NOT FOR PUBLICATI()N l`N WEST'S HAWAI‘I REPORTS ANI) PACIFIC REPORTER
No. 30106 512
:N THE: J:NTERMEDIATE coURT oF APPEALS
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R:CHARD w. RADUENZEL, Piainciff-Appeiiee, m
D_Evc)N JAMEs M<)NCUR, Defendant-Appeiianc <1»‘-”»‘
`APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CIVIL NO. lRCO8-l-93lO)
ORDER DISMISSING APPEAL
FOR LACK OF APPELLATE JURISDICTION
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Upon review of the record, it appears that we lack
jurisdiction over the appeal that Defendant-Appellant Devon James
Moncur (Appellant) has asserted from the Honorable Christopher P.
McKenzie's (l) May 1l, 2009 judgment, (2) June 29, 2009 "Order
Denying Defendant Moncur's Motion for Reconsideration" (the June
29, 2009 order denying Appellant's May 2l, 2009 DCRCP Rule 59
motion for reconsideration) and (3) September 25, 2009 "First
Supplement to Order Denying Defendant Moncur's Motion for
Reconsideration" (the Septemher 25, 2009 supplemental order
denying Appellant's May 2l, 2009 DCRCP Rule 59 motion for
reconsideration) because Appellant's appeal is untimely under
Rule 4(a)(3) of the Hawafi Rules of Appellate Procedure (HRAP).
Appellant is appealing pursuant to HawaFi Revised
Statutes (HRS) § 641-l(a) (1993 & Supp. 2008).
Pursuant to HRS § 641-l(a) (l993), appeals are allowed in
civil matters from all final judgments, orders, or decrees
of circuit and district courts. In district court cases, a
judgment includes any order from which an appeal lies. §
final order means an order ending the proceeding, leaving
nothing further to be accomplished. when a written
judgment, order, or decree ends the litigation by fully
deciding all rights and liabilities of all parties, leaving
nothing further to be adjudicated, the judgment, order, or
decree is final and appealable.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Casumpang v. ILWU, Local l42, 91 HawaiU.425, 426, 984 P.2d l25l,
l252 (l999) (citations, internal quotation marks, and footnote
omitted; emphases added). The May ll, 2009 judgment ended the
proceeding for the adjudication of the substantive issues in
Plaintiff~Appellee Richard W. Raduenzel's,(Appellee) complaint,
leaving nothing further to be accomplished. Pursuant to HRAP
Rule 4(a)(3),1 Appellant tolled the initial thirty-day time
period under HRAP Rule 4(a)(l) for filing a notice of appeal when
Appellant timely submitted his motion for reconsideration to the
district court on May 2l, 2009,2 within ten days after entry of
the May ll, 2009 judgment, as Rule 59 of the District Court Rules
of Civil Procedure (DCRCP) requires. However, Appellant did not
file his October 8, 2009 notice of appeal within thirty days
after entry of the June 29, 2009 order denying Appellant's
May 2l, 2009 DCRCP Rule 59 motion for reconsideration, as HRAP
Rule 4(a)(3) requires. Therefore, Appellant Moncur's October 8,
2009 notice of appeal is not timely as to (l) June 29, 2009 order
denying Appellant's May 2l, 2009 DCRCP Rule 59 motion for
reconsideration or (2) the May l1, 2009 judgment, The failure to
1 HRAP Rule 4(a)(3) provides:
y (3) Time to Appeal Affected by Post-Judgment Motions. §§
any party files a timely motion for judgment as a matter of law,
to amend findings or make additional findings, for a new trial, §§
reconsider, alter or amend the judgment or order, or for
attorney's fees or costs, the time for filing the notice of appeal
is extended until 30 days after.entry of an order disposing of the
motion; provided that the failure to dispose of any motion by
order entered upon the record within 90 days after the date the
motion was filed shall constitute a denial of the m0tion.
HRAP Rule 4(a)(3) (effective July l, 2006) (emphases added).
2 See Doe v. Doe, 98 Hawafi l44, l5l, 44 P.3d l085, 1092 (2002)
(the date on which a trial court receives a document prevails over any
subsequent file-stamped date on which the trial court eventually files the
document).
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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 1127,
1128 (1986); HRAP Rule 26(b) ("[N]o court or judge or justice
thereof is authorized to change the jurisdictional requirements
contained in Rule 4 of [the HRAP]."). Consequently, we lack
jurisdiction over Appellant's appeal from (1) the June 29, 2009
order denying Appellant‘s May 2l, 2009 DCRCP Rule 59 motion for
reconsideration and (2) the May 11, 2009 judgment.
Although the district court entered another order,
namely, the September 25, 2009 supplemental order denying
Appellant's May 21, 2009 DCRCP Rule 59 motion for
reconsideration, on September 25, 2009, the district court no
longer had jurisdiction to rule on Appellant1s May 2l, 2009 DCRCP
Rule 59 motion for reconsideration. when a party files a timely
tolling motion that extends the time period for filing a notice
of appeal pursuant to HRAP Rule 4(a)(3), "[t]he rule provides
that the court has 90 days to dispose of [the] post-judgment
[tolling] motion . . . , regardless of when the notice of appeal
is fiied." Buscher v. Boning, 114 Hawai‘i 202, 221, 159 P.zd
814, 833 (2007). when "the court fail[s] to issue an order on
[the movant]'s [post-judgment tolling] motion by . . . ninety
days after [the movant has] filed the [post-judgment tolling]
motion, the [post-judgment tolling] motion [i]s deemed denied."
County of Hawafi v. C&J Coupe Family Limited Partnership, 119
HawaiH.352, 367, l98 P.3d 6l5, 630 (2008). The ninetieth day
after Appellant submitted his May 21, 2009 DCRCP Rule 59 motion
for reconsideration to the district court for filing was
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Wednesday, August 19, 2009, at the end of which time the district
court lost jurisdiction to adjudicate Appellant's May 21, 2009
DCRCP Rule 59 motion for reconsideration, Pursuant to HRAP
Rule 4(a)(3), the September 25, 2009 supplemental order denying
Appellant's May 21, 2009 DCRCP Rule 59 motion for reconsideration
is null and void, and, therefore, not appealable.
Absent a timely appeal, we lack appellate jurisdiction.
Therefore,
IT IS HEREBY ORDERED that appellate court case number
30106 is dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawafi, MarCh 31 2019-
Presiding Judge
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Associate Jud
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