No. 27832 (December 29, 2008)
Opinion pdf
OPINION OF THE COURT BY ACOBA, J.
Petitioner/Defendant-Appellant Michael L. Shinn (Petitioner) seeks review of the judgment of the Intermediate Court of Appeals (ICA), filed on March 30,3008, pursuant to its published opinion filed on February 29, 2008, affirming the March 7, 2006 Order of the first circuit court (the court) denying Petitioner's Hawai'i Rules of Civil Procedure (HRCP) Rule 60(b) (2008) motion (1) to set aside the court's December 18, 2003 Order granting the motion of Respondent/Plaintiff-Appellee Bank of Hawaii (Respondent) to extend a deficiency judgment against Petitioner entered on December 21, 1993, and (2) to expunge the court's December 21, 1993 joint and several judgment against Petitioner. See Bank of Hawaii v. Shinn, 118 Hawai'i 132, 138, 185 P.3d 880, 886 (App. 2008).
We hold (1) that Hawai'i Revised Statutes (HRS) § 657-5 (Supp. 2007) controls over HRCP Rule 5(a) (2008), and therefore, notice of the proposed extension of a judgment pursuant to HRS § 657-5 must be provided to the judgment debtor prior to the granting of the extension, even if the debtor is in default and is not required under HRCP Rule 5(a) to be served with pleadings; and (2) although the failure to provide notice under HRS § 657-7 (1993) to a party in default is error, such error was harmless under the circumstances of this case. Accordingly, the December 18, 2003 order granting extension of judgment was not void under HRCP Rule 60(b)(4). The error was harmless in this case because Petitioner had never appeared in the action to defend himself, he had an opportunity to be heard at the Rule 60(b) hearing, he offered no defense on the merits to the original judgment or the extension, and thus failued to demonstrate any prejudice. Therefore, the ICA's judgment is affirmed, albeit on different grounds. [footnotes omitted]
Concurring and Dissenting Opinion by J. Levinson, with whom J. Nakayama joins pdf
