WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT INDIVIDUALLY BUT AS TRUSTEE FOR PRETIUM MORTGAGE ACQUISITION TRUST, Respondent/Plaintiff-Appellee, vs. TERRENCE RYAN and LUCILLE RYAN, Petitioners/Defendants-Appellants, and FIRST LIGHT ENTERPRISES LLC; BLUE WATER ALLIANCE, LLC, Respondents/Defendants-Appellees.
SCWC-18-0000071
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
JANUARY 14, 2021
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-18-0000071; CAAP-18-0000312; CAAP-18-0000388; CIV. NO. 5CC121000306)
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE TONAKI, ASSIGNED BY REASON OF VACANCY
I. Introduction
This certiorari proceeding arises out of an appeal from a foreclosure judgment. In their certiorari application, Terrence Ryan (“Terrence“) and Lucille Ryan (“Lucille“) (collectively, “the Ryans“) present the following question:
Did the Intermediate Court of Appeals (“ICA“) commit grave errors of law and/or fail to reconcile obvious inconsistencies in its decision with those of the Hawaii Supreme Court when the ICA concluded that the Circuit Court did not abuse its discretion by denying the moving party‘s motion to extend time to file notice of appeal where the moving party affirmatively inquired directly with the Circuit Court about when the order was filed, and the Circuit Court staff provided incorrect information to the moving party leading the moving party to believe that the thirty days to file the notice of appeal had not yet begun tolling?
We hold as follows: (1)
We therefore vacate the ICA‘s May 7, 2020 judgment on appeal and remand this case to the ICA for further proceedings consistent with this opinion.
II. Background
A. Factual background
On or about February 20, 2009, the Ryans executed a promissory note in the principal amount of $625,000 in favor of Bank of America, N.A. (“Bank of America“). To secure payment, the Ryans executed a mortgage encumbering real property located in Kalāheo, Hawaiʻi. The Ryans apparently failed to make timely payments then failed to cure the default despite Bank of America‘s written notice regarding its intent to accelerate the loan and to foreclose.
B. Procedural background
1. Circuit court proceedings
a. Complaint, foreclosure judgment
On October 30, 2012, Bank of America filed a foreclosure complaint against the Ryans in the Circuit Court of the Fifth Circuit (“circuit court“).4 Between November 7, 2012, and April 1, 2013, Bank of America attempted to personally serve the Ryans with the complaint in Kalāheo and in Washington State. After the circuit court authorized service by certified mail, Terrence was served on March 13, 2015, and Lucille was served on March 19, 2015, at different locations within Washington State.
On March 23, 2015, the Ryans filed a pro se motion for a 120-day extension of time to respond to the complaint (“answer extension motion“). On April 7, 2015, the circuit court legal documents branch informed the Ryans that the motion was deficient because it did not include a case type in the caption, was filed without a case type and/or case number, and there was no order submitted at the time of filing. That same day, the Ryans responded to the memorandum, providing a case type and a case number, but did not include an order.
Through several assignments and orders of substitution starting on May 9, 2013, Wilmington Savings Fund Society, FSB, D/B/A Christiana Trust, Not Individually but as Trustee for Pretium Mortgage Acquisition Trust (“Wilmington“), substituted as plaintiff effective December 22, 2016.
On April 27, 2017, at Wilmington‘s request, the circuit court clerk entered defaults against the Ryans for their failure to plead or otherwise defend.5 Then, on June 21, 2017,
On July 21, 2017, despite the April 27, 2017 entry of default, the circuit court filed an order granting the Ryans’ March 23, 2015 answer extension motion, but which stated: “THIS MATTER is before the court upon [the Ryans‘] Motion for an Extension of Time to Answer Plaintiff‘s Complaint for an additional 120 days (July 21, 2015) from the date of filing of this motion.”6
On August 31, 2017, the Ryans, now represented by counsel, filed a memorandum in opposition to the summary judgment motion for foreclosure.
