Wilmington Savings Fund Society v. Ryan. ( 2021 )

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
14-JAN-2021
09:07 AM
Dkt. 15 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
WILMINGTON SAVINGS FUND SOCIETY, FSB,
D/B/A CHRISTIANA TRUST, NOT INDIVIDUALLY BUT AS TRUSTEE
FOR PRETIUM MORTGAGE ACQUISITION TRUST,
Respondent/Plaintiff-Appellee,
vs.
TERRENCE RYAN and LUCILLE RYAN,
Petitioners/Defendants-Appellants,
and
FIRST LIGHT ENTERPRISES LLC; BLUE WATER ALLIANCE, LLC,
Respondents/Defendants-Appellees.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CAAP-XX-XXXXXXX; CAAP-XX-XXXXXXX;
CIV. NO. 5CC121000306)
JANUARY 14, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.,
AND CIRCUIT JUDGE TONAKI, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY McKENNA, J.
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
I. Introduction
This certiorari proceeding arises out of an appeal from a
foreclosure judgment. In their certiorari application, Terrence
Ryan (“Terrence”) and Lucille Ryan (“Lucille”) (collectively,
“the Ryans”) present the following question:
Did the Intermediate Court of Appeals (“ICA”) commit
grave errors of law and/or fail to reconcile obvious
inconsistencies in its decision with those of the Hawaii
Supreme Court when the ICA concluded that the Circuit Court
did not abuse its discretion by denying the moving party’s
motion to extend time to file notice of appeal where the
moving party affirmatively inquired directly with the
Circuit Court about when the order was filed, and the
Circuit Court staff provided incorrect information to the
moving party leading the moving party to believe that the
thirty days to file the notice of appeal had not yet begun
tolling?
We hold as follows: (1) Hawaiʻi Rules of Appellate Procedure
(“HRAP”) Rule 4(a)(4)(B)1 motions to extend time for filing a
notice of appeal are not properly filed as ex parte motions; (2)
the Rules of the Circuit Courts of the State of Hawaiʻi (“RCCH”)
1 HRAP Rule 4(a)(4)(B) provides as follows:
(4) Extensions of Time to File the Notice of Appeal.
. . . .
(B) Requests for Extensions of Time After Expiration
of the Prescribed Time. The court or agency appealed
from, upon a showing of excusable neglect, may extend
the time for filing the notice of appeal upon motion
filed not later than 30 days after the expiration of
the time prescribed by subsections (a)(1) through
(a)(3) of this Rule. However, no such extension
shall exceed 30 days past the prescribed time.
Notice of an extension motion filed after the
expiration of the prescribed time shall be given to
the other parties in accordance with the rules of the
court . . . appealed from.
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Rule 7.2(g)(5)(A)2 provision purportedly disallowing appellate
review of decisions on motions to advance hearings is
inapplicable to decisions on HRAP Rule 4(a)(4)(B) motions,
pursuant to HRAP Rule 2.1(a) (2010); (3) under the circumstances
of this case, the Ryans’ motion to advance the hearing on their
February 2, 2018 HRAP Rule 4(a)(4)(B) hearing motion should have
been granted; (4) the Ryans established “excusable neglect,” and
their HRAP Rule 4(a)(4)(B) hearing motion should have been
granted; and (5) thus, the Ryans’ February 6, 2018 notice of
appeal was effective as to all issues on appeal over which the
Intermediate Court of Appeals (“ICA”) has appellate jurisdiction
based on the Ryans’ timely appeal of the December 8, 2017 order
denying reconsideration of the order granting summary judgment
and foreclosure judgment.3
2 RCCH Rule 7.2(g)(5)(A) provides in relevant part as follows:
(5) Motion to Shorten Time for, Advance, or Reschedule
Hearing.
(A) A motion to shorten time for hearing or motion to
advance hearing shall . . . cite the authority and
state the reason(s) and factual or other basis for
the request. . . . . The assigned judge may grant
or deny the motion, and such grant or denial shall
not be subject to review or reconsideration. . . . .
3 See text accompanying infra note 18. With respect to the February 6,
2018 notice of appeal in CAAP-XX-XXXXXXX, this opinion only addresses the
procedural rulings, issues (4) and (5), over which the ICA ruled appellate
jurisdiction existed. We express no opinion on the merits of the remaining
issues. We also address the issues raised in CAAP-XX-XXXXXXX and CAAP-18-
0000388, as explained below. Only issues (1) to (3) in CAAP-XX-XXXXXXX,
however, remain for consideration by the ICA on remand. Id.
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
We therefore vacate the ICA’s May 7, 2020 judgment on
appeal and remand this case to the ICA for further proceedings
consistent with this opinion.
II. Background
A. Factual background
On or about February 20, 2009, the Ryans executed a
promissory note in the principal amount of $625,000 in favor of
Bank of America, N.A. (“Bank of America”). To secure payment,
the Ryans executed a mortgage encumbering real property located
in Kalāheo, Hawaiʻi. The Ryans apparently failed to make timely
payments then failed to cure the default despite Bank of
America’s written notice regarding its intent to accelerate the
loan and to foreclose.
B. Procedural background
1. Circuit court proceedings
a. Complaint, foreclosure judgment
On October 30, 2012, Bank of America filed a foreclosure
complaint against the Ryans in the Circuit Court of the Fifth
Circuit (“circuit court”).4 Between November 7, 2012, and April
1, 2013, Bank of America attempted to personally serve the Ryans
with the complaint in Kalāheo and in Washington State. After
the circuit court authorized service by certified mail, Terrence
4 The Honorable Kathleen N.A. Watanabe presided.
4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
was served on March 13, 2015, and Lucille was served on March
19, 2015, at different locations within Washington State.
On March 23, 2015, the Ryans filed a pro se motion for a
120-day extension of time to respond to the complaint (“answer
extension motion”). On April 7, 2015, the circuit court legal
documents branch informed the Ryans that the motion was
deficient because it did not include a case type in the caption,
was filed without a case type and/or case number, and there was
no order submitted at the time of filing. That same day, the
Ryans responded to the memorandum, providing a case type and a
case number, but did not include an order.
Through several assignments and orders of substitution
starting on May 9, 2013, Wilmington Savings Fund Society, FSB,
D/B/A Christiana Trust, Not Individually but as Trustee for
Pretium Mortgage Acquisition Trust (“Wilmington”), substituted
as plaintiff effective December 22, 2016.
On April 27, 2017, at Wilmington’s request, the circuit
court clerk entered defaults against the Ryans for their failure
to plead or otherwise defend.5 Then, on June 21, 2017,
Wilmington filed a summary judgment motion for foreclosure.
5 Hawaiʻi Rules of Civil Procedure (“HRCP”) Rule 55 (2000) states in
relevant part:
(a) Entry. When a party against whom a judgment for
affirmative relief is sought has failed to plead or
otherwise defend as provided by these rules and that fact
(continued. . .)
