Armitage et al v. Field

Filing 12

ORDER GRANTING APPELLEE'S MOTION TO DISMISS APPEAL 4 . Signed by JUDGE LESLIE E. KOBAYASHI on 9/20/2011. [Order follows hearing held 8/29/2011 on Motion to Dismiss (doc 4). Minutes: docket entry no. 11 ] (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
In re:
WAIEHU AINA, LLC,
Debtor.
_____________________________
DANE S. FIELD, CHAPTER 7
TRUSTEE for WAIEHU AINA, LLC,
Plaintiff,
vs.
ROBERT K. ARMITAGE, SR.;
CHARMINE ARMITAGE; ROBERT K.
ARMITAGE, JR.; NAMI KEKAUALUA
ARMITAGE; HAYLEEANA ARMITAGE;
HILEYSOHN ARMITAGE; HAVEN
ARMITAGE; REANNON ARMITAGE;
WAYNE K. ARMITAGE; DENISE
ARMITAGE; RICKIE KA’AHA’AINA;
STEVEN HEIME; ZACHARY KANOA;
VALERIE SAROL; DOE DEFENDANTS
1-999,
Defendants.
_____________________________

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CIVIL NO. 11-00298 LEK-RLP
(Appeal from Order and
Judgment of Bankruptcy Court)
Bk. No. 10-01188
(Chapter 7)
Adversary Proceeding No. 1100003

ORDER GRANTING APPELLEE’S MOTION TO DISMISS APPEAL
Before the Court is Appellee Dane S. Field, Chapter 7
Trustee for Waiehu Aina, LLC’s (“Trustee” or “Appellee”) Motion
to Dismiss Appeal for Lack of Appellate Jurisdiction (“Motion”),
filed on May 13, 2011.
August 29, 2011.

This matter came on for hearing on

Appearing on behalf of Appellee was

Neil Verbrugge, Esq.

Pro se Appellants Robert K. Armitage and

Robert Iiams (“Appellants”) did not appear at the hearing.

After

careful consideration of the Motion, the parties’ filings and the
arguments of counsel, the Trustee’s Motion is HEREBY GRANTED for
the reasons set forth below.
BACKGROUND
I.

Bankruptcy Proceeding
The Trustee moves pursuant to Fed. R. Bankr. P. 8002

for an order dismissing the present appeal from the United States
Bankruptcy Court for the District of Hawai‘i (“Bankruptcy
Court”).

The debtor in the underlying Chapter 7 matter, Waiehu

Aina, LLC (“Debtor”), owns real property in Waiehu, Maui,
Hawai‘i, comprised of 277 acres of unimproved land (“the
Property”).

The Trustee is the duly appointed Chapter 7 trustee

for Debtor, charged with administering and liquidating the
Debtor’s assets for the benefit of creditors.

Various

unauthorized persons, including Appellants, occupied portions of
the Property without the permission of the Debtor or the Trustee.
[Mem. in Supp. of Motion at 4.]
On January 10, 2011, the Trustee initiated adversary
proceeding no. 11-90003 seeking turnover of the Debtor’s
property, and filed a Motion for Summary Judgment on January 11,
2011.

On March 16, 2011, the Bankruptcy Court entered: (1) an

Order Granting Summary Judgment against Appellants (“Order”);
(2) Judgment on the Order; and (3) a Writ of Possession.
5-6.]
2

[Id. at

On March 23, 2011, bankruptcy defendant Charmaine
Armitage filed to Motion to Reconsider the Order, Judgment, and
Writ of Possession (“Motion to Reconsider”).

On April 5, 2011,

the Bankruptcy Court entered an order denying Motion to
Reconsider.

[Id. at 6.]

On May 2, 2011, Mr. Armitage and “Interested Party,”
Robert Iiams,1 filed a “Notice of Appeal and Request to Vacate
Bankruptcy Orders of a Writ Possession and a Motion for Summary
Judgment Based Upon Fraud in Fact After Case Was Closed” (“Notice
of Appeal”).
II.

[Id. at 6-7.]

The Trustee’s Motion
In the instant Motion, the Trustee seeks dismissal of

the appeal as untimely.

The Trustee argues that, pursuant to

Fed. R. Bankr. P. 8002, the deadline for filing a notice of
appeal is fourteen days after the entry of the order or judgment
appealed from.

In this case, the deadline was fourteen days

after the Bankruptcy Court entered the Order Denying the Motion
to Reconsider on April 5, 2011.

Accordingly, Appellants should

have filed their Notice of Appeal by April 19, 2011, but did not
do so until May 2, 2011.

The Notice of Appeal is untimely, and

1

The Trustee reserves its objections to Mr. Armitage and
Mr. Iiams’ Notice of Appeal in which they purport to represent
the remaining bankruptcy defendants, because neither are licensed
attorneys. Further, the Trustee reserves its objections to Mr.
Iiams’ participation in the appeal, as he does not appear to be a
party to the case. [Mem. in Supp. of Motion at 4-5 n.1.]
3

the Trustee argues the appeal must be dismissed for lack of
appellate jurisdiction.
II.

[Id. at 8-9.]

Appellants’ Withdrawal of Appeal and Non-Opposition
Appellants did not file an opposition to the Motion.

Instead, on June 17, 2011, Appellants filed with the Bankruptcy
Court a document entitled “Respondent’s Withdrawal of Appeals and
Motion Based on Court’s Inability to Lawfully Hear Case or Grant
an Appeal Without First Establishing in Rem Jurisdiction or
Existence of a Contract with the Real Parties in Interest”
(“Withdrawal”).

[Dkt. no. 10.]