At the September 5, 2017 hearing on the summary judgment motion, the circuit court noted the April 27, 2017 entry of default and granted Wilmington‘s motion. On September 20, 2017, the circuit court entered its findings of fact, conclusions of law, and order granting summary judgment (“foreclosure order“), as well as its foreclosure judgment.
b. Motion for reconsideration
On September 29, 2017, the Ryans moved for reconsideration of the foreclosure order and judgment (“foreclosure reconsideration motion“). The Ryans requested an opportunity to answer the complaint and to be reheard on the summary judgment motion. On October 9, 2017, Wilmington responded, arguing the Ryans failed to set forth any basis for setting aside the entry of default or the grant of summary judgment.
c. Denial of reconsideration motion
On October 20, 2017, the circuit court‘s law clerk emailed the parties’ counsel, stating: “Based on your respective pleadings, arguments, and authorities cited, the court is DENYING [the foreclosure reconsideration motion]. The court requests that [Wilmington‘s counsel] prepare the order and submit it within two (2) weeks.”
On November 9, 2017, Wilmington‘s counsel emailed and mailed the proposed order denying the foreclosure reconsideration motion to the Ryans’ counsel. On November 13, 2017, the circuit court‘s judicial assistant emailed Wilmington‘s counsel asking for a status update regarding the order. Wilmington‘s counsel responded that the proposed order had been sent to the Ryans’ counsel but that it would be
submitted to the circuit court in accordance with
The circuit court filed its order denying the foreclosure reconsideration motion (“order denying foreclosure reconsideration“) on December 8, 2017. Despite the previous certification from Wilmington‘s counsel, as well as the
d. Ryans’ attempts to extend time to appeal
Based on the December 8, 2017 filing of the order, the initial thirty-day deadline for filing a notice of appeal8 or a
After the initial thirty-day deadline for filing a notice of appeal expires,
On January 26, 2018, the Ryans submitted an ex parte motion for a thirty-day extension to file a notice of appeal (“ex parte extension motion“), citing
January 2, 2018, Taiatini called the circuit court‘s chambers to ask about the status of the order. A member of the circuit court staff told Taiatini that “the order was not entered, that the order might be on [the judge‘s] desk, that [the judge] was out at the time, and that they will follow up on the following Monday.” On January 25, 2018, however, the Ryans noticed a new entry in Hoʻohiki indicating an order denying the foreclosure reconsideration motion had been filed on December 8, 2017. Relying on the information provided by a circuit court staff member over the phone on January 2, 2018, however, they had believed the order had not been filed as of that date.
Although the January 26, 2018 motion was filed ex parte, a certificate of service was attached as required by
In its memorandum in opposition, Wilmington maintained the Ryans’ reliance upon the circuit court staff‘s representations did not constitute “excusable neglect,” citing to Bank of Hawaii v. Shaw, 83 Hawaiʻi 50, 924 P.2d 544 (App. 1996).14 Wilmington
also contended the Ryans failed to address Wilmington‘s alleged service of the December 8, 2017 order denying foreclosure reconsideration.15 Wilmington also argued the Ryans did not explain why they failed to follow up with Wilmington regarding the filing status of the order.
Wilmington also maintained the motion was procedurally improper because
On January 31, 2018, the circuit court filed the order denying the January 26, 2018 motion (“order denying ex parte extension motion“).
