Bank of America, N.A. v. Panzo ( 2015 )

Electronically Filed
Supreme Court
SCWC-14-0001356
17-SEP-2015
09:43 AM
SCWC-14-0001356
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
BANK OF AMERICA, N.A.,
Respondent/Plaintiff-Appellee,
vs.
MICHAEL JEAN PANZO,
Petitioner/Defendant-Appellant,
and
EWA BY GENTRY COMMUNITY ASSOCIATION,
Respondent/Defendant-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001356; CIV. NO. 13-1-0152)
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI,
VACATING ICA ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION,
AND REMANDING APPEAL TO ICA
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner/defendant-appellee Michael Jean Panzo filed
a timely application for writ of certiorari on August 10, 2015 to
review the intermediate court of appeals’ (“ICA”) June 10, 2015
order dismissing the appeal for lack of jurisdiction. Petitioner
has asserted an appeal from the circuit court’s November 3, 2014
minute order on his post-judgment motion for relief from the
judgment on a decree of foreclosure that was filed pursuant to
Rule 60(b) of the Hawai#i Rules of Civil Procedure (“HRCP”).
Upon review of the record and filings in the appeal, it appears
that the circuit court’s “Order Denying Defendant Michael Jean
Panzo’s Rule 60(b) Motion for Relief from Judgment and for
Evidentiary Hearing Filed September 18, 2014,” which was filed on
January 20, 2015, was filed prior to the record on appeal being
transmitted to the ICA but was omitted from the record on appeal
that was transmitted to the ICA. Once the circuit court entered
the January 20, 2015 written order, the prematurely filed notice
of appeal vested the ICA with jurisdiction over the appeal. See
HRAP Rule 4(a)(2); Shimabuku v. Montgomery Elevator Co., 79
Hawai#i 352, 903 P.2d 48 (1995) (a premature notice of appeal
from the court’s announcement of a final and appealable order
denying intervention was deemed timely upon court’s entry of that
order); Makaneole v. Pacific Ins. Co., 77 Hawai#i 417, 886 P.2d
754 (1994) (a premature notice of appeal from the court’s
announcement of a final order granting summary judgment deemed
timely upon the court’s entry of the order). The notice of
appeal is therefore no longer premature, and the ICA has
jurisdiction to consider the appeal. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s application for
writ of certiorari is accepted. The ICA’s June 10, 2015 order
dismissing the appeal for lack of jurisdiction is vacated.
Petitioner’s appeal is remanded to the ICA for briefing and
disposition.
IT IS HEREBY FURTHER ORDERED that the clerk of the
first circuit court shall file in the ICA, within twenty (20)
days from the date of this order, a supplemental record on appeal
that includes the “Order Denying Defendant Michael Jean Panzo’s
Rule 60(b) Motion for Relief from Judgment and for Evidentiary
Hearing Filed September 18, 2014,” filed on January 20, 2015.
DATED: Honolulu, Hawai#i, September 17, 2015.
Melodie Aduja /s/ Mark E. Recktenwald
for petitioner /s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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