Wiesenberg v. University of Hawaii. , 138 Haw. 210 ( 2016 )

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Electronically Filed
Supreme Court
SCWC-15-0000711
30-JUN-2016
09:13 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
ROBERT E. WIESENBERG,
Petitioner/Plaintiff-Appellant,
vs.
UNIVERSITY OF HAWAI#I; JOHN DOES 1-50; JANE DOES 1-50; DOE
ENTITIES 1-50; DOE GOVERNMENTAL UNITS/ENTITIES 1-50,
Respondent/Defendant-Appellee.
SCWC-15-0000711
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000711; CIVIL NO. 13-1-2248-08)
JUNE 30, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, and WILSON, JJ.
PER CURIAM
The sole jurisdictional issue before this court concerns the
effect of the entry of an amended judgment, entered after the
filing of a post-judgment tolling order, on the timing to file an
appeal under Rule 4 of the Hawai#i Rules of Appellate Procedure
(“HRAP”). Petitioner/plaintiff-appellant Robert E. Wiesenberg
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(“Wiesenberg”) applies for certiorari review of the Intermediate
Court of Appeals’ (“ICA”) February 16, 2016 order (“Dismissal
Order”) dismissing as untimely his appeal from a final amended
judgment issued by the first circuit court following the entry of
a post-judgment order relating to attorneys’ fees and costs.
Wiesenberg contends that the appeal is timely because the final
amended judgment alters the original judgment in a material and
substantive respect and, therefore, the filing of the final
amended judgment triggered the date for filing the notice of
appeal. The University of Hawai#i (“UH”) contends that the
appeal is untimely because the final amended judgment did not
alter the original judgment in such a way as to materially affect
the substantive rights of the parties and, therefore, the post-
judgment order on the attorneys’ fees and costs triggered the
date for filing the notice of appeal.
We conclude that the final amended judgment amended the
original judgment in a material and substantial respect such that
the appeal deadline began to run from the date that the final
amended judgment was filed by the circuit court. Wiesenberg’s
appeal is, therefore, timely. Accordingly, we vacate the ICA’s
February 16, 2016 Dismissal Order and remand the matter to the
ICA for disposition of the appeal.
I. Background
A. Brief Factual History
In the fall of 2005, Wiesenberg was accepted into the
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University of Hawai#i at Mânoa’s (“UH-Mânoa”) master’s degree
program for Library and Information Science. During the 2007
academic year, Wiesenberg was placed on academic probation and
then later dismissed from the program after he failed to raise
his grade point average. He was denied readmission in 2008 and
2009.
B. Procedural History
1. The Lawsuit
On August 19, 2013, after participating in the
administrative and academic grievance process, Wiesenberg, pro
se, filed a complaint in the first circuit court naming UH-Mânoa
as the defendant and seeking more than $7 million in damages he
alleged he suffered because UH-Mânoa did not award him his
graduate degree.1 Two months later, on October 8, 2013,
Wiesenberg filed an amended complaint for unjust enrichment
naming UH as the defendant and seeking $500,000.00 in damages.
The original complaint was eventually dismissed without prejudice
because UH-Mânoa was not a proper party to the lawsuit.2
On April 4, 2014, Wiesenberg, represented by counsel, moved
for leave to file a second amended complaint. The proposed
second amended complaint named UH as the defendant, included
additional background information related to Wiesenberg’s
dismissal from the graduate program, and alleged claims for
declaratory judgment/injunctive relief, unjust enrichment, unfair
1
The Honorable Virginia L. Crandall presided over the case.
2
By statute, UH may only be sued in its corporate name.
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or deceptive trade practices/acts, and interference with
prospective economic advantage. Wiesenberg sought an order
compelling UH to admit him into the master’s degree program for
Library and Information Science for the sole purpose of awarding
him his degree or, in the alternative, damages. The court,
however, denied the motion on the ground that the proposed
amendment was futile because the statute of limitations had run:
Upon review and consideration of the matters
submitted, the Court denies the Motion for Leave to
File Second Amended Complaint; the proposed amendment
is futile because the statute of limitations has run.
