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                                                          Electronically Filed
                                                          Supreme Court
                                                          SCWC-XX-XXXXXXX
                                                          20-APR-2020
                                                          08:03 AM

            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---oOo---
________________________________________________________________

                         ECKARD BRANDES, INC.,
                    Respondent/Appellant-Appellee,

                                   vs.

           DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS,
                   Respondent/Appellee-Appellee,

                                   and

                           SCOTT FOYT,
                Petitioner/Intervenor-Appellant.
________________________________________________________________

                            SCWC-XX-XXXXXXX

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-XX-XXXXXXX; CIVIL NO. 18-1-0011)

                            APRIL 20, 2020

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY McKENNA, J.

                           I.   Introduction

      The Intermediate Court of Appeals (“ICA”) dismissed this

appeal on the grounds that appellate jurisdiction was lacking.

The ICA ruled that the Circuit Court of the First Circuit
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(“circuit court”)1 abused its discretion in finding the existence

of “excusable neglect” under Hawaiʻi Rules of Appellate Procedure

(“HRAP”) Rule 4(a)(4)(B) (2016) to allow an extension of time to

file a notice of appeal.

      We hold that the circuit court did not abuse its discretion

in determining that “excusable neglect” existed to grant

Petitioner Scott Foyt’s (“Foyt”) motion for extension of time to

file a notice of appeal, and we therefore vacate the ICA’s May

21, 2019 “Order Dismissing Appellate Court Case Number CAAP-19-

0000095 for Lack of Appellate Jurisdiction” and remand this case

to the ICA to address the merits of the appeal.        Further, in

Enos v. Pac. Transfer & Warehouse, 80 Hawaiʻi 345, 910 P.2d 116

(1996), this court adopted definitions of “good cause” as

factors beyond the movant’s control and “excusable neglect” as

factors within the movant’s control for purposes of former HRAP

Rule 4(a)(5).     Former HRAP Rule 4(a)(5), however, allowed for

extensions based on either standard, whether filed within the

first thirty or next thirty days.         The division of HRAP Rule

4(a)(5) into two subsections reflected in the current HRAP Rule

4(a)(4)(A) and (B), which now allow for extensions within the

first thirty days only if “good cause” exists or within the next




1     The Honorable James K. Kawashima presided.



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thirty days only if “excusable neglect” exists, has resulted in

dismissals of appeals in contravention of “the policy of

law . . . favor[ing] dispositions of litigation on the merits.”

Shasteen, Inc. v. Hilton Hawaiian Village Joint Venture, 79

Hawaiʻi 103, 107, 899 P.2d 386, 390 (1995).        We therefore clarify

the terms.

                            II.   Background
A.    Factual Summary

      Eckard Brandes, Inc. (“Eckard Brandes”) is a contractor

that performs sewer pipe cleaning, inspection, and repair work,

including on governmental public works projects.         Eckard Brandes

employees are paid at different rates for work performed based

on differing job classifications.        Foyt was employed by Eckard

Brandes from May 2000 to July 2013.        During his employment, Foyt

operated different kinds of trucks on various jobs, including

projects for the State of Hawaiʻi (“State”) and the City and

County of Honolulu (“City”).      Chapter 104 of the Hawaiʻi Revised

Statutes (“HRS”) includes provisions governing wage requirements

for certain kinds of work performed for the State and City.

B.    Procedural Background

      1.   Notice of Violation

      In 2013, Foyt filed a complaint disputing his wages on

various State and/or City jobs.         After an investigation

conducted by the Wage Standards Division of the Department of


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Labor and Industrial Relations (“DLIR”), a May 4, 2017 Notice of

Violation was sent to Eckard Brandes.         The notice alleged

violations of HRS Chapter 104,2 stating in relevant part as

follows:

            Prevailing Wages
            Section 104-2(b), HRS, requires that every laborer or mechanic
            performing work on the job site for the construction of any
            public work project shall be paid no less than prevailing wages.
            WSD [Wage Standard Division]’s investigation found that an
            employee was classified as a Laborer I for some hours and Laborer
            II for other hours, but the employee should have been classified
            as a Truck Driver Tandem Dump Truck, over 8 cu. yds.; Water Truck
            (over 2,000 gallons) for all hours.

            Overtime
            Section 104-2(c), HRS, requires the payment   of overtime on
            Saturday, Sunday, a legal State holiday, or   for time worked
            in excess of eight hours on any other day.    WSD found that
            an employee was paid the straight-time rate   for hours
            exceeding eight hours per day.

            Certified Payrolls and Recordkeeping
            Section 104-3(a), HRS, requires a certified copy of all
            payrolls to be submitted weekly to the contracting agency.
            The certification shall affirm that the payrolls are

2     HRS § 104-23 (2012 & Supp. 2016) provides:

            § 104-23 Notification of violation. (a) When the
            department, either as a result of a report by a contracting
            agency or as a result of the department’s own
            investigation, finds that a violation of this chapter or of
            the terms of the contract subject to this chapter has been
            committed, the department shall issue a notification of
            violation to the contractor or subcontractor involved.
                 (b) A notification of violation shall be final and
            conclusive unless within twenty days after a copy has been
            sent to the contractor, the contractor files a written
            notice of appeal with the director.
                 (c) A hearing on the written notice of appeal shall
            be held by a hearings officer appointed by the director in
            conformance with chapter 91.
                 Hearings on appeal shall be held within sixty days of
            the notice of appeal and a decision shall be rendered by
            the hearings officer within sixty days after the conclusion
            of the hearing, stating the findings of fact and
            conclusions of law. The hearings officer may extend the
            due date for decision for good cause; provided that all
            parties agree.



