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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-15-0000711
                                                              30-JUN-2016
                                                              09:13 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                        ROBERT E. WIESENBERG,
                   Petitioner/Plaintiff-Appellant,

                                    vs.

   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.


                            SCWC-15-0000711

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

                              JUNE 30, 2016

 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
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(“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


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University of Hawai#i at Mânoa’s (“UH-Mânoa”) 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-Mânoa

as the defendant and seeking more than $7 million in damages he

alleged he suffered because UH-Mânoa 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-Mânoa 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

     1
          The Honorable Virginia L. Crandall presided over the case.

     2
          By statute, UH may only be sued in its corporate name.

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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:




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                                 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 Final Amended

Judgment states:




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                          FINAL AMENDED JUDGMENT

                Judgment on the Pleadings having been granted to
          Defendant UNIVERSITY OF HAWAI#I, as against Plaintiff
          ROBERT E. WIESENBERG, by Order filed May 5, 2015,
          Judgment against Plaintiff ROBERT E. WIESENBERG and in
          favor of Defendant UNIVERSITY OF HAWAI#I, as was filed
          on June 3, 2015.
                Pursuant to the July 31, 2015 Order Granting
          Defendant UNIVERSITY OF HAWAII’S Motion for Attorneys’
          Fees, Filed June 4, 2015, and in accordance with Rule
          54(d)(2) of the Hawai#i Rules of Civil Procedure, and
          § 607-14 of the Hawai#i Revised Statutes, the court
          awarded Defendant UNIVERSITY OF HAWAI#I reasonable
          attorneys’ fees as against Plaintiff ROBERT E.
          WIESENBERG, in the amount of $14,543.75.
                IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
          a final judgment be, and hereby is, entered in
          accordance with (1) the May 5, 2015 Order Granting
          Defendant UNIVERSITY OF HAWAII’S Motion for Judgment
          on the Pleadings, Filed December 5, 2014; and (2) the
          July 31, 2015 Order Granting Defendant UNIVERSITY OF
          HAWAII’S Motion for Attorneys’ Fees, Filed June 4,
          2015, awarding Defendant UNIVERSITY OF HAWAI#I
          attorneys’ fees in the amount of $14,543.75, as
          against Plaintiff ROBERT E. WIESENBERG, on all claims
          and causes of action asserted by Plaintiff in the
          Amended Complaint filed on October 8, 2013. The
          judgment shall bear statutory interest at a rate of
          ten per cent a year following from the date of its
          entry until payment.
                This FINAL AMENDED 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 FINAL AMENDED JUDGMENT be
          entered forthwith.

          2.    The Appeal

     On September 30, 2015, Wiesenberg filed a notice of appeal

in the ICA appealing from the Final Amended Judgment and all

underlying orders issued by the circuit court in the case.

     UH subsequently moved to dismiss the appeal as untimely,

contending that Wiesenberg did not file his notice of appeal


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within thirty days after the circuit court entered the July 31,

2015 post-judgment order disposing of the motion for attorneys’

fees.   Wiesenberg opposed the motion, arguing that the appeal was

timely because the Final Amended Judgment substantially and

materially amended the Original Judgment by including attorneys’

fees and post-judgment interest and, therefore, the thirty-day

appeal deadline started to run from the date the Final Amended

Judgment was entered by the court.        Wiesenberg further argued
that UH “lulled” him to wait before filing the notice of appeal

by submitting the proposed Final Amended Judgment before the 30-

day appeal period from the post-judgment order disposing of the

motion for attorneys’ fees had run.