Plaintiff’s claim accrued in December 2007 when he was
dismissed from the graduate program. The continuing
tort doctrine does not apply to the alleged facts
herein; Plaintiff does not allege ongoing wrongful
conduct. The alleged wrongful conduct occurred in
2007 and Plaintiff has since been unsuccessful in
obtaining relief. Equitable estoppel does not apply
to extend the time period to file because there were
no extraordinary circumstances beyond the control of
the Plaintiff that made it impossible for him to file
within the statute of limitations. Garner v. State,
122 Haw. 150 (Haw. App. 2009).
(Italics omitted and underlining added.)
UH then moved for judgment on the pleadings, arguing that
the allegations pleaded in Wiesenberg’s 2013 amended complaint
were similarly barred as a matter of law. Wiesenberg opposed the
motion. The circuit court granted the motion and entered its
written order on May 5, 2015. On June 3, 2015, the court entered
judgment in the case (“Original Judgment”). The Original
Judgment states:
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JUDGMENT
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
Judgment be and hereby is, entered in favor of
Defendant UNIVERSITY OF HAWAI#I and against Plaintiff
ROBERT E. WIESENBERG on all claims herein.
This Judgment fully and finally resolves all
claims between the parties and no other claims remain
in this proceeding.
There being no reason for delay, the Court
expressly directs that this Judgment be entered
forthwith.
The following day, on June 4, 2015, UH filed a motion for
attorneys’ fees, which Wiesenberg opposed. On July 31, 2015, the
court entered its post-judgment order on UH’s motion for
attorneys’ fees.
A few days later, on August 4, 2015, UH’s counsel e-mailed
Wiesenberg’s counsel a proposed final amended judgment for his
“review, signature, and approval.” Wiesenberg’s counsel was on
Army duty on the mainland at that time and was not expected to
return until August 17, 2015. On August 28, 2015, Wiesenberg’s
counsel transmitted to UH’s counsel a signed final amended
judgment approving it as to form. Some time thereafter, the
signed final amended judgment was transmitted to the circuit
court for approval and filing.
On September 21, 2015, the circuit court entered the final
amended judgment (“Final Amended Judgment”). The Final Amended
Judgment states:
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FINAL AMENDED JUDGMENT
Judgment on the Pleadings having been granted to
Defendant UNIVERSITY OF HAWAI#I, as against Plaintiff
ROBERT E. WIESENBERG, by Order filed May 5, 2015,
Judgment against Plaintiff ROBERT E. WIESENBERG and in
favor of Defendant UNIVERSITY OF HAWAI#I, as was filed
on June 3, 2015.
Pursuant to the July 31, 2015 Order Granting
Defendant UNIVERSITY OF HAWAII’S Motion for Attorneys’
Fees, Filed June 4, 2015, and in accordance with Rule
54(d)(2) of the Hawai#i Rules of Civil Procedure, and
§ 607-14 of the Hawai#i Revised Statutes, the court
awarded Defendant UNIVERSITY OF HAWAI#I reasonable
attorneys’ fees as against Plaintiff ROBERT E.
WIESENBERG, in the amount of $14,543.75.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
a final judgment be, and hereby is, entered in
accordance with (1) the May 5, 2015 Order Granting
Defendant UNIVERSITY OF HAWAII’S Motion for Judgment
on the Pleadings, Filed December 5, 2014; and (2) the
July 31, 2015 Order Granting Defendant UNIVERSITY OF
HAWAII’S Motion for Attorneys’ Fees, Filed June 4,
2015, awarding Defendant UNIVERSITY OF HAWAI#I
attorneys’ fees in the amount of $14,543.75, as
against Plaintiff ROBERT E. WIESENBERG, on all claims
and causes of action asserted by Plaintiff in the
Amended Complaint filed on October 8, 2013. The
judgment shall bear statutory interest at a rate of
ten per cent a year following from the date of its
entry until payment.
This FINAL AMENDED JUDGMENT fully and finally
resolves all claims between the parties and no other
claims remain in this proceeding.
There being no reason for delay, the Court
expressly directs that this FINAL AMENDED JUDGMENT be
entered forthwith.