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            correct and complete, that the wage rates are not less than
            the applicable rates contained in the Wage Rate Schedule,
            and that the classifications conform with the work the
            laborer or mechanic performed. WSD found the following:

                  The employee who was classified as a Laborer I for
                  some hours and Laborer II for other hours, should
                  have been classified as a Truck Driver Tandem Dump
                  Truck, over 8 cu.yds.; Water Truck (over 2,000
                  gallons).

                  The employer classified employees as “Laborer”,
                  rather than “Laborer I” or “Laborer II”.

                  Pursuant to Section 104-23(b), HRS, this Notification
            of Violation may be appealed by filing a written notice of
            appeal with the Director within twenty (20) days after the
            date of this notification.

                  The balance due on the Wage and Penalty Assessment form
            should be paid by May 24, 2017, to avoid further legal
            action, including immediate suspension from performing work
            on any State or county public works project. . . .

Eckard Brandes was assessed back wages due and a 10% penalty,

for a total assessment of $60,131.12.

      2.    Request for Hearing

      On May 16, 2017, Eckard Brandes filed an appeal of the

Notice of Violation with the Director of the DLIR pursuant to

HRS § 104-23(b) and requested a hearing pursuant to HRS § 104-

23(c).3    The Notice of Hearing listed Eckard Brandes as the

appellant and the DLIR as the appellee.           Foyt was a witness at

the hearing, but he was not named as a party.           The hearing was

held on August 11 and 14, 2017.           On December 6, 2017, a hearing

officer issued a detailed Decision and Order affirming the

Notice of Violation.



3     See supra, note 2.


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      3.    Appeal to the Circuit Court

      On January 4, 2018, Eckard Brandes filed a Notice of Agency

Appeal.    Again, the only parties were Eckard Brandes as

appellant and DLIR as appellee.              Foyt was not listed on the

certificate of service of the notice of agency appeal.

      Following briefing, another circuit court judge4 held oral

argument, and on December 19, 2018, issued an order reversing

the Decision and Order, concluding that a July 2005 letter from

a former DLIR Director3 established that sewer line cleaning work

was not subject to HRS chapter 104.


4     The Honorable Keith K. Hiraoka presided over the actual agency appeal.

3     The July 26, 2005 letter stated:

            This letter is to inform you that you will not
            receive a survey this year because the classification
            of Sewer Line Tele-Repairer will be discontinued as
            of the next Wage Rate Schedule, Bulletin Number 461,
            which will be issued on September 2005.

            Input from the industry brought to our attention the
            distinction between inspection and cleaning versus
            repair. The inspection and cleaning function is not
            considered construction work as covered under Chapter
            104, HRS, therefore it will not be included in the
            prevailing wage rate schedule. The repair work is
            same work that would be classified as Laborer I, a
            classification that already exists.

            Additionally, under Section 104-2(b), HRS, the law
            states that “prevailing wages shall not be less than
            the wages payable under federal law to corresponding
            classes.” The U.S. Department of Labor does not
            include a separate classification for sewer line
            telerepairer work for construction projects covered
            by the federal Davis-Bacon Act. Work of that nature
            is classified as Laborer I. Thus, maintaining the
            rate classification of Sewer Line Tele-Repairer
            creates a prevailing wage that is less than the wages
            payable under federal law to corresponding classes,
            and is contrary to the law.

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The circuit court’s order stated:

             The Court finds that Appellee was bound by the July 2005
             letter, from then Director Nelson Befitel, that the work of
             sewer line cleaning was not subject to Chapter 104 HRS and
             therefore, the work performed by the Claimant at the time,
             was not subject to Chapter 104 HRS.

             IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the
             Decision and Order of the Department of Labor and
             Industrial Relations, Wage Standards Division, Hearings
             Branch, dated December 6, 2017, is reversed.

             Pursuant to Rule 72(k) of the Hawaii Rules of Civil
             Procedure, the clerk of the Court shall notify the
             governmental official or body concerned of the disposition
             of this appeal. The Court further orders that the agency
             take action consistent with the Court’s ruling.

(Emphasis in the original.)        Final judgment was entered the same

day.

       4. Foyt’s Motion to Intervene

       More than one month after the December 19, 2018 final

judgment, on January 25, 2019, Foyt, through counsel, filed two

motions in the circuit court case.          The first was a motion for

leave to intervene for the sole purpose of appealing the

December 19, 2018 final judgment.          The second was a motion to

extend the time to file a notice of appeal from the December 19,

2018 final judgment.       At the time these motions were filed, the

thirty-day period under HRAP Rule 4(a) to file an appeal from

the December 19, 2018 judgment had already expired.4



4      HRAP Rule 4(a) provides in pertinent part:

             (a) Appeals in civil cases.
             (1) Time and place of filing. When a civil appeal is
             permitted by law, the notice of appeal shall be filed
                                                               (continued. . .)