     On February 16, 2016, the ICA granted UH’s motion to dismiss

and entered the Dismissal Order dismissing the appeal for lack of

jurisdiction on the ground that the appeal was untimely.            The ICA

determined that the Original Judgment was the operative judgment

for purposes of the appeal and since the appeal deadline was

tolled when UH timely filed its motion for attorneys’ fees and

costs, the deadline for filing the appeal was thirty days from

the July 31, 2015 post-judgment order on the attorneys’ fee

motion.   The ICA concluded that the appeal deadline did not run

from the filing of the Final Amended Judgment because the

separate judgment requirement does not apply in the post-judgment

context and, therefore, the Final Amended Judgment was

superfluous.   Citing Ditto v. McCurdy, 103 Hawai#i 153, 80 P.3d


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974 (2003), the ICA explained that “the separate judgment

requirement articulated in Jenkins [v. Cades Schutte Fleming &

Wright, 76 Hawai#i 115, 869 P.2d 1334 (1994)] is inapposite in

the post-judgment context” and that “[o]nce a circuit court has

entered an appealable final judgment and an appealable post-

judgment order, any subsequent judgment on the same appealable

post-judgment order is superfluous[.]”         The ICA also concluded

that the appeal deadline did not run from the filing of the Final
Amended Judgment because, even though the circuit court entered

two judgments on the same substantive claim, the inclusion of the

award of attorneys’ fees and statutory interest in the Final

Amended Judgment did not substantially or materially amend the

substantive language of the Original Judgment:

                When, as here, a trial court has entered two
          judgments on the same substantive claims, the
          following general rule applies:

                The general rule is that where a judgment
                is amended in a material and substantial
                respect, the time within which an appeal
                from such determination may be taken
                begins to run from the date of the
                amendment, although where the amendment
                relates only to the correction of a
                clerical error, it does not affect the
                time allowed for appeal.

          Poe v. Hawai#i Labor Relations Board, 98 Hawai#i 416,
          418, 49 P.3d 382, 384 (2002) (citation, internal
          quotation marks, and ellipsis points omitted; emphasis
          added); State v. Mainaaupo, 117 Hawai#i 235, 246 n.6,
          178 P.3d 1, 12 n.6 (2008).

                If the amendment of a final judgment or
                decree for the purpose of correcting a
                clerical error either materially alters
                rights or obligations determined by the

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                  prior judgment or decree or creates a
                  right of appeal where one did not exist
                  before, the time for appeal should be
                  measured from the entry of the amended
                  judgment. If, however, the amendment has
                  neither of these results, but instead
                  makes changes in the prior judgment which
                  have no adverse effect upon those rights
                  or obligations or the parties’ right to
                  appeal, the entry of the amended judgment
                  will not postpone the time within which an
                  appeal must be taken from the original
                  decree.

            Poe v. Hawai#i Labor Relations Board, 98 Hawai#i at
            418, 49 P.3d at 384 (citations, internal quotation
            marks, and original brackets omitted; emphasis added).

The ICA determined that the Final Amended Judgment did not amend

the substantive language of the Original Judgment because (1) the

inclusion of the attorneys’ fees award was superfluous for the

purpose of perfecting the right to appeal from the substantial

adjudication that was already included in the Original Judgment,

and (2) the inclusion of interest was superfluous because it

simply reiterated the statutory right to obtain interest on the

attorneys’ fees award.3

            3.    The Application for Writ of Certiorari

      On March 16, 2016, Wiesenberg timely filed an application

for writ of certiorari, which this court accepted for review.

Wiesenberg presents two questions:

      (1)   Did the ICA gravely err in holding that Wiesenberg’s


      3
         In addressing Wiesenberg’s argument that UH “lulled” him into
inaction by drafting a proposed amended judgment, the ICA explained that, even
if true, “the failure to file a timely notice of appeal in a civil matter is a
jurisdictional defect that the parties cannot waive and the appellate courts
cannot disregard in the exercise of judicial discretion.”

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            September 30, 2015 notice of appeal was untimely under
            HRAP Rule 4(a)(3)?

     (2)    Did the ICA gravely err in determining that “lulling”
            does not apply?

Wiesenberg argues that the ICA should have treated UH’s request

to amend the Original Judgment as a post-judgment motion under

HRAP Rule 4(a)(3), should have recognized that the notice of

appeal was timely under Poe because the Final Amended Judgment

altered the Original Judgment in a material and substantial
respect, and should have determined that Wiesenberg was “lulled”

into inaction based on the confusion created when UH prepared and

submitted for the court’s approval the Final Amended Judgment.

