Fed. Home Loan Mortg. Corp. v. Dudulao
| Decision Date | 30 April 2014 |
| Docket Number | NO. CAAP-13-0001077,CAAP-13-0001077 |
| Court | Hawaii Court of Appeals |
| Parties | FEDERAL HOME LOAN MORTGAGE CORPORATION, Plaintiff-Appellee, v. DANILO BAYANGOS DUDULAO, MARIBEL PERALTA DULDULAO; JOHN DOE OR JANE DOE; ALL PERSONS RESIDING WITH AND ANY PERSONS CLAIMING BY AND THROUGH OR UNDER THEM, Defendants-Appellants |
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
(1) GRANTING FEBRUARY 7, 2014 MOTION TO
DISMISS APPEAL FOR LACK OF JURISDICTION;
(2) STRIKING THE UNAUTHORIZED MARCH 14, 2014 REPLY MEMORANDUM,
AND
(
Upon review of (1) Plaintiff-Appellee Federal Home Loan Mortgage Corporation's (Appellee FHLMC) February 7, 2014 motion to dismiss appellate court case number CAAP-13-0001077 for lack of appellate jurisdiction, (2) Defendants-Appellants Danilo Bayangos Duldulao and Maribel Peralta Duldulao's (the Duldulao Appellants) February 15, 2014 memorandum in opposition to Appellee FHLMC's February 7, 2014 motion to dismiss, (3) Appellee FHLMC's unauthorized March 14, 2014 reply memorandum in support of Appellee FHLMC's February 7, 2014 motion to dismiss, and (4) the record, it appears that Rule 27 of the Hawai'i Rules of Appellate Procedure (HRAP) does not authorize a reply memorandum in support of a motion, and, thus, we hereby order that Appellee FHLMC's unauthorized March 14, 2014 reply memorandum in support of Appellee FHLMC's February 7, 2014 motion to dismiss isstricken from the record, and we refrain from considering it while reviewing the merits of Appellee FHLMC's February 7, 2014 motion to dismiss. Furthermore, it appears that the Duldulao Defendants lack standing to appeal from the District Court of the First Circuit's (District Court) May 7, 2013 judgment for possession against non-party Emily Lelis, because the May 7, 2013 judgment for possession does not aggrieve the Duldulao Appellants, and, thus, dismissal for lack of standing is warranted.
We initially note that the District Court originally entered an October 7, 2011 judgment for possession in favor of Appellee FHLMC and against the Duldulao Appellants as to the real property that was the subject of Appellee FHLMC's April 26, 2011 complaint for ejectment against the Duldulao Defendants. Although the October 7, 2011 judgment for possession did not resolve all issues, such as whether Appellee FHLMC is entitled to an award of money damages, as Hawaii Revised Statutes § 641-1(a) (1993 & Supp. 2013) requires under the holding in Casumpang v. ILWU, Local 142, 91 Hawai'i 425, 426, 984 P.2d 1251, 1252 (1999), the October 7, 2011 judgment for possession and the accompanying October 7, 2011 writ of possession required immediate execution of a command that the Duldulao Defendants deliver the subject property to their adversary, Appellee FHLMC, and, thus, the October 7, 2011 judgment for possession was an immediately appealable judgment under the Forgay doctrine, which "allows an appellant to immediately appeal in a judgment for execution upon property, even if all claims of the parties have not been finally resolved." KNG Corp. v. Kim, 107 Hawai'i 73, 77, 110 P.2d 397, 401 (2005) (citation and internal quotation marks omitted); Ciesla v. Reddish, 78 Hawai'i 18, 20, 889 P.2d 702, 704 (1995). However, Appellee FHLMC correctly argues that the Duldulao Appellants' May 24, 2013 notice of appeal is untimely as to the October 7, 2011 judgment for possession because the Duldulao Appellants did not file their May 24, 2013 notice of appeal within thirty days after entry of the October 7, 2011 judgment for possession, as HRAP Rule 4(a)(1) requires for a timely appeal.
The Duldulao Appellants argue that they are appealing from the May 7, 2013 judgment for possession, and, furthermore, that the district court clerk did not initially include the October 7, 2011 judgment for possession in the record on appeal. Granted, "[i]n civil cases before the district court, the filing of the judgment in the office of the clerk constitutes the entry of the judgment; and the judgment is not effective before such entry." KNG Corp. v. Kim, 107 Hawai'i at 77, 110 P.3d at 401 (citation, internal quotation marks, and brackets omitted); HRAP Rule 4(a)(5) (). Nevertheless, the October 7, 2011 judgment for possession contains the signature of the presiding judge and the district court clerk's file-stamp indicating that the district court clerk filed it in office of the district court clerk on October 7, 2011. Furthermore, on March 5, 2014, the District Court entered an order to supplement the record on appeal with the October 7, 2011 judgment for possession pursuant to HRAP Rule 10(e)(2)(B).
