Property Center, Inc. v. Sudaria

Court: Hawaii Intermediate Court of Appeals
Date filed: 2023-06-26
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  NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER




                                                  Electronically Filed
                                                  Intermediate Court of Appeals
                                                  CAAP-XX-XXXXXXX
                                                  26-JUN-2023
                                                  08:46 AM
                                                  Dkt. 83 MO


                           NO. CAAP-XX-XXXXXXX


                 IN THE INTERMEDIATE COURT OF APPEALS

                         OF THE STATE OF HAWAI‘I


  PROPERTY CENTER, INC., Managing Agent, Plaintiff-Appellee, v.
      JR SUDARIA and SCOTTY GEDDINGS, Defendants-Appellants.


         APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                           HONOLULU DIVISION
                    (CIVIL CASE NO. 1RC17-1-04580)


                          MEMORANDUM OPINION
     (By:     Ginoza, Chief Judge, Nakasone and McCullen, JJ.)

            Defendants-Appellants JR Sudaria and Scotty Geddings

appeal from the District Court of the First Circuit, Honolulu

Division, Regular Claims' (1) December 26, 2017 Denial of

Defendants' Motion to Set Aside Default Judgment and Stay of

Garnishment and (2) January 29, 2018 Order Denying Defendants'

Motion to Set Aside Default, Judgment and Stay Garnishment

(Filed December 8, 2017). 1




     1   The Honorable James C. McWhinnie presided.
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            On appeal, Sudaria and Geddings contend that the

default judgment was void under Hawai‘i District Court Rules of

Civil Procedure (DCRCP) Rule 60(b)(4).          Sudaria and Geddings

argue that they were deprived of due process, DCRCP Rule 55 was

not satisfied, and they met the requirements under BDM, Inc. v.

Sageco, Inc., 57 Haw. 73, 76-77, 549 P.2d 1147, 1150 (1976). 2

For all of these arguments, Sudaria and Geddings primarily rely

on the assertion that notice was improper.           For the reasons

discussed below, we vacate and remand.

                              I.   BACKGROUND

A.     Small Claims Case – Geddings et al. v. Pirslin
                           (Return of Security Deposit)

            Before the complaint in the case underlying this

appeal was filed, Sudaria and Geddings (self-represented) filed

a complaint on May 30, 2017 in the District Court of the First




       2Sudaria and Geddings also assert that (1) DCRCP Rule 55 was not
satisfied because there was no supporting affidavit, the complaint was not
verified, "and no one appeared at the hearing" to request a default; and
(2) Plaintiff-Appellee Property Center, Inc. (Property Center) lacked
standing because it was not a real party in interest. However, these points
were not raised in their motion to set aside and, thus, we consider these
points waived. See Ass'n of Apartment Owners of Wailea Elua v. Wailea Resort
Co., 100 Hawai‘i 97, 107, 58 P.3d 608, 618 (2002) ("Legal issues not raised in
the trial court are ordinarily deemed waived on appeal"); Lagondino v.
Maldonado, 7 Haw. App. 591, 596, 789 P.2d 1129, 1132-33 (1990) (explaining
that "a real party in interest objection raised for the first time on appeal
is untimely").


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Circuit, Small Claims for return of their security deposit from

their former landlord Snezana Pirslin (Pirslin). 3

              During the August 23, 2017 hearing on the Small Claims

matter, Geddings and Sudaria were present, along with Pirslin's

property managers, Lynn and Malcolm Shiroma, at District Court

in courtroom 10B at 1:36 p.m. 4         The court minutes stated,

              MRS SHIROMA REPRESENTED THAT SHE AND MR SHIROMA REPRESENT
              SNEZANA PIRSLIN AND THAT THERE IS A DAMAGES CLAIM AGAINST
              PLTFFS SET ON 9/5/17 10B. BY ORDER OF THE COURT, CASE
              CONTINUED FOR STATUS TO 10/25/17 10B 1:30 PM. REMINDER
              NOTICE PROVIDED TO PARTIES. MRS SHIROMA REQUESTS THAT THE
              DEFENDANT BE AMENDED TO PROPERTY CENTER INC; DENIED.

(Emphasis added.)

              As stated in the court minutes, the Small Claims court

continued the Small Claims case to October 25, 2017 "for status"

and denied Lynn Shiroma's request that "Defendant be amended to

Property Center, Inc."         (Formatting altered.)

