Bank of Hawaii v. ShinnBank of Hawaii v. Shinn
Lead
Opinion of the Court by
Petitioner/DefendanL-Appellant Michael L. Shinn (Petitioner) seeks review of the judgment of the Intermediate Court of Appeals (ICA), filed on March 30, 2008, pursuant to its published opinion filed on February 29, 2008,
We hold (1) that Hawaii Revised Statutes (HRS) § 657-5 (Supp.2007)
I.
In 1990, Petitioner and his business associates formed Kahala Ventures, a Hawai'i partnership. On June 25, 1990, Kahala Ventures borrowed $1,500,000 from Respondent to develop property located in Kahala (property). The lending agreement required the loan to be repaid in full by January 1, 1993. On March 22 of that same year, Respondent filed its complaint for foreclosure and deficiency after Petitioner and his partners failed to make the payments. On April 1,1993, the complaint and summons were served on Petitioner at his home. Respondent moved for summary judgment on the foreclosure later that month. Notice of the summary judgment motion and hearing were sent to Petitioner at the same address by U.S. mail. Petitioner filed no answer to the complaint and never appeared in court, resulting in a default judgment against him, entered by the clerk of the court on May 6,1993.
On June 23, 1993, the court granted Respondent’s summary judgment motion. The
On December 16,1993, Respondent served the Affidavit of Michael C. Webb, requesting entry of a deficiency judgment against Petitioner and others in the amount of $467,120, on Petitioner by U.S. mail to the same residence in Kahala. On December 21, 1993, Respondent obtained a deficiency judgment against Petitioner and others, which was served on Petitioner, also via U.S. mail, to his Hawaii address.
On August 9, 2000, Respondent filed a release of the judgment as to Petitioner’s partner, Defendant Donald Eovino, due to his receipt of a discharge in bankruptcy.
On December 10, 2003, Respondent filed a motion to extend the deficiency judgment for an additional ten years, and to set aside an “order of dismissal,” which had been entered on June 28, 2002, for inactivity. The motion to extend was not served on Petitioner. Eight days later, the court held a hearing on the motion and entered an order extending the judgment for ten years and setting aside the order of dismissal to the extent that it dismissed claims and parties that were already subject to judgment or otherwise previously dismissed.
Because Respondent did not notify Petitioner of its motion to extend, he did not learn of the extension until 2005. On January 17, 2006, Petitioner filed a HRCP Rule 60(b) motion seeking to void the trial court’s 2003 grant of extension, and to expunge the extended deficiency judgment, which was recorded at the Bureau of Conveyances. Petitioner argued that HRS § 657-5 requires notice to the judgment debtor of any motion to extend a judgment, and that Petitioner had an absolute right to notice of the motion to extend.
The court heard argument on Petitioner’s motion on February 7, 2006. At the hearing, Respondent “emphasized that [Petitioner] had never contested the default or appealed the underlying judgment ... [and] ... raised no defenses on the merits to the original [¡Judgment or its extension.” Respondent also offered the testimony of its Vice President of Commercial Collections, David Bowman, by way of a declaration stating that Respondent had been informed on various occasions that Petitioner had moved back and forth between Colorado and Florida, to show that Respondent was unaware of Petitioner’s exact address. Petitioner’s arguments focused on the legislative intent in HRS § 657-5 that notice must be provided, on his belief that Respondent actually knew of his exact whereabouts at the time of the extension and that Respondent’s assertions to the contrary were hearsay. On March 7, 2006, without announcing any findings of fact or conclusions of law, the court entered an order denying Petitioner’s motion to set aside the extension of judgment.
On March 22, 2006, Petitioner filed his notice of appeal. On February 29, 2008, the ICA affirmed the court’s March 7, 2006 order denying Petitioner’s Rule 60(b) motion. The ICA determined, based on an in pari mate-ria reading of HRS § 657-5 and HRCP Rules 5(a) and 55(b)(2) (2008),
II.
Petitioner lists the following pertinent questions in his Application:
1. Was Petitioner deprived of (a) his ... HRS [§ ]657-5 statutory proceduralrights, (b) his [a]rticle [I], [s]eetíon 5, State [cjonstitutional procedural rights, and (e) his Fifth and Fourteenth Amendment United States [constitutional procedural rights when the lower court[] without notice to him or service upon him extended the 1993 money judgment against him, rendering that extension defective and null and void?
2. Was the ICA correct in concluding that construing HRS [§ J657-5 in pari material [sic] with HRCP [Rules] 5 and 55, a motion for extension of judgment need not he served upon a previously defaulted party, notwithstanding that notice requirement in HRS 657-5, because an extension on judgment request is supposedly not a new or additional claim?
(Emphases added.)
III.
A.
Petitioner’s first argument
Respondent, on the other hand, asserts that the confluence of HRCP Rules 5(a) and 55(b)(2) create an exception to the notice requirement in HRS § 657-5. See HRCP Rule 5(a) (stating that “no service need be made on parties in default for failure to appear”); HRCP Rule 55(b)(2) (“If the party against whom judgment by default is sought has appeared in the action, the party ... shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application.”).
In the instant case, we have no difficulty harmonizing the applicable provisions of HRCP Rule[] 5 ... and HRS § 657-5. All observe the principle that service and notice are generally required, but Rule[ ] 5 ... recognize[s] the well-settled exception to that principle applying to parties who fail to appear and are defaulted. Consequently, we hold that the notice requirement contained in HRS § 657-5 does not apply to defaulted parties who have not appeared.
