World Botanical Gardens, Incorporated v. Wagner

• Court: Hawaii Intermediate Court of Appeals
• Decided: February 12, 2025
• Docket: CAAP-21-0000050
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 12-FEB-2025 08:01 AM Dkt. 84 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

WORLD BOTANICAL GARDENS, INCORPORATED, a Nevada corporation, Plaintiff-Appellee, v. WALTER WAGNER; LINDA WAGNER; DAN PERKINS, Defendants-Appellants, and DAVID ADAMS, Defendant-Appellee, and JOHN DOES 1-10; JANE DOES 1-10; and DOE ENTITIES, 1-10, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 3CC051000210)

SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

Self-represented Defendants-Appellants Dan Perkins, 1

Linda M. Wagner, and Walter L. Wagner (together, Appellants)

appeal from the Circuit Court of the Third Circuit's

(1) December 22, 2020 "Amended Order Granting Plaintiff's Motion

to Extend First Amended Final Judgment Entered on 9/28/2009

Pursuant to [Hawaiʻi Revised Statutes (HRS)] §657-5" (Amended

1 On December 9, 2024, self-represented Defendant-Appellant Walter L. Wagner filed a "Notice of Passing[,]" informing the court that self- represented Defendant-Appellant Dan Perkins passed away on December 5, 2024. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Extension Order); (2) November 24, 2020 "Minute Order Denying

Defendants' Letter Seeking to Vacate Nunc Pro Tunc Order of

February 29, 2020 Filed October 8, 2020" (Minute Order); and

(3) March 2, 2020 "Order Granting Plaintiff's Motion to Extend

First Amended Final Judgment Entered on 9/28/2009 Pursuant to

HRS §657-5" (Extension Order). 2

We lack jurisdiction to review the March 2, 2020

Extension Order. The Extension Order was an appealable post-

judgment order because it ended proceedings on Plaintiff-

Appellee World Botanical Gardens, Incorporated's motion to

extend the First Amended Final Judgment, leaving nothing further

to be accomplished. Ditto v. McCurdy, 103 Hawai‘i 153, 157, 80

P.3d 974, 978 (2003). Appellants' notice of appeal was filed on

January 19, 2021, after the deadline set by Hawai‘i Rules of

Appellate Procedure Rule 4. The November 24, 2020 Minute Order

is not an appealable order. See Abrams v. Cades, Schutte,

Fleming & Wright, 88 Hawai‘i 319, 321 n.3, 966 P.2d 631, 633 n.3

(1998) (stating "a minute order is not an appealable order").

Our review is limited to Appellants' challenges to the

December 22, 2020 Amended Extension Order.

On February 25, 2009, the circuit court entered a

judgment in favor of World Botanical and against Appellants.

2 The Honorable Peter K. Kubota presided over the Amended Extension Order and Minute Order. The Honorable Jeffrey A. Hawk presided over the Extension Order.

2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Appellants refer to this as the "first-in-time" judgment.

Appellants appealed, and this court dismissed for lack of

jurisdiction because the first-in-time judgment was not a final

appealable judgment. World Botanical Gardens, Inc. v. Wagner,

No. 29739, 2009 WL 2480849 (App. Aug. 12, 2009) (Order).

On September 28, 2009, the circuit court entered a

First Amended Final Judgment (First Amended Judgment) in favor

of World Botanical and against Appellants, which was affirmed on

appeal. World Botanical Gardens, Inc. v. Wagner, 126 Hawai‘i 24,

265 P.3d 493, No. 30133, 2011 WL 4375083 (App. Sept. 20, 2011)

(SDO), cert. rejected, No. SCWC-30133, 2011 WL 6067323 (Haw.

Dec. 6, 2011). Almost ten years later, on September 5, 2019,

World Botanical moved to extend the September 28, 2009 First

Amended Judgment, and Appellants opposed the motion. The

circuit court granted the motion, entering its Extension Order

on March 2, 2020. Appellants did not appeal the Extension

Order.

Seven months after the Extension Order was entered,

Appellants filed a document they labeled as a non-hearing

"Motion to Vacate Nunc Pro Tunc Order of February 29, 2020

[Hawai‘i Rules of Civil Procedure (HRCP)] Rule 60(B)" (Rule 60(b)

Motion). (Internal brackets omitted.)

