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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0000711
                                                               24-JAN-2014
                                                               09:49 AM



                             SCWC-12-0000711

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I



              TITLE GUARANTY ESCROW SERVICES, INC.,
      a Hawai#i corporation, Respondent/Plaintiff-Appellee,

                                    vs.

           MICHAEL J. SZYMANSKI, Petitioner/Defendant,
              Cross-Claimant, Third-Party Plaintiff,
          Third-Party Counterclaim Defendant-Appellant,

                                    and

       WAILEA RESORT COMPANY, LTD., a Hawai#i corporation,
     Respondent/Defendant, Cross-Claim Defendant-Appellee,

                                    and

 ADOA-SHINWA DEVELOPMENT CORPORATION, a Hawai#i corporation, and
      SHINWA GOLF HAWAI#I CO., LTD., a Hawai#i corporation,
             Third-Party Counterclaimants-Appellees.



         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-12-0000711; CIV. NO. 02-1-0352(2))

                    SUMMARY DISPOSITION ORDER
           (By: Acoba, McKenna, and Pollack, JJ., and
  Circuit Judge Wilson in place of Recktenwald, C.J., recused,
             with Nakayama, Acting C.J., dissenting)

          Petitioner/Defendant, Michael J. Szymanski (Szymanski)

seeks review of the Intermediate Court of Appeals’ (ICA) April
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24, 2013 order dismissing Szymanski’s appeal for lack of

appellate jurisdiction.      Based upon our holding in Association of

Condominium Homeowners of Tropics at Waikele v. Sakuma, No. SCWC-

12-870, 2013 WL 6633990 (Dec. 17, 2013), we vacate the ICA’s

dismissal order and remand to the ICA for further proceedings

consistent with this opinion.

          In 1999, Szymanski and Wailea Resort Company, Ltd.

(Wailea) entered into a land sales contract for the sale of

property in Honua#ula, Maui.      Escrow was opened with Title

Guaranty Escrow Services, Inc. (“Title Guaranty”) and Szymanski

deposited money into the escrow account.          In 2001, the

transaction was cancelled.       Wailea and Szymanski could not agree

on the disposition of the escrow funds.         As a result, Title

Guaranty filed an interpleader action in the Circuit Court of the

Second Circuit (circuit court) against them.

          Szymanski filed a cross-claim against Wailea and a

third-party complaint against ADOA-Shinwa Development Corp. and

Shinwa Golf Hawai#i Co., Ltd., seeking to enforce the real estate

transaction contract.     In 2004, the Honorable Rhonda I.L. Loo

granted summary judgment in favor of Wailea.           Final judgment was

entered on April 20, 2005 pursuant to Hawai#i Rules of Civil

Procedure (HRCP) Rule 54(b).




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          On October 28, 2009, Wailea and Shinwa filed a motion

to expunge the lis pendens recorded by Szymanski against the

subject land, for an order directing the disbursement of the

interpleader funds to them, and for entry of final judgment.

Judge Loo granted the motion and entered final judgment on the

remaining claims on July 28, 2010.

          On September 19, 2011, Szymanski moved for

reconsideration of the final judgment of July 28, 2010 and the

final partial judgment of April 20, 2005 under HRCP Rule 60(b).

Szymanski argued that Judge Loo should have recused herself in

2004 when she heard the summary judgment motions because she held

stock in a company whose wholly owned subsidiary held a

conditional ownership interest in the subject land.            The circuit

court denied Szymanski’s Rule 60(b) motion by order entered on

January 4, 2012.

          On January 13, 2012, Szymanski filed a motion for

reconsideration on the order denying his HRCP Rule 60(b) motion.

The motion was initially set to be heard on March 14, 2012.

Szymanski requested a short continuance due to a scheduling

conflict and the motion was continued to June 27, 2012.             After

the hearing, the circuit court denied the motion for

reconsideration and entered a written order on July 11, 2012.




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           On August 10, 2012, Szymanski filed a notice of appeal

from the January 4, 2012 order denying the Rule 60(b) motion and

the July 11, 2012 order denying the motion for reconsideration.

On April 24, 2013, the ICA dismissed the appeal as untimely under

Hawai#i Revised Statutes (HRS) § 641-1 (1993 & Supp. 2012) and

Hawai#i Rules Of Appellate Procedure (HRAP) Rules 4(a)(1) and

4(a)(3).   According to the ICA, Szymanski “did not file his

August 10, 2012 notice of appeal within thirty days after the

April 12, 2012 HRAP Rule 4(a)(3) deemed denial of [his] January

13, 2012 HRCP Rule 59 motion for reconsideration, as HRAP Rule

4(a)(3) required for a timely appeal.”

           In Sakuma, this court held that when a timely post-

judgment tolling motion is deemed denied, it does not trigger the

thirty-day deadline for filing a notice of appeal until entry of

the judgment or appealable order pursuant to HRAP 4(a)(1) and

4(a)(3).   Association of Condominium Homeowners of Tropics at

Waikele v. Sakuma, No. SCWC-12-870, 2013 WL 6633990, at *2.

           Therefore, IT IS HEREBY ORDERED that the ICA’s April

24, 2013 Order (1) Denying March 12, 2013 Motion To Remand For

Entry of Judgment and (2) Dismissing Appeal For Lack Of Appellate

Jurisdiction is vacated, and this case is remanded to the ICA for

further proceedings.




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          DATED:       Honolulu, Hawai#i, January 24, 2014.

Keith M. Kiuchi,                   /s/   Simeon R. Acoba, Jr.
for petitioner
                                   /s/   Sabrina S. McKenna

                                   /s/   Richard W. Pollack

                                   /s/   Michael D. Wilson




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