After this denial, through an ex officio filing with the clerk of the appellate courts on February 2, 2018, the Ryans filed a motion for extension of time to file a notice of appeal as a hearing motion (“appeal extension motion“). This motion raised the same arguments and attached declarations as did the January 26, 2018 ex parte motion. The motion was stamped received by the circuit court on February 5, 2018, two days before the deadline for filing a
On February 2, 2018, the same day the Ryans filed the appeal extension motion as a hearing motion, the Ryans also filed a motion seeking reconsideration of the January 31, 2018 order denying ex parte extension motion (“reconsideration motion of ex parte appeal denial“), raising the same arguments made in their ex parte extension motion. In this motion, the Ryans also cited to King v. Elkayam, CAAP-16-0000209, 2016 WL 3762628, at *7 (App. July 13, 2016) (order), which had noted that “[appellants] presented no reason for their failure, for example, to send a messenger to court to look up the relevant date, and we see no “forces beyond their control,” -- at least on this record -- that prevented them from taking this eminently reasonable step.” (Alteration in original.) The Ryans argued that, in contrast, they took the “eminently reasonable step” of contacting the circuit court directly, but were provided incorrect information by circuit court staff.17
On February 6, 2018, despite the circuit court‘s denials of their January 26, 2018 extension motion and their motion to advance the hearing date on their February 2, 2018 hearing motion, the Ryans proceeded to file a notice of appeal, in CAAP-18-0000071. In this notice of appeal, the Ryans purported to appeal the circuit court‘s (1) September 20, 2017 foreclosure order; (2) September 20, 2017 foreclosure judgment; (2) December 8, 2017 order denying foreclosure reconsideration; (4) January
31, 2018 order denying ex parte extension motion; and (5) February 6, 2018 order denying motion to advance.18
On February 12, 2018, Wilmington filed an opposition to the Ryans’ February 2, 2018 reconsideration motion of ex parte appeal denial. Citing to
(2) the circuit
On February 26, 2018, Wilmington also filed an opposition to the February 2, 2018 appeal extension motion, reasserting the arguments it previously made. Wilmington also argued the Ryans failed to take reasonable steps to keep informed of the status of the December 8, 2017 order as they only called the circuit court once between October 20, 2017, when the circuit court informed the parties of the denial of the foreclosure reconsideration motion, and January 25, 2018, the date the Ryans asserted they learned of the filing of the December 8, 2017
order. Further, Wilmington noted the Ryans did not allege they tried to contact Wilmington‘s counsel or the circuit court a second time, or ask a messenger to check the circuit court‘s file to determine the status of the order. Wilmington thus maintained a single phone call in three months did not constitute “eminently reasonable steps” justifying an extension to file a notice of appeal.
On March 8, 2018, the circuit court filed its order denying reconsideration motion of ex parte appeal. On April 6, 2018, the Ryans filed their second notice of appeal, in CAAP-18-0000312, from the March 8, 2018 order.
At the March 6, 2018 hearing on the February 2, 2018 appeal extension motion, the parties rested on their written submissions, and the circuit court orally denied the motion. On April 5, 2018, the circuit court entered its order denying this motion. On May 4, 2018, the Ryans filed their third notice of appeal, in CAAP-18-0000388, from the April 5, 2018 order.
2. ICA proceedings
On August 13, 2018, the ICA consolidated the three appeals.
a. Opening brief
In their opening brief, in summary, the Ryans repeated their arguments below, asserting they were deprived of an opportunity to timely file a notice of appeal from the order denying foreclosure reconsideration because of the circuit court staff‘s statements. They also asserted the circuit court abused its discretion by denying their request to advance the hearing on their February 2, 2018 appeal extension motion, effectively denying them leave to file their notice of appeal, especially when the circuit court had been lenient with Wilmington‘s and its own issues of timeliness.21
Newly attached to the Ryans’ opening brief was a declaration from Yoshida dated June 20, 2018, raising matters not contained in the record on appeal. Yoshida averred that on February 5, 2018, at the request of the circuit court, Yoshida participated in a conference call with the circuit court and Wilmington‘s counsel, and in that conference call, (1) the circuit court stated it spoke to its staff about his representations, who stated they did not provide incorrect information and were upset by the way Yoshida portrayed them; (2) Yoshida apologized to the circuit court and its staff, but stood by his representations, particularly regarding Taiatini‘s statements regarding her call with circuit
agree to such a stipulation. Yoshida asserted that as a result of the conference call, he was left with the impression that the circuit court believed its staff over Taiatini. The Ryans argued that the circuit court abused its discretion as it “abandoned its position of neutrality by seeking out evidence outside the Court record.”
b. Answering brief
In its answering brief, Wilmington repeated its arguments below, and also maintained the Ryans’ February 6, 2018 appeal was not timely as to substantive issues regarding the foreclosure. Wilmington also argued that despite Yoshida‘s declaration attached to the opening brief, the record did not contain any reference to the February 5, 2018 conference call. Wilmington alleged the Ryans’ attempt to introduce such “evidence” by way of their declaration violated
c. Reply brief
In their reply brief, the Ryans asserted that when parties make an inquiry with the court, the parties must be able to rely on the information the court directly provides them and must also be granted relief if the court provides incorrect information.
d. ICA‘s memorandum opinion
In its April 9, 2020 memorandum opinion, the ICA rejected the Ryans’ challenges.