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       In filings regarding these motions, counsel for Foyt

represented Foyt had not received a copy of the final judgment

until after Christmas of 2018, had then spent several weeks

searching for an attorney, and that counsel had been officially

retained on January 17, 2019.       He represented that the day

before he had been retained, he had spoken with counsel for

DLIR, who informed him that DLIR would not be appealing the

circuit court’s final judgment and that DLIR would not be

willing to file a motion to extend time to file a notice of

appeal, but would stipulate to an extension of time for Foyt to

appeal.   Counsel for Foyt also declared he had not heard back

from Eckard Brandes’ counsel as to whether the company would

also be willing to so stipulate.         Counsel also pointed out that

Foyt was directly affected by the final judgment disallowing the

additional wages that DLIR had ordered Eckard Brandes to pay to

him.

       By orders entered on February 13, 2019, the circuit court

granted both motions.     The order granting Foyt’s motion to

extend the time to file a notice of appeal from the December 19,

2018 judgment for an additional thirty days stated that the




           within 30 days after entry of the judgment or appealable
           order.

           . . . .


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circuit court’s decision was based on counsel’s arguments and

“excusable neglect.”

      5.    Appeal to the ICA

      Two days later, on February 15, 2019, Foyt filed a notice

of appeal from the circuit court’s December 19, 2018 final

judgment to the ICA.     After the record on appeal was filed and

before briefing, Foyt’s counsel filed a Jurisdictional Statement

on April 22, 2019, asserting appellate jurisdiction pursuant to

HRAP Rule 4.    On April 25, 2019, Eckard Brandes filed a

Statement Contesting Jurisdiction, asserting that Foyt failed to

establish excusable neglect.

      On May 21, 2019, the ICA filed an order dismissing the

appeal for lack of appellate jurisdiction, holding the appeal

untimely under HRAP Rule 4(a)(1) because the record did not

establish excusable neglect to extend the time to file the

notice of appeal.    The ICA noted that the initial thirty-day

time period under HRAP Rule 4(a)(1) for filing a notice of

appeal from the December 19, 2018 final judgment was Friday,

January 18, 2019.    According to the ICA, because counsel for

Foyt had admitted to speaking with counsel for DLIR on January

16, 2019, two days before the deadline, and because “Foyt had an

opportunity to intervene and pursue an appeal before January 18,

2019[,]” the record did not support a finding of “excusable

neglect.”

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       6.   Certiorari Application

       On July 19, 2019, Foyt timely4 filed an application for writ

of certiorari to review the ICA’s May 21, 2019 dismissal order.

Foyt contends that the ICA erred in concluding that excusable

neglect had not been shown and by not reaching the merits of the

appeal.     In opposition, Eckard Brandes argues that Foyt does not

discuss the “excusable neglect standard or this court’s decision

in Enos, in which this court stated “the character of the

neglect, rather than the consequences, should be determinative

of whether it is ‘excusable.’”       80 Hawaiʻi at 355, 910 P.2d at

126.    Eckard Brandes further quotes this portion of that

opinion:

            Thus, when considering a motion brought pursuant to HRAP
            Rule 4(a)(5), the trial court must first determine the
            cause of the delay in filing the notice of appeal. If that
            cause is beyond the movant’s control, the motion may be
            granted upon a showing of “good cause.” If the cause of
            the delay is some mistake or inadvertence within the
            control of the movant, the motion may be granted only upon
            a showing of “excusable neglect.”

Enos, 80 Hawaiʻi at 352, 910 P.2d at 123.

                        III. Standards of Review

A.     Appellate Jurisdiction

       “The existence of [appellate] jurisdiction is a question of

law that we review de novo under the right/wrong standard.

Construction of rules promulgated by this court is also reviewed


4     On June 6, 2019, Foyt timely requested and received an additional
thirty days to file the application for writ of certiorari. See HRAP Rule
40.1(a)(1) and (a)(3) (2017).

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de novo.”    State v. Nilsawit, 139 Hawaiʻi 86, 90, 384 P.3d 862,

866 (2016) (internal citations and quotation marks omitted).

B.    Finding of Excusable Neglect

      A trial court’s order granting a motion to extend time for

filing a notice of appeal on the grounds of excusable neglect is

reviewed for an abuse of discretion.      Hall v. Hall, 95 Hawaiʻi

318, 319, 22 P.3d 965, 965-66 (2001) (overruling in part Hall v.

Hall, 96 Hawaiʻi 105, 111, 26 P.3d 594, 600 (App. 2001).

                              IV. Analysis

A.    Appellate jurisdiction exists because the circuit court did
      not err in determining that “excusable neglect” existed to
      grant the extension

      The ICA dismissed Foyt’s appeal for lack of appellate

jurisdiction on the grounds that there was no “excusable

neglect” under HRAP Rule 4(a)(4)(B) to authorize the circuit

court to grant Foyt’s requested thirty-day extension to file his

notice of appeal because Foyt had an opportunity to intervene

and pursue an appeal before January 18, 2019.

      Generally, “[w]hen a civil appeal is permitted by law, the

notice of appeal shall be filed within 30 days after entry of

the judgment or appealable order.”      HRAP Rule 4(a)(1).    A party,

however, may obtain an extension of time, after the initial

thirty-day appeal deadline to file a notice of appeal has

expired, upon the showing of “excusable neglect.”       HRAP Rule

4(a)(4)(B).    HRAP Rule 4(a)(4) (2016) provides as follows:

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      (4) Extensions of time to file the notice of appeal.

