- HSBA Appellate Section

Report
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
A LL CA SE S
 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 t o 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
(1960).
 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
C I VI L CA SE S
 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 . 2 4 9 , 2 5 2 ,
5 5 3 P. 2 d 4 6 4 , 4 6 6 ( 1 976 ) .
EXCEPTIONS
FA M ILY LAW CA SE S
 Notice of appeal does not divest trial court of
jurisdiction to :
 stay its decree or order pending appeal ,
 correct or modify the ROA ,
 enter FOFs and COLs ,
HFCR Rule 62(d)
HFCR Rule 60(a)
HFCR Rule 52(a)
 compel either party to advance attorney’s fees and costs .
§580-47(b)
HRS
EXCEPTIONS
FA M ILY LAW CA SE S
 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 In teres t o f Do e , 81 Hawai‘i 91, 98, 912 P.2d 588 (App.
1 9 9 6 ).
 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
Shimo te v. Vin cen t , 80
Hawai‘i 96, 1 0 2 , 9 0 5 P.2 d 7 1 , reco n . den . , 80 Hawai‘i 497, 911 P.2d 132, cert. den . , 80 Hawai‘i 187, 907 P.2d 773
(App. 1995 ).
EXCEPTIONS
C RI M I NAL CA SE S
 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 postconviction petition in trial court without awaiting decision
on appeal on any basis for collateral attack on judgment.
HRPP Rule 40(a)(l),
EXCEPTIONS
C RI M I NAL CA SE S
 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 9 1 ( 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 .
2009).
 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 .
See City
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 . 2 7 , 4 0 2 P. 2 d 6 8 3 , 6 9 3 n . 2 7 ( 1 9 6 5 ) .
 “Entry of judgment”
 “Entry” = judgment is filed in office of clerk,
 “Judgment” = decree and any order from which appeal lies.
and 58.
HRCP Rules 54(a)
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 4 1 - 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 W r 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
automatic ten -day stay] does not af fect appealability of the judgment nor prevent the time for
appeal from running.”).
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
P URP OSE
 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 af firmed.
 This insurance = supersedeas bond, standing as security for
payment of amount appellee could recover if judgment
af firmed.
 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
P ROC E DURE
 Acquired by obtaining binding obligation from bonding
company or other surety ( 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.
See HRAP Rule 8(b).
 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
A M OUNT OF BON D
 Amount determined by court in its discretion.
Mid kif t v. d e Bisschop,
5 8 H a w . 5 4 6 , 5 5 0 , 5 74 P. 2 d 1 2 8 , 1 3 1 ( 1 9 7 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
GOVE RN M ENT A P P E LLE ES
 State of Hawai‘i, counties, or of ficers 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
AVAI LABILI T Y
 Where injunction or receivership is subject of appeal, formal
motion for stay required. S e e 1 1 W r 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.
§§ 2904, 2905 (2d ed. 1995).
 “[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
AVAI LABILI T 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 W r 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
BON D RE QUI RE D
 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, 58
Haw. 546, 550, 574 P.2d 128,131 (1978); 11 Wright, Miller & Kane, Fed. Prac. & Proc. Civ. § 2905
(2d ed. 1995) (quoting former FRCP Rule 73(d), which was identical to former HRCP Rule 73(d)).
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 9 7 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 SE N T ENC E A N D R E L E A S E ON B A I L
Stays pending appeal “shall be had according to law.”
HRAP Rule 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 4 1 - 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
P E N DI NG I N T ERLOC UTORY A P P E AL
 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 ef fect, 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.’” I s l a n d I n s . C o . v. S a n to s , 8 6 H awa i ‘ i
3 6 3 , 3 6 6 , 9 4 9 P. 2 d 2 0 3 , 2 0 6 ( A p p . 1 9 97 ) .
 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.

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