No Motion, No Good Cause, No Jurisdiction (Even if you do Rely on the Order Extending time to file)

Cabral v. State (ICA July 28, 2011)
Background. The Cabrals and other plaintiffs sued Joni Scott and the State of Hawai'i. The lawsuit stems from a fatal car accident on Highway 11 on the Big Island. The plaintiffs settled with Scott, but proceeded to a bench trial against the State. The circuit court entered judgment in favor of the State and dismissed all remaining claims on April 20, 2007. Ten days later, the plaintiffs filed a motion for reconsideration. The circuit court denied the motion on June 7, 2007.
On July 6, 2007, the parties submitted a one-page stipulation for a two-week extension to file a notice of appeal. The circuit court approved and ordered the extension. The stipulation did not assert any of the grounds for the extension and the circuit court approved the stipulation without making any findings. On July 18, 2007, the plaintiffs presented an ex-parte motion to extend time for filing a notice of appeal on the grounds that the parties were in settlement negotiations and a motion to withdraw was scheduled to be heard on September 5. On July 23--the last day of the two-week extension--the plaintiffs filed their notice of appeal. On September 7, 2007, the circuit court signed and filed the order granting the ex-parte motion and extended the time to file to August 8, 2007. The ICA directed the parties to briefs regarding appellate jurisdiction.
Appellate Jurisdiction 101: Timely Filing a Notice of Appeal. "It is axiomatic that [courts of appeal] are under an obligation to ensure that [they have] jurisdiction to hear and determine each case and to dismiss an appeal on [their] own where [they] conclude [they] lack jurisdiction." Brooks v. Dana Nance & Co., 113 Hawai'i 406, 412, 153 P.3d 1091, 1097 (2007). An untimely notice of appeal requires a dismissal for lack of jurisdiction "that can neither be waived by the parties nor disregarded by the court in the exercise of juridical discretion." Wong v. Wong, 79 Hawai'i 26, 29, 897 P.2d 953, 956 (1995).
"An appeal shall be taken in the manner and within the time provided by the rules of the court." HRS § 641-1(c). In civil cases, a notice of appeal must be filed within thirty days after entry of an appealable final judgment. Hawai'i Rules of Appellate Procedure (HRAP) Rule 4(a)(1). However, the trial court or agency can extend the time for filing a notice of appeal "upon a showing of good cause[.]" HRAP Rule 4(a)(4)(A). A party may file an ex-parte motion for extension and no "extension shall exceed 30 days[.]" Id. These rules are inflexible because "no court or judge or justice is authorized to change the jurisdictional requirements" in HRAP Rule 4. HRAP Rule 26(b).
The Tricky Thirty-day Clock . . . Here, the ICA first identified the final appealable order. When a case involves multiple claims, the judgment is not considered a "final judgment" unless the judgment, "on its face, show[s] finality as to all claims against all parties." Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i 115, 119-20, 869 P.2d 1334, 1338-39 (1994). In this case, the judgment in favor of the State and dismissing all remaining claims was entered on April 20, 2007. That, according to the ICA, was the final judgment and the parties had thirty days to file their notice of appeal.
But because the plaintiffs filed a motion for reconsideration, the thirty-day clock is tolled until that motion was decided or the passing of 90 days, whichever came first. See HRAP Rule 4(a)(3). The circuit court denied the motion for reconsideration on June 7, 2007, which extended the time for filing a notice of appeal to July 7, 2007. So far, so good.
The Trouble with Stipulating. The issue in this case centers around HRAP Rule 4(a)(4)(A):
The court or agency appealed from, upon a showing of good cause, may extend the time for filing a notice of appeal upon motion filed within the time prescribed . . . of this rule.
According to the ICA, the lower court cannot extend the time to file a notice of appeal unless (1) a motion was filed and (2) upon a showing of good cause. This case had neither. The stipulation was "an unauthorized procedural device." The ICA also held that there was no showing of "good cause," that is, "a cause that is beyond the movant's control." Hall v. Hall, 96 Hawai'i 105, 110 n. 3, 26 P.3d 594, 599 n. 3 (App. 2001).
