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Electronically Filed
Supreme Court
SCPW-11-0000030
07-MAR-2011
02:17 PM
NO. SCPW-11-0000030
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
MATTHEW MURASKO, ALANE PODOLL and KYLE PODOLL,
Petitioners,
vs.
THE HONORABLE RHONDA I.L. LOO, JUDGE OF THE DISTRICT
COURT OF THE SECOND CIRCUIT, STATE OF HAWAI#I;
PAT CURELL and ROSINELI CURELL, Respondents.
ORIGINAL PROCEEDING
(DC-TRO 10-1-0202)
MARCH 7, 2011
RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ.
AND CIRCUIT JUDGE NACINO, ASSIGNED BY REASON OF VACANCY
Per Curiam. In this original proceeding, petitioners
Matthew Murasko, Alane Podoll, and Kyle Podoll petition this
court for a writ of mandamus directing respondent the Honorable
Rhonda I.L. Loo (the respondent judge) to vacate a November 17,
2010 order granting respondents Pat Curell and Rosineli Curell a
new trial on petitioners' petition for an injunction against
harassment. The respondent judge granted a new trial after
extending the ten-day period for seeking such relief under
District Court Rules of Civil Procedure (DCRCP) Rule 59(b).
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Based on the following, we hold that DCRCP Rule 6(b)
prohibits a trial court from extending the ten-day period for
moving for a new trial under DCRCP Rule 59(b). Consequently, we
grant the petition for a writ of mandamus and vacate the
respondent judge's November 17, 2010 order granting a new trial.
I. Background
On July 19, 2010, Haiku, Maui residents Matthew
Murasko, wife Alane Podoll, and Alane's father, Kyle Podoll
(collectively the Muraskos) filed a Petition for an Ex-Parte
Temporary Restraining Order and for an Injunction Against
Harassment pursuant to Hawai#i Revised Statutes (HRS) § 604-10.5
(Supp. 2009).1 The petition was filed against the Muraskos'
adjacent neighbors, Pat Curell and Rosineli Curell (the Curells).
The petition alleged that the Curells were harassing the Muraskos
by depositing trash and construction debris along the Muraskos'
fence, burning construction lumber that emitted noxious fumes and
smoke into the Muraskos' home, posting messages on the Muraskos'
fence, and emailing the Muraskos.
The Muraskos' petition was reviewed by the respondent
judge, who issued, on July 19, 2010, an ex parte order
temporarily restraining the Curells from engaging in the conduct
1
HRS § 604-10.5 Power to enjoin and temporarily
restrain harassment.
. . . .
(c) Any person who has been subjected to harassment may
petition the district court of the district in which the
petitioner resides for a temporary restraining order and an
injunction from further harassment.
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alleged in the petition until a hearing on the petition on
August 2, 2010.
The Muraskos appeared with counsel at the August 2,
2010 hearing. The Curells appeared pro se. The Muraskos, through
Alane, testified about the matters that formed the basis of the
July 19, 2010 petition, which included testimony that the message
posting and emailing had been the subject of a mediation wherein
the Curells had agreed to refrain from such conduct. The Curells
testified in their own defense. They had filed, on July 28,
2010, a response denying all of the Muraskos' allegations of
harassment.
The respondent judge found in favor of the Muraskos at
the conclusion of the August 2, 2010 hearing and granted the July
19, 2010 petition. The Curells were enjoined, for a period of
three years, from personally contacting and communicating with
the Muraskos, depositing debris and messages on the Muraskos'
fence, and burning fires within fifteen feet of the Muraskos'
home. An order to this effect was entered on August 10, 2010.
On August 12, 2010, the Curells filed an "Ex Parte
Motion to Extend Time for Filing Post-Verdict Motions." The
motion was filed by attorney Hayden Aluli, who stated that: (1)
he was retained by the Curells on August 5, 2010, and (2) he was
"unable to file any post-verdict motions under [DCRCP] Rules 59
and 60 because [he] was taking vacation beginning August 11, 2010
and returning to work on August 18, 2010." He requested an
extension of time until September 1, 2010 to file post-verdict
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motions. The respondent judge granted the extension by the
following order entered on August 12, 2010.
ORDER
GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED
that the time period for filing any post-verdict motions
under [DCRCP] Rules 59 and 60 shall be, and is extended
. . . to and including September 1, 2010.
