Opinion
No. SCWC–12–0000711.
2014-01-24
TITLE GUARANTY ESCROW SERVICES, INC., a Hawai‘i corporation, Respondent/Plaintiff–Appellee, v. Michael J. SZYMANSKI, Petitioner/Defendant, Cross–Claimant, Third–Party Plaintiff, Third–Party Counterclaim Defendant–Appellant, and Wailea Resort Company, Ltd., a Hawai‘i corporation, Respondent/Defendant, Cross–Claim Defendant–Appellee, and Adoa–Shinwa Development Corporation, a Hawai‘i corporation, and Shinwa Golf Hawai‘i Co., Ltd., a Hawai‘i corporation, Third–Party Counterclaimants–Appellees.
For the reasons set forth in my dissenting opinion in Ass'n of Condo. Homeowners of Tropics at Waikele v. Sakuma, SCWC–12–0000870, 2013 WL 6633990 (Dec. 17, 2013), I respectfully dissent from the majority's conclusion that the deemed denial of a post-judgment motion does not trigger the thirty-day deadline for filing a notice of appeal pursuant to Hawai‘i Rules of Appellate Procedure (HRAP) Rules 4(a)(1) and 4(a)(3). Under the majority's reading of HRAP Rule 4(a)(3), a deemed denial has no legal effect and it therefore renders the second clause of the rule superfluous. In my view, the deemed denial of a timely post-judgment motion constitutes an order disposing of the motion and triggers HRAP Rule 4(a)(1)'s thirty-day deadline for the filing of a notice of appeal. In this case, because Petitioner/Defendant, Michael J. Szymanski did not timely file his notice of appeal within thirty days of the HRAP Rule 4(a)(3) deemed denial of his motion for reconsideration, the ICA did not have jurisdiction over his appeal. Accordingly, I respectfully dissent.