U.S. Bank National Association v. The Estate of Stuart D. Edwards ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
01-APR-2021
09:15 AM
Dkt. 30 OGDMR
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
U. S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR ADJUSTABLE RATE MORTGAGE TRUST 2005-2,
ADJUSTABLE RATE MORTGAGE-BACKED PASSTHROUGH CERTIFICATES,
SERIES 2005-2, Plaintiff-Appellee, v.
THE ESTATE OF STUART D. EDWARDS also known as
STUART DENZIL EDWARDS; KELLY EDWARDS also known as
KELLY ANNE EDWARDS, INDIVIDUALLY, AND AS TRUSTEE OF THE EDWARDS
FAMILY TRUST U/D/T DATED SEPTEMBER 19, 1996,
Defendants-Appellants,
and DOES 1 through 20, inclusive, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CC15100031K)
ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Upon consideration of self-represented Defendant-
Appellant Kelly Anne Edwards's (Edwards) March 18, 2021 "Motion
for Reconsideration of Order Dismissing Appeal for Lack of
Appellate Jurisdiction Entered on March 9, 2021 (Dismissal
Order)" (Motion to Reconsider Dismissal Order), the papers in
support, and the record, it appears that the court misapprehended
the effective filing date of Edwards's "Non-Hearing Motion
(1) for Reconsideration of the Order Granting in Part and Denying
in Part, that Portion of the Order Denying [Edwards's], et al.,
Non-Hearing Motion for Order for 60 Day Leave of Court to File
Counterclaim and Enjoin Necessary Parties to Plaintiff's
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Complaint Filed January 30, 2015, filed April 22 2020" (Motion to
Reconsider Circuit Court Order). Consequently, the Motion to
Reconsider Circuit Court Order tolled the time to file the notice
of appeal, and the notice of appeal was filed on December 16,
2020, within thirty days after entry of the November 17, 2020
order denying the Motion to Reconsider Circuit Court Order. See
Hawai#i Rules of Appellate Procedure (HRAP) Rules 4(a)(3) &
40(b); Ass'n of Condo. Homeowners of Tropics at Waikele ex rel.
Bd. of Directors v. Sakuma, 131 Hawai#i 254, 256, 318 P.3d 94, 96
(2013); Simpson v. Dep't of Land & Nat. Res., 8 Haw. App. 16, 21,
791 P.2d 1267, 1272 (1990), overruled on other grounds by
Kaniakapupu v. Land Use Comm'n, 111 Hawai#i 124, 139 P.3d 712;
Doe v. Doe, 98 Hawai#i 144, 151, 44 P.3d 108, 1092 (2002); HSBC
Bank USA Nat'l Ass'n v. Collman, No. CAAP-XX-XXXXXXX, 2014 WL
138945, at *1 (App. Apr. 9, 2014) (order granting HRAP Rule 40
motion for reconsideration of order dismissing appeal for lack of
appellate jurisdiction and reinstating appeal).
However, Edwards has not presented any point of law or
fact that the court overlooked or misapprehended when it held in
its Dismissal Order that the Circuit Court of the Third Circuit's
September 1, 2020 "Order Granting in Part and Denying in Part
[Edwards's], et al., Non-Hearing Motion for Order for 60 Day
Leave of Court to File First Amended Answer to Edwards's
Complaint Filed January 30, 2015; and to File Counterclaims and
Enjoin Necessary Parties, filed April 22, 2020" (Circuit Court
Order) is not final and appealable or independently appealable.
See HRAP Rule 40(b).
Therefore, IT IS HEREBY ORDERED that the Motion to
Reconsider Dismissal Order is granted in part and denied in part
as follows:
1. The request to reconsider the holding that the
appeal is dismissed as untimely is granted, and that part of the
Dismissal Order is vacated.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
2. The request to reconsider the court's holding that
the appeal is dismissed because the Circuit Court Order is not
final and appealable or independently appealable is denied.
DATED: Honolulu, Hawai#i, April 1, 2021.
/s/ Keith K. Hiraoka
Presiding Judge
/s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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