Tamman v. Tamman ( 2012 )

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Electronically Filed
Supreme Court
SCWC-10-0000032
28-MAR-2012
08:19 AM
NO. SCWC-10-0000032
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
_________________________________________________________________
JACQUELINE TAMMAN, Respondent/Plaintiff-Appellee,
vs.
SAMI TAMMAN, Petitioner/Defendant-Appellant.
_________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. CAAP-10-0000032; FC-D NO. 07-1-1120)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, Acoba, and Duffy, JJ.,
and Circuit Judge Kim, in place of McKenna, J., recused)
Petitioner/defendant-appellant Sami Tamman (Sami)
timely petitioned this court for a writ of certiorari to review
the December 15, 2011 judgment entered by the Intermediate Court
of Appeals (ICA) pursuant to the ICA’s November 29, 2011 Summary
Disposition Order (SDO). See Tamman v. Tamman, No. CAAP-10-
0000032, 2011 WL 5926186 (App. Nov. 29, 2011) (SDO). The ICA’s
judgment affirmed the Family Court of the First Circuit’s (family
court) September 7, 2010 Order Regarding Motion for
Reconsideration of Order Entered on July 8, 2010 or in the
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Alternative Motion for New Trial and/or Reopening of the Hearing
(Order Regarding Motion for Reconsideration).1
In his application, Sami raises the following
questions:
A. Did the [ICA] err in finding that the appeal
before it was limited to an appeal of the denial of
[Sami’s] Motion for Reconsideration filed in July 2010
and decided by Order Regarding Motion for
Reconsideration filed September 7, 2010?
B. Did the ICA err in failing to address the
underlying issue of whether the Hawaii Courts have
jurisdiction to hear this case?
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we conclude that
the ICA erred when it limited its review to only the Order
Regarding Motion for Reconsideration.
The instant case involves a divorce action between Sami
and respondent/plaintiff-appellee Jacqueline Tamman (Jacqueline).
On July 8, 2010, the family court issued its Findings of Fact and
Conclusions of Law (FOFs/COLs), as well as its Order Granting
Custody, Visitation, and Support.
On July 19, 2010, Sami timely filed a Motion for
Reconsideration of Order Entered on July 8, 2010 or in the
Alternative for New Trial and/or Reopening of the Hearing. On
September 7, 2010, the family court denied, in substantial part,
1
The Honorable Sabrina S. McKenna presided over the trial in this
case and entered the Order Regarding Motion for Reconsideration and the
July 8, 2010 orders discussed infra.
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Sami’s motion for reconsideration.
On September 30, 2010, Sami filed his notice of appeal
and attached the family court’s Order Regarding Motion for
Reconsideration. On November 1, 2010, Sami filed his Civil
Appeal Docketing Statement (CADS), to which he attached the
following three documents: (1) the Order Regarding Motion for
Reconsideration; (2) the July 8, 2010 FOFs/COLs; and (3) the
July 8, 2010 Order Granting Custody, Visitation and Support.
Under the section on “anticipated issues proposed to be raised on
appeal[,]” Sami listed various issues relating to the July 8,
2010 orders. On December 1, 2010, Sami filed his Jurisdictional
Statement (JS) and attached the three aforementioned documents.
On February 2, 2011, Sami filed his opening brief. In
his opening brief, Sami raised nineteen points of error, which
raised issues regarding personal and subject matter jurisdiction;
the family court’s July 8, 2010 FOFs/COLs; and the July 8, 2010
Order Granting Custody, Visitation and Support.
On May 13, 2011, Jacqueline filed her answering brief.
Jacqueline argued, inter alia, that the ICA should limit its
review to the Order Regarding Motion for Reconsideration because
that was the only order Sami filed with his notice of appeal. In
the alternative, Jacqueline maintained that Sami’s arguments that
challenged the family court’s jurisdiction, FOFs/COLs, and Order
Regarding Visitation, Custody, and Support lacked merit.
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On November 29, 2011, the ICA issued its SDO affirming
the family court’s Order Regarding Motion for Reconsideration.
Tamman, 2011 WL 5926186, at *1. Citing Hawai#i Rules of
Appellate Procedure (HRAP) Rule 3(c)(2) and Ek v. Boggs, 102
Hawai#i 289, 75 P.3d 1180 (2003), the ICA declined to address
points of error that extended beyond Sami’s Order Regarding
Motion for Reconsideration. Tamman, 2011 WL 5926186, at *1. The
ICA then concluded that the “family court did not abuse its
discretion when it denied, in substantial part, Sami’s Motion for
Reconsideration.” Id. at *2. Accordingly, the ICA affirmed the
family court’s Order Regarding Motion for Reconsideration. Id.
In his application, Sami argues that the ICA erred by
limiting its review to only the Order Regarding Motion for
Reconsideration. Sami argues that his notice of appeal, taken
together with his CADS and JS, indicated that he intended to
appeal from the Order Regarding Motion for Reconsideration, the
FOFs/COLs filed on July 8, 2010, and the Order Granting Custody,
Visitation and Support filed on July 8, 2010. Jacqueline argues
that “[t]he ICA properly applied HRAP Rule 3(c)(2) and Hawai#i
law in limiting its review to the [Order Regarding Motion for
Reconsideration].”
