Madison v. Provost ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-MAY-2023
08:30 AM
Dkt. 43 OGMR
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
MARISA MADISON, fka MARISA M. PROVOST, Plaintiff-Appellant, v.
CHARLETON J. PROVOST, Defendant-Appellee.
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NO. 2DV181000378)
ORDER GRANTING MOTION FOR RECONSIDERATION
(By: Ginoza, Chief Judge, Wadsworth and Chan, JJ.)
Upon consideration of Plaintiff-Appellant Marisa
Madison's (Madison) May 15, 2023 Motion for Reconsideration of
May 10, 2023 Order Granting Motion to Dismiss Appeal (Motion for
Reconsideration), the papers in support, and the record, it
appears:
(1) Madison seeks reconsideration of the court's
May 10, 2023 Order Granting Motion to Dismiss Appeal (Dismissal
Order);
(2) Madison does not dispute that the court entered the
Dismissal Order after (a) the court, on September 8, 2022,
granted Madison relief from default of the statement of
jurisdiction and opening brief and extended the deadline to file
the same, (b) Madison thereafter failed to file the statement of
jurisdiction and opening brief, and (c) Madison did not oppose
Defendant-Appellee Charleton J. Provost's January 4, 2023 Motion
to Dismiss Appeal;
(3) In support of the Motion for Reconsideration,
Madison's counsel, Barry L. Sooalo (Sooalo), asserts he was
temporarily incapacitated, due to circumstances beyond his
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
control, and he filed under seal his declaration, in which he
sets forth the circumstances he was dealing with that caused him
to not file the opening brief. The declaration does not attach
or include medical or health records, and it apparently does not
contain other information which would be "personal information"
as defined by Hawai i Court Records Rules Rule 2.19; 1 and
(4) The court has previously cautioned and sanctioned
Sooalo over his noncompliance with court rules, and his continued
noncompliance burdens both the parties and the court.
Nonetheless, Hawaii's appellate courts have "consistently adhered
to the policy of affording litigants the opportunity to have
their cases heard on the merits, where possible," Schefke v.
Reliable Collection Agency, Ltd., 96 Hawai i 408, 420, 32 P.3d
52, 64 (2001) (citation and quotation marks omitted).
Therefore, IT IS HEREBY ORDERED that the Motion for
Reconsideration is granted as follows:
1. The Dismissal Order is vacated and the appeal is
reinstated.
2. The deadline to file the opening brief and a
statement of jurisdiction is extended to June 23, 2023. No
further extensions of time will be granted absent extraordinary
circumstances.
3. Any further default of the opening brief or
statement of jurisdiction may result in sanctions authorized by
Hawai i Rules of Appellate Procedure (HRAP) Rules 12.1(e) and 30,
including, without limitation, monetary sanctions, dismissal of
this appeal, or both.
4. Additionally, Sooalo is strongly cautioned that he
is responsible for complying with court rules and court ordered
deadlines and that further noncompliance may result in referral
to the Office of Disciplinary Counsel.
IT IS FURTHER ORDERED that, within ten (10) days of
this order, Sooalo may file a motion to keep his Declaration
(docket 41) sealed (Motion to Seal), setting forth the basis and
1
In filing the declaration, Sooalo also failed to include a three-inch
top margin, or a three-inch-by-three inch space in the top right corner of the
flyleaf, which is required by Hawai i Rules of Appellate Procedure Rule 32(a).
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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
authority for sealing the document. If Sooalo files a Motion to
Seal, Defendant-Appellee Charleton J. Provost may file an
opposition thereto within five (5) days of the motion being
filed.
IT IS FURTHER ORDERED that, in the event Sooalo does
not file a Motion to Seal, the appellate clerk shall unseal the
Declaration at docket 41.
DATED: Honolulu, Hawai i, May 24, 2023.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Clyde J. Wadsworth
Associate Judge
/s/ Derrick H.M. Chan
Associate Judge
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