2008-10-06_Chris Yuen_v_Board_of_Appeals_and_Edmund_Jin_and_Eva_Lu_-_Answering brief-Civil_No_07-1-261K

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T C C� are distinguishable from the case at hand because the appellants in those cases did not file their appeals until after the deadline for doing so had already passed. For example, the appellant in Korean Buddhist Dae Won Sa Temple of Hawai .Inc. v. Zoning Board of Appeals, 9 Haw. App. 298, 305, 837 P.2d 311, 314 (1992) and the appellant in Rivera v. Dept. ofLahor and Industrial Relations, 100 Hawaii 348, 350, 60 P.3d 298, 300 (2002) waited until two days after the expiration of the deadline to file their appeals. Likewise, the appellant in Tanaka v. Dept. of Hawaiian Home Lands, 106 Hawaii 246, 248, 103 P.3d 406, 408 (2004) waited until sixteen months after the expiration of the deadline to file his appeal. Unlike the appellants in the cases cited by Appellants Jin and Lu,the Director filed the Notice of Appeal as it was physically submitted to the office of the clerk of the court in the Circuit Court of the Third Circuit within the deadline provided in Section 91-14(b), HRS, which is supported by evidence in the record. (R:CV07-1-261K Doc. 011 at 766, 797.) But for a delay by the office of clerk of the court, the Notice of Appeal would have been stamped"Filed'on November 19, 2007, rather than on November 23, 2007, or at the very least on November 21, 2007. Appellants Jin and Lu suffered no prejudice as a result of the delay in file stamping the document as service of the Notice of Appeal was prompt and proper. Therefore, in the interest of justice, the Circuit Court properly exercised its inherent power by entering an order nunc pro tunc to correct the coures record to reflect the timely filing of the Notice of Appeal and thereby retained jurisdiction over the appeal. 4. Appellants Jin and Lu's Argument that"Excusable Neglect Does Not Apply" is Misplaced Appellants Jin and Lu argue at length in their Opening Brief at 12-15 as to why Rule 4(a)(4)(B), Hawaii Rules of Appellate Procedure, cannot be used to justify any excusable neglect for the Director to obtain an extension of time for filing the Notice of Appeal. This argument is 19