L_AW L{BRAF‘\Y

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

No, 30259

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAfI

WALTER Y.C. CHANG, Individually and as Trustee under that
certain unrecorded Trust Agreement of walter Yin Choy
Chang dated August 3, l982, and SYLVIA S.W. CHANG,
Individually and as Trustee under that certain

unrecorded Trust Agreement of Sylvia Seu Way Chang,
l982, Plaintiffs-Appellees, v. EADEAN

dated August 3,
MICHIE BUFFINGTON, Defendant-Appellant/Cross-Appellee,
and STEVE MONTGOMERY CROUCH, NAOMI HOKULANI CROUCH,

HoKULANI SQUARE, INC. , IN\/'EsToRs FUNDING coRPoRATIoN,
land DoE DEFENDANTS 1-100,¢ l

  

Defendants-Appellees,
Defendants . §§
0 §§
c.
"_ C:
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCU~ 33
(cIvIL No. 05-1-1708) _J.
'  w-
. .n§ §§
ORDER DISMISSING APPEAL AND §§ ge
CROSS-APPEAL FOR LACK OF APPELLATE JURISDICTI§§ é$
Presiding Judge, Fujise and Reifurth, JJ;) on

(By: Foley,

Upon review of (l) Defendant/Appellant/Cross-Appellee

Eadeen Michie Buffington's (Appellant Buffington) appeal and
Third-Party Defendant/Appellee/Cross-Appellant Integrity Escrow
and Title Company, Inc., fka First Financial Title and Escrow

Agency of Hawaii, Inc.'s (Cross-Appellant IETCI), cross-appeal
from the Honorable Robert J. Farris December 2, 2009 "Order

Granting Plaintiffs' Petition for Determination of Good Faith
Settlement Pursuant to Haw. Rev. State. § 663-l5.5 Filed on

(the December 2j 2009 United States Bankruptcy

July 2l, 2009"

Court order) in Case No. 07-00504 in the United States Bankruptcy

Court for the District of Hawaii, and (2) the record, it appears

that we do not have jurisdiction over this appellate case.

we note that Appellant Buffington and Cross-Appellant

IETCI seek appellate relief despite that a bankruptcy proceeding

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NOT FOR PUBLICATION ]N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

involving Defendant/Appellee/Cross-Appellee Hokulani Square, Inc.

(Appellee Hokulani), as a debtor, is apparently still pending in
the United States Bankruptcy Court for the District of Hawaii.
Under the HawaiH.Rules of Appellate Procedure (HRAP), when a
debtor in a bankruptcy proceeding is also a party in a state
court case, "[t]he appellate court shall not consider motions or
requests for relief during the pendency of the bankruptcy."

HRAP Rule 54(c). Furthermore, Appellant Buffington and Cross-
Appellant IETCI are attempting to appeal from the December 2,
2009 United States Bankruptcy Court order despite that (a) the
December 2, 2009 United States_Bankruptcy Court order is not an
order of a court of the State of Hawafi and (b) the record on
appeal for appellate court case number 30259 does not contain
either the original copy or a certified photocopy of the
December 2, 2009 United States Bankruptcy Court order.

2 `We note that the circuit court in Civil No. 05-1-l708,
has not yet entered a final judgment that would be appealable
pursuant to Hawai‘i Revised statutes § 641-1(@1) (1993 & supp.
2009). Thus, Appellant Buffington and Cross-Appellant IETCI

purport to appeal from the December 2, 2009 United States

Bankruptcy Court order pursuant to HRS § 663-l5.5(e) (Supp.

2009).

However, the primary statute authorizing appeals from
United States Bankruptcy Courts' rulings is 28 U.S.C. § 158
(2006)g which authorizes appeals from a United States Bankruptcy
Court's order or judgment to (1) a United States District Court,
(2) a United States bankruptcy appellate panel, or (3) a United

States Court of Appeals. 28 U.S.C. § 158 does not authorize an

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
appeal from a United States Bankruptcy Court to a state appellate
court.

Only the Hawafi legislature can confer appellate
jurisdiction on the Hawaii Intermediate Court of Appeals. The

HawaFi Constitution provides that:

[t]he judicial power of the State shall be vested in
one supreme court, one intermediate appellate court, circuit
courts, district courts and in such other courts as the
legislature may from time to time establish. The several'
courts shall have original and appellate jurisdiction as
provided by law and shall establish time limits for
disposition of cases in accordance with their rules.

