NOT F()R PUBL!CATION L“~c’ \VES'I"S HA\VA]`°I }REP()RTS AND 'PACIFIC R_EPOR"I`ER
No. 30090
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MARIANO V. HERNANDO, Plaintiff~Appellant, id
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DEPARTMENT OF EDUCATION, DEPARTMENT DF HUMAN RESOURCES
DEVELOPMENT and MERIT APPEALS BOARD, Defendants~Appellees
APPEAL FROM THE ClRCUIT COURT OF THE FIRST ClRCUIT
(CIVIL NO. 07-l~lOl5)
ORDER GRANTING IN PART AND DENYING
IN PART THE DECEMBER 7, 2009 MOTION TO
DISMISS THE APPEAL FOR LACK OF JURlSDlCTlON
(By: Nakamura, Chief Judge, Foley and Leonard, JJ.)
Upon review of (l) Defendants-Appellees Department of
Education (Appellee DOE) and Department of Human Resources
Development's (Appellee DHRD) December 7, 2009 motion to dismiss
appellate court case number 3009O for lack of jurisdiction,
(2) Defendant-Appellee Merit Appeals Board's (Appellee MAB)
December 9, 2009 joinder in Appellees DOE and DHRD‘s December 7,
2009 motion to dismiss appellate court case number 30090 for lack
of jurisdiction, (3) Plaintiff-Appellant Mariano V. Hernando’s
(Appellant Hernando) December l4, 2009 memorandum in opposition
to Appellees DOE and DHRD's December 7, 2009 motion to dismiss
appellate court case number 3009O for lack of jurisdiction,
(4) Appellees DOE and DHRD's December l7, 2009 reply memorandum
in support of Appellees DOE and DHRD's December 7, 2009 motion to
dismiss appellate court case number 30090 for lack of
jurisdiction, and (5) the record, we initially note that Rule 27
of the Hawafi Rules of Appellate Procedure (HRAP) does not
NOT F()R PIYBLICA'I`I()N IN VVEST'S HAWAI‘] REPORTS ANI) PACI`I+`IC .REPORT.F§R
authorize a movant to file a reply memorandum in support of a
motion. Therefore,
IT IS HEREBY ORDERED that Appellees DOE and DHRD's
December l7, 2009 reply memorandum in support of Appellees DOE
and DHRD‘s December 7, 2009 motion to dismiss appellate court
case number 30090 for lack of jurisdiction is stricken from the
record, because Appellees DOE and DHRD‘s December l7, 2009 reply
memorandum violates HRAP Rule 27.
we agree in part and disagree in part with Appellees
DOE and DHRD‘s December 7, 2009 motion to dismiss appellate court
case number 30090 for lack of jurisdiction. Thus, as explained
below, we grant in part and deny in part Appellees DOE and DHRD's
December 7, 2009 motion to dismiss appellate court case number
30090 for lack of jurisdiction.
