Ditto v. McCurdy

• Decision Date: 03 December 2003
• Docket Number: No. 23851.,23851.
• Citation: 80 P.3d 974,103 Haw. 153
• Parties: Janie DITTO, Plaintiff-Appellant/Cross-Appellee, v. John A. McCURDY, Jr., M.D., Defendant-Appellee/Cross-Appellant, and Karla Scarpiova, Defendant, and Pacific Century Trust, fka Hawaiian Trust Company, Limited, Garnishee-Appellee/Cross-Appellant.
• Court: Hawaii Supreme Court

80 P.3d 974

103 Haw. 153

Janie DITTO, Plaintiff-Appellant/Cross-Appellee, v. John A. McCURDY, Jr., M.D., Defendant-Appellee/Cross-Appellant, and Karla Scarpiova, Defendant, and Pacific Century Trust, fka Hawaiian Trust Company, Limited, Garnishee-Appellee/Cross-Appellant.

No. 23851.

Supreme Court of Hawaii.

December 3, 2003.

David C. Schutter and Christopher A. Dias, Honolulu, (of Schutter Dias Smith & Wong), for plaintiff-appellant/cross-appellee Janie Ditto.

Gary G. Grimmer, Honolulu, and Neil J. Verbrugge (of Carlsmith Ball LLP), for defendant-appellee/cross-appellant John A. McCurdy, Jr., M.D. and garnishee-appellee/cross-appellant Pacific Trust Company, Limited.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by MOON, C.J.

In this consolidated appeal, plaintiff-appellant/cross-appellee Janie Ditto, defendant-appellee/cross-appellant John A. McCurdy, Jr., and garnishee-appellee/cross-appellant Pacific Century Trust, fka Hawaiian Trust Company, Limited [hereinafter, PCT], appeal from the first circuit court's¹ March 24, 2000 order granting in part and denying in part McCurdy and PCT's motion for return of garnished funds and for attorneys' fees and costs and a September 28, 2000 "final" judgment. Ditto also appeals from the first circuit court's November 20, 2000 order denying her motion to set aside and/or to alter the judgment. Based on the discussion below, we sua sponte dismiss, for lack of jurisdiction, Ditto's appeal and McCurdy and PCT's cross-appeal from the March 24, 2000 order and September 28, 2000 "final" judgment. We affirm the November 20, 2000 order denying Ditto's motion to set aside and/or alter the judgment.

I. BACKGROUND

A. The Underlying Case

The facts of the underlying medical malpractice action are described in detail in prior opinions of the Intermediate Court of Appeals (ICA) and this court. See Ditto v. McCurdy, 86 Hawai'i 93, 947 P.2d 961 (App.),

vacated in part, 86 Hawai'i 84, 947 P.2d 952 [hereinafter Ditto I], reconsideration denied,

86 Hawai'i 84,

947 P.2d 952 (1997). Briefly stated, Ditto was disfigured as a result of breast augmentation surgery performed by McCurdy. In June 1992, a jury awarded Ditto $1,003,500 in general and special damages for negligence, $400,000 in damages for fraud, and $600,000 in punitive damages. Judgment was entered in July 1992 [hereinafter, the July 1992 Judgment].²

B. Garnishment and Ditto II

In October 1992, McCurdy filed a voluntary petition for bankruptcy in the United States Bankruptcy Court for the District of Hawai'i. As a result, inter alia, the July 1992 judgment against McCurdy was automatically stayed.

Following bankruptcy proceedings and relief from the automatic bankruptcy stay, Ditto initiated circuit court garnishment proceedings in October 1997 with respect to two of McCurdy's pension plans at PCT. Details of the garnishment proceedings are described in Ditto v. McCurdy, 90 Hawai'i 345, 348-50, 978 P.2d 783, 787-89 (1999) [hereinafter, Ditto II]. Of relevance here is the circuit court's September 1998 garnishee order directing PCT to pay Ditto, in care of her attorneys, $65,910.00, the amount of funds placed into McCurdy's pension plans at PCT between December 1984 and December 1987. See id. at 351, 978 P.2d at 788. Although HRS § 651-124 (1993) provides that the right of a debtor to pension money is generally exempt from attachment, execution, seizure, or the other legal process, an exception is made for, inter alia, contributions made to a plan within three years before the date a civil action is initiated against the debtor. The circuit court relied upon this exception in issuing its September 1998 garnishee order.

In Ditto II, this court held the HRS § 651-124 exception was preempted by section 206(d)(1) of ERISA, which prohibits garnishment of McCurdy's ERISA pension plan benefits. 90 Hawai'i at 359, 978 P.2d at 797. We, therefore, reversed the circuit court's September 1998 garnishee order and the underlying August 1998 order granting in part and denying in part Ditto's motion for issuance of garnishee summons after judgment. Id.

On November 16, 1999, McCurdy and PCT moved for return of the $65,910.00 in garnished funds and sought $83,191.25 in attorneys' fees and costs. Following a hearing on the matter, the circuit court granted McCurdy and PCT's motion as to the return of the garnished funds and for payment of $8,576.86 in costs, but denied McCurdy and PCT's request for attorneys' fees without prejudice [hereinafter, the March 24, 2000 order].³ The matters disposed of in the March 24, 2000 order are the subject of the instant appeal.

