Samrao, M.D. v. Nielson

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-MAR-2022
08:12 AM
Dkt. 20 OGMD
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
AMAN SAMRAO, M.D., Petitioner-Appellant, v.
LORRIE BETSILL NIELSON, Respondent-Appellee
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
(CASE NO. 2DSS-XX-XXXXXXX)
ORDER GRANTING MOTION TO DISMISS APPEAL
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)
Upon consideration of Respondent-Appellee Lorrie
Bestell Nielson's (Nielson) October 26, 2021 "Motion to Dismiss
[Petitioner-Appellant Aman Samrao, M.D. (Samrao)]'s Appeal From
Order Denying [Nielson]'s Motion for Sanctions Pursuant to DCRCP
Rule 11 and Granting [Nielson]'s Motion for Attorneys' Fees and
Costs Pursuant to HRS 605-10.5(h) and [Nielson]'s Motion for
Sanctions," the papers in support and in opposition, and the
record, the following appears:
Nielson asks the court to dismiss the appeal, under
Hawai#i Rules of Appellate Procedure (HRAP) Rule 3,1 because
Samrao violated HRAP Rules 10(b)(2) and 12.1 by failing to timely
request transcripts or file a jurisdiction statement. Further,
Nielson requests that the court sanction Samrao and award Nielson
1
Nielson cites to the portion of HRAP Rule 3 that states: "Failure of
an appellant to take any step other than the timely filing of a notice
of appeal does not affect the validity of the appeal, but is ground only for
such action as the appellate court deems appropriate, which may include
dismissal of the appeal."
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
attorneys' fees and costs under HRAP Rule 12.12 for violating the
court's policy against piecemeal appeals, because this is the
second of three appeals initiated by Samrao from the same
underlying proceeding.
In opposition, Samrao concedes that the appeal should
be dismissed. However, Samrao argues that an award of attorney's
fees and costs to Nielson is not warranted because: Nielson did
not need to file the motion to dismiss the appeal where the court
had already issued a notice that Samrao was in default on the
jurisdiction statement and opening brief and the court could
dismiss the appeal sua sponte; Samrao's counsel purportedly was
"seeking out a stipulation" to withdraw the appeal; and Nielson
never demanded that Samrao dismiss the appeal.
On October 20, 2021, the Appellate Clerk notified the
parties that Samrao had failed to file a jurisdiction statement
or opening brief by the deadline, the matter would be brought to
the court's attention on November 1, 2021, and the appeal may be
dismissed. Samrao did not respond to the notice or file a
statement of jurisdiction or opening brief.
Therefore, IT IS HEREBY ORDERED that the motion to
dismiss the appeal is granted, and the appeal in CAAP-XX-XXXXXXX
is dismissed for Samrao's failure to file the statement of
jurisdiction and the opening brief.
IT IS FURTHER ORDERED that the motion for sanctions is
denied, without prejudice to Nielson seeking attorney's fees and
costs under Hawaii Revised Statutes § 604-10.5(h) should she be
the prevailing party in the action as specified in that statute.
DATED: Honolulu, Hawai#i, March 21, 2022.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Sonja M.P. McCullen
Associate Judge
2
HRAP rule 12.1(e) provides: "Failure to file a statement of
jurisdiction may result in sanctions, including dismissal of the appeal
following notice and a meaningful opportunity to be heard."
2