Ditto v. McCurdy12/3/2003
-appeal (in appeal No. 23851), filed more than thirty days after the March 24, 2000 appealable order, are untimely appeals of the matters decided by the March 24, 2000 order. Lacking jurisdiction to entertain appeal No. 23851, which "can neither be waived by the parties nor disregarded by the court in the exercise of judicial discretion," Naki v. Hawaiian Elec. Co. Ltd., 50 Haw. 85, 86, 431 P.2d 943, 944 (1967), we dismiss the appeal and cross-appeal from the March 24, 2000 order and September 28, 2000 judgment in appeal No. 23851.
2. Appeal from the November 20, 2000 Order (Appeal No. 23962)
On October 9, 2000, Ditto moved to set aside and/or alter the September 28, 2000 judgment, pursuant to HRCP Rules 59(e) and 60(b) (2000). However, as discussed supra, the March 24, 2000 order disposed of all issues raised in McCurdy and PCT's November 16, 1999 motion, leaving nothing further to be accomplished. Therefore, the time in which to bring an HRCP Rule 59(e) motion and an HRCP Rule 60(b) motion commenced upon entry of the March 24, 2000 order, not the superfluous September 28, 2000 judgment. We, therefore, consider Ditto's HRCP Rule 59(e) motion and HRCP Rule 60(b) motion a request for relief from the March 24, 2000 order.
HRCP Rule 59(e) provides that " ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." Ditto's October 9, 2000 motion pursuant to HRCP Rule 59(e) was untimely filed, and the circuit court did not have authority to consider it under HRCP Rule 59(e).
HCRP Rule 60(b), however, permits a party to seek relief from a "final judgment, order or proceeding" as follows:
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) . . . it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. . . .
(Emphasis added.)
The primary ground for Ditto's motion to set aside and/or amend the September 28, 2000 judgment was newly discovered evidence. As a result, Ditto's October 9, 2000 motion was timely filed under HRCP Rule 60(b) inasmuch as it was filed within one year of the March 24, 2000 order. Accordingly, even if the trial court lacked authority to grant Ditto's HRCP Rule 59 motion, the court had authority to hear Ditto's HRCP Rule 60(b) motion. See Doe v. Doe, 98 Hawaii 144, 151 n.8, 44 P.3d 1085, 1092 n.8 (2002).
An order denying a motion for post-judgment relief under HRCP 60(b) is an appealable final order under HRS ยง 641-1(a). First Trust Co. of Hawaii v. Reinhardt, 3 Haw. App. 589, 592, 655 P.2d 891, 893 (1982). Therefore, the circuit court's November 20, 2000 order denying Ditto's motion for post-judgment relief was an appealable final order from which Ditto timely appealed on December 20, 2000. HRAP 4(a)(1).
B. HRCP Rule 60(b) Motion
In their November 16, 1999 motion for return of garnished funds and for attorneys' f
Page 1 2 3 4 5 6 7 8 Hawaii Personal Injury Attorneys
Personal Injury Lawyers
|