Deutsche Bank National Trust Company v. Dressler ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-JUN-2021
08:41 AM
Dkt. 23 ODSLJ
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE OF THE INDYMAC INDX MORTGAGE LOAN TRUST 2005-AR14,
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AR14
UNDER THE POOLING AND SERVICING AGREEMENT DATED JUNE 1, 2005,
Plaintiff/Counterclaim Defendant-Appellee, v.
TODD A. DRESSLER and CHTD COMPANY,
Defendants/Counterclaimants-Appellees;
MARY L. DRESSLER, Defendant/Counterclaimant-Appellant;
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10 and
DOE GOVERNMENTAL UNITS 1-10, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CC171000024)
ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
Upon review of the record, it appears we lack appellate
jurisdiction over self-represented Defendant/Counterclaimant-
Appellant Mary L. Dressler's (Dressler) appeal filed on
December 2, 2020, in appellate case no. CAAP-XX-XXXXXXX.
Dressler's December 2, 2020 notice of appeal states that she
appeals from an unidentified document filed on December 1, 2020
in the Circuit Court of the Third Circuit, Hilo Division (circuit
court), and her Civil Appeal Docketing Statement indicates she
appeals from an order entered on October 10, 2020. However,
there are no documents filed on those dates in the underlying
circuit court proceeding, Civil No. 3CC171000024.
We note the circuit court entered an order on
October 15, 2020, but that order is not an appealable order, and
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
in any event the December 2, 2020 notice of appeal is untimely as
to that order. See Hawai#i Rules of Appellate Procedure (HRAP)
Rule 4(a)(1). Similarly, a "Judgment on Findings of Fact,
Conclusions of Law and Order Granting [Plaintiff/Counterclaim
Defendant-Appellee Deutsche Bank National Trust Company's (Bank)]
Motion for Default Judgment and Summary Judgment and Decree of
Foreclosure Against All Defendants on Amended Complaint Filed
February 24, 2017" (Judgment) was filed on November 13, 2018.
The Judgment was final and appealable. See Hawaii Revised
Statutes (HRS) § 667-51(a)(1) (2016). However, Dressler did not
file the December 2, 2020 notice of appeal within thirty days
after entry of the Judgment and it is untimely as to the
Judgment.
"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, because the December 2, 2020 notice of appeal
was untimely as to the Judgment, it did not divest the circuit
court of jurisdiction to enter its March 3, 2021 "Judgment on
Amended Findings of Fact, Conclusions of Law and Order Granting
[Bank's] Motion for Default Judgment and Summary Judgment and
Decree of Foreclosure Against All Defendants on Amended Complaint
Filed February 24, 2017" (Amended Judgment). See State v.
Ontiveros, 82 Hawai#i 446, 448-49, 923 P.2d 388, 390-91 (1996)
("Where the notice of appeal is jurisdictionally defective,
filing the notice does not transfer jurisdiction from the trial
court to the appellate court."). The Amended Judgment is final
and appealable. See HRS § 667-51(a)(1) (2016). On March 17,
2021, Dressler filed another notice of appeal, which was timely
as to the Amended Judgment, although the notice of appeal was
filed in CAAP-XX-XXXXXXX. Also, in another Civil Appeal
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Docketing Statement (docket 19), originally filed March 17, 2021,
Dressler states that she appeals from the Amended Judgment.
Therefore, IT IS HEREBY ORDERED that we lack appellate
jurisdiction with regard to the appeal initiated by Dressler's
notice of appeal filed on December 2, 2020 in Case No. CAAP-20-
0000745, and therefore CAAP-XX-XXXXXXX is dismissed for lack of
jurisdiction.
IT IS HEREBY FURTHER ORDERED that the appellate clerk
shall re-file Dressler's March 17, 2021 notice of appeal (located
at docket 15 in CAAP-XX-XXXXXXX), such as to create a new
appellate case. The appellate clerk shall also re-file in the
new appellate case all documents filed in CAAP-XX-XXXXXXX since
March 17, 2021.
DATED: Honolulu, Hawai#i, June 7, 2021.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Keith K. Hiraoka
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
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