B.     Regular Claims Case - Property Center v. Sudaria et al.
                             (Assumpsit-Money Owed)

              On July 17, 2017, while the Small Claims case was

pending, Property Center (represented by counsel), filed a

"Complaint (Assumpsit-Money Owed); Declaration; Exhibit(s);

Summons" in Regular Claims court.           (Formatting altered.)     In the


      3  We take judicial notice of this Small Claims case, Case Number 1SC17-
1-001105. See Roxas v. Marcos, 89 Hawai‘i 91, 110 n.9, 969 P.2d 1209, 1228
n.9 (1998) (explaining that "courts have generally recognized that they may,
in appropriate circumstances, take notice of proceedings in other courts,
both within and without their judicial system, if those proceedings have a
direct relation to the matter at issue") (citations and brackets omitted).

       4   The Honorable Hilary B. Gangnes presided.

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Complaint, Property Center asked for judgment in the principal

amount of $8,289.65.    Attached to the Complaint were the

following:

          (1)   A copy of the rental agreement;

          (2)   A revised tenant ledger showing $8,289.65 owed to

                Property Center ($1,950.00 in rental and late

                fees, $7,814.65 in repairs, and $75.00 for

                security key and garage opener replacements, less

                $1,550.00 security deposit) plus attorney's fees

                and costs;

          (3)   An invoice from PLS Builders showing repair work

                totaling $7,814.65; and

          (4)   A two-page summons.

          The first page of the summons required the defendant

to appear, stating:

          "IF YOU OR YOUR ATTORNEY FAIL TO ATTEND THE COURT
          HEARING AT THE TIME AND PLACE DESIGNATED, DEFAULT
          AND DEFAULT JUDMGENT WILL BE TAKEN AGAINST YOU
          FOR THE RELIEF DEMANDED IN THE COMPLAINT."

(Formatting altered.)    The second page of the summons identified

the location as "Honolulu Division, 1111 Alakea Street, 10th

floor Courtroom 10A or 10B" and the time as "1:30 p.m. on the

second Monday following date of service[.]"

          The return of service stated that the "Complaint

(Assumpsit, Summary Possession/Landlord-Tenant, Damages;)

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Declaration Exhibits(s)" were served on Sudaria and Geddings

personally on August 23, 2017, 1:04 p.m. at "1111 Alakea Street

10th Floor Honolulu, Hawaii 96813[,]" which was the same day and

place as the hearing in the Small Claims case.           (Formatting

altered.)

            On September 5, 2017, the day after the second Monday

following the service of the Complaint, the court minutes show

that neither party appeared, and the Regular Claims court

entered default against Sudaria and Geddings:

            "ATTY RICHARD YANAGI NOT PRESENT FOR PLTFF
            PROPERTY CENTER . . . .       DEFTS JR SUDARIA AND
            SCOTTY GEDDINGS NOT PRESENT, BY ORDER OF THE
            COURT, DEFAULT ENTERED-VERIFIED."

            In late September 2017, Property Center filed an "Ex

Parte Motion for Default Judgment; Declaration; Exhibit(s)

1 through 5; Declaration of Counsel re: Attorney's Fees; Order." 5

(Formatting altered.)      On September 28, 2017, the Regular Claims

court granted the Ex Parte Motion for Default Judgment, awarding

the principal amount of $8,289.65 requested in the Complaint

plus $1,000.00 in attorney's fees and costs, for a total of

$9,289.65.    The Regular Claims court entered a default judgment




      5  The document is stamped received by legal documents on September 22,
2017 and stamped filed September 28, 2017.

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against Sudaria and Geddings on October 3, 2017, awarding the

$9,289.65 requested.

C.     Post Default Judgment

       1.      Small Claims Case - Dismissed Without Prejudice

               On October 25, 2017, the return date for the Small

Claims case, the court dismissed the case without prejudice. 6

The court minutes note that although Sudaria and Geddings

claimed they were not served with the Complaint in the Regular

Claims case, the Small Claims court determined they were served

and the security-deposit issue was resolved:

               "DEFTS CLAIM JUDGMENT FOR SECURITY DEPOSIT WAS
               ENTERED ON 9/5/2017.      PLTFFS CLAIM THEY WERE NOT
               SERVED WITH THE COMPLAINT.       DURING RECESS COURT
               REVIEWED FILE FROM CASE 1RC17-1-4580, AND
               DETERMINED THAT DEFTS WERE SERVED AND SECURITY
               DEPOSIT ISSUE WAS RESOLVED.        BY ORDER OF THE
               COURT, CASE DISMISSED WITHOUT PREJUDICE."

