In re: The Estate of Susan Aldeguer ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-APR-2021
09:49 AM
Dkt. 63 OGMD
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
THE ESTATE OF SUSAN ALDEGUER, Deceased
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(PROBATE NO. 1LP151000426)
ORDER GRANTING MOTION TO DISMISS APPEAL
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Upon consideration of the Motion for Order Dismissing
Appeal (Motion), filed March 10, 2021, by Petitioner-Appellee
Walterbea Aldeguer (Walterbea), the papers in support, and the
record, it appears we lack appellate jurisdiction over self-
represented Petitioner-Appellant Jaynai Leinaala Aldeguar's
(Jaynai) appeal from Probate Number 1LP151000426.
Walterbea argues the court lacks jurisdiction over the
appeal because no judgment or appealable order was entered by the
Circuit Court of the First Circuit (probate court) within thirty
days of the notice of appeal, and the notice of appeal was not
filed within thirty days after entry of the probate court's
November 25, 2019 Judgment Pursuant to Order Granting Petition
for Confirmation of Sale of Real Property (Judgment Confirming
Sale); hence, the appeal is untimely, under Hawai#i Rules of
Appellate Procedure (HRAP) 4(a)(1).
Hawaii Revised Statutes (HRS) § 641-1(a) (2016)
authorizes appeals from final judgments, orders, or decrees.
Appeals under HRS § 641-1 "shall be taken in the manner . . .
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
provided by the rules of court." HRS § 641-1(c) (2016). Hawai#i
Probate Rules (HPR) Rule 34 provides in relevant part:
(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.
. . . .
(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.
(Emphasis added.)
The commentary to HPR Rule 34 provides that "Rule 34 is
written to conform probate practice to the policy against
piecemeal appeals, see, e.g., Jenkins v. Cades Schutte Fleming &
Wright, 76 Hawai#i 115, 869 P.2d 1334 (1994), 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." Under Jenkins, "[a]n
appeal may be taken . . . only after the orders have been reduced
to a judgment and the judgment has been entered in favor of and
against the appropriate parties pursuant to HRCP [Hawai#i Rules
of Civil Procedure] [Rule] 58[.]" 76 Hawai#i at 119, 869 P.2d at
1338.
Here, the notice of appeal states Jaynai is appealing
from a "final order to sale [Property]," filed on "December 17,
2015," but Jaynai did not attach a copy of the order, as required
by HRAP Rule 3(c)(2). The only December 17, 2015 ruling by the
probate court in the record is an oral order granting in part and
denying in part a petition, which is unidentified in the minutes
but appears to be Jaynai's July 1, 2015 Petition for Probate of
Will and Appointment of Personal Representative (Probate
Petition). An oral ruling is not appealable, under Jenkins.
The probate court appears to have reduced its
December 17, 2015 oral ruling to writing in its January 2, 2018
Order Granting in Part and Denying in Part [Probate Petition].
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Jaynai failed to file the notice of appeal within thirty days
after the order's issuance, as required by HRAP Rule 4(a)(1), and
it does not appear she obtained an extension of time. Thus, any
appeal from the order is untimely. "As a general rule,
compliance with the requirement of the timely filing of a notice
of appeal is jurisdictional, . . . and we must dismiss an appeal
on our motion if we lack jurisdiction." Grattafiori v. State, 79
Hawai#i 10, 13, 897 P.2d 937, 940 (1995) (cleaned up); see HRAP
Rule 26(b) ("[N]o court or judge or justice is authorized to
change the jurisdictional requirements contained in Rule 4 of
these rules.").
Further, Jaynai did not file the notice of appeal
within thirty days after entry of the probate court's
November 25, 2019 Order Granting Petition for Confirmation of
Sale of Real Property,1 as required by HRAP Rule 4(a)(1), and it
does not appear that she obtained an extension of time.
Therefore, we lack jurisdiction over any appeal as to the order,
which is untimely. See Grattafiori, 79 Hawai#i at 13, 897 P.2d
at 940; HRAP Rule 26(b).
It does not appear that any other order or judgment by
the probate court could be the subject of the appeal.
Accordingly, IT IS HEREBY ORDERED that the Motion is
granted and the appeal is dismissed for lack of appellate
jurisdiction.
DATED: Honolulu, Hawai#i, April 30, 2021.
/s/ Keith K. Hiraoka
Presiding Judge
/s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
1
The Judgment Confirming Sale is superfluous.
3