The Duldulao Appellants argue that the October 7, 2011 judgment for possession is no longer in effect, because on December 15, 2011, the District Court, as reflected in the District Court minutes, stated that no attorneys had appeared at a scheduled status conference regarding the issue of bankruptcy, and, consequently, the District Court orally ordered the case dismissed without prejudice. However, the District Court did not reduce this oral ruling to a written dismissal order signed by the presiding judge. There is no written dismissal order that the District Court judge signed and entered in this case.1 Rule23 of the Rules of the District Courts of the State of Hawai'i (RDCH) requires that, after the parties have had their opportunities to propose the form of an order to the presiding judge, "the court shall proceed to settle the . . . order." Implicit within the language of RDCH Rule 23 is that the district court settles a proposed written order by having either a district court judge or district court clerk sign the written order. Cf. HRS § 604-20 (1993) (). Absent a written dismissal order, the District Court's oral dismissal, as reflected in the District Court minutes, did not, in fact, dismiss this case, and, as a result, the October 7, 2011 judgment for possession has remained a valid, enforceable, appealable final judgment pursuant to HRS § 641-1(a) and the Forgay doctrine.
Although the District Court subsequently entered three more judgments for possession (i.e., the District Court's May 7, 2013 judgment for possession, the October 2, 2013 "amended" judgment for possession, and the February 12, 2014 "second amended" judgment for possession), the District Court never entered any written order that invoked an appropriate rule for setting aside or vacating the original October 7, 2011 judgment for possession, such as Rules 59 or 60 of the District Court Rules of Civil Procedure (DCRCP). Cf. Wong v. Wong, 79 Hawai'i 26, 29-30, 897 P.2d 953, 956-57 (1994).2 Even if the DistrictCourt had invoked DCRCP Rule 59 or DCRCP Rule 60 for vacating or setting aside the October 7, 2011 judgment for possession, the three subsequent judgments for possession did not substantially or materially change the District Court's substantive adjudication against the Duldulao Appellants in the October 7, 2011 judgment for possession, and, thus, the three subsequent judgments for possession did not postpone the thirty-day time period under HRAP Rule 4(a)(1) for filing a notice of appeal from the October 7, 2011 judgment for possession. As the Supreme Court of Hawai'i has explained:
The general rule is that where a judgment is amended in a material and substantial respect, the time within which an appeal from such determination may be taken begins to run from the date of the amendment, although where the amendment relates only to the correction of a clerical error, it does not affect the time allowed for appeal.
Poe v. Hawai'i Labor Relations Board, 98 Hawai'i 416, 418, 49 P.3d 382, 384 (2002) (); State v. Mainaaupo, 117 Hawai'i 235, 246 n.6, 178 P.3d 1, 12 n.6 (2008). Furthermore:
If the amendment of a final judgment or decree for the purpose of correcting a clerical error either materially alters rights or obligations determined by the prior judgment or decree or creates a right of appeal where one did not exist before, the time for appeal should be measured from the entry of the amended judgment. If, however, the amendment has neither of these results, but instead makes changes in the prior judgment which have no adverse effect upon those rights or obligations or the parties' right to appeal, the entry of the amended judgment will not postpone the time within which an appeal must be taken from the original decree.
Poe v. Hawai'i Labor Relations Board, 98 Hawai'i at 418, 49 P.3d at 384 (citations, internal quotation marks, and original brackets omitted; emphasis added). The October 7, 2011 judgment for possession appears to have finally determined the issue of whether Appellee FHLMC is entitled to exclusive possession of the subject property in the instant case. The three subsequent judgments for possession added nothing substantive and material to the substance of the October 7, 2011 judgment for possession, which provided that Appellee FHLMC was entitled to exclusive possession of the subject property. Therefore, under the holding in Poe v. Hawai'i Labor Relations Board, the entry of the three subsequent judgments for possession did not postpone the time within which an appeal had to be taken from the October 7, 2011 judgment for possession.
The Duldulao Appellants did not file their May 24, 2013 notice of appeal within thirty days after entry of the October 7, 2011 judgment for possession, as HRAP Rule 4(a)(1) requires for a timely appeal. Therefore, the Duldulao Appellants' appeal is untimely as to the ...
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