5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
On July 21, 2017, despite the April 27, 2017 entry of
default, the circuit court filed an order granting the Ryans’
March 23, 2015 answer extension motion, but which stated: “THIS
MATTER is before the court upon [the Ryans’] Motion for an
Extension of Time to Answer Plaintiff’s Complaint for an
additional 120 days (July 21, 2015) from the date of filing of
this motion.”6
On August 31, 2017, the Ryans, now represented by counsel,
filed a memorandum in opposition to the summary judgment motion
for foreclosure.
At the September 5, 2017 hearing on the summary judgment
motion, the circuit court noted the April 27, 2017 entry of
default and granted Wilmington’s motion. On September 20, 2017,
the circuit court entered its findings of fact, conclusions of
(. . .continued)
is made to appear by affidavit or otherwise, the clerk
shall enter the party’s default.
6 In a letter dated July 21, 2017, Janis N. Efhan, the Courts Documents
Supervisor, apologized to the Ryans for the delay in processing the answer
extension motion, explaining:
Our office recently re-sent this document to the
judge for review and signature. Since no copies were
provided with your order, we are providing you 2 courtesy
certified copies. Please assure, you serve opposing party
said document to assure they are aware of the decision of
the court. When submitting documents in the future, please
provide original and copies enough for serving opposing
party(ies) and your records.
Lastly an apology for delay in the processing of
document. This document was provided to the court for
review and signature when it was first sent. For
unforeseen reasons, the[] document was not acted upon in a
timely manner.
6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
law, and order granting summary judgment (“foreclosure order”),
as well as its foreclosure judgment.
b. Motion for reconsideration
On September 29, 2017, the Ryans moved for reconsideration
of the foreclosure order and judgment (“foreclosure
reconsideration motion”). The Ryans requested an opportunity to
answer the complaint and to be reheard on the summary judgment
motion. On October 9, 2017, Wilmington responded, arguing the
Ryans failed to set forth any basis for setting aside the entry
of default or the grant of summary judgment.
c. Denial of reconsideration motion
On October 20, 2017, the circuit court’s law clerk emailed
the parties’ counsel, stating: “Based on your respective
pleadings, arguments, and authorities cited, the court is
DENYING [the foreclosure reconsideration motion]. The court
requests that [Wilmington’s counsel] prepare the order and
submit it within two (2) weeks.”
On November 9, 2017, Wilmington’s counsel emailed and
mailed the proposed order denying the foreclosure
reconsideration motion to the Ryans’ counsel. On November 13,
2017, the circuit court’s judicial assistant emailed
Wilmington’s counsel asking for a status update regarding the
order. Wilmington’s counsel responded that the proposed order
had been sent to the Ryans’ counsel but that it would be
7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
submitted to the circuit court in accordance with RCCH Rule 23
(2010)7 if the Ryans’ counsel did not approve it as to form. On
November 20, 2017, Wilmington filed a RCCH Rule 23 notice of
submission of the proposed order with a certificate of service
on the Ryans’ counsel. In the certificate of service,
Wilmington’s counsel expressly stated, “The undersigned hereby
certifies a copy of the foregoing Order will be duly served upon
the below parties at their respective addresses by U.S. Mail,
postage prepaid, when filed copies are received by this
office[.]”
7 RCCH Rule 23(b) provides:
(b) Party Approval or Objection to Form; Delivery to Court.
If there is no objection to the form of a proposed
judgment, decree, or order, the other parties shall
promptly approve as to form. If a proposed judgment,
decree, or order is not approved as to form by the other
parties within 5 days after a written request for approval,
the drafting party shall deliver, by filing conventionally
or electronically, the original and 1 copy to the court
along with notice of service on all parties and serve a
copy thereof upon each party who has appeared in the
action. If any party objects to the form of a proposed
judgment, decree, or order, that party shall, within 5 days
after service of the proposed judgment, decree, or order,
serve upon each party who has appeared in the action and
deliver to the court, either conventionally or through
electronic filing:
(1) A statement of objections and the reasons
therefor, and
(2) The form of the objecting party’s proposed
judgment, decree, or order.
In such event, the court shall proceed to settle the
judgment, decree, or order. Failure to file and serve
objections and a proposed judgment, decree, or order shall
constitute approval as to form of the drafting party’s
proposed judgment, decree, or order.
8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The circuit court filed its order denying the foreclosure
reconsideration motion (“order denying foreclosure
reconsideration”) on December 8, 2017. Despite the previous
certification from Wilmington’s counsel, as well as the Hawaiʻi
Rules of Civil Procedure (“HRCP”) Rule 5 (2000) requirement of
service of “[e]very order required by its terms to be served,”
Wilmington did not serve a file-stamped copy of the December 8,
2017 order denying foreclosure reconsideration on the Ryans’
counsel until February 26, 2018.
d. Ryans’ attempts to extend time to appeal
Based on the December 8, 2017 filing of the order, the
initial thirty-day deadline for filing a notice of appeal8 or a
8 HRAP Rules 4(a)(1) and (3) provide in relevant part:
Rule 4. Appeals -- When Taken.
(a) Appeals in civil cases.
(1) Time for filing. When a civil appeal is
permitted by law, the notice of appeal shall be filed
within 30 days after entry of the judgment or appealable
order.
. . . .
(3) Time to appeal affected by post-judgment
motions. If any party files a timely motion . . . to
reconsider, alter or amend the judgment or order, . . .
then the time for filing the notice of appeal is extended
for all parties until 30 days after entry of an order
disposing of the motion. . . . .
The notice of appeal shall be deemed to appeal the
disposition of all post-judgment motions that are timely
filed after entry of the judgment or order.
. . . .
9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
HRAP Rule 4(a)(4)(A)9 motion to extend time for filing an appeal
was to expire on January 8, 2018. The Ryans did not file a
notice of appeal or a HRAP Rule 4(a)(4)(A) motion by January 8,
2018.
After the initial thirty-day deadline for filing a notice
of appeal expires, HRAP Rule 4(A)(4)(B) allows a party to file a
motion to extend the deadline for another thirty days based on
“excusable neglect.”10 For the Ryans, this second thirty days
for filing a motion to extend based on “excusable neglect” began
on January 9, 2018, and was to end on February 7, 2018, which
was also the deadline for filing a notice of appeal if a thirty-
day extension was granted pursuant to HRAP Rule 4(a)(4)(B).
On January 26, 2018, the Ryans submitted an ex parte motion
for a thirty-day extension to file a notice of appeal (“ex parte
extension motion”), citing HRAP Rule 4(a)(4)(B) and RCCH Rule
9 HRAP Rule 4(a)(4)(A) provides:
(4) Extensions of Time to File the Notice of Appeal.
