80 Hawai'i 345, Enos v. Pacific Transfer & Warehouse, Inc.

• Decision Date: 25 January 1996
• Docket Number: No. 18128,18128
• Citation: 910 P.2d 116,80 Hawaii 345
• Court: Hawaii Supreme Court
• Parties: 80 Hawai'i 345 John H. ENOS, Jr. and Aileen H. Enos, Plaintiffs-Appellants, v. PACIFIC TRANSFER & WAREHOUSE, INC., a Hawai'i corporation, and Maynard Koa, Defendants-Appellees, and John Does 1-10, Jane Does 1-10, and Doe Entities 1-10, Defendants, and Leslie S. Fukumoto, Party in Interest-Appellant.

Page 116

910 P.2d 116

80 Hawai'i 345

John H. ENOS, Jr. and Aileen H. Enos, Plaintiffs-Appellants, v. PACIFIC TRANSFER & WAREHOUSE, INC., a Hawai'i corporation and Maynard Koa, Defendants-Appellees, and John Does 1-10 Jane Does 1-10, and Doe Entities 1-10, Defendants, and Leslie S. Fukumoto, Party in Interest-Appellant.

No. 18128.

Supreme Court of Hawai'i.

Jan. 25, 1996.

Reconsideration Denied Feb. 9, 1996.

Robert P. Richards, Ralph J. O'Neill and Michele-Lynn E. Luke of Reid, Richards & Miyagi, on the briefs, Honolulu, for defendants-appellants/cross-appellees Pacific Transfer & Warehouse, Inc. and Maynard Koa.

Leslie S. Fukumoto, on the briefs, Honolulu, for plaintiffs-appellees/cross-appellants John H. Enos, Jr. and Aileen H. Enos.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

MOON, Chief Justice.

Defendants-appellants/cross-appellees Pacific Transfer & Warehouse, Inc., a Hawai'i corporation, and Maynard Koa [hereinafter, collectively, Pacific Transfer] appeal from the (1) judgment, filed on April 8, 1994, and (2) order denying Pacific Transfer's motion for judgment notwithstanding the verdict, or, in the alternative, motion for new trial, and motion for remittitur [hereinafter, collectively, Pacific Transfer's post-trial motions], filed July 1, 1994.

Plaintiffs-appellees/cross-appellants John H. Enos, Jr. and Aileen H. Enos [hereinafter, collectively, the Enoses] appeal from the order granting Pacific Transfer's motion to extend the time in which to file its notice of appeal, filed July 1, 1994. For the reasons discussed below, we reverse the trial court's order extending time to file a notice of appeal and dismiss the appeal for lack of jurisdiction.

I. BACKGROUND

This appeal and cross-appeal arise out of litigation surrounding a vehicular accident, which occurred on December 10, 1985. The Enoses filed a complaint on September 19, 1990, alleging claims for negligence and loss of consortium against Pacific Transfer. The Enoses' motion for partial summary judgment on the issue of liability was granted on February 4, 1994. Jury trial on the issues of damages and comparative negligence began on February 7, 1994. The jury, on March 4, 1994, returned a special verdict in favor of the Enoses and against Pacific Transfer. Subsequent to the jury's verdict, the following events occurred:

Date unknown The Enoses, as prevailing parties, submitted a proposed judgment.

March 15, 1994 Pacific Transfer submitted an alternate proposed judgment, pursuant to Rule 23 of the Rules of the Circuit Court.

April 8, 1994 Judgment Upon Special Verdict was filed.

Sometime Between April 20-28, 1994 Pacific Transfer received a file-stamped copy of the judgment.

May 4, 1994 Notice of Entry of Judgment was filed.

May 13, 1994 Pacific Transfer filed its post-trial motions.

June 1, 1994 Pacific Transfer filed its motion to extend time to file a notice of appeal, pursuant to Hawai'i Rules of Appellate Procedures (HRAP) Rule 4(a)(5).

June 3, 1994 Pacific Transfer's notice of appeal was filed.

June 20, 1994 The Enoses filed their notice of cross-appeal.

July 1, 1994 Orders denying Pacific Transfer's post-trial motions and granting its motion for extension of time were filed.

July 6, 1994 Pacific Transfer filed an amended notice of appeal.

Pacific Transfer's counsel, Robert Richards, attested in his affidavit attached to the motion for extension to file the notice of appeal that he was orally advised on April 14, 1994 that the judgment in this case had, in fact, been filed but was not informed of the date of filing. Richards asserted that he did not receive a file-stamped copy of the judgment, reflecting the April 8 filing date, until sometime between April 20, 1994 and April 28, 1994. However, Richards knew or should have known, at least by April 20, 1994, that the judgment was filed on April 8 because, on April 20, 1994, Richards's co-counsel had written to the Enoses' counsel informing him that the judgment was filed on April 8, 1994. In that letter, Richards's co-counsel also requested a copy of the notice of entry of judgment because, "since certain court-imposed deadlines begin on the date of the Entry of Judgment, we would appreciate you telephoning us immediately upon receipt of this letter to indicate the date that the Entry of Judgment was filed such that we may respond appropriately."