With respect to the issues we address on certiorari, in CAAP-18-0000071, the ICA ruled as follows. Because the order denying foreclosure reconsideration was entered on December 8, 2017, the notice of appeal from the foreclosure order, judgment, and order denying foreclosure reconsideration was due on January 8, 2018. Ryan, mem. op. at 8. The ICA lacked jurisdiction to review the foreclosure order, judgment, and order denying foreclosure reconsideration because the Ryans did not file the first notice of appeal until February 6, 2018. Id. Although (. . .continued) the record by error or accident or is misstated therein, corrections or modifications may be as follows: . . . (B) by the court . . . appealed from, either before or after the record is transmitted[.]“). Appellate courts are also authorized to modify the record based on
the February 6, 2018 notice of appeal was filed within thirty days after entry of the February 6, 2018 order denying motion to advance, giving the ICA appellate court jurisdiction over that order, a trial court‘s ruling on a motion to shorten time for, advance, or reschedule a hearing is not subject to review or reconsideration. Id. (citing
Thus, the ICA only addressed issues (4) and (5) in the February 6, 2018 notice of appeal on the merits, and it affirmed the circuit court‘s January 31, 2018 order denying ex parte extension motion and the February 6, 2018 order denying motion to advance. Ryan, mem. op. at 8-9. The ICA ruled it lacked appellate jurisdiction over issues (1) through (3), which concerned substantive issues regarding the foreclosure. Id.
As to CAAP-18-0000312, the ICA concluded that it had jurisdiction to review the Ryans’ April 6, 2018 notice of appeal, which was filed within thirty days after entry of the March 8, 2018 order denying reconsideration of ex parte appeal extension denial. Ryan, mem. op. at 10 (citing Tax Appeal of Subway Real Estate Corp. v. Dir. of Taxation, State of Haw., 110 Hawaiʻi 25, 30, 129 P.3d 528, 533 (2006)). The ICA also affirmed the March 8, 2018 order on the grounds the January 26, 2018 motion was improperly filed ex parte and therefore reconsideration was properly denied. Id.
With respect to CAAP-18-0000388, the ICA concluded that it had jurisdiction to review the Ryans’ May 4, 2018 notice of appeal, which was filed within thirty days after entry of the April 5, 2018 order denying the Ryans’ February 2, 2018 appeal extension motion. Id. The ICA ruled, however, that the Ryans failed to establish “excusable neglect” as required by
3. Supreme court proceedings
a. Certiorari application
In their certiorari application, the Ryans present the following question:
Did the Intermediate Court of Appeals (“ICA“) commit grave errors of law and/or fail to reconcile obvious inconsistencies in its decision with those of the Hawaii Supreme Court when the ICA concluded that the Circuit Court did not abuse its discretion by denying the moving party‘s motion to extend time to file notice of appeal where the moving party affirmatively inquired directly with the Circuit Court about when the order was filed, and the Circuit Court staff provided incorrect information to the moving party leading the moving party to believe that the thirty days to file the notice of appeal had not yet begun tollling?
b. Response
In its response, in addition to repeating previous arguments, Wilmington addressed this court‘s opinion in Eckard Brandes, Inc. v. Department of Labor and Industrial Relations, 146 Hawaiʻi 354, 463 P.3d 1011 (2020), issued eleven days after the ICA‘s memorandum opinion. Wilmington argues that the Ryans failed to show “excusable neglect” even under the “new standard” of “excusable neglect” set forth in Eckard Brandes. Wilmington states that Eckard Brandes “made it clear that any determination regarding ‘excusable neglect‘” in
III. Standards of review
A. Interpretation of court rules
“When interpreting rules promulgated by the court, principles of statutory construction apply.” Kawamata Farms, Inc. v. United Agri Products, 86 Hawaiʻi 214, 255, 948 P.2d 1055, 1096 (1997). “The interpretation of a statute [or rule] is a question of law which this court reviews de novo.” Id.
The grant or denial of a trial court‘s decision to grant a motion for extension of time to file a notice of appeal is reviewed for abuse of discretion. Hall v. Hall, 95 Hawaiʻi 318, 320, 22 P.3d 965, 967 (2001).