(A) Requests for Extensions of Time Before Expiration
of the Prescribed Time. The court or agency appealed
from, upon a showing of good cause, may extend the
time for filing a notice of appeal upon motion filed
within the time prescribed by subsections (a)(1)
through (a)(3) of this Rule. However, no such
extension shall exceed 30 days past such prescribed
time. An extension motion that is filed before the
expiration of the prescribed time may be ex parte
unless the court . . . otherwise requires.
10 See supra note 1.
10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
7.2(f) (2014).11 They contended the appeal deadline should be
extended for thirty days beyond the initial thirty-day deadline
because they did not discover until January 25, 2018, that the
order denying foreclosure reconsideration had been filed on
December 8, 2017.
Attached to the Ryans’ ex parte extension motion were
declarations from attorney Matthew K. Yoshida (“Yoshida”) and
legal assistant Jessica Taiatini (“Taiatini”). Yoshida and
Taiatini averred under penalty of perjury as follows. After
being informed that the circuit court would be denying the
foreclosure reconsideration motion, they checked Hoʻohiki12
approximately once per week for the status of the order. They
did not notice any change to Hoʻohiki “for some time,” so, on
11 RCCH Rule 7.2(f) provides:
(f) Ex parte motions. A motion entitled to be heard ex
parte shall:
(1) cite the statute, rule, or other authority
authorizing the court to entertain the motion ex parte;
(2) be supported by an affidavit or declaration
stating the reason(s) for filing the motion ex parte, the
efforts made to notify parties, and, if the motion is to
shorten time or advance a hearing pursuant to subsection
(g)(5) of this Rule, the efforts made to obtain a
stipulation or response from the other parties in the case
or the reason(s) why no attempt was made;
(3) be accompanied by a proposed order; and
(4) be served on the date that the motion was
presented to the court.
12 Until circuit court civil cases were migrated into the eCourt Kokua on-
line filing system effective October 28, 2019, the Hoʻohiki system provided
online access to information in circuit court civil cases, such as documents
filed, proceedings scheduled, and minutes of past proceedings.
11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
January 2, 2018, Taiatini called the circuit court’s chambers to
ask about the status of the order. A member of the circuit
court staff told Taiatini that “the order was not entered, that
the order might be on [the judge’s] desk, that [the judge] was
out at the time, and that they will follow up on the following
Monday.” On January 25, 2018, however, the Ryans noticed a new
entry in Hoʻohiki indicating an order denying the foreclosure
reconsideration motion had been filed on December 8, 2017.
Relying on the information provided by a circuit court staff
member over the phone on January 2, 2018, however, they had
believed the order had not been filed as of that date.
Although the January 26, 2018 motion was filed ex parte, a
certificate of service was attached as required by RCCH Rule
7.2(f)(4),13 certifying that a copy of the motion was being
mailed to Wilmington’s counsel. It appears Wilmington’s counsel
received the motion because a memorandum in opposition was filed
on January 30, 2018.
In its memorandum in opposition, Wilmington maintained the
Ryans’ reliance upon the circuit court staff’s representations
did not constitute “excusable neglect,” citing to Bank of Hawaii
v. Shaw, 83 Hawaiʻi 50, 924 P.2d 544 (App. 1996).14 Wilmington
13 See supra note 11.
14 In Shaw, the appellant missed the ten-day jury demand deadline under
the District Court Rules of Civil Procedure Rule 38(b), and argued that his
(continued. . .)
12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
also contended the Ryans failed to address Wilmington’s alleged
service of the December 8, 2017 order denying foreclosure
reconsideration.15 Wilmington also argued the Ryans did not
explain why they failed to follow up with Wilmington regarding
the filing status of the order.
Wilmington also maintained the motion was procedurally
improper because HRAP Rule 4(a)(4)(B) required the Ryans to give
Wilmington notice and that the Ryans’ failure to do so violated
RCCH Rule 7.2(f)(2).16 Wilmington’s counsel’s declaration
indicated counsel was not informed of the Ryans’ intent to file
the ex parte motion.
On January 31, 2018, the circuit court filed the order
denying the January 26, 2018 motion (“order denying ex parte
extension motion”).
(. . .continued)
reliance on a clerk’s statement who told him that he had fourteen days to
file his demand for a jury trial excused his failure to file within the
deadline. 83 Hawaiʻi at 57, 924 P.2d at 551. The ICA held that “[w]ithout
the support of an adequate ‘excuse,’ [the appellant’s] actions amounted to
‘mere inadvertence or bare oversight’ which, under Lii[ v. Sida of Hawaii,
Inc., 53 Haw. 353, 53 Haw. 372, 493 P.2d 1032 (1972)], were declared
insufficient grounds for a court to exercise its discretion to grant a jury
trial.” Id. Shaw is obviously distinguishable as the alleged representation
by the court clerk was one of law, which counsel had the duty and opportunity
to independently ascertain. This case involves a representation of fact, and
we discuss Shaw no further.
15 As noted, the record indicates Wilmington did not serve a file-stamped
copy of the December 8, 2017 order denying foreclosure reconsideration until
February 26, 2018.
16 See supra note 11.
13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
After this denial, through an ex officio filing with the
clerk of the appellate courts on February 2, 2018, the Ryans
filed a motion for extension of time to file a notice of appeal
as a hearing motion (“appeal extension motion”). This motion
raised the same arguments and attached declarations as did the
January 26, 2018 ex parte motion. The motion was stamped
received by the circuit court on February 5, 2018, two days
before the deadline for filing a HRAP Rule 4(a)(4)(B) motion and
the appeal if the motion was granted.
Along with the appeal extension motion, the Ryans also
submitted an ex parte motion to advance its hearing date
(“motion to advance”), noting that a motion heard in the normal
course would be ineffective. This motion was stamped “DENIED”
and filed by the circuit court on February 6, 2018 (“order
denying motion to advance”). After this denial, on February 9,
2018, a notice for hearing the appeal extension motion was
filed, scheduling the hearing for March 6, 2018.
