Fernandes v. Hashimoto ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#\I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-JUN-2020
09:26 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
MARY ANN O. FERNANDES, Plaintiff/Counterclaim-Defendant/
Appellant/Cross-Appellee, MARY ANN K. BODE, in her capacity as
attorney in fact for MARY ANN O. FERNANDES,
Plaintiff/Appellant/Cross-Appellee, v. ANNETTE HASHIMOTO,
Defendant/Counterclaim-Plaintiff/Appellee, and ALAN HASHIMOTO,
Defendant/Counterclaim-Plaintiff/Appellee/Cross-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CC161000099)
ORDER
DENYING MAY 22, 2020 MOTION TO TEMPORARILY REMAND CASE
AND
DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Upon review of (1) Plaintiff/Counterclaim-Defendant/
Appellant/Cross-Appellee Mary Ann O. Fernandes's (Fernandes) and
Plaintiff/Appellant/Cross-Appellee Mary Ann K. Bode's (Bode)
May 22, 2020 motion for a temporary remand, (2) the lack of any
response by Defendant/Counterclaim-Plaintiff/Appellee Annette
Hashimoto (Annette Hashimoto),1 self-represented, and
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Although Alan Hashimoto purported to assert his April 6, 2020
notice of cross-appeal on behalf of both himself and Annette Hashimoto, Alan
Hashimoto is not licensed to practice law in Hawai #i. Under HRS § 605-2
(2016) and HRS § 605-14 (2016), non-attorneys such as Alan Hashimoto "are not
permitted to act as attorneys and represent other natural persons in their
causes." Oahu Plumbing & Sheet Metal, Ltd. v. Kona Constr., Inc., 60 Haw.
372, 377, 590 P.2d 570, 573 (1979) (citation and footnote omitted). In fact,
"[a]ny person violating sections 605-14 to 605-16 shall be guilty of a
misdemeanor." HRS § 605-17 (2016). As the lone signatory of the April 6,
NOT FOR PUBLICATION IN WEST'S HAWAI#\I REPORTS AND PACIFIC REPORTER
Defendant/Counterclaim-Plaintiff/Appellee/Cross-Appellant Alan
Hashimoto (Alan Hashimoto), self-represented, to Fernandes's and
Bode's May 22, 2020 motion, and (3) the record, it appears that
we lack appellate jurisdiction over Fernandes's and Bode's appeal
and Alan Hashimoto's cross-appeal from the Honorable Randal G.B.
Valenciano's October 1, 2019 findings of fact, conclusions of law
and order and the February 21, 2020 order granting Fernandes's
motion to dismiss Alan Hashimoto. Further, the requested
temporary remand is unwarranted, because Fernandes and Bode
expressly concede in their May 22, 2020 motion that the circuit
court indicated it would not enter a final judgment at this time
because the circuit court indicated that it should have denied
the motion to dismiss Alan Hashimoto.
Fernandes and Bode correctly observe that this court
lacks appellate jurisdiction over the appeal and cross-appeal in
CAAP-XX-XXXXXXX because the circuit court has not yet reduced its
multiple dispositive interlocutory orders to an appealable final
judgment, as Hawaii Revised Statutes (HRS) § 641-1(a) (2016)
requires under Rule 58 of the Hawai#i Rules of Civil Procedure
(HRCP) and the holding in Jenkins v. Cades Schutte Fleming &
Wright, 76 Hawai#i 115, 119, 869 P.2d 1334, 1338 (1994) (In civil
circuit court cases, "[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[.]"). "[B]ased on Jenkins and HRCP
Rule 58, an order is not appealable, even if it resolves all
claims against the parties, until it has been reduced to a
separate judgment." Carlisle v. One (1) Boat, 119 Hawai#i 245,
254, 195 P.3d 1177, 1186 (2008); Bailey v. DuVauchelle, 135
Hawai#i 482, 489, 353 P.3d 1024, 1031 (2015). The appeal and
cross-appeal in CAAP-XX-XXXXXXX are premature.
2020 notice of cross-appeal, Alan Hashimoto is the lone cross-appellant.
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NOT FOR PUBLICATION IN WEST'S HAWAI#\I REPORTS AND PACIFIC REPORTER
In Fernandes's and Bode's May 22, 2020 motion, they
specifically request that this court temporarily remand this case
to the circuit court with either (a) instructions for the circuit
court to amend the February 21, 2020 order granting Fernandes's
motion to dismiss Alan Hashimoto or (b) instructions "mandating"
that the circuit court enter an appealable final judgment.
However, in the absence of an appealable final judgment, the
circuit court has retained jurisdiction to alter or amend all
past interlocutory orders, despite the pending appeal.
"[G]enerally, the filing of a notice of appeal divests the trial
court of jurisdiction over the appealed case." TSA Int'l Ltd. v.
Shimizu Corp., 92 Hawai#i 243, 265, 990 P.2d 713, 735 (1999)
(citations omitted). "The general rule, however, assumes that
the notice of appeal is valid under the applicable statutory
provisions and procedural rules. Where the notice of appeal is
jurisdictionally defective, filing the notice does not transfer
jurisdiction from the trial court to the appellate court." State
v. Ontiveros, 82 Hawai#i 446, 449, 923 P.2d 388, 391 (1996)
(citations omitted; emphasis added). Absent an appealable final
judgment, Fernandes's and Bode's March 10, 2020 notice of appeal
and Alan Hashimoto's April 6, 2020 notice of cross-appeal were
jurisdictionally defective and failed to transfer jurisdiction to
the Hawai#i Intermediate Court of Appeals. The circuit court
presently retains jurisdiction to alter or amend any of its past
interlocutory orders.
Fernandes and Bode correctly note that the Supreme
Court of Hawai#i now holds that, if the record on appeal
indicates that the circuit court has resolved all claims against
all parties, the only thing lacking to perfect an aggrieved
party's right to obtain appellate review is the entry of the
final judgment, and the record does not reveal any legitimate
reason why the circuit court has not entered a final judgment,
then the Hawai#i Intermediate Court of Appeals should invoke HRS
§ 602-57(3) (2016) and temporarily remand the case to the circuit
court with instructions to enter and supplement the record on
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NOT FOR PUBLICATION IN WEST'S HAWAI#\I REPORTS AND PACIFIC REPORTER
appeal with an appealable final judgment. Waikiki v. Ho#omaka
Village Ass'n of Apartment Owners, 140 Hawai#i 197, 204, 398 P.3d
786, 793 (2017) (footnote omitted). However, the present case is
distinguishable from the circumstances in Waikiki, where the
court observed that "[i]t is unclear why the circuit court did
not enter a final judgment." Id. (footnote omitted). In the
present case, Fernandes and Bode have expressly represented to
this court that the circuit court indicated that it will not
enter a final judgment because the circuit court now believes
that it should have denied the motion to dismiss Fernandes's and
Bode's complaint as to Alan Hashimoto. The record also shows
that the parties have proposed multiple final judgments, but the
circuit court has not approved any of them. When, as here, a
circuit court has indicated that it is not yet ready to enter a
final judgment because the circuit court has not yet finally
adjudicated all of the causes of action, a temporary remand
pursuant to HRS § 602-57(3) and the holding in Waikiki is
unwarranted.
Therefore, IT IS HEREBY ORDERED that Fernandes's and
Bode's May 22, 2020 motion for a temporary remand is denied.
IT IS FURTHER HEREBY ORDERED that the appeal and cross-
appeal in appellate court case number CAAP-XX-XXXXXXX are
dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawai#i, June 12, 2020.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
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