Simpson v. Department of Land and Natural Resources, State of Hawaii, 13756

• Decision Date: 09 May 1990
• Docket Number: No. 13756,13756
• Parties: William SIMPSON, dba Tropical Princess Charters, Petitioner-Appellant, v. DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAII, Respondent-Appellee
• Court: Hawaii Court of Appeals

Page 1267

791 P.2d 1267

8 Haw.App. 16

William SIMPSON, dba Tropical Princess Charters, Petitioner-Appellant, v. DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAII Respondent-Appellee.

No. 13756.

Intermediate Court of Appeals of Hawai'i

May 9, 1990.

Syllabus by the Court

1. Appellate courts are obligated to insure that they have jurisdiction to hear and determine each case.

2. If a post-judgment motion is served and filed within ten days of the entry of judgment and calls into question the correctness of the judgment, it should be treated as a motion to alter or amend a judgment under Hawaii Rules of Civil Procedure (HRCP) Rule 59(e), regardless of how the motion is formally styled.

3. Where the movant serves and files, within ten days of entry of the circuit court's final order, a motion for reconsideration of that order pursuant to HRCP Rule 60 which calls into question the correctness of the order, the motion is construed as one brought under HRCP Rule 59(e). The motion therefore tolls the 30-day limitations period to take an appeal.

4. Under the Hawaii Administrative Procedure Act, a person aggrieved by a final decision or order of an administrative agency in a contested case is entitled to a judicial review of such decision or order. Hawaii Revised Statutes HRS § 91-14(a). A "contested case" is defined as "a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing." HRS § 91-1(5).

5. Although Hawaii case law holds that a public hearing conducted pursuant to public notice is a contested case and that participation in such hearing by a person aggrieved by the agency decision gives that person a right to judicial review, where the agency has promulgated rules of practice and procedure regarding contested case proceedings, adherence to those rules is required.

6. An agency should inform an applicant or litigant of his right under its rules to request a "contested case hearing" and the time within which such request must be made, and impress on him the consequence of the failure to make such a request.

Albert S. Albrechtson (Richard L. Rost with him on the briefs; Richard L. Rost Attorney at Law, A Law Corp., of counsel), Wailuku, Maui, for petitioner-appellant.

Edwin P. Watson, Deputy Atty. Gen. (Johnson H. Wong, Deputy Atty. Gen., with him on the briefs), Honolulu, for respondent-appellee.

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

TANAKA, Judge.

Petitioner-appellant William Simpson (Simpson), doing business as Tropical Princess Charters, seeks a review of the circuit court's dismissal of his appeal from the decision of the Board of Land and Natural Resources (Board) ¹ denying his application for commercial mooring off Kahana, Maui, and from the denial of his motion for reconsideration. We hold that the appeal was not from a "contested case" within the meaning of the "Rules of Practice and Procedure" (Rules) of respondent-appellee Department of Land and Natural Resources (DLNR) of the State of Hawaii (State). However, the minimum requirements of fairness required the DLNR to inform Simpson that under the Rules he had a right to request a "contested case hearing." Therefore, we reverse and remand to the circuit court with a direction to remand to the DLNR for a contested case hearing.

I.

The area offshore of Kahana, Maui, is a conservation area under the jurisdiction of the DLNR. ² Simpson is the owner of a vessel named "Tropical Princess," a 40-foot trimaran sailboat (vessel). Since May 1987, Simpson had been using an underwater mooring block, previously placed by some other party, located off Kahana to moor the vessel. In early 1988, Simpson learned that it was illegal to moor, rather than anchor, a vessel in areas other than established mooring areas under the jurisdiction of the State Department of Transportation.

On February 22, 1988, Simpson filed a "Conservation District Use Application" (Application) for an after-the-fact commercial boat mooring permit at Kahana with the DLNR. By a letter dated June 20, 1988, the DLNR notified Simpson that a public hearing on his Application would be held by the Board on July 7, 1988. Simpson was present and participated in the July 7 public hearing.

The Board's final decision on the Application was scheduled for its August 12, 1988 meeting in Hilo, Hawaii. At that meeting, the Board deferred its action on the Application until its September 9, 1988 meeting on Maui.

At the September 9 meeting, the Board denied Simpson's Application. By letter dated September 21, 1988, the DLNR notified Simpson of the Board's denial of his Application. The letter also advised Simpson that he was assessed "a fine of $500.00 pursuant to Chapter 183, Section 41(e), HRS, for the unauthorized use of the Conservation District[.]" Record at 9.