On February 2, 2018, the same day the Ryans filed the
appeal extension motion as a hearing motion, the Ryans also
filed a motion seeking reconsideration of the January 31, 2018
order denying ex parte extension motion (“reconsideration motion
of ex parte appeal denial”), raising the same arguments made in
their ex parte extension motion. In this motion, the Ryans also
cited to King v. Elkayam, CAAP-XX-XXXXXXX, 2016 WL 3762628, at
14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
*7 (App. July 13, 2016) (order), which had noted that
“[appellants] presented no reason for their failure, for
example, to send a messenger to court to look up the relevant
date, and we see no ‘forces beyond their control,’ -- at least
on this record —- that prevented them from taking this eminently
reasonable step.” (Alteration in original.) The Ryans argued
that, in contrast, they took the “eminently reasonable step” of
contacting the circuit court directly, but were provided
incorrect information by circuit court staff.17
On February 6, 2018, despite the circuit court’s denials of
their January 26, 2018 extension motion and their motion to
advance the hearing date on their February 2, 2018 hearing
motion, the Ryans proceeded to file a notice of appeal, in CAAP-
XX-XXXXXXX. In this notice of appeal, the Ryans purported to
appeal the circuit court’s (1) September 20, 2017 foreclosure
order; (2) September 20, 2017 foreclosure judgment; (2) December
8, 2017 order denying foreclosure reconsideration; (4) January
17
The Ryans also contended the circuit court had delayed its order
granting the answer extension motion for more than two years without
providing any explanation or reason for the delay. They also noted that
despite the circuit court instructing Wilmington to “prepare the order and
submit it within two (2) weeks[,]” Wilmington did not submit a proposed order
to them for approval for three weeks or the proposed order to the circuit
court for four weeks. As such, the Ryans maintained the denial of their
motion would be treating them more harshly than the circuit court treated
itself and Wilmington.
15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
31, 2018 order denying ex parte extension motion; and (5)
February 6, 2018 order denying motion to advance.18
On February 12, 2018, Wilmington filed an opposition to the
Ryans’ February 2, 2018 reconsideration motion of ex parte
appeal denial. Citing to HRAP Rule 4(a)(3),19 Wilmington
asserted that because the Ryans filed their foreclosure
reconsideration motion on September 29, 2017, (1) the circuit
court had ninety days, or until December 28, 2017, to enter an
order disposing of the foreclosure reconsideration motion, and
18 With respect to the February 6, 2018 appeal in CAAP-XX-XXXXXXX, this
opinion only addresses the procedural issues in (4) and (5) over which the
ICA ruled it had appellate jurisdiction.
19 HRAP Rule 4(a)(3) now provides in its entirety as follows:
(3) Time to appeal affected by post-judgment motions. If
any party files a timely motion for judgment as a matter of
law, to amend findings or make additional findings, for a
new trial, to reconsider, alter or amend the judgment or
order, or for attorney’s fees or costs, and court or agency
rules specify the time by which the motion shall be filed,
then the time for filing the notice of appeal is extended
for all parties until 30 days after entry of an order
disposing of the motion. The presiding court or agency in
which the motion was filed shall dispose of any such post-
judgment motion by entering an order upon the record within
90 days after the date the motion was filed. If the court
or agency fails to enter an order on the record, then,
within 5 days after the 90th day, the clerk of the relevant
court or agency shall notify the parties that, by operation
of this Rule, the post-judgment motion is denied and that
any orders entered thereafter shall be a nullity. The time
of appeal shall run from the date of entry of the court or
agency’s order disposing of the post-judgment motion, if
the order is entered within the 90 days, or from the filing
date of the clerk’s notice to the parties that the post-
judgment motion is denied pursuant to the operation of the
Rule.
The notice of appeal shall be deemed to appeal the
disposition of all post-judgment motions that are timely
filed after entry of the judgment or order.
The 90-day period shall be computed as provided in
Rule 26 of these Rules.
16
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
(2) the circuit court clerk had five days after December 28,
2017, which would have been January 2, 2018, to notify the
parties that the foreclosure reconsideration motion was denied.
Wilmington argued that the Ryans’ assertion that they reasonably
relied on the circuit court staff’s representation on January 2,
2018, was flawed because if the circuit court did not enter the
order by December 28, 2017, the foreclosure reconsideration
motion would have been deemed denied and the circuit court clerk
would have had to notify the parties that the motion was denied
by January 2, 2018. Wilmington argued that if the Ryans had
properly monitored their calendar, they would have noticed the
ninetieth day had passed and the appeal deadline would begin.20
On February 26, 2018, Wilmington also filed an opposition
to the February 2, 2018 appeal extension motion, reasserting the
arguments it previously made. Wilmington also argued the Ryans
failed to take reasonable steps to keep informed of the status
of the December 8, 2017 order as they only called the circuit
court once between October 20, 2017, when the circuit court
informed the parties of the denial of the foreclosure
reconsideration motion, and January 25, 2018, the date the Ryans
asserted they learned of the filing of the December 8, 2017
20 However, there was no January 2, 2018 appeal deadline triggering
notification from the circuit court clerk pursuant to HRAP Rule 4(a)(3),
supra note 19, because the appeal filing deadline had already been triggered
by the December 8, 2017 order denying motion for foreclosure reconsideration.
17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
order. Further, Wilmington noted the Ryans did not allege they
tried to contact Wilmington’s counsel or the circuit court a
second time, or ask a messenger to check the circuit court’s
file to determine the status of the order. Wilmington thus
maintained a single phone call in three months did not
constitute “eminently reasonable steps” justifying an extension
to file a notice of appeal.
On March 8, 2018, the circuit court filed its order denying
reconsideration motion of ex parte appeal. On April 6, 2018,
the Ryans filed their second notice of appeal, in CAAP-18-
0000312, from the March 8, 2018 order.
At the March 6, 2018 hearing on the February 2, 2018 appeal
extension motion, the parties rested on their written
submissions, and the circuit court orally denied the motion. On
April 5, 2018, the circuit court entered its order denying this
motion. On May 4, 2018, the Ryans filed their third notice of
appeal, in CAAP-XX-XXXXXXX, from the April 5, 2018 order.
2. ICA proceedings
On August 13, 2018, the ICA consolidated the three appeals.
a. Opening brief
In their opening brief, in summary, the Ryans repeated
their arguments below, asserting they were deprived of an
opportunity to timely file a notice of appeal from the order
denying foreclosure reconsideration because of the circuit court
18
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
staff’s statements. They also asserted the circuit court abused
its discretion by denying their request to advance the hearing
on their February 2, 2018 appeal extension motion, effectively
denying them leave to file their notice of appeal, especially
when the circuit court had been lenient with Wilmington’s and
its own issues of timeliness.21
Newly attached to the Ryans’ opening brief was a
declaration from Yoshida dated June 20, 2018, raising matters
not contained in the record on appeal. Yoshida averred that on
February 5, 2018, at the request of the circuit court, Yoshida
participated in a conference call with the circuit court and
Wilmington’s counsel, and in that conference call, (1) the
circuit court stated it spoke to its staff about his
representations, who stated they did not provide incorrect
information and were upset by the way Yoshida portrayed them;
(2) Yoshida apologized to the circuit court and its staff, but
stood by his representations, particularly regarding Taiatini’s
statements regarding her call with circuit court staff on
January 2, 2018, and (3) the circuit court asked Wilmington’s
counsel if Wilmington would stipulate to an extension of time,
to which counsel indicated it was unlikely Wilmington would
21 The Ryans referred to the circuit court’s grant of Wilmington’s six ex
parte motions for extension of time to serve the complaint, and nine ex parte
motions for extension of time to file a pretrial statement; the Ryans argued
that of those fifteen ex parte motions, eight were untimely.
