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EFFECT OF APPEAL

ON TRIAL COURT OR AGENCY JURISDICTION

GENERAL RULE

NOTICE OF APPEAL

divests trial court of jurisdiction over case and

transfers jurisdiction to the appellate court

 Avoid confusion  Avoid inefficiency

EXCEPTIONS

ALL CASES  Trial court retains power to  correct or modify record on appeal, Haw. R. App. P. (HRAP) 10(e)(2)(B),     determine matters collateral or incidental to judgment or act in aid of appeal,

TSA Int’l Ltd. v. Shimizu Corp.

, 92 Hawai‘i 243, 265, 990 P.2d 713, 735 (1999), enforce judgment, HRAP Rule 8, stay judgment, Haw. R. Civ. P. (HRCP) 62, suspend, modify, restore or grant injunction, HRCP Rule 62(c) .

 Timely appeals from HRCP Rule 54(b)-certified orders or decrees do not divest trial court of jurisdiction to adjudicate remaining claims.

S e e , e . g .

,

Te r r i to r y v. D a m o n

, 4 4 H a w . 5 5 7 , 5 6 3 , 3 5 6 P. 2 d 3 8 6 , 3 9 0 ( 1 9 6 0 ) .

 Correction of judgment, order or decree for clerical mistakes, oversight or omission can be made during pendency of appeal if leave granted by appellate court order and appeal docketed.

H R C P R u l e 6 0 ( a ) .

EXCEPTIONS

CIVIL CASES  Notice of appeal does not divest trial court of jurisdiction      to determine timely motions for judgment as a matter of law, to amend findings or make additional findings, for new trial, to reconsider, alter or amend judgment or order, to issue decision on attorney’s fees motion. HRAP Rule 4(a)(3).

 HRCP Rule 60(b) allows party to move trial court for relief from final judgment, order or decree.  Trial court may consider motion for relief under HRCP Rule 60(b) during pendency of appeal from judgment at issue, but trial court may not grant motion unless case has been remanded from appellate court.

L i f e o f t h e L a n d v. A r i y o s h i

, 5 7 H a w . 24 9 , 2 5 2 , 5 5 3 P. 2 d 4 6 4 , 4 6 6 ( 1 976 ) .

EXCEPTIONS

FAMILY LAW CASES 

Notice of appeal does not divest trial court of jurisdiction to

:  stay its decree or order pending appeal , HFCR Rule 62(d)  correct or modify the ROA , HFCR Rule 60(a)  enter FOFs and COLs , HFCR Rule 52(a)  compel either party to advance attorney’s fees and costs . HRS §580-47(b)

EXCEPTIONS

FAMILY LAW CASES 

The family court also retains jurisdiction to:

 enforce its decree or order  protect and provide for support and maintenance of parties and any children following a material change of circumstances HRS § 580-47(b)  e.g., award, enforce and modify restraining orders, child custody orders, or spousal support orders

In Interest of Doe

, 81 Hawai‘i 91, 98, 912 P.2d 588 (App. 1996).

 grant motion for leave to take depositions to perpetuate testimony for use in event of further family court proceedings HFCR Rule 27(b)  decide remaining issues if collateral order appealed

Shimote v. Vincent

, 80 Hawai‘i 96, 102, 905 P.2d 71,

recon. den.

, 80 Hawai‘i 497, 911 P.2d 132,

cert. den.

, 80 Hawai‘i 187, 907 P.2d 773 (App. 1995).

EXCEPTIONS

CRIMINAL CASES  Notice of appeal does not divest trial court of jurisdiction to   determine timely motions in arrest of judgment under Haw. R. Penal P. 34 order new trial under Haw. R. Penal P. 33.

See

 HRAP Rule 4(b)(2). Motions for new trial must be filed within 10 days after verdict or finding of guilty or within such further time as court may fix during 10-day period. After, defendant must look to HRPP Rule 40 for relief.

See

Haw. R. Penal P. (HRPP) 33.  Defendant may be able to obtain leave to file post conviction petition in trial court without awaiting decision on appeal on any basis for collateral attack on judgment. H R P P R u l e 4 0 ( a ) ( l ) ,

EXCEPTIONS

CRIMINAL CASES  Petition for relief “from custody” may be filed in trial court at any time because petition, which challenges manner in which sentence is being executed, would not involve any matter on appeal.