On September 28, 2000, the circuit court entered a document titled "Final Judgment on Collateral Issue" based on the March 24, 2000 order [hereinafter, the September 28, 2000 judgment].⁴ On October 9, 2000, Ditto moved to set aside and/or alter the September 28, 2000 judgment pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rules 59(e) and 60(b). On October 30, 2000, Ditto filed a notice of appeal from the March 24, 2000 order and the September 28, 2000 judgment, which was docketed under appeal No. 23851.

Ditto's motion to set aside and/or alter the September 28, 2000 judgment came on for hearing on November 14, 2000. On November 20, 2000, the circuit court denied Ditto's motion [hereinafter, the November 20, 2000 order]. On December 19, 2000, McCurdy and PCT filed a notice of cross-appeal (under appeal No. 23851) from those portions of the March 24, 2000 order and the September 28, 2000 judgment respecting attorneys' fees. On December 20, 2000, Ditto filed a notice of appeal from the November 20, 2000 order, which was docketed under appeal No. 23962. Upon McCurdy and PCT's request, we consolidated appeal Nos. 23851 and 23962 under No. 23851 by order dated March 13, 2001.

II. STANDARD OF REVIEW

A circuit court's determination of an HRCP Rule 60 motion is reviewed for an abuse of discretion. Amantiad v. Odum, 90 Hawai'i 152, 158, 977 P.2d 160, 166 (1999) (citing Island Ins. Co., Inc. v. Santos, 86 Hawai'i 363, 366, 949 P.2d 203, 206 (App. 1997)) (citing Richardson v. Lane, 6 Haw. App. 614, 622, 736 P.2d 63, 69, cert. denied, 484 U.S. 953, 108 S.Ct. 345, 98 L.Ed.2d 371 (1987), reh'g denied, 484 U.S. 1037, 108 S.Ct. 764, 98 L.Ed.2d 781 (1988)).

III. DISCUSSION

A. Appellate Jurisdiction

1. Appeal and Cross-Appeal from the March 24, 2000 Order and the September 28, 2000 Judgment (Appeal No. 23851)

"As a general rule, compliance with the requirement of the timely filing of a notice of appeal is jurisdictional, and we must dismiss an appeal on our motion if we lack jurisdiction." Grattafiori v. State, 79 Hawai`i 10, 13, 897 P.2d 937, 940 (1995) (internal quotation marks and citations omitted). Indeed, it is well settled that an appellate court is under an obligation to ensure that it has jurisdiction to hear and determine each case and to dismiss an appeal on its own motion where it concludes it lacks jurisdiction. Kernan v. Tanaka, 75 Haw. 1, 15, 856 P.2d 1207, 1215 (1993), cert. denied, 510 U.S. 1119, 114 S.Ct. 1070, 127 L.Ed.2d 389 (1994) (citation omitted); see Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i 115, 119, 869 P.2d 1334, 1338 (1994)

. The "lack of subject matter jurisdiction can never be waived by any party at any time." Housing Fin. & Dev. Corp. v. Castle, 79 Hawai'i 64, 76, 898 P.2d 576, 588 (1995) (citing Chun v. Employees' Retirement Sys., 73 Haw. 9, 14, 828 P.2d 260, 263,

reconsideration denied, 73 Haw. 625, 829 P.2d 859 (1992)). Therefore, "[w]hen we perceive a jurisdictional defect in an appeal, we must, sua sponte, dismiss that appeal." Familian Northwest, Inc. v. Cent. Pac. Boiler & Piping, Ltd., 68 Haw. 368, 369, 714 P.2d 936, 937 (1986) (citations omitted).

Bearing these tenets in mind, we are compelled to sua sponte dismiss, for lack of jurisdiction, Ditto's appeal and McCurdy and PCT's cross-appeal from the March 24, 2000 order and September 28, 2000 judgment. This court's jurisdiction over an appeal is limited to review of final judgments, orders, and decrees. HRS § 641-1(a) (1993).⁵ A post-judgment order is an appealable final order under HRS § 641-1(a) if the order ends the proceedings, leaving nothing further to be accomplished. Familian Northwest, 68 Haw. at 370, 714 P.2d at 937. Correlatively, an order is not final if the rights of a party involved remain undetermined or if the matter is retained for further action. Id. at 370, 714 P.2d at 937-38.

In this case, McCurdy and PCT's November 16, 1999 motion for return of garnished funds and for attorneys' fees and costs constituted a post-judgment proceeding in civil case number 89-2262, the underlying malpractice action. As previously noted, the March 24, 2000 order granted in part and denied in part McCurdy and PCT's motion, ordering return of the $65,910.00 in garnished funds, awarding costs, and denying McCurdy and PCT's request for attorneys' fees. Because it disposed of all issues raised in McCurdy and PCT's November 16, 1999 motion, the March 24, 2000 order ended the post-judgment proceeding regarding the request for return of the $65,910.00 in garnished funds and for attorneys' fees and costs. The March 24, 2000 order left nothing further to be accomplished and was, therefore, final. See Familian Northwest, 68 Haw. at 370,

714 P.2d at 937; Chun v. Board of Trustees of Employees' Retirement Sys. of State of Hawai'i, 92 Hawai'i 432, 448, 992 P.2d 127, 143 (2000). Accordingly, the March 24, 2000 order was appealable under HRS § 641-1(a).⁶

As previously indicated, on September 28, 2000, the circuit court entered a purported "final judgment" (to wit, the September 28, 2000 judgment) based on the March 24, 2000 order. The record evinces that it is from the September 28, 2000 judgment that the parties measured the time from which to appeal the matters finally and fully disposed in the March 24, 2000 order.⁷ Ditto's October 30, 2000 notice of appeal and...