19
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
agree to such a stipulation. Yoshida asserted that as a result
of the conference call, he was left with the impression that the
circuit court believed its staff over Taiatini. The Ryans
argued that the circuit court abused its discretion as it
“abandoned its position of neutrality by seeking out evidence
outside the Court record.”
b. Answering brief
In its answering brief, Wilmington repeated its arguments
below, and also maintained the Ryans’ February 6, 2018 appeal
was not timely as to substantive issues regarding the
foreclosure. Wilmington also argued that despite Yoshida’s
declaration attached to the opening brief, the record did not
contain any reference to the February 5, 2018 conference call.
Wilmington alleged the Ryans’ attempt to introduce such
“evidence” by way of their declaration violated HRAP Rule
28(b)(10) (2016).22
22 HRAP Rule 28(b)(10) states in relevant part: (b) Opening brief. . . . .
(10) . . . . Anything that is not part of the record shall not be appended to
the brief, except as provided in this Rule.”
The occurrence of conference calls should be made part of a trial court
record. Minutes routinely reflect the occurrence of off-the-record
conferences with counsel, even if details of the conference are not included
in the record. See Hawaiʻi Court Records Rules Rule 3.1 (2012) (“With respect
to court records, the Clerk of each court shall maintain a record of each
court case, including a docket, and shall maintain other records as required
by statute or rule[]”); Hawaiʻi Revised Statutes (“HRS”) § 606-8 (1993) (“A
clerk shall attend and record the proceedings at all sittings of courts of
record.”).
The Ryans did not seek to have a February 5, 2018 conference call made
a part of the record via stipulation pursuant to HRAP Rule 10(e)(2)(A)
(2016). The circuit court did not make a call a part of the record pursuant
to HRAP Rule 10(e)(2)(B) (“If anything material to any party is omitted from
(continued. . .)
20
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
c. Reply brief
In their reply brief, the Ryans asserted that when parties
make an inquiry with the court, the parties must be able to rely
on the information the court directly provides them and must
also be granted relief if the court provides incorrect
information.
d. ICA’s memorandum opinion
In its April 9, 2020 memorandum opinion, the ICA rejected
the Ryans’ challenges.
With respect to the issues we address on certiorari, in
CAAP-XX-XXXXXXX, the ICA ruled as follows. Because the order
denying foreclosure reconsideration was entered on December 8,
2017, the notice of appeal from the foreclosure order, judgment,
and order denying foreclosure reconsideration was due on January
8, 2018. Ryan, mem. op. at 8. The ICA lacked jurisdiction to
review the foreclosure order, judgment, and order denying
foreclosure reconsideration because the Ryans did not file the
first notice of appeal until February 6, 2018. Id. Although
(. . .continued)
the record by error or accident or is misstated therein, corrections or
modifications may be as follows: . . . (B) by the court . . . appealed from,
either before or after the record is transmitted[.]”). Appellate courts are
also authorized to modify the record based on HRAP Rule 10(e)(2)(C) (“by
direction of the appellate court before which the case is pending on proper
suggestion or its own initiative.”). There was no “proper suggestion” and we
decline to take the initiative to include a call as part of the record. The
record on appeal therefore does not contain any denial of the Taiatini and
Yoshida declarations regarding statements apparently made by a circuit court
staff member on January 2, 2018.
21
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the February 6, 2018 notice of appeal was filed within thirty
days after entry of the February 6, 2018 order denying motion to
advance, giving the ICA appellate court jurisdiction over that
order, a trial court’s ruling on a motion to shorten time for,
advance, or reschedule a hearing is not subject to review or
reconsideration. Id. (citing RCCH Rule 7.2(g)(5)(A)).23 The ICA
also had appellate jurisdiction over the January 31, 2018 order
denying ex parte extension motion as the Ryans filed their
February 6, 2018 notice of appeal within thirty days after entry
of that order, which was immediately appealable. Id. (citing
Ditto v. McCurdy, 103 Hawaiʻi 153, 157, 80 P.3d 974, 978 (2003)).
HRAP Rule 4(a)(4), however, allows an ex parte motion for
extension of time to file a notice of appeal only if the motion
is filed before expiration of the original appeal deadline.
Ryan, mem. op. at 9. Hence, the January 26, 2018 motion, which
came after the January 8, 2018 appeal deadline expired, should
not have been filed ex parte. Id.Thus, the ICA only addressed issues (4) and (5) in the
February 6, 2018 notice of appeal on the merits, and it affirmed
the circuit court’s January 31, 2018 order denying ex parte
extension motion and the February 6, 2018 order denying motion
to advance. Ryan, mem. op. at 8-9. The ICA ruled it lacked
23 See supra note 2.
22
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
appellate jurisdiction over issues (1) through (3), which
concerned substantive issues regarding the foreclosure. Id.
As to CAAP-XX-XXXXXXX, the ICA concluded that it had
jurisdiction to review the Ryans’ April 6, 2018 notice of
appeal, which was filed within thirty days after entry of the
March 8, 2018 order denying reconsideration of ex parte appeal
extension denial. Ryan, mem. op. at 10 (citing Tax Appeal of
Subway Real Estate Corp. v. Dir. of Taxation, State of Haw., 110
Hawaiʻi 25, 30, 129 P.3d 528, 533 (2006)). The ICA also affirmed
the March 8, 2018 order on the grounds the January 26, 2018
motion was improperly filed ex parte and therefore
reconsideration was properly denied. Id.With respect to CAAP-XX-XXXXXXX, the ICA concluded that it
had jurisdiction to review the Ryans’ May 4, 2018 notice of
appeal, which was filed within thirty days after entry of the
April 5, 2018 order denying the Ryans’ February 2, 2018 appeal
extension motion. Id. The ICA ruled, however, that the Ryans
failed to establish “excusable neglect” as required by HRAP Rule
4(a)(4)(B). Id. The ICA concluded the circuit court did not
abuse its discretion by denying the motion to extend time to
file notice of appeal and affirmed the circuit court’s April 5,
2018 appeal extension denial. Id.23
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
3. Supreme court proceedings
a. Certiorari application
In their certiorari application, the Ryans present the
following question:
Did the Intermediate Court of Appeals (“ICA”) commit
grave errors of law and/or fail to reconcile obvious
inconsistencies in its decision with those of the Hawaii
Supreme Court when the ICA concluded that the Circuit Court
did not abuse its discretion by denying the moving party’s
motion to extend time to file notice of appeal where the
moving party affirmatively inquired directly with the
Circuit Court about when the order was filed, and the
Circuit Court staff provided incorrect information to the
moving party leading the moving party to believe that the
thirty days to file the notice of appeal had not yet begun
tolling?
b. Response
In its response, in addition to repeating previous
arguments, Wilmington addressed this court’s opinion in Eckard
Brandes, Inc. v. Department of Labor and Industrial Relations,
146 Hawaiʻi 354, 463 P.3d 1011 (2020), issued eleven days after
the ICA’s memorandum opinion. Wilmington argues that the Ryans
failed to show “excusable neglect” even under the “new standard”
of “excusable neglect” set forth in Eckard Brandes. Wilmington
states that Eckard Brandes “made it clear that any determination
regarding ‘excusable neglect’” in HRAP Rule 4(a)(4)(B) should
lie in the trial court’s discretion. As such, Wilmington
asserts that in a case like this, the circuit court should be
given even greater latitude as the Ryans are alleging that the
reason they missed the appeal deadline was due to the circuit
24
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
court staff’s representations, and the circuit court would be
“ideally suited” to determine whether the alleged
representations prejudiced the Ryans.
