Big Island Federal Credit Union v. Aguiar, Jr.

• Court: Hawaii Intermediate Court of Appeals
• Decided: October 12, 2022
• Docket: CAAP-17-0000815
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 12-OCT-2022 08:03 AM Dkt. 56 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

BIG ISLAND FEDERAL CREDIT UNION, Plaintiff-Appellant, v. WILFRED E. AGUIAR, JR., Defendant-Appellee, and COLORADO STATE UNIVERSITY, Garnishee-Appellee.

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT PUNA DIVISION (CIVIL NO. 3RC16-1-0329)

SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)

Plaintiff-Appellant Big Island Federal Credit Union

(Big Island FCU), appeals from the District Court of the Third

Circuit's (1) August 7, 2017 "Order Denying Garnishee Order"

(Order Denying Garnishment) 1 and (2) October 31, 2017 order

denying Big Island FCU's motion for "reconsideration" of the

Order Denying Garnishment. 2 On appeal, Big Island FCU raises

three points of error.

1 The Honorable Diana L. Van De Car presided.

2 The Honorable Michael J. Udovic presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Upon careful review of the record and the brief

submitted 3 and having given due consideration to the issues

raised and the arguments advanced, we resolve Big Island FCU's

points of error as discussed below.

(1) Big Island FCU's first point of error alleges that

the district court reversibly erred in not issuing a garnishee

order on Colorado State University, a nonresident garnishee and

the employer of Aguiar.

However, this point of error challenges the post-

judgment Order Denying Garnishment, and we lack jurisdiction

over an appeal from this order because Big Island FCU failed to

file a notice of appeal within thirty days of this order. See

Hawaiʻi Rules of Appellate Procedure Rule 4(a)(1) (providing that

"the notice of appeal shall be filed within 30 days after entry

of the judgment or appealable order"); Chun v. Bd. of Trs. of

Employees' Ret. Sys. of State of Hawai‘i, 106 Hawai‘i 416, 428

n.12, 106 P.3d 339, 351 n.12 (2005) (explaining that "[a]

postjudgment order is an appealable final order under [Hawaii

Revised Statutes] § 641-1(a) (1993) if the order finally

determines the postjudgment proceeding").

Because Big Island FCU filed its August 31, 2017

motion for "reconsideration" based on District Court Rules of

3 Defendant-Appellee Wilfred E. Aguiar, Jr. (Aguiar) did not file an answering brief. The appellate clerk entered a notice of default of the answering brief on October 26, 2018. 2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Civil Procedure (DCRCP) Rule 60 (Rule 60 Motion) over three

weeks after the Order Denying Garnishment, Big Island FCU's

Rule 60 Motion did not toll the thirty-day deadline to appeal.

DCRCP Rule 60(b); see Lambert v. Lua, 92 Hawaiʻi 228, 234, 990

P.2d 126, 132 (App. 1999) (noting that a Hawai‘i Rules of Civil

Procedure Rule 60(b) motion can only toll "the period for

appealing a judgment or order" if filed within ten days of the

judgment). Thus, Big Island FCU's appeal from the post-judgment

Order Denying Garnishment was untimely, and this court lacks

jurisdiction over an appeal from that order.

(2) In its second point of error, Big Island FCU

contends that the district court abused its discretion in

denying Big Island FCU's Rule 60 Motion. Big Island FCU argues

that the Garnishee Disclosure was filed after the Order Denying

Garnishment was issued, and "could not have been presented

during the hearing" on August 7, 2017. To that point, Big

Island FCU argues that the Garnishee Disclosure was relevant as

it constituted a general appearance by Colorado State University

in the district court proceedings, citing Ferreira v. Kamo, 18

Haw. 593, 594 (Haw. Terr. 1908).

Ferreira, however, can be distinguished from the

instant case because Colorado State University was not

represented by counsel at any proceeding. See id., 18 Haw. at

594 (noting garnishee's general appearance through an attorney).

Under both Hawai‘i and federal case law, corporations,

3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

unincorporated associations, and other entities generally must

appear in court through an attorney, except in limited

circumstances. See Alexander & Baldwin, LLC v. Armitage, 151

Hawaiʻi 37, 48-49, 508 P.3d 832, 843-44 (2022); see also Church

of the New Testament v. U.S., 783 F.2d 771, 773-74 (9th Cir.

1986) (stating unincorporated entity must be represented by an

attorney) (citation omitted). Based on the record, the

Garnishee Disclosure was signed by a human resources

representative at Colorado State University, not an attorney.

Thus, the Garnishee Disclosure was not new evidence showing

Colorado State University made an appearance in this case to

warrant relief pursuant to DCRCP Rule 60.

(3) In its third point of error, Big Island FCU

contends that the district court erred in denying its request at

the end of the October 4, 2017 hearing for service on Colorado

State University "by and through" Aguiar, its employee.

Big Island FCU, however, fails to demonstrate how its

argument that it could serve Colorado State University through

Aguiar meets any of the criteria for granting relief pursuant to

DCRCP Rule 60. See DCRCP Rule 60. Rather, this argument

challenges the post-judgment Order Denying Garnishment, and we

lack jurisdiction over an appeal from that order as discussed

above.

Based on the foregoing, we dismiss Big Island FCU's

appeal of the August 7, 2017 "Order Denying Garnishee Order" for

4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

lack of jurisdiction and affirm the October 31, 2017 "Order

Denying Plaintiff Big Island Federal Credit Union's Motion for

Reconsideration of Order Denying Garnishee Order Filed August 7,

2017."

DATED: Honolulu, Hawai‘i, October 12, 2022.

On the brief: /s/ Lisa M. Ginoza Chief Judge Mason M. Yamaki, for Plaintiff-Appellant. /s/ Karen T. Nakasone Associate Judge

/s/ Sonja M.P. McCullen Associate Judge