Eckard Brandes, Inc. v. Dep't of Labor & Indus. Relations

• Decision Date: 20 April 2020
• Docket Number: SCWC-19-0000095
• Citation: 463 P.3d 1011
• Parties: ECKARD BRANDES, INC., Respondent/Appellant-Appellee, v. DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Respondent/Appellee-Appellee, and Scott Foyt, Petitioner/Intervenor-Appellant.
• Court: Hawaii Supreme Court

463 P.3d 1011

ECKARD BRANDES, INC., Respondent/Appellant-Appellee,

v. DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Respondent/Appellee-Appellee,andScott Foyt, Petitioner/Intervenor-Appellant.

SCWC-19-0000095

Supreme Court of Hawai‘i.

APRIL 20, 2020

As Corrected APRIL 27, 2020

Shawn A. Luiz, Honolulu, for petitioner

Richard M. Rand, Honolulu, for respondent

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

The Intermediate Court of Appeals ("ICA") dismissed this appeal on the grounds that appellate jurisdiction was lacking. The ICA ruled that the Circuit Court of the First Circuit ("circuit court")¹ abused its discretion in finding the existence of "excusable neglect" under Hawai‘i Rules of Appellate Procedure ("HRAP") Rule 4(a)(4)(B) (2016) to allow an extension of time to file a notice of appeal.

We hold that the circuit court did not abuse its discretion in determining that "excusable neglect" existed to grant Petitioner Scott Foyt's ("Foyt") motion for extension of time to file a notice of appeal, and we therefore vacate the ICA's May 21, 2019 "Order Dismissing Appellate Court Case Number CAAP-19-0000095 for Lack of Appellate Jurisdiction" and remand this case to the ICA to address the merits of the appeal. Further, in Enos v. Pac. Transfer & Warehouse, 80 Hawai‘i 345, 910 P.2d 116 (1996), this court adopted definitions of "good cause" as factors beyond the movant's control and "excusable neglect" as factors within the movant's control for purposes of former HRAP Rule 4(a)(5). Former HRAP Rule 4(a)(5), however, allowed for extensions based on either standard, whether filed within the first thirty or next thirty days. The division of HRAP Rule 4(a)(5) into two subsections reflected in the current HRAP Rule 4(a)(4)(A) and (B), which now allow for extensions within the first thirty days only if "good cause" exists or within the next thirty days only if "excusable neglect" exists, has resulted in dismissals of appeals in contravention of "the policy of law ... favor[ing] dispositions of litigation on the merits." Shasteen, Inc. v. Hilton Hawaiian Village Joint Venture, 79 Hawai‘i 103, 107, 899 P.2d 386, 390 (1995). We therefore clarify the terms.

II. Background

A. Factual Summary

Eckard Brandes, Inc. ("Eckard Brandes") is a contractor that performs sewer pipe cleaning, inspection, and repair work, including on governmental public works projects. Eckard Brandes employees are paid at different rates for work performed based on differing job classifications. Foyt was employed by Eckard Brandes from May 2000 to July 2013. During his employment, Foyt operated different kinds of trucks on various jobs, including projects for the State of Hawai‘i ("State") and the City and County of Honolulu ("City"). Chapter 104 of the Hawai‘i Revised Statutes ("HRS") includes provisions governing wage requirements for certain kinds of work performed for the State and City.

B. Procedural Background

1. Notice of Violation

In 2013, Foyt filed a complaint disputing his wages on various State and/or City jobs. After an investigation conducted by the Wage Standards Division of the Department of Labor and Industrial Relations ("DLIR"), a May 4, 2017 Notice of Violation was sent to Eckard Brandes. The notice alleged violations of HRS Chapter 104,² stating in relevant part as follows:

Prevailing Wages

Section 104-2(b), HRS, requires that every laborer or mechanic performing work on the job site for the construction of any public work project shall be paid no less than prevailing wages. WSD [Wage Standard Division]'s investigation found that an employee was classified as a Laborer I for some hours and Laborer II for other hours, but the employee should have been classified as a Truck Driver Tandem Dump Truck, over 8 cu. yds.; Water Truck (over 2,000 gallons) for all hours.

Overtime

Section 104-2(c), HRS, requires the payment of overtime on Saturday, Sunday, a legal State holiday, or for time worked in excess of eight hours on any other day. WSD found that an employee was paid the straight-time rate for hours exceeding eight hours per day.

Certified Payrolls and Recordkeeping

Section 104-3(a), HRS, requires a certified copy of all payrolls to be submitted weekly to the contracting agency. The certification shall affirm that the payrolls are correct and complete, that the wage rates are not less than the applicable rates contained in the Wage Rate Schedule, and that the classifications conform with the work the laborer or mechanic performed. WSD found the following:

The employee who was classified as a Laborer I for some hours and Laborer II for other hours, should have been classified as a Truck Driver Tandem Dump Truck, over 8 cu.yds.; Water Truck (over 2,000 gallons).

