October 2011 #2. ORDER DISMISSING APPAELS PART VIII:.

Author:By G. Richard Morry
 
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Hawaii Bar Journal

2011.

October 2011 #2.

ORDER DISMISSING APPAELS PART VIII:

Hawaii State Bar JournalOctober 2011ORDER DISMISSING APPAELS PART VIII:By G. Richard MorryIf no final judgment has been entered and none of the exceptions discussed in the most recent installments of this series on Orders Dismissing Appeals ("ODAs") applies,(fn1) one further possible avenue of early appeal remains. The circuit court may be requested to allow an interlocutory appeal pursuant to Hawaii Revised Statutes, Section 641-1(b) (1993). This subsection authorizes a circuit court to allow appeal of an interlocutory order whenever it"... may think the same advisable for the speedy termination of litigation before it."

An interlocutory order has been defined as one "... that does not fully decide one or more claims or the rights and liabilities of one or more parties ... ."(fn2) The statute itself notes the specific example of "an order denying a motion to dismiss."(fn3) An order denying a dispositive summary judgment motion is another example.(fn4) An order granting a new trial is likewise interlocutory and allowance is required for appeal before the retrial.(fn5) A variety of other orders have also been certified for immediate appeal.(fn6)

The application must be filed in the circuit court and is addressed to the court's discretion.(fn7) A refusal is final and not reviewable.(fn8) There is no appellate jurisdiction over an interlocutory appeal if allowance is not requested or is refiised.(fn9)

The circuit court must specifically find that an interlocutory appeal is "advisable for the speedy termination of litigation before it."(fn10) Absent such a finding the appeal will be dismissed.(fn11) The Hawaii Supreme Court has also stated that the reasons underlying the determination should be set forth in the order.(fn12)

On appeal, the circuit court's determination is reviewed for abuse of discretion.(fn13) The Hawaii Supreme Court has stressed that the words "speedy termination" are "crucial."(fn14) The saving of time and litigation expense by itself is not sufficient.(fn15) The appeal must have the capacity to put an end to the action, rather than to involve "... merely a request for th[e] court to intervene and decide an issue in an unfinished and incomplete case, ..."(fn16) If the appellate court finds that the circuit court has abused its discretion, the appeal will be dismissed.(fn17)

Strict time limits apply. An interlocutory appeal of an order must be noticed within thirty days of the original interhcutory order - not the order allowing the appeal. This means that [1] the motion for interlocutory appeal must be filed; [2] the order granting the motion and allowing the appeal must be entered; and [3] the appeal noticed, all prior to the expiration of thirty days from the date of the original order.(fn18) This time line is so tight as to require as a practical...

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