TITLE GUARANTY ESCROW SERVICES, INC., a Hawai'i corporation, Respondent/Plaintiff-Appellee,
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, Respondents/Third-Party Defendants, Third-Party Counterclaimants-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000711; CIV. NO. 02-1-0352(2))
Keith M. Kiuchi, for petitioner.
Bruce H. Wakuzawa for respondent.
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI
Acoba, McKenna, and Pollack, JJ., and Circuit Judge Wilson, in place of Recktenwald, C.J., recused, with Nakayama, Acting C.J., dissenting
The application for a writ of certiorari, filed on June 24, 2013, is hereby accepted.
No oral argument will be heard in the case. Any party may, within ten days and pursuant to Rule 34(c) of the Hawai'i Rules of Appellate Procedure, move for retention of oral argument.
DISSENT BY NAKAYAMA, ACTING C.J.
I must respectfully dissent. The Intermediate Court of Appeals (ICA) did not err in dismissing Petitioner Michael J. Szymanski's (Szymanski) untimely appeal for lack of jurisdiction and therefore I would reject his application for writ of certiorari with this court. As I explained in my dissent to the acceptance of the application for writ of certiorari in Ass'n of Condominium Homeowners of Tropics at Waikele v. Sakuma, No. SCWC-12-0000870, pursuant to the Hawai'i Rules of Appellate Procedure (HRAP) Rules 4(a)(1) and 4(a)(3), a motion for reconsideration that is not disposed of within 90 days is automatically deemed denied and the parties have 30 days as of the date of automatic denial to file the notice of appeal. The failure to file a timely appeal constitutes a jurisdictional defect that may be waived by neither the parties nor the court. Poe v. Haw. Labor Relations Bd., 98 Hawai'i 416, 418, 49 P.3d 382, 384 (2002).
In 1999, Szymanski and Wailea Resort Company (Wailea) entered into a land sales contract for the sale of property located in Honualua, Maui. Szymanski deposited money for the sale into an escrow account held by Title Guaranty Escrow Services, Inc. (Title Guaranty). The sale was not completed and Title Guaranty was left with $51, 000 plus accrued interest in the escrow account. Wailea and Szymanski were unable to agree upon the disposition of the escrow funds and Title Guaranty filed an interpleader action in the Circuit Court of the Second Circuit (circuit court) in 2002 against defendants Wailea and Szymanski. Pursuant to a stipulated judgment executed by the parties, the circuit court entered a final judgment on the interpleader claim in 2003 whereby Title Guaranty deposited the escrow funds with the court clerk in an interest bearing account and Title Guaranty was excused from further participation in the case.
Prior to the entry of the stipulated judgment, Szymanski filed a cross-claim against Wailea and a third-party complaint against ADOA-Shinwa Development Corp. and Shinwa Golf Hawaii Co., Ltd. (collectively, Shinwa), seeking specific performance of the land sale contract and damages. By order of October 20, 2004, the Honorable Rhonda I.L. Loo granted summary judgement in favor of Wailea. Final judgment was entered on April 20, 2005 pursuant to the Hawai'i Rules of Civil Procedure (HRCP) Rule 54(b). The ICA affirmed the final judgment and this court rejected the application for certiorari review on September 17, 2009.
On October 28, 2009, Wailea and Shinwa filed a motion to expunge the lis pendens recorded by Szymanski against the subject land, to disburse the interpleader funds, and for final judgment. Judge Loo granted the motion and entered final judgment on the remaining claims on July 28, 2010.
On September 19, 2011, Szymanski moved for reconsideration of the final judgment of July 28, 2010 and the final partial judgment of April 20, 2005 pursuant to HRCP Rule 60(b) based on Judge Loo's failure to recuse herself. Szymanski argued that Judge Loo should have recused herself because, at the time of the 2004 hearings, she held stock in a company whose wholly owned subsidiary held a conditional ownership interest in the subject land. On January 4, 2012 the circuit court entered an order denying Szymanski's Rule 60(b) motion. On January 13, 2012, Szymanski filed a motion for reconsideration of the order and the motion was set to be heard on March 14, 2012. Szymanski requested a short continuance due to a scheduling conflict and the motion was continued to the next available hearing date, June 27, 2012. Following the hearing, the circuit court denied the motion for reconsideration by order of July 11, 2012.
On August 19, 2012, Szymanski filed a notice of appeal from the January 4, 2012 order denying the Rule 60(b) motion, and the July 11, 2012 order denying the motion for reconsideration. On April 24, 2013, the ICA dismissed the appeal as untimely pursuant to Hawai'i Revised Statutes (HRS) § 641-1 (1993 & Supp. 2012) and HRAP Rules 4(a) (1) and 4(a) (3).
"An appeal shall be taken in the manner and within the time provided by the rules of court." HRS § 641-1(c). HRAP Rule 4(a)(1) provides: "When a civil appeal is permitted by law, the notice of appeal shall be filed within 30 days after entry of the judgment or appealable order." However, pursuant to HRAP Rule 4(a)(3), a motion for reconsideration constitutes a tolling motion that extends the time for filing the notice of appeal to 30 days after entry of an order disposing of the motion. "[T]he failure to dispose of any motion by order entered upon the ...