Rivera v. DEPARTMENT OF LABOR AND INDUS.

• Decision Date: 26 December 2002
• Docket Number: No. 24827.,24827.
• Citation: 100 Haw. 348,60 P.3d 298
• Parties: Alphonso D. RIVERA, Plaintiff-Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Employment Security Division, AOAO Evergreen Terrace c/o Certified Management, Inc., Defendants-Appellees, and Doe Entities 1-10, Defendants.
• Court: Hawaii Supreme Court

60 P.3d 298

100 Haw. 348

Alphonso D. RIVERA, Plaintiff-Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Employment Security Division, AOAO Evergreen Terrace c/o Certified Management, Inc., Defendants-Appellees, and Doe Entities 1-10, Defendants.

No. 24827.

Supreme Court of Hawai`i.

December 26, 2002.

Carl M. Varady, Honolulu, for Plaintiff-Appellant, Alfonso D. Rivera, Jr.

Li-Ann Yamashiro, Deputy Attorney General, for Defendant-Appellee, Department of Labor and Industrial Relations.

Philip S. Uesato, of Ayabe Chong Nishimoto Sia & Nakamura, Honolulu, for Defendant-Appellee, AOAO Evergreen Terrace.

MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ., and ACOBA, J., dissenting.

Opinion of the Court by RAMIL, J.

Plaintiff-Appellant Alphonso D. Rivera appeals in this secondary appeal from a circuit court judgment dismissing his agency appeal. Rivera filed an agency appeal with the circuit court¹ pursuant to Hawai`i Revised Statutes ("HRS") § 91-14, appealing a decision of the Department of Labor and Industrial Relations ("DILR") disqualifying Rivera from unemployment benefits because he quit his employment with AOAO Evergreen Terrace ("Evergreen") without good cause. The circuit court dismissed the appeal as untimely. Judgment was entered on December 11, 2001. Notice of appeal from the judgment was filed timely by Rivera on January 9, 2002, within the thirty-day period for appeal prescribed by Hawai`i Rules of Appellate Procedure ("HRAP") 4(a)(1). Oral argument was heard before this court on November 13, 2002. Upon carefully reviewing the record and briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we affirm the circuit court's order and judgment dismissing Rivera's agency appeal.

I. BACKGROUND

Rivera filed a claim for Unemployment Insurance benefits. The Unemployment Insurance Division, DLIR, determined that Rivera was disqualified for benefits for quitting his employment without good cause.

Rivera appealed from that determination to the Employment Security Appeals Office ("Appeals Office"). A hearing was held by the Appeals Office on June 21, 2001, at which Rivera was represented by counsel. The Appeals Office mailed Decision No. 0101196 to Rivera on July 5, 2001, affirming the Department's determination. A document entitled "Important—Further Appeal Rights" was attached to Decision No. 0101196, informing the parties of their rights to request reopening of the case or to appeal, and stating that the appeal must be filed within 30 days from the mailing or delivery date of the decision. Rivera, through counsel, filed his Notice of Appeal to the circuit court on August 7, 2001, the thirty-third day after the mailing of the Appeals Office decision. The circuit court dismissed the appeal as untimely.

II. STANDARD OF REVIEW

The question of whether a court has jurisdiction over a case is a question of law that we review under the right/wrong standard. State v. Ontiveros, 82 Hawai`i 446, 448, 923 P.2d 388, 390 (1996).

III. DISCUSSION

Appeals from the decisions of the Appeals Office are authorized by HRS § 383-41. That statute provides that judicial review of a decision of the referee shall be instituted in the manner provided in HRS chapter 91. 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 . . . .

(Emphasis added.) The statute is mandatory with respect to commencement of review proceedings within the time prescribed.

The "rules of court" applicable in this appeal are Hawai`i Rules of Civil Procedure ("HRCP") Rules 5(b)(3), 6(a), 6(e), and 72(b). HRCP Rule 72(b), like HRS section 91-14(b), requires filing of an appeal within 30 days.²

HRCP Rule 5(b)(3), states that service is complete upon mailing. When service is by mail, as in the instant case, HRCP Rule 6(e) operates to provide the parties two additional days to file a notice of appeal:

(e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 2 days shall be added to the prescribed period.

(Emphasis added.) HRCP Rule 6(a) provides relief when the last day to take the prescribed action falls on a weekend or holiday:

(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday or a holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. As used in this rule, "holiday" includes any day designated as such pursuant to section 8-1 of the Hawai`i Revised Statutes.

(Emphasis added.)

