83 Hawai'i 50, Bank of Hawaii v. Shaw

• Citation: 924 P.2d 544,83 Hawaii 50
• Decision Date: 04 January 1996
• Docket Number: No. 16787,16787
• Parties: 83 Hawai'i 50 BANK OF HAWAII, a Hawai'i corporation, Plaintiff-Appellee, v. Stephen M. SHAW, Defendant-Appellant.
• Court: Court of Appeals of Hawai'i

Page 544

924 P.2d 544

83 Hawai'i 50

BANK OF HAWAII, a Hawai'i corporation, Plaintiff-Appellee, v. Stephen M. SHAW, Defendant-Appellant.

No. 16787.

Intermediate Court of Appeals of Hawai'i.

Jan. 4, 1996.

Reconsideration Granted Jan. 22, 1996.

Opinion on Grant of Reconsideration

Sept. 25, 1996.

Certiorari Denied Oct. 14, 1996.

As Amended Dec. 11, 1996.

Syllabus by the Court

1. Hawai'i District Court Rules of Civil Procedure (DCRCP) Rule 38(b) requires that a written demand for jury trial be served and filed "not later than ten days after the case is at issue."

2. After the originally prescribed period has expired, DCRCP Rule 6(b)(2) allows a request for an extension of time where the failure to act was the result of "excusable neglect."

3. Orders denying motions for relief under DCRCP Rules 6(b)(2) and 60(b)(1) on the ground of excusable neglect are reviewed, on appeal, under the abuse of discretion standard.

4. The district court could find that Appellant, as an attorney representing himself, was not entitled to rely on the alleged advice of court clerks regarding the timely filing of his jury demand. An extension of time to file a jury demand may only be obtained from the court. As an attorney, Appellant should have known that clerks have no authority to extend the deadline.

5. Under DCRCP Rule 45, the burden to establish that a subpoena duces tecum is unreasonable or oppressive is on the party seeking to have it quashed. On appellate review, the action of a trial court in enforcing or quashing a subpoena will be disturbed only if plainly arbitrary and without support in the record.

6. Hawai'i Rules of Evidence (HRE) Rule 1002 states that "except as otherwise provided in these rules or by statute[,]" the original writing is required "[t]o prove the content of a writing[.]" Under HRE Rule 1003, however, "[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." A trial court's denial of an objection to the admissibility of a duplicate under HRE Rule 1003 is reviewed for abuse of discretion.

Stephen M. Shaw, Honolulu, defendant-appellant pro se on briefs.

Michael C. Webb and Susan Cachero Sakai (Michael C. Webb, of counsel), on the brief, for plaintiff-appellee.

Before ACOBA, J., and TOWN, Circuit Judge, in place of BURNS, C.J., Recused, and DEL ROSARIO, Circuit Judge, in place of WATANABE, J., Recused.

ACOBA, Judge.

On August 4, 1992, Plaintiff-Appellee Bank of Hawai'i (BOH), a Hawai'i corporation, filed a complaint in the district court against Defendant-Appellant Stephen M. Shaw (Shaw) after failed attempts to collect over $5,000 in delinquent credit card bills from Shaw. Shaw, an attorney, represented himself in the proceedings. After a bench trial on November 13, 1992, the district court rendered judgment for BOH on its complaint and against Shaw as to all of Shaw's counterclaims against BOH. Judgment was entered on November 19, 1992 and December 2, 1992, and Shaw filed a timely notice of appeal on December 16, 1992. We affirm.

I.

Shaw's appeal asserts numerous grounds but fails to provide discernible argument or discussion on many of the points. We will disregard a point of error if the appellant fails to present discernible argument on the alleged error. Hall v. State, 10 Haw.App. 210, 218, 863 P.2d 344, 348, cert. denied, 76 Hawai'i 246, 868 P.2d 464 (1993). We consider the identifiable arguments in Shaw's brief. A.

First, Shaw contends that the district court erred in denying his jury trial demands.

Hawai'i District Court Rules of Civil Procedure (DCRCP) Rule 38(b) requires that a written demand for jury trial be served and filed "not later than 10 [ (ten) ] days after the case is at issue."

(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the case is at issue. Upon such demand, the party demanding a jury trial shall pay to the clerk of the district court such costs for jury trial as are payable in the circuit court, and the case shall be transferred to the circuit court. The clerk shall prepare, certify and transmit all of the papers within 20 days after the filing of the demand.

(Emphases added.)

On August 17, 1992, Shaw and BOH appeared before the district court (the August 17, 1992 hearing). Shaw entered a general denial to BOH's complaint and indicated his intent to demand a jury trial.