(Emphasis added.)

       2.      Regular Claims Case - Garnishment and Motion to Set
               Aside

               In the Regular Claims case, Property Center moved to

garnish Sudaria's and Geddings's wages, which was granted.            The

return of service for the issuance of the garnishee summons




       6    The Honorable Maura M. Okamoto presided.

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shows that Sudaria's and Geddings's employers were served on

November 27 and 28, 2017.

            A little over a week later, on December 8, 2017,

Sudaria and Geddings (still self-represented) filed a motion to

"Set Aside Default, Judgment & Stay Garnishment[.]"            (Formatting

altered.)    Sudaria and Geddings left blank the portion of the

form that permits the movant to indicate the legal basis for the

motion.   In a type-written declaration attached to their motion,

Sudaria and Geddings stated they "were never informed for any

other court date" with a handwritten notation, "Missing Page 2

of Summons - Form 1DC50."       (Formatting altered.)

            Property Center opposed the motion.         At the hearing on

the motion, Geddings explained that they appeared for the

August 23, 2017 hearing in the Small Claims case and received

the summons to appear on September 5, 2017, in the following

exchange:

                  [Geddings:] And when we left that day -- we had
            explained to the judge, too, that the date of
            September 5th, we -- that would create a hardship on our --
            on our work because we were already taking off time half of
            the month of September to go to the mainland for a wedding,
            family wedding. And we would be back at the beginning of
            October. So that's why she ordered us to come back
            October 25th on a status and if we had gotten together to
            discuss what was going on in this dispute.

                  [Regular Claims Court:] Okay. But you were also
            informed at that time about the date of September 5th for
            the answer.

                  [Geddings:] Yeah, but we explained the reason why.
            And, you know, when we received the slip to come back on
            October 25th, that's where, you know, it -- it became --



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               [Regular Claims Court:]     There are two different
         cases, you understand.

               [Geddings:] But we were under the understanding that
         -- or my thought was that if their case were being brought
         into this because they were submit -- their cases was
         subject to our security deposit and why they retained it.

                . . . .

               [Regular Claims Court:] I think you're conflating
         two different cases. You were told on the one case on
         August 23rd that you had an answer date of September 5th.

                [Geddings:]    It was -- I -- we -- were under the
          impression that we   were answering that day because we -- we
          recognized that we   got the summons but we were not in an
          understanding that   we had to come back on the 5th because
          when we --

               [Regular Claims Court:] Well, if you look at the
         papers they're two different cases.

                [Geddings:]    I know, Your Honor.

               [Regular Claims Court:]     And you didn't show up for
         one of them.

               [Geddings:] That was -- that was complete confusion.
         And on the day that September 5th came we, -- if we were --
         if it would have been explicitly explained that that was a
         necessary thing because we expressed a hardship on that,
         that taking off that, because we -- we had taken so many
         days off beforehand to -- to come down, file motions and we
         just feel like we are due our day in court for a fair trial
         and -- and justice should be served.


(Emphases added.)

          The Regular Claims court then found that Sudaria

and Geddings were told of the September 5, 2017 date to

answer, and denied their motion to set aside the default:

               [Regular Claims Court:] . . . . [t]he law in Hawai‘i
         under the case of BDM, Inc. versus Sageco, Inc., a 1976
         case, is that a defendant moving to set aside a default
         judgment must establish that the plaintiff will not be
         prejudiced by setting aside the default judgment, that the
         defendants have a meritorious defense, and that the default
         was not the result of inexcusable neglect or a willful act.




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                  It appears clear that the defendants were told at the
            August 23 or at the -- the hearing on the -- the -- the
            small claims case that there was a hearing set for
            September 5th, the answer date for the case, and that their
            case, the case on the security deposit, was continued to
            August [sic] 25th. They did not appear on September 5th.

                  There was also a lot of argument today that was not
            in the motion. And the requirement is that they have to
            establish there's a meritorious defense and that their
            default was [sic] inexcusable and willful.

                  And, therefore, based on what I have seen and heard
            today, I am going to deny the motion[.]


            After the Regular Claims court denied their motion to

set aside, Sudaria and Geddings moved for reconsideration, which

was also denied "as no new arguments or newly discovered

evidence has been presented."

            Sudaria and Geddings (represented by counsel) appeal

from the denial of their motion to set aside the default

judgment.