Wiesenberg maintains that the ICA’s decision “will strike a

grievous blow not only to Mr. Wiesenberg’s quest for justice, but

to the conditions of fair play that can be expected by future

litigants.”

     UH timely filed an opposition.        UH argues that the ICA

correctly recognized that the Final Amended Judgment did not

postpone the appeal deadline and, therefore, Wiesenberg’s appeal

is untimely.   UH contends that the submission of the proposed

Final Amended Judgment was not a motion under HRAP Rule 4(a)(3),

the Final Amended Judgment “merely re-stated the award of fees to

[UH] and the applicable default interest (HRS § 478-3)” and “did

not itself materially affect the substantive rights of the

parties,” and UH did not “lull” Wiesenberg to miss the appeal

deadline.


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     Wiesenberg addressed UH’s arguments in a reply and

reiterated that his appeal was timely.

                            II.   Discussion

     The sole issue before this court is whether Wiesenberg’s

September 30, 2015 notice of appeal was timely.          The answer

depends on whether the July 31, 2015 post-judgment order on the

motion for attorneys’ fees or the September 21, 2015 Final

Amended Judgment triggered the time from which to calculate the
appeal deadline.

     A.    The Appeal Deadline and the Effect of a Tolling Motion

     Generally, appeals from civil judgments must be filed within

30 days after entry of the final judgment.         See HRAP Rule 4(a)(1)

(“When a civil appeal is permitted by law, the notice of appeal

shall be filed within 30 days after entry of the judgment or

appealable order.”).     The initial appeal deadline may be

extended, however, by the timely filing of a post-judgment motion

for attorneys’ fees and costs.       Specifically, “[i]f any party

files a timely motion . . . for attorney’s fees or costs, the

time for filing the notice of appeal is extended until 30 days

after entry of an order disposing of the motion[.]”           HRAP Rule

4(a)(3).

     The Original Judgment was filed on June 3, 2015.            At that

moment, Wiesenberg had 30 days to file his notice of appeal.                See

HRAP Rule 4(a)(1).    However, when UH filed a timely motion for

attorneys’ fees, the deadline to appeal was tolled and thereafter


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extended until thirty days after the court entered its July 31,

2015 order regarding attorneys’ fees.         See HRAP Rule 4(a)(3).         If

this was the last document filed in the record of the case,

pursuant to HRAP Rule 4(a)(3)’s plain language, the deadline for

Wiesenberg to file his notice of appeal was August 31, 2015.4

     B.     The Effect of a Final Amended Judgment on the Appeal
            Deadline

     The July 31, 2015 post-judgment order on UH’s motion for
attorneys’ fees was not the last document in the record of the

case, however.     Instead, UH’s counsel prepared the Final Amended

Judgment, Wiesenberg’s counsel signed the Final Amended Judgment,

and the circuit court approved and filed the Final Amended

Judgment.    The issue turns then on the operative effect, if any,

of the Final Amended Judgment for purposes of HRAP Rule 4’s

appeal deadline.

     In 2000, the supreme court addressed this issue in Korsak v.

Hawaii Permanente Med. Grp., 94 Hawai#i 297, 304, 12 P.3d 1238,

1245 (2000).    There, the court adopted the following rule as a

guide in determining whether an amendment of an order or judgment

affects the time for appeal:




      4
         The actual thirty day deadline was Sunday, August 30, 2015. Because
the deadline fell on a Sunday, however, the deadline was extended to the
following day. See HRAP Rule 26(a) (“In computing any period of time
prescribed by these rules, . . . [t]he last day of the period shall be
included, unless it is a Saturday, Sunday, or a legal holiday, in which event
the period extends until the end of the next day that is not a Saturday, a
Sunday, or a legal holiday.”)

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          The general rule is that where a judgment is amended
          in a material and substantial respect, the time within
          which an appeal from such determination may be taken
          begins to run from the date of the amendment, although
          where the amendment relates only to the correction of
          a clerical . . . error, it does not affect the time
          allowed for appeal.