                 (A) Requests for extensions of time before expiration
           of the prescribed time. The court or agency appealed from,
           upon a showing of good cause, may extend the time for
           filing a notice of appeal upon motion filed within the time
           prescribed by subsections (a)(1) through (a)(3) of this
           Rule. However, no such extension shall exceed 30 days past
           such prescribed time. An extension motion that is filed
           before the expiration of the prescribed time may be ex
           parte unless the court or agency otherwise requires.

                 (B) Requests for extensions of time after expiration
           of the prescribed time. The court or agency appealed from,
           upon a showing of excusable neglect, may extend the time
           for filing the notice of appeal upon motion filed not later
           than 30 days after the expiration of the time prescribed by
           subsections (a)(1) through (a)(3) of this Rule. However,
           no such extension shall exceed 30 days past the prescribed
           time. Notice of an extension motion filed after the
           expiration of the prescribed time shall be given to the
           other parties in accordance with the rules of the court or
           agency appealed from.

Thus, based on our current rule, requests for extensions of time

to file a notice of appeal before expiration of the initial

thirty days are governed by the “good cause” standard of HRAP

Rule 4(a)(4)(A), while requests made after the expiration of the

initial thirty days are generally governed by the “excusable

neglect” standard of HRAP Rule 4(a)(4)(B).

      The circuit court and the ICA analyzed the timeliness of

Foyt’s appeal in this case based on the “excusable neglect”

standard of HRAP Rule 4(a)(4)(B), as more than thirty days had

elapsed after the entry of the circuit court’s final judgment.

      The ICA and Eckard Brandes cite to this court’s opinion in

Enos, 80 Hawaiʻi 345, 910 P.2d 116, for the definition of

“excusable neglect” as a cause beyond the movant’s control.

Enos governed extensions of time to file notices of appeal under

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a different version of HRAP Rule 4(a), which was former HRAP

Rule 4(a)(5):

           The court or agency appealed from, upon a showing of
           excusable neglect or good cause, may extend the time for
           filing a notice of appeal upon motion actually filed not
           later than 30 days after the expiration of the time
           prescribed by subsections (a)(1) through (a)(4) of
           this Rule 4. Any such motion which is filed before
           expiration of the prescribed time may be ex parte unless
           the court otherwise requires. Notice of any such motion
           which is filed after expiration of the prescribed time
           shall be given to the other parties in accordance with the
           rules of the court or agency appealed from. No such
           extension shall exceed 30 days past such prescribed time or
           10 days from the date of entry of the order granting the
           motion, whichever occurs later.

      Enos noted that HRAP Rule 4(a)(5) was “patterned after

Federal Rules of Appellate Procedure (“FRAP”) Rule 4(a)(5),

which, until its amendment in 1979, allowed extension of time

only upon a showing of [the stricter] excusable neglect.”            Enos,

80 Hawaiʻi at 350, 10 P.2d at 121.        Although a majority of

federal Circuit Courts of Appeal had held the “good cause”

standard applicable only when a motion to extend was filed

during the initial thirty-day period, we adopted the approach of

the First Circuit Court of Appeals consistent with the plain

language of the rule, and we allowed the “good cause” standard

to apply to requests for extensions whether they were filed

within the initial thirty days or within the next thirty days.

Enos, 80 Hawaiʻi at 350, 351, 910 P.2d at 121, 122.




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      After holding both standards applicable whether a motion

was filed during the initial thirty days or the next thirty

days, we then also held:

           when considering a motion brought pursuant to HRAP Rule
           4(a)(5), the trial court must first determine the cause of
           the delay in filing the notice of appeal. If that cause is
           beyond the movant’s control, the motion may be granted upon
           a showing of “good cause.” If the cause of the delay is
           some mistake or inadvertence within the control of the
           movant, the motion may be granted only upon a showing of
           “excusable neglect.”

Enos, 80 Hawaiʻi at 352, 910 P.2d at 123.         Thus, we also held in

Enos that if the cause of the delay was within the control of

the movant, a motion to extend could only be granted upon a

showing of “excusable neglect.”

      Thus, pursuant to Enos, a motion for extension filed in the

second thirty days could only be granted if there was “neglect”

that was “excusable.”      In other words, Enos used a two-part

test:   (1) Was there neglect?      And if so, (2) Was the neglect

excusable?    Enos appears to have used “within the movant’s

control” as shorthand for whether or not there was neglect, not

for whether or not existing neglect was excusable.           With respect

to determining whether existing “neglect” could be deemed

“excusable,” Enos expressly adopted the equitable standard set

forth by the United States Supreme Court in Pioneer, and stated,

“reasons for failure to comply with a court-ordered deadline

range from acts of God to a party’s choice to flout the deadline

and that ‘excusable neglect’ is not restricted to those


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circumstances beyond a party’s control.”        80 Hawaiʻi at 352, 910

P.2d at 123 (citing Pioneer Inv. Servs. Co. v. Brunswick Assoc.

Ltd. P’ship, 507 U.S. 380, 395 (1993)).        In other words, Enos

clearly indicated that “neglect” could be “excusable” even if

within a party’s control.

