NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed 

Intermediate Court of Appeals 

CAAP-18-0000487 

29-FEB-2024 

08:01 AM 

Dkt. 123 SO 

NO. CAAP-18-0000487

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 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

2 
 

 

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 

(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.

3 
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 

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). 

4 
 

 

. . . . 

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 

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). 

5 
 

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 

The Nevada bankruptcy court's issuance of the 

March 2017 order is not disputed. 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." 

6 

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. 

6 
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 

entered on May 22, 2018, by the Circuit Court of the Third 

Circuit. 

DATED: Honolulu, Hawaiʻi, February 29, 2024. 

7 

 

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