Leaird v. Okura

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-SEP-2020
07:50 AM

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

JOHANNA LEAIRD,
Plaintiff-Appellant/Cross-Appellee,
v.
LELAND OKURA
Defendant-Appellee/Cross-Appellee,
and
TITLE GUARANTY ESCROW SERVICES,
Defendant-Appellee/Cross-Appellant,
and
ERNEST MEDEIROS PROPERTIES LLC,
Defendant-Appellee/Cross-Appellee

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3RC161000915)

ORDER
DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Upon review of this appeal by Plaintiff/Appellant/
Cross-Appellee Johanna Leaird (Leaird) and cross-appeal by
Defendant/Appellee/Cross-Appellant Title Guaranty Escrow Service
(Title Guaranty) from the Honorable Darien W.L. Ching Nagata's
March 18, 2020 judgment on two prior March 10, 2020 post-judgment
orders awarding attorneys' fee and costs in favor of Title
Guaranty and against Leaird in District Court Civil No.
3RC161000915, it appears that the appeal and cross-appeal are
untimely under Rules 4(a)(1) and 4.1(b)(1) of the Hawai#i Rules
of Appellate Procedure (HRAP).
The District Court's February 3, 2020 judgment was an
appealable final judgment pursuant to Hawaii Revised Statutes
(HRS) § 641-1(a) (2016) and the holding in Casumpang v. ILWU,
Local 142, 91 Hawai#i 425, 426-27, 984 P.2d 1251, 1252-53 (1999),
because the February 3, 2020 judgment, on its face, resolved
Leaird's September 19, 2016 complaint for breach of contract by
entering judgment in favor of Leaird and against Defendant/
Appellee/Cross-Appellee Leland Okura, and by dismissing Leaird's
complaint as to Title Guaranty and Defendant/Appellee/Cross-
Appellee Ernest Medeiros. No party timely appealed from the
February 3, 2020 judgment.
A party can extend the time period for filing a notice
of appeal by timely filing a tolling motion that invokes HRAP
Rule 4(a)(3). However, HRAP Rule 4(a)(3) requires that the rule
authorizing the motion must "specify the time by which the motion
shall be filed" in order to invoke the tolling provision in HRAP
Rule 4(a)(3). The District Court Rules of Civil Procedure do not
specify any time by which a motion for attorneys' fees and costs
shall be filed, and, thus, such a motion in District Court does
not invoke the tolling provision in HRAP Rule 4(a)(3).
Nevertheless, any "post-judgment order is an appealable
final order under HRS § 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 separate judgment requirement
articulated in Jenkins v. Cades Schutte Fleming & Wright, 76
Hawai#i 115, 119, 869 P.2d 1334, 1338 (1994), which is
inapplicable to the District Court, is also inapposite in the
post-judgment context. Ditto, 103 Hawai#i at 158, 80 P.3d at
979.
Clearly, the rule in Jenkins – to wit, that circuit court
orders resolving claims against parties must generally be
reduced to a judgment and the judgment must be entered in
favor of or against the appropriate parties pursuant to HRCP

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Rule 58 before an appeal may be taken – is limited to
circuit court orders disposing of claims raised in a circuit
court complaint.

Id. at 159, 80 P.3d at 980. "Accordingly, the time for appealing
the matters conclusively decided by the . . . [post-judgment]
order commence[s] upon entry thereof, not upon entry of the
superfluous . . . judgment on the [post-judgment] order." Id. at
159-60, 80 P.3d at 980-81. A post-judgment order that finally
determines a post-judgment motion for attorneys' "fees and
interest is an appealable final [post-judgment] order under HRS
§ 641-1(a)." Chun v. Board of Trustees, 106 Hawai#i 416, 429
n.12, 106 P.3d 339, 352 n.12 (2005).
The District Court utilized two March 10, 2020 post-
judgment orders to collectively grant in part and deny in part
Title Guaranty's February 12, 2020 post-judgment motion for an
award of attorneys' fees and costs. The two March 10, 2020 post-
judgment orders collectively awarded attorneys' fees and costs
totaling $44,290.18 in favor of Title Guaranty and against
Leaird, leaving nothing further for the District Court to
accomplish in that particular post-judgment proceeding.
Therefore, the two March 10, 2020 post-judgment orders are
appealable final post-judgment orders pursuant to HRS § 641-1(a).
The District Court nevertheless reduced the two March
10, 2020 post-judgment orders to the separate March 18, 2020
judgment, which simply repeated the identical award of attorneys'
fees and costs in the amount of §44,290.18 and did not amend the
February 3, 2020 judgment or the March 10, 2020 orders. As the
two March 10, 2020 post-judgment orders were immediately
appealable final post-judgment orders, their entry triggered the
time periods under HRAP Rule 4(a)(1) and HRAP Rule 4.1(b)(1) for
asserting an appeal and cross-appeal. The subsequent entry of
the essentially identical March 18, 2020 judgment did not
postpone the time within which an appeal had to be taken from the
two March 10, 2020 post-judgment orders.

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Leaird did not file her April 17, 2020 notice of appeal
within thirty days after entry of the two March 10, 2020 post-
judgment orders, as HRAP Rule 4(a)(1) required for a timely
appeal. Title Guaranty did not file its April 21, 2020 notice of
cross-appeal within thirty days after entry of the two March 10,
2020 post-judgment orders, or within fourteen days after service
of a timely notice of appeal, as HRAP Rule 4.1(b)(1) required for
a timely cross-appeal. Therefore, Leaird's appeal and Title
Guaranty's cross-appeal are untimely. 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, 1128 (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 and
cross-appeal in CAAP-XX-XXXXXXX are dismissed for lack of
appellate jurisdiction.
DATED: Honolulu, Hawai#i, September 16, 2020.

/s/ Lisa M. Ginoza
Chief Judge

/s/ Katherine G. Leonard
Associate Judge

/s/ Clyde J. Wadsworth
Associate Judge

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