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Tuesday, December 17, 2013
Deemed Denied? Hawaii Supreme Court Clarifies Appeal Rules
By Robert Thomas @ 10:37 PM :: 3306 Views :: Judiciary

HAWSCT: A Rule 59 Motion For Recon May Be Deemed Denied In 90 Days, But It's Not Appealable Until An Order Is Entered

by Robert Thomas, InverseCondemnation.com, December 17, 2013 

Here's a short one for all you appellate procedure nerds.

We all know that under the Hawaii Rules of Appellate Procedure, the timely filing of a motion for reconsideration under Haw. R. Civ. P. 59 tolls the time when a notice of appeal must be filed to "until 30 days after entry of an order disposing of the motion." Haw. R. App. P. 4. That same rule also provides that if the circuit court has not acted on the motion for reconsideration within 90 days after filing, the motion is deemed denied. So the question arose whether a party that wanted to appeal the circuit court's ruling must have done so within 30 days of the "deemed denied" date, or it could wait until the court actually entered an order.

In Ass'n of Condominium Homeowners of Tropics at Waikele v. Sakuma, No. SCWC-12-0000870 (Dec. 17, 2013), the Hawaii Supreme Court concluded that the 30-day appeal window only opens once the circuit court actually enters an order disposing of the motion for recon, even where the motion is deemed denied by operation of Rule 4. The court relied on the plain language of the rule, quoted above, and noted that under the rules, an order is "entered when it is filed in the office of the clerk of the court." Which means that an automatic denial does not count as an order "entered."

So even though you lose a recon motion automatically, there's no appeal until the court actually enters an order memorializing that.

Justice Nakayama dissented, concluding that the majority's strict reading effectively renders the deemed denied language surplusage:

Under the majority's interpretation, a "deemed denial" is not ripe for appeal until the court affirmatively issues an order disposing of the post-judgment motion. By stating that a "deemed denial" is not an "order disposing of the motion," the "deemed denial" is stripped of all legal effect.

Dissent at 3-4.

So here's what this decision means:

  • File your motion for recon on a timely basis, and the appeal period is tolled. 
  • If the court affirmatively denies the motion and enters an order to that effect, you have 30 days to appeal. 
  • If the court does nothing for 90 days, you motion has been deemed denied. If the court does not enter an order memorializing that (as it may not, since it let the 90 days slip by without action), one of the parties should submit a draft order for the circuit court to execute and enter.
  • When that document is filed, the appealing party has 30 days to file its Notice of Appeal.

We're not sure whether the analysis of the majority or Justice Nakayama is the "correct" one, but ultimately, we like anything that brings more clarity to the rules about the triggers to an appeal, especially when the risk of uncertainty is that you miss a jurisdictional deadline. This ruling makes it less likely that you will do so.

Ass'n of Condominium Homeowners of Tropics at Waikele v. Sakuma, No. SCWC-12-0000870 (Haw. Dec. 17, 2013)

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