ROBERT E. WIESENBERG, Petitioner/Plaintiff-Appellant,
UNIVERSITY OF HAWAI'I; JOHN DOES 1-5 0; JANE DOES 1-5 0; DOE ENTITIES 1-50; DOE GOVERNMENTAL UNITS/ENTITIES 1-50, Respondent/Defendant-Appellee.
TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000711; CIVIL
G. Valencia and, Matthew A. Cohen for petitioner
Alston, John-Anderson, L. Meyer, and Maile Osika, Carrie K.
S. Okinaga, and Ryan M. Akamine for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, and WILSON,
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
("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.
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.
Brief Factual History
fall of 2005, Wiesenberg was accepted into the University of
Hawai'i at Manoa's ("UH-Manoa")
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.
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-Manoa
as the defendant and seeking more than $7 million in damages
he alleged he suffered because UH-Manoa did not award him his
graduate degree. 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-Manoa was not a proper party to
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 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.)
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
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
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.
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.
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.
September 21, 2015, the circuit court entered the final
amended judgment ("Final Amended Judgment"). The