Opinion
25628
September 23, 2003.
APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NO. 01-1-1556)
ORDER DISMISSING APPEAL
Upon review of the record, it appears we do not have jurisdiction over Purchasers-Appellants Wayne Slagle and Sheila Slagle's (the Slagle Appellants) appeal from the Honorable Karen N. Blondin's January 31, 2003 order denying the Slagle Appellants' motion for attorneys' fees and costs.
This court has previously noted that foreclosure cases are bifurcated into two separately appealable parts: (1) the decree of foreclosure and the order of sale, if the order of sale is incorporated within the decree; and (2) all other orders. . . . A litigant who wishes to challenge a decree of foreclosure and order of sale may — and, indeed, must — do so within the thirty day period following entry of the decree or will lose the right to appeal that portion of the foreclosure proceeding.
Beneficial Hawai`i, Inc. v. Casey, 98 Haw. 159, 165, 45 P.3d 359, 365 (2002) (citations and internal quotation marks omitted). The other orders in the second part of a foreclosure case "are appealable upon the entry of the last of the series of orders which collectively embrace the entire controversy." Hoge v. Kane, 4 Haw. App. 246, 663 P.2d 645, 647 (1983) (citation omitted). Therefore, when a foreclosure case "result[s] in a deficiency, the last and final order which starts the clock running [for any aggrieved party who wants to file a notice of appeal pursuant to Rule 4(a)(1) of the Hawai`i Rules of Appellate Procedure] is usually the deficiency judgment." Security Pacific Mortgage Corporation v. Miller, 71 Haw. 65, 70, 783 P.2d 855, 858 (1989) (citation and internal quotation marks omitted). The circuit court has not entered a deficiency judgment in a specific amount.
HRS § 641-1(a) (1993) authorizes appeals only from final judgments, orders, or decrees. Absent the entry of an appealable final deficiency judgment, the January 31, 2003 order denying the Slagle Appellants' motion for attorneys' fees and costs is an interlocutory order from which no appeal lies. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for lack of appellate jurisdiction.
I agree with the majority that we lack jurisdiction over the appeal of Purchasers-Appellants Wayne Slagle and Sheila Slagle (the Slagles) from the January 31, 2003 order of the Circuit Court of the First Circuit (the circuit court), denying the Slagles' motion for attorney fees and costs (the January 31, 2003 order). The Slagles' motion for attorney fees and costs related to the December 12, 2002 order of the circuit court, denying Plaintiff-Appellee Homeside Lending, Inc.'s motion to cancel the sale of property purchased by the Slagles at a foreclosure sale, which was never certified as a final judgment pursuant to Hawai`i Rules of Civil Procedure (HRCP) Rule 54(b). In light of Fujimoto v. Au, 95 Haw. 116, 136 n. 16, 19 P.3d 699, 719 n. 16 (2001), the January 31, 2003 order was clearly not appealable.
I am not prepared at this time, however, to conclude as the majority does that no appeal can lie from the January 31, 2003 order, "[a]bsent the entry of an appealable final deficiency judgment[.]" Majority opinion at 2. In foreclosure cases, especially where the party being foreclosed on has had his or her debts discharged in bankruptcy, it may be futile for a lending institution to seek a deficiency judgment against the party. In such instances, I do not believe it would necessarily constitute an abuse of discretion for the circuit court to certify an order denying a motion to cancel sale as an HRCP Rule 54(b) final judgment, thus allowing an appeal of an order regarding attorney fees and costs arising from the HRCP Rule 54(b) final judgment. In my opinion, the majority's order dismissing the Slagles' appeal is unnecessarily broad.