Wagner v. World Botanical Gardens, Inc.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-FEB-2024
08:01 AM
Dkt. 123 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

WALTER L. WAGNER, Plaintiff-Appellant,
v.
WORLD BOTANICAL GARDENS, INC., Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC041000232)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, Nakasone and Guidry, JJ.)

Plaintiff-Appellant Walter L. Wagner (Wagner),

appearing self-represented, appeals from the Order of Dismissal

(Order), and the Final Judgment Based Upon Order of Dismissal

(Judgment), both entered by the Circuit Court of the Third
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Circuit (circuit court) on May 22, 2018.1 The Order and Judgment

were entered in favor of Defendant-Appellee World Botanical

Gardens, Inc. (WBGI), and against Wagner, and dismissed Wagner's

First Amended Complaint with prejudice.2

Wagner argues on appeal that Judge Nakamura erred by:

(1) not recusing himself; (2) allowing WBGI's attorney, Thomas

Yeh (Yeh), "to represent the liquidated WBGI corporation without

authority"; and (3) dismissing Wagner's quantum meruit claim for

back pay, on the basis that it had already been litigated in

federal bankruptcy court.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

affirm.3

1 The Honorable Greg K. Nakamura (Judge Nakamura) presided.

2 Wagner filed his First Amended Complaint in June 2006. The
Intermediate Court of Appeals affirmed the circuit court's summary judgment
in favor of WBGI on all claims, except with respect to the quantum meruit
claim for back pay, which it remanded to the circuit court. Wagner v. World
Botanical Gardens, Inc., 126 Hawaiʻi 190, 268 P.3d 443 (App. 2011). Before
the quantum meruit claim was resolved, WBGI filed for relief under Chapter 11
of the U.S. Bankruptcy Code, in Nevada federal bankruptcy court. That filing
resulted in an automatic stay of this State case. In September 2013, the
federal bankruptcy court issued its order approving the sale of WBGI's
assets. The bankruptcy court subsequently dismissed Wagner's quantum meruit
claim, and issued a Final Decree.

Upon conclusion of the federal bankruptcy proceedings, WBGI filed
its January 2018 Renewed Motion to Dismiss for Lack of Jurisdiction (Motion
to Dismiss). The Motion to Dismiss requested the circuit court's dismissal
of Wagner's quantum meruit claim. The circuit court granted WBGI's Motion to
Dismiss.

3 Wagner's opening brief does not meet the requirements of Hawaiʻi
Rules of Appellate Procedure Rule 28(b). Among other things, it fails to
cite appropriately to the record and to provide legal authority in support of
(continued . . .)
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(1) Wagner's contention that Judge Nakamura should

have recused himself lacks merit. "Decisions on recusal or

disqualification present perhaps the ultimate test of judicial

discretion and should thus lie undisturbed absent a showing of

abuse of that discretion." State v. Ross, 89 Hawaiʻi 371, 375,

974 P.2d 11, 15 (1998).

Hawaiʻi courts reviewing questions of disqualification

and recusal apply a two-part analysis. First, with respect to

judicial disqualification, "courts determine whether the alleged

bias is covered by [Hawaii Revised Statutes (HRS)] § 601-7,

which only pertains to cases of affinity or consanguinity,

financial interest, prior participation, and actual judicial

bias or prejudice." Kondaur Cap. Corp. v. Matsuyoshi,

150 Hawaiʻi 1, 10-11, 496 P.3d 479, 488-89 (App. 2021) (quoting

Ross, 89 Hawaiʻi at 377, 974 P.2d at 17). Second, with respect

to judicial recusal, "if HRS § 601-7 does not apply, courts may

then turn, if appropriate, to the notions of due process . . .

in conducting the broader inquiry of whether circumstances . . .

fairly give rise to an appearance of impropriety and . . .

reasonably cast suspicion on [the judge's] impartiality." Id.

at 11, 496 P.3d at 489 (cleaned up).

3(. . . continued)
Wagner's arguments. Given Wagner's self-represented status, we will address
his arguments to the extent that they can reasonably be discerned. Wagner,
126 Hawaiʻi at 193, 268 P.3d at 446.
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The record reflects no evidence of Judge Nakamura's

"actual judicial bias or prejudice" in favor of or against any

party to this proceeding. Moreover, the record does not reflect

an appearance of impropriety that would have warranted Judge

Nakamura's recusal. The circuit court did not abuse its

discretion in denying Wagner's motion requesting Judge

Nakamura's recusal.

(2) The circuit court did not err by permitting Yeh to

represent WBGI following its liquidation in the federal

bankruptcy proceeding.

