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NOT FOR PUBLICATION ***
NO. 27218
IN THE
SUPREME COURT OF THE STATE OF HAWAI`I
In
the Matter of the Trust Created Under the Will Dated
November
15, 1917 of EMANUEL S. CUNHA, Deceased
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CARMA
R. MENG, DONNA PATRICIA MURRAY, and HARVE D. MURRAY,
Petitioners-Appellants/Cross-Appellees
vs.
HAWAIIAN
TRUST COMPANY, LTD.,
Respondent-Appellee/Cross-Appellant
APPEAL FROM
THE FIRST CIRCUIT COURT
(TRUST NO.
97-0116)
AMENDED ORDER
DISMISSING APPEAL
(By:
Nakayama, J., for the court (1))
Upon review of the record, it appears
that
jurisdiction over Count I was transferred from the circuit court to the
appellate
court on August 20, 2000 upon the filing of the interlocutory appeal of
the order denying summary judgment on Count I. The interlocutory appeal
was disposed by opinion filed on April 23, 2004, after which the
circuit court entered judgment
on Counts II, III and IV on February 7, 2005. The February 7, 2005
judgment purported to enter judgment on Count I, but
the circuit court lacked jurisdiction to resolve Count I inasmuch
as appellate jurisdiction over
Count I did not
terminate until the judgment on appeal was filed and the judgment on
appeal
was not filed until April 21, 2005 after it was submitted by the
parties for filing on April 11, 2005. See
State v. Ortiz, 91
Hawai`i 181, 197, 981 P.2d 1127, 1143 (1999)("Appellate jurisdiction in
Hawai`i does not terminate until the appellate
court files its judgment on appeal," citing McCarthy v. Jaress, 6 Haw.
App. 143, 146, 711 P.2d
1315, 1318 (1985).). The circuit court's lack of jurisdiction cannot be waived by the parties or
disregarded by the court. McCarthy, 6 Haw. App. at
146, 711 P.2d at 1318.
Consequently, the February 7, 2005 judgment is null and void as to the entry of judgment
on Count I and the entry of
judgment on Counts II, III and IV is not appealable. See
HRS § 641-1(a); Hawai`i Probate Rules 20(f) and 34. Thus, this
appeal is premature and we lack jurisdiction. Therefore,
IT IS HEREBY ORDERED that the appeal by
appellants Carma Meng, Donna Murray and Harve Murray and the
cross-appeal by Bank of Hawaii are dismissed for lack of appellate
jurisdiction.
DATED: Honolulu, Hawai`i, December 23, 2005.
1. Considered by:
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.