In support of its argument that HRCP Rule 5 “does not require that a defaulted party who has failed to appear in the action receive notice,” Respondent cites to the ICA’s decision in Pogia. In Pogia, the trial court had entered default judgment after the defendant failed to file an answering brief or appear before the court to contest claims arising out of an automobile accident.
The ICA held that notice was not required because HRCP Rule 5(a) stated that no pleadings subsequent to the original complaint need be served in eases where default judgment has been entered. Id. (citing HRCP Rule 5(a)). Additionally, as described in note 11 supra, the ICA construed the notice requirement in HRCP Rule 55(b)(2) for parties who have appeared in the action, as by implication meaning that notice is not required for parties who have not appeared. Id. at 419,
Petitioner’s argument that the HRS and HRCP provisions should be harmonized where possible finds some support in case law. In Chock v. Government Employees Insurance Co.,
Respondent further urges this court to adopt the view of the Oregon Supreme Court in Shepard & Morse Lumber Co. v. Clawson,
B.
In re Doe Children,
Article VI, section 7 of the Hawai'i Constitution provides that “the supreme court shall have power to promulgate rules and regulations in all civil and criminal cases for all courts relating to process, practice, procedures and appeals, which shall have the force and effect of law.” However, pursuant to HRS § 602-11 (1985), “such rules shall not abridge, enlarge, or modify the substantive rights of any litigant, nor the jurisdiction of any of the courts, nor affect any statute of limitation.”
Id. at 487,
In the present case, this court is similarly faced with a conflict between a statute and a rule. To reiterate, HRS § 657-5 requires that “[n]o extension shall be granted without notice.” The notice requirement in HRS § 657-5 is manifest. See, e.g., Doe Children,
However, the notice requirement in HRS § 657-5 does not allow for any exceptions, even for parties in default. Because HRS § 657-5 contains an unambiguous notice requirement, HRCP Rule 5(a) is in direct conflict with the statute. As we reasoned in Doe Children, the judiciary may not promulgate rules that abridge the rights of any litigant, in this case, the right to notice as provided HRS § 657-5. Therefore, “the statute, and not the rule, is controlling.” Doe Children,
Hence, the plain language of HRS § 657-5 requires notice to judgment debtors before an “extension shall be granted” and leaves no room for the modification of that right by the civil rules of procedure. See HRS § 657-5. Allowing a party, through reliance on HRCP Rule 5(a), to avoid giving notice to a party in default prior to extension of a judgment would eviscerate the legislature’s unmistakable mandate in HRS § 657-5 that “[n]o extension shall be granted without notice.” As such, we hold that the statute’s notice requirement is controlling and that Respondent’s failure to provide the notice to Petitioner required by HRS § 657-5 was error.
Petitioner also asserts that the jurisprudence interpreting Hawaii and U.S. Constitutions has “enshrined” a protection of notice that extends to his claim against Respondent’s failure to notify him. Petitioner does not make any discernable argument regarding the constitutionality of the HRS and HRCP notice requirements. As such, this argument may be disregarded by the court. Norton v. Admin. Dir. of the Court,
IV.
A.
Respondent argues that even if the HRS § 657-5 notice requirement supercedes HRCP Rule 5(a), the order granting the extension is not void because the failure to provide notice was harmless error. In support of its harmless error argument, Respondent cites to Korean Buddhist Dae Won Sa Temple v. Sullivan,
The Temple argued
that its procedural rights were violated by “the prohibition of examination of the Director with respect to documents and at least one expert, presented to the Director privately by his staff, before he made his decision, in rebuttal to the [Temple’s] evidence of the religious significance of the building in question.”
Id. at 241,
Despite the fact that consideration of the outside sources violated HRS § 91-13 (1993), which states that “[n]o official of an agency who renders a decision in a contested case shall consult any person on any issue of fact except upon notice and opportunity for all parties to participate,” this court determined that the Temple was not prejudiced by the Director’s actions. Id. at 241-42,
Additionally, Respondent cites In re Genesys Data Technologies, Inc.,
Upon this court’s review of the issue, it was acknowledged that “the award of a default judgment in violation of HRCP Rule 54(c) implicates the defendant’s right to due process.” Id. at 38,
[Wjhile the failure to give the requmed notice is generally regarded as a serious procedural irregularity that may afford the basis for reversal on appeal, or for relief under an appropriate clause of Rule 60(b) and in conjunction with other irregularities may render the judgment void, the error should not usually be treated so serious as to render the judgment void. It should be considered in light of the surrounding circumstances and will, at times, be harmless.
Id. at 40,
This court considered especially relevant to the question of harmless error the fact that, although Data had not received notice of the specific or additional amounts sought before entry of default, Data did receive such notice prior to entry of the default judgment. Id. at 43,
In opposition, Petitioner does not assert that the court improperly entered the default judgment against him in the 1993 foreclosure ease, but argues that, regardless of default, the motion to extend is “null and void” because he did not receive notice as required by HRS § 657-5. Petitioner cites Stafford v. Dickison,
The defendant challenged the entry of default judgment against him, because he had answered, and because he was not provided notice of the default judgment under HRCP Rule 55(b)(2). Id. at 58,
[T]he requirement of due process does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party’s rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct.
Id. (internal quotation marks and citation omitted). The defendant in Stafford made an effort to participate in the litigation prior to his lawyer withdrawing from the case. See id. at 53,
B.