      Further addressing what would constitute “excusable

neglect” “within the control of the movant,” we also held that

“only plausible misconstruction, but not mere ignorance, of the

law or rules rises to the level of excusable neglect.”        Enos, 80

Hawaiʻi at 353, 910 P.2d at 124.        In other words, Enos stated

that the “neglectful” missing of an appeal deadline based on

“plausible misconstruction” of law or rules could be

“excusable.”    Under the specific circumstances of that case,

however, we held that “excusable neglect” was not demonstrated

by counsel’s failure to read and comply with the plain language

of the applicable procedural rules, and that the trial court

therefore abused its discretion in granting a motion to extend

time to file a notice of appeal.        Enos, 80 Hawaiʻi at 355, 910

P.2d at 126.    Then in Hall, also cited to by the ICA, we ruled

that an attorney’s confusion or misunderstanding regarding the

rule governing extension of time to file a notice of appeal did

not constitute “excusable neglect.”        95 Hawaiʻi at 319, 22 P.3d

at 966.



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      Foyt’s appeal was analyzed by the ICA for the existence of

“excusable neglect.”      Although the circuit court found

“excusable neglect” to exist, applying Enos and Hall, the ICA

ruled that because counsel for Foyt had spoken to counsel for

Eckard Brandes two days before the January 18, 2019 initial

thirty-day deadline, and because Foyt presumably also could have

moved to intervene earlier in the proceedings, the circuit court

abused its discretion in granting an extension.           The Enos and

Hall cases, however, are distinguishable from the situation at

hand, and the ICA misconstrued our holding in Enos.

Fundamentally, “the determination [of whether a party has shown

‘excusable neglect’] is at bottom an equitable one, taking

account of all relevant circumstances surrounding the party’s

omission.”    Pioneer, 507 U.S. at 395.       Foyt was not a “party”

until his motion to intervene was granted after it was filed by

his newly retained attorney.5       In addition, according to Foyt’s

submissions to the circuit court, he did not receive a copy of

the December 19, 2018 circuit court final judgment until after

Christmas of 2018, then spent several weeks searching for an

attorney.    This was during the holiday period.        Although his

prospective counsel spoke to counsel for Eckard Brandes two days

before the deadline, Foyt was not able to officially retain


5     It appears that under HRS Chapter 91 and HRCP Rule 72, Foyt could have
been included as a party. Because this issue has not been briefed, we do not
address it further at this time.

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counsel until January 17, 2019, one day before the initial

thirty-day appeal filing deadline.      Counsel then filed motions

to intervene and extend eight days later, and they were decided

and granted by February 13, 2019.       Foyt’s notice of appeal to

the ICA was filed two days later, before the additional thirty-

day extended deadline had expired.

      Thus, in this case, Foyt was not even a “party” when he

received the circuit court’s final judgment.       His motion to

intervene had to first be granted by the circuit court before he

could file a notice of appeal.      Also, there was no ignorance,

misreading, confusion, or misunderstanding of the law.        After

being retained the day before the initial thirty-day deadline

expired, counsel for Foyt prepared a motion to intervene as well

as a motion for extension under HRAP Rule 4(a)(4)(B).        To the

extent these circumstances were within Foyt’s control,

“excusable neglect” existed, and the circuit court did not abuse

its discretion in granting the motion for extension of time

based on HRAP Rule 4(a)(4)(B).      The ICA therefore erred in

dismissing Foyt’s appeal for lack of appellate jurisdiction.

B.    Changed circumstances require us to clarify “good cause”
      and “excusable neglect”

      Our examination of this certiorari proceeding and HRAP Rule

4(a)(4) causes us to clarify the Enos interpretations of “good

cause” and “excusable neglect.”      When Enos was decided, all


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motions to extend time for filing a notice of appeal were

governed by one subsection of HRAP Rule 4(a), the HRAP Rule

4(a)(5) quoted above.      At that time, the language of HRAP Rule

4(a)(5) allowed for extensions of time to file notices of appeal

based on “good cause” or “excusable neglect,” whether or not a

motion was filed within the first thirty days or within the next

thirty days.

      In Enos, we held that pursuant to the language of the then-

existing HRAP Rule 4(a)(5), the “good cause” standard applied

even if a motion to extend was not filed within the second

thirty days.    80 Hawaiʻi at 350, 351, 910 P.2d at 121, 122.           We

also held in Enos, however, that the “good cause” standard only

applied if the reason for the extension was beyond the movant’s

control.   80 Hawaiʻi at 352, 910 P.2d at 123.6         We conversely

held that if a reason for requesting an extension was within the

movant’s control, the motion could only be granted upon a

showing of “excusable neglect.”        Id.   In doing so, however, Enos

expressly adopted the equitable standard set forth by the Court

in Pioneer, indicating that the “neglectful” missing of an

appeal deadline based on “plausible misconstruction” of law or



6     If HRAP Rule 4(a)(5) still controlled, Foyt’s motion could therefore
have been evaluated under the “good cause” standard for factors not within
Foyt’s control, obviating the need to analyze this case under the “excusable
neglect” standard for factors within Foyt’s control, which the ICA ruled did
not exist.


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rules could be “excusable.”       We ruled that the facts of that

case did not support a finding of “excusable neglect.”