C. Finding of excusable neglect
“A trial court‘s order granting a motion to extend time for filing a notice of appeal on the grounds of excusable neglect is reviewed for an abuse of discretion.” Eckard Brandes, 146 Hawaiʻi at 358, 463 P.3d at 1015.
IV. Discussion
A. HRAP Rule 4(a)(4)(B) motions are not properly filed as ex parte motions
An appeal extension motion based on “good cause” filed within the initial thirty days after an appeal deadline triggering order or judgment can be submitted ex parte pursuant to
Therefore, the remaining issues we address on certiorari are the circuit court‘s (1) February 6, 2018 order denying motion to advance, which is issue (5) in the Ryans’ February 6, 2018 notice of appeal in CAAP-18-0000071; and (2) the April 5, 2018 order denying the Ryans’ February 2, 2018 appeal extension motion, the subject of the Ryans’ May 4, 2018 notice of appeal in CAAP-18-0000388.
B. The RCCH Rule 7.2(g)(5)(A) provision disallowing appellate review of decisions on motions to advance hearings is inapplicable to decisions on HRAP Rule 4(a)(4)(B) motions
With respect to the circuit court‘s February 6, 2018 order denying motion to advance, the ICA ruled that although appellate jurisdiction existed, the circuit court‘s ruling denying the motion to advance is not subject to appellate review. Ryan, mem. op. at 8. The ICA based its ruling on the language of
Pursuant to
Preliminarily,
As explained below, however, the provision disallowing appellate review within
First, not allowing appellate review of circuit court denials of requests to advance or shorten time for
(4) Extensions of Time to File the Notice of Appeal.
. . . .
(B) Requests for Extensions of Time After Expiration of the Prescribed Time. The court or agency appealed from, upon a showing of excusable neglect, may extend the time for filing the notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by subsections (a)(1) through (a)(3) of this Rule. However, no such extension shall exceed 30 days past the prescribed time. Notice of an extension motion filed after the expiration of the prescribed time shall be given to the other parties in accordance with the rules of the court . . . appealed from.
(Emphasis added.)
Thus,
Second, when a literal interpretation of a court statute or court rule would lead to absurd or unjust results, the court may depart from its plain reading. United Agri Products, 86 Hawaiʻi at 255, 948 P.2d at 1096; Franks v. City & Cty. of Honolulu, 74 Haw. 328, 341, 843 P.2d 668, 674 (1993) (principles of statutory construction apply to interpretation of court rules). For the reasons below, subjecting
Pursuant to
Circuit courts have discretion, however, in the scheduling of hearings on motions. Although circuit courts can also order
Thus,
Not allowing appellate review for abuse of discretion on
We therefore hold, pursuant to
C. The circuit court abused its discretion by denying the motion to advance hearing on the Ryans’ motion to extend time for filing a notice of appeal
Having ruled appellate review of the circuit court‘s February 6, 2018 order denying motion to advance is allowed, we next address whether the circuit court abused its discretion by denying the motion and not scheduling a hearing by the February 7, 2018 deadline. As noted above,
With respect to whether the hearing should have been advanced, because the Yoshida and Taiatini declarations were not refuted with any other evidence in the record on appeal, they are taken as true.31 Thus, there is nothing in the record on appeal contradicting the Ryans’ representations that they checked for the status of the order denying reconsideration weekly after the November 20, 2017
conduct a hearing, and enter an order on the motion before the February 7, 2018 deadline. We therefore hold that the circuit court abused its discretion in denying the motion to advance.
D. The Ryans showed “excusable neglect” and their February 2, 2018 appeal extension motion should have been granted
Finally, we address whether the Ryans’ February 2, 2018
In general, trial courts should allow parties to exercise their appeal rights. As Wilmington notes, in Eckard Brandes, this court ruled that “as indicated by the United States Supreme Court in Pioneer[ Investment Services Co. v. Brunswick Associates Ltd. Partnership], 507 U.S. 380 [(1993)] . . ., whether ‘excusable neglect’ exists [to obtain a
language: ‘neglect’ that is ‘excusable,’ which, ‘involve[s] a broad, equitable, inquiry’ ‘taking into account all relevant circumstances surrounding the party‘s omission[,]’ ” and “the determination of whether ‘excusable neglect’ exists should lie largely in the discretion of the court.” Id. (first alteration in original).
