268 P.3d 443 (Hawai

• Judge: FOLEY, Presiding Judge, REIFURTH and GINOZA, JJ.
• Parties: Walter L. WAGNER, Plaintiff-Appellant, v. WORLD BOTANICAL GARDENS, INCORPORATED, Defendant-Appellee.
• Docket Number: 28998.
• Date: 23 December 2011
• Court: Court of Appeals of Hawai'i. Intermediate
• Citation: 126 Hawai'i 190,268 P.3d 443

Page 443

268 P.3d 443 (Hawai‘i App. 2011)

126 Hawai'i 190

Walter L. WAGNER, Plaintiff-Appellant,

v.

WORLD BOTANICAL GARDENS, INCORPORATED, Defendant-Appellee.

No. 28998.

Intermediate Court of Appeals of Hawai‘i.

December 23, 2011

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Walter L. Wagner, on the briefs, Plaintiff-Appellant Pro Se.

Thomas L.H. Yeh (Tsukazaki Yeh & Moore), on the briefs, for Defendant-Appellee.

FOLEY, Presiding Judge, REIFURTH and GINOZA, JJ.

OPINION

GINOZA, J.

[126 Hawai'i 193] Plaintiff-Appellant Walter L. Wagner (Wagner), appearing pro se, appeals from the January 15, 2008 Judgment filed in the Circuit Court for the Third Circuit (circuit court) ¹ in favor of Defendant-Appellee World Botanical Gardens, Inc. (WBGI) and against Wagner as to all claims asserted by Wagner in his First Amended Complaint.

WBGI operates a botanical garden on the Island of Hawai‘i. Wagner's First Amended Complaint presented twelve claims alleging the following: eight counts for breach of contract under eight separate promissory notes from WBGI to Wagner dated between January 1, 1996 to January 1, 2003 for providing directorship services for WBGI; one count for breach of an oral contract and a subsequent novation of the original contract for providing directorship services for WBGI in 2003; one count for breach of contract under a " series of monthly oral contracts" whereby Wagner agreed to loan several of his personal credit cards for use by WBGI; one count for quantum meruit due to Wagner's services and activities between January 2, 1995 and December 31, 2003 benefitting WBGI; and one count for constructive trust as to WBGI land.

On appeal, Wagner asserts the following points of error: (1) the circuit court erred in vacating a default judgment that had been entered against WBGI on September 10, 2004; (2) the circuit court erred in quashing Wagner's service of process of the First Amended Complaint and vacating an entry of default against WBGI dated January 2, 2007; and (3) the circuit court erroneously granted summary judgment to WBGI.²

Wagner's opening brief does not meet the requirements of Rule 28(b) of the Hawai‘i Rules of Appellate Procedure (HRAP) in a variety of ways, including a failure in many respects to cite appropriately to the record and to provide authority in support of his arguments. In light of his pro se status, we address his arguments on appeal to the extent they can reasonably be discerned. See Hous. Fin. & Dev. Corp. v. Ferguson, 91 Hawai‘i 81, 85-86, 979 P.2d 1107, 1111-12 (1999); Hawaiian Props., Ltd. v. Tauala, 125 Hawai‘i 176, 181 n. 6, 254 P.3d 487, 492 n. 6 (App.2011).

We conclude that summary judgment was not warranted as to Wagner's claim based on quantum meruit, and further proceedings on remand are required as to this claim. In all other respects, we affirm the circuit court.

I. Order Setting Aside Default Judgment

The circuit court did not err in setting aside the September 10, 2004 Judgment (default judgment). The default judgment had been entered after a motion by Wagner and [126 Hawai'i 194]

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a proof hearing in August 2004 wherein Wagner made various representations, including that he and his wife, Linda Wagner, were the only officers and shareholders of WBGI and that WBGI had no objection to the default judgment.

WBGI filed its motion to set aside the default judgment on January 18, 2006, approximately one year and four months after the default judgment had been entered.

Wagner contends that WBGI's motion to set aside the default judgment was not timely under Rule 60(b) of the Hawai‘i Rules of Civil Procedure (HRCP) because it was not filed within one year of the default judgment. He thus argues that the circuit court was without jurisdiction to re-open the case. He also challenges WBGI's assertion of fraud against him and generally argues that service on WBGI was made by serving the complaint on his wife.

A. WBGI's Motion To Set Aside Default Judgment Was Timely Under HRCP Rule 60(b)(4)

Whether a motion under HRCP Rule 60(b) is timely " implicates the jurisdiction" of the circuit court. See Child Support Enforcement Agency v. Doe, 98 Hawai‘i 499, 503, 51 P.3d 366, 370 (2002).³ " [T]he existence of jurisdiction is a question of law that we review de novo under the right/wrong standard." Captain Andy's Sailing, Inc. v. Dep't of Land & Natural Res., 113 Hawai‘i 184, 192, 150 P.3d 833, 841 (2006) (citation omitted).