III. Standards of review
A. Interpretation of court rules
“When interpreting rules promulgated by the court,
principles of statutory construction apply.” Kawamata Farms,
Inc. v. United Agri Products, 86 Hawaiʻi 214, 255, 948 P.2d 1055,
1096 (1997). “The interpretation of a statute [or rule] is a
question of law which this court reviews de novo.” Id.B. Extension of time
The grant or denial of a trial court’s decision to grant a
motion for extension of time to file a notice of appeal is
reviewed for abuse of discretion. Hall v. Hall, 95 Hawaiʻi 318,
320, 22 P.3d 965, 967 (2001).
C. Finding of excusable neglect
“A trial court’s order granting a motion to extend time for
filing a notice of appeal on the grounds of excusable neglect is
reviewed for an abuse of discretion.” Eckard Brandes, 146
Hawaiʻi at 358, 463 P.3d at 1015.
25
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
IV. Discussion
A. HRAP Rule 4(a)(4)(B) motions are not properly filed as ex
parte motions
An appeal extension motion based on “good cause” filed
within the initial thirty days after an appeal deadline
triggering order or judgment can be submitted ex parte pursuant
to HRAP Rule 4(a)(4)(A).24 A HRAP Rule 4(a)(4)(B) motion based
on “excusable neglect” filed after expiration of the initial
thirty days, but before expiration of the second thirty days,
however, is not properly filed on an ex parte basis. HRAP Rule
4(a)(4)(B) expressly provides that “[n]otice of an extension
motion filed after the expiration of the prescribed time shall
be given to the other parties in accordance with the rules of
the court . . . appealed from.” Thus, the ICA properly affirmed
(1) the circuit court’s January 31, 2018 order denying ex parte
extension motion, issue (4) in the Ryans’ February 6, 2018
appeal in CAAP-XX-XXXXXXX; and (2) the March 8, 2018 order
denying reconsideration of ex parte appeal extension denial, the
subject of the Ryans’ April 6, 2018 appeal in CAAP-XX-XXXXXXX.25
Therefore, the remaining issues we address on certiorari
are the circuit court’s (1) February 6, 2018 order denying
24 See supra note 9.
25 Circuit courts of course have the authority, whether under RCCH Rule 8
(1997) or under their HRS §§ 603-21.9(1) and/or (6) (1993) general powers, to
order that improper ex parte HRAP Rule 4(a)(4)(B) motions be scheduled for
hearing or submitted on the briefs.
26
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
motion to advance, which is issue (5) in the Ryans’ February 6,
2018 notice of appeal in CAAP-XX-XXXXXXX; and (2) the April 5,
2018 order denying the Ryans’ February 2, 2018 appeal extension
motion, the subject of the Ryans’ May 4, 2018 notice of appeal
in CAAP-XX-XXXXXXX.
B. The RCCH Rule 7.2(g)(5)(A) provision disallowing appellate
review of decisions on motions to advance hearings is
inapplicable to decisions on HRAP Rule 4(a)(4)(B) motions
With respect to the circuit court’s February 6, 2018 order
denying motion to advance, the ICA ruled that although appellate
jurisdiction existed, the circuit court’s ruling denying the
motion to advance is not subject to appellate review. Ryan,
mem. op. at 8. The ICA based its ruling on the language of RCCH
Rule 7.2(g)(5)(A), which expressly provides that a judge’s grant
or denial of a motion to advance26 is not subject to review or
reconsideration.
Pursuant to HRAP Rule 2.1(a), various rules of court
including the HRCP and RCCH “are hereby adopted as a part of
[the HRAP] whenever applicable.” (Emphasis added.)
26 Technically, this was a motion to shorten time for a hearing, not a
motion to advance —- the latter terminology applies to requests to advance
the date or time of hearings that have already been set. The distinction is
immaterial, as RCCH Rule 7.2(g)(5)(A) applies to both motions to shorten time
and motions to advance. In this case, because the motion has been referred
to as one to advance instead of to shorten time, we use that nomenclature.
27
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Preliminarily, HRAP Rule 4(a)(4)(B) requires that “[n]otice
of an extension motion filed . . . shall be given to the other
parties in accordance with the rules of the court . . . appealed
from.” Rule 7.2(g)(5)(A) appears within Rule 7.2 governing
“Civil Motions Practice” in the circuit courts. According to
Rule 7.2(a), “Rule 7.2 applies [] to cases that are governed by
the Hawaiʻi Rules of Civil Procedure.” The underlying circuit
court case was governed by the HRCP. Thus, at first blush, RCCH
Rule 7.2(g)(5)(A) would appear “applicable” pursuant to HRAP
Rule 2.1(a) to HRAP Rule 4(a)(4)(B) motions to extend.
As explained below, however, the provision disallowing
appellate review within RCCH Rule 7.2(g)(5)(A) conflicts with
the language and intent of HRAP Rule 4(a)(4)(B), and its
application to motions filed pursuant to the rule would create
unjust and unfair results.
First, not allowing appellate review of circuit court
denials of requests to advance or shorten time for HRAP Rule
4(a)(4)(B) motion hearings conflicts with the language and
intent of HRAP Rule 4(a)(4)(B). HRAP Rule 4(a)(4)(B) allows for
the filing of motions to extend time until the appeal deadline
and implicitly requires expeditious rulings on these motions.
As noted, HRAP Rule 4(a)(4)(B) provides:
(4) Extensions of Time to File the Notice of Appeal.
. . . .
28
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
(B) Requests for Extensions of Time After Expiration
of the Prescribed Time. The court or agency appealed
from, upon a showing of excusable neglect, may extend
the time for filing the notice of appeal upon motion
filed not later than 30 days after the expiration of
the time prescribed by subsections (a)(1) through
(a)(3) of this Rule. However, no such extension
shall exceed 30 days past the prescribed time.
