October, 2020 - Case Summaries - Family Law

*Disclaimer* - the below case summaries are not to be construed as legal advice, they are nonexhaustive, and they contain only my own summary/interpretation of the cases so noted.

Topics Include: Child Protective Services; Service by Publication; Intervention after Default; Fam Court Orders of Protection; Judicial Notice

NO. CAAP-19-0000711

In the Interest of AA

Memo Op

Subject Matter: Child Protective Services; Service by Publication; Intervention after Default

Background:

• "appeals from the "Decision and Order Regarding the Contested Hearing on [AM]'s Motion to Set Aside Default Filed June 5, 2019[,]" (Decision & Order) entered by the Family Court of the First Circuit1 on September 20, 2019. We affirm the Decision & Order."

• At child's birth, mother told staff she had concerns of DV at home.  Child was placed in foster care.  Mother sparsely attended CPS hearings.   DHS served father by publication only.  Mother's parental rights were terminated and adoption was ordered as the permanent plan. 

• Prior to adoption, DHS asked for an emergency hearing as AM had come forward claiming to be the child's father.  AM started a paternity case and was adjudicated the child's father.  AM moved to intervene in the CPS case.  Child was 2yrs 4mo old when the intervention hearing was had.  AM's motion was granted by a per diem judge.  The actual judge took issue with it, saying he thought the prior default in the TPR needed to be set aside first before AM could intervene.

• The Child's resource caregivers moved to intervene as well and AM objected.  The Court granted the RC's motion to intervene and set aside the intervention order re AM.

• AM then filed a motion to set aside his prior default in the case.  This was denied.  AM appealed.

Issues:

• (1) the family court erred in concluding that AM was duly served by publication;

• (2) the family court erred in not setting aside the entry of AM's default and the termination of AM's parental rights by default; and

• (3) the denial of AM's motion to intervene deprived AM of his constitutional right to due process.

Service by Publication - No Error:

• Am Argues: "DHS did not establish, nor did the family court find, that it was "impracticable" to personally serve the then-unknown father."

• No Error: The ICA found that the court's findings and conclusions re this were not clearly erroneous and not wrong, respectively.

Default - No Error:

• Rule: "AM was required to obtain relief under both HFCR Rule 55 and HFCR Rule 60(b). AM had the burden of establishing that: (1) Child will not be prejudiced by the reopening; (2) AM has a meritorious defense; and (3) AM's default was not the result of inexcusable neglect or a wilful act. Chen, 146 Hawaii at 173-74, 457 P.3d at 812-13."

• No Error: "These findings of fact were supported by substantial evidence in the record. In addition, "[i]t is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of evidence; this is the province of the trier of fact." Fisher, 111 Hawaii at 46, 137 P.3d at 360 (citation omitted)."

Denial of Due Process by Denying Motion to Intervene - No Error:

• Rule - Default Set Aside Required First: "AM had been defaulted before he moved to intervene, and a default judgment was entered. AM had to have both his default and the default judgment set aside before he could have standing to intervene."

Law of the Case Issue re Per Diem Judge:

• "AM argues that Judge Uale violated the "law of the case" when he set aside the per diem judge's approval of the parties' stipulation to allow AM to intervene."

• "It is true that in cases upon which more than one judge has presided, "the usual practice of courts to refuse to disturb all prior rulings in a particular case" is referred to as the "law of the case[.]" Chun v. Bd. of Trs. of Emps.' Ret. Sys., 92 Hawaii 432, 441, 992 P.2d 127, 136 (2000) (citation omitted). "Unless cogent reasons support the second court's action, any modification of a prior ruling of another court of equal and concurrent jurisdiction will be deemed an abuse of discretion." Wong v. City & Cty. of Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162 (1983) (citations and emphasis omitted)."

No Error: "In this case, Judge Uale had "cogent reasons" to set aside the per diem judge's ruling because AM failed to set aside his default, or the judgment terminating his parental rights, before moving to intervene."

No Error Because a Trial was Had: "The family court conducted a 2-day evidentiary hearing on AM's motion to set aside the entry of his default and the default judgment. As was discussed above, the family court did not err in declining to set aside the entry of default or the default judgment. We hold that AM was not deprived of due process."

NOS. CAAP-18-0000029 and CAAP-18-0000033

Perez v Perez

SDO ICA

Subject Matter - Fam Court Orders of Protection; Judicial Notice

Orders of Protection:

Point of Error - Did the court err by entering the orders of protection?

