even after the case was fully briefed and awaiting argument.

Not us, of course. We'd never, ever fall into that trap.

What we're getting at is that we appreciate anything that makes the rules about when you can appeal -- and when you must appeal -- clearer. So we're glad the Hawaii Supreme Court has added Lambert v. Teisina, No. SCWC-12-0001024 (Jan. 10, 2014) to the Hawaii Reports, because it does just that.

The case was a dispute over two parcels on Oahu's north shore. The trial court ultimately ordered partition, but did not dispose of the entire case. You can read the short per curiam opinion for the details. But suffice it to say that as part of its ruling, the trial court ordered one part of one parcel to be partitioned and auctioned.

When one party appealed from this order, the ICA dismissed the case under Jenkins, part way through the briefing. The Hawaii Supreme Court accepted cert, and asked the parties for additional briefing on whether Forgay v. Conrad, 47 U.S. 201 (1848) was applicable, since apparently that case had not been raised in the cert papers. In Forgay, the U.S. Supreme Court held that a non-final order may be immediately appealable if hardship or irreparable injury would result by waiting for final judgment. Although the Hawaii Supreme Court had mentioned Forgay in dictum, it had never said the magic words "we hold that..."

Now it has:

Although narrow in scope and limited in use, the Forgay doctrine permits a direct appeal from a non-final, interlocutory order or decree that commands the immediate transfer of property, where the losing party will be subjected to undue hardship and irreparable injury if appellate review must wait until the final outcome of the litigation. The Forgay doctrine is therefore an appropriate exception to the final judgment requirement in light of the consequences of an order or decree requiring an immediate change in the ownership or possession of real property.

Slip op. at 10-11 (citations omitted).

The court held that a partition order is a decree requiring an immediate change in the ownership or possession of real property, even though it "does not command the immediate execution of the property." Slip op. at 13. It's appealable because it confirms the sale of the land to a trustee, directs a commissioner to convey the property, and orders the current owners to surrender it. Thus, it "effectively terminates" the present owners' rights, "and they will suffer irreparable injury if appellate review is postponed until final judgment." Slip op. at 13-14.

Clarity is good. It helps us sleep nights.

PDF: Lambert v. Teisina, No. SCWC-12-0001024 (Haw. Jan. 10, 2014)