August 2014 HAWAII BAR JOURNAL 13

Deemed Denial and the

Deadline to File Notices
of Appeal in Civil
Cases
by Rebecca A. Copeland
The January 2014 issue of the
Hawaii Bar Journal included an article
that explained how and when an exten-
sion of the time frame to file a notice of
appeal may be obtained.
1
The Hawaii
Supreme Court has recently provided an
additional extension option, however, in
certain cases involving the so-called
deemed denial deadline.
2
In Assn of
Condo. Homeowners of Tropics at Waikele v.
Sakuma, the Supreme Court held that the
thirty-day deadline to file a notice of
appeal does not begin to run from the
date on which a post-judgment reconsid-
eration motion is deemed denied, but
rather from the date on which the trial
court enters an order denying the
motion for reconsiderationeven if that
date is after the deemed denial deadline.
3
Deemed Denial Deadline in Civil
Cases
Under Rule 4(a)(1) of the Hawaii
Rules of Appellate Procedure, the notice
of appeal in a civil case is due thirty days
after the entry of an appealable order or
final judgment.
4
The 30-day deadline
may be extended by the filing of certain
types of post-judgment motions.
According to Rule 4(a)(3):
If any party files a timely
motion for judgment as a matter of
law, to amend findings or make
additional findings, for a new trial,
to reconsider, alter or amend the
judgment or order, or for attorneys
fees or costs, the time for filing the
notice of appeal is extended until
30 days after entry of an order dis-
posing of the motion[.]
5
However, Rule 4(a)(3) also provides
that the failure to dispose of any
motion by order entered upon the
record within 90 days after the date the
motion was filed shall constitute a denial
of the motion.
6
This is known as the
deemed denial deadline.
7
For years, the
Intermediate Court of Appeals had
interpreted Rule 4(a)(3), and the deemed
denial deadline, to mean that a notice of
appeal must be filed within thirty days
after the ninety-day deemed denial time-
frame ends.
8
Sakuma and the Hawaii Supreme
Courts New Deemed Denial Rule
In Assn of Condo. Homeowners of
Tropics at Waikele v. Sakuma, the
Intermediate Court of Appeals once
again held that a notice of appeal was
not timely under Rule 4(a)(3), dismissing
the appeal for lack of appellate jurisdic-
tion because the appellant did not file
the notice of appeal within thirty days
after her motion for reconsideration was
deemed denied.
9
In Sakuma, the circuit
court entered judgment on an order
confirming the sale of Sakumas fore-
closed property on May 29, 2012.
10
On
June 7, 2012, Sakuma filed a timely
motion for reconsideration.
11
The cir-
cuit court did not rule on the motion, so
it was deemed denied ninety days later
on September 5, 2012.
12
Sakuma filed a
notice of appeal on October 16, 2012.
13
The Intermediate Court of Appeals held
that Sakuma had not met the thirty-day
deadline to file her appeal within thirty
days after the HRAP Rule 4(a)(3) auto-
matically deemed denial of her Rule 59
motion for reconsideration.
14
On certiorari, the Hawaii Supreme
Court disagreed. According to the
supreme court, the deemed denial dead-
line did not trigger the running of the
deadline to file the notice of appeal
because there was no entry of an
order[.]
15
Specifically, the supreme
court held: The ICA determined that
Sakumas appeal was untimely because
she did not file the notice of appeal with-
in thirty days after her motion for recon-
sideration was deemed denied. However,
HRAP Rule 4(a)(1) requires an entry of
an order to trigger the thirty-day appeal
period in HRAP Rule 4(a)(3).
16
Thus,
[t]he deadline to file Sakumas appeal
was suspended until such entry was
made.
17
What Practitioners Should Do?
There are several practical implica-
tions of the Hawaii Supreme Court
decision on trial and appellate practice.
Whether or not a practitioner has
encountered the situation raised in
Sakuma, it is clear from the case that
there are actions that practitioners
should take, or considering taking, to
preserve the right to appeal.
File the Post-Judgment Motion Timely
The deemed denial deadline will
never come into play unless one of the
post-judgment motions listed in Rule
4(a)(3) is timely filed.
18
In Sakumas case,
she had filed a timely motion for recon-
sideration pursuant to Hawaii Rules of
Civil Procedure Rule 59.
19
Motions for
reconsideration, to alter or amend the
judgment, or for new trial under Rule 59
shall be filed no later than 10 days after
entry of the judgment.
20
The same 10-
day deadline applies to a motion to
amend or make additional findings.
21
A
motion or request for attorneys fees is
generally due no later than 14 days
after entry of an appealable order or
judgment[.]
22
Thus, in order to later
invoke the potentially infinite deadline
created by the supreme courts decision
in Sakuma, the appellant must have first
timely filed his or her post-judgment
motion.
23
File the notice of appeal before the 90-day
deemed denial deadline.