Rules:

• (1) Hawaii Revised Statutes (HRS) § 586–5.5 (2018) authorizes a trial court to convert a temporary restraining order into a longer-lasting protective order upon making certain findings. See Styke v. Sotelo, 122 Hawaii 485, 489 n.5, 228 P.3d 365, 369 n.5 (App. 2010).

• The statute states, in relevant part: If, after hearing all relevant evidence, the court finds that the respondent has failed to show cause why the order should not be continued and that a protective order is necessary to prevent domestic abuse or a recurrence of abuse, the court may order that a protective order be issued for a further fixed reasonable period as the court deems appropriate.

• Domestic abuse is defined as "[p]hysical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault, extreme psychological abuse or malicious property damage between family or household members." HRS § 586- 1 (2018).

• Under HRS § 586–5.5(a), the burden remains on the petitioner to prove the underlying allegations by a preponderance of the evidence. Kie v. McMahel, 91 Hawaii 438, 442, 984 P.2d 1264, 1268 (App. 1999) (citation omitted).

Holding - Credible Ev Supported Fam Crt Ruling:

• The Family Court found and concluded that the testimonies of John, Dennis, and Dr. Amy Brown were credible. The Family Court found and concluded that Michael's testimony, in which he disputed the other witnesses' statements, was not credible.

• We conclude that the Family Court's findings of fact were supported by the evidence before the court, and they were not clearly erroneous. Thus, the Family Court did not err. ..

Length of Protective Order:

Point of Error: Did Fam Court err where it issued order of protection for 10 yrs?

Rules:

• Nothing in HRS § 586-5.5(a) prescribes the maximum length of a protective order, but rather it allows the court to extend an order "for such further fixed reasonable period as the court deems appropriate."

• The Family Court had the discretion to determine the length of the protective order. See Styke, 122 Hawaii at 491, 228 P.3d at 371.

• In Lite v. McClure, this court concluded that a family court did not abuse its discretion when it issued an order of protection for ten years. No. 29107 , 2009 WL 1263099 (Haw. App. May 8, 2009) (SDO). There, the petitioner had requested a nocontact protective order for "[f]orever, as long as the Court will allow." Id. at *2. The family court rejected Lite's request for an "indefinite protective order," and instead issued an order for "a fixed period of ten years." Id. We found "no legal impediment to a term of ten years" and held that ten years was not unreasonable, did not disregard the rules and principles of law, and accordingly was not an abuse of discretion. Id.

Holding - No Abuse of Discretion:Here, we similarly conclude that, under the facts and circumstances of this case, especially the relationship and history of the parties, a ten-year duration for the Orders of Protection was not unreasonable, did not disregard the rules and principles of law, and accordingly was not an abuse of discretion.

Judicial Notice Issue:

Point of Error: Michael argues that the Family Court erred by taking judicial notice of the records and files [in the various fam court cases involving the parties]

Standard of Review - Plain Error

Rules:

• Under HRE Rule 201, the court may take judicial notice of a fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." HRE Rule 201(b). Put more simply, a fact is a proper subject for judicial notice if it is common knowledge or can be easily verified. Uyeda v. Schermer, 144 Hawaii 163, 172, 439 P.3d 115, 124 (2019).

• The contents of court records are frequently the subject of judicial notice, because court records, particularly those in the trial court's files or immediate possession, are readily accessible and the accuracy of those records "generally cannot be considered reasonably questionable." Id. (quoting State v. Akana, 68 Haw. 164, 166, 706 P.2d 1300, 1302 (1985)).

Holding - No Error: Upon review of the record on appeal, particularly the May 30, 2018 Findings of Fact and Conclusions of Law, it does not appear that the judicial notice taken by the Family Court exceeded the bounds of HRE Rule 201(b).

October, 2020 - Case Summaries - Personal Injury / Civil

*Disclaimer* - the below case summaries are not to be construed as legal advice, they are nonexhaustive, and they contain only my own summary/interpretation of the cases so noted.

