Background
This appeal arose from a circuit court action in the First Circuit involving Tong Jin Su, who sued individually and as representative of Dae Han Shipping Agency, Inc., against multiple defendants including Youngjae Jung, Su Jin Choi, James Kim, Inc., Hongto Co. Ltd., and Dae Han Shipping Agency, Inc. The procedural path to dismissal began with complications in a related appeal, CAAP-24-0000361, where a joint notice of appeal had been filed among parties whose briefs raised points of error specific to each party. Su was not identified as an appellant or filing party in that joint notice.
On July 22, 2026, the Intermediate Court of Appeals issued an order in CAAP-24-0000361 addressing these complications. The appellate clerk opened the instant appellate case on July 23, 2026, pursuant to that order and an amended notice of appeal filed by Su. The July 22 order required Su to pay the filing fees for this new appellate case within fourteen days from the date the clerk opened the case, and it cautioned that failure to pay the filing fees may result in Su’s appeal being dismissed.
The Court’s Holding
The court dismissed the appeal based on Su’s failure to pay the required filing fees or obtain authorization to proceed in forma pauperis. The record on appeal was due on or before September 21, 2026, pursuant to Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 11(b)(1), but was not filed because Su failed to pay the filing fees or obtain a fee waiver.
On September 22, 2026, the appellate clerk entered a default of the record on appeal. The clerk informed Su that the time to docket the appeal had expired, that Su had not paid the filing fees or obtained an order allowing Su to proceed on appeal in forma pauperis, that the matter would be brought to the court’s attention on October 2, 2026, for action that may include dismissal of the appeal, and that Su could seek relief from default by motion. Su took no further action in response to the default.
The court cited HRAP Rule 11(b)(2) and (c)(2), which provide that an appeal may be dismissed where the record on appeal has not been prepared because the appellant failed to pay the required fees or obtain an order allowing the appellant to proceed in forma pauperis. Based on Su’s failure to comply with the fee requirement and failure to seek relief from the default, the court ordered the appeal dismissed.
Key Takeaways
- Failure to pay appellate filing fees or obtain in forma pauperis status within the prescribed deadline can result in dismissal of the appeal under HRAP Rule 11(b)(2) and (c)(2).
- When a joint notice of appeal creates complications because parties raise distinct points of error, the appellate court may require separate appeals and separate filing fees from parties not properly included in the original notice.
- After entry of default for failure to docket the appeal, an appellant may seek relief from default by motion, but failure to take any action will result in dismissal.
- The appellate clerk will provide notice and an opportunity to cure before the court dismisses for failure to pay fees, but the appellant must respond to avoid dismissal.
Why It Matters
This order reinforces the importance of complying with appellate filing fee requirements and deadlines. Practitioners must ensure that all parties wishing to appeal are properly identified in notices of appeal and that required fees are timely paid or waived. When complications arise from joint notices of appeal involving parties with distinct appellate issues, separate appeals may be necessary, with each appellant responsible for their own filing fees.
The decision also illustrates the procedural safeguards before dismissal: the court provided notice of the fee requirement, warned of potential dismissal, entered a default only after the deadline passed, and informed Su of the right to seek relief from default. However, these safeguards are meaningless if the appellant fails to act. Attorneys must calendar appellate deadlines carefully and respond promptly to clerk’s notices to avoid dismissal for procedural defaults.
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