The Hawaii Rules of Appellate
Procedure provide that a notice of
appeal may be filed prematurely if the
trial courts decision has been
announced (for example, orally at the
hearing) but a written decision has not
yet been entered.
24
According to Rule
4(a)(2):
If a notice of appeal is filed
after announcement of a decision
but before entry of the judgment or
order, such notice shall be consid-
ered as filed immediately after the
time the judgment or order
becomes final for the purpose of
appeal.
25
Thus, when in doubt, filing the notice of
appeal prior to the deemed denial dead-
line to ensure the appeal deadline is not
missed will not prejudice the appeal.
26
14 August 2014 HAWAII BAR JOURNAL
allowed is less than 7 days, any intervening
Saturday, Sunday, or legal holiday shall be
excluded in the computation.
Haw. R. App. P. 26(a)
7
See Cnty. of Haw. v. C & J Coupe Family Ltd.
Pship, 119 Haw. 352, 367, 198 P.3d 615, 630
(2008) ([B]ecause the court failed to issue an
order on Appellants motion by January 9,
2008, ninety days after Appellant filed the
motion, the motion was deemed denied.).
8
E.g., In re Hawaii State Teachers Assn, 131
Haw. 301, 307-08, 318 P.3d 591, 597-98 (App.
2013) (The last clause of HRAP Rule 4(a)(3) is
highlighted because, in this case, the Court
failed to enter an order within 90 days after the
date that HSTAs Motion to Amend 10/1/10
Judgment was filed. HSTAs motion was filed on
October 11, 2010. Therefore, to the extent that
it constituted a post-judgment motion to amend
the 10/1/10 Judgment, HSTAs Motion to
Amend 10/1/10 Judgment was deemed denied
on January 10, 2011. Accordingly, pursuant to
HRAP Rule 4(a)(3), the parties had 30 days
from that date to timely file an appeal from the
10/1/10 Judgment.); Avelo Mortg., LLC v.
Segundo, No. 30123, 2013 WL 377786, *1 n.1
(Haw. App. Mar. 14, 2013) (Nevertheless,
Segundo filed her notice of appeal within thirty
days after the September 29, 2009 deemed
denial of Defendants Motion for Stay and/or
to Set Aside Order and Judgment Granting
Plaintiff s Motion for Summary Judgment, and
for Writ of Ejectment Against Juliet Segundo
Filed April 17, 2009, Filed June 25, 2009, filed
July 1, 2009, as required by Hawaii Rules of
Appellate Procedure Rule 4(a)(3).); Kokualani v.
Way of Salvation Church, Nos. 28331 & 28919,
2010 WL 3722514, *3 (Haw. App. Sept. 23,
2010) (Church initially extended the time to
file an NOA from the July 19, 2006 SJ on the
Complaint Order by timely filing its August 1,
2006 motion for reconsideration. Pursuant to
Hawaii Rules of Appellate Procedure (HRAP)
Rule 4(a)(3), however, this motion was deemed
denied on October 30, 2006. Although the cir-
cuit court entered an order denying Churchs
motion for reconsideration on November 22,
2006, that order was a nullity. Church did not
file the first NOA until December 22, 2006,
which is more than thirty days after October 30,
2006. Therefore, Churchs appeal was untimely
as to the July 19, and November 22, 2006
orders.).
9
Sakuma, 131 Haw. at 256, 318 P.3d at 96;
accord Assn of Condo. Homeowners of Tropics at
Waikele v. Sakuma, No. CAAP120000870,
2013 WL 150175, *1 (Haw. App. Jan. 11, 2013).
10
Sakuma, 131 Haw. at 255, 318 P.3d at 95.
11
Id.
(Continued on page 25)
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Get a written order from the trial court.
The overall justification for the
supreme courts decision in Sakuma was
that there had not yet been the entry of
an order[.]
27
Therefore, if the trial
court denies one of the post-judgment
motions referenced in Rule 4(a)(3), the
party who filed the motion needs to
make sure that the circuit court enters a
written order. Likewise, if the trial court
does nothing, thus triggering the 90-day
deemed denial date, then the party who
filed the motion should then also request
that the trial court enter a written order
denying the motion. Once the written
order is entered, the 30-day deadline to
file the notice of appeal is triggered
under Sakuma.
28
Practitioners should remain vigilant
to ensure that the deadline to file a
notice of appeal is not missed, and that
an extension of time is obtained if nec-
essary. Reliance on the deemed denial
deadline is not ideal. Despite the
supreme courts decision in Sakuma, the
best practice if relying on a post-judg-
ment motion to extend the appellate
deadline is to follow pointers like those
outlined above to ensure the deadline is
not missed thus depriving the attor-
neys client of the ability to appeal.
_________________
1
Copeland, Extensions of Time for Notices of
Appeal in Civil Cases, 18 Haw. B. J. 1 (Jan. 2014).