In the Minute Order, the circuit court noted Walter

and Linda were designated vexatious litigants, prohibiting them

3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

from filing motions without "express authority from the

[p]residing [j]udge." The circuit court also indicated it would

accept the Rule 60(b) Motion, and then denied the Rule 60(b)

Motion. The Minute Order nonetheless instructed World Botanical

to submit an amended order excluding Linda from the extended

judgment. 3

The circuit court then entered the Amended Extension

Order, adding language that the extension was "only as to

Defendants Walter Wagner and Dan Perkins, and Defendant Linda

Wagner is hereby excluded from the scope of the extension of

judgment." The Amended Extension Order noted the circuit court

denied Appellants' Rule 60(b) Motion in its Minute Order.

Appellants appealed, raising six points of error.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below, and affirm.

A denial of an HRCP Rule 60(b) motion is reviewed for

an abuse of discretion. James B. Nutter & Co. v. Namahoe, 153

Hawai‘i 149, 161, 528 P.3d 222, 234 (2023). "The burden of

establishing abuse of discretion in denying a HRCP Rule 60(b)

3 As part of her September 19, 2019 affidavit in opposition to the motion to extend, Linda submitted a copy of a January 20, 2011 dated bankruptcy discharge she received from the United States Bankruptcy Court for the District of Utah.

4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

motion is on the appellant, and a strong showing is required to

establish it." Id. at 162, 528 P.3d at 235 (cleaned up). But

"under HRCP Rule 60(b)(4), an order is void only if the court

that rendered it lacked jurisdiction of either the subject

matter or the parties or otherwise acted in a manner

inconsistent with due process of law." Id. (cleaned up). "As

such, a denial of a HRCP Rule 60(b)(4) motion is reviewed de

novo." Id.

(1) In their first point of error, Appellants appear

to contend World Botanical lacked standing to extend the

judgment.

Appellants' Rule 60(b) Motion did not raise this

issue, and thus, this point is waived. See Ass'n of Apartment

Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai‘i 97, 107,

58 P.3d 608, 618 (2002) ("Legal issues not raised in the trial

court are ordinarily deemed waived on appeal.").

(2) In their second point of error, Appellants appear

to argue that World Botanical's counsel, Thomas Yeh, lacked

standing to represent it. Appellants do not specify the subpart

of HRCP Rule 60(b) on which they rely.

In their opening brief, Appellants note the "error is

detailed in the referenced affidavit, ROA #496[.]" Walter's

affidavit, located at 3CC051000210 Docket 496, makes

unsubstantiated assertions. Appellants' opening brief provides

5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

no legal authority (other than authority defining "interim

trustee" as used in the United States Bankruptcy Code) or record

citations to support their argument.

In their Rule 60(b) Motion, Appellants argued World

Botanical was dissolved in 2014 and Yeh was not "appointed by

anyone of authority to represent" it. And, their Rule 60(b)

Motion cited only a 2011 opinion in one of Walter's prior

appeals. Appellants presented no evidence to support their

contention that World Botanical was dissolved.

Under these circumstances, the circuit court acted

within its discretion by denying the Rule 60(b) Motion.

(3) In their third and fourth points of error,

Appellants contend the judgment "could not legally be extended,

because the Hawai‘i extension statute requires that the extension

be entered within 10 years of entry of the original judgment."

Appellants appear to argue that the extension orders are void

because the motion to extend was not filed within ten years of

the February 25, 2009 first-in-time judgment (which was not a

final judgment) and the Extension Order was not entered before

the tenth anniversary of the September 28, 2009 First Amended

Appellants again do not specify the subpart of HRCP

Rule 60(b) on which they rely.

6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

We construe Appellants' point of error as relying on

HRCP Rule 60(b)(4) ("the judgment is void"). Voiding a judgment

pursuant to HRCP Rule 60(b)(4) is limited to judgments rendered

where the court "lacked jurisdiction of the subject matter, or

of the parties, or if it acted in a manner inconsistent with due

process of law." Bank of Hawaii v. Shinn, 120 Hawaiʻi 1, 13, 200

P.3d 370, 382 (2008) (cleaned up).

