Malasek v. Nolen

NOT FOR PUBLICATION ]N WEST'S HAWAI‘I REPOR',I`S AND PACIFIC REPORTER

NO. 28007

lN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAFl wl
VOJTECH MALASEK, Plaintiff-Appellant, V.

JESSlCA NOLEN and ANTONIO ROLLY ORR,
Defendants-Appellees

§§ 11 111 e- arm max

APPEAL FROM THE DlSTRlCT COURT OF THE THlRD CIRC
SOUTH KOHALA DlVlSlON
(ClVlL NO. 3RC 04-l-O7lH)

ORDER DISMISSlNG APPEAL FOR LACK OF APPELLATE JURlSDlCTION
(By: Fujise, Presiding Judge, Reifurth and Ginoza, JJ.)

Upon review of the record in this case, it appears that

we lack jurisdiction over Plaintiff-Appellant Vojtech Malasek's

(Malasek) appeal of (1) the judgment entered February 1, 2006,

by
the District Court of the Third Circuit,

South Kohala Division1
in favor of Defendants-Appellees Jessica Nolen
and Antonio Rolly Orr (Appellees) and (2)
order,

(district court)

the June l3, 2006
which denied Malasek's motion to set aside the judgment.

Hawaii Revised Statutes (HRS) § 641-l(a) (Supp. 2006)

authorizes appeals to the intermediate court of appeals (lCA)

only from final judgments, orders, and decrees. A judgment is

final and appealable when it "ends the litigation by fully
deciding all rights and liabilities of all parties,

leaving
nothing further to be adjudicated[.]"

Casumpang v. ILWU, Local

' l42, 91 HaWafi 425, 426, 984 P.2d l25l, 1252 (l999).

Conversely, "an order is not final if the rights of a party

involved remain undetermined or if the matter is retained for

further action."

l7, 27 (2007).

cho v. stace, 115 HawaiH_373, 333, 163 P.3d

1 The Honorable Matthew S.K. Pyun presided.

GB"`H,:\

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

The district court's February 1, 2006 judgment does not
adjudicate all of the parties' claims. The February 1, 2006
judgment grants default judgment to Appellees on their
counterclaims and dismisses Malasek's "initial complaint for
rent." It does not, however, resolve the claim for "[r]eplevin
of (12) paintings and other things" that Malasek alleges were
taken when Appellees moved out and that was also pleaded in the
complaint. As such, under the judgment entered on February 1,
2006, Malasek's rights in regard to the artwork remain
undetermined.

1 The district court denied Malasek's motion to set aside
the default judgment, finding that Malasek failed to demonstrate
excusable neglect sufficient to invoke relief under Rule 60(b)(l)
of the District Court Rules of Civil Procedure (DCRCP).

A motion for post-judgment relief under DCRCP Rule
60(b), like a motion for reconsideration pursuant to HawaFi
Rules of Civil Procedure (HRCP) Rule 6O(b),2 "is authorized only
in situations involving final judgments." QhQ, 115 Hawafi at
382, 168 P.3d at 26 (quoting Crown Props., Inc. v. Fin. Sec. Life
lQ§;, 6 HaW. App. l05, ll2, 712 P.2d 504, 509 (l985) (internal

quotation marks omitted) and citing Tradewinds Hotel, Inc. v.

COChran, 8 HaW. App. 256, 262, 799 P.2d 60, 65 (l990)). "lndeed,

by its terms, Rule 60(b) only applies to a 'final judgment,
order, or proceeding.'" lQ;

Without the entry of a final judgment, post-judgment
relief under DCRCP Rule 60(b) is not available. lQ; at 383, 168
P.3d at 27. Because the February 1, 2006 default judgment was

not a final judgment, the June 13, 2006 order is an interlocutory

2 DCRCP Rule 60 can be interpreted by analogy to HRCP Rule 60. See
Casumpanq v. ILWU, Local 142, 94 HawaiH.330, 337, 13 P.3d 1235, 1242 (2000)
(applying same standard of review to application of HRCP 12(b)(1) and DCRCP 12

1 (b)(1) because the two rules are substantially identical)

2

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PAC[FIC REPORTER

order. Under HRS § 641-1(a), the ICA lacks jurisdiction to
review the order.

Therefore,

IT IS HEREBY ORDERED that appellate court case number
28007 is dismissed for lack of appellate jurisdiction.

DATED: Honolulu, HawaFi, June 9, 2010.

On the briefs:

Robert D. Triantos ~-
Edmund W.K. Haitsuka

Michael H. Schlueter, Presiding Judge

(Carlsmith Ball),
for Plaintiff-Appellant. if é1*“
Clkkx\&m¢pm }*~‘/'L
Barbara L. Franklin, Associate Judge
for Defedants-Appellees.

Associate Judge