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Thursday, April 16, 2015
HAWSCT Clarifies Joinder Of Indispensable Parties, Timely Appeals
By Robert Thomas @ 12:49 AM :: 4034 Views :: Judiciary

HAWSCT Clarifies Joinder Of Indispensable Parties

by Robert Thomas, InverseCondemnation, April 15, 2015

Here's the latest from the Hawaii Supreme Court on the joinder of parties under Rule 19, where there's a claim that an absent party is "indispensable" and thus the case should be dismissed. Bottom line is that an absentee should be joined if its presence is needed, and the "indispensable" determination only needs to be undertaken if the party can't be joined. In other words, dismissal is the last resort.

We won't go into the details of Kellberg v. Yuen, No. SCWC-12-0000266 (Apr. 15, 2015), because we represent the plaintiff-respondent. So we will leave it to others to dissect the opinion for any civil procedure gems and practical tips. But read the opinion if you want to understand the details for yourself.

This is the second time that this case has gone to the Supreme Court, the first trip resulting in a published opinion clarifying when an order by an agency must be challenged under the Administrative Procedures Act. 

Kellberg v. Yuen, No. SCWC-12-0000266 (Haw. Apr. 15, 2015)

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Appellate Procedure Nerd Alert: Hawaii Supreme Court Justices Still Disagree About When You Must Appeal A Denial Of A Motion For Recon

by Robert Thomas, InverseCondemnation, April 14, 2015

Not too long ago -- December 2013 to be exact -- the Hawaii Supreme Court held that the 30-day appeal window under Haw. R. App. P. 4, (which also specifies that 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") only opens once the trial court actually enters a written order disposing of the motion for recon, even where the motion is deemed denied 90 days after filing by operation of Rule 4. So even if you lose a recon motion automatically because the trial court just ignores you, an appeal is not ripe until the trial court actually enters an order memorializing that. Ass'n of Condominium Homeowners of Tropics at Waikele v. Sakuma, 318 P.3d 94 (Haw. 2013).

Justice Nakayama filed a solo dissent in Sakuma, pointing out the inherent contradiction: Rule 4's requirement that a recon motion is "deemed denied" in 90 days if the judge ignores the motion is kind of meaningless if you don't have to appeal until the court stops ignoring you and writes the denial up. 

Well, it turns out that she still disagrees with Sakuma (no surprise there), and the issue may still be in play. 

In Deutsche Bank National Trust Co. v. Amasol, No. SCWC-13-0000040 (Apr. 14, 2015), the court revisited the issue in an appeal that was dismissed for lack of jurisdiction by the Intermediate Court of Appeals one short month before the Supreme Court handed down Sakuma.

Amasol was based on similar facts: the trial court issued summary judgment for the plaintiff in April, the defendants moved for reconsideration four days later, and also filed a Rule 60(b) motion for relief from the judgment three months later. The trial court did not issue a written order rejecting the recon motion until December (yes, 260 days after filing), which meant that by then, motion had been deemed denied by operation of Rule 4 sometime back in July. The trial court never responded at all to the 60(b) motion.

The defendants appealed to the ICA in January, and because the Supreme Court hadn't yet issued Sakuma, the ICA eventually dismissed the appeal as untimely because it was not filed within 30 days of the date which the recon motion was deemed denied in July.

But the ICA's ruling obviously contradicted Sakuma, so it should be no surprise that the Supreme Court reversed it in light of its earlier decision. And here's where it gets interesting for you appellate junkies and court followers. With such a simple issue presented, why did the court accept cert and issue a published opinion in Amasol, a case that is otherwise "on all fours" with the recently-decided Sakuma?

Justice Nakayama again dissented, and for the same reasons. Again, no surprise there. This time around, however, her reasoning garnered a second vote, a circuit judge sitting in place of a recused justice. The Sakuma majority was comprised of Justices Acoba, McKenna, and Pollack, and a different circuit judge sitting in for the Chief Justice who was recused. Justice Acoba has since retired, and in Amasol, Justices McKenna and Pollack alone signed on the majority opinion. The Chief Justice provided the third vote for reversal, but concurred only in the result. He wrote separately that Sakuma should not be overruled because of stare decisis.

To us, this indicates that once he was able to consider the issue in this case, the CJ actually agreed with Justice Nakayama's reasoning, but that even though he believed Sakuma is wrong, it shouldn't be disturbed. Which means that there's two justices who think that Sakuma's reasoning is right, one who definitely thinks it's wrong, and one who we're pretty sure thinks it's wrong but that it's too soon to alter course.

Which leave us just altogether breathless with the following questions:

  • Where will the court's newest member, Justice Wilson come down on this issue?
  • Will the next case presenting this issue arise after enough time has passed so that the Chief Justice can feel ok about revisiting Sakuma?
  • What are Hawaii appellate practitioners to do until the court resolves this mostly academic debate?

On that last point, it's not as complex at it might sound:

  • File your motion for recon on a timely basis, and the appeal period is tolled.
  • If the court affirmatively denies the motion and enters a written order to that effect, you have 30 days to appeal.
  • If the court does nothing for 90 days, your motion has been deemed denied.
  • And 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.
  • And if even after that prodding the trial court still does nothing, you just wait. And maybe yours will be the final opinion in the Sakuma-Amasol-Your Case trilogy.

Finally, something all of the Supreme Court justices could agree about: the ICA also concluded that the appeal from the Rule 60(b) motion was premature because the trial court had not ruled on it yet. Affirmed.  

Deutsche Bank Nat. Trust Co. v. Amasol, No. SCWC-13-00000040 (Haw. Apr. 14, 2015)

 

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