Petitioner correctly asserts that a judgment may be declared void upon a HRCP Rule 60(b)(4) motion regardless of how much time has passed between entry of judgment and filing the motion. See In re Hana Ranch Co.,
In Blaney, the Court of Appeals for the Seventh Circuit held that insufficient notice may constitute harmless error if there had been an opportunity to challenge the ruling on its merits, either by seeking reconsideration under FRCP Rule 59(e) or seeking relief from final judgment through a FRCP Rule 60(b) motion. Id. at 1032. Blaney involved an age discrimination suit filed by Blaney that had been dismissed without giving him actual notice of the dismissal as required by FRCP Rule 4(m).
The opportunity to address the case on its merits meant that Blaney was not prejudiced by the lack of notice, rendering the error harmless. Id. That holding is in line with the First and Ninth Circuits, which have held that defective service is harmless error where the party has had the opportunity to move for reconsideration or to move to void the judgment. See Varela v. Velez,
Importantly, this court has also addressed the issue of whether HRCP Rule 60(b) motions provide an adequate opportunity to challenge a judgment on the merits. As noted previously, in Genesys, we stated that the defendant “had an opportunity to challenge the default judgment pursuant to HRCP Rule 60(b).”
Petitioner has not shown that he was prejudiced by Respondent’s failure to notify him of the extension of judgment. Even if Petitioner had received notice of the motion to extend and had been present at the hearing, the outcome would have been the same. Petitioner never appeared to defend himself in the original action or raised any defenses to the original default judgment. He did not contest the validity of the original judgment at the HRCP Rule 60(b) hearing, nor did he
V.
The dissent “agree [s] with much of the majority’s analysis.” Dissenting opinion at 24,
A.
Initially the dissent points to Wong Kwai Tong v. Choy Yin,
In Wong Kwai Tong, the statute at issue did not grant the divorce court the power to divide the husband’s real estate as the circuit court had done.
Cited as hypothetical examples of instances when a court would be considered to have exceeded its jurisdiction were (1) “[i]f, for instance, the action be upon a money demand, the court ... has no power to pass
By contrast, in the instant ease, the court did not “make[ ] a decree which is not within the powers granted to it by the law of its organization!;.]” See id. at 606. To the contrary, it is manifest from the language of HRS § 657-5 that granting a motion for extension is within the court’s power. The error in the instant case is not that the court was without power to extend the judgment, and therefore without jurisdiction, but that the creditor failed to notify the judgment debtor of the extension. As distinguished from Wong Kwai Tong, where the court acted beyond the limited grant of subject matter jurisdiction, failure of notice here is a procedural, as opposed to jurisdictional, matter, and is therefore controlled by the precepts of due process and harmless error, as our cases have held. See infra.
B.
Cooper also does not support the dissent’s position. The dissent states that Cooper “suggested] that a court’s judgment may also be void when it is entered without authority.” Dissenting opinion at 26,
The dissent apparently seizes on dicta in footnote number 1 in Cooper to support its theory that a judgment may be void where the court is “without authority” to enter the judgment. Dissenting opinion at 26,
Because that discussion was not necessary to this court’s decision, and because this court concluded that the statute was inapplicable to the facts of that case, Cooper was not concerned with whether the statutory requirement was procedural or jurisdictional, whether a related error would be subject to a harmless error analysis, or whether the statutory limitation would have been an appropriate basis for collateral attack.
The limited grounds for voiding a judgment adopted in Cooper remain unchanged despite the dissent’s effort to extract a fourth ground evincing a void judgment from Cooper. According to Wright & Miller, “[a] judgment ... is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” 11 C. Wright & A. Miller, Federal Practice and Procedure § 2862, at 326-29 (1995) (footnotes omitted). Although the treatise notes that “[sjtate law may have some relevance in determining whether a judgment is void, particularly if it goes beyond federal law and would strike down a judgment that federal law would permit[,j” it does not refer to additional circumstances under which a judgment may be considered void other than those listed above, the same grounds adopted in Cooper. See id. at 325 (footnote omitted).
As the dissent concedes, none of the grounds for a void judgment as set forth in Cooper, i.e., lack of subject matter jurisdiction, jurisdiction over the parties, or due process, are present in the instant case. See dissenting opinion at 25, 26-27, 32,
C.
Furthermore, our eases subsequent to Cooper have continued to recognize that collateral attack under Rule 60(b)(4) is limited to three categories of void judgments. For example, in Genesys, this court held that “ ‘[i]n the sound interest of finality, the concept of void judgment must be narrowly restricted.’ ”
[a] judgment is void “only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” [Cooper], 70 Haw. [at] 454, 776 P.2d [at] 1181, reconsideration denied,70 Haw. 449 ,776 P.2d 1178 (1989). There is no indication that the circuit court lacked jurisdiction over the subject matter or the parties in this case. Thus, our analysis focuses upon whether the circuit court’s entry of judgment was consistent with due process.
Id. (emphases added); see also Dillingham,
The dissent maintains that Genesys did not “eonsider[ ] whether a court’s judgment was void because the court exceeded its authority in entering the judgment.” Dissenting opinion at 25,
D.
Despite controlling precedent in our jurisdiction, the dissent cites to federal law regarding FRCP Rule 60(b)(4).
In Indoor Cultivation, the Seventh Circuit’s analysis does not sustain the dissent’s argument that a notice requirement is jurisdictional, inasmuch as the case involved a statute of limitations, not a notice requirement, and because that court declined to decide whether the 60-day requirement was procedural or jurisdictional, and thus did not address the question of harmless error. See
Furthermore, the dissent does not address federal eases that have held, contrary to the dissent’s position, that violation of a notice requirement is not appropriate grounds for voiding a judgment. For instance, in Farm Credit Bank of Baltimore v. Ferrera-Goitia, the appellants used FRCP Rule 60(b)(4) “[to contest] the validity of the district court’s confirmation order based upon the Bank’s alleged failures (1) properly to give notice of the public sale, and (2) properly to name the junior lienholder as a party.”
