U.S. Bank National Association v. Moxley ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-MAY-2021
09:06 AM
Dkt. 48 OGMD
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE,
SUCCESSOR IN INTEREST TO BANK OF AMERICA, NATIONAL ASSOCIATION,
AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION,
AS TRUSTEE, ON BEHALF OF THE HOLDERS OF WASHINGTON MUTUAL
ASSET-BACKED CERTIFICATES, WMABS, SERIES 2006-HE1,
Plaintiff-Appellee, v. JAN MOXLEY, Defendant-Appellant,
and CITIBANK (SOUTH DAKOTA), N.A.; WELLS FARGO BANK, N.A.;
Defendants-Appellees, and DOES 1 through 20,
Inclusive, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CC171000292)
ORDER GRANTING MOTION TO DISMISS APPEAL
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Upon consideration of Plaintiff-Appellee U.S. Bank
National Association as Trustee, Successor in Interest to Bank of
America, National Association, as Successor by Merger to LaSalle
Bank National Association, as Trustee, on Behalf of the Holders
of Washington Mutual Asset-Backed Certificates, WMABS, Series
2006-HE1's (U.S. Bank) April 28, 2021 motion to dismiss appeal
for lack of appellate jurisdiction (Motion to Dismiss), self-
represented Defendant-Appellant Jan Moxley's (Moxley) May 7, 2021
opposition to the Motion to Dismiss, the papers in support, and
the record, it appears that we lack jurisdiction over the instant
appeal.
On February 24, 2021, Moxley filed a notice of appeal
from the following judgment and orders entered by the Circuit
Court of the Third Circuit (circuit court): (1) a September 28,
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
2020 judgment on a decree of foreclosure (Foreclosure Judgment);
(2) a December 16, 2020 post-judgment order denying Moxley's
October 13, 2020 post-judgment motion for reconsideration of,
inter alia, the Foreclosure Judgment (Order Denying
Reconsideration); and (3) a January 25, 2021 post-judgment order
denying Moxley's December 3, 2020 post-judgment "Renewed Non-
Hearing Motion Demand for Jury Trial" (Order Denying Jury Trial).
It appears we lack jurisdiction to review the foregoing judgment
and orders.
The Foreclosure Judgment was an appealable final
judgment, see Hawai#i Revised Statutes (HRS) § 667-51(a)(1)
(2016); but Moxley did not file a notice of appeal from the
Foreclosure Judgment within the 30-day time period required by
Hawai#i Rules of Appellate Procedure (HRAP) Rule 4(a)(1).
Moxley's October 13, 2020 and December 3, 2020 post-judgment
motions did not toll or extend the time for Moxley to appeal from
the Foreclosure Judgment. We construe Moxley's October 13, 2020
post-judgment motion as a Hawai#i Rules of Civil Procedure (HRCP)
Rule 60(b) motion for relief from judgment insofar as the
October 13, 2020 post-judgment motion sought relief from the
Foreclosure Judgment and was filed more than 10 days after the
Foreclosure Judgment was entered. This post-judgment HRCP
Rule 60(b) motion does not qualify as a tolling motion under HRAP
Rule 4(a)(3). See Lambert v. Lua, 92 Hawai#i 228, 234, 990 P.2d
126, 132 (App. 1999) ("An HRCP Rule 60(b) motion for relief from
judgment may toll the period for appealing a judgment or order,
but only if the motion is served and filed within ten (10) days
after the judgment is entered."); HRCP Rule 60(b) ("A motion
under this subdivision (b) does not affect the finality of a
judgment or suspend its operation."). Moxley's December 3, 2020
post-judgment "Renewed Non-Hearing Motion Demand for Jury Trial"
(Motion for Jury Trial) also did not toll or extend the time for
Moxley to appeal from the Foreclosure Judgment because it is not
among the tolling motions specified under HRAP Rule 4(a)(3).
Accordingly, Moxley's appeal from the Foreclosure Judgment is
untimely.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The circuit court's December 16, 2020 Order Denying
Reconsideration, which disposed of Moxley's post-judgment
October 13, 2020 HRCP Rule 60(b) motion, was an appealable final
order. See Beneficial Hawaii, Inc. v. Casey, 98 Hawai#i 159,
165, 45 P.3d 359, 365 (2002) ("A HRCP Rule 60(b) motion
pertaining exclusively to a foreclosure decree seeks to relieve
the movant of its effect; therefore, we hold that the circuit
court's entry of judgment disposing of such a HRCP Rule 60(b)
motion is a final, appealable order.").1 But Moxley did not file
a notice of appeal from the Order Denying Reconsideration within
the 30-day time period required by HRAP Rule 4(a)(1).
