Our Home Investments, LLC v. Velasco ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-FEB-2023
02:17 PM
Dkt. 26 ODSLJ
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
OUR HOME INVESTMENTS, LLC,
a Nevada Limited Liability Company, Plaintiff-Appellee,
v. DENNIS VELASCO, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CIVIL NO. 1DRC-XX-XXXXXXX)
ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)
Upon consideration of self-represented Defendant-
Appellant Dennis Velasco's (Velasco) Petition for Writ of
Prohibition filed December 14, 2022 (Petition),1 the papers in
support, and the record, it appears that:
(1) Velasco appeals from the "Order Denying
Defendant's [District Court Rules of Civil Procedure Rule] 12.1
Motion" (Denial Order) entered August 1, 2022, in the District
Court of the First Circuit (district court).
(2) We lack jurisdiction over the appeal because the
Denial Order is not a final, appealable order or judgment. See
Hawaii Revised Statutes § 641-1(a) (2016); Casumpang v. ILWU,
Local 142, 91 Hawai i 425, 426, 984 P.2d 1251, 1252 (1999)
(cleaned up). Moreover, the Denial Order is not independently
appealable under the collateral-order doctrine or Forgay
doctrine, Greer v. Baker, 137 Hawai i 249, 253, 369 P.3d 832, 836
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Due to an electronic filing error, this matter did not come to the
court's attention until February 3, 2023.
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
(2016), and though the district court subsequently entered a
Judgment for Possession (Judgment) in the underlying case on
December 9, 2022, which is a final and appealable judgment,
Velasco's August 8, 2022 notice of appeal does not meet the
requirements for a premature appeal from a final judgment, under
Hawai i Rules of Appellate Procedure (HRAP) Rule 4(a)(2).
Therefore, the court must dismiss the appeal for lack of
jurisdiction.
(3) However, in the Petition, Velasco contends, inter
alia, that the district court lacked authority to enter the
Judgment and the December 9, 2022 Writ of Possession (Writ), and
he seeks an order directing the district court to "rescind" the
same pending this appeal. The court construes the Petition as a
new notice of appeal from the Judgment, and as a motion to stay
enforcement of the Judgment and Writ. See Waltrip v. TS
Enterprises, Inc., 140 Hawai i 226, 241, 398 P.3d 815, 830 (2016)
("Hawaii's courts and agencies [should] not construe pro se
filings in a manner that leads to a decision that does not
promote access to justice.").
(4) It appears that Velasco fails to demonstrate
entitlement to a stay pending appeal. See Stop Rail Now v.
DeCosta, 120 Hawai i 238, 243, 203 P.3d 658, 663 (App. 2008).
Therefore, IT IS HEREBY ORDERED that the appeal is
dismissed for lack of appellate jurisdiction.
IT IS FURTHER ORDERED that the appellate clerk shall
create a new CAAP case and re-file the Petition in that case as a
(1) notice of appeal from the Judgment, and (2) motion for stay.
IT IS FURTHER ORDERED that Velasco's motion for stay is
denied.
DATED: Honolulu, Hawai i, February 7, 2023.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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