Department of Education v. Roberts

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-AUG-2022
08:04 AM
Dkt. 66 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, DEPARTMENT OF EDUCATION,
BY AND THROUGH ITS ATTORNEY GENERAL, Plaintiff-Appellee, v.
SANDRA J. ROBERTS, Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CIVIL NO. 1RC16-1-07889)

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

Self-represented Defendant-Appellant Sandra J. Roberts

(Roberts) appeals from the District Court of the First Circuit,

Honolulu Division's1 May 3, 2018 Judgment, entered in favor of
Plaintiff-Appellee State of Hawai#i, Department of Education

(DOE).

On appeal, Roberts contends that (1) the district court

erred when it granted summary judgment to DOE because there were

genuine issues of material fact regarding whether there was a

breach of contract and unjust enrichment; (2) the district court

abused its discretion by not allowing her leave to amend her

1
The Honorable Hilary B. Gangnes presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

"answer" to DOE's second motion for summary judgment; and (3) her

educational records were unlawfully obtained.2

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, we resolve this

appeal as follows, and affirm.

(1) Roberts contends that the district court erred

when it granted summary judgment to DOE because (a) the agreement

was an "adhesion contract," (b) "it [was] impossible for [her] to
perform[,]" (c) "there [was] no evidence that tuition stipend

payments totaling $6,996.00 were made," and (d) her grievances

created issues of material fact.

On appeal, the grant or denial of summary judgment is

reviewed de novo. See State ex rel. Anzai v. City & Cnty. of

Honolulu, 99 Hawai#i 508, 515, 57 P.3d 433, 440 (2002).

"[S]ummary judgment is appropriate if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to
judgment as a matter of law." Nuuanu Valley Ass'n v. City &

Cnty. of Honolulu, 119 Hawai#i 90, 96, 194 P.3d 531, 537 (2008)

(citation omitted).

"A fact is material if proof of that fact would have

the effect of establishing or refuting one of the essential

2
Hawai#i Rules of Appellate Procedure (HRAP) Rule 1(d) provides in
part that "[a]ttorneys and pro se parties are deemed to be aware of, and are
expected to comply with, all of the provisions of these rules." Roberts'
opening brief, however, does not comply with HRAP Rule 28(b), and her
arguments are addressed "to the extent they can reasonably be discerned" to
promote equal access to justice for pro se litigants. Wagner v. World
Botanical Gardens, Inc., 126 Hawai#i 190, 193, 268 P.3d 443, 446 (App. 2011).

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elements of a cause of action or defense asserted by the

parties." Id. "The evidence must be viewed in the light most

favorable to the non-moving party." Id. Further, Hawai#i Rules

of Civil Procedure (HRCP) Rule 56(e)3 provides in relevant part:
When a motion for summary judgment is made . . . , an
adverse party may not rest upon the mere allegations or
denials of the adverse party's pleading, but the adverse
party's response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there
is a genuine issue for trial. If the adverse party does not
so respond, summary judgment, if appropriate, shall be
entered against the adverse party.

(Emphases added.) Thus, "[a] party opposing a motion for summary

judgment cannot discharge his or her burden by alleging

conclusions[.]" Henderson v. Prof'l Coatings Corp., 72 Haw. 387,

401, 819 P.2d 84, 92 (1991) (citation omitted). "Bare

allegations or factually unsupported conclusions are insufficient

to raise a genuine issue of material fact[.]" Reed v. City &

Cnty. of Honolulu, 76 Hawai#i 219, 225, 873 P.2d 98, 104 (1994)

(citation omitted).

(a) First, Roberts does not provide any evidence or

legal analysis to support her allegation that she was somehow

coerced into signing the agreement, that there was unequal

bargaining strength between the parties, or that the agreement
unfairly limited the obligations and liabilities of, or otherwise

unfairly advantaged, DOE. See Fujimoto v. Au, 95 Hawai#i 116,

156, 19 P.3d 699, 739 (2001) (citation omitted). Moreover,

nothing in the record indicates that Roberts did not understand

the terms of the agreement, or that the agreement was somehow

3
The District Court Rules of Civil Procedure ( DCRCP) Rule 56(e)
adopted HRCP Rule 56(e), with changes to gender neutral language.

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unconscionable, oppressive, or outside of the parties' reasonable

expectation so as to be unenforceable.

