Kuhlmann v. Burgess

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-SEP-2021
09:34 AM
Dkt. 32 OGMR

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LUISA KUHLMANN, Petitioner-Appellee, v.
JOHN TIMOTHY BURGESS, Respondent-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-DA NOS. 21-1-0289 and 21-1-0324)

ORDER
(By: Ginoza, Chief Judge, Wadsworth and Fujise, JJ.)
Upon consideration of the motion filed June 21, 2021,
in Kuhlmann v. Burgess, CAAP-XX-XXXXXXX, by self-represented
Respondent-Appellant John Timothy Burgess (Burgess), the papers
in support, and the record, it appears that:
(1) On January 20, 2021, Burgess filed a notice of
appeal in Kuhlmann v. Burgess, No. FC-DA No. 19-1-002156, which
created the appeal in CAAP-XX-XXXXXXX, without the fees required
by Hawai#i Rules of Appellate Procedure (HRAP) Rule 3(a);
(2) On April 6, 2021, the appellate clerk entered a
default of the record on appeal in CAAP-XX-XXXXXXX;
(3) On May 17, 2021, Burgess filed what this court
construed as a motion for leave to proceed on appeal in forma
pauperis, and a request for "an expansion of time" "to file
remaining documents." Attached to the motion is a document
Burgess filed in the underlying case, which he characterizes as
"requesting free access to the courts as a constitutional right";
(4) On May 25, 2021, the court found that Burgess
failed to submit information required by HRAP Form 4, consistent
with HRAP Rule 24(a). The court denied the request for leave to
proceed on appeal in forma pauperis without prejudice to Burgess,
within ten days from the order, either (a) filing in this case a
motion for leave to proceed on appeal in forma pauperis that
complies with HRAP Rule 24(a) and provides the information in
Form 4, or (b) paying the filing fees in the full amount to the
Supreme Court Clerk's Office. The court cautioned Burgess that
failure to file the motion for leave to proceed on appeal in
forma pauperis or pay the filing fees may result in the appeal
being dismissed. See HRAP Rule 24(c). Further, the court denied
Burgess's request for "an expansion of time" "to file remaining
documents" because the requested relief was unclear;
(5) Burgess took no further action in CAAP-XX-XXXXXXX
in response to the May 25, 2021 order;
(6) On June 9, 2021, the court entered an order
dismissing the appeal in CAAP-XX-XXXXXXX for failure to pay the
required fees or obtain a fee waiver;
(7) Meanwhile, on May 11, 2021, Burgess filed a notice
of appeal in Kuhlmann v. Burgess, No. FC-DA Nos. 21-1-0289 and
21-1-0324, which created the appeal in CAAP-XX-XXXXXXX, again
without the filing fees required by HRAP Rule 3(a). The same
day, the family court clerk notified Burgess that failure to pay
the filing fees or obtain a fee waiver on or before May 21, 2021,
could result in the appeal in CAAP-XX-XXXXXXX being dismissed;
(8) On June 21, 2021, Burgess filed in CAAP-XX-XXXXXXX
the instant motion titled, "Case No.: CAAP-0000028, Notice of
Motion: have the appeal reinstated, request forgiveness as my son
is kidnapped. This is an emergency situation. IN FORMA
PAUPERIS. Request Extension of Time." In the motion, Burgess
states, "I did not receive a default order. I request to have
the appeal reinstated." He also asserts "the constitutional
rights of the people to petition the government, free of fees,"
and that "[d]isclosure of income and assets is not relevant to
the people's constitutional rights." Attached to the motion is a
completed HRAP Form 4, titled, "CAAP-0000026." In HRAP Form 4,
Burgess states he is not presently employed, but he also refuses
to disclose the date of his last employment and his salary and