2
Assn of Condo. Homeowners of Tropics at
Waikele v. Sakuma, 131 Haw. 254, 255, 318 P.3d
94, 95 (2013).
3
Sakuma, 131 Haw. at 256, 918 P.3d at 96;
accord Title Guar. Escrow Servs., Inc. v. Szymanski,
No. SCWC120000711, 2014 WL 291691,
*1-2 (Haw. Jan. 24, 2014) (same holding).
4
Haw. R. App. P. 4(a)(1).
5
Haw. R. App. P. 4(a)(3).
6
Id. According to Rule 4(a)(3), [t]he 90-
day period shall be computed as provided in
Rule 26. Under Rule 26,
[i]n computing any period of time pre-
scribed by these rules, an order of court, or
any applicable statute, the day of the act,
event, or default from which the designated
period of time begins to run shall not be
included. The last day of the period shall be
included, unless it is a Saturday, Sunday, or a
legal holiday, in which event the period
extends until the end of the next day that is
not a Saturday, a Sunday, or a legal holiday.
When the period of time prescribed or
August 2014 HAWAII BAR JOURNAL 25
denial language in the rule is meant to clarify
and create an exception to the general practice
of disposing of a motion by order. Id. at 257,
318 P.3d at 97. Thus, according to Justice
Nakayama, the majoritys rule leaves the
deemed denial language superfluous and the
deadline is stripped of all legal effect. Id.
18
Haw. R. App. P. 4(a)(3).
19
Sakuma, 131 Haw. at 256, 318 P.3d at 96.
20
Haw. R. Civ. P. 59(b), (e).
21
Haw. R. Civ. P. 52(b).
22
Haw. R. Civ. P.54(d)(2)(B). The 14-day
deadline applies [u]nless otherwise provided
by statute or order of the court[.] Id.
However, the deemed denial issue may not
impact a request for costs rather than attorneys
fees since the Intermediate Court of Appeals
has recently held, post-Sakuma, that [b]ecause
HRCP Rule 54(d)(1) does not impose any time
limit measured from the entry of judgment to
file a motion for costs, we conclude that a post-
judgment motion for costs under HRCP Rule
54(d)(1) does not qualify as a timely motion for
purposes of the tolling and deemed denial pro-
visions of HRAP Rule 4(a)(3). Woodruff v. Haw.
Pac. Health, No. 29447, 2014 WL 128607, *18
(Haw. App. Jan. 14, 2014).
23
See, e.g., Sakuma, 131 Haw. at 256, 318 P.3d
at 96; Haw. R. App. P. 4(a)(3).
24
Haw. R. App. P. 4(a)(2).
25
Id.
26
See, e.g., id.; Diamond v. State, Bd. of Land and
Natural Resources, 112 Haw. 161, 169, 145 P.3d
704, 712 (2006) (Although premature,
Plaintiffs notice is considered as filed immedi-
ately after the time the judgment becomes final
for the purpose of appeal. (citing Haw. R. App.
P. 4(a)(2)).
27
Sakuma, 131 Haw. at 256, 318 P.3d at 96.
28
Id.
Rebecca A. Copeland is a solo appellate
practitioner who concentrates her practice in the
areas of appeals. She is also as a "law lawyer"
for attorneys in Hawaii and throughout the
United States. She maintains an active blog
devoted to appeals at www.recordonappeal.com.
She currently serves on the Hawaii State Bar
Association's Board as an Oahu Director, a
Board Member of the City and County of
Honolulu's Zoning Board of Appeals, and a
Board Member for the Hawaii LGBT Legacy
Foundation. She founded the Hawaii State Bar
Association's Appellate Section, and served as
the section's Chair from 2012-2013.
(Continued from page 14)
12
Id.
13
Id.
14
Sakuma, 2013 WL 150175 at *1.
15
Sakuma, 131 Haw. at 256, 318 P.3d at 96.
16
Id.
17
Id. In holding that the deadline to file a
notice of appeal is suspended until the entry of
an order denying a post-judgment motion
under Rule 4(a)(1) and 4(a)(3), the supreme
court relied on the plain language of Rule
4(a)(5) which defines entry of judgment or
order, as a judgment or order is entered
when it is filed in the office of the clerk of the
court. Id. (quoting Haw. R. App. P. 4(a)(5)).
Justice Nakayama filed a dissenting opin-
ion. Sakuma, 131 Haw. at 256, 318 P.3d at 96
(Nakayama, J. dissenting). According to Justice
Nakayama: I believe that the majority mis-
reads the Hawaii Rules of Appellate Procedure
(HRAP) Rule 4(a)(3). When the filing deadlines
contained in HRAP Rule 4(a)(3) are properly
applied, Sakumas notice of appeal was untime-
ly and the ICA therefore lacked jurisdiction
over her appeal. Id. Justice Nakayama dis-
agreed with the majoritys decision that the
appellate deadline does not end when at the
deemed denied deadline because the deemed
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