In dismissing that argument, that court noted that “[t]o support this extravagant suggestion, the appellants charge that the foreclosure proceedings were fraught with material defects. The defects that they cite-if defects at all-are technical in nature and do not evince any usurpation of power. In short, the appellant received all the process that was due.” Id. (emphasis added) (footnote omitted). Apparently finding no due process violation, the First Circuit rejected appellant’s argument that the judgment was void because the court had “exceeded its power” based on “technical” defects, such as “failure to name ... a party ... and ... failure to give notice ... in strict accordance with Puerto Rico law.” See id. (emphases added); see also U.S. v. Martin,
VI.
A.
Because none of the foregoing. cases involve a notice requirement, the dissent apparently turns to decisions interpreting the notice requirement in HRCP Rule 56(c) as illustrative of its view that “a violation [of notice] may, in some circumstances, give rise to a jurisdictional defect.” Id. at 27,
The dissent relies on Clarke v. Civil Service Commission,
From the foregoing the dissent maintains that “[s]ueh an error is harmful per se.” Dissenting opinion at 27,
The dissent disputes that as between notice and hearing requirements the absence of a hearing was the “primar[y] concern[].” Dissenting opinion at 28,
The appellant specifies several errors allegedly committed by the trial court in dismissing the appeal below. However, we think that only one of such allegations is vital to the disposition of this appeal. Appellant contends that the court committed reversible error when it granted summary judgment on its own motion without giving opposing counsel an opportunity to be heard on the matter.
Clarke,
Additionally, Clarke is distinguishable because there the appellant had his case dismissed without ever having the opportunity to raise defenses to summary judgment on the merits. See
B.
Any question arising from Clarke about whether lack of notice was harmful per se was answered in the negative in Jensen. In Jensen, this court clarified Clarke and concluded that although denial of an opportunity to be heard under HRCP Rule 56 is reversible error because it affects “substantial rights,” failure of notice under HRCP Rule 56(c) is subject to a harmless error analysis.
Plaintiffs assert that the failure of the trial court to comply with the notice and hearing requirements of [HRCP] Rule 56(c) is reversible error. This court has held that, absent a showing of harm, the failure of the trial court to comply with the requirement of ten days’ notice of hearing set forth in H.R.C.P. Rule 56(c) is not reversible error. The requirement of showing that the error is prejudicial stems from [HRCP] Rule 61: “The court at every stage of the proceeding must disregard any error which does not affect the substantial rights of the parties.” We think the proper standard of appellate review under [HRCP] Rule 56(c) is to treat periods of notice of less than ten days as nonprejudicial, in the absence of a showing of actual harm ...
On the other hand, we think the dispensing with the opportunity to be heard orally on a motion for summary judgment, contrary to the requirement of [HRCP] Rule 56(c), so strongly affects the substantial rights of the parties as to constitute harmful error per se.
Id. (citations omitted) (emphases added).
This court directed that the “proper standard of appellate review ... is to treat periods of notice less than ten days as nonprejudicial, in the absence of ... actual harm ” as contrasted to “dispensing with the opportunity to be heard” which was “harmful error per se.” See id. (emphases added). Accordingly, this court emphasized that failure of notice was “non-prejudicial” in the absence of actual harm, and not “harmful per se” as the dissent would contend. See id. The dissent’s rationale then directly conflicts with Jensen’s view that reserved the harmful per se designation for the lack of a hearing, and not for a defect in notice.
C.
According to the dissent, Clarke and its progeny stand for the proposition that with respect to “HRCP Rule 56(c)’s notice requirement, [where] there has been at least some notice of the hearing, the aggrieved party must show that he has been prejudiced ... [b]ut, if ... there has been no notice of the hearing, then ... the violation is jurisdictional in nature and thus harmful per se.” Dissenting opinion at 29,
As noted before, Jensen clarified the notice rule, holding that “absent a showing of harm, the failure of the trial court to comply with the requirement of ten days’ notice of hearing set forth in [HRCP] Rule 56(c) is not reversible error[,]”
D.
The dissent’s position is put to rest by Querubín v. Thronas,
Despite the fact that no notice had been given, as is the case here, this court did not say that the failure of notice was per se harmful or that it deprived the court of jurisdiction. See id. To the contrary, this court followed the established rule in this jurisdiction for analyzing failures of notice and determined that “the [a]ppellants were obviously and actually prejudiced by the lack of notice” and “that the circuit court erred in sua sponte ... granting Thronas’s MSJ via joinder, ... without providing the [a]ppel-lants notice and an oral hearing.” Id. at 59-60,
Therefore, according to Querubín, violations of the notice requirement in Rule 56(e), whether complete or partial, are subject to a harmless error analysis and are not jurisdictional defects as the dissent would have it. If harmless error were not the doctrine to apply as to the failure to give any notice, Querubín would not have engaged in an “actual prejudice” analysis. If anything, Querubín solidifies this court’s position that no notice is not harmful error per se. With all due respect, Querubín cannot be squared in principle (as neither can our other eases referred to above) with the dissent’s contradictory position that the failure to give notice is harmful per se rather than subject to harmless error analysis.
VII.
Additionally, it does not follow that failure of notice under HRS § 657-5 is harmful per se or jurisdictional. The dissent draws its conclusion that “the circuit court exceeded its jurisdiction under HRS § 657-5,” dissenting opinion at 30,
VIII.