Under our caselaw interpreting HRAP Rule 3(c)(2), the
ICA erred in limiting its review to the Order Regarding Motion
for Reconsideration. HRAP Rule 3(a) provides that “[a]n appeal
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permitted by law from a court or agency shall be taken by filing
a notice of appeal[.]” HRAP Rule 3(c)(2) concerns the contents
of the notice of appeal and provides in pertinent part:
The notice of appeal shall designate the judgment,
order, or part thereof and the court or agency
appealed from. A copy of the judgment or order shall
be attached as an exhibit. . . . An appeal shall not
be dismissed for informality of form or title of the
notice of appeal.
In Ek, this court addressed Ek’s failure to
specifically reference a March 5, 1999 prefiling order in his
notice of appeal, to which his arguments on appeal related. 102
Hawai#i at 292-93, 75 P.3d at 1183-84. However, this court
stated that “a mistake in designating the judgment should not
result in loss of the appeal as long as the intention to appeal
from a specific judgment can be fairly inferred from the notice
and the appellee is not misled by the mistake.” Id. at 294, 75
P.3d at 1185 (emphasis added) (ellipses and internal quotation
marks omitted) (quoting State v. Graybeard, 93 Hawai#i 513, 516,
6 P.3d 385, 388 (App. 2000)). In reaching the issues related to
the March 5, 1999 prefiling order, this court stated:
We believe it can be fairly inferred from the court’s
reasoning in the order denying the motion to extend, which
Ek attached as an exhibit to the notice of appeal, that Ek
also intended to appeal from the prefiling order.
[Appellee] has not claimed that he was misled in any way by
the notice of appeal. Moreover, inasmuch as it was one of
the two bases for the court’s denial of the motion to
extend, examination of the prefiling order is necessary in
determining whether the court properly denied the motion to
extend.
Id.Here, the examination of the July 8, 2010 Order
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Regarding Custody, Visitation, and Support was “necessary in
determining whether the [family court] properly denied” Sami’s
motion for reconsideration. Id. Contrary to what the ICA
determined, the Order Regarding Motion for Reconsideration could
not be reviewed independent of the Order Granting Custody,
Visitation, and Support in this particular case. In his motion
for reconsideration, Sami challenged the reasoning of the family
court’s order and asked the family court to reconsider specific
paragraphs in the Order Granting Custody, Visitation, and
Support, as well as specific FOFs/COLs. Moreover, Sami argued in
his motion that “the court’s order is, in its current form,
inconsistent, both to what the court orally stated and with[in]
its own four corners[.]”
For the same reasons, Sami’s intent to appeal from the
underlying July 8, 2010 order could be “fairly inferred” from his
notice of appeal. See Ek, 102 Hawai#i at 294, 75 P.3d at 1185.
Moreover, the record does not reflect that Jacqueline
was misled or prejudiced by Sami’s mistake to her detriment. See
City and Cnty. of Honolulu v. Midkiff, 57 Haw. 273, 275, 554 P.2d
233, 235 (1976) (stating that there was “no showing of any
misleading of the other parties to their detriment”); Ek, 102
Hawai#i at 294, 75 P.3d at 1185 (pointing out that appellee “has
not claimed that he was misled in any way by the notice of
appeal”); Althouse v. State, 111 Hawai#i 35, 40 n.4, 137 P.3d
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349, 354 n.4 (2006) (declining “to excise [appellant’s] second
point of error inasmuch as the notice of appeal was timely filed
and there is no indication that any party suffered prejudice”).
Jacqueline thoroughly briefed each of the issues raised in Sami’s
opening brief, including those that reached the personal and
subject matter jurisdiction issues, as well as the underlying
orders. Accordingly, Jacqueline knew which orders were at issue.
See In re Brandon, 113 Hawai#i 154, 155, 149 P.3d 806, 807 (App.
2006) (pointing to the appellee’s statement contesting
jurisdiction as evidence that the appellee knew what order was at
issue). Furthermore, Jacqueline did not argue that she suffered
any actual prejudice. Thus, contrary to the ICA’s conclusion,
the record does not reflect that Jacqueline was “misled” by
Sami’s mistake or prejudiced by it. See Tamman, 2011 WL 5926186at *1. The approach taken in other jurisdictions is consistent
with our caselaw in liberally construing the notice of appeal
where the appellant’s intent is clear and there is no prejudice
to the appellee. See 5 Am. Jur. 2d Appellate Review § 294 (2007)
(“Most state jurisdictions follow the rule that notices of appeal
are to be liberally construed in favor of their sufficiency so
long as the opposing party has not been misled to his or her
irreparable harm.”).
Based on the facts and circumstances of this case, the
ICA erred in limiting its review to the Order Regarding Motion
for Reconsideration.
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Accordingly,
IT IS HEREBY ORDERED that the ICA’s December 15, 2011
judgment is vacated and the case is remanded to the ICA to
address Sami’s remaining points of error.
DATED: Honolulu, Hawaii, March 28, 2012.
Samuel P. King, Jr. /s/ Mark E. Recktenwald
(Scott T. Stack on the
briefs), for petitioner/ /s/ Paula A. Nakayama
defendant-appellant.
/s/ Simeon R. Acoba, Jr.
Robert M. Harris,
Jonathan W. Ware, pro hac /s/ James E. Duffy, Jr.
vice, and Kaethe Carl, of
counsel (Freshfields /s/ Glenn J. Kim
Bruckhaus Deringer US LLP)
on the brief, and Peter Van
Name Esser for respondent/
plaintiff-appellee.
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