With the foregoing rules in mind, we now turn to the facts of this case. Here, the decision from which appeal was sought, Appeals Office Decision No. 0101196, was mailed on July 5, 2001. The thirtieth day thereafter was Saturday, August 4, 2001. Because the Appeals Office decision was served by mail, HRCP Rule 6(e) is triggered. Thus, the party receiving the mail is provided two additional days to file the notice of appeal. See HRCP Rule 6(e) ("2 days shall be added to the prescribed period."); Cf. Price v. Zoning Board of Appeals, 77 Hawai`i 168, 171, 883 P.2d 629, 632 (1994) ("In computing the period of time prescribed by HRCP 72, the day of the act after which the designated period of time begins to run is excluded." HRCP 6(a) (1990). The [agency] mailed its final decision and order on August 5, 1991. Under HRCP 5(b) (1990), service by mail is a permissible method of service and is "complete upon mailing." Thus, the statutory thirty day period within which the Prices were required to file a notice of appeal to the circuit court commenced on August 6, 1991, the day after mailing. Pursuant to HRCP 6(e) (1990), the Prices were entitled to add two days to this prescribed period, by virtue of the [agency's] effecting service by mail. Thus, the Prices were accorded thirty-two days, commencing on August 6, 1991, within which to file their notice of appeal."). The thirty-second day after service was Monday, August 6, 2001. Rivera filed the notice of appeal to the circuit court on Tuesday, August 7, 2001. The notice of appeal was filed a day late, which is beyond the prescribed period. Accordingly, we hold that the notice of appeal was untimely.

Rivera contends that the appeal was timely because HRCP Rule 6(a) would allow him until Monday, August 6, 2001, and since the Appeals Office decision was mailed, HRCP Rule 6(e) would further extend the period by two days to Wednesday, August 8, 2001, allowing him a total of thirty-four days to appeal. His notice of appeal was filed on the thirty-third day after service of the Appeals Office decision.

Rivera's contention is based upon his reliance on the opinion of the Intermediate Court of Appeals (ICA) in Korean Buddhist Dae Won Sa Temple v. Zoning Board of Appeals, 9 Haw.App. 298, 837 P.2d 311, recon. denied, 9 Haw.App. 659, 833 P.2d 98 (1992). Rivera extrapolates from Korean Buddhist Temple that, in assessing the time for the appeal in this case, HRCP Rule 6 mandates: (1) that a responsive action be taken the first non-holiday weekday after a Saturday, Sunday, or holiday; and (2) that, where service is by mail, two additional days are added to the foregoing. In Korean Buddhist Temple, the ICA applied the rules at issue as follow:

In the instant case, the certified copy of the [agency's] Order was mailed on January 12, 1990. The thirtieth day after mailing was February 11, 1990, which, however, was a Sunday. Therefore, the appeal period was extended to Monday, February 12, 1990. Rule 6(a), HRCP. Under Rule 6(e), HRCP, Temple was required to file the notice of appeal no later than February 14, 1990. The notice of appeal was filed on February 16, 1990, two days late.

9 Haw.App. at 305-06, 837 P.2d at 315. Because the dispositive issue in Korean Buddhist Temple was not the application of HRCP Rules 6(a) and 6(e), but, rather, the determination of whether the mailing or the receipt of the agency's order triggered the running of the time for appeal, the language upon which Rivera relies is dictum.³ Appellant Rivera's proposed application of HRCP Rules 6(a) and 6(e) flies in the face of the plain language of the rules. HRCP Rule 6(e) was put in place to alleviate any unfairness that might be caused by transmission by mail.⁴ The plain language of the rule requires that the two days be added to the "prescribed period." The period prescribed by HRS § 91-14(b) is thirty days. Accordingly, under the facts of the instant case, the prescribed period is thirty days and the time allowed by the rules is an additional two days by operation of HRCP Rule 6(e), for a total of thirty-two days. Only when the last day of the allowed period falls on a Saturday, Sunday, or a holiday will HRCP Rule 6(a) become operable.

Rivera also contends that the circuit court was persuaded by Appellees to disregard Korean Buddhist Temple, in favor of dicta found in Waikiki Marketplace Investment Co. v. Chair of Zoning Board of Appeals, 86 Hawai`i 343, 949 P.2d 183 (App.1997). In Waikiki Marketplace, the ICA considered one issue: how to determine when an administrative decision had been "served" when there was no proof of mailing in the agency's file. The ICA expressly considered Korean Buddhist Temple, citing,...