The dissent also conflicts with HRCP Rule 61, the “harmless error” rule. As this court pointed out in Jensen, “[t]he requirement of showing that the error is prejudicial stems from [HRCP] Rule 61.” That rule provides that
[n]o error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new tiial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
(Emphases added.)
Where it is necessary to set aside a judgment in order to do “substantial justice” or to safeguard “substantial rights,” our courts may act pursuant to HRCP Rule 61. Because, as here, the defect is not inconsistent with substantial justice, we are in no position to set aside the judgment. See, e.g., In re Doe,
Neither Petitioner nor the dissent can make any colorable argument that the result in this case is “inconsistent with substantial justice.”
IX.
The dissent’s formulation is at its core, no different from the harmless error analysis. But the dissent’s construct misapplies HRS § 657-5 and undermines the precedents established in our eases on notice defects discussed supra and calls into question their viability.
The dissent does not explain why lack of notice in this case was harmful, or why the notice requirement under HRS § 657-5 is absolute while the requirement under HRCP Rule 56(e) is subject to a harmless error analysis. Anomalously, the dissent states that because Petitioner “has actual notice of [Respondent’s] motion to extend ... the statute’s notice requirement has now been satisfied.” See dissenting opinion at 31,
A.
The dissent argues that “the circuit court did not have jurisdiction to grant [Respondent’s] motion before [Petitioner] was afforded notice” and yet “the circuit court would have jurisdiction to grant the motion on remand, because [Petitioner] has now been afforded such notice.” Id. at 31,
Furthermore, the dissent’s mechanistic approach elevates form over substance. Although the dissent maintains that “[Petitioner] had to receive notice of the motion before the circuit court could grant [Respondent’s] motion[,]” the dissent relies on notice the Respondent received after the fact to supply “jurisdiction to grant the motion on remand[.]” See id. at 31,
C.
Additionally, the dissent’s construct is antithetical to its own jurisdictional argument. If, as the dissent maintains, failure of notice is “harmful per se,” and a jurisdictional defect, see id. at 27,
If the ease must be dismissed, then Respondent must refile its motion to extend. See Eto,
D.
The dissent however “do[es] not believe it necessary for [Respondent] to file a new motion on remand.” Dissenting opinion at 31,
Furthermore, in the other cases relied upon by the dissent, there is no indication that upon remand the court could then do
The federal cases relied on by the dissent also do not provide any support for the argument that the court could do the very thing it was held not to have power to do upon remand and based upon the same motion. In Indoor Cultivation, the only power the court had on remand was to “vacate[] the judgment under [FRCP] Rule 60(b)(4) and return[] the conveyances....”
E.
HRS 657-5 provides that “[n]o extension of a judgment or decree shall be granted unless the extension is sought within ten years of the date the original judgment or decree was rendered." (Emphasis added.) The original judgment was entered on December 21,1993. Therefore, were Respondent to attempt to refile or reinstate its motion after the extension order was set aside for lack of jurisdiction under the dissent’s formulation, the second filing or reinstatement of the motion to extend would fall outside of the ten-year statutory period. Under the dissent’s view, Respondent would be entitled to reinstate or resort to its motion “ad infinitum.” See Sluka v. Herman,
In Eto, this court held that, although the Plaintiffs first complaint had been filed within the statutory period, but dismissed due to lack of service, the Plaintiffs second complaint, which was identical to the first, was time-barred as it was filed outside the statute of limitations.
Following the dissent’s rationale, if Respondent were allowed to refile or reinstate its motion after the statutory period had in fact run, the statutory mandate that “[n]o extension of a judgment or decree shall be granted unless the extension is sought within ten years” would be nullified. See HRS § 657-5. Under the dissent’s formulation, Respondent is allowed to reinstate its motion for an extension of judgment after the time for seeking an extension had expired. The dissent’s approach then would have far reaching adverse consequences for the viability of HRS § 657-5.
X.
HRS § 657-5 required that Respondent provide notice to Petitioner prior to entry of
Notes
. The opinion was authored by Associate Judge Daniel R. Foley and joined by Chief Judge Mark Recktenwald and Associate Judge Craig H. Naka-mura.
. The Honorable Karen N. Blondín presided.
. HRS § 657-5 provides as follows:
Unless an extension is granted, every judgment and decree of any court of the State shall be presumed to be paid and discharged at the expiration of ten years after the judgment or decree was rendered. No action shall be commenced after the expiration of ten years from the date a judgment or decree was rendered or extended. No extension of a judgment or decree shall be granted unless the extension is sought within ten years of the date the original judgment or decree was rendered. A court shall not extend any judgment or decree beyond twenty years from the date of the original judgment or decree. No extension shall be granted without notice and the filing of a non-hearing motion or a hearing motion to extend the life of the judgment or decree.
(Emphasis added.)
. HRCP Rule 5(a) governs the "Service and Filing of Pleadings and Other Papers” and provides as follows:
(a) Service: When required. Every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, brief or memorandum of law, offer of judgment, bill of costs, designation of record on appeal, and similar paper shall be served upon each of the parties, but no service need be made on parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.
(Italics in original.) (Emphasis added.)
. HRCP Rule 60(b) provides:
(b) 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 denom-mated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or 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. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
(Italics in original.) (Emphases added.)
.HRCP Rule 55(a) (2008) states that "[wjhen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.”
. See infra note 11.