S e e

H R P P R u l e 4 0 ( a ) ( 2 ) .  Trial court also retains jurisdiction to adjudicate motion to reduce sentence if filed within 90 days after imposing sentence. H R P P R u l e 3 5 ( a ) a n d ( b ) .

EFFECT OF POST-JUDGMENT MOTIONS

ON APPEAL

EFFECT OF POST-JUDGMENT MOTIONS ON APPEAL

 Timely filing of post-judgment motion tolls time for filing notice of appeal.

S e e

H R A P R u l e 4 ( a ) ( 3 ) .  Notice is considered to appeal disposition of all post-judgment motions timely filed after entry of judgment or order.

I d .

EFFECT OF PREMATURE APPEAL

ON TRIAL COURT’S JURISDICTION PRIOR TO ENTRY OF WRITTEN ORDER

EFFECT OF PREMATURE APPEAL ON TRIAL COURT’S JURISDICTION

 Prior to Entry of Written Order  Notice of appeal before entry of final judgment is premature and does not divest trial court of jurisdiction.

See

HRAP Rule 4(a)(1) and (5).  If

after announcement

of decision but before entry of judgment or order, premature notice is considered “as filed immediately after the time the judgment or order becomes final for purpose of appeal. HRAP Rule 4(a)(2).

EFFECT OF LATE OR DEFECTIVE APPEAL

ON TRIAL COURT’S JURISDICTION

EFFECT OF LATE OR SUBSTANTIVELY DEFECTIVE APPEAL

 Only appellate courts have power to dismiss appeal over appellant’s objections   where parties agree to do so prior to docketing of appeal where appellant moves, and gives notice of such motion, to strike notice of appeal.

Asada v. Sunn

, 66 Haw. 454, 457, 666 P.2d 584, 586 (1983 ).

 However, it may be argued that trial court has power to disregard obviously untimely or substantively defective notice of appeal and proceed with case without waiting for appellate court’s decision.

S t a t e v. O n t i v e r o s

, 8 2 H a w a i ‘ i 4 4 6 , 4 4 9 , 9 2 3 P. 2 d 3 8 8 , 3 91 ( 1 9 9 6 ) . 

E.g.

, appeal is jurisdictionally defective, judgment not yet put into writing and filed, appeal filed prior to disposition of timely post-judgment tolling motion.

STAY OF JUDGMENT PENDING APPEAL

GENERAL RULE

 Notice of appeal does not automatically stay enforcement of judgment, order or decree.

S e e

2 0 M o o r e ’ s F e d e r a l P r a c t i c e ¶ 3 0 8 . 1 0 ( 3 d e d . 2 0 0 9 ) .  Unless stay sought and obtained, judgment may be enforced despite notice of appeal.

S e e i d .

HRCP RULE 62(A) AUTOMATIC STAY

 Subject to certain exceptions, HRCP Rule 62(a ) automatically stays execution and enforcement of judgment until expiration of 10 days after entry of judgment.  After 10 days, further stay must be sought and granted.

S e e C i t y a n d C o u n t y o f H o n o l u l u v. K a m

, 4 8 . H a w . 3 4 9 , 3 6 5 n . 27 , 4 0 2 P. 2 d 6 8 3 , 6 9 3 n . 27 ( 1 9 6 5 ) .

 “Entry of judgment”   “Entry” = judgment is filed in office of clerk, “Judgment” = decree and any order from which appeal lies. HRCP Rules 54(a) and 58.

HRCP RULE 62(A) AUTOMATIC STAY

 10-day automatic stay does not apply to any judgment, decree or order that is not considered final for purposes of appeal. H a w . R e v. S t a t . ( H R S ) § 6 41 - 1 ( a ) .  10-day automatic stay does not apply to interlocutory or final judgment in action for injunction or receivership action, unless otherwise ordered by the court. H R C P R u l e 6 2 ( a ) .

