Cabral v. Palisades Pointe Estates, Inc. ( 2010 )

NOT FOR PUBLICAT.ION ]N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 30297
IN THE INTERMEDIATE COURT OF APPEALS ha
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SYLVIA CABRAL, m ``*
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PALIsADEs PoINTE EsTATEs, INc.; EDwARD LEE BATEs, et a1fT
Defendant/Counterclaim Plaintiff/Appellee,
and
GREAT AMERICAN HOTELS AND RESORTS, INC.,
Intervenor-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 03-1-O2l2)
ORDER GRANTING JULY 8, 2010 MOTION TO
DISMISS APPEAL FOR LACK OF JURISDICTION
(By: Fujise, Presiding Judge, Reifurth and Ginoza, JJ.)
Upon review of (l) Defendant/Counterclaim Plaintiff/
Appellee Palisade Pointe Estates, Inc. (Appellee Palisade Pointe
Estates) and Defendant-Appellee Edward L. Bates's (Appellee
Bates) July 8, 2010 motion to dismiss appellate court case number
30297 for lack of jurisdiction, and (2) the record, and in
consideration of (3) Plaintiff/Counterclaim-Defendant/Appellant
Sylvia Cabral's (Appellant Cabral) lack of response to Appellee
Palisade Pointe Estates and Appellee Bates's July 8, 20l0 motion
to dismiss appellate court case number 30297 for lack of
jurisdiction, it appears that we lack jurisdiction over the
appeal that Appellant Cabral as asserted from the Honorable
Joseph F. Cardoza's December 3, 2009 "Order of the Hearing Held
October 30, 2009 on various Motions and various Submissions Filed
by Plaintiff SylVia Cabral" and December 3, 2009 "Order Expunging
Bureau Filing" (hereinafter "the two December 3, 2009
interlocutory orders") because the record on appeal does not
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NOT FOR PUBLICATION ]N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
appear to contain a valid, appealable, final judgment pursuant to
Rule 58 of the Hawafi Rules of Civil Procedure (HRCP) and even
assuming, arguendo, that these two interlocutory orders are
appealable, Appellant Cabral's January 14, 2009 notice of appeal
is not timely under Rule 4(a)(1) of the Hawafi Rules of
Appellate Procedure (HRAP).
Hawaii Revised Statutes (HRS) § 641-1(a) (l993 & Supp.
2009) authorizes appeals from final judgments, orders, or
decrees. Appeals under HRS § 641-1 "shall be taken in the manner
provided by the rules of the court." HRS § 641-1(c) (l993
& Supp. 2009). HRCP Rule 58 requires that "[e]very judgment
shall be set forth on a separate document " HRCP Rule 58. Based
on this requirement under HRCP Rule 58, the Supreme Court of
Hawafi has held that "[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 [Rule] 58[.]" Jenkins v. Cades Schutte Fleminq
& Wright, 76 Hawa_i‘i ll5, ll9, 869 P.Zd 1334, 1338 (1994). "An
appeal from an order that is not reduced to a judgment in favor
or against the party by the time the record is filed in the
supreme court will be dismissed." lQ; at l20, 869 P.2d at 1339
(footnote omitted).
In the instant case, the circuit court appears to have
entered two appealable, final judgments: (l) a November 6, 2003
default judgment, and (2) an October 21, 2008 judgment that``
dismissed all claims in this case. However, it appears that the
circuit court set aside these two judgments through orders that
the circuit court entered on December 3, 2009, and January 21,
2009, respectively. Consequently, it appears that the record on
appeal does not contain a valid, appealable, final judgment,
Absent a valid, appealable, final judgment, the two December 3,
2009 interlocutory orders are not appealable unless they satisfy
the requirements for interlocutory appeals pursuant to the Forgay
v. Conrad, 47 U.S. 201 (1848), doctrine (the Forgay doctrine),
the collateral order doctrine, or HRS § 641-1(b). Even assuming,
arguendo, that the two December 3, 2009 interlocutory orders
satisfy all the requirements for the Forgay doctrine, the
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collateral order doctrine, or HRS § 641-1(b), Appellant Cabral
did not file her January 14, 2010 notice of appeal within thirty
days after entry of the two December 3, 2009 interlocutory
orders, as HRAP Rule 4(a)(1) required. Therefore, Appellant
Cabral's appeal from the two December 3, 2009 interlocutory
orders is untimely.
The failure to file a timely notice of appeal in a
civil matter is a jurisdictional defect that the parties cannot
waive and the appellate courts cannot disregard in the exercise
of judicial discretion. Bacon v. Karlin, 68 Haw. 648, 650, 727
P.2d ll27, 1128 (l986); HRAP Rule 26(b) ("[N]o court or judge or
justice thereof is authorized to change the jurisdictional
requirements contained in Rule 4 of [the HRAP]."). Accordingly,
IT IS HEREBY ORDERED that Appellee Palisade Pointe
Estates and Appellee Bates's July 8, 2010 motion to dismiss
appellate court case number 30297 for lack of jurisdiction is
granted, and this appeal is dismissed for lack of appellate
jurisdiction.
DATED: Honolulu, HawaiTq July 27, 20lO.
Presiding Judg
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Associate Judge
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Associate Jud