Appellant Hernando filed her September 29, 2009 notice
of appeal in an apparent attempt to assert an appeal from the
following nine judgments and orders:
(l) the Honorable Karen S. S. Ahn's November 6, 2007
"Order Granting Defendants Merit Appeals Board,
State of Hawaii's Motion to Dismiss Complaint or,
in the Alternative, Motion for Summary Judgment";
(2) a December l7, 2007 proposed judgment that the
circuit court rejected by refusing to sign it,
and, instead, stamping the word "denied" on the
proposed judgment;
(3) the Honorable Karl K. Sakamoto's October 24, 2008
"Findings of Fact, Conclusions of Law, and Order
Granting Defendants Department of Education and
Department of Human Resources Development‘s Motion
for Summary Judgment and Denying Plaintiff's
Cross-Motion for Summary Judgment";
(4) the Honorable Karl K. Sakamoto's January l4, 2009
"Order Denying Plaintiff's Motion for
Reconsideration of the Order Granting Defendants
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NOT FOR PUBLICATION LN WES'I"S HAWAI‘I` REP(}RTS AND I’ACIP`IC REPORTER
Department of Education and Department of Human
Resources Development*s Motion for Summary
Judgment Dated October 24, 200B";
(5) the Honorable Karl K. Sakamoto's February 25, 2009
judgment;
(6) the Honorable Karl K. Sakamoto‘s June 9, 2009
"Order Denying Plaintiff's Motion for
Clarification or in the Alternative for Summary
Judgment Filed April 2, 2009";
(7) the Honorable Karl K. Sakamoto's June 24, 2009
amended judgment;
(8) the Honorable Karl K. Sakamoto's 0ctober l, 2009
post-judgment "Order Denying Plaintiff's Motion
for an Order Requesting the Court to Determine
Finality as to All Parties and as to All Claims
for Purposes of Appellate Jurisdiction Pursuant to
Rule 54(b), HRCP, or in the Alternative, Motion
for Finding by the Court Whether an Appellate Body
for Jurisdiction Department of Education as
Defined in HRS 76~l1 Now EXists and Such Finding
Made Pursuant to Rule 52 HRCP" (hereinafter "the
October l, 2009 post-judgment order denying
Appellant Hernando's motion for a determination of
finality"); and
(9) the Honorable Karl K. Sakamoto's October 1, 2009
post-judgment "Order Plaintiff's Motion for an
Order Compelling Defendants to File Answers to
Plaintiff's First Request for Admissions Served on
Defendants on June 4, 2009 or, in the Alternative,
that Documents Be Deemed as Genuine and Statement
Admitted as True, and Order Denying Defendants
Department of Education and Department of Human
Resources Development's Request for Attorneys'
Fees and Costs" (hereinafter "the October l, 2009
post-judgment order denying Appellant Hernando's
motion to compel answers to request for
admissions").
Hawaii Revised Statutes (HRS) § 641-l(a) (1993 & Supp. 2008)
authorizes appeals to the intermediate court of appeals only from
final judgments, orders, or decrees. Appeals under HRS § 641-l
"shall be taken in the manner . . . provided by the rules of the
court." HRS § 641-l(c). Rule 58 of the HawaFi Rules of Civil
Procedure (HRCP) requires that "[e]very judgment shall be set
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NOT F()R P`UBLICATION IN VVES'I"S HAWAI‘! REPO,RTS AND `PACIF_IC .`REPORTER
forth on a separate document." HRCP Rule 58. Based on
HRCP Rule 58, the Supreme Court of HawaFi holds “[a]n appeal may
be taken . . . only after the orders have been reduced to a
judgment and the judgment has been entered in favor of and
against the appropriate parties pursuant to HRCP [Rule] 58[.]"
Jenkins v. Cades Schutte Fleming & Wright, 76 HawaiH,115, 119,
869 P.2d 1334, 1338 (1994). Therefore, all of the prejudgment
interlocutory orders that Appellant Hernando is attempting to
appeal are eligible for appellate review only by way of a timely
appeal from an appealable final judgment, because "[a]n appeal
from a final judgment brings up for review all interlocutory
orders not appealable directly as of right which deal with issues
in the case." Ueoka v Szymanski, 107 HawaiU,386, 396, 114 P.3d
892, 902 (2005) (citation and internal quotation marks omitted).