 10-day automatic stay does not toll time for filing notice of appeal. 1 1 Wr i g h t , M i l l e r & K a n e , F e d . P r a c . & P r o c . C i v. § 2 9 0 2 ( 2 d e d . 1 9 9 5 ) ( “ [ T h e a u to m a t i c t e n - d ay s t ay ] d o e s n o t a f f e c t a p p e a l a b i l i t y o f t h e j u d g m e n t n o r p r e v e n t t h e t i m e f o r a p p e a l f r o m r u n n i n g . ” ) .

WHERE A STAY SHOULD BE SOUGHT

 Motion for stay of judgment or order in civil appeal “shall ordinarily be made in the first instance to the court or agency appealed from.” H R A P R u l e 8 ( a ) .      Appellate courts also have authority to grant request to stay, but the motion “shall” show application to court appealed from not practicable court appealed from denied application, or court appealed from failed to afford requested relief, and reasons given by court appealed from for its action. HRCP Rule 62(g).

SUPERSEDEAS BOND

PURPOSE  Court will allow judgment in appellee’s favor to be “superseded” pending outcome of appeal if appellant insures that appellee will receive judgment amount and/or damages related to appeal if judgment is affirmed.

 This insurance = supersedeas bond, standing as security for payment of amount appellee could recover if judgment affirmed.

 Court appealed from must stay enforcement of judgment upon posting of satisfactory supersedeas bond.

S e e

H R C P R u l e 6 2 ( d ) .

SUPERSEDEAS BOND

PROCEDURE  Acquired by obtaining binding obligation from bonding company or other surety (

S e e

H R A P R u l e 8 ( b ) .

e.g.

, firm, bank or insurance company) to pay judgment and/or damages amount (up to amount of bond) if appellant loses and fails to pay judgment.  Appellants can search online for companies that provide bonds.

 Applying for bond is often simple, consisting of one-page application form.

 Appellant usually pays company non-recoverable premium for bond, but not total amount that bond guarantees (normally % of bond).

SUPERSEDEAS BOND

AMOUNT OF BOND  Amount determined by court in its discretion.

M i d k i f t v. d e B i s s c h o p

, 5 8 H a w . 5 4 6 , 5 5 0 , 5 74 P. 2 d 1 2 8 , 1 31 ( 1 97 8 ) .  Hawai‘i courts do not appear to have formally adopted a specific formula.

 Ordinarily,  amount is set at level that “will permit satisfaction of the judgment in full, together with costs, interest, and damages for delay . . . .” 11 Wright, Miller & Kane, Fed. Prac. & Proc. Civ. § 2905 (2d ed. 1995) (quoting former FRCP Rule 73(d)).

 “[C]ourts have inherent power . . . to provide for a bond in a lesser amount or to permit security other than the bond.”

Id.

SUPERSEDEAS BOND

GOVERNMENT APPELLEES  State of Hawai‘i, counties, or officers or agencies of State or county need not post bond or other security when it obtains a stay. H R C P R u l e 6 2 ( e ) .

STAYS OF INJUNCTIONS PENDING APPEAL

AVAILABILIT Y  Where injunction or receivership is subject of appeal, formal motion for stay required.

S e e

1 1 Wr i g h t , M i l l e r & K a n e , F e d . P r a c . & P r o c . C i v. § § 2 9 0 4 , 2 9 0 5 ( 2 d e d . 1 9 9 5 ) .  “[T]he court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.” H R C P R u l e 6 2 ( c )  Motion for stay of an injunction-related judgment pending an appeal is usually directed first to trial court or agency. H R A P R u l e 8 ( a ) .

STAYS OF INJUNCTIONS PENDING APPEAL

AVAILABILIT Y  One treatise quotes the following test that courts apply before granting a stay:  (1) whether stay applicant has made strong showing that he is likely to succeed on merits;  (2) whether applicant will be irreparably injured absent stay;  (3) whether issuance of stay will substantially injure other parties interested in proceeding; and  (4) where public interest lies.

1 1 Wr i g h t , M i l l e r & K a n e , F e d . P r a c . & P r o c . C i v. § 2 9 0 4 ( 2 d e d . 1 9 9 5 ) .

STAYS OF INJUNCTIONS PENDING APPEAL

BOND REQUIRED  Bond Required  Court has power to condition issuance of stay of injunction or injunction pending appeal on appellant’s posting of bond or alternate security.

