Caldwell v. Hawaii Fire Fighters Association

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-SEP-2022
08:11 AM
Dkt. 43 ODSLJ
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

KIRK CALDWELL, MAYOR, CITY AND COUNTY OF HONOLULU;
MANUEL P. NEVES, FIRE CHIEF, HONOLULU FIRE DEPARTMENT,
CITY AND COUNTY OF HONOLULU; HONOLULU FIRE DEPARTMENT,
CITY AND COUNTY OF HONOLULU; and CITY AND COUNTY OF HONOLULU,
Respondents-Appellants/Appellees, v.
HAWAII FIRE FIGHTERS ASSOCIATION, IAFF, LOCAL 1463, AFL-CIO,
Complainant-Appellee/Appellant, and
HAWAII LABOR RELATIONS BOARD; MARCUS R. OSHIRO;
SESNITA A.D. MOEPONO; and J N. MUSTO (2008-001),
Agency-Appellees/Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Hiraoka, Presiding Judge, McCullen and Chan, JJ.)
Upon review of the record, we lack appellate
jurisdiction over Complainant-Appellee/Appellant Hawaii
Firefighters Association, IAFF, Local 1463, AFL-CIO's (HFFA)
appeal from the "effective nullification" by operation of Hawai i
Rules of Appellate Procedure (HRAP) Rule 4(a)(3) (2016) of its
post-judgment Motion for Attorney's Fees and Costs (Motion for
Fees) by the Circuit Court of the First Circuit (Circuit Court)
because no event has triggered the thirty-day time period for
filing a notice of appeal pursuant to HRAP Rule 4(a)(1) and (3).
The Circuit Court's July 26, 2021 Final Judgment is an
appealable final judgment pursuant to Hawaii Revised Statutes
(HRS) § 641-1(a) (2016), Hawai i Rules of Civil Procedure (HRCP)
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Rule 58, and the holding in Jenkins v. Cades Schutte Fleming &
Wright, 76 Hawai i 115, 119, 869 P.2d 1334, 1338 (1994).
Pursuant to HRAP Rule 4(a)(3), the thirty-day time
period for filing a notice of appeal under HRAP Rule 4(a)(1) was
extended when HFAA timely filed the August 6, 2021 Motion for
Attorney's Fees and Costs (Motion for Fees) within fourteen days
after entry of the Final Judgment, as required by HRCP
Rule 54(d)(2)(B). The Motion for Fees invoked the following
tolling provision in HRAP Rule 4(a)(3):
(3) Time to appeal affected by post-judgment
motions. If any party files a timely motion for
judgment as a matter of law, to amend findings or make
additional findings, for a new trial, to reconsider,
alter or amend the judgment or order, or for
attorney's fees or costs, and court or agency rules
specify the time by which the motion shall be filed,
then the time for filing the notice of appeal is
extended for all parties until 30 days after entry of
an order disposing of the motion. The presiding court
or agency in which the motion was filed shall dispose
of any such post-judgment motion by entering an order
upon the record within 90 days after the date the
motion was filed. If the court or agency fails to
enter an order on the record, then, within 5 days
after the 90th day, the clerk of the relevant court or
agency shall notify the parties that, by operation of
this Rule, the post-judgment motion is denied and that
any orders entered thereafter shall be a nullity. The
time of appeal shall run from the date of entry of the
court or agency's order disposing of the post-judgment
motion, if the order is entered within the 90 days, or
from the filing date of the clerk's notice to the
parties that the post-judgment motion is denied
pursuant to the operation of the Rule.

The notice of appeal shall be deemed to appeal
the disposition of all post-judgment motions that are
timely filed after entry of the judgment or order.

The ninetieth day after HFFA filed the Motion for Fees
was November 5, 2021. To date, the Circuit Court has not entered
an order disposing of the motion, and the Circuit Court Clerk has
not filed the notice required by HRAP Rule 4(a)(3).
In Sanchez v. Sanchez, No. CAAP-XX-XXXXXXX, 2021 WL
4777103, at *5 (App. Oct. 13, 2021) (SDO), we noted that, under
HRAP Rule 4(a)(3),

the deemed denial [of a post-judgment motion] and the
nullification of future orders stem not just from the
trial court's failure to timely take action, but from
two steps: (1) the trial court's failure to enter an
order disposing of a timely-filed post-judgment
tolling motion; and (2) the clerk of the court's

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

notification to the parties that the post-judgment
motion is deemed denied by operation of the rule and
that any orders entered thereafter shall be a nullity.

Id. (emphasis added). We further noted that "HRAP Rule 4(a)(3)
does not contemplate this dual failure of both the court and the
court's clerk to execute the requirements of the rule," but
interpreting HRAP Rule 4(a)(3) to automatically deem a post-
judgment motion as being denied 90 days after it was filed would
"render[] superfluous the requirement that the clerk provide
notice to the parties of the deemed denial." Id. at *8.
Accordingly, we held that the trial court did not lack
jurisdiction to enter an order granting the motion, outside the
90-day deadline. Id.
Based on the above, the Circuit Court here retains
jurisdiction to enter an order disposing of the Motion for Fees,
and until it does so, or the clerk enters a notice that the
Motion for Fees is denied by operation of HRAP Rule 4(a)(3), no
event has triggered the thirty-day time period for filing a
notice of appeal under HRAP Rule 4(a)(1) and (3). Therefore, the
HFFA's December 3, 2021 Notice of Appeal is premature as to a
disposition of the Motion for Fees.
In situations where the record on appeal indicates that
all claims against all parties have been resolved and the only
event lacking for the perfection of an aggrieved party's right to
appeal is the entry of the final judgment, we will invoke HRS
§ 602–57(3) (2016), and temporarily remand the matter for entry
of a final judgment. Waikiki v. Ho omaka Village Association of
Apartment Owners, 140 Hawai i 197, 398 P.3d 786 (2017); see also,
State v. Joshua, No. SCWC–16–0000800, 2017 WL 4586328, at *1
(Haw. Oct. 16, 2017). However, the circumstances of the instant
case are distinguishable from those in Waikiki and Joshua because
the record on appeal does not indicate that the Circuit Court has
expressed its final decision regarding the Motion for Fees;
absent an appealable final post-judgment order, we lack appellate
jurisdiction, and the appeal is premature. See L.D. v. T.G.,
No. CAAP-XX-XXXXXXX, 2017 WL 6438546, at *3 (App. Dec. 18, 2017)

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

(Order Regarding October 23, 2017 Motion to Determine Appellate
Jurisdiction and Dismissing Appeal for Lack of Appellate
Jurisdiction).
Therefore, IT IS HEREBY ORDERED that case number
CAAP–21–0000680 is dismissed for lack of appellate jurisdiction.
IT IS FURTHER HEREBY ORDERED that the appellate court
clerk shall transmit a copy of this order to the Circuit Court
Clerk.
DATED: Honolulu, Hawai i, September 6, 2022.

/s/ Keith K. Hiraoka
Presiding Judge

/s/ Sonja M.P. McCullen
Associate Judge

/s/ Derrick H.M. Chan
Associate Judge

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