HRS § 657-5 (2016) provides in part that "[n]o

extension of a judgment or decree shall be granted unless the

extension is sought within ten years of the date of the original

judgment or decree." (Emphases added.) The Hawai‘i Supreme

Court has clarified "that [the] 'original judgment' of HRS

§ 657-5 pertains to the judgment that creates the rights and

responsibilities that the moving party is seeking to enforce and

extend." Est. of Roxas v. Marcos, 121 Hawai‘i 59, 71, 214 P.3d

598, 610 (2009).

This court dismissed Appellants' first appeal for lack

of jurisdiction and the circuit court entered the September 28,

2009 First Amended Judgment to satisfy the requirements for an

appealable final judgment. As a result, the September 28, 2009

First Amended Judgment created the rights and responsibilities

World Botanical wanted to enforce and extend. See Marcos, 121

Hawai‘i at 71, 214 P.3d at 610; HRCP Rule 54(a).

7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Moreover, HRS § 657-5 speaks to when the extension

must be "sought[,]" not when the extension order must be

"entered." Here, World Botanical filed its motion to extend the

First Amended Judgment on September 5, 2019, within ten years

after entry of the September 28, 2009 First Amended Judgment.

Thus, the circuit court had jurisdiction over the

matter, and did not err in denying Appellants' Rule 60(b)

Motion.

(4) In their fifth point of error, Appellants assert

the First Amended Judgment "was obtained by fraud and is not

reflective of the actual facts."

To the extent Appellants' point of error relies on

HRCP Rule 60(b)(3) ("fraud[,] misrepresentation, or other

misconduct of an adverse party"), an HRCP Rule 60(b)(3) motion

must be made "not more than one year after the judgment, order,

or proceeding was entered or taken." Here, the First Amended

Judgment was entered over ten years before their Rule 60(b)

Motion. Thus, an HRCP Rule 60(b)(3) motion would be untimely.

HRCP Rule 60(b)(4) ("the judgment is void"), they argue they

were denied due process because of the alleged false criminal

charges, which resulted in Linda and Walter's absence from the

8 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

civil trial. Basic elements of due process are "notice and an

opportunity to be heard at a meaningful time and in a meaningful

manner." Davis v. Bissen, 154 Hawaiʻi 68, 82, 545 P.3d 557, 571

(2024) (citation omitted).

Other than their own affidavits, Appellants do not

point to any evidence in the record to corroborate their claims

of fraud. See Hawaii's Thousand Friends v. Anderson, 70 Haw.

276, 286, 768 P.2d 1293, 1300-01 (1989); cf. State v. Scotland,

58 Haw. 474, 477, 572 P.2d 497, 499 (1977) (explaining if

incompetent evidence is received by the grand jury, indictment

should be dismissed only if the testimony clearly appears to

have improperly influenced the grand jurors despite the presence

of sufficient evidence amounting to probable cause).

And even accepting Appellants' allegation that

perjured testimony was presented to the grand jury to indict

Linda, whom they deemed a key witness, Appellants made no

showing that they requested and were denied a continuance of the

civil trial. Appellants also do not challenge the circuit

court's findings that after Linda was arrested, they did not

request a continuance of the civil trial.

Thus, the circuit court did not abuse its discretion

or err in denying the Rule 60(b) Motion.

(5) Finally, in their sixth point of error,

Appellants challenge the circuit court's use of "NUNC PRO TUNC"

9 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

in the Extension Order. As we explained, we do not have

jurisdiction to review the Extension Order. Even if we did, the

Amended Extension Order replaced the Extension Order so

Appellants' challenge to the Extension Order would be moot.

Based on the foregoing, we affirm the December 22,

2020 Amended Extension Order.

DATED: Honolulu, Hawai‘i, February 12, 2025.

On the briefs: /s/ Keith K. Hiraoka Presiding Judge Dan Perkins, Linda M. Wagner, /s/ Clyde J. Wadsworth Walter L. Wagner, Associate Judge Defendants-Appellants, pro se. /s/ Sonja M.P. McCullen Associate Judge Thomas L.H. Yeh, Keyra K. Wong, for Plaintiff-Appellee.