NOT FOR PUBLICATION
NO. 26142
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
FIRST
INSURANCE COMPANY OF HAWAII, LTD., a Hawai`i
corporation, Plaintiff-Appellee,
v. MICHAEL A.
GEORGOPAPADAKOS and
HARRIET A. GEORGOPAPADAKOS,
husband and wife,
Defendants-Appellants, and
TECHNO ENGINEERING &
CONSTRUCTION, LTD., a Hawaii
corporation, Defendant, and
MICHAEL A.
GEORGOPAPADAKOS and
HARRIET A.
GEORGOPAPADAKOS,
husband and wife, Third Party
Plaintiffs-
Appellants, and TECHNO
ENGINEERING & CONSTRUCTION,
LTD., a Hawaii corporation, Third Party
Plaintiff,
v.
FIRST INSURANCE COMPANY OF HAWAII, LTD., a
Hawaii corporation, Third Party
Defendant-
Appellee, and STATE OF HAWAI`I
DEPARTMENT OF
ACCOUNTING AND GENERAL
SERVICES; and PATRICK CHUN,
THOMAS MORIOKA, ROBERT TAKUSHI, et al.,
and CITY
AND
COUNTY OF HONOLULU, Third Party Defendants
APPEAL
FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(Civil No. 95-3447)
SUMMARY DISPOSITION ORDER
(By: Watanabe, Acting C.J., Foley and Fujise, JJ.)
On appeal, Appellants contend that (1) the circuit court erred in finding the Appellants in default because "newly discovered evidence" was found while pursuing their motion to stay; (2) the circuit court erred by issuing the November 21, 2000 default judgment; (3) the court clerk erred by suppressing information that should have been considered before issuing a default judgment; (4) the circuit court violated Appellants' right to due process; (5) First Insurance denied Appellants' access to information and discovery; (6) the circuit court's oral statements differ from the written order; and (7) the circuit court dismissed Appellants' counterclaims in violation of their right to due process.
After careful
review of the issues raised and the arguments made by the parties,
as well as the record of the
proceedings before the circuit court and the relevant case law, we
resolve
Appellants' points on appeal as follows:
The circuit court did not err in denying Appellants' July 1, 2002 motion to set aside. Appellants' motion was untimely as it was based on claims fairly characterized as falling under Hawai`i Rules of Civil Procedure (HRCP) Rule 60(b)(1), (2), or (3) and was filed more than one year after the default judgment was entered. HRCP Rule 60(b).
Moreover, the circuit court did not err in denying Appellants' motion to set aside default because 1) they did not present a meritorious defense and the default was the result of "inexcusable neglect or a wilful act," BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 77, 549 P.2d 1147, 1150 (1976); 2) the facts they allege do not constitute "newly discovered evidence," Ditto v. McCurdy, 103 Hawai`i 153, 162, 80 P.3d 974, 983 (2003); 3) Appellants did not prove they attempted to file the documents that do not appear in the record nor that those documents would have compelled a different result; and 4) Appellants have failed to show they were denied due process as the record reflects they were served with all pleadings and given notice of all hearings and the court-ordered settlement conference, and to the extent they expected the court to contact them, they did so at their own peril. See Herman v. Miller, 63 F. Supp. 2d 918 (C.D. Ill. 1999) (a pro se party has an obligation to follow his case and contact the court regarding its status).
Therefore,
IT IS HEREBY ORDERED that the Final Judgment entered on September 9, 2003 by the Circuit Court of the First Circuit is affirmed.
DATED: Honolulu, Hawai`i, January 24, 2006.
On the briefs:
Beverly Lynne K.
Hiramatsu
(Lyons, Brandt, Cook &
Hiramatsu),
for Plaintiff-Appellee.
1. Techno Engineering & Construction, Ltd. (Techno), is a company owned by Appellants, and was also a defendant in the suit. Techno has not appealed from the Final Judgment.
2. The Honorable
Richard W. Pollack presided.