Even if the steps the Ryans took constituted “neglect,”33 the neglect was “excusable.” The Ryans represent they checked Hoʻohiki weekly for the status of the order denying reconsideration weekly after the November 20, 2017
Eckard Brandes had not been decided as of the time of the circuit court and ICA decisions. In rejecting the Ryans’ arguments regarding “excusable neglect,” the ICA relied on Enos v. Pacific Transfer & Warehouse, Inc., 80 Hawaiʻi 345, 910 P.2d 116 (1996). Ryan, mem. op. at 10-11. The ICA characterized the Ryans’ argument as blaming the circuit court clerk for their failure to timely file a notice of appeal, and ruled excusable neglect did not exist. Id.
Enos is clearly distinguishable. In Enos, movant‘s counsel had actual notice of the filing of the judgment eighteen days before the initial appeal deadline. 80 Hawaiʻi at 353, 910 P.2d at 124. The primary basis for the motion to extend was counsel‘s belief that the time for filing a notice of appeal was triggered by the filing of a notice of entry of judgment rather than by the filing of the judgment itself. 80 Hawaiʻi at 354, 910 P.2d at 125. We held the trial court abused its discretion by granting the motion to extend time for filing a notice of appeal because the failure to timely file the appeal was caused by counsel‘s failure to read and comply with the plain language of applicable procedural
Although the Ryans’ January 26, 2018 ex parte motion did not comply with applicable procedural rules, their February 2, 2018 motions to extend and advance the hearing did. They did not know until January 25, 2018, that the order triggering appeal deadlines had been filed on December 8, 2017.
Wilmington also bears responsibility for this lack of knowledge of the December 8, 2017 filing of the order denying foreclosure reconsideration. As explained earlier, on November 20, 2017, Wilmington filed a
Thus, the circumstances of this case indicate that even if there was “neglect,” under a “broad, equitable, inquiry” “taking into account all relevant circumstances surrounding the party‘s omission[,]” the “neglect” was “excusable” under the circumstances.
Hence, we hold that the circuit court abused its discretion by denying the Ryans’ February 2, 2018 appeal extension motion.
As there were abuses of discretion in denying the February 2, 2018 motions to advance hearing and to extend the time for filing an appeal, the Ryans’ February 6, 2018 notice of appeal in CAAP-18-0000071 was timely filed from the December 8, 2017 order denying foreclosure reconsideration. Therefore, we remand to the ICA to consider the merits of the other issues over which appellate jurisdiction exists based on the Ryans’ timely appeal of the December 8, 2017 order denying foreclosure reconsideration.
V. Conclusion
Based on the reasons above, we vacate the ICA‘s May 7, 2020 judgment on appeal and remand to the ICA for further proceedings consistent with this opinion.
Gary V. Dubin, Frederick J. Arensmeyer, and Matthew K. Yoshida for petitioners
Charles R. Prather, Robin Miller, Sun Young Park, and Peter T. Stone, for respondent
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ John M. Tonaki
Notes
(4) Extensions of Time to File the Notice of Appeal.
. . . .
(B) Requests for Extensions of Time After Expiration of the Prescribed Time. The court or agency appealed from, upon a showing of excusable neglect, may extend the time for filing the notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by subsections (a)(1) through (a)(3) of this Rule. However, no such extension shall exceed 30 days past the prescribed time. Notice of an extension motion filed after the expiration of the prescribed time shall be given to the other parties in accordance with the rules of the court . . . appealed from.
(5) Motion to Shorten Time for, Advance, or Reschedule Hearing.
(A) A motion to shorten time for hearing or motion to advance hearing shall . . . cite the authority and state the reason(s) and factual or other basis for the request. . . . . The assigned judge may grant or deny the motion, and such grant or denial shall not be subject to review or reconsideration. . . . .
(a) Entry. When 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 (continued. . .)
Our office recently re-sent this document to the judge for review and signature. Since no copies were provided with your order, we are providing you 2 courtesy certified copies. Please assure, you serve opposing party said document to assure they are aware of the decision of the court. When submitting documents in the future, please provide original and copies enough for serving opposing party(ies) and your records.
