American Home Mortgage Servicing, Inc. v. Kin-Chung Rocky Yeung

NOT FOR PUBLICATION IN WEST'S HAWAI°I REPORTS AND PACIFIC REPORTER

NO. 30057

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIYI

AMERICAN HOME MORTGAGE SERVIClNG, INC., Plaintiff-Appellee,

V.

KIN-cHUNc RocKY YEUNs, Defendanc-Appe11ant"f di
and

JoHN and MARY DoEs 1-i0, Defendancs

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRGUIT §§
(CIVIL NO. 09-l-08l6)

ORDER DENYING FEBRUARY 25, 2010
HRAP RULE 40 MOTION FOR RECONSIDERATIGN
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)

Upon review of (1) the January 13, 2010 order
dismissing this appeal for lack of jurisdiction, (2) Defendant-
Appellant Kin-Chung Rocky Yeung's (Appellant Yeung) February 25,
2010 motion to reconsider the January 13, 2010 order of dismissal
pursuant to Rule 40 of the Hawafi Rules of Appellate Procedure
(HRAP), and (3) the record on appeal, it appears that Appellant
Yeung's HRAP Rule 40 motion to reconsider the January 13, 2010
order of dismissal is untimely and lacks merit.

Appellant Yeung failed to file his February 25, 2010
HRAP Rule 40 motion for reconsideration within ten days after the
filing of the January 13, 2010 order dismissing this appeal for
lack of jurisdiction, as HRAP Rule 40(a) required. Therefore,
Appellant Yeung's February 25, 2010 HRAP Rule 40 motion for
reconsideration is untimely under HRAP Rule 40(a), and Appellant
Yeung is no longer entitled to reconsideration pursuant to HRAP
Rule 40.

Even if Appellant Yeung's February 25, 2010 HRAP
Rule 40 motion for reconsideration were timely, it lacks merit.
As already explained in the January 13, 2010 order of dismissal,
"[a]n appeal may be taken . . . only after the orders have been

reduced to a judgment and the judgment has been entered in favor

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REP()RTER

of and against the appropriate parties pursuant to HRCP

[Rule] 58[.]" Jenkins v. Cades Schutte Fleminq & Wright, 76
HawaiU.115, 119, 869 P.2d 1334, 1338 (1994); "An appeal from an
order that is not reduced to a judgment in favor or against the
party by the time the record is filed in the supreme court will
be dismissed." ;Q¢ at 120, 869 P.2d at 1339 (footnote omitted).
The appellate court clerk filed the record on appeal for this
appellate case on November 10, 2009, at which time the record did
not contain a final judgment that resolves all claims against all
parties in this case. Absent an appealable final judgment in the
record on appeal, Appellant Yeung's appeal is premature and we
lack appellate jurisdiction. Therefore, Appellant Yeung's
February 25, 2010 HRAP Rule 40 motion for reconsideration does
not state any points of law or fact that we have overlooked or
misapprehended. Accordingly,

l IT rs HEREBY oRDERED that Appe11ant Yeung's
February 25, 2010 HRAP Rule 40 motion for reconsideration of the

January 13, 2010 order of dismissal is denied.
DATED: Honolulu, HawaiUq March 4, 20l0.

M?”`
Presiding Ju;:;:%§:7

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Associate Judge