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:
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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.