Ramos v. Estate of Elsenbach

• Decision Date: 22 October 2015
• Docket Number: No. CAAP–14–0000897.,CAAP–14–0000897.
• Citation: 136 Hawai'i 357,361 P.3d 1260
• Parties: Ronda L. RAMOS, Petitioner–Appellant, v. The ESTATE OF Peter Joseph ELSENBACH, Elsenbach Children's Trust, and Christopher Elsenbach, Respondents–Appellees.
• Court: Hawaii Court of Appeals

136 Hawai'i 357

361 P.3d 1260

Ronda L. RAMOS, Petitioner–Appellant,

v.The ESTATE OF Peter Joseph ELSENBACH, Elsenbach Children's Trust, and Christopher Elsenbach, Respondents–Appellees.

No. CAAP–14–0000897.

Intermediate Court of Appeals of Hawai‘i.

Oct. 22, 2015.

Ronda L. Ramos, on the briefs, Petitioner–Appellant pro se.

Kenn N. Kojima and Edward J. Bybee, Honolulu, separately, on the briefs, for Respondents–Appellees.

FOLEY, Presiding J., and LEONARD, J. with REIFURTH, J. dissenting Separately.

Opinion of the Court by FOLEY, J.

Petitioner–Appellant pro se Ronda L. Ramos (Ramos ) appeals from the "Order Dismissing With Prejudice Claimant's Petition For Relief And Allowance Of Claims Filed October 22, 2013" (Order ), entered on May 22, 2014 in the Circuit of the Third Circuit¹ (circuit court ).

On appeal, Ramos contends the circuit court erred by

(1) denying "Claimant's Petition for Relief and Allowance of Claims" (Petition ) based on a finding that it lacked jurisdiction to grant the Petition;

(2) failing to consider and apply Hawai‘i Probate Rules (HPR ) 3 and 10 when dismissing Ramos' Petition; and

(3) requiring Ramos to commence a proceeding before the appointment of a personal representation.

I. BACKGROUND

On April 15, April 22, and April 29, 2013, Respondents–Appellees Estate of Peter Joseph Elsenbach, Elsenbach Children's Trust, and Christopher Elsenbach (collectively, Respondents ), published "Notice to Creditors of Peter Joseph Elsenbach" in the West Hawaii Today newspaper (Notice to Creditors ). The Notice to Creditors stated, in pertinent part, "All creditors of the above-name decedent [Peter Joseph Elsenbach] and/or trust are hereby notified to present their claim ... within four (4) months from the date of the first publication of this notice, or they will be forever barred."

On August 15, 2013, Ramos prepared and delivered four, "Creditor's Claims" to Respondents.

In separate letters dated and mailed on August 21, 2013, Respondents' attorney notified Ramos that all four of her claims dated August 15, 2013 were disallowed (disallowance letters ). The disallowance letters indicated that "if [she] wish[ed] to pursue the claim, [she] must petition the probate court or commence a proceeding for allowance of the claim no later than sixty days after the mailing of this letter" and that "[f]ailure to take action within [the] sixty-day period will bar [her] from future action to enforce [her] claim."

On October 22, 2013, Ramos filed her Petition. Ramos' Petition sought to claim the following from Respondents:

A) $500.00 to reimburse money borrowed from a friend to buy back some of my personal property that was being sold at an estate sale by the new owners of my previous marital residence.

B) $360,000.00 for my providing 24 hour per day care giving services for nine (9) years to Decedent that he medically needed, but he refused to hire a nurse to provide at least the nighttime services when he required his air mask to be put back on him every 45 to 60 minutes from 8PM to 7AM on every single night of the week, and I saved his life three (3) times in the nine (9) years (Once he was totally flat lined).

C) $344,500.00 for my personal property that consisted of approximately 1/3rd I brought into our marriage and approximately 1/3rd I earned and brought into our nine (9) year pre-marital relationship and approximately 1/3rd that were gifts to me from both my friends and Decedent (this was part of the prior divorce court property return orders).

D) $187,400.00 for my one-half of the joint property provision of the Divorce Decree, and $4,757,018.76 comprises my one-half of the joint financial asset provision of the Divorce Decree (This amount is provided that the family releases all interest they may have in the Delrow Family Trust that I care take [sic] for the trustee, since Decedent committed fraud by borrowing me my [sic] own money and stating it was his money and that I owed him for it).

On December 2, 2013, Respondents filed their objection to Ramos' Petition.

The circuit court held hearings on Ramos' Petition on January 6, 2014 and February 10, 2014.² On May 22, 2014, the circuit court entered its Order, finding that it did not have jurisdiction over Ramos' Petition because her Petition was untimely. The circuit court dismissed Ramos' Petition with prejudice. On June 20, 2014, Ramos filed her notice of appeal.