The circuit court entered two judgments that appear to
have resolved all claims against all parties in this cases
(1) the February 25, 2009 judgment and (2) the June 24, 2009
amended judgment. Although both of these judgments appear to be
final and appealable, Appellant Hernando did not file her
September 29, 2009 notice of appeal within thirty days after
entry of either the February 25, 2009 judgment or the June 24,
2009 amended judgment, as HRAP Rule 4(a)(1) requires for a timely
appeal. Appellant Hernando did not file any post-judgment
motions that would have extended the thirty-day period under HRAP
Rule 4(a)(1) pursuant to the tolling provision within HRAP
Rule 4(a)(3). Consequently, Appellant Hernando‘s September 29,
2009 notice of appeal is untimely as to the February 25, 2009
NOT FOR PUBLICATION IN WEST'S HAW'A;{‘I REPO_RTS AND PAC'IFIC .R.EPORTER
judgment and the June 24, 2009 amended judgment, 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 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]."). Therefore, we lack
jurisdiction over Appellant Hernando's appeal in appellate court
case number 30090 to the extent that Appellant Hernando seeks
appellate review of the February 25, 2009 judgment, the June 24,
2009 amended judgment, and all of the interlocutory orders that
preceded these two judgments. 9
Appellant Hernando also seeks appellate review of two
post-judgment orders:
(1) the October 1, 2009 post-judgment order denying
Appellant Hernando's motion for a determination of
finality; and
(2) the October 1, 2009 post-judgment order denying
Appellant Hernando's motion to compel answers to
request for admissions.
A "post-judgment order is an appealable final order under HRS
§ 641-l(a) if the order end[ed] the proceedings, leaving nothing
further to be accomplished." Ditto v. McCurdy, 103 HawaiU.153,
157, 80 P.3d 974, 978 (2003) (citation omitted). "[T]he separate
judgment requirement articulated in Jenkins [v. Cades Schutte
Fleming & Wright] is inapposite in the post-judgment context."
Ditto v. McCurdy, 103 Hawafi at 158, 80 P.3d at 979.
Clearly, the rule in Jenkins - to wit, that circuit court
orders resolving claims against parties must generally be
reduced to a judgment and the judgment must be entered in
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NOT FOR P`UBLICATI()N ljN WEST'S H.AW'A!.‘I REl`*OR'l.`S ANVD P.ACIF_IC REPOIKTER
favor of or against the appropriate parties pursuant to HRCP
Rule 53 before an appeal may be taken - is limited to
circuit court orders disposing of claims raised in a circuit
court complaint.
;__<;L at 159, 30 P.ad at 930.
The October 1, 2009 post-judgment order denying
Appellant Hernando‘s motion for a determination of finality was
superfluous, because the June 24, 2009 amended judgment already
determined the issue of finality. In effect, the October 1, 2009
post-judgment order denying Appellant Hernando's motion for a
determination of finality unnecessarily repeats the adjudication
of finality set forth in the June 24, 2009 amended judgment. As
already explained, Appellant Hernando did not file her September
29, 2009 notice of appeal within thirty days after entry of the
June 24, 2009 amended judgment, as HRAP Rule 4(a)(1) requires for
a timely appeal. Because Appellant Hernando is not entitled to
appellate review of the June 24, 2009 amended judgment, Appellant
Hernando is likewise not entitled to appellate review of the
superfluous October 1, 2009 post-judgment order denying Appellant
Hernando's motion for a determination of finality.
The October 1, 2009 post-judgment order denying
Appellant Hernando's motion to compel answers to request for
admissions appears to have ended its respective post-judgment
proceeding for Appellant Hernando's motion to compel answers to
request for admissions, having left nothing further to be
accomplished. Therefore, the October 1, 2009 post-judgment order ,
denying Appellant Hernando's motion to compel answers to request
for admissions is an appealable final post-judgment order
pursuant to HRS § 641-1(a).
