U.S. Bank National Association v. Paul ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-AUG-2020
08:42 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
U.S. BANK NATIONAL ASSOCIATION, Not in Its Individual Capacity
but Solely as Trustee NRZ Pass-Through Trust X,
Plaintiff-Appellee, v. DON PAUL, Defendant-Appellant, and
DOES 1 THROUGH 20, Defendants-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC171000080)
ORDER GRANTING JULY 31, 2020 MOTION TO DISMISS APPEAL
(By: Leonard, Presiding Judge, Chan and Hiraoka, JJ.)
Upon review of (1) the July 31, 2020 motion by
Plaintiff-Appellee U.S. Bank National Association, Not in Its
Individual Capacity But Solely as Trustee NRZ Pass-Through
Trust X (U.S. Bank), to dismiss appellate court case number CAAP-
XX-XXXXXXX as moot, (2) the lack of any memorandum by Defendant-
Appellant Don Paul (Paul) in response to U.S. Bank's July 31,
2020 motion, and (3) the record, it appears that we lack
jurisdiction over Paul's appeal, but not for the reason asserted
by U.S. Bank.
The circuit court entered two judgments — the
November 22, 2019 judgment (Judgment) and the February 25, 2020
amended judgment (Amended Judgment). The Judgment was an
appealable final judgment. See Hawaii Revised Statutes (HRS)
§ 667-51(a)(1) (2016). Paul did not file a notice of appeal from
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the Judgment within the 30-day time required by Rule 4(a)(1) of
the Hawai#i Rules of Appellate Procedure (HRAP).
U.S. Bank's motion to amend the circuit court's
findings, conclusions, and order granting summary judgment and
interlocutory decree of foreclosure (filed by U.S. Bank on
February 10, 2020) did not toll or extend the time for Paul to
appeal from the Judgment. U.S. Bank's motion to amend was filed
pursuant to Rule 60 of the Hawai#i Rules of Civil Procedure
(HRCP), to correct a clerical error in the tax map key number. A
post-judgment motion to amend findings or a judgment or order
extends the time for a party to file a notice of appeal only if
"the court . . . rules specify the time by which the motion shall
be filed[.]" HRAP Rule 4(a)(3). HRCP Rule 60(a) does not
specify the time by which a motion under Rule 60(a) shall be
filed. HRCP Rule 60(b) states that "[a] motion under this sub-
division (b) does not affect the finality of a judgment or
suspend its operation." U.S. Bank's motion to amend did not
affect the finality of the Judgment.
The circuit court's entry of the Amended Judgment did
not trigger a new 30-day period for Paul to file a notice of
appeal under HRAP Rule 4(a)(1). The Amended Judgment was
materially identical to the Judgment (neither contained a
reference to the tax map key number for the foreclosed property).
The general rule is that where a judgment is amended
in a material and substantial respect, the time within which
an appeal from such determination may be taken begins to run
from the date of the amendment, although where the amendment
relates only to the correction of a clerical error, it does
not affect the time allowed for appeal. Moreover, if the
amendment of a final judgment or decree for the purpose of
correcting a clerical error either materially alters rights
or obligations determined by the prior judgment or decree or
creates a right of appeal where one did not exist before,
the time for appeal should be measured from the entry of the
amended judgment. If, however, the amendment has neither of
these results, but instead makes changes in the prior
judgment which have no adverse effect upon those rights or
obligations or the parties' right to appeal, the entry of
the amended judgment will not postpone the time within which
an appeal must be taken from the original decree.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Korsak v. Hawai#i Permanente Med. Grp., 94 Hawai#i 297, 304, 12
P.3d 1238, 1245 (2000) (cleaned up). Thus, entry of the Amended
Judgment did "not postpone the time within which an appeal must
be taken from the original decree." Id. We lack jurisdiction
over Paul's appeal.
Accordingly, IT IS HEREBY ORDERED that U.S. Bank's
July 31, 2020 motion to dismiss Paul's appeal is granted, and
case number CAAP-XX-XXXXXXX is dismissed for lack of appellate
jurisdiction.
DATED: Honolulu, Hawai#i, August 12, 2020.
/s/ Katherine G. Leonard
Associate Judge
/s/ Derrick H.M. Chan
Associate Judge
/s/ Keith K. Hiraoka
Associate Judge
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