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                                                             Electronically Filed
                                                             Supreme Court
                                                             SCWC-13-0000040
                                                             14-APR-2015
                                                             08:52 AM


          IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

              DEUTSCHE BANK NATIONAL TRUST COMPANY,
 a National Banking Association, as Trustee of the IndyMac INDX
      Mortgage Loan Trust 2006-AR12, Mortgage Pass-Through
 Certificates Series 2006-AR12, Under the Pooling and Servicing
                   Agreement Dated July 1, 2006,
                  Respondent/Plaintiff-Appellee,

                                   vs.

      RONALD PAJELA AMASOL and JEAN LOUISE MORALES AMASOL,
               Petitioners/Defendants-Appellants.
________________________________________________________________

                            SCWC-13-0000040

        CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-13-0000040; CIV. NO. 11-1-2129)

                            APRIL 14, 2015

  McKENNA AND POLLACK, JJ., WITH RECKTENWALD, C.J., CONCURRING,
 AND NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM CIRCUIT
       JUDGE CHANG, IN PLACE OF ACOBA, J., RECUSED, JOINS

                OPINION OF THE COURT BY McKENNA, J.

          Petitioners/Defendants-Appellants Ronald Pajela Amasol

and Jean Louise Morales Amasol (collectively, “the Amasols”)

seek review of the November 20, 2013 Order Dismissing Appeal for

Lack of Appellate Jurisdiction” (“Dismissal Order”) issued by
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the Intermediate Court of Appeals (“ICA”).         In light of our

decision in Association of Condominium Homeowners of Tropics at

Waikele v. Sakuma, 131 Hawaii 254, 318 P.3d 94 (2013), which was

issued about one month after the Dismissal Order, we hold that

the ICA erred in dismissing as untimely the Amasols’ appeal from

the December 31, 2012 order denying their April 16, 2012 motion

for reconsideration and the decisions for which reconsideration

had been sought.    Clarifying our opinion in Sakuma, however, we

also hold that the ICA did not err in dismissing as premature

any attempted appeal of the Amasols’ July 13, 2012 amended

reconsideration motion, because the circuit court has not

entered an order disposing of that motion.         We therefore vacate

the ICA’s Dismissal Order in part, and remand to the ICA for

further proceedings consistent with this opinion.

I.    Background

           The Amasols fell behind on their mortgage payments,

and their lender, “Deutsche Bank National Trust Company, a

National Banking Association, as Trustee of the Indymac INDX

Mortgage Loan Trust 2006-AR12, Mortgage Pass-Through

Certificates Series 2006-AR12, Under the Pooling and Servicing

Agreement Dated July 1, 2006” (“the Bank”) commenced a non-

judicial foreclosure sale of the property.         The Bank

subsequently acquired the property at auction, and filed an

ejectment action in the district court.         The district court

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denied the Bank’s summary judgment motion for lack of

jurisdiction in light of a title challenge raised by the

Amasols, and the action was re-filed in the Circuit Court of the

First Circuit (“circuit court”).

            On April 12, 2012, the circuit court1 entered an order

granting summary judgment in favor of the Bank, Judgment for

Possession, and a Writ of Possession (collectively, “the April

12th orders”).      On April 16, 2012, the Amasols, proceeding pro

se, timely filed a “Motion to Reconsider Ruling” (“Motion to

Reconsider”).     On July 13, 2012, the Amasols, represented by

counsel, filed their “Defendants’ Amended Rule 60(b) Motion for

Relief from Judgment; for Evidentiary Hearing and for Leave To

File Amended Answer” (“Amended Rule 60(b) Motion”).             On December

31, 2012, approximately 260 days after the Motion to Reconsider

was filed, the circuit court entered an “Order Denying

Defendant’s [sic] Motion to Reconsider Ruling.”            The circuit

court has not, however, entered any order disposing of the

Amended Rule 60(b) Motion.