See

HRCP Rule 62(c).  Amount of bond or nature of security should be such that appellee can be fully compensated for all appeal, stay or injunction -related costs, expenses and damages if appellant is unsuccessful.

Midkif t v. de Bisschop

(2d ed. 1995) (quoting former FRCP Rule 73(d), which was identical to former HRCP Rule 73(d)).

, 58 Haw. 546, 550, 574 P.2d 128,131 (1978); 11 Wright, Miller & Kane, Fed. Prac. & Proc. Civ. § 2905

INJUNCTIONS PENDING APPEAL

 Where appellant seeks to enjoin cer tain actions permitted under final judgment during pendency of appeal, Hawai‘i Supreme Cour t has stated, “We see no fundamental difference in the considerations which should govern the granting of a temporary injunction at the trial and appellate levels.”

L i f e o f t h e L a n d v. A r i y o s h i

, 5 9 H a w . 1 5 6 , 1 5 8 , 5 7 7 P. 2 d 1 1 1 6 , 1 1 1 8 ( 1 97 8 ) .

 Hawai‘i Supreme Cour t has applied the following test to determine whether an injunction pending appeal should be issued:    (1) whether plaintiff is likely to succeed on merits (2) whether balance of irreparable harm favors the temporary injunctive relief (3) whether public interest supports granting the temporary injunctive relief.

Watland v. Lingle

, 104 Haw. 128, 142, 85 P.3d 1079, 1093 (2004).

OTHER PROVISIONS RELATED TO STAYS

 Post-judgment Motions and Other Cases  Trial court may stay enforcement of judgment pending disposition of specific post-judgment motions “or when justice so requires in other cases.” HRCP Rule 62(b).

 Partial Judgments  Trial court may stay enforcement of final judgment under HRCP Rule 54(b) in cases where multiple claims or multiple parties involved “until the entering of a subsequent judgment or judgments.” HRCP Rule 62(h).

 Writs of Possession  Writ of possession must be stayed in proceeding for nonpayment of rent if person owing rent pays due rent and interest thereon at rate of 8%/year, with all costs and charges of proceedings and expenses incurred by plaintiff, including reasonable fee for plaintiff’s attorney, before the writ is issued. HRS § 666-14

STAYS IN CRIMINAL CASES

OF SENTENCE AND RELEASE ON BAIL Stays pending appeal “shall be had according to law.” H R A P R u l e 8 ( c ) .

 Notice of appeal may operate as stay of execution of any sentence or order of probation, in discretion of trial court. H R S § 6 41 - 1 4 .

 Convicted defendant who has been sentenced to prison pending appeal may be released if judge is satisfied   (1) by c/c evidence that defendant not likely to flee or pose danger to another person or community if released and (2) appeal is not for purpose of delay and raises substantial question of law or fact likely to result in reversal or order for new trial . HRS § 804-4(b).

 Process: Appellant must   (1) first seek relief from trial court, writing reasons for action taken, (2) may seek modification of trial court’s action in appellate court. HRAP Rule 9(b).

STAYS IN CRIMINAL CASES

PENDING INTERLOCUTORY APPEAL  If defendant is granted leave to file interlocutory appeal from circuit court ruling under HRS § 641-17, trial on merits will usually be stayed  If State appeals from pretrial order under HRS § 641-13, trial on merits will usually be stayed

AUTOMATIC STAYS IN BANKRUPTCY CASES

 When debtor files for bankruptcy, other judicial proceedings are automatically stayed, unless one of the exceptions of § 362(b) applies. 1 1 U . S . C . A . § 3 6 2 ( a ) .

 Generally, “actions taken in violation of the automatic stay are void and without effect,

even if the entity

that violated the stay

had no knowledge or notice

of the filing of the bankruptcy petition or of the automatic stay.’”

Isl a nd Ins. C o . v. S a nto s

, 86 Hawai‘i 363, 366, 949 P.2d 203, 206 ( App. 1997) .

 But Hawai‘i courts – “[I]t is within the power of the bankruptcy courts to retroactively annul a bankruptcy automatic stay so as to validate action previously taken in violation of the automatic stay.”

I d .

 Such exercise of its power to annul and validate an act that violated a stay “must be explicit.”

Id.