In its Order, the circuit court made the following

unchallenged findings of fact:4

20. On April 10, 2018, the Court heard WBGI's Renewed
Motion to Dismiss. Wagner appeared by telephone. The
Court granted WBGI's Renewed Motion to Dismiss, subject to
confirmation as to the continued authority of the Law
Offices of Yeh & Moore, LLLC to represent WBGI for the
purpose of the Renewed Motion to Dismiss.

21. WBGI's former directors, who are trustees of WBGI
for the purpose of winding up the affairs of WBGI as a
dissolved corporation pursuant to Nevada Revised Statutes
Sections 78.585 and 78.590, including the defense of this
case, has presented evidence that it has continued to
authorize the Law Offices of Yeh & Moore to assist it in
winding up WBGI's business affairs in a number of respects,
including the dismissal of the First Amended Complaint
herein. See Submittal of Declaration of Preston Michie in
Support of Defendant World Botanical Gardens Incorporated's
Renewed Motion to Dismiss for Lack of Jurisdiction
(April 20, 2018).

These findings are supported by the evidence in the record.

4 Wagner asks this court to review the Order, but does not specify
which findings of fact, if any, he is challenging. Unchallenged findings of
fact are binding on appeal. See State v. Rodrigues, 145 Hawaiʻi 487, 494,
454 P.3d 428, 435 (2019) (citation omitted).
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On this record, the circuit court did not clearly err

in concluding that Yeh was authorized to represent WBGI in

"winding up [its] business affairs[,]" which includes this State

court litigation.

(3) The circuit court did not err in dismissing

Wagner's quantum meruit claim for back pay. We review the

circuit court's ruling de novo.5 Ralston v. Yim, 129 Hawaiʻi 46,

55, 292 P.3d 1276, 1285 (2013).

Wagner does not challenge the circuit court's

following conclusions of law:

4. Walter L. Wagner brought a "back pay" claim in
WBGI's bankruptcy proceedings that is identical to the
claim in this case, by filing a "proof of claim" and by
filing an Adversary Complaint containing his claim in
WBGI's bankruptcy;

. . . .

6. Bankruptcy Judge Bruce Beesley dismissed Wagner's
quantum meruit and back pay claim;

. . . .

8. Wagner did not file a timely appeal of the
bankruptcy order;

. . . .

10. Therefore, Wagner's remaining claim for quantum
meruit in Count XII of the First Amended Complaint is
barred by the doctrine of issue preclusion and the matter
is res judicata.

5 We apply a summary judgment standard of review where the circuit
court's order reflects that it considered the bankruptcy court's order, which
was outside the pleadings, and Wagner was given a reasonable opportunity to
present all material made pertinent by WBGI's motion. Goran Pleho, LLC v.
Lacy, 144 Hawaiʻi 224, 236, 439 P.3d 176, 188 (2019) ("[A] motion seeking
dismissal of a complaint is transformed into a Hawaiʻi Rules of Civil
Procedure (HRCP) Rule 56 motion for summary judgment when the circuit court
considers matters outside the pleadings.") (citation omitted).

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The Nevada bankruptcy court's issuance of the

March 2017 order is not disputed.6 And the plain language of

that order establishes that, consistent with the circuit court's

conclusions in this case, the federal bankruptcy court had

resolved the back pay matter in WBGI's favor. The federal

bankruptcy court concluded that "Wagner has been paid more than

he claimed," and that WBGI provided "unrefuted evidence" that

Wagner's claim for back pay was "discharged as a matter of law."

The test for establishing res judicata was satisfied.

PennyMac Corp. v. Godinez, 148 Hawaiʻi 323, 327, 474 P.3d 264,

268 (2020). ("A party asserting res judicata has the burden of

establishing: (1) there was a final judgment on the merits, (2)

both parties are the same or in privity with the parties in the

original suit, and (3) the claim decided in the original suit is

identical with the one presented in the action in question.")

(cleaned up). The circuit court therefore did not err in

concluding that the federal court's bankruptcy judgment had res

judicata effect on Wagner's quantum meruit claim.

For the foregoing reasons, we affirm the Order of

Dismissal and Final Judgment Based Upon Order of Dismissal,

6 The bankruptcy court issued its Order Granting Defendants' Motion
to Dismiss, or in the Alternative, Motions for Summary Judgment; Findings of
Fact and Conclusions of Law in March 2017. Wagner did not timely appeal the
bankruptcy court's ruling. The bankruptcy court filed its Final Decree,
closing WBGI's case, in June 2017.
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entered on May 22, 2018, by the Circuit Court of the Third

Circuit.

DATED: Honolulu, Hawaiʻi, February 29, 2024.

On the briefs:
/s/ Clyde J. Wadsworth
Walter L. Wagner, Presiding Judge
Self-represented
Plaintiff- Appellant. /s/ Karen T. Nakasone
Associate Judge
Thomas L.H. Yeh,
for Defendant-Appellee. /s/ Kimberly T. Guidry
Associate Judge

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