RSM Inc. v. Middleton

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-MAY-2020
09:33 AM

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

RSM INC., Plaintiff-Appellee, v.
WILLIAM MIDDLETON AND TATIANA MIDDLETON,
Defendants-Appellants

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(NORTH AND SOUTH HILO DIVISION)
(CASE NO. 3RC 17-1-000320)

ORDER DISMISSING APPEAL
(By: Ginoza, Chief Judge, Chan and Wadsworth, JJ.)
Upon consideration of the February 5, 2020 motion for
relief from default of the opening brief, and February 10, 2020
motion for leave to file a late transcript request, by self-
represented litigants Defendants-Appellants William and Tatiana
Middleton (collectively, Middletons), the papers in support and
in opposition, and the record, it appears that:
(1) On May 23, 2019, the Middletons filed the Notice of
Appeal.
(2) On July 12, 2019, the clerk of the District Court
of the Third Circuit (District Court) filed the record on appeal,
making the opening brief due on August 21, 2019.
(3) On August 8, 2019, the appellate clerk granted the
Middletons an extension of time to file the opening brief, to
September 20, 2019.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(4) On September 3, 2019, the court granted the
Middletons' motion for a second extension of time to file the
opening brief, extending the deadline to October 21, 2019. The
grounds for the motion were that a necessary transcript had not
been filed; to review the issues on appeal, the court needed to
consider evidence that would be adduced at a District Court
hearing on post-judgment matters; the Middletons lacked access to
the internet at the home they were house-sitting until about the
first week in October; the Middletons had lifelong medical
issues; and the Middletons needed to care for their special needs
child.
(5) On October 8, 2019, the court granted another
motion by the Middletons for a third extension of time to file
the opening brief, extending the deadline to November 20, 2019.
The grounds for the motion were substantially similar to those
presented in the prior motion, except that the transcript was no
longer missing and the Middletons stated that they could not move
to a new residence until November.
(6) On November 14, 2019, the court granted another
motion for a fourth extension of time to file the opening brief,
extending the deadline to December 20, 2019, noting there would
be no further extensions absent extraordinary circumstances. The
grounds for the motion were substantially similar to those in the
prior motion, with an update that the District Court had
scheduled a hearing on post-judgment issues, and the Middletons
were in the process of purchasing a home and would be unable to
leave their current residence until late December.
(7) On December 9, 2019, the court granted in part
another motion for a fifth extension of time to file the opening
brief, and extended the deadline to January 21, 2020, again
noting there would be no further extensions absent extraordinary
circumstances. The Middletons had requested an extension to
March 20, 2020, on grounds that were similar to those in the
prior motion. The Middletons also informed the court that on

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

November 15, 2019, the District Court had held a hearing on the
post-judgment matters; the Middletons were awaiting a
supplemental record on appeal from the District Court with
exhibits admitted at the November 15, 2019 hearing; and the
Middletons were awaiting transcripts of the hearing and a
decision(s) by the District Court. The Middletons also explained
that they were close to finalizing their purchase of a home.
(8) On December 23, 2019, the Middletons filed a motion
for reconsideration of the December 9, 2019 order, in which they
appear to have contested the court's refusal to grant an
extension to March 20, 2020, and the court's refusal to grant
further extensions absent extraordinary circumstances, among
other things.
(9) On December 31, 2019, the court denied the motion
for reconsideration.
(10) The Middletons failed to file their opening brief
by the January 21, 2020 deadline.
(11) On January 27, 2020, the appellate clerk notified
the Middletons that the time for filing the opening brief had
expired, the matter would be brought to the court's attention on
February 6, 2020, for appropriate action pursuant to Hawai#i
Rules of Appellate Procedure Rule 30, and the appeal may be
dismissed. The appellate clerk explained that any request for
relief from default should be made by motion.
(12) On February 5, 2020, the Middletons filed their
motion for relief from default.
(13) The Middletons seek relief from default of the
opening brief primarily on the same grounds raised in their
December 23, 2019 motion for reconsideration.
(14) The Middletons have failed to present good cause
for their motion for relief from default.
(15) The Middletons have been given multiple extensions
for their opening brief totalling an additional 154 days.
Further, they were cautioned twice that no further extensions

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would be granted absent extraordinary circumstances. However,
the Middletons failed to file their opening brief.
Therefore, IT IS HEREBY ORDERED that the appeal in Case
No. CAAP-XX-XXXXXXX is dismissed.
IT IS FURTHER ORDERED that all pending motions are
dismissed as moot in light of the dismissal of the appeal.
DATED: Honolulu, Hawai#i, May 19, 2020.

/s/ Lisa M. Ginoza
Chief Judge

/s/ Derrick H.M. Chan
Associate Judge

/s/ Clyde J. Wadsworth
Associate Judge

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