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N()T FOR PUBLlC/\Tl()N IN WEST'S HAWAI‘I REP()RTS ANI) PAC[I*`IC RE'I’()R'I`P`.R

NO. 29929

lN THE lNTERMEDIATE COURT OF APPEALS

 

OF THE STATE OF HAWAIdf

 

MICHAEL P. FLINCHBAUGH, Plaintiff~Appellee, 1
JOHN R. CATES, Defendant~Appellant pi

 

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APPEAL FROM THB CIRCUIT CGURT OF THE FIRST CIRCUIT
(CIVIL NO. 05-l~lO22)

ORDER DlSMlSSING APPEAL
FOR LACK OF APPELLATE JURISDICTION
(By: Nakamura, Chief Judge, Foley and Leonard, JJ.)

Upon review of the record, it appears that we lack
jurisdiction over the appeal that Defendant-Appellant John R.
Cates (Appellant Cates) has asserted from the Honorable Gary W.
B. Chang's January 9, 2009 judgment, because Appellant Cates's
appeal is untimely under Rule 4(a)(3) of the Hawafi Rules of
Appellate Procedure (HRAP).

The January 9, 2009 judgment resolved all claims
against all parties, and, thus, the January 9, 2009 judgment is
an appealable final judgment pursuant to Hawaii Revised Statutes
(HRS) § 64l~1(a) (l993 & Supp. 2008), Rule 58 of the HawaiU_
Rules of Civil Procedure (HRCP), and the holding in Jenkins v.
Cades Schutte Fleming & Wright, 76 HawaiU_ll5, ll9, 869 P.2d
l334, 1338 (l994). Pursuant to HRAP Rule 4(a)(3),‘ Appellant
Cates extended thethirty-day time period under HRAP Rule 4(a)(l)
for filing a notice of appeal by timely filing Appellant Cates's

1 Rule 4(a){3} of the Hawafi Rules of Appellate Procedure (HRAP)
provides:

(3) Time to Appeal Affected by Post-Judgment Motions. If any
party files a timely motion for judgment as a matter of law, to amend
findings or make additional findings, for a new trial, to 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

motion.

HRAP Rule 4(a)(3) (effective July l, 2006) (emphases added).

N()T FOR PI_!BLIVCAT[()N ]N WES'F'S HAVVAI‘] REPORTS AND PACII*`IC REP()RTER

January 20, 2009* HRCP Rule 50 and HRCP Rule 59 motion for
judgment as a matter of law, a new trial or, in the alternative,
remittitur within ten days after entry of the January 9, 2009
judgment, as HRCP Rule 50 and HRCP Rule 59 required for such a
motion. However, when a party files a timely post-judgment
motion that tolls 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 filed."
Buscher v. B@ninq, 114 Hawai‘i 202, 221, 159 P.zd 814, 333
(2007); §§§ HRAP Rule 4(a)(3) ("[T]he 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
motion."). When "the court fail[s] to issue an order on [the
movant]'s [post-judgment tolling] motion by . . . ninety days
after [the date on which the movant] 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, ll9 HawaiT_352, 367, 198 P.3d 6l5, 630 (2008). The
ninetieth day after January 20, 2009, was April 20, 2009, at the
end of which time Appellant Cates's January 20, 2009 HRCP Rule 50
and HRCP Rule 59 motion for judgment as a matter of law, a new
trial or, in the alternative, remittitur was deemed denied
pursuant to HRAP Rule 4(a)(3). Although the circuit court later
entered a June 26, 2009 written order that purports to deny
Appellant Cates's January 20, 2009 HRCP Rule 50 and HRCP Rule 59
motion for judgment as a matter of law, a new trial or, in the
alternative, remittitur, the June 26, 2009 written order is
untimely, superfluous, and void under HRAP Rule 4(a)(3).
Appellant Cates did not file his July 6, 2009 notice of appeal
within thirty days after the April 20, 2009 deemed denial of
Cates's January 20, 2009 HRCP Rule 50 and HRCP Rule 59 motion for

judgment as a matter of law, a new trial or, in the alternative,

2 The tenth calendar day after January 9, 2009, was Monday,

January l9, 2009, which was Martin Luther King Day, and, thus, HRCP Rule 6(a)
extended the ten-day deadline under HRCP Rule 50 and HRCP Rule 59 until
Tuesday, January 20, 2009.

_2_

NOT F()R PUBLICATION lN VVES'I"S HA\N’AI‘I RF.P()RTS ANI) PACIF¥C R.EPORTEI{

remittitur, as HRAP Rule 4(a)(3) required. Therefore, Cates's
July 6, 2009 notice of appeal is untimely under HRAP
Rule 4(a)(3). 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]."). Consequently,
we lack appellate jurisdiction over this case. Therefore,

IT IS HEREBY ORDERED that Appeal No. 29929 is dismissed
for lack of appellate jurisdiction.

DATED: Honolulu, HawaiUq January 7, 20l0.

feed %@Mt,

Chief Judge

 

