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Wiesenberg v. University of Hawai'i

Supreme Court of Hawaii

June 30, 2016

ROBERT E. WIESENBERG, Petitioner/Plaintiff-Appellant,
v.
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.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000711; CIVIL NO. 13-1-2248-08)

          Mark G. Valencia and Matthew A. Cohen for petitioner

          Paul 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, 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 ("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 University of Hawai'i at Mnoa's ("UH-Mnoa") 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-Mnoa as the defendant and seeking more than $7 million in damages he alleged he suffered because UH-Mnoa 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-Mnoa 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 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:

         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 ...


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