      After Enos, effective January 1, 2000, HRAP Rule 4(a) was

amended, and the former HRAP Rule 4(a)(5) was split into the

structure in which it now appears, with Rule 4(a)(4)(A)

governing extensions of time within the first thirty days,

requiring “good cause,” and Rule 4(a)(4)(B) governing extensions

of time within the next thirty days, requiring “excusable

neglect.”    Hall, 95 Hawaiʻi at 319 n.1, 22 P.3d 965 at n.1.7

Thus, from that time, according to the plain language of HRAP

Rule 4(a)(4), extension requests made within the first thirty

days are governed by the “good cause” standard of subsection (A)




7     HRAP Rule 4(a)(4)&(5) (eff. 2000), provided the following:

            (4) Extensions of Time to File the Notice of Appeal.
            (A) Requests for Extensions of Time Before Expiration of
            the Prescribed Time. The court or agency appealed from,
            upon a showing of good cause, may extend the time for
            filing a notice of appeal upon motion filed within the time
            prescribed by subsections (a)(1) through (a)(3) of this
            rule. However, no such extension shall exceed 30 days past
            such prescribed time. An extension motion that is filed
            before the expiration of the prescribed time may be ex
            parte unless the court or agency otherwise requires.
            (B) Requests for Extensions of Time After Expiration of
            the Prescribed Time. The court or agency appeal[ed] from,
            upon a showing of excusable neglect, may extend the time
            for filing the notice of appeal upon motion filed not later
            than 30 days after the expiration of the time prescribed by
            subsections (a)(1) through (a)(3) of this rule. However,
            no such extension shall exceed 30 days past the prescribed
            time. Notice of an extension motion filed after the
            expiration of the prescribed time shall be given to the
            other parties in accordance with the rules of the court or
            agency appealed from.
(Emphases added.)

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while requests made within the next thirty days are governed by

the “excusable neglect” standard of subsection (B).

      Yet, as noted, before the split of HRAP Rule 4(a)(5) into

Rule 4(a)(A) and (B), Enos had expanded the more lenient “good

cause” standard to extension requests made in the second thirty

days.   Since the split into two subsections, however, a motion

to extend filed after expiration of the first thirty days and

within thirty days thereafter can only be granted based on

“excusable neglect,” which, by definition, must be a reason

within the movant’s control.     Therefore, if the reason for

seeking an extension is not within the movant’s control, based

on our interpretation of “excusable neglect” in Enos, an

extension is not available.     For example, if a self-represented

litigant is hospitalized or is otherwise incapacitated on the

thirtieth day, just before a notice of appeal can be filed that

day as planned, and the litigant is not able to file a motion to

extend until after the thirtieth day, because the reason for

seeking the extension was not within the litigant’s control,

“excusable neglect” would not exist.      And the “good cause”

standard of HRAP Rule 4(a)(4)(A), for reasons not within the

litigant’s control, although clearly met, would not apply

because the motion was filed after expiration of the first

thirty days.




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      Conversely, Enos held that the “good cause” standard, now

applicable to motions filed within the first thirty days,

applies only if the reason for requesting an extension is beyond

the movant’s control.      Thus, if the reason for seeking an

extension is within the movant’s control, an extension is not

available if sought within the first thirty days.            For example,

if the professional or personal schedule of a party or a party’s

attorney makes it difficult to decide whether to file a notice

of appeal by the end of the initial thirty days, an extension

would not be available, as making such a decision is within the

party’s control.     The same would hold true if a party or party’s

attorney had a family trip, an elective surgery, or other

professional or family circumstance that made the decision on

whether to file an appeal difficult to make within the first

thirty days.8

      The definitions of “good cause” and “excusable neglect” we

adopted in Enos for purposes of the then-existing HRAP Rule

4(a)(5), which construed a rule that allowed application of

either standard whether an extension was sought within the first

thirty days or the next thirty days, could therefore be



8     The party or party’s attorney could file a motion under HRAP Rule
4(a)(4)(B) asserting “excusable neglect” for a reason within the party’s
control after expiration of the first thirty days, but would be taking the
risk it would be denied. Yet, they would not meet the Enos definition of
“good cause” if they requested an extension within the first thirty days.


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misapplied to prevent those with good reasons to qualify for

extensions.    In addition, as in this case, and especially after

the 2000 division of HRAP 4(a)(5) into two subsections, much

litigation has ensued regarding whether “good cause” or

“excusable neglect” exists.9

      Therefore, the splitting of the former HRAP Rule 4(a)(5)

into subsections allowing extensions based only on “good cause”

within the first thirty days and “excusable neglect” within the

next thirty days10 has created possible unintended consequences.



9     See, e.g., Cabral v. State, 127 Hawaiʻi 175, 277 P.3d 269 (2012); Doe
v. Doe, 98 Hawaiʻi 144, 44 P.3d 1085 (2002); In re Doe, No 26805 (Haw. Dec.
9, 2004) (order); Jones v. Owners and Occupants of Adjoining Lands, No.
25872, (Haw. Apr. 23, 2004) (order); Housing Fin. & Dev. Corp. v. 1974 Ltd.
P’ship, No. 26500 (Haw. Aug. 12, 2004); GE Capital Hawaiʻi, Inc. v.
Balicanta, No. 23624 (Haw. May 28, 2004) (SDO); Pitre v. Admin. Dir. of
Court, No. 26316 (Haw. Apr. 7, 2004) (order); Ox Koko Marina, Inc. v. Pac.
Thomas Corp., No. 25447 (Haw. Apr. 4, 2003) (order); Chon v. Ass’n of
Apartment Owners of Lele Pono, Inc., No. 25185 (Haw. Sept. 30, 2002) (order);
McCormick v. Keohokalole, No. 23387 (Haw. Aug. 22, 2002) (mem.); King v.
Elkayam, CAAP-XX-XXXXXXX (App. July 13, 2016) (order); Ke Kailani Dev., LLC
v. Ke Kailani Partners LLC, CAAP-XX-XXXXXXX (App. Mar. 30, 2016) (order);
U.S. Bank Nat’l Ass’n v. Salvacion, No. 30594 (App. Apr. 26, 2011) (mem.);
Bolomet v. RLI Ins. Co., No. 29798 (App. Mar. 15, 2010) (order); Whittaker v.
Fransen, CAAP-XX-XXXXXXX & XX-XXXXXXX (App. Sept. 25, 2008) (SDO); Porter v.
Porter, No. 28066 (App. Oct. 13, 2006) (order).

