Big Island Federal Credit Union v. Aguiar, Jr. ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-OCT-2022
08:03 AM
Dkt. 56 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
BIG ISLAND FEDERAL CREDIT UNION, Plaintiff-Appellant, v.
WILFRED E. AGUIAR, JR., Defendant-Appellee,
and COLORADO STATE UNIVERSITY, Garnishee-Appellee.
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
PUNA DIVISION
(CIVIL NO. 3RC16-1-0329)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)
Plaintiff-Appellant Big Island Federal Credit Union
(Big Island FCU), appeals from the District Court of the Third
Circuit's (1) August 7, 2017 "Order Denying Garnishee Order"
(Order Denying Garnishment) 1 and (2) October 31, 2017 order
denying Big Island FCU's motion for "reconsideration" of the
Order Denying Garnishment. 2 On appeal, Big Island FCU raises
three points of error.
1 The Honorable Diana L. Van De Car presided.
2 The Honorable Michael J. Udovic presided.
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Upon careful review of the record and the brief
submitted 3 and having given due consideration to the issues
raised and the arguments advanced, we resolve Big Island FCU's
points of error as discussed below.
(1) Big Island FCU's first point of error alleges that
the district court reversibly erred in not issuing a garnishee
order on Colorado State University, a nonresident garnishee and
the employer of Aguiar.
However, this point of error challenges the post-
judgment Order Denying Garnishment, and we lack jurisdiction
over an appeal from this order because Big Island FCU failed to
file a notice of appeal within thirty days of this order. See
Hawaiʻi Rules of Appellate Procedure Rule 4(a)(1) (providing that
"the notice of appeal shall be filed within 30 days after entry
of the judgment or appealable order"); Chun v. Bd. of Trs. of
Employees' Ret. Sys. of State of Hawai‘i, 106 Hawai‘i 416, 428
n.12, 106 P.3d 339, 351 n.12 (2005) (explaining that "[a]
postjudgment order is an appealable final order under [Hawaii
Revised Statutes] § 641-1(a) (1993) if the order finally
determines the postjudgment proceeding").
Because Big Island FCU filed its August 31, 2017
motion for "reconsideration" based on District Court Rules of
3 Defendant-Appellee Wilfred E. Aguiar, Jr. (Aguiar) did not file an
answering brief. The appellate clerk entered a notice of default of the
answering brief on October 26, 2018.
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Civil Procedure (DCRCP) Rule 60 (Rule 60 Motion) over three
weeks after the Order Denying Garnishment, Big Island FCU's
Rule 60 Motion did not toll the thirty-day deadline to appeal.
DCRCP Rule 60(b); see Lambert v. Lua, 92 Hawaiʻi 228, 234, 990
P.2d 126, 132 (App. 1999) (noting that a Hawai‘i Rules of Civil
Procedure Rule 60(b) motion can only toll "the period for
appealing a judgment or order" if filed within ten days of the
judgment). Thus, Big Island FCU's appeal from the post-judgment
Order Denying Garnishment was untimely, and this court lacks
jurisdiction over an appeal from that order.
(2) In its second point of error, Big Island FCU
contends that the district court abused its discretion in
denying Big Island FCU's Rule 60 Motion. Big Island FCU argues
that the Garnishee Disclosure was filed after the Order Denying
Garnishment was issued, and "could not have been presented
during the hearing" on August 7, 2017. To that point, Big
Island FCU argues that the Garnishee Disclosure was relevant as
it constituted a general appearance by Colorado State University
in the district court proceedings, citing Ferreira v. Kamo, 18
Haw. 593, 594 (Haw. Terr. 1908).
Ferreira, however, can be distinguished from the
instant case because Colorado State University was not
represented by counsel at any proceeding. See id., 18 Haw. at
594 (noting garnishee's general appearance through an attorney).
Under both Hawai‘i and federal case law, corporations,
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unincorporated associations, and other entities generally must
appear in court through an attorney, except in limited
circumstances. See Alexander & Baldwin, LLC v. Armitage, 151
Hawaiʻi 37, 48-49, 508 P.3d 832, 843-44 (2022); see also Church
of the New Testament v. U.S., 783 F.2d 771, 773-74 (9th Cir.
1986) (stating unincorporated entity must be represented by an
attorney) (citation omitted). Based on the record, the
Garnishee Disclosure was signed by a human resources
representative at Colorado State University, not an attorney.
Thus, the Garnishee Disclosure was not new evidence showing
Colorado State University made an appearance in this case to
warrant relief pursuant to DCRCP Rule 60.
(3) In its third point of error, Big Island FCU
contends that the district court erred in denying its request at
the end of the October 4, 2017 hearing for service on Colorado
State University "by and through" Aguiar, its employee.
Big Island FCU, however, fails to demonstrate how its
argument that it could serve Colorado State University through
Aguiar meets any of the criteria for granting relief pursuant to
DCRCP Rule 60. See DCRCP Rule 60. Rather, this argument
challenges the post-judgment Order Denying Garnishment, and we
lack jurisdiction over an appeal from that order as discussed
above.
Based on the foregoing, we dismiss Big Island FCU's
appeal of the August 7, 2017 "Order Denying Garnishee Order" for
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lack of jurisdiction and affirm the October 31, 2017 "Order
Denying Plaintiff Big Island Federal Credit Union's Motion for
Reconsideration of Order Denying Garnishee Order Filed August 7,
2017."
DATED: Honolulu, Hawai‘i, October 12, 2022.
On the brief: /s/ Lisa M. Ginoza
Chief Judge
Mason M. Yamaki,
for Plaintiff-Appellant. /s/ Karen T. Nakasone
Associate Judge
/s/ Sonja M.P. McCullen
Associate Judge
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