Bank of Honolulu v. Davids

• Decision Date: 20 September 1985
• Docket Number: No. 9777,9777
• Citation: 6 Haw.App. 25,709 P.2d 613
• Court: Hawaii Court of Appeals
• Parties: BANK OF HONOLULU, a Hawaii corporation, Plaintiff, v. Pamela B. DAVIDS, Defendant-Appellee, and Daniel D. Davids, II, and American Flying Company, Inc., a Hawaii corporation, Defendants, and Kevin Cacho and HUI 500, Intervenors-Appellants.

Page 613

709 P.2d 613

6 Haw.App. 25

BANK OF HONOLULU, a Hawaii corporation, Plaintiff, v. Pamela B. DAVIDS, Defendant-Appellee, and Daniel D. Davids, II, and American Flying Company, Inc., a

Hawaii corporation, Defendants,

and

Kevin Cacho and HUI 500, Intervenors-Appellants.

No. 9777.

Intermediate Court of Appeals of Hawai'i.

Sept. 20, 1985.

Syllabus by the Court

1. Appellant's notice of appeal filed after the trial court orally announced it § decision on his motion to alter judgment but before entry of the written order was premature. However, an amended notice of appeal timely filed after entry of the written order makes the appeal effective.

2. Rule 4(a)(2), HRAP (1984), replaces Rule 73, HRCP, and a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof.

3. Under 49 App.U.S.C. § 1401(a) and (b) (1982 Ed.), an aircraft must be registered by its owner with the Federal Aviation Administration (FAA) and under 49 A pp.U.S.C. § 1403(c) (1982 Ed.) no conveyance affecting the title to, or any interest in, any civil aircraft is valid with respect to such aircraft against any person other than the person by whom the conveyance or other instrument is mad e or given or any person having actual notice thereof.

4. Where the purchaser of an aircraft has not registered an instrument of conveyance with the FAA and title is still registered with the FAA in the name of the seller, the conveyance is invalid as to a judgment creditor of the seller without actual notice and the judgment creditor may levy on the aircraft in execution of the judgment under HRS §§ 651-36 and -39.

5. The requirements to be met for the grant of new trial on the basis of newly discovered evidence are:

(1) The evidence must be previously undiscovered even though due diligence was exercised;

(2) The evidence must be admissible and credible; and

(3) The evidence must be of such a material and controlling nature as will probably change the outcome and not merely cumulative or tending only to impeach or contradict a witness.

6. In the final analysis, a motion for new trial is directed to the sound discretion of the court.

Anthony L. Ranken, Lowenthal & August (Joel E. August with him on briefs), Wailuku, Maui, for intervenors-appellants.

Stephanie A. Rezents, Ukishima & Matsubara (Daniel S. Ukishima & Jay T. Suemori with her on brief), Honolulu, for defendant-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

Intervenors-appellants Kevin Cacho and Hui 500 ¹ (hereafter collectively Cacho) appeal from the lower court's orders denying Cacho's motions for relief from execution and "To Alter Judgment on Intervenors' Motion For Relief From Execution." We affirm.

Bank of Honolulu commenced this action against Pamela B. Davids, (hereafter Pamela), her former husband Daniel D. Davids II (hereafter Daniel), and American Flying Co., Inc., a Hawaii corporation (hereafter American Flying), to recover on a promissory note in its favor. Pamela answered and cross-claimed against Daniel for indemnification. Judgment was rendered against Pamela on the complaint in the amount of $5,843.69, and Pamela subsequently obtained default judgment against Daniel in the same amount.

On September 23, 1983, Pamela obtained a writ of execution authorizing the State Sheriff to "levy upon the personal property of DANIEL D. DAVIDS II, Cross-Defendant herein, including specifically, but not limited to a Cessna 15282863, registration N89774[.]" A deputy sheriff executed the writ and levied against the airplane on the island of Maui on September 30, 1983. On October 19, 1983, Cacho filed a motion for "Relief from Execution," alleging that he and not Daniel was the owner of the airplane. On October 24, 1983, Cacho filed a motion to intervene. On October 27, 1983, after hearing, the court orally denied Cacho's motion for relief. On November 29, 1983, Cacho filed a "motion to alter judgment," citing Rules 59 and 60, Hawaii Rules of Civil Procedure (HRCP) (1981); however, the order denying his motion for relief from execution was not filed until December 9, 1983. ² On that latter date the court also heard and orally denied Cacho's motion to alter judgment.

On December 23, 1983, Cacho filed a notice of appeal from the orders "entered October 27, 1983 and December 9, 1983[.]" Thereafter, several motions and orders were filed relating to the appeal, and on September 17, 1984, Cacho filed his opening brief. On November 20, 1984, the trial court's order denying Cacho's motion to alter judgment was filed, and on December 3, 1984, Cacho filed an amended notice of appeal from the orders of December 9, 1983, and November 20, 1984.