Topics Include: Untimely Motion in Limine; Expert Testimony Methodologies; Lulled into Inaction re Statute of Limitations Issue

NO. CAAP-17-0000206 JIHYUN SIM, Plaintiffs-Appellants, v. KONA ISLANDER… Defendants-Appellees

(MEMORANDUM OPINION)

Issues on Appeal:

• (1) summarily denying Plaintiffs' request for judicial notice of certain laws and adjudicative facts, as asserted in their trial brief;

• (2) permitting the trial testimony of Defendants' expert, Vincent Di Maio, M.D. (Di Maio);

• (3) denying Plaintiffs' motion for a new trial; and

• (4) granting Van Dyck's motion for judgment as a matter of law based on the statute of limitations.

Background:In 2013, Decedent drowned at a condo pool.  The AOAO are defendants in this matter.

Lower Court Decision: At the close of Plaintiffs' case on October 25, 2016, the Circuit Court granted Van Dyck's motion for judgment as a matter of law based on his statute-of-limitations defense, brought pursuant to Hawai#i Rules of Civil Procedure (HRCP) Rule 50(a) (Rule 50(a) motion). On October 27, 2016, the jury returned a special verdict form in favor of AOAO KII and HMC, finding that both defendants were not negligent. Following entry of the Judgment, Plaintiffs timely filed this appeal.

Trial Brief Denied as a Late Motion in Limine:

• Plf's "trial brief," a day prior to trial, sought judicial notice of certain documents, and asked that opposing parties be estopped from taking positions contrary to their prior declarations.

  "Brief" Untimely as a Motion in Limine: "[A]lthough it's called trial brief, the court has reviewed this document filed the day before trial. Finds it's not fair to the defense. It really is in essence either a motion in limine or a pretrial motion, so the court will deny it based on untimeliness."

• ICA Holding re Judicial Notice - No Showing of Harm: "Here, even if the Circuit Court erred in denying Plaintiffs' requests for judicial notice, which we do not decide, we cannot conclude that the asserted defect is inconsistent with substantial justice. With respect to Plaintiffs' Requests A, C, D, E, and G, Plaintiffs have made no effort to demonstrate how the denial of these requests prejudiced their case or otherwise affected their substantial rights."

  ICA Holding re Estoppel - No Showing of Harm: "Plaintiffs thus made the existence of Van Dyck's July 5, 2016 declaration known to the jury. Indeed, it appears that Plaintiffs also obtained the result they sought in their trial brief – testimony from Van Dyck that was consistent with his declaration."

Expert Testimony Issue - Bad Methodoligies:

• Background: Plf's object to the methodologies etc of the expert doctor. Def's argued that though the testimony was objected to pre-trial via motion (denied), Plf's failed to object later at trial.

• Rule re No Objection at Trial: "[W]hen the trial court makes a definitive pretrial ruling that evidence is admissible, the party opposing that ruling need not renew its objection during trial in order to preserve its claim on appeal that the evidence was erroneously admitted." Kobashigawa v. Silva, 129 Hawai#i 313, 321, 300 P.3d 579, 587 (2013); see HRE Rule 103(a)."

• ICA Holding - Not Waived: "Plaintiffs did not waive their objection to evidence of Di Maio's opinions, as articulated in their motion. That objection was preserved, even in the absence of renewed objections when such evidence was presented during trial."

• Holding re Testimony - No Showing of Harm: "Here, even if the admission of DiMaio's testimony was erroneous, which we do not decide, we cannot conclude that the asserted defect is inconsistent with substantial justice. The record shows that the jury did not reach the issue of causation, and Plaintiffs have failed to demonstrate how the admission of DeMaio's testimony on the issue of causation affected their substantial rights. See Shinn, 120 Hawai#i at 20, 200 P.3d at 389."

Denial of Motion for New Trial:

• Rule: "The denial of a motion for a new trial is within the trial court's discretion, and "we will not reverse that decision absent a clear abuse of discretion." Stanford Carr Development Corp. v. Unity House, Inc., 111 Hawaii 286, 296, 141 P.3d 459, 469 (2006) (quoting In re Estate of Herbert, 90 Hawaii 443, 454, 979 P.2d 39, 50 (1999)). The movant must convince the court "that the verdict rendered for its opponent is against the manifest weight of the evidence." Id. (quoting Herbert, 90 Hawaii at 454, 979 P.2d at 50)."

• Holding - No Abuse of Discretion.

Statute of Limitations Issue:

• Plf's Argue: Plf's did not file a complaint against one of the defendants within the two-year statute of limitations, but argue that they were "lulled" into inaction by statements said defendant had made and therefore the SOLs should have been tolled.

