Extensions of Time for Notices of Appeal in Civil Cases

• Publication year: 2014
• Citation: Vol. 18 No. 01

Extensions of Time for Notices of Appeal in Civil Cases

by Rebecca A. Copeland

Rule 4 of the Hawaii Rules of Appellate Procedure governs the timeframe in which a notice of appeal must be filed in civil cases. According to Rule (4)(a): "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." However, the rule allows the time to be extended either (1) before the 30-day time period expires, or (2) after the 30-day time period expires.

Pre-expiration Extensions of Time

The first manner in which the notice of appeal deadline may be extended occurs prior to the expiration of the 30-day deadline. Rule 4(a)(4)(A) provides:

(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.

An extension of the 30 day deadline to file the notice of appeal may be obtained only if each of the essential elements of the rule is met:

1. The request must be made in the court or agency appealed from.

Any request for extension of time under Rule 4(a)(4)(A) must be made in the lower court or agency from which the appeal is being taken.¹

2. There must be a showing of good cause.

The extension request must be supported by "good cause." "Hawaii appellate courts have considered the scope of the term 'good cause' in a variety of contexts."² "[G]ood cause is a relative and highly abstract term, and its meaning must be determined not only by verbal context of [the] statute in which [the] term is employed, but also by context of action and procedures involved in [the] type of case presented."³

In the context of a motion to extend the time to file a notice of appeal, the term has been defined as existing "only where the circumstances necessitating an extension are beyond the control of the movant."⁴ The following circumstances have been found not to constitute "good cause" because the circumstances were within, rather than beyond, the control of the party filing the notice of appeal:⁵

•The parties "considering whether they would assert appeals and cross-appeals;"⁶

•The "recent retention of new counsel" and a "desire to travel to Germany;"⁷

•The desire for more time to negotiate a settlement;⁸

•"[A] desire for more time to seek settlement before incurring the cost of filing the appeal[.]"⁹

3. A motion must be filed.

The request must be made as a motion to the lower court or agency.¹⁰ A stipulation, rather than a motion, does not ordinarily suffice to extend the deadline.¹¹ The motion may be filed ex parte,¹²"unless the court or agency otherwise requires."¹³

4. The request must be made within the original timeframe for filing the notice of appeal.

The motion must be filed within the original time period in which the notice of appeal must be filed.¹⁴ As explained above, a notice of appeal is generally due within 30 days of the date of the appealable order or judgment.¹⁵According to the Hawaii Supreme Court, this time period commences when the appealable order or judgment is filed by the lower court or agency, not from the date the order or judgment is received by the appellant.¹⁶ Further, "delinquent service of such a notice [of the entry of the appealable order or judgment] does not toll the time for appeal[.]"¹⁷ Moreover, although certain post-judgment motions such as motions to reconsider, alter or amend the judgment may toll the time in which to file a notice of appeal,¹⁸ the deadline to file the notice of appeal begins to run from the date the post-judgment tolling motion is either ruled upon or deemed denied.¹⁹Thus, the failure to seek an extension within 30 days from the date the motion is deemed denied will result in the motion to extend being considered untimely.²⁰

5. The extended time period is limited.

The extended time is not unlimited. Under the rule, a party may not obtain an extension for more than 30 days after the expiration of the original deadline for filing the notice of appeal.²¹ In other words, no more than 60 days total will be allowed from the date the appealable order or judgment is entered.

Post-expiration Extensions of Time

The second manner in which the notice of appeal deadline may be extended occurs after the expiration of the 30 day deadline. Rule 4(a)(4)(B) provides:

(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.

An extension of the 30 day deadline to file the notice of appeal may be obtained after the initial period has expired only if each of the essential elements of the rule is met:

1. The request must be made in the court or agency appealed from.

As in pre-expiration motions, any request for extension of time under Rule 4(a)(4)(B) must be made in the lower court or agency from which the appeal is being taken.²² A request filed with the appellate court does not satisfy the rule.²³

2. There must be a showing of excusable neglect.

The request may not be granted absent a showing of "excusable neglect" to support why the notice of appeal was not filed within the original 30-day deadline.²⁴ "'[E]xcusable neglect' is a strict standard, requiring a showing that the failure to timely file a notice of appeal was due to...