2. The Appeal
On September 30, 2015, Wiesenberg filed a notice of appeal
in the ICA appealing from the Final Amended Judgment and all
underlying orders issued by the circuit court in the case.
UH subsequently moved to dismiss the appeal as untimely,
contending that Wiesenberg did not file his notice of appeal
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within thirty days after the circuit court entered the July 31,
2015 post-judgment order disposing of the motion for attorneys’
fees. Wiesenberg opposed the motion, arguing that the appeal was
timely because the Final Amended Judgment substantially and
materially amended the Original Judgment by including attorneys’
fees and post-judgment interest and, therefore, the thirty-day
appeal deadline started to run from the date the Final Amended
Judgment was entered by the court. Wiesenberg further argued
that UH “lulled” him to wait before filing the notice of appeal
by submitting the proposed Final Amended Judgment before the 30-
day appeal period from the post-judgment order disposing of the
motion for attorneys’ fees had run.
On February 16, 2016, the ICA granted UH’s motion to dismiss
and entered the Dismissal Order dismissing the appeal for lack of
jurisdiction on the ground that the appeal was untimely. The ICA
determined that the Original Judgment was the operative judgment
for purposes of the appeal and since the appeal deadline was
tolled when UH timely filed its motion for attorneys’ fees and
costs, the deadline for filing the appeal was thirty days from
the July 31, 2015 post-judgment order on the attorneys’ fee
motion. The ICA concluded that the appeal deadline did not run
from the filing of the Final Amended Judgment because the
separate judgment requirement does not apply in the post-judgment
context and, therefore, the Final Amended Judgment was
superfluous. Citing Ditto v. McCurdy, 103 Hawai#i 153, 80 P.3d
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974 (2003), the ICA explained that “the separate judgment
requirement articulated in Jenkins [v. Cades Schutte Fleming &
Wright, 76 Hawai#i 115, 869 P.2d 1334 (1994)] is inapposite in
the post-judgment context” and that “[o]nce a circuit court has
entered an appealable final judgment and an appealable post-
judgment order, any subsequent judgment on the same appealable
post-judgment order is superfluous[.]” The ICA also concluded
that the appeal deadline did not run from the filing of the Final
Amended Judgment because, even though the circuit court entered
two judgments on the same substantive claim, the inclusion of the
award of attorneys’ fees and statutory interest in the Final
Amended Judgment did not substantially or materially amend the
substantive language of the Original Judgment:
When, as here, a trial court has entered two
judgments on the same substantive claims, the
following general rule applies:
The general rule is that where a judgment
is amended in a material and substantial
respect, the time within which an appeal
from such determination may be taken
begins to run from the date of the
amendment, although where the amendment
relates only to the correction of a
clerical error, it does not affect the
time allowed for appeal.
Poe v. Hawai#i Labor Relations Board, 98 Hawai#i 416,
418, 49 P.3d 382, 384 (2002) (citation, internal
quotation marks, and ellipsis points omitted; emphasis
added); State v. Mainaaupo, 117 Hawai#i 235, 246 n.6,
178 P.3d 1, 12 n.6 (2008).
If the amendment of a final judgment or
decree for the purpose of correcting a
clerical error either materially alters
rights or obligations determined by the
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prior judgment or decree or creates a
right of appeal where one did not exist
before, the time for appeal should be
measured from the entry of the amended
judgment. If, however, the amendment has
neither of these results, but instead
makes changes in the prior judgment which
have no adverse effect upon those rights
or obligations or the parties’ right to
appeal, the entry of the amended judgment
will not postpone the time within which an
appeal must be taken from the original
decree.
Poe v. Hawai#i Labor Relations Board, 98 Hawai#i at
418, 49 P.3d at 384 (citations, internal quotation
marks, and original brackets omitted; emphasis added).
The ICA determined that the Final Amended Judgment did not amend
the substantive language of the Original Judgment because (1) the
inclusion of the attorneys’ fees award was superfluous for the
purpose of perfecting the right to appeal from the substantial
adjudication that was already included in the Original Judgment,
and (2) the inclusion of interest was superfluous because it
simply reiterated the statutory right to obtain interest on the
attorneys’ fees award.3
3. The Application for Writ of Certiorari
On March 16, 2016, Wiesenberg timely filed an application
for writ of certiorari, which this court accepted for review.
