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State v. Kam

Intermediate Court of Appeals of Hawaii

January 20, 2015

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
CIERRA ANN KAM, Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION (1DTA-12-00359)

ORDER OF CORRECTION

Nakamura, Chief Judge [1]

The Opinion of the court, filed on November 26, 2014, is hereby corrected as follows:

1. On page 3, in the fourth line from the bottom of the page, the year "2012" should be changed to "2011" so that as corrected, the text reads: "... was entered on October 21, 2011."

2. On page 9, in the nineteenth line, the word "is" should be changed to "was" so that as corrected, the text reads: "... footnote was based on a theory . . . ."

3. On page 15, in the ninth line, the word "same" that is between "the" and "person" should be deleted, so that as corrected, the text reads: "... "is the person with the prior . . . .”

The clerk of the court is directed to take all necessary steps to notify the publishing agencies of these changes.

DISSENTING OPINION

REIFURTH, J.

The majority applies the two-day extension for service by mail provided for in Hawai'i Probate Rules ("HPR") Rule 10(d) and concludes that the circuit court erred in holding that it did not have jurisdiction over Ramos's Petition. I conclude, however, that HPR Rule 10(d) has no application in the case of a petition filed under Hawaii Revised Statutes ("HRS") § 560:3-806(a) (2006) and therefore does not enlarge the filing period in this case. I base my conclusion on the plain language of the rule and statute in question, on analogous caselaw, and on the underlying purpose of enlargement rules such as this. Without the two-day enlargement for service by mail, Ramos's petition was untimely. As such, I respectfully dissent.

My disagreement with the majority is rooted in the plain language of HRS § 560:3-806(a), which does not mention service-whether transmitted by mail or otherwise-anywhere, and HPR Rule 10(d), which enlarges a prescribed time period specifically when it is triggered by the date of service and service has been transmitted by mail. Indeed, the drafters of HRS § 560:3-806(a) specified that the sixty-day time-period for filing a petition would begin to run "after the mailing of the notice of disallowance." (Emphasis added.) See generally Enoka v. AIG Haw. Ins. Co., 109 Hawai'i 537, 544, 128 P.3d 850, 857 (2006) ("'[W]here the terms of a statute are plain, unambiguous and explicit, . . . our sole duty is to give effect to the statute's plain and obvious meaning.'" (quoting T-Mobile USA, . Inc. v. Cnty. of Haw. Planning Comm'n, 106 Hawai'i 343, 352-53, 104 P.3d 930, 939-40 (2005))). And if the drafters had intended the sixty-day time-period to begin instead after the service of a notice of disallowance by mail, as the majority holding suggests, they likely would have used more precise language. Compare Haw. Rev. Stat. § 560:3-806(a) ("Every claim ... is barred so far as not allowed unless the claimant files a petition . . . not later than sixty days after the mailing of the notice of disallowance." (emphasis added)), with Haw. Rev. Stat. § 560:5-309(a) ("A copy of a petition for guardianship and notice of the hearing on the petition shall be served personally on the respondent. ... A failure to serve the respondent with a notice . . . shall preclude the court from granting the petition." (emphasis added)). Under the ordinary canons of construction employed by this court, [1] I read the drafters' choice not to reference service as intentional.

The lack of reference to service in HRS § 560:3-806(a) removes that statute from the purview of HPR Rule 10(d), which, by its plain language, only applies to enlarge a statutory time period when a particular method of service is used. Haw. Prob. R. 10(d) ("[T]wo days shall be added to the prescribed period" in situations where that prescribed period begins "after the service of a notice or other paper . . . and the notice or paper is served . . . by mail." (emphasis added)). Indeed, where our courts have applied Hawai'i Rules of Civil Procedure ("HRCP") Rule 6(e)-a rule with substantively identical language to HPR Rule 10(d)-to enlarge a prescribed time period by two days, those courts have done so only where that time period specifically begins to run upon service of some paper or other document and where service has been transmitted by mail.[2] Furthermore, federal courts interpreting Federal Rule of Civil Procedure ("FRCP") Rule 6(d), formerly 6(e), in analogous cases have based their holdings on these exact grounds.[3] See generally Rivera, 100 Hawai'i at 351 n.4, 60 P.3d at 301 n.4 (interpreting HRCP Rule 6(e) by reference to its counterpart, FRCP Rule 6(d)); accord Waikiki Marketplace Inv. Co. v. Chair of Zoning Bd. of Appeals of the City & Cnty. of Honolulu, 86 Hawai'i 343, 350 n.4, 949 P.2d 183, 190 n.4 (1997). So too have state courts interpreting rules similar to FRCP Rule 6(d).[4]

The purpose behind enlargement rules also supports the conclusion that HPR Rule 10(d) is not applicable to the case at hand. Generally, "service by mail is complete upon mailing, " rather than upon receipt, and certain prescribed limitation periods are tolled by the date of service, where there are multiple methods of service available to parties. Haw. R. Civ. P. 5(b)(1) & (3). As such, courts apply extension provisions like HPR Rule 10(d) to mitigate any disadvantage to a person who is served by mail, rather than by any other available methods.[5]Under HRS § 560:3-806(a), however, there are no alternative methods for transmitting the notice of disallowance. Thus, the rationale typically supporting extension rules such as HPR Rule 10 (d) does not apply.[6]

Because HRS ยง 560:3-806 (a) 's sixty-day time period is measured from the "date of mailing, " and not from the date of service, and because the rationale typically supporting extension rules is inapplicable in such cases, HPR Rule 10(d) does not apply in the context of this case. As such, I would hold that Ramos's Petition, which was filed sixty-two days after the sixty-day limitations period began to run, was untimely. Accordingly, I would affirm the circuit court's determination that it did not have ...


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