MR. SHAW: I'd like to deny and reserve the question of jury trial [until] after pre-trial conference, if that's possible. Otherwise, I'd demand a jury trial today.

THE COURT: It has to be done in ten days. What's the amount of the complaint?

[BOH's Counsel]: It's about $5,700, exclusive of interests and costs.

THE COURT: And the jurisdictional amount?

[BOH's Counsel]: It'd--it would be over 5,000.

THE COURT: So, jury trial is demanded. It's committed to the circuit court.

[BOH's Counsel]: Thank you, Your Honor.

MR. SHAW: Thank you, Your Honor.

THE CLERK: We'll continue four weeks for perfection of your jury demand. Okay?

MR. SHAW: Thank you.

(Emphases added.) The official trial transcript concludes with a note stating "(WHEREUPON CASE WAS CONTINUED FOR FILING OF DEMAND TO 9/14/92)[.]"

The transcript of the August 17, 1992 hearing reflects that the court specifically informed Shaw that he was required to file his demand within ten days, a point Shaw concedes in his Reply Brief. After inquiring whether the amount was sufficient for circuit court jurisdiction, the district court judge confirmed, " 'So, jury trial is demanded. It [i]s committed to the circuit court.' " At the end of the hearing, the clerk told Shaw in open court " 'We [wi]ll continue four weeks [until September 14, 1992] for perfection of your jury demand.' "

Although the colloquy in court could have been more definitive, neither the court's statement nor the clerk's statement expanded the ten-day deadline of DCRCP Rule 38(b). The judge lacked the power to commit the case to circuit court without a written demand; therefore, the statement concerning commitment was at best an indication of what would happen if the proper demand was made. The court clerk's statement, " 'We [wi]ll continue for four weeks for perfection of your jury demand[,]' " could not mean that the time to file was extended, as Shaw maintains. The statement refers to Shaw's "perfection" of his jury demand, i.e. continuing the case for four weeks to allow Shaw time to "perfect" or to file his jury trial demand. This is the only reasonable interpretation of the proceedings.

For while the court had the power to extend the time to file the jury demand, the court clerk had no such power. DCRCP Rule 6(b)(1) permits the court to extend a deadline "for cause shown[.]" But Shaw made no request to extend the time, and the court did not indicate any "cause [was] shown" for such an extension.

By his general denial at the August 17, 1992 hearing, Shaw put the case "at issue." DCRCP Rule 38(b). Accordingly, under DCRCP Rule 38(b), Shaw was required to file his jury demand on August 27, 1992, no later than ten days after the August 17, 1992 hearing. Shaw did not file any demand on August 27, 1992.

Finally, Shaw clearly understood that he had a ten-day deadline because he filed a subsequent motion pursuant to DCRCP Rule 6(b), requesting an extension of time to file the demand. See discussion infra.

B.

On August 18, 1992, the day after the August 17, 1992 hearing, Shaw claimed to have spoken to a clerk, who told him he had fourteen days to file his demand for a jury trial, ostensibly an August 31, 1992 deadline. On August 31, 1992, Shaw filed his first jury demand along with a Motion to Extend Time to File Demand for Jury Trial; or, to Extend Time to Pay Costs for Jury Trial and Request for Settlement/Status Conference pursuant to DCRCP Rule 6 (Rule 6 Motion). DCRCP Rules 6(b)(1) and 6(b)(2) state in relevant part:

(b) Enlargement. When by these rules ... or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect [.]

(Emphases added.)

Shaw requested that the court grant his Rule 6 Motion "on the grounds that the interests of justice would best be served thereby, and on the further ground that [BOH] has accepted a settlement offer which might result in the dismissal of this lawsuit." ¹ Shaw claims he relied on the clerk's August 18 representation that he had until August 31 to file his jury demand. But Shaw's contention that he had an August 31 deadline was inconsistent with the contemporaneous filing of his Rule 6 Motion requesting additional time to file the first jury demand. On August 31, 1992, the court denied the Rule 6 Motion and jury demand without a hearing or any stated grounds. ²

C.

On September 3, 1992, Shaw filed a second jury demand and paid a $100.00 filing fee. ³ Shaw maintains he filed this second demand after a clerk notified him that his Rule 6 Motion had been denied.

On the same date, BOH filed a memorandum opposing Shaw's Rule 6 Motion (which the court had already denied on August 31, 1992). BOH argued that since Shaw's motion was based on DCRCP Rule 6(b)(1) only, the motion should be denied because the request was not made prior to the expiration of the ten-day deadline. BOH also raised Rule 6(b)(2), contending that Shaw should be denied a...