The employer classified employees as "Laborer" , rather than "Laborer I" or "Laborer II" .

Pursuant to Section 104-23(b), HRS, this Notification of Violation may be appealed by filing a written notice of appeal with the Director within twenty (20) days after the date of this notification.

The balance due on the Wage and Penalty Assessment form should be paid by May 24, 2017, to avoid further legal action, including immediate suspension from performing work on any State or county public works project. ...

Eckard Brandes was assessed back wages due and a 10% penalty, for a total assessment of $60,131.12.

2. Request for Hearing

On May 16, 2017, Eckard Brandes filed an appeal of the Notice of Violation with the Director of the DLIR pursuant to HRS § 104-23(b) and requested a hearing pursuant to HRS § 104-23(c).³ The Notice of Hearing listed Eckard Brandes as the appellant and the DLIR as the appellee. Foyt was a witness at the hearing, but he was not named as a party. The hearing was held on August 11 and 14, 2017. On December 6, 2017, a hearing officer issued a detailed Decision and Order affirming the Notice of Violation.

3. Appeal to the Circuit Court

On January 4, 2018, Eckard Brandes filed a Notice of Agency Appeal. Again, the only parties were Eckard Brandes as appellant and DLIR as appellee. Foyt was not listed on the certificate of service of the notice of agency appeal.

Following briefing, another circuit court judge⁴ held oral argument, and on December 19, 2018, issued an order reversing the Decision and Order, concluding that a July 2005 letter from a former DLIR Director⁵ established that sewer line cleaning work was not subject to HRS chapter 104.

The circuit court's order stated:

The Court finds that Appellee was bound by the July 2005 letter, from then Director Nelson Befitel, that the work of sewer line cleaning was not subject to Chapter 104 HRS and therefore, the work performed by the Claimant at the time, was not subject to Chapter 104 HRS.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Decision and Order of the Department of Labor and Industrial Relations, Wage Standards Division, Hearings Branch, dated December 6, 2017, is reversed.

Pursuant to Rule 72(k) of the Hawaii Rules of Civil Procedure, the clerk of the Court shall notify the governmental official or body concerned of the disposition of this appeal. The Court further orders that the agency take action consistent with the Court's ruling.

(Emphasis in the original.) Final judgment was entered the same day.

4. Foyt's Motion to Intervene

More than one month after the December 19, 2018 final judgment, on January 25, 2019, Foyt, through counsel, filed two motions in the circuit court case. The first was a motion for leave to intervene for the sole purpose of appealing the December 19, 2018 final judgment. The second was a motion to extend the time to file a notice of appeal from the December 19, 2018 final judgment. At the time these motions were filed, the thirty-day period under HRAP Rule 4(a) to file an appeal from the December 19, 2018 judgment had already expired.⁶

In filings regarding these motions, counsel for Foyt represented Foyt had not received a copy of the final judgment until after Christmas of 2018, had then spent several weeks searching for an attorney, and that counsel had been officially retained on January 17, 2019. He represented that the day before he had been retained, he had spoken with counsel for DLIR, who informed him that DLIR would not be appealing the circuit court's final judgment and that DLIR would not be willing to file a motion to extend time to file a notice of appeal, but would stipulate to an extension of time for Foyt to appeal. Counsel for Foyt also declared he had not heard back from Eckard Brandes' counsel as to whether the company would also be willing to so stipulate. Counsel also pointed out that Foyt was directly affected by the final judgment disallowing the additional wages that DLIR had ordered Eckard Brandes to pay to him.

By orders entered on February 13, 2019, the circuit court granted both motions. The order granting Foyt's motion to extend the time to file a notice of appeal from the December 19, 2018 judgment for an additional thirty days stated that the circuit court's decision was based on counsel's arguments and "excusable neglect."

5. Appeal to the ICA

Two days later, on February 15, 2019, Foyt filed a notice of appeal from the circuit court's December 19, 2018 final judgment to the ICA. After the record on appeal was filed and before briefing, Foyt's counsel filed a Jurisdictional Statement on April 22, 2019, asserting appellate jurisdiction pursuant to HRAP Rule 4. On April 25, 2019, Eckard Brandes filed a Statement Contesting Jurisdiction, asserting that Foyt failed to establish excusable neglect.

On May 21, 2019, the ICA filed an order dismissing the appeal for lack of appellate jurisdiction, holding the appeal untimely under HRAP Rule 4(a)(1) because the record did not establish excusable neglect to extend the time to file the notice of appeal. The ICA noted that the initial thirty-day time period under HRAP Rule 4(a)(1) for filing a notice of appeal from the December 19, 2018 final judgment was Friday, ...