Wiesenberg presents two questions:
(1) Did the ICA gravely err in holding that Wiesenberg’s
3
In addressing Wiesenberg’s argument that UH “lulled” him into
inaction by drafting a proposed amended judgment, the ICA explained that, even
if true, “the failure to file a timely notice of appeal in a civil matter is a
jurisdictional defect that the parties cannot waive and the appellate courts
cannot disregard in the exercise of judicial discretion.”
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September 30, 2015 notice of appeal was untimely under
HRAP Rule 4(a)(3)?
(2) Did the ICA gravely err in determining that “lulling”
does not apply?
Wiesenberg argues that the ICA should have treated UH’s request
to amend the Original Judgment as a post-judgment motion under
HRAP Rule 4(a)(3), should have recognized that the notice of
appeal was timely under Poe because the Final Amended Judgment
altered the Original Judgment in a material and substantial
respect, and should have determined that Wiesenberg was “lulled”
into inaction based on the confusion created when UH prepared and
submitted for the court’s approval the Final Amended Judgment.
Wiesenberg maintains that the ICA’s decision “will strike a
grievous blow not only to Mr. Wiesenberg’s quest for justice, but
to the conditions of fair play that can be expected by future
litigants.”
UH timely filed an opposition. UH argues that the ICA
correctly recognized that the Final Amended Judgment did not
postpone the appeal deadline and, therefore, Wiesenberg’s appeal
is untimely. UH contends that the submission of the proposed
Final Amended Judgment was not a motion under HRAP Rule 4(a)(3),
the Final Amended Judgment “merely re-stated the award of fees to
[UH] and the applicable default interest (HRS § 478-3)” and “did
not itself materially affect the substantive rights of the
parties,” and UH did not “lull” Wiesenberg to miss the appeal
deadline.
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Wiesenberg addressed UH’s arguments in a reply and
reiterated that his appeal was timely.
II. Discussion
The sole issue before this court is whether Wiesenberg’s
September 30, 2015 notice of appeal was timely. The answer
depends on whether the July 31, 2015 post-judgment order on the
motion for attorneys’ fees or the September 21, 2015 Final
Amended Judgment triggered the time from which to calculate the
appeal deadline.
A. The Appeal Deadline and the Effect of a Tolling Motion
Generally, appeals from civil judgments must be filed within
30 days after entry of the final judgment. See HRAP Rule 4(a)(1)
(“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.”). The initial appeal deadline may be
extended, however, by the timely filing of a post-judgment motion
for attorneys’ fees and costs. Specifically, “[i]f any party
files a timely motion . . . 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[.]” HRAP Rule
4(a)(3).
The Original Judgment was filed on June 3, 2015. At that
moment, Wiesenberg had 30 days to file his notice of appeal. See
HRAP Rule 4(a)(1). However, when UH filed a timely motion for
attorneys’ fees, the deadline to appeal was tolled and thereafter
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extended until thirty days after the court entered its July 31,
2015 order regarding attorneys’ fees. See HRAP Rule 4(a)(3). If
this was the last document filed in the record of the case,
pursuant to HRAP Rule 4(a)(3)’s plain language, the deadline for
Wiesenberg to file his notice of appeal was August 31, 2015.4
B. The Effect of a Final Amended Judgment on the Appeal
Deadline
The July 31, 2015 post-judgment order on UH’s motion for
attorneys’ fees was not the last document in the record of the
case, however. Instead, UH’s counsel prepared the Final Amended
Judgment, Wiesenberg’s counsel signed the Final Amended Judgment,
and the circuit court approved and filed the Final Amended
Judgment. The issue turns then on the operative effect, if any,
of the Final Amended Judgment for purposes of HRAP Rule 4’s
appeal deadline.
In 2000, the supreme court addressed this issue in Korsak v.
