No. SCAP-23-0000011, Thursday, September 14, 2023, 2 p.m.

In the Matter of the Tax Appeal of SCHUYLER E. COLE and MARILYN J. COLE, Taxpayers-Appellants.

The above-captioned case was set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument was also livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Ōlelo TV 55.

Attorneys for Appellants SCHUYLER E. COLE and MARILY J. COLE:

Scott W. Settle, William G. Meyer III, Ian P. Luthringer, and Harrison K. Goo of Settle Meyer Law

Attorneys for Appellee CITY AND COUNTY OF HONOLULU:

Daniel M. Gluck, Robert M. Kohn, Lee M. Agsalud, and Karen K. Lee, Deputies Corporation Counsel

NOTE: Order assigning Circuit Judge James H. Ashford due to a vacancy, filed 04/13/23.

NOTE: Order granting Application for Transfer, filed 4/18/23.

NOTE: Order assigning Circuit Judge Jeannette H. Castagnetti due to a vacancy, filed 05/15/23.

COURT: Recktenwald, C.J., McKenna and Eddins, JJ., and Circuit Judge Castagnetti and Circuit Judge Ashford, assigned by reason of vacancies

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

In May 2015, Schuyler Cole and Marilyn Cole filed a Notice of Appeal to the Tax Appeal Court, challenging how a City and County tax law classified some of their residential properties. The Coles’ appeal was consolidated with other tax appeals contesting the same tax laws (collectively, “Taxpayers”). The Court granted summary judgment to the City on July 17, 2017.

On July 26, 2017, the Taxpayers filed a motion for reconsideration. Time passed. The Court did not enter an order on the motion, and the court clerk did not give notice to the parties indicating that the motion had been denied per Hawaiʻi Rules of Appellate Procedure Rule 4(a)(3).

In December 2022, the Taxpayers sent a letter to the Clerk of the Tax Appeal Court. They notified the court that it had not entered an order regarding the July 2017 motion for reconsideration. Three days later, the court entered an order denying the motion. The Taxpayers appealed the court’s July 2017 summary judgment order to the Intermediate Court of Appeals within thirty days of the December 2022 order. This Court accepted the City’s application for transfer.

The City argues that the appellate courts lack jurisdiction over the appeal because it was filed more than five years too late under the limits found in HRAP Rule 4(a)(3). The Taxpayers argue that the time to file an appeal did not expire because the Tax Appeal Court never entered an order or provided notice.