          Moreover, if the amendment of a final judgment or
          decree for the purpose of correcting a “clerical
          error” either materially alters rights or obligations
          determined by the prior judgment [or decree] or
          creates a right of appeal where one did not exist
          before, the time for appeal should be measured from
          the entry of the amended judgment. If, however, the
          amendment has neither of these results, but instead
          makes changes in the prior judgment which have no
          adverse effect upon those rights or obligations or the
          parties right to appeal, the entry of the amended
          judgment will not postpone the time within which an
          appeal must be taken from the original decree.

Korsak, 94 Hawai#i at 304, 12 P.3d at 1245 (emphasis added).

     A few years after Korsak was decided, the supreme court

applied its rule in Poe v. Hawai#i Labor Relations Board, 98

Hawai#i 416, 49 P.3d 382 (2002).       In Poe, the circuit court sua

sponte entered an amended judgment to correct the caption of the

original judgment by changing the designation of one party from

“respondent-appellee” to “intervenor-appellee.”          Poe, 98 Hawai#i

at 417-18, 49 P.3d at 383-84.       A majority of the court determined

that the correction was clerical in nature and had no adverse

effect upon any rights or obligations or the parties’ right to

appeal and, therefore, the notice of appeal was due no later than

thirty days after the original judgment was filed.           See id. at

419, 49 P.3d at 385.

      Korsak and Poe clearly delineate that, in situations where


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the court has entered two judgments on the same substantive

claim, commencement of the appeal deadline depends on whether the

amended judgment amends the original judgment in a material and

substantial way -- either materially altering the rights or

obligations of the parties determined by the original judgment or

creating a right to appeal where none previously existed.             If it

does, then the appeal deadline runs from the date of the amended

judgment; if it does not, then the appeal deadline runs from the
date of the original judgment.

     C.   The Final Amended Judgment Amended the Original
          Judgment in a Material and Substantial Respect

     Thus, consistent with Korsak and Poe, resolution of the

jurisdictional issue raised by the Dismissal Order is essentially

grounded on one fundamental question -- Does the Final Amended

Judgment amend the Original Judgment in a material and

substantial respect?     We answer this question in the affirmative.

     The changes between the Original Judgment and the Final

Amended Judgment are not clerical -- the changes are material and

substantive inasmuch as they alter the rights and obligations of

the parties.   While the Original Judgment simply reiterates the

prevailing party and includes the required language that all

claims have been resolved, the Final Amended Judgment includes

additional information on the award of attorneys’ fees as well as

statutory interest:




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        Original Judgment                        Final Amended Judgment
                JUDGMENT                             FINAL AMENDED JUDGMENT

     IT IS HEREBY ORDERED, ADJUDGED, AND         Judgment on the Pleadings
DECREED that Judgment be and hereby is,     having been granted to Defendant
entered in favor of Defendant UNIVERSITY    UNIVERSITY OF HAWAI#I, as against
OF HAWAI#I and against Plaintiff ROBERT     Plaintiff ROBERT E. WIESENBERG, by Order
E. WIESENBERG on all claims herein.         filed May 5, 2015, Judgment against
     This Judgment fully and finally        Plaintiff ROBERT E. WIESENBERG and in
resolves all claims between the parties     favor of Defendant UNIVERSITY OF HAWAI#I,
and no other claims remain in this          as was filed on June 3, 2015.
proceeding.                                      Pursuant to the July 31, 2015 Order
     There being no reason for delay, the   Granting Defendant UNIVERSITY OF HAWAII’S
Court expressly directs that this           Motion for Attorneys’ Fees, Filed June 4,
Judgment be entered forthwith.              2015, and in accordance with Rule
                                            54(d)(2) of the Hawai#i Rules of Civil
                                            Procedure, and § 607-14 of the Hawai#i
                                            Revised Statutes, the court awarded
                                            Defendant UNIVERSITY OF HAWAI#I
                                            reasonable attorneys’ fees as against
                                            Plaintiff ROBERT E. WIESENBERG, in the
                                            amount of $14,543.75.
                                                 IT IS HEREBY ORDERED, ADJUDGED, AND
                                            DECREED that a final judgment be, and
                                            hereby is, entered in accordance with (1)
                                            the May 5, 2015 Order Granting Defendant
                                            UNIVERSITY OF HAWAII’S Motion for
                                            Judgment on the Pleadings, Filed December
                                            5, 2014; and (2) the July 31, 2015 Order
                                            Granting Defendant UNIVERSITY OF HAWAII’S
                                            Motion for Attorneys’ Fees, Filed June 4,
                                            2015, awarding Defendant UNIVERSITY OF
                                            HAWAI#I attorneys’ fees in the amount of
                                            $14,543.75, as against Plaintiff ROBERT
                                            E. WIESENBERG, on all claims and causes
                                            of action asserted by Plaintiff in the
                                            Amended Complaint filed on October 8,
                                            2013. The judgment shall bear statutory
                                            interest at a rate of ten per cent a year
                                            following from the date of its entry
                                            until payment.
                                                 This FINAL AMENDED 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 FINAL
                                            AMENDED JUDGMENT be entered forthwith.


