In re Aloha Island Enterprises LLC ( 2010 )

LAW L|BHAE``~ҤY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIF\I``C REPORTER
NO. 30492
IN THE INTERMEDIATE COURT OF APPEALS
oF THE STATE oF HAWAI‘:
In the Matter of ALOHA ISLAND ENTERPRISES LLC,
Notice of Failure to Comply with Hawaii Revised
Statutes and Commission's Regulations; Order to
Show Cause Why Respondent's Operating AuE;orityQg
Should Not Be Suspended or Revoked m
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APPEAL FROM THE PUBLIC UTILITIES COMMISSIO'
(DOCKET NO. 2009-Ol98)
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ORDER DISMISSING APPEAL
FOR LACK OF APPELLATE JURISDICTION
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Upon review of the record, it appears that we do not
have jurisdiction over Appellant Aloha Island Enterprises, LLC's
(Appellant Aloha Island Enterprises), appeal from the following
two orders that Appellee State of Hawafi Public Utilities
Commission's (Appellee PUC)1 entered:
2010 order revoking Appellant Aloha
certificate of public convenience
(1) a February 11,
2010 revocation
Island Enterprises'
and necessity (the February 11,
order), and
(2) an April 8, 2010 order dismissing Appellant Aloha
Island Enterprises' February 24, 2010 motion for
reconsideration of the February 11,
order and denying Appellant Aloha Island Enterprises'
2010 motion to enlarge the time period
2010 revocation
February 24,
for filing a notice of appeal.
As explained below, Appellant Aloha Island Enterprises did not
perfect its right to appeal pursuant to Hawafi Revised Statutes
(HRS) § 271-32 (2007) and HRS § 271-33 (2007).
Administrative appeals commence in a circuit court
f[e]xcept as otherwise provided[.]" HRS § 91-14(b) (1993 & Supp.
1 In this matter, the Appellee HawaFi Public Utilities Commission
Commissioner John E. Cole, and
is comprised of Chairman Carlito P. Caliboso,
Commissioner Leslie H. Kondo.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
2009). With respect to appeals from Appellee PUC's orders, the
Hawafi legislature has provided otherwise:
HRS Chapter 271, the Motor Carrier Law, regulates the
commercial transportation of people and property. The PUC
administers HRS Chapter 271; HRS Chapter 269 governs the PUC
and also applies to the administration of HRS Chapter 271
where not inconsistent. HRS § 271-2 (1993).
within HRS Chapter 271, there are two relevant
statutory provisions governing appeals: HRS § 271-32(e)
(1993) and HRS § 271-33 (1993) .
In re Robert's Tours & Transportation, Inc., 104 HawaFi 98, 102,
85 P.3d 623, 627 (2004). "[B]oth HRS §§ 271-32(e) and -33 allow
a party to appeal from a final PUC order, provided that the party
has filed (and the PUC has denied) a motion for reconsideration
of the PUC's order[.]" Id. at lO4, 85 P.3d at 629. HRS § 271-
32(e) provides:
(e) An appeal shall lie, subject to chapter 602, from'
every order made by the commission that is final, or if
preliminary, is of the nature defined by section 91-14(a),
in the manner provided for civil appeals from the circuit
court; provided the order is made after reconsideration or
rehearing or is the subject of a motion for reconsideration
or rehearinq, which the commission has denied. An appeal
shall lie, subject to chapter 602, in the manner provided
for civil appeals from the circuit courts, only by a person
aggrieved in the contested case hearing provided for in this
section.
HRS § 271-32(e) (emphases added). Furthermore, HRS § 271-32(b)
provides a ten-day time limit for filing the mandatory motion for
reconsideration:
(b) The motion for reconsideration or a rehearing
shall be filed within ten days after the decision and order
has been served and shall set forth specifically the ground``
or grounds on which the applicant considers the decision or
order to be unlawful. No person shall in any court urge or
rely on any ground not so set forth in the motion.
HRS § 271-32(b) (emphasis added). HRS § 271-33
provides in relevant part:
From the order made on an application for
reconsideration or rehearing by the public utilities _
commission under this chapter, an appeal shall lie, subject
to chapter 602, in the manner and within the time provided
for civil appeals from the circuit courts and by the rule of
court; provided the order is final, or if preliminary is of
the nature defined by section 91-14(a).