Haw. Const. art. VI, § 1 (emphases added). with respect to the
phrase, "as provided by law," article III, section 1 of the
HawaiYi Constitution? vests the_HawaiYi legislature with "the
power to enact laws and to declare what the law shall be."
Sherman v. Sawyer, 63 Haw. 55, 57, 621 P.2d 346, 348 (1980)
(citation omitted). "Under this grant of authority, the
legislature has the power to establish the subject matter
jurisdiction of our state court system." ;Q; (emphasis added);
accord Tax Abpeal of Countv of Maui v. KM Hawaii, Inc , 81
HaWafi~248, 254, 915 P.2d l349, 1355 (l996).
Although the Hawafi legislature has authorized the

Supreme Court of Hawafi to, among other things, "answer, in its
discretion, . . . any question or proposition of law certified to
it by a federal district or appellate court" (HRS § 602-S(a)(2)
(Supp. 2009)), the Hawafi legislature has not provided any
similar authority for the Hawafi 1ntermediate Court of Appeals

to adjudicate a matter that is or has been pending before a

1 `"The legislative power of the State shall be vested in a

legislature, which shall consist of two houses, a senate and a house of
representatives. Such power shall extend to all rightful subjects of
legislation not inconsistent with this constitution or the Constitution of the
United States." Haw. Const. art. IIIy § 1. '

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

federal court:

§ 602-57. Jurisdiction. Notwithstanding any other law
to the contrary, the intermediate appellate court shall have
jurisdiction, subject to transfer as provided in section
602-58 or review on application for a writ of certiorari as
provided in section 602-59:

(1) To hear and determine appeals from any court or agency
when appeals are allowed by law;

(2) To entertain, in its discretion, any case
submitted without suit when there is a question
of law that could be the subject of a civil
action or proceeding in the circuit court, or
tax appeal court, and the parties agree upon the
facts upon which the controversy depends; and

(3) To make or issue any order or writ necessary or
appropriate in the aid of its jurisdiction, and in

such case, any judge may issue a writ or an order to
show cause returnable before the court.

HRs § 602-57 (Supp. 2009).

Granted, the Hawaii legislature has authorized that

- "[a] party aggrieved by a court determination on the issue of

good faith may appeal the determination." HRS § 663-15.5(e)
(emphasis added); see also 2001 Haw. Sess. Laws Act 300; Hse.
Stand. Comm. Rep. No. 1230 in 2001 House Journal, at 1599; Sen.
Stand. Comm. Rep. No. 828 in 2001 Senate Journal, at 1252-53.
Nevertheless, it is reasonable to infer from the plain language
of HRS § 602-57 and HRS § 663-15.5(e) that the word "court"
refers to only Hawafi state courts, and does not refer toia
United States Bankruptcy Court. Under 28 U.S.C. § 1334 (2006),
"[a] bankruptcy court has original and exclusive jurisdiction
over bankruptcy cases." Birtinq Fisheries, Incl v. Huse~
SpOrSem, A.S., 300 B.R. 489, 499 (B.A.P. 9m'Cir. 2003). By
enacting 28 U.S.C. § 1334, "Congress has expressed its intent
that bankruptcy matters be handled exclusively in a federal
forum." Gruntz v. Countv of Los Anqeles, 202 F.3d 1074, 1080
(9” Cir. 2000) (citation omitted). "Congress intended to grant

comprehensive jurisdiction to the bankruptcy courts so that they

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
might deal efficiently and expeditiously with all matters
connected with the bankruptcy estate, . . . and . . . the
language of [28 U.S.C.] § 1334ib) must be read to give district
courts (and bankruptcy courts under [28 U.S.C.] § 157(a))
jurisdiction over more than simple proceedings involving the
property of the debtor or the estate." Celotex Corp. v. Edwards,
514 U.S. 300 308 (1995) (citation and internal quotation marks
omitted). Consequently, "bankruptcy court orders are not subject
to collateral attack in other courts." Gruntz, 202 F.3d at 1082;
McGhan v. RutZ, 288 F.3d ll72, 1179 (9m Cir. 2002). Thus, for
example, an intermediate appellate court in New York dismissed an
appeal from a bankruptcy court's order that a party had
apparently filed in a state court case, because the statute
authorizing appeals to the intermediate appellate court in New

YOrk, CPLR 5702,

does not authorize an appeal from a Federal bankruptcy court
. . . Neither is there any statute governing practice in
the Bankruptcy Court authorizing appeals from it to this
court. In fact, CPLR 5702 is limited to appeals from courts
of this state . . . . Moreover, the mere filing of the
Federal Bankruptcy Court's order and judgment with the
Suffolk County Clerk did not entitle the plaintiff to take
direct appeals to this court from the order and the judgment
. . . . Since the order and judgment appealed from are not
properly before this court, the appeals must be dismissed.

Noghrev v. Town of Brookhaven, 305 A.D. 2d 474, 475 (N.Y. App.
DiV. 2003).

Similarly in the instant case, the December 2, 2009
United States Bankruptcy Court order is not an order of the
circuit court from which Appellant Buffington and Cross-Appellant
IETCI are attempting to appeal. Even if the December 2, 2009
United States Bankruptcy Court order were in the record on appeal
(which it is not), HRS § 663-15.5(e) would not authorize their

appeals from the December 2, 2009 United States Bankruptcy Court

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
order. Absent an appealable final order or judgment, we lack
jurisdiction over this appeal and cross-appeal.

Therefore, IT IS HEREBY ORDERED that appellate court
case number 30259 is dismissed for lack of appellate
jurisdiction,

DATED: Honolulu, Hawafi, JUn@ 41 2010-

é/@Mi/i? /<~/
Presiding_Judge
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Associate Judge

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Associate Judge

