Appellate Practice Standard of Review Bethany C.K. Ace Damon Key Leong Kupchak Hastert bcka@hawaiilawyer.com

Types of Errors Four main types: (1) a finding of fact, (2) a conclusion of law, (3) an exercise of judicial discretion, or (4) the sufficiency of evidence in support of decision in a criminal case. The court will focus on the nature of the alleged point of error and not how it was labeled by the lower court.

Harmless Error Haw. R. Civ. P. 61 states: No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. Harmless (trivial or immaterial) points of error should not be raised.

Findings of Fact Findings of fact by a jury will be affirmed so long as they are supported by "substantial" evidence. Substantial means that the evidence “is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion."

Findings of Fact Findings of fact made by the trial judge will be affirmed unless clearly erroneous. The findings of fact will be set aside on appeal if the appellate court is left with a definite and firm conviction, after reviewing the evidence in its entirety, that a mistake has been made.

Findings of Fact The appellant must identify all of the findings of fact that he or she wants to challenge on the appeal, including findings underlying conclusions of law that are being challenged.

Conclusions of Law Conclusions of law are more susceptible to appellate challenge than are findings of fact.  The appellate court will review conclusions of law for itself (de novo) and is not bound by the conclusions made or reasoning employed by the lower court. The appellate court will overturn a conclusion of law only if it is wrong.  If the lower court reached the correct conclusion, even using flawed reasoning, the judgment will stand. Your argument on appeal should focus on whether or not the conclusion is correct (not how the lower court got to that conclusion).

Acts of Discretion Acts of discretion are reviewed for an "abuse of discretion." This standard affords a high level of deference to the lower court's decision. To reverse a discretionary decision, the appellant must (1) identify the rules or principle law or practice (or logical reasoning) allegedly violated; (2) establish that the court clearly disregarded or exceeded the same; and (3) establish that such action by the court was to the appellant's “substantial detriment.”

Criminal Conviction Criminal conviction must be supported by substantial evidence, regardless of whether the verdict is rendered by a jury or by bench trial.

Appellate Practice Prerequisites to Appeal “The right to appeal is purely statutory, and exists only when given by some constitutional or statutory provision.”  Lingle v. Hawai‘i Gov’t Employees Ass’n, 107 Hawai‘i 178, 184, 111 P.3d 587, 593 (2005).

Civil Cases: Final Judgment Rule In civil cases before the circuit, district, family, and land courts, appeals may be taken from final judgments or decrees. ​An appeal of a final judgment brings up for review all interlocutory orders not previously appealable as of right that pertained to the issues in the case. A post-judgment order is an appealable final order when it ends the proceedings, leaving nothing further to be accomplished.

Civil Cases: Separate Judgment Separate judgment rule: For civil cases before the circuit court, “[e]very judgment shall be set forth in a separate document.”  Haw. R. Civ. P. 58. The separate judgment must enter judgment in favor of and against the appropriate parties (i.e., specify the specific parties) and must, on its face, show finality as to all claims. The requirement that a judgment be memorialized in a separate document cannot be waived.

Civil Cases: Separate Judgment Examples where rule applies: Judgment where there are multiple claims or parties; Final judgment under Haw. R. Civ. P. 54(b); and Land court decisions.

Civil Cases: Separate Judgment Examples where rule does not apply: Stipulation to dismiss claims or parties; Tax appeals; Good faith settlement order; and District court decisions.

Multi-Party/Multi-Claim Actions ​Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai‘i 115, 119-120 n.4, 869 P.2d 1334, 1338-39 n.4 (1994): 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.”

Multi-Party/Multi-Claim Actions ​Practitioners should take special care in identifying all claims and all parties (including those being dismissed) when drafting the proposed form of judgment. Track your claims and parties throughout the litigation.

Final Judgment Under Rule 54(b) When more than one claim for relief pled 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 (1) upon an express determination that there is no just reason for delay and (2) upon an express direction for the entry of judgment.   The certification language must appear in the separate judgment.

Land Court & District Court Land Court: The separate document rule also applies in cases before the Land Court.  The separate document must enter judgment in favor of and against the named parties and identify the claims for which judgment is entered.   District Court: judgments need not be memorialized in a separate document.  The judgment, in whatever form, should identify the parties and claims and the relief awarded.  Forms for the judgment are available on the judiciary’s website in the “Self-Help” section.

Family Court Any interested aggrieved party may take an appeal from a decision of the family court “upon the same terms and conditions as in other cases in the circuit court.”   Review is governed by Haw. Rev. Stat. Chapter 602, unless otherwise specified by Chapter 571.

Family Court: Divorce Judgments Divorce cases involve a maximum of four discrete parts: (1) dissolution of the marriage; (2) child custody, visitation, and child support; (3) spousal support; and (4) division and distribution of property and debts. The entry of the order dissolving the marriage is immediately appealable and its entry makes appealable orders deciding the other parts of a divorce proceeding (on custodial issues, spousal support, and division of assets and liabilities).