                        II.   STANDARDS OF REVIEW

            This court reviews DCRCP Rule 60(b)(4) decisions under

the de novo standard.      See Wagner v. World Botanical Gardens,

126 Hawai‘i 190, 195, 268 P.3d 443, 448 (App. 2011) (explaining a

court's ruling under Hawai‘i Rules of Civil Procedure (HRCP)

Rule 60(b)(4) is reviewed de novo); Commentary to DCRCP Rule 60

(noting the language in DCRCP Rule 60 and HRCP Rule 60 is

identical).

            Findings of fact are reviewed under the clearly

erroneous standard.      Bhakta v. Cnty. of Maui, 109 Hawai‘i 198,


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208, 123 P.3d 943, 953 (2005).    A finding "is clearly erroneous

when, despite evidence to support the finding, the appellate

court is left with the definite and firm conviction in reviewing

the entire evidence that a mistake has been committed."       Id.

(citation omitted).   A finding "is also clearly erroneous when

the record lacks substantial evidence to support the finding."

Id. (citation omitted).

           The denial of a motion to set aside an entry of

default is reviewed for abuse of discretion.      See Chen v. Mah,

146 Hawai‘i 157, 171, 457 P.3d 796, 810 (2020).

                          III. DISCUSSION

           Sudaria and Geddings contend they were deprived of due

process, DCRCP Rule 55 was not satisfied, and they met the

requirements under BDM.   For all of these contentions, Sudaria

and Geddings primarily rely on the assertion that they did not

receive page two of the summons.

           Sudaria and Geddings claim in their amended opening

brief that "they did not know the answering hearing date and

time" and "[b]ecause they did not have this critical

information, [they] were not present at their answer hearing

. . . ."




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A.     Denial Of The Motion To Set Aside Based On DCRCP
       Rule 60(b)(4) Was Not Error

            Sudaria and Geddings contend they were denied due

process because they did not receive page two of the summons,

claiming "they did not know the answering hearing date and

time."

            "For good cause shown the court may set aside an entry

of default and, if a judgment by default has been entered, may

likewise set it aside in accordance with Rule 60(b)."          DCRCP

Rule 55(c).     DCRCP Rule 60(b) 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, order, or

proceeding for the following reasons: . . . (4) the judgment is

void . . . ."     DCRCP Rule 60(b)(4).

            Whether a judgment is void under DCRCP Rule 60(b)(4)

is not discretionary.      In re Application of Hana Ranch Co., 3

Haw. App. 141, 146, 642 P.2d 938, 941 (1982) (examining HRCP

Rule 60(b)(4)).     "It has been noted that a judgment is void only

if the court that rendered it lacked jurisdiction of either the

subject matter or the parties or otherwise acted in a manner

inconsistent with due process of law."        Id. (citation omitted).

            Under due process, notice must be "reasonably

calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an



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opportunity to present their objections."        Eto v. Muranaka, 99

Hawai‘i 488, 498, 57 P.3d 413, 423 (2002) (citation omitted);

Espinosa v. United Student Aid Funds, Inc., 553 F.3d 1193, 1202

(9th Cir. 2008) (citation omitted).

          Here, the Regular Claims court found that Sudaria and

Geddings were told about the September 5, 2017 Regular Claims

answer date:

             It appears clear that the defendants were told at the
          August 23 or at the -- the hearing on the -- the -- the
          small claims case that there was a hearing set for
          September 5th, the answer date for the case, and that their
          case, the case on the security deposit, was continued to
          August [sic] 25th. They did not appear on September 5th.


          The record in this case, and the Small Claims case,

support this finding.    The summons filed in the record on appeal

shows a page two, notifying Sudaria and Geddings of when and

where to appear.

          During the hearing on the motion to set aside the

default, Geddings acknowledged receiving the summons at the

August 23, 2017 hearing in the Small Claims case, stating, "when

we appeared for court on August 23rd and the day we received the

summons . . . ."   Geddings also acknowledged that he and Sudaria

were aware of the September 5, 2017 date, explaining they told

the judge in the Small Claims case that the September 5, 2017

date "would create a hardship[.]"       Geddings stated, "we had

explained to the judge, too, that the date of September 5th, we

-- that would create a hardship on our -- on our work because we

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were already taking off time half of the month of September to

go to the mainland for a wedding[.]"

