CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000034; CR. NO. 09-1-0410)
Matthew N. Padgett, for petitioner
Brian R. Vincent, for respondent.
Mark E. Recktenwald, Paula A. Nakayama, Simeon R. Acoba, Jr., Sabrina S. McKenna, Richard W. Pollack, JJ.
We hold that the Circuit Court of the First Circuit (the court) was right in denying the Motion for Relief from Forfeiture of Bail Bond filed on November 2, 2011 (November 2 Motion for Relief) by Petitioner/Surety-Appellant Freedom Bail Bonds (Petitioner). In doing so we conclude that (1) the November 2 Motion for Relief could not be brought under Hawai'i Rules of Civil Procedure (HRCP) Rule 60(b) because pursuant to HRCP Rule 81(a)(8),  the rules of civil procedure do not apply to bond forfeiture proceedings, (2) the statement in Hawai'i Revised Statutes (HRS) § 804-14,  that a surety may recover its bond at any time by surrendering the defendant is qualified by HRS § 804-51,  which provides that once the court enters a judgment of forfeiture a surety is entitled to relief only by filing a motion within thirty days demonstrating good cause for setting the judgment of forfeiture aside, (3) the November 2 Motion for Relief was not filed within the thirty-day time limit and thus was untimely, and (4) under the terms of HRS § 804-51, once the court denies a motion to set aside the judgment, the court is not required to file a separate judgment under HRCP Rule 58.
Therefore, for the reasons stated herein, we affirm the May 23, 2013 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its April 26, 2013 Memorandum Opinion,  that affirmed the December 13, 2011 "Findings of Fact [(findings)], Conclusions of Law [(conclusions)], And Order" that denied Petitioner's November 2 Motion For Relief of the court, entered on December 13, 2011. (December 2011 Order).
On March 23, 2009, Defendant Joseph Vaimili (Vaimili) was charged with Kidnapping, Terroristic Threatening in the First Degree, Promoting Prostitution in the First Degree, and Carrying or Use of a Firearm in the Commission of a Separate Felony. Bail was set at $250, 000. Petitioner posted bond for Vaimili on July 23, 2009, pursuant to HRS § 804-3 (2008). Vaimili was present for jury selection on June 21, 2010, however, he failed to appear in court on June 23, 2010. The trial was continued to June 28, 2010, to allow defense counsel the opportunity to locate Vaimili.
On June 28, 2010, a Judgment and Order of Forfeiture of Bail Bond was filed. The court continued the trial to July 19, 2010 to allow defense counsel another opportunity to secure Vaimili's presence for trial. Vaimili again failed to appear for trial on July 19, 2010, and Petitioner was unable to locate or contact Vaimili.
Petitioner filed its first motion, a Motion to Set Aside Judgment and Order for Forfeiture of Bail Bond on July 27, 2010 (July 27 Motion to Set Aside). At the time of filing, Vaimili's whereabouts were still unknown. At the August 9, 2010 hearing to address the July 27 Motion to Set Aside, Petitioner stated it was unable to locate and to surrender Vaimili within the "thirty-day search period, " and had no reason for Vaimili's failure to appear at trial. The court denied Petitioner's July 27 Motion to Set Aside and refused to enlarge the thirty-day search period. (Citing State v. Camara, 81 Hawai'i 324, 330 (1996).) On August 16, 2010, the court filed its Findings of Fact, Conclusions of Law, and Order Denying [Petitioner's (first)] Motion to set Aside Judgment and Order of Forfeiture of Bail Bond (August 2010 Order).
Petitioner filed its Notice of Appeal to the ICA on September 16, 2010, thirty-one days after the court filed its August 2010 Order. The ICA dismissed the appeal for lack of appellate jurisdiction because Petitioner's Notice of Appeal was not filed within the thirty-day time period required by Hawai'i Rules of Appellate Procedure (HRAP) Rule 4(a)(1) (2010). State v. Vaimili (Vaimili I), No. CAAP-10-0000017, 2010 WL 5497660, at *1 (Haw. App. Dec. 30, 2010)(unpublished order).
On June 27, 2011 Petitioner filed its second motion, a Motion for Relief from Forfeiture of Bail Bond, pursuant to Rule 7 and 60(b) of the HRCP (June 27 Motion for Relief). HRCP Rule 60(b) states, in relevant part that:
[T]he court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding.
(Emphases added.) Vaimili's whereabouts were still unknown, and at the July 5, 2011 hearing regarding Petitioner's June 27 Motion for Relief, Petitioner stated that it would continue its efforts to apprehend Vaimili on the mainland, but could not assure the court that Vaimili would be located.
The court did not address whether HRCP Rule 60(b) was applicable to a bond forfeiture case. The court denied Petitioner's June 27 Motion for Relief based on Petitioner's failure to locate Vaimili within the thirty-day period, under HRS § 804-51. Petitioner did not appeal the denial of its June 27 Motion for Relief.
Vaimili was arrested and returned to Hawai'i by federal authorities on October 14, 2011. Petitioner filed its third motion, a Motion for Relief from Forfeiture of Bail Bond pursuant to HRCP Rules 7 and 60(b) on November 2, 2011 (November 2 Motion for Relief). In the November 2 Motion for Relief, Petitioner asserted that Vaimili had been recaptured due to the efforts of its agents.
On December 13, 2013 the court entered the December 2011 Order. The court denied the November 2 Motion for Relief in its December 2011 order, based on the expiration of the thirty day period ...