. Petitioner posits a third question as follows: "Is the Legislature’s 2006 amending of HRS [§ 1636-3 intended to be retroactive?” HRS § 636-3 grants a judgment creditor an automatic lien on any real property of the judgment debtor. Petitioner argues that the lien on real property expired after ten years. Arguably, it is unclear whether Respondent’s judgment lien on real property continues with the extension. At the time Respondent filed to extend its judgment, HRS § 636-3 allowed the lien to extend for ten years. HRS § 636-3 (Supp.2005). In 2006, the statute was amended to allow judgment liens to be extended for the life of the judgment. HRS § 636-3 (Supp.2006). However, neither Respondent nor Petitioner have pointed to any real property within Hawaii that can be attached. The facts of this case do not raise the lien issue. Therefore, the issue is not ripe as it is "not yet appropriate for adjudication.” Office of Hawaiian Affairs v. Housing & Cmty. Dev. Corp. of Hawaii (HCDCH),
.Respondent contends that Petitioner’s Application does not comply with HRS § 602-59(b) (Supp.2007), which sets out the requirements for the contents of an application for certiorari, because (1) "[Petitioner] fails to state whether he is seeking relief from alleged errors of law or fact”; and (2) "[Petitioner] fails to describe how any such error was grave ... and ... of sufficient magnitude to dictate further appeal.” However, Petitioner’s arguments are sufficiently clear as to whether he is seeking relief from errors of law or fact, as he specifically points out under which statutory and constitutional provisions he is seeking relief. Furthermore, because Petitioner alleges errors in violation of state statutory law as well as the state and federal constitutions, we think this rises to the level of "[grave] error ... of sufficient magnitude to dictate further appeal.” Therefore, Petitioner’s Application meets the requirements of HRS § 602—59(b).
. Petitioner also argues that (1) ”[t]he filing of a HRCP 60(b) [m]otion was the correct method for seeking affirmative relief below.” Respondent does not contest this assertion.
. HRCP Rule Rule 55(b)(2) in its entirety reads as follows:
By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a guardian, or other such representative who has appeared therein, and upon whom service may be made under Rule 17. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute.
(Italics in original.) (Emphasis added.) Both Respondent and the ICA cite to Pogia v. Ramos,
. HRS § 431:10-242 provides that "[w]here an insurer has contested its liability under a policy and is ordered by the courts to pay benefits under the policy, the policyholder ... shall be awarded reasonable attorney’s fees and the costs of suit, in addition to the benefits under the policy,” but is silent as to whether the insurer could be awarded fees. No amendments were made to HRS § 431:10-242 after its enactment in 1987. That statute is now in the 2005 replacement volume.
. Oregon Revised Statutes § 18.360 (repealed in 2003) stated as follows:
Whenever, after the entry of judgment, a period of 10 years shall elapse, the judgment and the lien shall expire. However, before the expiration of 10 years the circuit court in which such judgment was docketed, on motion, may renew such judgment and cause a new entry of the same to be made in the judgment docket, after which entry the lien of the judgment shall continue for another 10 years unless sooner satisfied, and after which entry execution may issue upon such judgment for another 10 years.
. Petitioner argues that the declarations of Mr. Bowman, which were offered to show that Respondent was unaware of Petitioner’s address during the time when notice should have been given, should not have been admitted at the HRCP Rule 60(b) hearing. Mr. Bowman’s affidavit stated that Respondent believed that Petitioner had resided in various places around the country, including Florida and Colorado. Petitioner asserts that Bowman’s testimony was "double hearsay[.] ” "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the matter asserted.” Hawaii Rules of Evidence (HRE) Rule 801 (Supp.2007).
Respondent correctly points out that Bowman's statement was not offered to prove that Petitioner had in fact lived in those places; but rather, that Respondent believed Petitioner was absent from Hawai'i and was difficult to locate. Hence, in admitting Bowman’s testimony, the court did not violate the HRE bar against hearsay. In any event, whether or not Bowman's testimony should have been admitted is irrelevant to our determination, as we have concluded that the failure to provide notice was harmless. See discussion infra.
. HRCP Rule 54(c) (2008) states as follows:
Demand for judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a parly against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings.
(Italics in original.)
. FRCP 4(m) states:
If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(l).
. Respondent cites to HRS § 657-18 (1993), which tolls "causes of actions” if the defendant is out of state and unavailable, arguing that the extension of judgment should be tolled because Petitioner was outside the state. Petitioner maintains that "[t]he ICA erred by ignoring the clear expression of [¡legislative intent found in HRS 634-36 [ (1993) ] authorizing substitute service by personal service out-of-state and by certified, registered, or express mail.” This court has held that where service of process by public notice would have sufficed, causes of action are not tolled. See Eto v. Muranaka,
. This court in Wong Kwai Tong referred to “excess” of jurisdiction and "lack” of jurisdiction interchangeably. See id. at 606, 607. The defect can be referred to as an "excess” of jurisdiction where the court has subject matter jurisdiction except over an issue which was decided outside of its power. By the same token, as to the particular provision "providing that the wife should ‘have the right to occupy the home she is now living in[,]' ” id. at 609, jurisdiction was completely absent, and accordingly, had the court in Wong Kwai Tong only attempted to effect a division of property between the parties and nothing more, it would have been completely without jurisdiction. Hence, the difference in terminology was not material.
. In Cooper, the circuit court had invalidated a provision in a divorce decree that had been agreed upon by the parties and approved by the family court because it was an "unenforceable penalty and [ ] therefore void.”
. If this dicta signifies anything, it is the same proposition outlined supra with regard to Wong Kwai Tong, that, although the court had general subject matter jurisdiction over the divorce, the particular matter of the division of the personal estate of the parties was beyond the subject matter jurisdiction granted by the statute.