Although largely unintelligible,

the Withdrawal appears to state that the Bankruptcy Court does
not have jurisdiction over the Property, and “[w]hereas said
Court under jurisdictional challenge in the immediate matter is
unable to prove jurisdiction, it therefore lacks authority to
act, recommend or submit a case to appeal and exists on record as
a Court of ‘incompetent jurisdiction’.”

[Withdrawal at 3

(emphasis in original).]
Appellants then state:
Because of said Court’s failure at law to respond
in writing and prove its jurisdiction, et al.,
Court therefore lacks jurisdiction and Defendants
(Respondents) therefore withdraw ONLY the Appeal
request from their initial filing of May 2, 2011;
and a second request for direct appeal dated May
25, 2011. . . . Defendants do not withdraw the
evidence of Fraud in Fact in the EXHIBIT presented
into evidence in the May 02, 2011 filing. . . .
[Id. (emphasis in original).]

4

Appellants, however, also indicate that they “do not
withdraw their May 02, 2011 filed ‘REQUEST TO VACATE BANKRUPTCY
ORDERS OR A WRIT OF POSSESSION AND A MOTION FOR SUMMARY
JUDGMENT’, because said Court’s Orders were executed without
jurisdiction being possessed by said Court. . . .”
(emphasis in original).]

[Id. at 4

Finally, to further confuse matters,

Appellants state that “this case is terminated for want of in rem
and in personam jurisdiction.”
original).]

[Id. at 7 (emphasis in

The Court is not clear whether Appellants intended

to withdraw the instant appeal, or to otherwise terminate the
underlying adversary proceeding, or some combination of both.

In

any event, the Court will address the merits of the Trustee’s
Motion, which Appellants did not oppose.
DISCUSSION
A party to a bankruptcy action must timely file a
notice of appeal after entry of the order being appealed.
Fed. R. Bankr. P. 8002(a).

See

“[T]he failure to timely file a

notice of appeal is a jurisdictional defect barring appellate
review.”

In re Wiersma, 483 F.3d 933, 938 (9th Cir. 2007)

(citation and quotation marks omitted); see also In re Mouradick,
13 F.3d 326, 327 (9th Cir. 1994) (“The provisions of Bankruptcy
Rule 8002 are jurisdictional; the untimely filing of a notice of
appeal deprives the appellate court of jurisdiction to review the
bankruptcy court’s order.”).
5

Under Fed. R. Bankr. P. 8002, relating to the time for
filing a notice of appeal,
(a) Fourteen-day period
The notice of appeal shall be filed with the clerk
within 14 days of the date of the entry of the
judgment, order, or decree appealed from. If a
timely notice of appeal is filed by a party, any
other party may file a notice of appeal within 14
days of the date on which the first notice of
appeal was filed, or within the time otherwise
prescribed by this rule, whichever period last
expires. A notice of appeal filed after the
announcement of a decision or order but before
entry of the judgment, order, or decree shall be
treated as filed after such entry and on the day
thereof. If a notice of appeal is mistakenly
filed with the district court or the bankruptcy
appellate panel, the clerk of the district court
or the clerk of the bankruptcy appellate panel
shall note thereon the date on which it was
received and transmit it to the clerk and it shall
be deemed filed with the clerk on the date so
noted.
(b) Effect of motion on time for appeal
If any party makes a timely motion of a type
specified immediately below, the time for appeal
for all parties runs from the entry of the order
disposing of the last such motion outstanding.
This provision applies to a timely motion:
(1) to amend or make additional findings of
fact under Rule 7052, whether or not granting
the motion would alter the judgment;
(2) to alter or amend the judgment under Rule
9023;
(3) for a new trial under Rule 9023; or
(4) for relief under Rule 9024 if the motion
is filed no later than 14 days after the
entry of judgment. A notice of appeal filed
after announcement or entry of the judgment,
order, or decree but before disposition of
any of the above motions is ineffective to
appeal from the judgment, order, or decree,
or part thereof, specified in the notice of
appeal, until the entry of the order
disposing of the last such motion
6

outstanding. Appellate review of an order
disposing of any of the above motions
requires the party, in compliance with Rule
8001, to amend a previously filed notice of
appeal. A party intending to challenge an
alteration or amendment of the judgment,
order, or decree shall file a notice, or an
amended notice, of appeal within the time
prescribed by this Rule 8002 measured from
the entry of the order disposing of the last
such motion outstanding. No additional fees
will be required for filing an amended
notice.
Under subsection (b) above, the deadline for Appellants
to file their Notice of Appeal was fourteen days after the entry
of the order disposing of the Motion to Reconsider.
days from April 5, 2011 was April 19, 2011.

Fourteen

Appellants, however,

did not file their Notice of Appeal until May 2, 2011, outside of
the fourteen day period.

Because the failure to timely file a

notice of appeal is a jurisdictional defect barring appellate
review, the Court FINDS that it is without appellate jurisdiction
to hear the instant appeal.

The Court therefore GRANTS the

Trustee’s Motion.
CONCLUSION
On the basis of the foregoing, Appellee Dane S. Field,
Chapter 7 Trustee for Waiehu Aina, LLC’s Motion to Dismiss Appeal
for Lack of Appellate Jurisdiction, filed on May 13, 2011, is
HEREBY GRANTED.

The Clerk of Court is directed to close this

case.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, September 20, 2011.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

IN RE WAIEHU AINA, LLC, DANE FIELD, CHAPTER 7 TRUSTEE FOR WAIEHU
AINA, LLC. V. ROBERT ARMITAGE, SR., ET AL; CIVIL NO. 11-00298
LEK-RLP; ORDER GRANTING APPELLEE’S MOTION TO DISMISS APPEAL

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