II. STANDARD OF REVIEW

"The existence of jurisdiction is a question of law that [the appellate court reviews] de novo under the right/wrong standard." Captain Andy's Sailing, Inc. v. Dep't of Land and Natural Res., 113 Hawai‘i 184, 192, 150 P.3d 833, 841 (2006) (citation and internal quotation marks omitted).

III. DISCUSSION

Ramos contends the circuit court erred in finding that it lacked jurisdiction to grant Ramos' Petition. The circuit court found that, under Hawaii Revised Statute (HRS ) 560:3–806(a) (2006 Repl.), it did not have jurisdiction over Ramos' Petition because she failed to file her Petition within sixty days from when Respondents mailed their disallowance letters.

HRS § 560:3–806(a) provides:

§ 560:3–806 Allowance of claims. (a) As to claims presented in the manner described in section 560:3–804 within the time limit prescribed in section 560:3–803, the personal representative may mail a notice to any claimant stating that the claim has been disallowed.... Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than sixty days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. If the notice does not warn the claimant of the impending sixty-day bar, then the claim shall be barred if no petition for allowance or other proceeding on the claim has been brought within eighteen months of the date of the decedent's death.

(Emphasis added.)

Respondents mailed their disallowance letters to Ramos on August 21, 2013. The disallowance letters specifically indicated that "if [she] wish[ed] to pursue the claim, [she] must petition the probate court or commence a proceeding for allowance of the claim no later than sixty days after the mailing of this letter" and warned that "[f]ailure to take action within [the] sixty-day period will bar [her] from future action to enforce [her] claim." Thus, HRS § 560:3–806(a) required Ramos to file her Petition in the circuit court within sixty days.

Computation of time in probate proceedings are governed by HPR Rule 10.³ Under HPR Rule 10(d), "[w]henever a person has the right or is required to act within a prescribed period after the service of a notice or other paper upon the person and the notice or paper is served upon the person by mail, two days shall be added to the prescribed period." (Emphasis added.) The commentary to HPR Rule 10(d) indicates that "[t]his rule conforms the timing requirements with respect to mailings to other court rules."

In Rivera v. Dep't of Labor & Indus. Relations, 100 Hawai‘i 348, 350, 60 P.3d 298, 300 (2002), the Hawai‘i Supreme Court applied the two-day mail rule provided in Hawai‘i Rules of Civil Procedure (HRCP ) Rule 6(e) to compute the prescribed period for appealing an agency's decision under HRS § 91–14(b) (2012 Repl.). " HRS § 91–14(b) provides in relevant part: ‘(b) ... proceedings for review shall be instituted in the circuit court within thirty days ... after service of the certified copy of the final decision and order of the agency pursuant to rule of court [.]" Rivera, 100 Hawai‘i at 349, 60 P.3d at 299. The supreme court noted that "[t]he statute is mandatory with respect to commencement of review proceedings within the time prescribed." Id. Because HRCP Rule 5(b)(3), provides that service is complete upon mailing, the supreme court held that HRCP Rule 6(e) operated to provide the parties with two additional days to file a notice of appeal. Id. The supreme court reasoned that the two day mail rule is meant to "alleviate any unfairness that might be caused by transmission by mail."⁴ Id. at 351, 60 P.3d at 301.

Similarly, this court has supported use of the two-day mail rule. In In re Brandon, 113 Hawai‘i 154, 158, 149 P.3d 806, 810 (2006) this court utilized Hawaii Administrative Rules (HAR ) § 6–61–21(e) (2005), which added two days to the prescribed period for filing a motion for reconsideration or rehearing under HRS § 271–32(b) (2007 Repl.), to determine that appellant's motion for reconsideration of a Public Utility Commission (PUC ) order was untimely. "When an aggrieved party intends to appeal from a PUC order, ‘[t]he motion for reconsideration or a rehearing shall be filed within ten days after the decision and order has been served[.]’ " In re Brandon, 113 Hawai‘i at 157, 149 P.3d at 809 (citing HRS § 271–32(b) ); see also HAR § 6–61–137 (2005) ("The motion shall be filed within ten days after the decision or order is served upon the party[.]"). Because service of the PUC order was effective on the date when "the document is properly stamped, addressed, and mailed to the last known address of the party on file with the commission or to its attorney [,]" the two-day mail rule, under HAR § 6–61–21(e), applied to give the aggrieved party two additional days to file a motion for reconsideration of the order. In re Brandon, at 157–58, 149 P.3d at 809–10 (brackets omitted).

In Waikiki Marketplace Inv. Co. v. Chair of Zoning Bd. of Appeals of City & Cnty. of Honolulu, 86 Hawai‘i 343, 349, 949 P.2d 183, 189 (App.1997), this court determined how to compute the prescribed time for appealing a Department of Land Utilization (DLU ) Director's decision to the Zoning Board of Appeal (ZBA ), pursuant to ZBA Rule 3.2. A "written petition appealing an action of the [DLU] Director must be received at the [DLU] within 30 days of the date of mailing or personal service of the [DLU]...