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The additional language creates new obligations and legal

consequences that did not exist under the Original Judgment.                 For

example, by including the award of attorneys’ fees,5 the Final

Amended Judgment was a money judgment upon which UH could recover

interest.6     Moreover, UH may execute on the Final Amended

Judgment by recording it as a judgment lien against Wiesenberg’s

property7 or initiating collection and garnishment actions.8              The

effect of the Final Amended Judgment provide serious legal
implications for Wiesenberg -- legal implications that did not

exist under the Original Judgment.          These implications are not

clerical in nature; rather, they are implications that altered

the Original Judgment in a material and substantial respect.                 The

Final Amended Judgment, therefore, was the operative document for

purposes of this appeal.




      5
         We recognize that the circuit court need not reduce a post-judgment
award of attorneys’ fees and costs to a separate judgment for purposes of an
appeal. See Ditto, 103 Hawai#i at 160, 80 P.3d at 981. However, because the
court entered the Final Amended Judgment, this court’s review, for purposes of
determining whether the appeal was timely perfected, turns on an analysis of
the effect of the amendments.
      6
         See HRS § 478-3 (2008) (“Interest at the rate of ten per cent a year,
and no more, shall be allowed on any judgment recovered before any court in
the State, in any civil suit.”).

      7
         See HRS § 636-3 (Supp. 2015) (“Any money judgment, order, or decree
of a state court or the United States District Court for the District of
Hawaii shall be a lien upon real property when a copy thereof, certified as
correct by a clerk of the court where it is entered, is recorded in the bureau
of conveyances.”).
      8
          See, e.g., HRS § 652-1(b) (1993) (providing for the garnishment of
wages).

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      Accordingly, the deadline for Wiesenberg to file his notice

of appeal commenced from the date the circuit court entered the

Final Amended Judgment on September 21, 2015.           Wiesenberg,

therefore, had up to and including October 21, 2015 to file his

notice of appeal.     Wiesenberg filed his notice of appeal on

September 30, 2015.      The appeal is timely.9

                             III.   Conclusion

      Based on the foregoing, the ICA’s February 16, 2016

Dismissal Order is vacated and the matter is remanded to the ICA

for disposition of the appeal.
 Mark G. Valencia and                   /s/ Mark E. Recktenwald
 Matthew A. Cohen
 for petitioner                         /s/ Paula A. Nakayama

 Paul Alston, John-Anderson             /s/ Sabrina S. McKenna
 L. Meyer, and Maile Osika,
 Carrie K. S. Okinaga, and
 Ryan M. Akamine                        /s/ Richard W. Pollack
 for respondent
                                        /s/ Michael D. Wilson




      9
         In light of the disposition of the timeliness of the appeal, this
court need not address Wiesenberg’s “lulling” argument.

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