• Rule: "This court has clarified that "'lulling' is not a distinct legal doctrine, but simply one application of the doctrine of equitable estoppel." Wiesenberg v. University of Hawaii, No. CAAP-15-0000711, 2019 WL 2066756, at *7 (Haw. App. May 10, 2019) (Mem. Op.); see also Mauian Hotel, 52 Haw. at 570, 481 P.2d 315 ("It appears that in reliance on the stipulation[, the third-party defendant] did not file a cross claim . . . until the statute of limitations had run."); Vidinha v. Miyaki, 112 Hawaii 336, 342, 145 P.3d 879, 885 (App. 2006) (analyzing "lulling" under equitable estoppel doctrine). Accordingly, a plaintiff claiming to have been lulled into inaction until the statute of limitations ran on a claim "must show that he or she has detrimentally relied on the representation or conduct of the person sought to be estopped [from asserting a statute-of- limitations defense], and that such reliance was reasonable." Vidinha, 112 Hawaii at 342, 145 P.3d at 885 (quoting Doherty v. Hartford Ins. Group, 58 Haw. 570, 573, 574 P.2d 132, 134-35 (1978))."

Holding - No Tolling:

• "Here, upon review of the record, it appears that Plaintiffs produced no evidence that they detrimentally relied on Van Dyck's alleged statement to the police in July 2013 that Jisu could not swim."

• "Considering the evidence and the inferences that may be fairly drawn from the evidence in the light most favorable to Plaintiffs, we conclude there was no legally sufficient evidentiary basis for a reasonable jury to find that Van Dyck fraudulently concealed evidence supporting an element of a wrongful death claim against Van Dyck. The Circuit Court thus did not err in so ruling. Accordingly, the Circuit Court did not err…"

NO. CAAP-17-0000137

ABIGAIL K. KAWANANAKOA, v. KAPIOLANI MARIGNOLI

SDO

 Background: Kawananokoa sued Kapiolani and Duccio for return of a portrait of her family member; portrait is located in Italy.

ICA Construed Complaint as both a quasi in rem and in personam nature: Based on the Complaint, this action was of both a quasi in rem and in personam nature, and we construe Kawananakoa's arguments on appeal to be that the circuit court had quasi in rem jurisdiction over the Portrait and/or in personam jurisdiction over Duccio.

 Holding:

• In rem and Quasi - No JX: it was undisputed that the Portrait was located in Italy during the course of this action. The circuit court therefore did not have in rem or quasi in rem jurisdiction over the Portrait and did not err in its decision in this regard. See Shaffer v. Heitner, 433 U.S. 186, 199 (1977) (stating that quasi in rem jurisdiction is "based on the court's power over property within its territory").

Rules re Personal JX:

• There are "two types of personal jurisdiction: 'general' (sometimes called 'all-purpose') jurisdiction and 'specific' (sometimes called 'case-linked') jurisdiction." Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S.Ct. 1773, 1780 (2017). "A court with general jurisdiction may hear any claim against that defendant, even if all the incidents underlying the claim occurred in a different State." Id. (emphasis in original). However, in order for a state court to exercise specific jurisdiction, the claim must arise out of or relate to the defendant's contacts with the forum state. Id.

• "[G]eneral jurisdiction exists where a defendant has continuous and systematic contacts with the forum; the exercise of jurisdiction in such a case does not offend traditional notions of fair play and substantial justice." In Interest of Doe, 83 Hawaii at 374, 926 P.2d at 1297.

Holding - no facts alleged or sworn to establishing this.

• Personal: If a defendant's contacts with the forum are not continuous and systematic, the forum may exercise only specific jurisdiction, and due process requires application of the following three-part test: (1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. In Interest of Doe, 83 Hawaii at 374, 926 P.2d at 1297.

October, 2020 - Case Summaries - Foreclosure Law

*Disclaimer* - the below case summaries are not to be construed as legal advice, they are nonexhaustive, and they contain only my own summary/interpretation of the cases so noted.

TOPICS INCLUDE: Standing after Reyes-Toledo; Rule 60 Relief vs Appellate Relief

NO. CAAP-17-0000746

U.S. BANK TRUST, N.A v. PATRICK LOWELL VERHAGEN

 Argument on Appeal: “Verhagen argues the Circuit Court erred in granting summary judgment in favor of Plaintiff-Appellee U.S. Bank Trust, N.A., as Trustee for LFS9 Master Participation Trust (U.S. Bank), when there were genuine issues of material fact as to whether U.S. Bank had standing to bring a foreclosure action against Verhagen.