And Needed more time to Settle is not "Good Cause." Even if the stipulation did state that an extension was needed to facilitate settlement negotiations, that would not amount to "good cause." In Hall, the ICA held that "more time to seek settlement before incurring the cost of filing an appeal is not 'good cause' for extending the time to file a notice of appeal; and . . . rarely will there be a situation where a motion based on that desire and presented within the first 30 days will be validly granted[.]" Id. at 110, n. 3, 26 P.3d at 599, n. 3.
Extensions for Time AFTER the 30 days has run. Having held that there was no initial motion and no good cause shown, the thirty-day clock expired thereby making the ex parte motion for another extension a request for more time after the expiration of the proscribed time. An appellant can seek an extension of time for filing a notice of appeal after the time has run out so long as the court or agency finds "excusable neglect." HRAP Rule 4(a)(4)(B). Furthermore, a motion for extension of time after the 30-day clock requires notice of the motion to all parties involved. Id.
Delay was not an "Excusable Neglect." Excusable neglect arises when the "cause of the delay is some mistake or inadvertence within the control of the movant." Enos v. Pac. Transfer & Warehouse, Inc., 80 Hawai'i 345, 352, 910 P.2d 116, 123 (1996). After surveying the few Hawai'i cases that addressed "excusable neglect," the ICA concluded that excusable neglect often dealt with the misconstruction or misapplication of the law. Id.; Hall, 96 Hawai'i at 112, 26 P.3d at 601. Unlike Enos and Hall, the plaintiffs in this case based its motion on settlement efforts and a pending motion to withdraw. This, according to the ICA, was not excusable neglect. It was more of a request "that the deadline be postponed while other events in the case are attended to."
Chief Judge Nakamura's Dissent. Chief Judge Nakamura agreed with the majority that the circuit court erred in approving the stipulation and extending the time to file a notice of appeal for two weeks. However, because the stipulation was submitted within the original 30-day clock and because the plaintiffs later relied upon the erroneous order, the rules should not be strictly enforced.
Chief Judge Nakamura would have applied an exception to the rules based on equity. He turned to cases from the Supreme Court of the United States that contemplate the "unique circumstances exception" to the time limitations for filing a notice of appeal. In those cases, the appellant sought an extension from the trial court, which was granted, and then filed the notice of appeal in reliance on the lower court's extension. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962); Thompson v. Immigration and Naturalization Service, 375 U.S. 384 (1964). Those cases were recently overruled by the SCOTUS in Bowles v. Russell, 551 U.S. 205, 214 (2007), on the grounds that they created equitable exceptions to jurisdictional requirements.
Nonetheless, Chief Judge Nakamura noted that there were four dissenters in Bowles. Chief Judge Nakamura wrote that it seemed reasonable for the plaintiffs to rely on the trial court's order issued before the expiration of the original thirty-day clock. If the trial court denied the stipulation, the plaintiffs still could have timely filed their notice of appeal. "We require and expect parties to comply with court orders. We should permit them to rely on court orders in determining whether the time for filing a notice of appeal has expired."
Equity v. Law. Here, the tensions between the law and equity still play out. The majority followed strictly the letter of the rules. So strictly, in fact, that it frowned upon the use of a stipulation rather than a motion. Chief Judge Nakamura's dissent does not appear to dispute the legal analysis of the majority. In fact he agreed that the circuit court erred in extending the time to file based on the one-page stipulation. The dissent arises over the application of an equitable remedy. It was obvious to the Chief Judge that the plaintiffs relied on the erroneous order.
This case raises an even broader question: who is ultimately responsible? The majority seems to place the onus on the plaintiffs who have not following the rules and submitting a stipulation. The Chief Judge, however, took a position that would not penalize a party that relied on a trial court's order--no matter how erroneous. The issue has divided the ICA. If this goes up to the HSC, it is sure to split that court too.


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