Notice of an extension motion filed after the
expiration of the prescribed time shall be given to
the other parties in accordance with the rules of the
court . . . appealed from.
(Emphasis added.)
Thus, HRAP Rule 4(a)(4)(B) expressly allows a motion to
extend time to appeal for an additional thirty days after
expiration of the initial thirty days to be filed up until the
thirtieth day after expiration of the initial time for filing an
appeal. Although satisfaction of the “excusable neglect”
standard would require parties to file their motions as soon as
possible, the rule expressly allows the motion to be filed right
up to the deadline, and envisions an expeditious ruling on such
motion.27
Second, when a literal interpretation of a court statute or
court rule would lead to absurd or unjust results, the court may
depart from its plain reading. United Agri Products, 86 Hawaiʻi
at 255, 948 P.2d at 1096; Franks v. City & Cty. of Honolulu, 74
Haw. 328, 341, 843 P.2d 668, 674 (1993) (principles of statutory
construction apply to interpretation of court rules). For the
27 For example, a solo practitioner or a self-represented litigant who
intended to file a notice of appeal within the first thirty days could become
seriously ill and be hospitalized up to just before the HRAP Rule 4(A)(4)(B)
deadline.
29
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
reasons below, subjecting HRAP Rule 4(a)(4)(B) motions to the
RCCH 7.2(g)(5)(A) provision disallowing appellate review of
circuit court grants or denials of motions to advance hearings
could lead to absurd or unjust results.
Pursuant to RCCH Rule 7.2(b) and Exhibit B attached to the
RCCH, a motion to extend time under HRAP Rule 4(a)(4)(B) is a
hearing motion, which is generally heard on at least eighteen
days notice. In circuit court civil cases, RCCH Rule 7(a) also
generally requires that motions be served eighteen days before
their hearing dates.
Circuit courts have discretion, however, in the scheduling
of hearings on motions. Although circuit courts can also order
HRAP Rule 4(a)(4)(B) motions to be submitted on the briefs,28
normal course hearings in circuit courts are often scheduled to
be heard more than eighteen days after filing. For example, in
this case, the circuit court scheduled a September 5, 2017
hearing date on Wilmington’s June 21, 2017 summary judgment
motion for foreclosure. The circuit court scheduled a March 6,
2018 hearing date on the Ryans’ February 2, 2018 appeal
extension motion.
28 RCCH Rule 8 provides, “The court on its motion may order any matter
submitted on the briefs and/or affidavits, without oral argument.” (RCCH
Rule 7(g) allows substitution of affidavits with unsworn declarations under
penalty of law.)
30
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Thus, RCCH Rule 8 provides that “[m]otions will be heard
upon 18 days written notice in accordance with Rule 7 herein,
unless otherwise ordered by the court[.]” RCCH Rule
7.2(g)(5)(A) therefore allows circuit courts to shorten time for
or advance a hearing on a civil motion. The Ryans’ February 2,
2018 appeal extension motion to advance (or shorten time)
explicitly pointed out that a normal course setting would not
allow their motion to be decided by the deadline for filing an
appeal. The circuit court denied the motion to advance on
February 6, 2018, and set the hearing in its normal course, for
March 6, 2018. The circuit court could have expeditiously
scheduled a hearing on the Ryans’ February 2, 2018 extension
motion.29
Not allowing appellate review for abuse of discretion on
RCCH 7.2(g)(5)(A) motions to shorten time or advance hearings on
HRAP Rule 4(a)(4)(B) motions would allow circuit courts that (1)
do not order that such motions be submitted on the briefs
pursuant to RCCH Rule 8 and expeditiously rule; or (2) schedule
normal course hearings more than thirty days from filing, to
effectively deny any opportunity to extend time for filing an
appeal based on HRAP Rule 4(a)(4)(B), despite the latter rule’s
language and intent. Hence, a literal interpretation applying
29 Although the hearing motion was not filed until February 2, 2018, the
ex parte motion had been filed on January 26, 2018, and Wilmington had
already responded to the merits of the motion on January 30, 2018.
31
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the RCCH 7.2(g)(5)(A) provision disallowing appellate review of
circuit court decisions on motions to advance HRAP Rule
4(a)(4)(B) motions would lead to absurd or unjust results.30
We therefore hold, pursuant to HRAP Rule 2.1(a), that the
RCCH Rule 7.2(g)(5)(A) provision disallowing appellate review of
decisions on motions to advance hearings is inapplicable to
decisions on HRAP Rule 4(a)(4)(B) motions.
C. The circuit court abused its discretion by denying the
motion to advance hearing on the Ryans’ motion to extend
time for filing a notice of appeal
Having ruled appellate review of the circuit court’s
February 6, 2018 order denying motion to advance is allowed, we
next address whether the circuit court abused its discretion by
denying the motion and not scheduling a hearing by the February
7, 2018 deadline. As noted above, HRAP Rule 4(a)(4)(B)
expressly allows a motion to extend time to file a notice of
appeal for an additional thirty days after expiration of the
initial thirty days to be filed up until the thirtieth day after
expiration of the initial time for filing an appeal. Although
parties should not wait until the last minute and failure to
timely file under HRAP Rule 4(a)(4)(B) is relevant to whether
30 We also note the absurdity of not allowing appellate review of circuit
court decisions on motions to advance or shorten time on HRAP Rule 4(a)(4)(B)
motions for an abuse of discretion based on RCCH Rule 7.2(g)(5)(A), when
there is no comparable district court rule, and district court decisions on
the scheduling of HRAP Rule 4(a)(4)(B) motions would be subject to appellate
review for abuse of discretion.
32
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
“excusable neglect” exists, under the circumstances of this
case, we hold that the circuit court abused its discretion by
denying the motion to advance.
With respect to whether the hearing should have been
advanced, because the Yoshida and Taiatini declarations were not
refuted with any other evidence in the record on appeal, they
are taken as true.31 Thus, there is nothing in the record on
appeal contradicting the Ryans’ representations that they
checked for the status of the order denying reconsideration
weekly after the November 20, 2017 RCCH Rule 23 notice of
submission of the proposed order denying foreclosure
reconsideration, that upon not seeing it in Hoʻohiki by January
2, 2018, they called the circuit court’s chambers and were told
by staff that the “order was not entered, that the order might
be on [the judge’s] desk, that [the judge] was out at the time,
and that they will follow up on the following Monday[,]” and
that the Ryans did not realize the order had been entered on
December 8, 2017, until they re-checked Hoʻohiki on January 25,
2018.32 The circuit court would have been able to schedule,
31 See supra note 22.
32 At some point, Hoʻohiki showed that the order had been filed on December
8, 2017. However, the filing of the order on December 8, 2017, does not mean
that Hoʻohiki reflected the filing of the document on that date. Before
circuit court civil cases migrated to eCourt Kokua on October 28, 2019,
docket entries regarding document filing had to be manually entered into
(continued. . .)