On September 1, 2010, the Curells, through Aluli, filed
a "Motion for Dismissal or Directed Verdict or in the Alternative
for a New Trial." The motion was "made pursuant to [DCRCP] Rules
59 and 60" and sought a dismissal, directed verdict, or a new
trial on the Muraskos' injunction petition on the grounds that
the August 10, 2010 injunction order was based on inadmissible
evidence of mediation proceedings and inadmissible hearsay
evidence.
The Muraskos countered that the Curells could not be
granted relief pursuant to DCRCP Rules 59 or 60. They argued
that: (1) a new trial pursuant to DCRCP Rule 59(b) could not be
granted because DCRCP Rule 6(b) prohibited the respondent judge
from extending the time for moving for a new trial, such that the
September 1, 2010 motion for new trial -- filed more than ten
days after entry of the August 10, 2010 injunction order -- was
untimely, and (2) dismissal or a directed verdict pursuant to
DCRCP Rule 60 could not be granted because there was no newly
discovered evidence, nor evidence of fraud, misrepresentation, or
other misconduct justifying relief from the injunction order.
The Curells' September 1, 2010 motion was heard by the
respondent judge on October 2, 2010. The Curells rebutted the
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Muraskos' DCRCP Rule 6(b) argument by arguing that the rule did
not prohibit an extension of the ten-day period for filing a
DCRCP Rule 59(b) motion for new trial because DCRCP Rule 81(a)(4)
provides that the DCRCP does not apply to HRS § 604-10.5
injunction proceedings. They argued that even if DCRCP Rule
81(a)(4) therefore prevented the respondent judge from granting
them relief under DCRCP Rules 59 and 60, the respondent judge had
the "inherent power" to grant them relief from the August 10,
2010 injunction order. They alternatively argued that the Rules
of the District Court (RDC) Rule 31(a)(5) allowed the respondent
judge to apply the DCRCP in the HRS § 604-10.5 proceeding, if she
desired.
The Muraskos, in response, reiterated that DCRCP Rule
6(b) prohibited an extension of the ten-day period for moving for
a new trial. They asked the respondent judge to determine
whether or not she would be applying the DCRCP to their
injunction proceeding. The respondent judge answered by stating
that she was "well aware that [a] Rule 59 [motion] [is] supposed
to be made within ten days," "[Aluli] file[d] [the] ex parte
motion to extend time within ten days of the [filing of the]
[August 10, 2010 injunction order]," and she "accepted the
explanation [for an extension of time] given by [Aluli]" and
"signed off on the ex parte motion to extend time." She
thereupon directed the parties to proceed with the merits of the
Curells' September 1, 2010 motion and, after hearing the parties'
arguments, granted the Curells a new trial because of the
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"references made by both parties [at trial] to the mediated
agreement." The respondent judge thereupon vacated the August
10, 2010 injunction order and entered a new temporary restraining
order.
An order granting a new trial was entered on November
17, 2010. The new trial had been scheduled for November 15,
2010, but had been taken off the calendar when the Muraskos gave
notice that they would seeking mandamus relief from the granting
of a new trial.
The Muraskos petitioned this court for mandamus relief
on January 18, 2011. They argue that they are entitled to
mandamus relief because the respondent judge granted the Curells
a new trial after improperly extending the ten-day limit for
seeking such relief and because the granting of a new trial is
not immediately appealable.
The respondent judge and the Curells were directed to
answer the Muraskos' petition. In answering, they argue that:
(1) DCRCP Rule 6(b) did not prohibit the respondent judge from
extending the time for filing the Curells' motion for new trial
because, pursuant to DCRCP Rule 81(a)(4), the DCRCP did not apply
to the HRS § 604-10.5 injunction proceeding, and (2) the
respondent judge had the inherent authority to grant the Curells
a new trial. The Curells additionally argue that: (1) even if
the DCRCP applied to the injunction proceeding, the extension of
time to file a motion for new trial was properly granted because
the extension was sought and granted within DCRCP Rule 59(b)'s
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ten day period, and (2) the Muraskos can seek appellate review of
the granting of the new trial by proceeding with the new trial
and, if they fail to prevail, by appealing from the judgment.
II. Standard for Disposition
"The supreme court shall have jurisdiction and power
. . . to exercise original jurisdiction in all questions arising
under writs directed to courts of inferior jurisdiction and
returnable before the supreme court." HRS § 602-5(3) (Supp.