WBGI's motion to set aside the default judgment asserted that the default judgment was void because service of process was defective and also that Wagner had committed fraud upon the court in obtaining the default judgment. In ruling on the motion, the circuit court determined there was evidence that Wagner had made untrue representations during the August 2004 proof hearing and that the default judgment was procured by fraud or misrepresentation. See HRCP Rule 60(b)(3).⁴ The circuit court also separately determined that service of the complaint upon WBGI had not been proper. Thus, an independent basis asserted by WBGI and relied upon by the circuit court in setting aside the default judgment was that Wagner failed to properly serve WBGI pursuant to HRCP Rule 4(d)(3), the court did not have jurisdiction over WBGI when the default judgment was entered, and consequently the default judgment was void. See HRCP Rule 60(b)(4).

The circuit court had jurisdiction to entertain WBGI's motion to set aside the default judgment to the extent the motion was based on HRCP Rule 60(b)(4), which allows a court to grant relief from a void final judgment. Wagner's argument, that WBGI's motion to set aside the default judgment had to have been filed within one year of the default judgment, applies if a motion is brought pursuant to HRCP Rule 60(b)(1), (2) or (3). See HRCP Rule 60(b); Cvitanovich-Dubie v. Dubie, 125 Hawai‘i 128, 144, 254 P.3d 439, 455 (2011); Buscher v. Boning, 114 Hawai‘i 202, 214 n. 5, 159 P.3d 814, 826 n. 5 (2007);

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[126 Hawai'i 195] Child Support Enforcement Agency, 98 Hawai‘i at 504-05, 51 P.3d at 371-72. The one year limitation does not apply to motions asserting that a judgment is void and which is thus based on HRCP Rule 60(b)(4).

Instead, " a judgment may be declared void upon a HRCP Rule 60(b)(4) motion regardless of how much time has passed between entry of judgment and filing the motion." Bank of Hawai'i v. Shinn, 120 Hawai‘i 1, 11, 200 P.3d 370, 380 (2008); see also Calasa v. Greenwell, 2 Hawai'i App. 395, 398, 633 P.2d 553, 555 (1981); 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2862 (2d ed. 1995) (under FRCP Rule 60(b)(4), " there is no time limit on an attack on a judgment as void." ).

HRCP, Rule 60(b)(4), differs from the other five clauses of the rule. It does not involve a question of judicial discretion, does not require the moving party to show a meritorious defense, and is not restricted by a reasonable time requirement.

Calasa, 2 Hawai'i App. at 397, 633 P.2d at 555 (citation omitted).

The record in this case establishes that WBGI first became aware of the default judgment when it was discovered by WBGI's counsel in mid-December of 2005. Approximately one month later, WBGI filed its motion to set aside the default judgment. WBGI's motion pursuant to HRCP Rule 60(b)(4) was not precluded by any time limit.

B. The Default Judgment Was Void

" The determination of whether a judgment is void is not a discretionary issue." In re Hana Ranch Co., 3 Hawai'i App. 141, 146, 642 P.2d 938, 941 (1982); see also 12 James Wm. Moore et al., Moore's Federal Practice § 60.44 [5] [a] at 60-163 (3d ed. 2011). We thus review de novo the circuit court's ruling that the default judgment was void. See Cvitanovich-Dubie, 125 Hawai‘i at 139, 254 P.3d at 450.

" A judgment is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law." In re Genesys Data Techs., Inc., 95 Hawai‘i 33, 38, 18 P.3d 895, 900 (2001) (internal quotation marks and citation omitted); Citicorp Mortg., Inc. v. Bartolome, 94 Hawai‘i 422, 430, 16 P.3d 827, 835 (App.2000). " In order for a trial court to exercise personal jurisdiction over a defendant, the defendant must be served with a copy of the summons and the complaint pursuant to HRCP Rule 4(d)." Citicorp Mortg., Inc., 94 Hawai‘i at 430, 16 P.3d at 835 (citation omitted).

Here, the circuit court made the following findings:

3. The Complaint herein was served by Plaintiff upon his wife, Linda M. Wagner, as evidenced by the Return and Acknowledgment of Service filed herein on July 29, 2004 by Plaintiff.

4. The Return and Acknowledgment of Service also represented that Linda M. Wagner was the Secretary/Treasurer of WBGI as of July 28, 2004.

5. Records submitted by WBGI in support of its motion establish that since August 16, 2003, Annette Emerson has served as the Secretary/Treasurer of WBGI pursuant to appointment of the Board of Directors of WBGI and was serving in that capacity as of July 28, 2004.

6. WBGI has submitted evidence that WBGI's Board of Directors and officers were not notified of the Complaint and also did not have notice or knowledge of the Promissory Note upon which the Complaint was based. Plaintiff has not responded to or explained the evidence submitted by WBGI on this issue. ⁵

Wagner makes general and conclusory arguments on appeal that his wife was an officer of WBGI at the time the complaint was served on her on July 28, 2004. From our review, the record establishes otherwise. WBGI submitted the affidavits of Ken Francik and Annette Emerson, as well as business and other records, showing that when the complaint was served on Linda Wagner, Annette [126 Hawai'i 196]

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Emerson was the Secretary/Treasurer of WBGI...