In the interim, on September 14, 1988, Simpson wrote a letter to the Governor of the State, stating that a competitor, Sea Sails, had been granted a mooring permit and fined only $100. Simpson complained of the "tremendous injustice" dealt to him by the DLNR and "those involved with the underhanded tactics used against [his] company." Item 49 of DLNR's Record. Responding for the Governor, the chairperson of the Board indicated in his September 22, 1988 letter to Simpson that "the courts are now the appropriate place to express your concern." Id.

On October 21, 1988, Simpson filed a notice of appeal in the circuit court. On December 12, 1988, the DLNR filed a motion to dismiss the appeal on the ground that the circuit court lacked subject matter jurisdiction. The DLNR reasoned that (1) Simpson had not requested a "contested case hearing," as required by § 13-1-29 ³ of its Rules, (2) the Board therefore did not hold a "contested case hearing"; and (3) consequently, there was no final decision from a "contested case" for judicial review before the circuit court. At the January 19, 1988 hearing, the court orally granted DLNR's motion.

On January 23, 1989, Simpson sent a letter to the Board requesting a "contested case hearing." By letter dated January 30, 1989, Simpson's request was denied on the ground that it was untimely.

On January 31, 1989, a written order granting DLNR's motion to dismiss was filed. On February 9, 1989, Simpson served and filed a motion for reconsideration pursuant to Hawaii Rules of Civil Procedure (HRCP) Rule 60. The circuit court denied the motion on February 28, 1989. Simpson filed his notice of appeal on March 29, 1989.

II.

"[A]ppellate courts are under an obligation to insure that they have jurisdiction to hear and determine each case." State v. Moniz, 69 Haw. 370, 372, 742 P.2d 373, 375 (1987). We therefore, sua sponte, raise the issue of appellate jurisdiction in this case.

Hawaii Rules of Appellate Procedure (HRAP) Rule 4(a)(1) requires a notice of appeal to be filed "within 30 days after the date of entry of the judgment or order appealed from." HRAP Rule 4(a)(4) provides, however, that if certain timely post-judgment motions are filed, the time for appeal shall run from the entry of the order disposing of such motions.

Simpson's notice of appeal was filed on March 29, 1989, more than 30 days after the filing of the dismissal order entered on January 31, 1989. It is therefore untimely unless Simpson's February 9, 1989 motion for reconsideration, which was denied on February 28, 1989, was a tolling motion under HRAP Rule 4(a)(4). Thus, the issue is whether Simpson's motion for reconsideration was a tolling motion. Our answer is yes.

Under HRAP Rule 4(a)(4), a HRCP Rule 59(e) motion to alter or amend a judgment is a tolling motion. We have held that a motion for reconsideration made under HRCP Rule 59 "is permissible under Rule 59(e) as a motion to alter or amend judgment." K.M. Young & Assocs., Inc. v. Cieslik, 4 Haw.App. 657, 666, 675 P.2d 793, 800 (1983). However, a motion under HRCP Rule 60 is not a tolling motion under HRAP Rule 4(a)(4).

In the case at bar, Simpson designated his motion as one for "reconsideration" of the circuit court's January 31, 1989 order granting DLNR's motion to dismiss. However, the motion was made pursuant to HRCP Rule 60, rather than HRCP Rule 59(e). The crucial question then is whether Simpson's motion may be treated as a motion under HRCP Rule 59(e), despite his reliance on HRCP Rule 60. Our answer is yes.

In order to avoid confusion, and to prevent harsh results for unwary parties, the courts have generally held that, regardless of its label, any motion made within ten days of entry of judgment which seeks a substantive change in the judgment will be considered a Rule 59(e) motion which suspends the finality of the judgment and tolls the time to appeal.

6A J. Moore, J. Lucas & G. Grotheer, Jr., Moore's Federal Practice, p 59.12, at 59-265 (2d ed. 1989). In Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415 (9th Cir.1984), where a motion for reconsideration did not state the particular rule under which it was filed, the court held that if the motion is served within ten days of judgment and could have been brought under Rule 59(e), it tolls the time for appeal.

In Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37 (2d Cir.1982), plaintiffs filed a timely motion for reconsideration of the district court's dismissal of their complaint pursuant to Rule 60(b). The court of appeals treated the motion as one based on Rule 59(e) stating:

Notwithstanding a plaintiff's own reliance on Rule 60(b), where a post-judgment motion is timely filed and "calls into question the correctness of that judgment it should be treated as a motion under Rule 59(e), however it may be formally styled."

Id. at 41 (quoting Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir.1978)). In Dove, plaintiff styled his post-judgment motion as one "to set aside the order of dismissal" pursuant to Rule 60(b).

Here, Simpson's motion for reconsideration was served and filed...