1.

Pamela questions the jurisdiction of this court, arguing that the first notice of appeal was untimely because it preceded the written order of November 20, 1984, and the amended notice of appeal did not cure the defect, because Cacho should have filed a new notice of appeal instead. The argument is without merit.

The first notice of appeal was in fact untimely under Rules 58 and 73, HRCP, ³ having preceded the written order denying the motion to alter judgment. The supreme court has held, however, that while such an untimely appeal is a nullity, the filing of an amended notice of appeal within the proper time after entry of the appropriate written order or judgment appealed from makes the appeal effective. Madden v. Madden, 43 Haw. 148, 151 (1959).

Pamela asserts, however, that even if the amended notice was effective, Cacho should have also re-filed an opening brief after its amended notice. On May 14, 1985, we denied Cacho's motion to file an amended opening brief. None of Cacho's rule violations have misled Pamela, see In re Dean Trust, 47 Haw. 304, 387 P.2d 218 (1963), and the issues remained the same before and after the amended notice of appeal. Except for the formality Pamela has put forth, we find no reason to further clutter this court's records with another set of briefs in these circumstances.

2.

The question is whether Cacho is entitled to relief from Pamela's levy of execution where he has failed to register the conveyance with the FAA. Put another way, where the purchaser of an aircraft fails to register his title with the FAA can the seller's judgment creditor, who has no actual knowledge of the conveyance of the aircraft, levy against the aircraft in execution of her judgment? We answer, yes.

There is no dispute that Daniel sold the airplane to Cacho on July 17, 1981, and Cacho paid by a check payable to American Flying Co. Daniel testified that before it was sold the airplane really belonged to American Flying Co., doing business as Hawaii Air Academy, and the registration in his name was really a matter of convenience. Daniel was president of American Flying Co. ⁴ However, the airplane was not thereafter registered in Cacho's or Hui 500's name with the Federal Aviation Administration (FAA) as required by 49 App.U.S.C. § 1401(a) and (b) (1982 Ed.). ⁵ At the time of seizure the airplane was still registered in Daniel's name. Cacho argues that, notwithstanding the failure to register the airplane, it was not Daniel's property and could not be seized under the applicable execution statutes. Hawaii Revised Statutes (HRS) §§ 651-36, -39 (1976). Those statutes read as follows:

§ 651-36 Execution, courts of record; form. The forms of executions to be issued from courts of record shall be the same as have been established by the usage and practice of such courts; but alterations therein may, from time to time, be made or allowed by the supreme court, when necessary to adapt them to changes in the law, or for other sufficient reasons.

§ 651-39 Available in all circuits. Any writ of execution or other writ issued for the purpose of carrying into effect any final order, judgment, or decree of any circuit court or circuit judge at chambers shall be available against the property of the person against whom the writ shall issue in whatever circuit the property is situated and the writ shall be as effective for all purposes in each of the circuits as in the circuit where it is issued.

Citing 49 App.U.S.C. § 1403 (1982 Ed.), ⁶ Pamela argues that since she did not have actual notice of the conveyance her right to levy against the plane has priority over Cacho's, the conveyance is not valid as to her, 49 App.U.S.C. § 1403(c), and, thus, the airplane is still the "property" of Daniel, within the meaning of HRS §§ 651-36 and -39, supra.

The recording requirement of the Federal Aviation Act, 49 App.U.S.C. §§ 1401-1406 (1982 Ed.), has been the subject of several decisions and has been uniformly interpreted as invalidating, as to all except the immediate parties and those with actual notice, all instruments or conveyances of title or interest in any aircraft until they are recorded. Philko Aviation, Inc. v. Shacket, 462 U.S. 406, 103 S.Ct 2476, 76 L.Ed.2d 678 (1983); South Shore Bank v. Tony Mat, Inc., 712 F.2d 896 (3rd Cir.1983); CIM International v. United States, 641 F.2d 671 (9th Cir.1980). The purpose of the statute is to create a "clearinghouse" for recordation of aircraft titles so that anyone dealing with aircraft may know where he can have ready access to claims against, or liens, or other legal interests in aircraft. Philko Aviation, Inc. v. Shacket, supra. The system is designed to give notice of security interests in aircraft. Cummins v. Sky Cruisers, Inc., 59 Cal.App.3d 983, 130 Cal.Rptr. 897 (1976).

However, registration of an aircraft under 49 App.U.S.C. § 1401 is conclusive evidence only of the aircraft's "nationality." State Department of Transportation v. Greene, 158 N.J.Super. 124, 385 A.2d 896 (1978). It is not "evidence of ownership of aircraft in any proceeding in which such ownership by a particular person is, or may be, in issue." 49 App.U.S.C. § 1401(f) (1982 Ed.); ⁷ see...