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PAC[FIC REPORTER
HRS § 271-33 (emphases added). Therefore, "under HRS § 271-
32(e) . . . and HRS § 271-33 . . . , the aggrieved party may
appeal from a PUC order only after the party has moved for, and
the PUC has denied, reconsideration of the order." ;n_;g
BrandOn, 113 HaWafi 154, l56, 149 P.3d 806, 808 (App. 2006)
(dismissing an appeal for lack of jurisdiction when an appellant
failed to file, and obtain an adjudication of, a motion for
reconsideration of a PUC order). Furthermore, because HRS § 271-
32(b) provides that "[n]o person shall in any court urge or rely
on any ground not so set forth in the motion [for
reconsideration][,]" the Supreme Court of Hawafi has recognized
that "appellants cannot raise . . . errors on appeal to this
court . . . [that] were not specifically set forth in their``
petition for reconsideration to the [Public Utilities] Commission
as required by HRS § 271-32(b)." Application of Charlev's Tour
and TranSp., 55 HaW. 463, 467, 522 P.2d l272, 1276 (1974)
(footnote omitted). Accordingly, a timely motion for
reconsideration is necessary to both (a) perfect a party's right
to assert an appeal from a PUC order and (b) formally raise the
issues that the party wants an appellate court to review.
The timing of the mandatory motion for reconsideration
is a jurisdictional issue. "The motion for reconsideration or a
rehearing shall be filed within ten days after the decision and
order has been served[.]" HRS § 271-32(b) (emphasis added); see
also Hawafi Administrative Rules (HAR) § 6-61-137 (2010) ("The
motion shall be filed within ten days after the decision or order
is served upon the party[.]"). Service of an order by Appellee
_3_
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
PUC upon an aggrieved party is effective on the date when "[t]he
document is properly stamped, addressed, and mailed to the last
known address of the party on file with the commission or to its
attorney." HAR § 6-61-21(d)(3) (2010). Furthermore, when
Appellee PUC serves an order by mail, "two days shall be added to
the prescribed period." HAR § 6-61-21(e). In the instant case,
Appellee PUC served the February 11, 2010 revocation order on
Appellant Aloha Island Enterprises by mail on February 11, 2010.
Therefore, the last day when Appellant Aloha Island Enterprises
could file a motion for reconsideration was twelve days later, on
Tuesday, February 23, 2010. HRS § 271-32(b); HAR § 6-6l~2l(e);
HAR § 6-61-137. However, Appellant Aloha Island Enterprises
filed its February 24, 2010 motion for reconsideration one day
late, on Wednesday, February 24, 2010. Therefore, Appellant
Aloha Island Enterprises‘ February 24, 2010 motion for
reconsideration was untimely under HRS § 271-32(b), HAR § 6-61-
21(e), and HAR § 6-61-137, and Appellee Aloha Island Enterprises
failed to perfect its right to assert an appeal. Although
Appellee Aloha Island Enterprises also moved Appellee PUC to
enlarge the ten-day time limit for its motion for reconsideration
pursuant to HAR § 6-6-23(a)(2) (2010), Appellee PUC denied the
motion to enlarge time based on Appellee PUC's finding that``
Appellee Aloha Island Enterprises did not show "excusable
neglect," as HAR § 6-6-23(a)(2) requires for enlargement of
time. Furthermore, Appellee PUC "may not extend the time for
taking any action on jurisdictional matters[.]" HAR § 6-6- __
23(a)(2). With respect to the jurisdictional issue of timeliness
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPOR'l``ER
in civil appeals, the Supreme Court of Hawafi has consistently
"held that this type of jurisdictional defect can neither be
waived by the parties nor disregarded by the court in the
exercise of judicial discretion.“ Ass’n of Apartment Owners of
Governor Cleqhorn v. M.F.D., Inc., 60 Haw. 65, 70, 587 P.2d 301,
3 0 4 ( 1 9 7 8 ) .
Based on the untimeliness of Appellee Aloha Island
Enterprises's February 24, 2010 motion for reconsideration of the
February 11, 2010 revocation order, neither the February 11, 2010
revocation order nor the April 8, 2010 order dismissing Appellant
Aloha Island Enterprises' February 24, 2010 motion for
reconsideration is an appealable order under HRS § 271-32(e) and
HRS § 271-33. Absent an appealable order, we lack jurisdiction
over Appeal No. 30492.
Therefore, IT IS HEREBY ORDERED that this appeal is
dismissed for lack of appellate jurisdiction.
September 31 §Ol0.
DATED: Honolulu, HawaiUq
;£M/J> ``/
Presiding Judge
Associate Judge §§ §§ ``