 

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 29798

IN THE INTERMEDIATE COURT OF APPEALS

oF THE sTA'rE oF HAWA:‘:

PASCAL C. BOLOMET and ROUTH T. BOLOMET,
Plaintiffs~Appellants,

  

V .

RLI INSURANCE COMPANY, JAMES G. MCLEAN, and ANNE L. MCLEAN,
Defendants-Appellees,

and
JOHN and JANE DOES l-50 and DOE ENTITIES 1-50, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 05-1-2222)

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

Upon review of (l) the August 26, 2009 order dismissing‘

appellate court case number 29798 for lack of jurisdiction,

(2) a September 3, 2009 motion.by Defendants-Appellants Pascal C.
Bolomet and Routh T. Bolomet (the Bolomet Appellants) for
reconsideration of the August 26, 2009 order dismissing appellate
court case number 29798 pursuant to Rule 40 of the Hawafi Rules
of Appellate Procedure (HRAP), (3) the September ll, 2009 order
granting the Bolomet Appellants' September 3, 2009 HRAP Rule 40
motion for reconsideration of the August 26, 2009 order
dismissing appellate court case number 29798, and remanding this
case to the circuit court with instructions to hold a hearing on
issues relating to the timeliness of the Bolomet Appellants'
notice of appeal, (4) the Honorable Derrick H. M. Chan's
December 29, 2009 findings of fact, conclusions of law, decision
and order on the issues relating to the timeliness of the Bolomet
Appellants' appeal, and (5) the record, it appears that the

circuit court has found and concluded that

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

0 a circuit court clerk did not refuse to allow the Bolomet
Appellants to file their notice of appeal on April 30, 2009,
the final day on which the Bolomet Appellants could file a
timely notice of appeal pursuant to HRAP Rule 4(a)(3), and

0 the Bolomet Appellants did not properly serve a motion for
an extension of time to file their notice of appeal and did
not demonstrate excusable neglect for failing to file their
notice of appeal on time.

Consequently, it appears that the Bolomet Appellants' appeal is
untimely under HRAP Rule 4(a)(3).

In the instant case, the Honorable Bert I. Ayabe's
January 23, 2009 judgment resolved all claims against all
parties, and, thus, the January 23, 2009 judgment is an
appealable final judgment pursuant to Hawaii Revised Statutes
(HRS) § 641~l(a) (l993 & Supp. 2009), Rule 58 of the Hawafi
Rules of Civil Procedure (HRCP), and the holding in Jenkins v.
Cades Schutte Fleming & Wright, 76 Hawafi ll5, ll9, 869 P.2d
l334, l338 (l994). Pursuant to HRAP Rule 4(a)(3), the Bolomet
Appellants extended thethirty-day time period under HRAP
Rule 4(a)(l) for filing a notice of appeal by timely filing their
January 27, 2009 HRCP Rule 59 motion for reconsideration within
ten days after entry of the January 23, 2009 judgment, as HRCP
Rule 59 required. However, the Bolomet Appellants did not file
their May l, 2009 notice of appeal within thirty days after entry
of the March 3l, 2009 order denying the Bolomet Appellants'
January 27, 2009 HRCP Rule 59 motion for reconsideration, as HRAP
Rule 4(a)(3) required. Therefore, the Bolomet Appellants' May l,
2009 notice of appeal is not timely under HRAP Rule 4(a)(3).

As already noted, we remanded this case to the circuit
court with instructions to hold a hearing on issues relating to
the timeliness of the Bolomet Appellants' notice of appeal.

After holding an evidentiary hearing, the circuit court has

concluded that

0 a circuit court clerk did not refuse to allow the Bolomet
Appellants to file their notice of appeal on April 30, 2009,
the final day on which the Bolomet Appellants could file a
timely notice of appeal pursuant to HRAP Rule 4(a)(3), and

0 the Bolomet Appellants did not properly serve a motion for
an extension of time to file their notice of appeal and did
not demonstrate excusable neglect for failing to file their
notice of appeal on time.

__2_

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

Consequently, it appears that the Bolomet Appellants' 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 ll27, 1128 (l986); 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].").

Accordingly, '

IT IS HEREBY ORDERED that in response to Appellants'
motion for reconsideration, we reaffirm our August 26, 2009 order
dismissing this appeal for lack of jurisdiction. This appeal is
dismissed for lack of appellate jurisdiction.

DATED: Honolulu, HawaiHq MaFCh 151 29lO-

diaz arrival

Chief Judge

Associate Jud;§§§é§§j

Associate Judg

