***
NOT FOR PUBLICATION ***
NO.
26043
IN THE
SUPREME COURT OF THE STATE OF HAWAI`I
E.
DANIEL LOTENSCHTEIN,
Plaintiff/Counterclaim Defendant-Appellant
vs.
STOEBNER
HOLDINGS, INC., dba HONDA WINDWARD,
Defendant/Counterclaim Plaintiff-Appellee
and
JOHN
DOES 1-10, JANE DOES 1-10, DOE CORPORATION 1-10,
DOE GOVERNMENTAL ENTITIES 1-10, DOE
ENTITIES 1-10, Defendants
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CIV. NO.
1RC02-2920)
ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that the plaintiff's claims in
Civil No. 1RC02-2920 were finally disposed by the
August 2, 2002 judgment entering judgment on the complaint and awarding
attorney's fees and costs. The August 2, 2002
judgment was appealable upon final disposition of the defendant's
counterclaim. The counterclaim was finally disposed by
the June
16, 2003 stipulation for dismissal that effectively dismissed the
counterclaim "without order of the court" pursuant to
DCRCP 41(a)(1)(ii) and (c). The filing of the June 16, 2003 stipulation
for dismissal ended the district court litigation by
fully deciding the rights and liabilities of all parties, leaving
nothing further to be adjudicated and triggered the time for
appealing the August 2, 2002 judgment. See Casumpang v. ILWU, Local 142,
91 Hawai`i 425, 427, 984 P.2d 1251, 1253
(1999). Re-entry of the August 2, 2002 judgment on July 23, 2003 as a
"Final Judgment" did not trigger a new period for
appealing the August 2, 2002 judgment. Cf. Wong v. Wong, 79 Hawai`i
26,
897 P.2d 953 (1995). Entry of the July 23,
2003 "Final Judgment" as a judgment resolving all claims in Civil No.
1RC02-2920 was unnecessary to the appeal of the
August 2, 2002 judgment inasmuch as the requirements of Jenkins v. Cades Schutte Fleming
& Wright, 76 Hawai`i 115,
869 P.2d 1334 (1994) do not apply to district court civil cases. See Casumpang, supra. The August 22, 2003
notice of
appeal was filed more than thirty days after the filing of the June 16,
2003 stipulation for dismissal and is an untimely
appeal of the August 2, 2002 judgment. The failure of an appellant to
file a timely notice of appeal in a civil matter is a
jurisdictional defect that can neither be waived by the parties nor
disregarded by the appellate court in the exercise of
judicial discretion. Bacon
v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1128 (1986). Thus,
we lack jurisdiction over this
appeal. Therefore,
IT IS HEREBY
ORDERED that this appeal is dismissed for lack of appellate
jurisdiction.
DATED: Honolulu,
Hawai`i, May 12, 2004.