. Indeed, Cooper indicates the opposite by confining the bases for voiding a judgment under Rule 60(b) to challenges based on personal jurisdiction, subject matter jurisdiction, or due process.
. FRCP and HRCP Rules 60(b)(4) are almost identical. FRCP Rule 60(b)(4) provides:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void[.j
HRCP Rule 60(b)(4) similarly states:
(b) 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: ... (4) the judgment is void[.]
This court has said that "FRCP Rule 60(b) and HRCP 60(b) are identical. When a Hawai'i rule of procedure is modeled after a federal rule, 'the interpretation of [the rule] by the federal courts [is] deemed to be highly persuasive in the reasoning of this court.’ ” Moyle v. Y & Y Hyup Shin, Corp.,
. The case revolved around provisions of the Anti-Drug Abuse Act of 1988, codified at 21 U.S.C. § 888, which "[gave] owners of [] conveyances [seized by the government for drug-related offenses] several procedural rights not enjoyed by claimants in other federal forfeiture actions.” Id. at 1313. "Most relevant" was 21 U.S.C. § 888(c), which “requirejd] the government to file its complaint for forfeiture against any conveyance it [had] seize[d] for a drug-related offense not later than 60 days after a claimant contested] the seizure by filing a claim and cost bond.” Id. at 1313-14. Appellant argued and the Seventh Circuit agreed that "because the government did not file its civil complaint seeking the forfeiture of his property until ... over eighteen months after he filed the appropriate claims and cost bonds, the only jurisdiction the district court retained over these three conveyances, according to § 888(c), was to order their return to [the appellant] and prevent any forfeiture of them from taking place.” Id. at 1314.
That court based its decision on the "evident" legislative purpose to protect innocent owners. Id. at 1315-16. As to the statutory intent, the court stated that "[b]ecause conveyances seized under the forfeiture law can remain tied up during the pendency of ... proceedings for months on end, innocent owners may be deprived of their principal mode of transportation for extended periods of time ... [and] the conveyances returned to innocent owners may be worth substantially less....” Id. at 1316.
. The Fifth Circuit discussed circumstances under which a judgment may be void under FRCP Rule 60(b)(4) in Carter. In its FRCP Rule 60(b) motion, the City had not alleged that the court lacked jurisdiction or that due process was violated, "but instead insisted that Carter’s own procedural failures rendered the judgment void.” Id. at 1006. In its discussion, the court recognized that "[s]ome circuits have noted that a judgment is void if the rendering court was powerless to enter it ... [w]hile such holdings most obviously allude to a jurisdictional defect, they allow enough room to capture within their reach situations where the parties' failure to follow relevant law or procedure in securing the judgment will undermine its ultimate validity.” Id. (citation omitted).
. To that end, the Fifth Circuit concluded that "[ultimately, the statute and the jurisprudence elevate the protection of the delicate interests of the minor over all other considerations.” Id. at 1008 (emphasis added). No similar considerations are present in the instant case. Furthermore, the case rested on Fifth Circuit precedent on the issue. That court had previously held that
[f]or adults functioning on behalf of minors there remains a continuing duty to act in the best interests of the child—"as a prudent administrator,” La.Code. Civ. Proc. art. 4262- and to seek and obtain prior court approval under 4271 before compromising those interests. Compromises entered into absent these protections are of no legal effect .... "[T]he courts of Louisiana have been most protective of the minor's interest in the area of settlement of claims and have not hesitated to nullify any settlement or compromise that was not judicially approved.”
Id. (quoting Johnson v. Ford Motor Company,
. Therefore, we disagree with the dissent that Clarke dictates that the error is harmful per se or jurisdictional in this case. See Dissenting opinion at 30 n. 6,
. At the time of Clarke, Jensen, Shelton, and Kau the requirement was 10 days instead of 18. The rule was amended subsequently. See Order Amending the Hawaii Rules of Civil Procedure (Sept. 11, 1996); Order Amending Rules 6(d) and 56(c) of the Hawaii Rules of Civil Procedure (May 15, 1997).
. Similarly, although the dissent attempts to distinguish Stafford and Korean Buddhist Temple as being due process cases, see dissenting opinion at 30,
Likewise, in Korean Buddhist Temple, the language of the statute was mandatory; "No official of an agency who renders a decision in a contested case shall consult any person on any issue of fact except upon notice and opportunity for all parties to participate.”
. As explained at length supra, Petitioner’s "substantial rights" were not affected here. Initially, he was provided notice of the original action and failed to defend it. Then, although he was not timely provided notice of extension, he was subsequently put on notice and filed a Rule 60(b) motion to set aside the judgment. In the course of his motion and the Rule 60(b) hearing, he made no argument in his defense on the merits, or ever claimed that the original judgment was faulty or that he had ever attempted to satisfy the judgment. Nor has he made any such argument on appeal to the ICA or to this court. At this point, Petitioner has had more than sufficient process.
. HRS § 657-5 provides in relevant part that "[n]o extension [of a judgment or decree] shall be granted without notice and the filing of a non-hearing motion or a hearing motion to extend the life of the judgment or decree.”
. The majority maintains that Clarke is distinguishable from the case at bar on the ground that, in Clarke, the plaintiff did not receive notice or an opportunity to raise defenses in the original proceeding. Majority opinion at 18,
Concurrence Opinion
Concurring and Dissenting Opinion by
with whom NAKAYAMA, J., joins.