NOT FOR P{IBLICA'I`ION I_N W`EST'S HAWAI‘I REPORTS AND PA(,`.IF_I_C _R.EPORTER
Appellant Hernando filed her September 29, 2009 notice
of appeal prematurely, i.e., prior to entry of the October 1,
2009 post-judgment order denying Appellant Hernando's motion to
compel answers to request for admissions. "Generally, the filing
of a notice of appeal divests the trial court of jurisdiction
over the appealed case." TSA 1nternational Limited v. Shimizu
COrQoration, 92 HawaiU.243, 265, 990 P.2d 7l3, 735 (l999)
(citations omitted). However, as an exception to the general
rule, "[i]f a notice of appeal is filed after announcement of a
decision but before entry of the judgment or order, such notice
shall be considered as filed immediately after the time the
judgment or order becomes final for the purpose of appeal." HRAP
Rule 4(a)(2) (emphases added). The record on appeal shows that
Appellant Hernando filed her September 29, 2009 notice of appeal
after the circuit court’s prior announcement of its decision
regarding, but before written entry of, the adjudication that
resulted in the 0ctober 1, 2009 post-judgment order denying
Appellant Hernando's motion to compel answers to request for
admissions. As a result, pursuant to HRAP Rule 4(a)(2),
Appellant Hernando's September 29, 2009 notice of appeal is
timely as to the October 1, 2009 post-judgment order denying
Appellant Hernando's motion to compel answers to request for
admissions. Therefore, we have jurisdiction over Appellant
Hernando’s appeal from the October 1, 2009 post-judgment order
denying Appellant Hernando’s motion to compel answers to request
for admissions pursuant to HRS § 641-1(a). Accordingly,
NOT FOR PIFBLICAT[()N IN WEST'S HAW.AI"I REP()RTS AND PACIFIC .REPOR'I`ER
lT IS HEREBY ORDERED that AppelleeS DOE and DHRD's
December 7, 2009 motion to dismiss appellate court case number
30090 for lack of jurisdiction is granted in part and denied in
part as follows. we grant in part Appellees DOE and DHRD's
December 7, 2009 motion, and, therefore, we dismiss appellate
court case number 30090 for lack of jurisdiction, as to the
following eight judgments and interlocutory orders:
(1) the Honorable Karen S. S. Ahn‘s November 6, 2007
"Order Granting Defendants Merit Appeals Board,
State of Hawaii's Motion to Dismiss Complaint or,
in the Alternative, Motion for Summary Judgment";
(2) the December l7, 2007 proposed judgment that the
circuit court rejected by refusing to sign it,
and, instead, stamping the word "denied" on the
proposed judgment;
(3) the Honorable Karl K. Sakamoto's October 24, 2008
"Findings of Fact, Conclusions of Law, and Order
Granting Defendants Department of Education and
Department of Human Resources Development's Motion
for Summary Judgment and Denying Plaintiff's
Cross-Motion for Summary Judgment";
(4) the Honorable Karl K. Sakamoto's January 14, 2009
"Order Denying Plaintiff's Motion for
Reconsideration of the Order Granting Defendants
Department of Education and Department of Human
Resources Development‘s Motion for Summary
Judgment Dated October 24, 2008";
(5) the Honorable Karl K. Sakamoto‘s February 25, 2009
judgment; »
(6) the Honorable Karl K. Sakamoto's June 9, 2009
"Order Denying Plaintiff's Motion for
Clarification or in the Alternative for Summary
Judgment Filed April 2, 2009";
(7) the Honorable Karl K. Sakamoto's June 24, 2009
amended judgment; and
(8) the October 1, 2009 post-judgment order denying
Appellant Hernando‘s motion for a determination of
finality.
N()T FOR PUIBLICTA'I`I()N lN WEST'S HA\VAI'I R_EP()RTS A_Nl) PACI.F!C .RIE,PORTER
we deny in part Appellees DOE and DHRD's December 7, 2009 motion,
and, therefore, we do not dismiss appellate court case number
30090, as to the October 1, 2009 post-judgment order denying
Appellant Hernando’s motion to compel answers to request for
admissions.
Pursuant to HRAP Rule 28, the parties shall proceed to
file their respective appellate briefs in appellate court case
number 30090 with respect to Appellant Hernando‘s appeal from
October 1, 2009 post-judgment order denying Appellant Hernando's
motion to compel answers to request for admissions.
DATED: Honolulu, HawaiUq F@bruary 1Q,2010_
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Chief Judge