NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
the Matter of the JACK WONG YUEN and LEI YOUNG WONG YUEN
REVOCABLE LIVING TRUST dated April 22, 1996
Upon review of (1) Respondents-Appellees Jarrett N. Wong, Jamie S. Wong, Jace T. Wong and Jacelyn Wong's (the Wong Appellees) October 27, 2008 motion to dismiss Petitioner-Appellant Frances Kailieha's (Appellant Kailieha) appeal as untimely, (2) Appellant Kailieha's November 5, 2008 (filed ex officio on November 3, 2008) memorandum in opposition to the Wong Appellees' October 27, 2008 motion to dismiss, and (3) the record, we decline to dismiss this appeal as untimely.
Appellant Kailieha is appealing pursuant to Hawaii Revised Statues (HRS) § 641-1(a) (1993 & Supp. 2007) and Rule 34 of the Hawai‘i Probate Rules (HPR). Rule 4 of the Hawai‘i Rules of Appellate Procedure (HRAP) governs the time limit for filing a notice of appeal. Appellant Kailieha filed her May 19, 2008 notice of appeal prior to entry of the July 9, 2008 judgment. HRAP Rule 4(a)(2) provides that, "[i]f 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." HRAP Rule 4(a)(2). The Wong Appellees argue that HRAP Rule 4(a)(2) does not authorize Appellant Kailieha's appeal from the July 9, 2008 judgment, because Appellant Kailieha's premature May 19, 2008 notice of appeal referred to the following two orders instead of an appealable judgment:
a May 2, 2008 "Order Granting in Part Motion to
Enforce Settlement Agreement or, in the Alternative, to Grant
Petition and Complaint to Compel Accounting, to Compel Distribution of the Trust Estate, to Remove and
Surcharge Trustee, and to Appoint Successor Trustee, Filed February 5, 2008" (the May 2, 2008 order); and
a February 6, 2008 "Order Granting Respondents
Jarrett N. Wong, Jamie S. Wong, Jace T. Wong and Jacelyn
Wong's Motion for Summary Judgment, Filed November 30, 2007" (the February 6, 2008 order).
Additionally, the record indicates that when Appellant Kailieha filed her May 19, 2008 notice of appeal, the parties anticipated that the probate court would soon reduce the two appealed orders to an appealable final judgment. For example, within the May 19, 2008 notice of appeal, Appellant Kailieha explained that she was in the process of requesting the circuit court to reduce both of the appealed orders to an appealable final judgment in the manner provided in Rule 54(b) of the Hawai‘i Rules of Appellate Procedure. Furthermore, just three days later, on May 22, 2008, the Wong Appellees submitted to the probate court a proposed final judgment resolving all claims that the probate court eventually approved and entered as the final judgment on July 9, 2008. Although Appellant Kailieha's May 19, 2008 notice of appeal referred to the May 2, 2008 order and the February 6, 2008 order rather than the July 9, 2008 judgment, both orders contained dispositive rulings, and Hawai‘i appellate courts have consistently held that, "a mistake in designating the judgment . . . should not result in [the] loss of the appeal as long as the intention to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake." State v. Graybeard, 93 Hawai‘i 513, 516, 6 P.3d 385, 388 (App. 2000) (internal quotation marks omitted) (quoting City & County v. Midkiff, 57 Haw. 273, 275-76, 554 P.2d 233, 235 (1976) (quoting 9 Moore's Federal Practice § 203.18 (1975))); see also Ek v. Boggs, 102 Hawai‘i 289, 294, 75 P.3d 1180, 1185 (2003); In re Brandon, 113 Hawai‘i 154, 155, 149 P.3d 806, 807 (App. 2006). Under the circumstances of this case, one could reasonably infer that Appellant Kailieha intended to appeal from a final judgment that incorporated all of the dispositive rulings and resolved all of the claims. Therefore, HRAP Rule 4(a)(2) appears to authorize Appellant Kailieha's premature May 19, 2008 notice of appeal as a timely appeal from the July 9, 2008 judgment, and we have appellate jurisdiction over this case. Accordingly,
IT IS HEREBY ORDERED that the Wong Appellees' October 27, 2008 motion to dismiss this appeal as untimely is denied.
DATED: Honolulu, Hawai‘i, November 18, 2008.
The Forgay doctrine is based on
the United States Supreme Court's holding in Forgay
v. Conrad, 47 U.S. 201 (1848). The Supreme Court of Hawai‘i has
acknowledged the Forgay doctrine as
"allow[ing] an appellant to immediately
appeal a judgment for execution upon property, even if all claims of
the parties have not been finally resolved." Ciesla,
78 Hawai‘i at 20, 889 P.2d at 704 (1995). Under the Forgay
doctrine, the appellate courts "have jurisdiction to consider
appeals from judgments which  require immediate execution of a
command that property be delivered to the appellant's adversary, and
 the losing party would be subjected to irreparable injury if
appellate review had to wait the final
outcome of the litigation." Id. (citations, internal
quotation marks omitted; some brackets omitted, some brackets added).
Thus, in an appeal from a summary possession case, where a district
court entered a judgment for possession that did
not, resolve an outstanding counterclaim in the case, the Supreme Court
of Hawai‘i held that "the judgment for possession was a judgment
immediately appealable under the Forgay doctrine." Id.