10    This split has not happened in the federal rule. As noted, in Enos,
this court cited to federal cases construing “good cause” and “excusable
neglect” for purposes of FRAP Rule 4(a)(5) in fashioning definitions of these
terms. FRAP Rule 4(a)(5) now provides as quoted below, and as can be seen,
it allows for extensions based on “good cause” or “excusable neglect,”
whether filed within the first thirty or the second thirty days; as did the
HRAP Rule 4(a)(5) construed in Enos, it also continues the option of
obtaining an extension within the first thirty days based on an ex parte
motion:

           (5) Motion for Extension of Time.
           (A) The district court may extend the time to file a notice
           of appeal if:
           (i) a party so moves no later than 30 days after the time
           prescribed by this Rule 4(a) expires; and
                                                             (continued. . .)

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The split of HRAP Rule 4(a)(5) into two subsections after Enos

has led to dismissals of appeals, as in this case, in derogation

of “the policy of law . . . favor[ing] dispositions of

litigation on the merits.”       Shasteen, 79 Hawaiʻi at 107, 899 P.2d

at 390.   The changed circumstances therefore compel us to

clarify the Enos definitions of “good cause” and “excusable

neglect” for purposes of HRAP Rule 4(a)(4)(A) and (B).

      Recently, in Chen v. Mah, 146 Hawaiʻi 157, 457 P.3d 796

(2020), we addressed the “good cause” standard for purposes of a

HRCP Rule 55(c) motion to set aside entry of default.             We noted

that in the context of a Hawaiʻi Family Court Rules (“HFCR”) Rule

59(a) motion for a new trial, Doe v. Doe stated:

           “Good cause” . . . “depends upon the circumstances of the
           individual case, and a finding of its existence lies
           largely in the discretion of the officer or court to which
           [the] decision is committed.”




           (ii) regardless of whether its motion is filed before or
           during the 30 days after the time prescribed by this Rule
           4(a) expires, that party shows excusable neglect or good
           cause.
           (B) A motion filed before the expiration of the time
           prescribed in Rule 4(a)(1) or (3) may be ex parte unless
           the court requires otherwise. If the motion is filed after
           the expiration of the prescribed time, notice must be given
           to the other parties in accordance with local rules.
           (C) No extension under this Rule 4(a)(5) may exceed 30 days
           after the prescribed time or 14 days after the date when
           the order granting the motion is entered, whichever is
           later.

Interestingly, it appears FRAP Rule 4(a)(C) allows the deadline to be
extended beyond the second thirty days for up to an additional fourteen days,
if a motion to extend is granted within the last fourteen days of the second
thirty days.


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Chen, 146 Hawaiʻi at 178, 457 P.3d at 817 (citing Doe v. Doe, 98

Hawaiʻi 144, 154, 44 P.3d 1085, 1095 (2002) (citation omitted,

brackets in original)).      We also noted that Doe also referred to

a Black’s Law Dictionary entry, stating that “[t]he term

‘good cause’ has been defined to mean ‘a substantial reason

amounting in law to a legal excuse for failing to perform an act

required by law[.]’”      Doe, 98 Hawaiʻi at 154, 44 P.3d at 1095

(quoting Good Cause, Black’s Law Dictionary (6th ed. 1990)).

Chen, 146 Hawaiʻi at 178, n.22, 457 P.3d at 817, n.22.            We

further pointed out that Black’s Law Dictionary now defines

“good cause” as “[a] legally sufficient reason.”           Good cause is

often the burden placed on a litigant (usu. by court rule or

order) to show why a request should be granted or an action

excused.”    Id. (quoting Good Cause, Black’s Law Dictionary (11th

ed. 2019)).

      Accordingly, we clarify that “good cause” is “a sufficient

reason, depending upon the circumstances of the individual case,

and that a finding of its existence lies largely in the

discretion of the court.”11


11    In Chen, we ruled that for purposes of HRCP Rule 55(c)), if: (1) the
defendant did not deliberately fail to plead or otherwise defend or engage in
contumacious conduct; or (b) if the defendant did deliberately fail to plead
or otherwise defend or engage in contumacious conduct, there is no actual
prejudice to the plaintiff that cannot be addressed through lesser sanctions,
then “good cause” should exist to set aside an entry of default. Chen, 146
Hawaiʻi at 180, 457 P.3d at 819. We also construed our cases interpreting
HRCP Rule 41(b)(2), which requires “good cause” to set aside a dismissal, as
                                                              (continued. . .)

