Pacific Isle Delivery v. Chun Fat
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*** NO T FO R PUBLICATION ***
NO. 26093
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
PACIFIC ISLE DELIVERY and EAGLE PACIFIC INSURANCE, COMPANY,
Plaintiffs-Appellees
and
WENDELL GAUI, Plaintiff-Appellant
vs.
REGINALD CHUN FAT, JOHN DOES 1-10, JANE DOES 1-10, DOE
CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10, DOE GOVERNMENTAL
ENTITIES 1-10 and DOE NON-PROFIT ENTITIES 1-10, Defendants
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 00-1-3428)
ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that the first
amended complaint filed in Civil No. 00-1-3428 was finally
adjudicated by entry of the May 15, 2003 stipulation dismissing
the complaint with prejudice.
Entry of the May 15, 2003
stipulated dismissal constituted entry of final judgment in Civil
No. 00-1-3428.
The proceeding to apportion the settlement
proceeds was a post-judgment proceeding in Civil No. 00-1-3428
that was finally determined by entry of the July 8, 2003 order
apportioning the settlement proceeds.
The July 8, 2003 order
ended the post-judgment apportionment proceeding and was a final
order appealable within thirty days after it was entered.
See
HRS § 641-1(a); HRAP 4(a)(1); Familian Northwest Inc. v. Central
Pacific Boiler & Piping, Ltd., 68 Haw. 368, 370, 714 P.2d 936,
937 (1986).
The August 22, 2003 stipulation for dismissal
purported to dismiss “all remaining claims” and “all remaining
parties,” but there were no remaining claims or remaining parties
*** NO T FO R PUBLICATION ***
to be dismissed following entry of the July 8, 2003 order.
Entry
of the August 22, 2003 stipulation for dismissal was superfluous
and did not affect the time for appealing the July 8, 2003 order.
The September 17, 2003 notice of appeal was filed more than
thirty days after entry of the July 8, 2003 order and is an
untimely appeal of the July 8, 2003 order.
The failure of an
appellant to file a timely notice of appeal in a civil matter is
a jurisdictional defect that can neither be waived by the parties
nor disregarded by the appellate court in the exercise of
judicial discretion.
1127, 1128 (1986).
Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d
Thus, we lack jurisdiction over this appeal.
Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED:
Honolulu, Hawai#i, Janaury 6, 2004.
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