Collateral Orders To be an appealable collateral order, the order must “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action and be effectively unreviewable on appeal from a final judgment.”  Siangco v. Kasadate, 77 Hawai‘i 157, 161, 883 P.2d 78, 82 (1994).

Collateral Orders ​Examples of orders appealable under this doctrine include: Orders imposing sanctions against attorneys; Orders compelling or denying arbitration; Orders enforcing settlement agreements; and Orders expunging a lis pendens.

Collateral Orders Orders not appealable under this doctrine include: Orders imposing sanctions against parties, except in certain circumstances; Discovery orders; and Orders disqualifying counsel.

Collateral Orders: Considerations Even if the order is appealable under this doctrine, there are a number of factors to consider in deciding whether to appeal the order separately, including the additional expense, the impact on litigating the remainder of the case, and the effectiveness of any relief granted on appeal of the final decision. When a collateral order has not been immediately appealed, the order can still be reviewed on the appeal from the final judgment. Don’t forget these collateral orders when framing the questions to present to the appellate court and in briefing the appeal.

Interlocutory Appeal Certain non-final judgments may be appealed by permission of the court. There is only 30 days to get leave and file the notice of appeal. Be prepared to move for leave to file immediately after entry of the order in question – so plan ahead (talk to client early on, set aside time to prepare motion if need be, etc.).

Summary Points for Civil Actions In general, the appellate court will review only a final decision of the lower court. What constitutes a “final” judgment will depend on what court heard the matter. Be sure to review the rules of the trial court and applicable case law when nearing the end of the trial to confirm how the final judgment must be documented in that court. Pay particular care documenting judgments in cases involving multiple parties. In general, the judgment should dispose of all of the claims of all parties.

Why Does This Matter??? Without a final judgment (complying with the specific requirements of the lower court), the appeal will be dismissed as being premature. See Chapters 3.3.2 through 3.3.4 for exceptions (where an appeal may be had before entry of the final judgment).

Post-Judgment Tolling in Civil Actions Certain post-judgment motions toll the deadline to file the notice of appeal on an otherwise final appealable judgment. Such motions include: Motions for judgment as a matter of law (Haw. R. Civ. P. 50), Motions to amend findings or make additional findings (Haw. R. Civ. P. 52(b), Motions for a new trial (Haw. R. Civ. P. 59), Motions to reconsider, alter, or amend the judgment or order (Haw. R. Civ. P. 59(e)), and Motions for attorney’s fees or costs (Haw. R. Civ. P. 54(d)).

Post-Judgment Tolling in Civil Actions These motions extend the time for filing the notice of appeal on the final appealable judgment until 30 days after entry of an order disposing of the motion. A motion to correct a judgment (Haw. R. Civ. P. 60(b)) is generally not considered to be a tolling motion. However, when brought within 10 days of entry of the judgment or order and raises grounds akin to those in Haw. R. Civ. P. 59(e), then the motion may be treated as a de facto Rule 59(e) motion. The motion must be timely filed to toll the deadline to appeal.

Family Court Tolling Motions The same tolling rules applies under the Hawaii Family Court Rules. Note that these rules do not provide a deadline to file a motion for attorney’s fees and costs in divorce proceedings; as such, to be deemed “timely” the motion must be filed before a notice of appeal is filed.

Criminal Cases: Time to File The notice of appeal must be filed within 30 days after entry of the judgment or order being appealed. A judgment or order is “entered” when it has been reduced to writing and filed with the clerk of the court. Note that the rules for civil actions for tolling motions do not necessarily apply to criminal cases. For example, a motion to reconsider under Haw. R. Pen. P. 47 is not a tolling motion.

Appeals by Defendant A judgment of conviction in the circuit court must set forth the plea, the verdict or findings, and the adjudication of sentence. Similarly, the judgment of conviction in the district court must also include the imposition of sentence.

Criminal Interlocutory Orders In general, the same rules for interlocutory appeals in civil actions apply in criminal actions (need permission by the court, have to get the order granting leave to appeal and the notice of appeal filed within 30 days, etc.) Interlocutory appeals by defendants are not permitted in criminal actions before the District Court.

Criminal Juvenile Cases Special rules apply to appeals related to juvenile cases as set forth in Haw. Rev. Stat. Chapter 571.

Appeals by the State The State’s right to appeal in criminal cases is restricted to only the instances enumerated in Haw. Rev. Stat. § 641-13. Haw. Rev. Stat. § 641-13 must be strictly construed. However, the appellate court will look at the substance over the form of the order being appealed.

Appeals by the State: Examples Examples of decisions appealable by the State include orders: Dismissing indictments; Granting a new trial; Arresting judgment; Illegal sentences; Certain evidentiary orders; and Adverse ruling on a question of law (where the defendant appeals the conviction).

Mahalo! These slides will be available on the Appellate Section’s website.