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      Likewise, the plain language of the HRAP Rule 4(a)(4)(B)

allows for an extension based on “excusable neglect.”            As noted

earlier, Enos used a two-part test:         (1) Was there neglect?       And

if so, (2) Was the neglect excusable?         Enos also appears to have

used “within the movant’s control” as shorthand for whether or

not there was neglect, not for whether or not existing neglect

was excusable.     Because HRAP Rule 4 has been amended and missing

a deadline now automatically triggers the “excusable neglect”

standard, there is no need for courts to examine whether or not

the reason for missing the deadline was within the movant’s

control.

      Accordingly, as indicated by the United States Supreme

Court in Pioneer, 507 U.S. 380, which was cited favorably in

Enos,12 whether “excusable neglect” exists is “at bottom an

equitable” decision; it is necessary to first determine whether

there is “neglect,” and, if so, whether the “neglect” is


holding by implication that “good cause” exists to set aside a dismissal
under HRCP Rule 41(b)(2) if there is no (1) deliberate delay and/or
contumacious conduct; or (2) if deliberate delay or contumacious conduct
exist, there is no actual prejudice that cannot be addressed through lesser
sanctions. Id.

12    As further discussed in note 13, infra, Pioneer construed “excusable
neglect” for purposes of Bankruptcy Rule 9006(b)(1), which empowered a
bankruptcy court to permit a late filing if the movant’s failure to comply
with an earlier deadline was the result of excusable neglect; the rule did
not contain “good cause” language. Enos, 80 Hawaiʻi at 352 & n.2, 910 P.2d at
116 & n.2. Interestingly, we noted that the Court interpreted “excusable
neglect” to include both intervening circumstances beyond a party’s control
and neglect on the part of a party, Enos, 80 Hawaiʻi at 352, 910 P.2d at 116,
but we still adopted definitions differentiating “good cause” and “excusable
neglect” on these bases.


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“excusable.”    507 U.S. at 393-94.13      As also noted, with respect

to determining whether existing “neglect” could be deemed

“excusable,” Enos expressly adopted the equitable standard set

forth by the United States Supreme Court in Pioneer, and stated,

“reasons for failure to comply with a court-ordered deadline

range from acts of God to a party’s choice to flout the deadline

and . . . ‘excusable neglect’ is not restricted to those

circumstances beyond a party’s control.”          We therefore clarify

that, as indicated in Enos, “excusable neglect” is to be

construed pursuant to its plain language:          “neglect” that is


13    As discussed in David N. May, Pioneer’s Paradox: Appellate Rule
4(a)(5) and the Rule Against Excusing Ignorance of Law, 48 Drake L. Rev 677
(2000) (“May”), although Pioneer interpreted “excusable neglect” in the
context of Bankruptcy Rule 9006, the opinion ended up impacting the
definition of “excusable neglect” for purposes of FRAP Rule 4(a)(5). May, at
680-81. The Court’s definition of “excusable neglect” “advanced a new,
‘flexible understanding’ of excusable neglect[,]” and posited that
“[d]eterminations of whether neglect is excusable should involve a broad,
equitable, inquiry.” May, at 1 (citing Pioneer, 507 U.S. at 389). Yet, as
further discussed in the article:

           During the same years in which the circuits anointed
           Pioneer as their guiding star, a second trend was also
           developing. Strangely, this second trend can be viewed as
           contrary to Pioneer. Specifically, in the years since
           Pioneer, seven different circuits have held that a mistake
           or ignorance of plain law cannot be excusable neglect under
           Rule 4(a)(5). Notwithstanding judicial acceptance of
           Pioneer’s broad equitable inquiry, the circuit courts have
           continued to apply the ancient maxim that ignorance or
           mistakes of plain law cannot excuse. [sic] The circuit
           courts have accepted Pioneer’s prescription that “all
           relevant circumstances” must be taken into account; yet,
           the same courts continue to hold that “‘[t]he excusable
           neglect standard can never be met by a showing of inability
           or refusal to read and comprehend the plain language of the
           federal rules.”’

May, at 681 (internal footnotes omitted). Despite Enos citing favorably to
Pioneer, that opinion, as well as Hall, favored the stricter interpretation
of “excusable neglect” noted in the quotation above.


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“excusable,” which, “involve[s] a broad, equitable, inquiry”

“taking into account all relevant circumstances surrounding the

party’s omission.”    Pioneer, 507 U.S. at 389, 393-94.      As with

“good cause,” the determination of whether “excusable neglect”

exists should lie largely in the discretion of the court.

      Our clarifications of “good cause” and “excusable neglect”

should reduce litigation over whether “good cause” or “excusable

neglect” exists for purposes of HRAP Rule 4(a)(4)(A) and (B) and

advance “the policy of law [that] favors dispositions of

litigation on the merits.

                            V.   Conclusion

      For the reasons stated above, we vacate the ICA’s May 21,

2019 “Order Dismissing Appellate Court Case Number CAAP-19-

000095 for Lack of Appellate Jurisdiction” and remand this case

to the ICA to address the merits of the appeal.

Shawn A. Luiz                           /s/ Mark E. Recktenwald
for petitioner
                                        /s/ Paula A. Nakayama
Richard M. Rand
for respondent                          /s/ Sabrina S. McKenna

                                        /s/ Richard W. Pollack

                                        /s/ Michael D. Wilson




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