2010).
A writ of mandamus is an extraordinary remedy that will
not issue unless the petitioner demonstrates a clear and
indisputable right to relief and a lack of alternative means to
redress adequately the alleged wrong or obtain the requested
action. Kema v. Gaddis, 91 Hawai#i 200, 204, 982 P.2d 334, 338
(1999). Such writs are not intended to supersede the legal
discretionary authority of the lower courts, nor are they
intended to serve as legal remedies in lieu of normal appellate
procedures. Id.
III. Discussion
A. RDC Rule 31(a)(5) Permits The District Court To
Entertain A DCRCP Rule 59(b) Motion For New Trial
In An HRS § 604-10.5 Injunction Proceeding.
"[The DCRCP] shall not apply to . . . [a]ctions for
relief from harassment maintained pursuant to HRS Section 604-
10.5, as the same may be renumbered." DCRCP Rule 81(a)(4).
However, "[w]here a civil proceeding is not governed by the
[DCRCP] . . . [t]he court may designate and order that any one or
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more of the [DCRCP] shall be applicable in such case." RDC Rule
31(a)(5). "[A] court which intends to order that a DCRCP rule
apply should expressly state so for the record." Chang v. Berc,
101 Hawai#i 167, 170 n.4, 64 P.3d 948, 951 n.4 (2003).
The Muraskos' district court action was an action for
relief from harassment pursuant to HRS § 604-10.5 to which the
DCRCP did not apply. The respondent judge, without expressly
stating for the record, exercised her power under RDC Rule
31(a)(5) to apply the DCRCP when she approved the Curells' ex
parte motion for an extension of time to file "post-verdict
motions" pursuant to "[DCRCP] Rules 59 and 60," when she
explained at the October 2, 2010 hearing that she had granted the
Curells an extension of the ten-day deadline to file a post-
judgment motion under DCRCP Rule 59, and when she granted the
Curells' motion for new trial "made pursuant to [DCRCP] Rule 59."
The record clearly shows that the new trial was granted pursuant
to DCRCP Rule 59(b), and not pursuant to the respondent judge's
inherent authority.
B. The Ten-Day Period For Filing A Motion For New
Trial Pursuant To DCRCP Rule 59(b) Is Mandatory
And May Not Be Enlarged To Any Extent Or Under
Any Conditions.
"A motion for new trial shall be served not later than
10 days after the entry of the judgment." DCRCP Rule 59(b).
"When by [the DCRCP] . . . an act is required . . . to
be done at or within a specified time, the court for cause shown
may at any time in its discretion [] with or without motion or
notice order the period enlarged if request therefore is made
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before the expiration of the period originally prescribed . . .;
but it may not extend the time for taking any action under Rules
52(b), 59(b), (d) and (e) and 60(b) of [the DCRCP] and Rule 4(a)
of the Hawai#i Rules of Appellate Procedure, except to the extent
and under the conditions stated therein." DCRCP Rule 6(b)
(underscoring added).
DCRCP Rule 59(b) contains no provision for extending --
to any extent or under any conditions -- the ten-day period for
serving a motion for new trial.
DCRCP Rules 59 and 6(b) are identical to Federal Rules
of Civil Procedure (FRCP) Rules 59 and 6(b). "[T]he time to move
under [FRCP] Rule 59 for a new trial . . . may not be enlarged by
the district court, nor may the district court, on its own
motion, order a new trial later than ten days after the entry of
judgment."2 4B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure: Civil 3d § 1167 at 563-64 (2002).
The Curells' August 12, 2010 ex parte motion for an
extension of time to file a DCRCP Rule 59(b) motion for new
trial, filed two days after entry of the August 10, 2010
injunction order, was filed before expiration of the ten-day
period for moving for a new trial. Nonetheless, DCRCP Rule 6(b)
explicitly prohibited the respondent judge from extending the
ten-day period, even though the respondent judge found that good
2
DCRCP Rule 59(d)(1) provides that "[n]ot later than 10 days
after entry of judgment the court of its own initiative may order a
new trial for any reason for which it might have granted a new trial
on motion of a party."