          The Regular Claims court asked, "[b]ut you were also

informed at that time about the date of September 5th for the

answer[,]" and Geddings answered, "[y]eah, but we explained the

reason why."   After clarifying that there were two separate

cases, the Regular Claims court stated, "[a]nd you didn't show

up for one of them[,]" to which Geddings replied "that was

complete confusion.   And on the day that September 5th came we,

-- if we were -- if it would have been explicitly explained that

that was a necessary thing because we expressed a hardship on

that, that taking off that, because we -- we had taken so many

days off beforehand . . . ."

          The court minutes for the Small Claims case also

support the Regular Claims court's finding that Sudaria and

Geddings were told of the September 5, 2017 date.      The

August 23, 2017 court minutes for the hearing stated, "MRS

SHIROMA REPRESENTED THAT SHE AND MR SHIROMA REPRESENT SNEZANA

PIRSLIN AND THAT THERE IS A DAMAGES CLAIM AGAINST PLTFFS SET ON

9/5/17 10B."   (Emphasis added.)    With no mention of the summons,

the court minutes for the October 25, 2017 hearing show that

Sudaria and Geddings claimed they were not served the complaint

but the court minutes stated, "DURING RECESS COURT REVIEWED FILE




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FROM CASE 1RC17-1-4580, AND DETERMINED THAT DEFTS WERE SERVED

AND SECURITY DEPOSIT ISSUE WAS RESOLVED."

            Based on the record in this case, and the court

minutes in the Small Claims case, the finding that Sudaria and

Geddings were told of the September 5, 2017 answer date was not

clearly erroneous.

            With this finding, we cannot say that Sudaria and

Geddings were deprived of due process.        Instead, the record

shows that they were apprised of the Regular Claims case and the

September 5, 2017 date to answer in that case.

B.     As To DCRCP Rule 55 And BDM, Denying The Motion To Set
       Aside Was An Abuse Of Discretion

            Again relying on their assertion that they did not

receive page two of the summons, Sudaria and Geddings argue that

the Regular Claims court "erred by denying [their] Motion to set

aside the entry of default pursuant to DCRCP 55(c)[,]" and that

they satisfied the three BDM factors.

            "A civil action is commenced by the filing of a

complaint . . . ."      DCRCP Rule 3.    "Upon the filing of a

complaint the clerk shall forthwith issue a summons.         Plaintiff

shall deliver the complaint and summons to a person authorized

to serve process."      DCRCP Rule 4(a).

            The summons must "be directed to the defendant,"

"state the time within which these rules require the defendant



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to appear and defend, and shall notify the defendant that in

case of defendant's failure to do so judgment by default will be

rendered against the defendant for the relief demanded in the

complaint," and "contain a warning to the person summoned that

failure to obey the summons may result in an entry of default

and default judgment."      DCRCP Rule 4(b).

            "All defendants shall appear or answer at the time

appointed in the summons, on the second Monday following the

date of service . . . ."       DCRCP Rule 12(a) (emphasis added).

            "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 the fact is made to appear by

affidavit or otherwise, the clerk shall enter that party's

default."    DCRCP Rule 55(a).      For a default judgment by the

court, a party entitled to the default judgment "shall apply to

the court therefor."      DCRCP Rule 55(b)(2).

            In BDM, the Hawai‘i Supreme Court articulated the

standard for granting a motion to set aside entry of default or

default judgment.     57 Haw. at 77, 549 P.2d at 1150.

            In general, a motion to set aside a default entry or a
            default judgment may and should be granted whenever the
            court finds (1) that the nondefaulting party will not be
            prejudiced by the reopening, (2) that the defaulting party
            has a meritorious defense, and (3) that the default was not
            the result of inexcusable neglect or a wil[l]ful act.


Id.   Though Chen v. Mah prospectively abrogated this standard,

the supreme court held decisions prior to January 30, 2020 on

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motions to set aside an entry of default would still be reviewed

under the three-prong test outlined in BDM.          Chen, 146 Hawai‘i at

177, 177 n.21, 457 P.3d at 816, 816 n.21.         Additionally, "if a

moving party fails to establish any prong of the test, it is not

an abuse of discretion to refuse to set aside the default."              146

Hawai‘i at 170, 457 P.3d at 809 (brackets omitted) (citing

Citicorp Mortg., Inc. v. Bartolome, 94 Hawai‘i 422, 439, 16 P.3d

827, 844 (App. 2000)).

           Regarding the first BDM factor, Property Center

acknowledged to the Regular Claims court that "there will be no

undue prejudice by setting aside the default judgment."

