Sakuma v. Ayabe

• Court: Hawaii Supreme Court
• Decided: January 24, 2013
• Docket: SCPW-12-0001057
• Status: Published

Opinion

Electronically Filed Supreme Court SCPW-12-0001057 24-JAN-2013 10:32 AM

SCPW-12-0001057

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

PATSY NAOMI SAKUMA, Petitioner,

vs.

THE HONORABLE BERT I. AYABE, Judge of the Circuit Court of the First Circuit, State of Hawai#i, and KAPONO F.H. KIAKONA, Attorney, Porter McGuire Kiakona & Chow, LLP, Respondents.

ORIGINAL PROCEEDING (CAAP-12-0000145; CAAP-11-0000054; CIV. NO. 07-1-1487-08)

ORDER DENYING WITHOUT PREJUDICE PETITION FOR WRIT OF MANDAMUS (By: Nakayama, Acting C.J., Acoba, McKenna, and Pollack, JJ., and Circuit Judge Kubo, in place of Recktenwald, C.J., recused)

Upon consideration of petitioner Patsy Naomi Sakuma’s

petition for a writ of mandamus, which was filed on November 30,

2012, the documents attached thereto and submitted in support

thereof, and the record, it appears that although the post-

judgment motions have been pending since December 7, 2011 and

December 13, 2011, petitioner filed several notices of appeal

(CAAP-12-0000145 and CAAP-12-0000870) after filing the motions,

which purported to divest the circuit court of jurisdiction over

the motions. The appeals have recently been dismissed for lack of jurisdiction and the circuit court appears to have

jurisdiction over the pending motions. Therefore, although

petitioner is entitled to a ruling on the motions, she is not

entitled to an extraordinary writ at this time. See Kema v.

Gaddis, 91 Hawai#i 200, 204, 982 P.2d 334, 338 (1999) (a writ of

mandamus is an extraordinary remedy that will not issue unless

the petitioner demonstrates a clear and indisputable right to

relief and a lack of alternative means to redress adequately the

alleged wrong or obtain the requested action; where a court has

discretion to act, mandamus will not lie to interfere with or

control the exercise of that discretion, even when the judge has

acted erroneously, unless the judge has exceeded his or her

jurisdiction, has committed a flagrant and manifest abuse of

discretion, or has refused to act on a subject properly before

the court under circumstances in which he or she has a legal duty

to act). Therefore,

IT IS HEREBY ORDERED that the petition is denied

without prejudice.

DATED: Honolulu, Hawai#i, January 24, 2013.

/s/ Paula A. Nakayama

/s/ Simeon R. Acoba, Jr.

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Edward H. Kubo, Jr.