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cause for the extension was shown. By exercising her power to
apply DCRCP Rule 59(b) to the Muraskos' injunction case, the
respondent judge could not permit the Curells to seek post-
judgment relief pursuant to DCRCP Rule 59(b) by disregarding
DCRCP Rule 6(b)'s restriction on the enlargement of DCRCP Rule
59(b)'s ten-day time limitation.3
The Curells were granted a new trial pursuant to their
September 1, 2010 post-judgment motion served and filed twenty-
two days after entry of the August 10, 2010 injunction order.
The motion referenced DCRCP Rules 59 and 60, but the motion --
which sought a new trial based on alleged violations of the
Hawai#i Rules of Evidence on mediation proceedings and hearsay --
was substantively a motion under DCRCP Rule 59(b) filed after the
ten-day period prescribed by the rule. The ten-day period cannot
be avoided by the motion's reference to DCRCP Rule 60. See 12
James Wm. Moore et al., Moore#s Federal Practice, § 59.11[4][a]
at 35-36 (3d.ed 2009) ("The court may not use Rule 60(a) to
enlarge the time limitations for a motion that should properly be
3
The Curells argue that the respondent judge's enlargement of
DCRCP Rule 59(b)'s ten-day time limitation is supported by federal law
-- Thompson v. Immigration Service, 375 U.S. 384 (1964), Wolfsohn v.
Hankin, 376 U.S. 203 (1964), and Yanow v. Weyerhaeuser Steamship Co.,
274 F.2d 274 (9th Cir. 1958) -- cited by the Hawai#i Intermediate Court
of Appeals in Escritor v. Maui Council, 2 Haw. App. 200, 203-04, 629
P.2d 1146, 1148-49 (1981). However, the trial court's authority to
enlarge the ten-day time limitation for filing a motion for new trial
was not the issue in Thompson, Wolfsohn, and Yanow. Rather, the issue
in those cases was whether the time for filing a notice of appeal was
tolled, under FRCP Rule 73(a), by a motion for new trial filed more
than ten days after entry of judgment, where the trial court allowed
the appellant to file the motion for new trial beyond the ten-day
period prescribed by FRCP Rule 59(b).
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made under Rule 59, nor can a party characterize a motion as one
under Rule 60(a) to avoid the strict time limitations of Rule 59
if the motion is substantively one that should properly be made
under Rule 59.").
C. An Order Granting A New Trial Is Reviewable Through
An Extraordinary Writ.
"In general, an order granting a new trial is
interlocutory and destroys the finality of the judgment; as such
an order granting a new trial is not an appealable order. . . .
In such a case, neither party ordinarily may appeal until after a
final judgment is entered on retrial. However, on occasion
courts have treated the grant of a new trial as a final
appealable order when the court's authority to issue the new
trial order is challenged. Because this line of authority
undermines the concept of finality, however, the better view is
that appellate review should be available, if at all, through an
extraordinary writ, if the losing party does not wish to wait for
the subsequent entry of a final judgment. An extraordinary writ
enables the appellate court to review orders granting a new trial
that are not appealable." 12 Moore's Federal Practice, § 59.50
at 133-34.
We adopt Professor Moore's view that an order granting
a new trial is reviewable through an extraordinary writ. The
respondent judge's November 17, 2010 order granting a new trial
is an interlocutory order in the underlying injunction case. The
order is not immediately appealable and is reviewable in this
original proceeding for a writ of mandamus.
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IV. Conclusion
DCRCP Rule 6(b) prohibited the respondent judge from
enlarging the time for filing a motion for new trial pursuant to
DCRCP Rule 59(b). Petitioners have a clear and indisputable
right to relief from the November 17, 2010 order granting a new
trial pursuant to a motion that was not filed within the time
prescribed by DCRCP Rule 59(b).
The petition for a writ of mandamus is granted. The
November 17, 2010 order granting a new trial is vacated. The
August 10, 2010 order granting the petition for an injunction
against harassment is reinstated, nunc pro tunc to August 10,
2010.
Brian R. Jenkins /s/ Mark E. Recktenwald
and J. Kevin Jenkins
for Petitioners /s/ Paula A. Nakayama
Hayden Aluli /s/ Simeon R. Acoba, Jr.
for Respondents
Pat Curell and /s/ James E. Duffy, Jr.
Rosineli Curell
/s/ Edwin C. Nacino
Diane Erickson
and Robyn B. Chun,
Deputy Attorneys General,
for Respondent The
Honorable Rhonda L.L.
Loo
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