           As for the second BDM factor, Sudaria and Geddings

argue they have a meritorious defense because there was no

property condition form.      Hawaii Revised Statutes § 521-42

(2018) provides in part that

              Prior to the initial date of initial occupancy, the
           landlord shall inventory the premises and make a written
           record detailing the condition of the premises and any
           furnishings or appliances provided. Duplicate copies of
           this inventory shall be signed by the landlord and by the
           tenant and a copy given to each tenant. In an action
           arising under this section, the executed copy of the
           inventory shall be presumed to be correct. If the landlord
           fails to make such an inventory and written record, the
           condition of the premises and any furnishings or appliances
           provided, upon the termination of the tenancy shall be
           rebuttably presumed to be the same as when the tenant first
           occupied the premises.

(Emphasis added.)

           The record on appeal contains no property condition

form.   Thus, the presumption is that the condition of the

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property at the end of the rental agreement was the same as when

the tenants first occupied the property pursuant to the

agreement.   See Sasaki v. Morisako, 112 Hawai‘i 302, 309, 145

P.3d 845, 852 (App. 2006) (explaining that, without the required

inventory form, "the condition of the property at the

termination of the oral rental agreement was presumed to be the

same as when Appellants first occupied the property pursuant to

the oral agreement").

           Although Property Center argues it rebutted this

presumption with receipts and photos, it appears the presumption

in favor of the tenant could be a meritorious defense in this

case.   To the extent the Regular Claims court found Sudaria and

Geddings failed to show they had a meritorious defense, that

finding was clearly erroneous.

           Finally, as for the third factor, Sudaria and Geddings

argue that "the default occurred when [they] were not notified

of the hearing date and time."    Contrary to their argument, and

as discussed above, the record reflects that Geddings

acknowledged they were notified of the answer date and time for

the Regular Claims case.   Also discussed above, the finding that

Sudaria and Geddings were apprised of the answer date was not

clearly erroneous.

           However, Sudaria and Geddings had no attorney,

actively litigated the Small Claims case, explained to the Small

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Claims court the hardship regarding the Regular Claims case

answer date, and explained to the Regular Claims court that they

thought (albeit incorrectly) the continuance in the Small Claims

case also applied to the Regular Claims case.      Given their self-

represented status and the simultaneous cases, it appears

Sudaria and Geddings were understandably confused by the court

dates.

          We pause here to emphasize "that defaults and default

judgments are not favored and that any doubt should be resolved

in favor of the party seeking relief, so that, in the interests

of justice, there can be a full trial on the merits."       BDM, 57

Haw. at 76, 549 P.2d at 1150 (emphases added).      In other words,

any doubt as to whether the failure to appear on September 5,

2017 was due to inexcusable neglect or a willful act should have

been resolved in favor of Sudaria and Geddings.      See generally,

57 Haw. at 76, 77, 549 P.2d at 1150.     The court, however, made

no mention of how this reasoning factored in its ruling, and

made no credibility determination.

          Thus, to the extent the Regular Claims court found

that Sudaria and Geddings failed to meet their burden of proving

their non-appearance was not due to inexcusable neglect or a

willful act, we are "left with the definite and firm conviction

in reviewing the entire evidence that a mistake has been

committed."   Bhakta, 109 Hawai‘i at 208, 124 P.3d at 953.

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           Accordingly, based on the particular circumstances in

this case, we hold that the Regular Claims court's denial of

Sudaria and Geddings's motion to set aside the entry of default

was an abuse of discretion, and must be vacated.      Because the

default judgment was based on the entry of default, it must also

be vacated.

                           IV.   CONCLUSION

           In conclusion, we vacate the Regular Claims court's

(1) December 26, 2017 Denial of Defendants' Motion to Set Aside

Default Judgment and Stay Garnishment and (2) January 29, 2018

Order Denying Defendants' Motion to Set Aside Default, Judgment

and Stay Garnishment (Filed December 8, 2017), and remand this

case for further proceedings consistent with this memorandum

opinion.

           DATED:   Honolulu, Hawai‘i, June 26, 2023.

On the briefs:                         /s/ Lisa M. Ginoza
                                       Chief Judge
Justin A. Brackett,
For Defendants-Appellants.             /s/ Karen T. Nakasone
                                       Associate Judge
Richard A. Yanagi,
Michel A. Okazaki,                     /s/ Sonja M.P. McCullen
for Plaintiff-Appellee.                Associate Judge




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