Klemme v. Banks Pacific Construction - Appeal Dismissed for Lack of Jurisdiction

Hawaii Supreme Court

Filed April 2nd, 2026

Detected April 3rd, 2026

Summary

The Hawaii Intermediate Court of Appeals dismissed an appeal filed by Darryl Banks and Banks Pacific Construction, Inc. for lack of appellate jurisdiction. The court found that the underlying Circuit Court order granting partial summary judgment was not a final, appealable order. The court also denied Plaintiff Klemme's request for sanctions, ruling that Hawaii Rules of Appellate Procedure Rule 38 only permits sanctions for frivolous appeals that have been decided.

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What changed

The Intermediate Court of Appeals dismissed the appeal of Darryl Banks and Banks Pacific Construction, Inc. from the Circuit Court of the Second Circuit's October 13, 2025 order granting partial summary judgment to Mikael Klemme on counts alleging Unfair and Deceptive Trade Practices (HRS § 480-2) and violations of HRS Chapter 444. The appellate court lacked jurisdiction because the Circuit Court had not entered a final, appealable judgment and the order was not independently appealable under the collateral-order or Forgay doctrines. The court also declined to award sanctions despite Klemme's request, finding that HRAP Rule 38 only authorizes sanctions for frivolous appeals that have been decided on the merits, not dismissed for jurisdictional reasons.

Construction firms and legal practitioners should note that partial summary judgment orders in civil litigation are not immediately appealable in Hawaii unless they constitute final judgment under HRS § 641-1(a), satisfy the collateral-order doctrine, or receive leave for interlocutory appeal under HRS § 641-1(b). Parties seeking sanctions for frivolous appeals must await a substantive decision on the merits, as jurisdictional dismissals do not qualify. This case clarifies the distinction between consumer standing under HRS § 480-2 (an issue of standing, not immunity) and the procedural requirements for appellate jurisdiction.

Source document (simplified)

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-26-0000015 02-APR-2026 08:30 AM Dkt. 22 ODSLJ

NO. CAAP-26-0000015 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I MIKAEL KLEMME, Plaintiff-Appellee,

DARRYL BANKS; BANKS PACIFIC CONSTRUCTION, INC., Defendants-Appellants, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10, Defendants. BANKS PACIFIC CONSTRUCTION, INC., Counterclaimant-Appellant,

MIKAEL KLEMME; CHRIS HANSEN, Counterclaim Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10, Defendants. APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CCV-20-0000185) ORDER GRANTING MOTION TO DISMISS APPEAL (By: Nakasone, Chief Judge, Hiraoka and Wadsworth, JJ.) Upon consideration of Plaintiff-Appellee Mikael Klemme's (Klemme) March 16, 2026 Motion to Dismiss Appeal for Lack of Appellate Jurisdiction and for Sanctions, the papers in support and in opposition, and the record, it appears that Klemme seeks dismissal of the appeal for lack of jurisdiction and an award of sanctions against Defendants-Appellants Darryl Banks and Banks Pacific Construction, Inc. (Banks Parties) for filing a frivolous appeal.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER Banks Parties appeal from the Circuit Court of the Second Circuit's October 13, 2025 "Order Granting Plaintiff Mikael Klemme's Motion for Partial Summary Judgment on Count IV (Unfair and Deceptive Trade Practices) and Count VII (Violation of HRS Chapter 444) of the First Amended Complaint, Filed on July 19, 2022, Filed on September 12, 2025 [Dkt. 176]." The court lacks jurisdiction because the Circuit Court has not entered a final, appealable order or judgment, see Hawai#i Revised Statutes (HRS) § 641-1(a) (2016); Hawai#i Rules of Civil Procedure Rules 54(b), 58; Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai#i 115, 119, 869 P.2d 1334, 1338 (1994), and the October 13, 2025 order from which Banks Parties appeal is not independently appealable under the collateral-order or Forgay 21 doctrines, nor has the Circuit Court granted leave for interlocutory appeal under HRS § 641-1(b). See Greer v. Baker, 137 Hawai#i 249, 253, 369 P.3d 832, 836 (2016) (setting forth the requirements for appealability under the collateral-order doctrine and the Forgay doctrine); HRS § 641-1(b) (specifying requirements for leave to file interlocutory appeal). The court declines to grant Klemme's request for sanctions in conjunction with this dismissal order, because Hawai#i Rules of Appellate Procedure Rule 38 only allows such an award where the court "determines that an appeal decided by it was frivolous." (Emphasis added). Therefore, IT IS HEREBY ORDERED that the March 16, 2026 Motion to Dismiss Appeal for Lack of Appellate Jurisdiction and for Sanctions is granted in part and denied in part as follows:

The appeal is dismissed for lack of jurisdiction; Contrary to Banks Parties' argument, whether a party is a "consumer"1 for purposes of a claim under HRS § 480-2 (2008) is an issue of standing, not immunity from suit. See Guieb v. Guieb, 156 Hawai #i 162, 168, 571 P.3d 382, 388 (2025) ("Because Roland was not a consumer, the AG, or director of the office of consumer protection, he had no standing to bring a UDAP claim."). Forgay v. Conrad, 47 U.S. 201 (1848). 2

Named provisions

HRS § 641-1(a) - Final Judgment HRS § 641-1(b) - Interlocutory Appeals HRS § 480-2 - Unfair and Deceptive Trade Practices HRS Chapter 444 - Contractors HRAP Rule 38 - Frivolous Appeals Collateral-Order Doctrine Forgay Doctrine