33
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
conduct a hearing, and enter an order on the motion before the
February 7, 2018 deadline. We therefore hold that the circuit
court abused its discretion in denying the motion to advance.
D. The Ryans showed “excusable neglect” and their February 2,
2018 appeal extension motion should have been granted
Finally, we address whether the Ryans’ February 2, 2018
HRAP Rule 4(a)(4)(B) appeal extension motion should also have
been granted. The Ryans maintain the circuit court abused its
discretion by denying this motion. Because the initial thirty-
day appeal deadline had passed, the Ryans had to show “excusable
neglect” to obtain an extension.
In general, trial courts should allow parties to exercise
their appeal rights. As Wilmington notes, in Eckard Brandes,
this court ruled that “as indicated by the United States Supreme
Court in Pioneer[ Investment Services Co. v. Brunswick
Associates Ltd. Partnership], 507 U.S. 380 [(1993)] . . .,
whether ‘excusable neglect’ exists [to obtain a HRAP Rule
4(a)(4)(B) extension] is ‘at bottom an equitable’ decision; it
is necessary to first determine whether there is ‘neglect,’ and,
if so, whether the ‘neglect’ is ‘excusable.’” 146 Hawaiʻi at
364, 463 P.3d at 1021. Eckard Brandes clarified that
“‘excusable neglect’ is to be construed pursuant to its plain
(. . .continued)
Hoʻohiki. Sometimes the manual entry of document filing was delayed. With
the migration to eCourt Kokua, this should no longer be an issue.
34
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
language: ‘neglect’ that is ‘excusable,’ which, ‘involve[s] a
broad, equitable, inquiry’ ‘taking into account all relevant
circumstances surrounding the party’s omission[,]’” and “the
determination of whether ‘excusable neglect’ exists should lie
largely in the discretion of the court.” Id. (first alteration
in original).
Even if the steps the Ryans took constituted “neglect,”33
the neglect was “excusable.” The Ryans represent they checked
Hoʻohiki weekly for the status of the order denying
reconsideration weekly after the November 20, 2017 RCCH Rule 23
notice of submission of the proposed order denying foreclosure
reconsideration, and that upon not seeing it in Hoʻohiki by
January 2, 2018, they called the circuit court’s chambers on
January 2, 2018. Their representations regarding statements
made by circuit court staff on that date are not contradicted in
the record on appeal. Also, Yoshida averred he and Taiatini did
not realize the order had been entered on December 8, 2017,
until they re-checked Hoʻohiki on January 25, 2018.34
33
We note that Hoʻohiki contains a disclaimer that the Judiciary “does not
guarantee or represent that the information contains no errors, omissions, or
inaccuracies. The user is responsible for assessing the accuracy and
reliability of the information provided on the website.” Also, as Wilmington
argues, the Ryans could have called the circuit court after January 2, 2018
and also did not contact Wilmington’s counsel to check on the status of the
order denying foreclosure reconsideration.
34 See supra note 32.
35
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Eckard Brandes had not been decided as of the time of the
circuit court and ICA decisions. In rejecting the Ryans’
arguments regarding “excusable neglect,” the ICA relied on Enos
v. Pacific Transfer & Warehouse, Inc., 80 Hawaiʻi 345, 910 P.2d
116 (1996). Ryan, mem. op. at 10-11. The ICA characterized the
Ryans’ argument as blaming the circuit court clerk for their
failure to timely file a notice of appeal, and ruled excusable
neglect did not exist. Id.Enos is clearly distinguishable. In Enos, movant’s counsel
had actual notice of the filing of the judgment eighteen days
before the initial appeal deadline. 80 Hawaiʻi at 353, 910 P.2d
at 124. The primary basis for the motion to extend was
counsel’s belief that the time for filing a notice of appeal was
triggered by the filing of a notice of entry of judgment rather
than by the filing of the judgment itself. 80 Hawaiʻi at 354,
910 P.2d at 125. We held the trial court abused its discretion
by granting the motion to extend time for filing a notice of
appeal because the failure to timely file the appeal was caused
by counsel’s failure to read and comply with the plain language
of applicable procedural rules, which cannot constitute
“excusable neglect.” 80 Hawaiʻi at 355, 910 P.2d at 126.
Although the Ryans’ January 26, 2018 ex parte motion did
not comply with applicable procedural rules, their February 2,
2018 motions to extend and advance the hearing did. They did
36
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
not know until January 25, 2018, that the order triggering
appeal deadlines had been filed on December 8, 2017.
Wilmington also bears responsibility for this lack of
knowledge of the December 8, 2017 filing of the order denying
foreclosure reconsideration. As explained earlier, on November
20, 2017, Wilmington filed a RCCH Rule 23 notice of submission
of the proposed order with a certificate of service on the
Ryans’ counsel. In this certificate of service, Wilmington’s
counsel expressly stated, “The undersigned hereby certifies a
copy of the foregoing Order will be duly served upon the” Ryans’
counsel “when filed copies are received[.]” Yet, and in
contravention of HRCP Rule 5’s requirement of service, according
to the record, Wilmington did not serve a file-stamped copy of
the December 8, 2017 order denying foreclosure reconsideration
on the Ryans’ counsel until February 26, 2018. The Ryans’
counsel immediately took action after learning of the December
8, 2017 filing on January 25, 2018.
Thus, the circumstances of this case indicate that even if
there was “neglect,” under a “broad, equitable, inquiry” “taking
into account all relevant circumstances surrounding the party’s
omission[,]” the “neglect” was “excusable” under the
circumstances.
Hence, we hold that the circuit court abused its discretion
by denying the Ryans’ February 2, 2018 appeal extension motion.
37
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
As there were abuses of discretion in denying the February
2, 2018 motions to advance hearing and to extend the time for
filing an appeal, the Ryans’ February 6, 2018 notice of appeal
in CAAP-XX-XXXXXXX was timely filed from the December 8, 2017
order denying foreclosure reconsideration. Therefore, we remand
to the ICA to consider the merits of the other issues over which
appellate jurisdiction exists based on the Ryans’ timely appeal
of the December 8, 2017 order denying foreclosure
reconsideration.
V. Conclusion
Based on the reasons above, we vacate the ICA’s May 7, 2020
judgment on appeal and remand to the ICA for further proceedings
consistent with this opinion.
Gary V. Dubin, /s/ Mark E. Recktenwald
Frederick J. Arensmeyer,
and Matthew K. Yoshida /s/ Paula A. Nakayama
for petitioners
/s/ Sabrina S. McKenna
Charles R. Prather,
Robin Miller, /s/ Michael D. Wilson
Sun Young Park, and
Peter T. Stone, /s/ John M. Tonaki
for respondent
38