NO. 26583
IN THE
SUPREME COURT OF THE STATE OF HAWAI`I
MEGHAN R.K.
CEDILLOS, PHILIP H. CEDILLOS, DBA HAWAIIAN WINDOW,
Plaintiffs-Appellants
vs.
STATE
OF HAWAI`I, RODNEY HARAGA (1) as
Director of the State
Department of Transportation; TOM BUSIC,
Individually and
official capacity; LANCE TAKAYAMA, Individually and official
capacity; RAYMOND KAPUNIAI,
Individually and official capacity,
Defendants-Appellees
and
JOHN
DOES 1-5; JANE DOES 1-5; DOE CORPORATIONS 1-5;
DOE PARTNERSHIPS 1-5; DOE GOVERNMENTAL ENTITIES 1-5,
Defendants
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. NO.
02-1-0577)
ORDER
GRANTING DEFENDANTS-APPELLEES'
MOTION TO DISMISS APPEAL FOR LACK
OF JURISDICTION
(By: Moon,
C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Defendants-Appellees' motion to dismiss the
appeal of Plaintiffs-Appellants Meghan R.K. Cedillos
and Philip H. Cedillos, dba Hawaiian Window, for lack of jurisdiction,
the papers in support, and the records and files
herein, it appears that: (1) the circuit court entered the final
judgment on March 5, 2004, and Appellants filed their notice of
appeal on May 20, 2004; (2) pursuant to HRS § 641-1, appeals shall
be allowed in civil matters from all final judgments,
orders or decrees within the time provided by the rules of the court;
(3) Rule 4(a)(1) of the Hawai`i Rules of Appellate
Procedure (HRAP) requires the appellant to file the notice of appeal
within thirty days after entry of a judgment; (4)
pursuant to HRAP Rule 4(a)(5) a judgment or order is entered when it is
filed in the office of the clerk of the court. See
also HRCP Rule 58 (the filing of the judgment in the office of
the clerk constitutes the entry of judgment); (5) Appellants
did not obtain an extension of time to file their notice of appeal
pursuant to HRAP Rule 4(a)(4), and they did not file a post
judgment motion that would toll the time to file a notice of appeal
pursuant to HRAP Rule 4(a)(3); (6) the May 20, 2004
notice of appeal, which was filed more than thirty days after the entry
of the final judgment, was untimely, and the appeal
must be dismissed. See
Enos v. Pacific Transfer
& Warehouse, 80 Hawai`i 345, 349, 910 P.2d 116, 120
(1996)(quoting
Bacon v. Karlin, 68
Haw. 648, 650, 727 P.2d 1127, 1129 (1986)) (an appellant's failure to
file a timely notice of appeal is a
jurisdictional defect that can neither be waived by the parties nor
disregarded by the court in the exercise of judicial
discretion). Therefore
IT IS HEREBY
ORDERED that the motion to dismiss the appeal for lack of jurisdiction
is granted, and this appeal is
dismissed.
DATED: Honolulu,
Hawai`i, September 24, 2004.
Dennis K. Ferm
Deputy Attorney General,
for defendants-appellees
on the motion
1.
Pursuant to Hawai`i
Rules of Appellate Procedure Rule 43(c)(1), Rodney Haraga, the
current Director of the Department of Transportation, has
been substituted for Brian Minaai, the Director at the time this case
was decided by the second circuit court.