            On January 23, 2013, the Amasols filed their notice of

appeal.    On November 20, 2013, the ICA filed its Dismissal

Order.    The ICA determined that the appeal from the April 12th

orders and the Motion to Reconsider was untimely because the

appeal was not filed within 30 days of the date the motion was

      1
            The Honorable Patrick W. Border presided.

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deemed denied under Rule 4(a)(3) (2012) of the Hawaii Rules of

Appellate Procedure (“HRAP”).           With respect to the Amended Rule

60(b) Motion, the ICA ruled that the appeal was premature

because the circuit court had not entered a written order

denying the motion.

II.   Standard of Review

            “The existence of jurisdiction is a question of law

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

v. Bohannon, 102 Hawaii 228, 232, 74 P.3d 980, 984 (2003)

(citations omitted).

III. Discussion

            The time for filing a notice of appeal is governed by

HRAP Rule 4, which provides in relevant part:

      Rule 4.        APPEALS - WHEN TAKEN.
            (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 within 30 days after
      entry of the judgment or appealable order. . . .
            (2) PREMATURE FILING OF APPEAL. If a notice of appeal is filed
      after announcement of a decision but before entry of the judgment
      or order, such notice shall be considered as filed immediately
      after the time the judgment or order becomes final for the
      purpose of appeal.
            (3) TIME TO APPEAL AFFECTED BY POST-JUDGMENT MOTIONS. If any party
      files a timely motion for judgment as a matter of law, to amend
      findings or make additional findings, for a new trial, to
      reconsider, alter or amend the judgment or order, or for
      attorney’s fees or costs, the time for filing the notice of
      appeal is extended until 30 days after entry of an order
      disposing of the motion; provided, that the failure to dispose of
      any motion by order entered upon the record within 90 days after
      the date the motion was filed shall constitute a denial of the
      motion.

            On December 17, 2013, shortly after the ICA issued its

Dismissal Order, we announced our opinion in Sakuma, 131 Hawaii

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254, 318 P.3d 94.    In Sakuma, we held that when a timely post-

judgment tolling motion is deemed denied, the 30-day deadline

for filing a notice of appeal is not triggered until entry of

the judgment or appealable order pursuant to HRAP Rule 4(a)(1)

(2012) and (a)(3).    131 Hawaii at 256, 318 P.3d at 96.

          In the instant case, the written order disposing of

the Motion to Reconsider was filed on December 31, 2012, and the

Amasols filed their appeal of that order within 30 days, on

January 23, 2013.    Therefore, pursuant to Sakuma, the ICA had

appellate jurisdiction over the denial of the Motion to

Reconsider, as well as of the underlying April 12th orders.            We

therefore vacate that portion of the ICA’s Dismissal Order that

ruled to the contrary, and remand to the ICA for consideration

of the relevant issues on appeal.

          There was, however, no order disposing of the Amasols’

July 13, 2012 Amended Rule 60(b) Motion.        In addition, there was

no announcement of a decision on that motion that could have

triggered HRAP Rule 4(a)(2) (2012).       Therefore, the ICA properly

ruled that the notice of appeal was premature with respect to

the Amended Rule 60(b) Motion.

          We also write to clarify Sakuma to the extent the

dictum that the “ICA had jurisdiction,” 131 Hawaii at 255, 318

P.3d at 95, may have caused confusion.        In Sakuma, as in this

case with respect to the Amended Rule 60(b) Motion, the notice

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of appeal was premature.      The ICA therefore properly held that

it lacked jurisdiction over this portion of the appeal.

IV.   Conclusion

           We vacate the portion of the ICA Dismissal Order

holding that it lacked appellate jurisdiction over the appeal of

the April 12th orders and the Motion to Reconsider.           We affirm

the portion of the ICA Dismissal Order dismissing any appeal of

the Amended Rule 60(b) Motion, and remand for further

proceedings consistent with this opinion.

Sandra D. Lynch                          /s/ Sabrina S. McKenna
for petitioner
                                         /s/ Richard W. Pollack
Charles R. Prather and
Sofia Hirosane McGuire
for respondent




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