Flores v. Safeway, Inc.

531 P.3d 1084, 153 Haw. 251

• Court: Hawaii Intermediate Court of Appeals
• Decided: June 30, 2023
• Docket: CAAP-21-0000016
• Status: Published

Opinion

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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 30-JUN-2023 09:57 AM Dkt. 35 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

THOMAS FLORES, Claimant-Appellant/Appellant, v. SAFEWAY, INC., Employer-Appellee/Appellee, and SAFEWAY HAWAII WORKERS COMP, Insurance Carrier-Appellee/Appellee.

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2020-077; DCD NO. 2-18-07679)

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

Self-Represented Claimant-Appellant/Appellant Thomas

Flores appeals from the Labor and Industrial Relations Appeals

Board's (LIRAB) December 7, 2020 Decision and Order (Decision

and Order) dismissing his untimely appeal to LIRAB.

As a preliminary matter, Flores' Opening Brief does

not comply with Hawai‘i Rules of Appellate Procedure (HRAP) NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Rule 28. Flores does not provide points of error or record

references.

Although an appellant's brief does not comply with

HRAP Rule 28, the Hawai‘i appellate courts adhere to a "policy of

affording litigants the opportunity to have their cases heard on

the merits, where possible." Marvin v. Pflueger, 127 Hawai‘i

490, 496, 280 P.3d 88, 94 (2012) (citation and internal

quotation marks omitted). Accordingly, to promote access to

justice, we liberally interpret pleadings prepared by self-

represented litigants and attempt to provide them appellate

review despite their failure to comply with the appellate rules.

See Erum v. Llego, 147 Hawai‘i 368, 380-81, 465 P.3d 815, 827-28

(2020).

From what we can discern, Flores (1) challenges this

court's jurisdiction, and (2) requests we remand this case to

the Disability Compensation Division.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve the

point of error as discussed below, and affirm.

As relevant to this appeal, Flores filed a notice of

appeal to LIRAB on January 6, 2020. It was unclear from the

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notice of appeal what Flores was appealing. On September 15,

2020, LIRAB ordered Flores and Employer-Appellee/Appellee

Safeway, Inc. to "Show Cause why this appeal, filed on

January 6, 2020, should not be dismissed as untimely or for lack

of jurisdiction." Safeway responded, and requested LIRAB

dismiss Flores' appeal with prejudice as it was untimely.

Flores also responded, asserting "[t]he notice[] received was

postmarked 12/23/19 and a copy of the postmark was submitted as

evidence when the appeal was made[,]" but he did not further

address whether LIRAB should dismiss the appeal. 1

After Flores requested more time to specify the

decision from which he appealed, LIRAB entered an amended order

to show cause on October 9, 2020, giving Flores until

October 22, 2020, "to identify, in writing to the Board, the

'*Post Marked 12/23/19' item from which he appealed." The

record does not reflect a written response from Flores.

During the December 3, 2020 hearing on the order to

show cause, Flores "expressed that his January 6, 2020 appeal

related to Employer's request to quash a subpoena." On

December 7, 2020, LIRAB dismissed Flores' January 6, 2020

1 In his response, Flores asserted he "responded within a reasonable amount of time[,]" and the remainder of his response discussed the subpoena, video surveillance, and coverage under Workers' Compensation.

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appeal, finding that the "December 4, 2019 decision by the

Director essentially denied production of a video . . . by

considering it 'resolved,' because Claimant's work injury had

been accepted as compensable." LIRAB also found that: "[t]he

Director's decision was dated and sent to the parties on

December 4, 2019[;]" an appeal from the December 4, 2019

decision was due by December 24, 2019, but Flores filed his

appeal on January 6, 2020; and the appeal was untimely.

In his appeal to this court, Flores does not challenge

any findings by LIRAB and we are thus bound by LIRAB's findings.

See Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai‘i 450,

458, 40 P.3d 73, 81 (2002) ("Findings of fact . . . that are not

challenged on appeal are binding on the appellate court.").

Instead, Flores asserts this court "does not have jurisdiction

to address the issue, and decision on appeal" and requests that

we "remand to Disability Compensation Division (DCD) for issue

of orders, and or decisions."

Contrary to Flores' assertion, this court has

appellate jurisdiction over his appeal pursuant to Hawaii

Revised Statutes (HRS) §§ 91-14(a) (2012), 386-88 (2015), and

602-57(1) (2016). See Bocalbos v. Kapiolani Med. Ctr. for Women

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& Child., 89 Hawai‘i 436, 439, 974 P.2d 1026, 1029 (1999)

(explaining that HRS § 91–14(a), "the statute authorizing

appeals in administrative agency cases[,]" governs "[t]he appeal

of a decision or order of the LIRAB[,]" and "authorizes judicial

review of 'a final decision and order in a contested case' or 'a

preliminary ruling of the nature that deferral of review pending

entry of a subsequent final decision would deprive appellant of

adequate relief'").

Pursuant to HRS § 386-88, Flores timely appealed to

this court "by filing a written notice of appeal" with LIRAB

less than 30 days after LIRAB entered its December 7, 2020

decision. See HRS § 386-88. Moreover, "though a lower court is

found to have lacked jurisdiction, we have jurisdiction here on

appeal, not of the merits, but for the purpose of correcting an

error in jurisdiction." Curtis v. Bd. of Appeals, Cnty. of

Hawai‘i, 90 Hawai‘i 384, 393, 978 P.2d 822, 831 (1999) (citation

and internal quotation marks omitted). Accordingly, this court

has jurisdiction over this appeal.

Given the record in this case, LIRAB correctly

determined that it lacked jurisdiction over Flores' untimely

appeal filed on January 6, 2020. LIRAB thus properly dismissed

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the appeal, and Flores established no grounds for remanding this

matter to the Disability Compensation Division.

Based on the foregoing, we affirm LIRAB's December 7,

2020 Decision and Order.

DATED: Honolulu, Hawai‘i, June 30, 2023.

On the briefs: /s/ Lisa M. Ginoza Chief Judge Thomas Flores, self-represented /s/ Keith K. Hiraoka Claimant-Appellant/Appellant. Associate Judge

Beverly S.K. Tom, /s/ Sonja M.P. McCullen Sylvia K. Higashi, Associate Judge for Employer-Appellee/ Appellee and Insurance Carrier-Appellee/ Appellee.