I agree with much of the majority’s analysis, particularly its conclusion that the first circuit court erred in granting the motion filed by the plaintiff-appellee-respondent Bank of Hawaii (the Bank) to extend its December 21, 1993 deficiency judgment against the defendant-appellant-petitioner Michael L. Shinn, because he was not afforded notice of the Bank’s motion to extend before it was granted by the circuit court, in contravention of Hawaii Revised Statutes (HRS) § 657-5 (Supp.2001).
I. DISCUSSION
A The ICA Erred In Concluding That The Circuit Court Did Not Abuse Its Discretion In Denying Shinn’s Motion To Set Aside The Order Extending The Deficiency Judgment On The Ground That The Extension Was Void.
HRCP Rule 60(b)(4) provides in relevant part that, “[o]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment ... for the [reason that] ... the judgment is void.” “If a judgment is only void in part and the void poi’tion can be separated from the balance, relief may be granted to that extent.” McGrew v. McGrew,
This court decided a similar question in Wong Kwai Tong v. Choy Yin,
This court employed a comparable analysis in Cooper v. Smith,
Although this court observed in Cooper that the “ ‘onl/ ” infirmities that would render a judgment void arise from a defect relating to subject-matter jurisdiction, personal jurisdiction, or due process, id. at 454,
The question becomes whether the circuit court’s violation of HRS § 657-5 in ordering the extension of the Bank’s deficiency judgment without the required notice to Shinn was “jurisdictional” or merely “procedural” in nature. See Wong Kwai Tong,
The majority maintains that this court’s primary concern in Clarke was the fact that the employee had not had an opportunity to be heard on the merits of the motion for summary judgment. Majority opinion at 17,
Following Clarke, we decided Shelton Engineering Contractors, Ltd. v. Hawaiian Pacific Industries,
Most recently, in Querubin v. Thronas,
The majority asserts that, because we did not apply Clarke’s jurisdictional principle in Querubín, where no notice was given, violations of a notice requirement, whether complete or partial, are therefore subject to harmless error analysis and are not jurisdictional in nature. Majority opinion at 19,
To summarize, where a circuit court acts in violation of HRCP Rule 56(c)’s notice requirement, but there has been at least some notice of the hearing, the aggrieved party must show that he has been prejudiced by the violation. See Shelton,
B. The Circuit Court May Rule On The Bank’s Motion On Remand Now That Shinn Has Notice Of The Motion:
Although the circuit court abused its discretion in refusing to set aside the order extending the judgment on the ground that Shinn was not afforded notice of the Bank’s motion to extend the deficiency judgment prior to its extension, as required by HRS § 657-5, it is undisputed that Shinn presently has actual notice of the Bank’s motion to extend. Therefore, the statute’s notice requirement has now been satisfied. Its two remaining requirements have been satisfied as well. First, HRS § 657-5 states that “[n]o extension of a judgment or decree shall be granted unless the extension is sought within ten years of the date the original judgment or decree was rendered.” Thus, in order for the circuit court to grant an extension of a judgment, the extension must be “sought” within ten years of the date of the judgment. The statute does not require that the circuit court actually grant the extension before the expiration of the ten-year period. In the present matter, the original deficiency judgment was entered on December 21,1993. On December 10, 2003, the Bank “sought” to extend the judgment when it filed its motion. Thus, the motion was “sought” within the ten-year period prescribed by HRS § 657-5. Second, the statute provides that “[a] court shall not extend any judgment or decree beyond twenty years from the date of the original judgment or decree.” In this ease, because the judgment was entered on December 21, 1993, an extension, which was “sought” within ten years of its entry, may be granted prior to December 21, 2013. Accordingly, the three conditions set forth in HRS § 657-5 have now been satisfied. Hence, I do not believe that any of the statute’s provisions would preclude the circuit court from granting the Bank’s motion to extend the deficiency judgment on remand.
The majority asserts that my conclusion that HRS § 657-5’s requirements, including its notice requirement, have now been satisfied, such that the statute would not presently prevent the circuit court from granting the Bank’s motion on remand, is incongruent with my earlier determination that the circuit court’s grant of the Bank’s motion before the statute’s notice requirement had been satisfied was, at that point, a jurisdictional defect and thus harmful per se, see supra section I.A Majority opinion at 21,
Because he now has notice of the motion, I do not believe it necessary for the Bank to file a new motion on remand. The majority insists that such a motion would be required because it believes that, if the circuit court lacked jurisdiction to extend the judgment, then this case must be dismissed. Majority opinion at 22,
II. CONCLUSION
In light of the foregoing, I would reverse the ICA’s judgment to the extent that it affirmed the circuit court’s order denying Shinn’s HRCP Rule 60(b)(4) motion to set aside the deficiency judgment insofar as the judgment was extended in contravention of HRS § 657-5. I would therefore remand this matter to the circuit court for proceedings consistent with this opinion. I otherwise agree with the majority’s disposition of this case. See majority opinion at 4-5 n. 8, 24-25,
. See also majority opinion at 16-17,
. HRCP Rule 56(c) was subsequently amended in 1996 to require that the motion be served within fifteen days of the time set for hearing. Order Amending the Hawai'i Rules of Civil Procedure (Sept. 11, 1996). And, in 1997, the rule was further amended to require that the motion be served within eighteen days of the time set for hearing. Order Amending Rules 6(d) and 56(c) of the Hawai'i Rules of Civil Procedure (May 15, 1997).
. This court employs a similar framework in analyzing the notice required by a charging instrument in the criminal context. If a defendant is not charged with all of the essential elements of an offense, the court is deprived of subject matter jurisdiction and the omission is prejudicial perse. State v. Cummings,
. The majority asserts that Carter is distinguishable from the present case. Majority opinion at 16 n. 25,