DocketNumber: NO. CAAP-16-0000196
Citation Numbers: 415 P.3d 936
Judges: Chan, Fujise, Leonard
Filed Date: 4/12/2018
Status: Precedential
Modified Date: 7/19/2022
SUMMARY DISPOSITION ORDER
Defendant/Counterclaim Plaintiff/Third-Party Plaintiff-Appellant Donna Lynch (Lynch ) appeals from the Order Denying Defendant's Motion for Relief Pursuant to Rule 60(b)(1),(2),(3) and (6), and to Strike the Writ of Possession Entered on August 20, 2015 Filed on December 29, 2015 (Order Denying the Rule 60(b) Motion ), entered in the Circuit Court of the Second Circuit (Circuit Court ), on April 15, 2016, against her and in favor of Plaintiff/Counterclaim Defendant-Appellee Federal National Mortgage Association (Fannie Mae ) and Third-Party Defendant-Appellee Bank of America, N.A., Successor by Merger to BAC Home Loans Servicing, LP, FKA Countrywide Home Loans Servicing, LP (Bank of America ) (together, Appellees ), Lynch also challenges the Circuit Court's Order Denying Defendant's Non-Hearing Motion to Reconsider Motion for Relief Pursuant to Rule 60(b)(1),(2),(3) and (6), and to Strike the Writ of Possession Entered on August 20, 2015, entered in the Circuit Court on April 1, 2016 (Order Denying Reconsideration ).
Although represented by counsel on this appeal, Lynch's Opening Brief does not contain a "concise statement of the points of error" as required by Hawai'i Rules of Appellate Procedure (HRAP ) Rule 28(b)(4). Nor does Lynch's brief provide accurate and sufficient record references supporting "each statement of fact or mention of court or agency proceedings." HRAP Rule 28(b)(3). However, the Hawai'i Supreme Court "has consistently adhered to the policy of affording litigants the opportunity to have their cases heard on the merits, where possible." Bettencourt v. Bettencourt,
Fannie Mae filed a Complaint for Ejectment (Complaint ) against Lynch on August 29, 2011, after purchasing the subject property at a non-judicial foreclosure sale held in 2010. Lynch answered the Complaint and filed a counterclaim against Fannie Mae and a third-party complaint against Bank of America. After various proceedings, on January 21, 2015, the Circuit Court entered an order granting summary judgment as to the counterclaim and third-party complaint. On August 20, 2015, the Circuit Court entered an order granting summary judgment on the Complaint, a Writ of Possession, and a Judgment.
On December 29, 2015, Lynch filed a motion pursuant to Hawai'i Rules of Civil Procedure (HRCP ) Rules 60(b)(1), (2), and (6), seeking to set aside the August 20, 2015 order granting summary judgment order on the Complaint, Judgment, and Writ of Possession.
On March 1, 2016, prior to the written entry of the Order Denying the Rule 60(b) Motion, Lynch filed a motion for reconsideration of the denial of the Rule 60(b) motion. Lynch argued that the Circuit Court should reconsider her Rule 60(b) Motion because Fannie Mae had late-filed a supplemental or reply memorandum to a supplemental affidavit filed by Lynch and she was prejudiced in not receiving it until after the final hearing on her motion. On April 1, 2016, the Circuit Court entered the Order Denying Reconsideration, which noted that the late-filed reply was filed after the court's final hearing and oral ruling and stated that the court had not considered Appellees' late-filed reply in conjunction with its ruling on Lynch's Rule 60(b) motion.
On appeal, Lynch primarily argues that the Circuit Court abused its discretion in denying her motion for reconsideration because the Circuit Court failed to make reasonable accommodations to ensure that Lynch, as a then-pro se litigant, had an opportunity to have her matters be fairly heard. This argument is without merit.
As Lynch acknowledges, the Circuit Court held three hearings on her Rule 60(b) motion. It is clear from the transcript of the hearings on Lynch's Rule 60(b) motion that the court carefully considered all of Lynch's substantive arguments. In addition, the court suggested possible options or avenues of assistance for Lynch including, for example, suggesting at the first hearing that Lynch speak to a HUD certified counselor. At the second hearing, the court asked counsel for Appellees to further communicate with Lynch and the HUD certified counselor and perhaps other agencies. At the final hearing on Lynch's Rule 60(b) motion, after further argument of the parties, the court addressed Lynch's asserted grounds for relief based on her former counsel's alleged negligence. See U.S. Bank Nat. Ass'n v. Salvacion, No. 30594,
The Circuit Court, upon consideration of the matters pointed to by Lynch and its own record, did not view the Dubin Firm's actions as excusable neglect under HRCP Rule 60(b)(1). Nor did the court view the asserted lack of discovery to constitute newly discovered evidence warranting relief under HRCP Rule 60(b)(2). Finally, the court recognized that, under exceptional or aggravated circumstances, relief might otherwise be available based on counsel's gross and inexcusable negligence, but the court did not find that such circumstances existed in this case. See generally Hawai'i Hous. Auth. v. Uyehara,
Upon review, we cannot conclude that the Circuit Court abused its discretion in denying Lynch's motion for reconsideration or the underlying HRCP Rule 60(b) motion. See, e.g., Beneficial Hawai'i. Inc. v. Casey,
For these reasons, the Circuit Court's April 15, 2016 Order Denying the Rule 60(b) Motion and April 1, 2016 Order Denying Reconsideration are affirmed.
The Honorable Joseph E. Cardoza presided.
Lynch did not seek relief from the January 21, 2015 order granting summary judgment as to the counterclaim and third-party complaint.