 Background:

Facts:

• Bank had complied with verification affidavit req's. then sought and was granted MSJ. But then Mattos came down and so Bank motioned under Rule 60 (ariyoshi) for court to ratify its prior order in light of mattos:

• U.S. Bank thus asserted that the new requirements in Mattos arguably had not been considered by the Circuit Court and thus U.S. Bank sought to have the Circuit Court clarify that it had considered the evidence under the appropriate legal standard that now existed following Reyes-Toledo and Mattos.

• Motion to ratify included new affidavits.

ICA Says: The Motion to Ratify was in essence a request for the Circuit Court to indicate that it would take further action on U.S. Bank's motion for summary judgment, considering the additional submissions of Patterson's supplemental declaration and the other attachments thereto.

Standing Rules in Foreclosure:

• Standing: In order to establish a right to foreclose, the foreclosing plaintiff must establish standing, or entitlement to enforce the subject note, at the time the action was commenced. Reyes-Toledo I, 139 Hawaii at 367-70, 390 P.3d at 1254-57. As expressed by the Hawaii Supreme Court, a foreclosing plaintiff must prove "the existence of an agreement, the terms of the agreement, a default by the mortgagor under the terms of the agreement, and giving of the cancellation notice," as well as prove entitlement to enforce the defaulted upon note. Bank of America, N.A. v. Reyes-Toledo, 143 Hawai#i 249, 263-64, 428 P.3d 761, 775-76 (2018) (quoting Reyes-Toledo I, 139 Hawai#i at 367-68, 390 P.3d at 1254-55) (format altered).

• Declarations: Moreover, a declaration in support of a summary judgment motion must be based on personal knowledge, contain facts that would be admissible in evidence, and show that the declarant is competent to testify to the matters contained within the declaration. Wells Fargo Bank, N.A. v. Behrendt, 142 Hawai#i 37, 44, 414 P.3d 89, 96 (2018) (citing Mattos, 140 Hawaii at 30, 398 P.3d at 619; Hawai#i Rules of Civil Procedure Rule 56(e); Rules of the Circuit Courts of the State of Hawaii Rule 7(g)). Inadmissible evidence "cannot serve as a basis for awarding or denying summary judgment." Id. (quoting Haw. Cmty. Fed. Credit Union v. Keka, 94 Hawaii 213, 221, 11 P.3d 1, 9 (2000)).

Holding:

• Problem - verification good, but person who did it may not have biz recoreds person type thing: Here, neither the verification by Jackson, the declaration by Salyers, nor the supplemental declaration by Patterson, contain the necessary foundation to support admission of the Note under Mattos, Behrendt or Kanahele to establish that U.S. Bank had possession of the Note when it commenced this foreclosure action, as required by Reyes-Toledo I.

• Supplemental Declaration Fails As Well: even the supplemental declaration by Patterson fails to establish under Mattos and Behrendt that she is a custodian of records or a qualified witness for purposes of admitting the Note as evidence pursuant to HRE Rule 803(b)(6). 

SCWC-18-0000185

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

PENNYMAC CORP vs. GODINEZ

 Summary: In 2017, the Circuit Court of the Second Circuit found Lewanna Godinez in default on her mortgage and granted summary judgment in favor of Respondent/Plaintiff PennyMac Corp., issuing a decree of foreclosure and entering final judgment. Before a foreclosure sale took place, Godinez filed an HRCP Rule 60(b) motion, raising the issue of PennyMac’s standing to bring a foreclosure action against her. The circuit court denied the motion, and Godinez appealed. The Intermediate Court of Appeals (ICA) affirmed the circuit court’s denial, holding that res judicata barred Godinez’s HRCP Rule 60(b) challenge to standing, citing to this court’s decision in Mortgage Electronic Registration Systems v. Wise, 130 Hawaiʻi 11, 17, 304 P.3d 1192, 1198 (2013). We hold that res judicata did not preclude Godinez’s post-judgment HRCP Rule 60(b) motion and that Wise is inapplicable under these circumstances. Nevertheless, we agree with the ICA that the circuit court did not abuse its discretion in denying Godinez’s HRCP Rule 60(b) motion. Accordingly, we affirm the judgment of the ICA.

