Wahi Ho‘omalu Limited Partnership v. Yee

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 30185

IN THE INTERMEDIATE COURT OF APPEALS

oF THE STATE oF HAWAI‘I’

WAHI }KYOMALU LIMITED PARTNERSHIP, '
a Hawaifi limited partnership, Plaintiff-Appellee

V.

133

ROSEMARIE L.K. YEE, Defendant-Appellanc, §

l§ =l. §§ `é§<i¥ @!BZ

and
HEIRS OR ASSIGNS OF KEKINO(w), et al., Defendants~Appellees

APPEAL FROM THE CIRCUIT COURT OF THE SEC'OND CIRCUIT
(CI`\/'IL NO. 06-1-0140)

ORDER DI SMIS S ING APPEAL
(By: Nakamura, Chief Judge, Foley and Reifurth, JJ.)

Upon review of (l) Plaintiff-Appellee Wahi.}kfomalu

Limited Partnership's (Appellee Wahi HoYmBlu) February 22, 20l0
motion to dismiss Defendant-Appellant Rosemarie L. K. Lee's
(Appellant Lee) appeal for lack of jurisdiction, (2) the lack of
any response by Appellant Lee to Appellee Wahi Hdomalu's
February 22, 2010 motion to dismiss Appellant Lee's appeal for
lack of jurisdiction; and (3) the record, it appears that we lack
jurisdiction over Appellant Lee's appeal from the Honorable
Joseph E. Cardoza's February 9, 2009 judgment, because Appellant
Lee's appeal is untimely under both Rule 4(a)(l) and

Rule 4.l(b)(1) of the Hawafi Rules of Appellate Procedure

(HR.AP) .

The February 9, 2009 judgment resolves all claims in

this case, and, thus, the February 9, 2009 judgment is an

appealable final judgment under HawaFi Revised Statutes

GB"`H.A

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPO`RTER
§ 641-1(@1) (1993 & supp. 2009), Rule 53 of the Hawai‘i Rules of
0ivil Procedure, and the holding in Jenkins v. Cades Schutte
Fleming & Wright, 76 HawaiH.ll5, ll9, 869 P.2d l334L 1338
(l994). However, Appellant Yee did file her November 18, 2009
notice of appeal within thirty days after entry of the February
9, 2009 judgment, as HRAP Rule 4(a)(1) requires. Therefore,
Appellant Yee‘s appeal in appellate court case number 30l85 is
untimely under HRAP Rule 4(a)(1). Even if we would treat
Appellant Yee's appeal as a cross-appeal from Defendant-Appellant
Henry Maio, Jr.'s (Appellant Maio), March 10, 2009 notice of
appeal that resulted in appellate court case number 29702,
Appellant Yee did not file her November 18, 2009 notice of appeal
within sixteen days after Appellant Maio's March 10, 2009 service
by mail of Appellant Maio's March 10, 2009 notice of appeal, as
HRAP Rule 4.1(b)(1) and HRAP Rule 26(c) require for a notice of
cross-appeal when another party has served a notice of appeal by
mail. Therefore, Appellant Yee's appeal in appellate court case
number 30185 is untimely as a cross-appeal under HRAP Rule
4.1(b)(1).

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 l127, 1128 (1986); HRAP Rule 26(b) ("[Njo court or judge or
justice thereof is authorized to change the jurisdictional
requirements contained in Rule_4 of [the HRAP]."). Consequently,
we lack appellate jurisdiction over Appellant Yee's appeal in

appellate court case number 30185._ Therefore,

_2_

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

IT IS HEREBY ORDERED that Appellee Wahi.}kFomaluYs
February 22, 2010 motion to dismiss Appellant Lee's appeal for
lack of jurisdiction is granted and this appeal is dismissed.
DATED: Honolulu, HawaiUq April 151 2010-
Chief Judge

Associate Judge

d imm/nam

Associate Judge