Russell v. Kaiama

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-NOV-2021
08:15 AM
Dkt. 29 ODSLJ
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JOHN A. RUSSELL, Petitioner-Appellee, v.
AZIZI KAIAMA, Respondent-Appellant,
NIKKI VELLINA; CAT VELINNA also known as PHILIX "KAT" VELLINA;
MAKA COLLIER; JUSTIN COLLIER; AUKAI COLLIER;
CHRISTOPHER COPPA; VINCENT SUKI, Respondents-Appellees,
DOES 1-50, Respondents
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO 2DSS-XX-XXXXXXX)
ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Upon review of the record, it appears that we lack
jurisdiction over the appeal by self-represented Respondent-
Appellant Azizi Kaiama from the District Court of the Second
Circuit, Wailuku Division's post-judgment (1) February 8, 2021
Order Granting Petitioner[-Appellee] John A. Russell's Non-
Hearing Motion for Fees and Costs Against [Kaiama] (Fees & Costs
Order), and (2) March 8, 2021 judgment on the Fees & Costs Order
(Fees & Costs Judgment) because the appeal is untimely.
A "post-judgment order [by a district court] is an
appealable final order under HRS [Hawaii Revised Statutes]
§ 641-1(a) if the order ends the proceedings, leaving nothing
further to be accomplished." Ditto v. McCurdy, 103 Hawai#i 153,
157, 80 P.3d 974, 978 (2003) (citation omitted). The Fees &
Costs Order was final and appealable because it finally
determined, and thus ended, the post-judgment proceeding on
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Russell's Non-Hearing Motion for Fees and Costs Against [Kaiama].
See Chun v. Bd. of Tr. of Emps.' Ret. Sys. of State of Hawai#i,
106 Hawai#i 416, 428 n.12, 106 P.3d 339, 351 n.12 (2005).
Once the district court issued the Fees & Costs Order,
there was no need for the district court to enter the subsequent
Fees & Costs Judgment. Because the Fees & Costs Judgment did not
amend the Fees & Costs Order in a material and substantial
respect, for the purpose of perfecting an aggrieved party's right
to appeal, the Fees & Costs Judgment is superfluous. Korsak v.
Hawai#i Permanente Med. Grp., 94 Hawai#i 297, 304, 12 P.3d 1238,
1245 (2000).
Kaiama did not file the notice of appeal within thirty
days after issuance of the Fees & Costs Order, as required by
Hawai#i Rules of Appellate Procedure (HRAP) Rule 4(a)(1), and it
does not appear that she obtained an extension of time.
Therefore, the appeal is untimely. Ditto, 103 Hawai#i at 159-60,
80 P.3d at 980-81. 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 1127, 1129 (1986); HRAP Rule 26(b) ("[N]o court or
judge or justice is authorized to change the jurisdictional
requirements contained in Rule 4 of these rules."); HRAP
Rule 26(e) ("The reviewing court for good cause shown may relieve
a party from a default occasioned by any failure to comply with
these rules, except the failure to give timely notice of
appeal.").
Therefore, IT IS HEREBY ORDERED that the appeal in
CAAP-XX-XXXXXXX is dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawai#i, November 17, 2021.
/s/ Keith K. Hiraoka
Presiding Judge
/s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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