Lastly an apology for delay in the processing of document. This document was provided to the court for review and signature when it was first sent. For unforeseen reasons, the[] document was not acted upon in a timely manner.
(b) Party Approval or Objection to Form; Delivery to Court. If there is no objection to the form of a proposed judgment, decree, or order, the other parties shall promptly approve as to form. If a proposed judgment, decree, or order is not approved as to form by the other parties within 5 days after a written request for approval, the drafting party shall deliver, by filing conventionally or electronically, the original and 1 copy to the court along with notice of service on all parties and serve a copy thereof upon each party who has appeared in the action. If any party objects to the form of a proposed judgment, decree, or order, that party shall, within 5 days after service of the proposed judgment, decree, or order, serve upon each party who has appeared in the action and deliver to the court, either conventionally or through electronic filing:
(1) A statement of objections and the reasons therefor, and
(2) The form of the objecting party‘s proposed judgment, decree, or order.
In such event, the court shall proceed to settle the judgment, decree, or order. Failure to file and serve objections and a proposed judgment, decree, or order shall constitute approval as to form of the drafting party‘s proposed judgment, decree, or order.
Rule 4. Appeals -- When Taken.
(a) Appeals in civil cases.
(1) Time for filing. When a civil appeal is permitted by law, the notice of appeal shall be filed within 30 days after entry of the judgment or appealable order.
. . . .
(3) Time to appeal affected by post-judgment motions. If any party files a timely motion . . . to reconsider, alter or amend the judgment or order, . . . then the time for filing the notice of appeal is extended for all parties until 30 days after entry of an order disposing of the motion. . . . .
The notice of appeal shall be deemed to appeal the disposition of all post-judgment motions that are timely filed after entry of the judgment or order.
(4) Extensions of Time to File the Notice of Appeal.
(A) Requests for Extensions of Time Before Expiration of the Prescribed Time. The court or agency appealed from, upon a showing of good cause, may extend the time for filing a notice of appeal upon motion filed within the time prescribed by subsections (a)(1) through (a)(3) of this Rule. However, no such extension shall exceed 30 days past such prescribed time. An extension motion that is filed before the expiration of the prescribed time may be ex parte unless the court . . . otherwise requires.
(f) Ex parte motions. A motion entitled to be heard ex parte shall:
(1) cite the statute, rule, or other authority authorizing the court to entertain the motion ex parte;
(2) be supported by an affidavit or declaration stating the reason(s) for filing the motion ex parte, the efforts made to notify parties, and, if the motion is to shorten time or advance a hearing pursuant to subsection (g)(5) of this Rule, the efforts made to obtain a stipulation or response from the other parties in the case or the reason(s) why no attempt was made;
(3) be accompanied by a proposed order; and
(4) be served on the date that the motion was presented to the court.
(3) Time to appeal affected by post-judgment motions. 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 attorney‘s fees or costs, and court or agency rules specify the time by which the motion shall be filed, then the time for filing the notice of appeal is extended for all parties until 30 days after entry of an order disposing of the motion. The presiding court or agency in which the motion was filed shall dispose of any such post-judgment motion by entering an order upon the record within 90 days after the date the motion was filed. If the court or agency fails to enter an order on the record, then, within 5 days after the 90th day, the clerk of the relevant court or agency shall notify the parties that, by operation of this Rule, the post-judgment motion is denied and that any orders entered thereafter shall be a nullity. The time of appeal shall run from the date of entry of the court or agency‘s order disposing of the post-judgment motion, if the order is entered within the 90 days, or from the filing date of the clerk‘s notice to the parties that the post-judgment motion is denied pursuant to the operation of the Rule.
The notice of appeal shall be deemed to appeal the disposition of all post-judgment motions that are timely filed after entry of the judgment or order.
The 90-day period shall be computed as provided in Rule 26 of these Rules.
The occurrence of conference calls should be made part of a trial court record. Minutes routinely reflect the occurrence of off-the-record conferences with counsel, even if details of the conference are not included in the record. See
The Ryans did not seek to have a February 5, 2018 conference call made a part of the record via stipulation pursuant to