Apparently, when no notice of entry of judgment was forthcoming, Richards prepared and filed one on May 4, 1994. On May 13, 1994, Pacific Transfer filed its post-trial motions, citing Hawai'i Rules of Civil Procedure (HRCP) Rules 50(b), 59, and 60. The Enoses, in their opposing memoranda, argued that Pacific Transfer's post-trial motions were untimely pursuant to HRCP Rules 58 and 59.

Under HRCP Rule 58, "[t]he filing of the judgment in the office of the clerk constitutes the entry of judgment." Under HRCP Rule 59, motions to alter or amend the judgment or motions for new trial must be served "within 10 days after the entry of judgment." The Enoses maintained that, because the judgment in this case was filed on April 8, 1994, Pacific Transfer's post-trial motions should have been filed on or before April 18, 1994, but were not filed until May 13, 1994. Thus, the post-trial motions were untimely.

In its reply memoranda, Pacific Transfer argued that "[o]n April 8, 1994, the Judgment proposed by [Pacific Transfer] was filed; however ... the judgment in this case was not entered by the Clerk of the Court until May 4, 1994." (Emphasis in original.) Pacific Transfer also argued that the Enoses' "claim that the filing of the Judgment rather than the entry of the Judgment begins the running of any time limits for the filing of post-trial motions.... ignore[s] the explicit and precise provisions of the Hawaii Rules of Civil Procedure [and] should be rejected." (Emphases in original.) Although the transcript of the May 31, 1994 hearing on Pacific Transfer's post-trial motions is not included in the record on appeal, the record reflects that, at the May 31 hearing, the court noted that the motions were untimely, and the post-trial motions were denied.

Apparently realizing the significance of the trial court's ruling with respect to the judgment as having been "entered" on April 8, 1994, and that the untimely post-trial motions would not operate to toll the time to appeal, Richards filed, on behalf of Pacific Transfer, a "Motion for Extension of Time to File Notice of Appeal" on June 1, 1994, pursuant to HRAP Rule 4(a)(5). ¹ He argued that the appeal was meritorious and "that the circumstances ... concerning the filing of the Judgment Upon Special Verdict together with the filing of the Notice of Entry of Judgment, when combined with counsel's honest belief that the 'triggering' date for purposes of deadlines was the latter rather than the former ... constitutes excusable neglect." Richards attested in his affidavit, inter alia, that:

5. On [April 14, 1994,] affiant had been orally advised that a Judgment was filed but had not received a file stamped copy. Further, affiant was unaware of whether judgment had, in fact, been entered.

....

7. Attached hereto as Exhibit "D" is a true and correct copy of a letter, dated April 28, forwarding both a filed [sic] stamped copy of the Judgment and a copy of the proposed Notice of Entry of Judgment to Plaintiffs' counsel. Affiant believed that a filed [sic] stamped copy of the Judgment was actually received by his office between the date of Exhibit "C" (April 20) and the date of Exhibit "D" (April 28).

....

10. Affiant further avers that "excusable neglect" exists if, in fact, "entry of judgment" occurred on April 8 when the Judgment Upon Special Verdict was filed rather than May 4 when the Notice of Entry of Judgment was filed, based upon the fact that he in good faith believed and still believes that, under the circumstances, entry of judgment did not take place until May 4.

(Emphasis added.) Essentially, Richards argues that, although he knew that the judgment had been filed on April 8, he did not know that a judgment is "entered" when it is filed, despite the unambiguous language of the rules. Richards apparently also asserts that the failure to timely file a notice of appeal between April 14 and the May 8 appeal deadline was due to excusable neglect because he believed "in good faith" that entry of judgment did not occur until the notice of entry of judgment was filed.

Richards also suggested that the HGEA strike, which affected court operations between April 18 and April 29, "complicated" efforts to follow up because one could not review court pleadings, and filings were limited. He acknowledges, however, that he received a file-stamped copy of the judgment between April 20 and April 28, and nowhere indicates that the strike impeded his efforts to file a notice of appeal.

The circuit court heard Pacific Transfer's motion for extension on June 3, 1994. The presiding judge, in granting the motion, stated:

Well, it's hard for the court to insist upon a strict construction of the rules when the court itself doesn't follow the rules; namely rule 77(d) where the clerk has to serve entry of judgment. And that section makes explicit that in the absence of notice of entry by the clerk then rule 4(a) should certainly be available.

I don't think there's any additional prejudice, but I will grant this motion. In addition, I will note that there was a strike during which time communications between counsel and the court were [in] utter chaos[,] containing much misinformation. I'll also note that there was a change in the administrative judgeship at around this time and a move of chambers across the hall, which also created chaos of its own. I'll note that I'm acting Circuit Court judge out of the administrative judge's chambers. That's additional confusion. I think upon that basis alone there was excusable neglect. I think the plaintiffs' counsel has also neglected...