Timing Issue - Reyes Case Came Out During the Case: After the summary judgment hearing but before a written summary judgment order was filed, this court decided Bank of America, N.A. v. Reyes-Toledo, 139 Hawaiʻi 361, 390 P.3d 1248 (2017),

• Bank Argues Res Judicata: barred under the law of the case doctrine because the circuit court had already resolved the issue and orally granted PennyMac’s motion for summary judgment. Nevertheless, recognizing that Reyes-Toledo required foreclosing parties to show they had possession of the note at the time the foreclosure complaint was filed, PennyMac asked the circuit court for “leave to supplement the record to support its (or its predecessor’s), standing to commence this action.”

• Court Allows Supplements From Bank: court allowed PennyMac an opportunity to supplement the record to support its standing. Upon receipt of PennyMac’s supplemental Reyes-Toledo declaration, on November 22, 2017, the circuit court entered written findings of fact, conclusions of law, and an order granting PennyMac’s motion for summary judgment. Accordingly, the circuit court issued the Foreclosure Decree and Judgment, appointing a Commissioner to oversee the sale.

No Appeal Filed - Only Rule 60 Motion: Godinez did not appeal the order granting summary judgment or the Foreclosure Decree and Judgment. Instead, on January 16, 2018, Godinez filed a pro se HRCP Rule 60(b) motion for relief from the Foreclosure Decree. In the motion, Godinez alleged, inter alia, that newly discovered evidence rendered the Foreclosure Decree void and showed that PennyMac lacked standing. She maintained that the evidence was “newly discovered” because her previous attorney had “overlooked it.”

Res Judicata:

• Rule: By definition, the doctrine of res judicata only applies to new suits: It is inapplicable in a continuation of the same suit. 18 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 4404 (3d ed. 2020) (“Res judicata applies as between separate actions, not within the confines of a single action on trial or appeal.”); cf. Ditto, 98 Hawaiʻi at 128 n.6, 44 P.3d at 279 n.6 (2002) (noting that the doctrine of collateral estoppel5 wasinapplicable where the issues involved “essentially a continuation of the same suit and same claim”); see also Esteban, 129 Hawaiʻi at 159, 296 P.3d at 1067 (applying res judicata based on a “previous lawsuit”); Bremer, 104 Hawaiʻi at 54, 85 P.3d at 161 (same, as to “original suit”); Kauhane, 71 Haw. at 464, 795 P.2d at 279 (“both actions”); In re Bishop, 36 Haw. 403, 416 (Haw. Terr. 1943) (“new action”).

• Issue: Accordingly, the determinative question on appeal is whether Godinez’s post-judgment HRCP Rule 60(b) motion was a new action or a continuation of the same action. We conclude that that Godinez’s HRCP Rule 60(b) motion was a continuation of the foreclosure decree and judgment, and therefore the ICA erred by applying the doctrine of res judicata.

• Hold: We agree with Godinez and hold that the ICA erred in applying res judicata to her HRCP Rule 60(b) motion.

Abuse of Discretion:

Rule re Rule 60 Discretion:

• Trial courts are vested with “a very large measure of discretion” in deciding HRCP Rule 60(b) motions, Hawaiʻi Housing Authority v. Uyehara, 77 Hawaiʻi 144, 147, 883 P.2d 65, 68 (1994), and, as the ICA recognized, “Godinez makes no discernible argument on appeal as to whether the [c]ircuit [c]ourt abused its discretion in entering the Order Denying Relief[.]”

• A party seeking relief under HRCP Rule 60(b)(6) after the time for appeal has run must establish the existence of “extraordinary circumstances” that prevented or rendered them unable to prosecute an appeal. Uyehara, 77 Hawaiʻi at 148–49, 883 P.2d at 69–70. This is because HRCP Rule 60(b)(6) “is not for the purpose of relieving a party from free, calculated and deliberate choices [they have] made.” Id. at 149, 883 P.2d at 70 (quoting In re Hana Ranch Co., 3 Haw. App. 141, 147, 642 P.2d 938, 942 (1982)).

Two Bites: Godinez fully litigated the question of standing before the trial court, filing numerous motions, challenging the documents submitted by PennyMac, and arguing the issue before the court at the summary judgment hearing as well as at the hearing on her motion to dismiss after this court decided ReyesToledo. Nothing in the record suggests that Godinez did not have a full and fair opportunity to litigate the issue. And, as the ICA noted, Godinez failed to timely appeal from the circuit court’s summary judgment order.