The failure to file a timely notice of appeal in a
civil matter is a jurisdictional defect that the parties cannot
waive and appellate courts cannot disregard in the exercise of
judicial discretion. Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d
1127, 1129 (1986); HRAP Rule 26(b) ("[N]o court or judge or
justice is authorized to change the jurisdictional requirements
contained in Rule 4 of [the HRAP]."). Accordingly, we lack
appellate jurisdiction to review the September 28, 2020
Foreclosure Judgment and the December 16, 2020 Order Denying
Reconsideration.
The Order Denying Jury Trial is appealable,2 and
Moxley's appeal from the order is timely. Nonetheless, we lack
jurisdiction to review the Order Denying Jury Trial because the
issue is moot. "Mootness is an issue of subject matter
jurisdiction." Doe v. Doe, 120 Hawai#i 149, 164, 202 P.3d 610,
625 (App. 2009). "As a general rule, a case is moot if the
reviewing court can no longer grant effective relief." In Re
Marn Family, 141 Hawai#i 1, 7, 403 P.3d 621, 627 (2016) (citation
1
Although U.S. Bank argued, inter alia, that the December 16, 2020
Order Denying Reconsideration was not appealable because it was not reduced to
a separate judgment, the separate judgment requirement in Jenkins v. Cades
Schutte Fleming & Wright, 76 Hawai#i 115, 119, 869 P.2d 1334, 1338 (1994), is
"inapposite in the post-judgment context." Ditto v. McCurdy, 103 Hawai #i 153,
158, 80 P.3d 974, 979 (2003).
2
The Order Denying Jury Trial is appealable because it adjudicated all
the issues in Moxley's December 3, 2020 post-judgment motion and left no
further issues from that post-judgment motion for any further adjudication.
See Ditto, 103 Hawai#i at 157, 80 P.3d at 978 ("A post-judgment order is an
appealable final order under HRS § 641–1(a) if the order ends the proceedings,
leaving nothing further to be accomplished.").
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
omitted). "A case is moot if it has lost its character as a
present, live controversy of the kind that must exist if courts
are to avoid advisory opinions on abstract propositions of law."
Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d 696, 726
(2007) (citations and emphasis omitted).
Here, Moxley's appeal from the Order Denying Jury Trial
does not present a live issue, and we thus do not have
jurisdiction to review it. Moxley's December 3, 2020 Motion for
Jury Trial pertains to the merits of the underlying foreclosure
case, which the circuit court determined via the Foreclosure
Judgment and Order Denying Reconsideration. As noted, Moxley did
not timely appeal from the Foreclosure Judgment or Order Denying
Reconsideration, and we thus lack jurisdiction to review that
judgment and order, which are final and binding. Because
Moxley's Motion for Jury Trial pertains to the merits of the
foreclosure decree, and this court cannot review the merits of
the foreclosure decree, we cannot provide any effective relief.
Moxley's appeal from the Order Denying Jury Trial is thus moot.
In addition, none of the exceptions to the mootness doctrine
apply: public interest, see Doe v. Doe, 116 Hawai#i 323, 327, 172
P.3d 1067, 1071 (2007); "capable of repetition yet evading
review," see State v. Tui, 138 Hawai#i 462, 468, 382 P.3d 274,
280 (2016); or "collateral consequences," see Hamilton ex rel.
Lethem v. Lethem, 119 Hawai#i 1, 7-11, 193 P.3d 839, 845-49
(2008). Accordingly, we lack jurisdiction to review the Order
Denying Jury Trial.
Therefore, IT IS HEREBY ORDERED that the Motion to
Dismiss is granted, and appeal number CAAP-XX-XXXXXXX is
dismissed for lack of jurisdiction.
IT IS FURTHER ORDERED that all pending motions in
appeal number CAAP-XX-XXXXXXX are dismissed as moot.
DATED: Honolulu, Hawai#i, May 13, 2021.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Keith K. Hiraoka
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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