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wages at the time. He states that he received no income within
the past twelve months, he has $500.00 in cash and accounts, he
owns a duplex in Waialua, and his son is his only dependent.
Also attached to the motion is a copy of the June 9, 2021 order
dismissing appeal in CAAP-XX-XXXXXXX;
(9) Because Burgess asks the court to "reinstate" his
appeal, the appeal in CAAP-XX-XXXXXXX has been dismissed, whereas
the appeal in CAAP-XX-XXXXXXX has not, the attached HRAP Form 4
references "CAAP-0000026," and attached to the motion is a copy
of the June 9, 2021 dismissal order in CAAP-XX-XXXXXXX, the court
finds the June 21, 2021 motion was misfiled in CAAP-XX-XXXXXXX
and instead should have been filed in CAAP-XX-XXXXXXX, and the
court construes the motion as seeking reconsideration of the
June 9, 2021 order dismissing appeal, leave to proceed on appeal
in forma pauperis in CAAP-XX-XXXXXXX, and an extension of time;
(10) Burgess fails to demonstrate the court overlooked
or misapprehended any fact or point of law in the June 9, 2021
dismissal order. See HRAP Rule 40(b). Nonetheless, in deference
to Burgess's self-represented status, see Waltrip v. TS Enters.,
Inc., 140 Hawai#i 226, 239, 398 P.3d 815, 828 (2016) (requiring
courts to construe pro se filings in a reasonable manner that
enables them to promote access to justice), and because Hawai#i's
appellate courts have "consistently adhered to the policy of
affording litigants the opportunity to have their cases heard on
the merits, where possible," Schefke v. Reliable Collection
Agency, Ltd., 96 Hawai#i 408, 420, 32 P.3d 52, 64 (2001)
(citation and quotation marks omitted), the court will grant the
motion for reconsideration and reinstate the appeal in CAAP-21-
0000026, and decide the remaining requests for relief in the
June 21, 2021 motion;
(11) With respect to Burgess's motion for leave to
proceed on appeal in forma pauperis in CAAP-XX-XXXXXXX, his
refusal to disclose his last employment and income prevents this
court from reasonably assessing his indigence. In addition, his
assertion that he received no income in the last twelve months is
questionable. It is unclear how he provided basic human needs
for himself and his son with $500.00 in cash and accounts but no

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disclosed income in the preceding twelve months, no current
employment, and no information about his previous employment. In
addition, Burgess's evasiveness about his income appears
deliberate, as he asserted here and in the underlying case that
his income and assets are irrelevant to his purported
constitutional right to "petition the government." As a result,
there are significant questions concerning Burgess's asserted
indigence. In addition, Burgess's refusal to disclose
information concerning his income prevents this court from
determining whether payment of the filing fees would appear
onerous under HRS § 602-3 (2016)1. See Est. Admin. Servs. LLC v.
Mohulamu, 148 Hawai#i 10, 17-18, 466 P.3d 408, 415-16 (2020).
Thus, the court will deny the motion for leave to proceed on
appeal in forma pauperis in CAAP-XX-XXXXXXX; and
(12) With respect to Burgess's request for an extension
of time, it appears Burgess seeks an extension of time to file an
amended brief, but, when Burgess filed the June 21, 2021 motion,
he had not filed a brief in either appeal, and there is no
briefing deadline to extend.
Therefore, IT IS HEREBY ORDERED that the appellate
clerk shall:
1. Re-file in CAAP-XX-XXXXXXX the motion filed in
CAAP-XX-XXXXXXX at docket 9 on June 21, 2021;
2. Docket the motion in CAAP-XX-XXXXXXX as a motion
for reconsideration; and
3. Change the docket code for the docket 9 in CAAP-21-
0000317 from "IFP" to "OT."
IT IS FURTHER ORDERED that the re-filed motion in CAAP-
XX-XXXXXXX is granted in part and denied in part as follows:
1. The motion for reconsideration is granted and the
appeal is reinstated; and

1
HRS § 607-3 states:
The judges of all the courts of the State shall have
discretionary power to waive the prepayment of costs or to
reduce or remit costs where, in special or extraordinary
cases, the cost of any suit, action, or proceeding may, to
the judges, appear onerous.

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2. All other requested relief is denied.
IT IS FURTHER ORDERED that:
1. Within ten (10) days from the date of this order,
Burgess shall pay the filing fees in CAAP-XX-XXXXXXX in the full
amount to the Supreme Court Clerk. Failure to pay the filing
fees may result in the appeal being dismissed. See HRAP
Rule 24(c); and
2. If Burgess pays the filing fees in the full amount,
then the Clerk of the Circuit Court of the First Circuit shall
file the record on appeal for CAAP-XX-XXXXXXX within thirty (30)
days after payment is made.
IT IS FURTHER ORDERED that the appellate clerk shall
serve a copy of this order on the Clerk of the Circuit Court of
the First Circuit.
DATED: Honolulu, Hawai#i, September 29, 2021.

/s/ Lisa M. Ginoza
Chief Judge

/s/ Clyde J. Wadsworth
Associate Judge

/s/ Alexa D.M. Fujise
Associate Judge

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