Hawaii Permanente Med. Grp., 94 Hawai#i 297, 304, 12 P.3d 1238,
1245 (2000). There, the court adopted the following rule as a
guide in determining whether an amendment of an order or judgment
affects the time for appeal:
4
The actual thirty day deadline was Sunday, August 30, 2015. Because
the deadline fell on a Sunday, however, the deadline was extended to the
following day. See HRAP Rule 26(a) (“In computing any period of time
prescribed by these rules, . . . [t]he last day of the period shall be
included, unless it is a Saturday, Sunday, or a legal holiday, in which event
the period extends until the end of the next day that is not a Saturday, a
Sunday, or a legal holiday.”)
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The general rule is that where a judgment is amended
in a material and substantial respect, the time within
which an appeal from such determination may be taken
begins to run from the date of the amendment, although
where the amendment relates only to the correction of
a clerical . . . error, it does not affect the time
allowed for appeal.
Moreover, if the amendment of a final judgment or
decree for the purpose of correcting a “clerical
error” either materially alters rights or obligations
determined by the prior judgment [or decree] or
creates a right of appeal where one did not exist
before, the time for appeal should be measured from
the entry of the amended judgment. If, however, the
amendment has neither of these results, but instead
makes changes in the prior judgment which have no
adverse effect upon those rights or obligations or the
parties right to appeal, the entry of the amended
judgment will not postpone the time within which an
appeal must be taken from the original decree.
Korsak, 94 Hawai#i at 304, 12 P.3d at 1245 (emphasis added).
A few years after Korsak was decided, the supreme court
applied its rule in Poe v. Hawai#i Labor Relations Board, 98
Hawai#i 416, 49 P.3d 382 (2002). In Poe, the circuit court sua
sponte entered an amended judgment to correct the caption of the
original judgment by changing the designation of one party from
“respondent-appellee” to “intervenor-appellee.” Poe, 98 Hawai#i
at 417-18, 49 P.3d at 383-84. A majority of the court determined
that the correction was clerical in nature and had no adverse
effect upon any rights or obligations or the parties’ right to
appeal and, therefore, the notice of appeal was due no later than
thirty days after the original judgment was filed. See id. at
419, 49 P.3d at 385.
Korsak and Poe clearly delineate that, in situations where
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the court has entered two judgments on the same substantive
claim, commencement of the appeal deadline depends on whether the
amended judgment amends the original judgment in a material and
substantial way -- either materially altering the rights or
obligations of the parties determined by the original judgment or
creating a right to appeal where none previously existed. If it
does, then the appeal deadline runs from the date of the amended
judgment; if it does not, then the appeal deadline runs from the
date of the original judgment.
C. The Final Amended Judgment Amended the Original
Judgment in a Material and Substantial Respect
Thus, consistent with Korsak and Poe, resolution of the
jurisdictional issue raised by the Dismissal Order is essentially
grounded on one fundamental question -- Does the Final Amended
Judgment amend the Original Judgment in a material and
substantial respect? We answer this question in the affirmative.
The changes between the Original Judgment and the Final
Amended Judgment are not clerical -- the changes are material and
substantive inasmuch as they alter the rights and obligations of
the parties. While the Original Judgment simply reiterates the
prevailing party and includes the required language that all
claims have been resolved, the Final Amended Judgment includes
additional information on the award of attorneys’ fees as well as
statutory interest:
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Original Judgment Final Amended Judgment
JUDGMENT FINAL AMENDED JUDGMENT
IT IS HEREBY ORDERED, ADJUDGED, AND Judgment on the Pleadings
DECREED that Judgment be and hereby is, having been granted to Defendant
entered in favor of Defendant UNIVERSITY UNIVERSITY OF HAWAI#I, as against
OF HAWAI#I and against Plaintiff ROBERT Plaintiff ROBERT E. WIESENBERG, by Order
E. WIESENBERG on all claims herein. filed May 5, 2015, Judgment against
This Judgment fully and finally Plaintiff ROBERT E. WIESENBERG and in
resolves all claims between the parties favor of Defendant UNIVERSITY OF HAWAI#I,
and no other claims remain in this as was filed on June 3, 2015.
proceeding. Pursuant to the July 31, 2015 Order
There being no reason for delay, the Granting Defendant UNIVERSITY OF HAWAII’S
Court expressly directs that this Motion for Attorneys’ Fees, Filed June 4,
Judgment be entered forthwith. 2015, and in accordance with Rule
54(d)(2) of the Hawai#i Rules of Civil
Procedure, and § 607-14 of the Hawai#i
Revised Statutes, the court awarded
Defendant UNIVERSITY OF HAWAI#I
reasonable attorneys’ fees as against
Plaintiff ROBERT E. WIESENBERG, in the
amount of $14,543.75.
IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that a final judgment be, and
hereby is, entered in accordance with (1)
the May 5, 2015 Order Granting Defendant
UNIVERSITY OF HAWAII’S Motion for
Judgment on the Pleadings, Filed December
5, 2014; and (2) the July 31, 2015 Order
Granting Defendant UNIVERSITY OF HAWAII’S
Motion for Attorneys’ Fees, Filed June 4,
2015, awarding Defendant UNIVERSITY OF
HAWAI#I attorneys’ fees in the amount of
$14,543.75, as against Plaintiff ROBERT
E. WIESENBERG, on all claims and causes
of action asserted by Plaintiff in the
Amended Complaint filed on October 8,
2013. The judgment shall bear statutory
interest at a rate of ten per cent a year
following from the date of its entry
until payment.
This FINAL AMENDED JUDGMENT fully
and finally resolves all claims between
the parties and no other claims remain in
this proceeding.
There being no reason for delay, the
Court expressly directs that this FINAL
AMENDED JUDGMENT be entered forthwith.
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The additional language creates new obligations and legal
consequences that did not exist under the Original Judgment. For
example, by including the award of attorneys’ fees,5 the Final
Amended Judgment was a money judgment upon which UH could recover
interest.6 Moreover, UH may execute on the Final Amended
Judgment by recording it as a judgment lien against Wiesenberg’s
property7 or initiating collection and garnishment actions.8 The
effect of the Final Amended Judgment provide serious legal
implications for Wiesenberg -- legal implications that did not
exist under the Original Judgment. These implications are not
clerical in nature; rather, they are implications that altered
the Original Judgment in a material and substantial respect. The
Final Amended Judgment, therefore, was the operative document for
purposes of this appeal.
5
We recognize that the circuit court need not reduce a post-judgment
award of attorneys’ fees and costs to a separate judgment for purposes of an
appeal. See Ditto, 103 Hawai#i at 160, 80 P.3d at 981. However, because the
court entered the Final Amended Judgment, this court’s review, for purposes of
determining whether the appeal was timely perfected, turns on an analysis of
the effect of the amendments.
6
See HRS § 478-3 (2008) (“Interest at the rate of ten per cent a year,
and no more, shall be allowed on any judgment recovered before any court in
the State, in any civil suit.”).
7
See HRS § 636-3 (Supp. 2015) (“Any money judgment, order, or decree
of a state court or the United States District Court for the District of
Hawaii shall be a lien upon real property when a copy thereof, certified as
correct by a clerk of the court where it is entered, is recorded in the bureau
of conveyances.”).
8
See, e.g., HRS § 652-1(b) (1993) (providing for the garnishment of
wages).
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Accordingly, the deadline for Wiesenberg to file his notice
of appeal commenced from the date the circuit court entered the
Final Amended Judgment on September 21, 2015. Wiesenberg,
therefore, had up to and including October 21, 2015 to file his
notice of appeal. Wiesenberg filed his notice of appeal on
September 30, 2015. The appeal is timely.9
III. Conclusion
Based on the foregoing, the ICA’s February 16, 2016
Dismissal Order is vacated and the matter is remanded to the ICA
for disposition of the appeal.
Mark G. Valencia and /s/ Mark E. Recktenwald
Matthew A. Cohen
for petitioner /s/ Paula A. Nakayama
Paul Alston, John-Anderson /s/ Sabrina S. McKenna
L. Meyer, and Maile Osika,
Carrie K. S. Okinaga, and
Ryan M. Akamine /s/ Richard W. Pollack
for respondent
/s/ Michael D. Wilson
9
In light of the disposition of the timeliness of the appeal, this
court need not address Wiesenberg’s “lulling” argument.
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