In re: The Trust of Tsugio Kurihara Revocable Living Trust Agreement Dated August 21, 1997

• Court: Hawaii Intermediate Court of Appeals
• Decided: July 14, 2025
• Docket: CAAP-23-0000684
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 14-JUL-2025 08:13 AM Dkt. 80 ODSLJ

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

IN THE MATTER OF THE TRUST OF TSUGIO KURIHARA REVOCABLE LIVING TRUST AGREEMENT DATED AUGUST 21, 1997, as Amended and Restated

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1TR161000036)

ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION (By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

Upon review of the record, it appears that self-

represented Petitioner-Appellant Douglas M. Kurihara (Kurihara)

appeals from the Probate Court of the First Circuit's

November 9, 2023 Denial of Kurihara's "Proposed Order Regarding

Emergency Ex Parte Petition to Recuse the Honorable R. Mark

Browning from the Above-Titled Court Action for Abuse of

Judicial Discretion" (Denial of Proposed Order). The probate

court issued an Hawai‘i Probate Rules (HPR) Rule 34(a) judgment

in the underlying proceedings on a separate petition more than

thirty days before Kurihara filed his notice of appeal in this NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

case. The probate court has not entered a judgment or certified

order on the November 9, 2023 Denial of Proposed Order pursuant

to HPR Rule 34(a) or (b) as Hawaii Revised Statutes (HRS) § 641-

1(a) and/or (b) (2016) require for a trust proceeding under

these circumstances.

When this court "perceive[s] a jurisdictional defect

in an appeal, [it] must, sua sponte, dismiss the appeal."

Ciesla v. Reddish, 78 Hawai‘i 18, 20, 889 P.2d 702, 704 (1995).

HRS § 641-1 authorizes appeals from "all final judgments,

orders, or decrees of circuit" courts in civil matters including

probate and trust proceedings, and notes appeals "shall be taken

in the manner and within the time provided by the rules of

court."

HPR Rule 1(a) indicates the probate rules apply to

trust proceedings and HPR Rule 34 requires the entry of a

judgment or certified order for an appeal:

RULE 34. ENTRY OF JUDGMENT, INTERLOCUTORY ORDERS, APPEALS.

(a) Entry of Judgment. All formal testacy orders, orders of intestacy and determination of heirs, orders establishing conservatorship and/or guardianship, and orders establishing protective arrangements shall be reduced to judgment and the judgment shall be filed with the clerk of the court. Such judgments shall be final and immediately appealable as provided by statute. Any other order that fully addresses all claims raised in a petition to which it relates, but that does not finally end the proceeding, may be certified for appeal in the manner provided by Rule 54(b) of the Hawai‘i Rules of Civil Procedure.

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(b) Interlocutory Orders. In order to appeal from any other order prior to the conclusion of the proceeding, the order must be certified for appeal in accordance with Section 641–1(b) of the Hawai‘i Revised Statutes.

(c) Final Judgment Closing Proceeding. At the conclusion of the proceeding, a final judgment closing the proceeding shall be entered and filed with the clerk of the court, at which time all prior uncertified interlocutory orders shall become immediately appealable.

(d) Appeals. Final judgments as to all claims and parties, certified judgments, certified orders, and other orders appealable as provided by law may be appealed pursuant to the Hawai‘i Rules of Appellate Procedure applicable to civil actions.

(Formatting altered.)

Commentary to HPR Rule 34 explains, "Rule 34 [was] written to

conform probate practice to the policy against piecemeal

appeals, . . . to bring certainty to the timing of when and how

an appeal can be taken, and to comply with the provisions of HRS

§ 641-1." HPR Rule 34 cmt.

In cases where HPR Rule 34 applies, the supreme court

has determined when a "final judgment terminating the proceeding

has not been entered, and" the orders appealed from "were not

certified for appeal[,] . . . those orders are not before us."

In re Guardianship of Carlsmith, 113 Hawai‘i 211, 223, 151 P.3d

692, 704 (2006).

On March 6, 2024, the probate court clerk filed the

record on appeal in CAAP-XX-XXXXXXX, 1 which indicates the only

1 Kurihara failed to file a statement of jurisdiction in this case within ten days after the probate court clerk filed the record on appeal, as

(continued . . .)

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appealable HPR Rule 34(a) judgment filed in the underlying trust

proceeding was a March 8, 2021 Judgment another party appealed

from in CAAP-XX-XXXXXXX. 2 The probate court clerk also filed a

first amended record on appeal on March 7, 2024 and a first

supplemental record on appeal on May 23, 2024, which also do not

indicate that an appealable HPR Rule 34(a) judgment was filed in

the case after March 8, 2021. The record on appeal, the first

amended record on appeal, and first supplemental record on

appeal do not indicate that an HPR Rule 34(b) order was filed in

the case within thirty days before Kurihara filed his notice of

appeal, or at any time after March 8, 2021. See Hawai‘i Rules of

Appellate Procedure Rule 4(a)(1) ("When a civil appeal is

permitted by law, the notice of appeal shall be filed within 30

days after entry of the judgment or appealable order.").

Additionally, the collateral order doctrine does not

apply here. See generally Abrams v. Cades, Schutte, Fleming &

Wright, 88 Hawai‘i 319, 322, 966 P.2d 631, 634 (1998) (noting the

(. . . continued)

required by Hawai‘i Rules of Appellate Procedure (HRAP) Rule 12.1(a). HRAP Rule 12.1(e) vests this court with discretion to impose sanctions, "including dismissal of the appeal following notice and a meaningful opportunity to be heard." However, as noted in the body of this order we dismiss Kurihara's appeal because we lack appellate jurisdiction over the order Kurihara appealed from, not because Kurihara failed to file a statement of jurisdiction in this appeal.

2 This court disposed of CAAP-XX-XXXXXXX in a November 13, 2024 summary disposition order.

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three elements which must be met in order to invoke the

collateral order doctrine).

Absent an appealable judgment, HPR Rule 34(b)

certified order, or collateral order filed within the

appropriate time frame, we lack appellate jurisdiction.

Therefore, IT IS HEREBY ORDERED that CAAP-XX-XXXXXXX

is dismissed for lack of appellate jurisdiction.

IT IS FURTHER ORDERED that all pending motions are

dismissed.

DATED: Honolulu, Hawaiʻi, July 14, 2025.

/s/ Keith K. Hiraoka Presiding Judge

/s/ Clyde J. Wadsworth Associate Judge

/s/ Sonja M.P. McCullen Associate Judge