Wahi Ho‘omalu Limited Partnership v. Yee

• Court: Hawaii Intermediate Court of Appeals
• Decided: April 15, 2010
• Docket: 30185
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 30185

IN THE INTERMEDIATE COURT OF APPEALS

oF THE STATE oF HAWAI‘I’

WAHI }KYOMALU LIMITED PARTNERSHIP, ' a Hawaifi limited partnership, Plaintiff-Appellee

V.

ROSEMARIE L.K. YEE, Defendant-Appellanc, §

l§ =l. §§ `é§

and HEIRS OR ASSIGNS OF KEKINO(w), et al., Defendants~Appellees

APPEAL FROM THE CIRCUIT COURT OF THE SEC'OND CIRCUIT (CI`\/'IL NO. 06-1-0140)

ORDER DI SMIS S ING APPEAL (By: Nakamura, Chief Judge, Foley and Reifurth, JJ.)

Upon review of (l) Plaintiff-Appellee Wahi.}kfomalu

Limited Partnership's (Appellee Wahi HoYmBlu) February 22, 20l0 motion to dismiss Defendant-Appellant Rosemarie L. K. Lee's (Appellant Lee) appeal for lack of jurisdiction, (2) the lack of any response by Appellant Lee to Appellee Wahi Hdomalu's February 22, 2010 motion to dismiss Appellant Lee's appeal for lack of jurisdiction; and (3) the record, it appears that we lack jurisdiction over Appellant Lee's appeal from the Honorable Joseph E. Cardoza's February 9, 2009 judgment, because Appellant Lee's appeal is untimely under both Rule 4(a)(l) and

Rule 4.l(b)(1) of the Hawafi Rules of Appellate Procedure

(HR.AP) .

The February 9, 2009 judgment resolves all claims in

this case, and, thus, the February 9, 2009 judgment is an

appealable final judgment under HawaFi Revised Statutes

GB"`H.A

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPO`RTER § 641-1(@1) (1993 & supp. 2009), Rule 53 of the Hawai‘i Rules of 0ivil Procedure, and the holding in Jenkins v. Cades Schutte Fleming & Wright, 76 HawaiH.ll5, ll9, 869 P.2d l334L 1338 (l994). However, Appellant Yee did file her November 18, 2009 notice of appeal within thirty days after entry of the February 9, 2009 judgment, as HRAP Rule 4(a)(1) requires. Therefore, Appellant Yee‘s appeal in appellate court case number 30l85 is untimely under HRAP Rule 4(a)(1). Even if we would treat Appellant Yee's appeal as a cross-appeal from Defendant-Appellant Henry Maio, Jr.'s (Appellant Maio), March 10, 2009 notice of appeal that resulted in appellate court case number 29702, Appellant Yee did not file her November 18, 2009 notice of appeal within sixteen days after Appellant Maio's March 10, 2009 service by mail of Appellant Maio's March 10, 2009 notice of appeal, as HRAP Rule 4.1(b)(1) and HRAP Rule 26(c) require for a notice of cross-appeal when another party has served a notice of appeal by mail. Therefore, Appellant Yee's appeal in appellate court case number 30185 is untimely as a cross-appeal under HRAP Rule 4.1(b)(1).

The failure to file a timely notice of appeal in a

civil matter is a jurisdictional defect that the parties cannot

' waive and the appellate courts cannot disregard in the exercise

of judicial discretion. Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d l127, 1128 (1986); HRAP Rule 26(b) ("[Njo court or judge or justice thereof is authorized to change the jurisdictional requirements contained in Rule_4 of [the HRAP]."). Consequently, we lack appellate jurisdiction over Appellant Yee's appeal in

appellate court case number 30185._ Therefore,

_2_

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

IT IS HEREBY ORDERED that Appellee Wahi.}kFomaluYs February 22, 2010 motion to dismiss Appellant Lee's appeal for lack of jurisdiction is granted and this appeal is dismissed. DATED: Honolulu, HawaiUq April 151 2010- Chief Judge

Associate Judge

d imm/nam