The Felix stipend program was offered to special

education teaching candidates as a way for DOE to address its

need for qualified special education teachers in Hawai#i. In

exchange for a tuition stipend, Roberts was required to

(1) satisfactorily complete all program requirements, (2) obtain

licensure as a special education teacher, and (3) accept

employment for three years with DOE as a licensed special
education teacher, if offered.

But, Roberts performed poorly in her practicum course.

She re-enrolled and performed poorly again, therefore failing for

purposes of the licensure program. Roberts was allowed to

continue in the non-licensure program, but she was dismissed for

failing to complete the program within the allotted seven-year

duration, and the one-year extension she had been granted.

Because Roberts was dismissed from the program, the terms of the

agreement dictated that she repay DOE the entire amount of

tuition assistance received.
(b) Second, Roberts' contention that DOE made it

impossible for her to perform the agreement also fails. "It is a

basic principle of contract law that the promisor ordinarily is

bound to perform his or her agreement according to its terms or,

if he or she unjustifiably fails to perform, to respond in

damages for his or her breach of the contract." Warner v. Denis,

84 Hawai#i 338, 347, 933 P.2d 1372, 1381 (App. 1997) (cleaned

up). "Performance of a contract is excused only when because of

an unforeseeable occurrence performance becomes impossible[.]"

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Harris v. Waikane Corp., 484 F. Supp. 372, 380 (D. Haw. 1980).

"For impossibility to be a viable excuse, that impossibility must

usually be objective, such that the contract cannot be performed

by anyone." Id.

Here, Roberts does not provide any evidence or legal

arguments to support her allegation. Moreover, the record

indicates that Roberts' failure to perform was a result of her

own actions. Kahili, Inc. v. Yamamoto, 54 Haw. 267, 272, 506

P.2d 9, 12 (1973) ("The general rule is that where a person by
his own act makes impossible the performance or the happening of

a condition[,] such nonperformance should not relieve him from

his obligation under a contract.") (citation omitted). Although

Roberts received adequate grades in her lecture courses, she

performed poorly in her practicum course and failed for purposes

of the licensure program. The record also indicates that Roberts

failed to demonstrate the conduct and disposition expected of a

licensed special education teacher.

(c) Third, contrary to Roberts' contention that "unjust

enrichment cannot be established" because DOE presented "no
evidence that tuition stipend payments totaling $6,996.00 were

made[,]" she admitted to receiving the benefit of the tuition

stipend that was paid directly to the University of Hawai#i (UH).

In addition, the record also indicates DOE awarded the tuition

stipend to Roberts.

(d) Fourth, evidence of Roberts' numerous grievances

against UH, DOE, and the Hawai#i State Teachers Association did

not create genuine issues of material fact. Viewing that

evidence in the light most favorable to Roberts, there is no

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showing that Roberts' grievances were material to her dismissal

from the DOE program.

Based on the discussion above, the district court did

not err in granting summary judgment in favor of DOE and against

Roberts because there were no genuine issues of material fact,

and DOE was entitled to a judgment against Roberts as a matter of

law. See Nuuanu Valley Ass'n, 119 Hawai#i at 96, 194 P.3d at

537.

(2) Roberts next contends that the district court
abused its discretion by not allowing her leave to amend her

"answer" to DOE's second motion for summary judgment. "A denial

of leave to amend [a pleading] under [DCRCP] Rule 15(a) is within

the discretion of the trial court" and is reviewed under the

abuse of discretion standard. Gonsalves v. Nissan Motor Corp. in

Hawai#i, Ltd., 100 Hawai#i 149, 158, 58 P.3d 1196, 1205 (2002)

(citation omitted).

Here, Roberts' response to DOE's second motion for

summary judgment, although titled as an "answer," was drafted as

a memorandum in opposition to DOE's second motion for summary
judgment. It was not an answer to a complaint, cross-claim, or

counterclaim as contemplated by DCRCP Rules 15(a) and 7(a). And

without leave of the court, Roberts filed a supplemental "answer"

attaching numerous grievance forms. Nonetheless, as discussed

above, the grievances filed did not prove a genuine issue of

material fact existed. Therefore, Roberts failed to demonstrate

that the district court abused its discretion.

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(3) Contrary to Roberts' argument, under the facts of

this case, Roberts' educational records were properly obtained.

Pursuant to UH's "Procedures Relating to Protection of

the Educational Rights and Privacy of Students," DOE was not

required to obtain a court order or subpoena to access Roberts'

educational records.4 Furthermore, the Family Educational Rights

and Privacy Act of 1974 (FERPA) allows an educational agency or

institution to disclose personally identifiable information from

a student's education record, without the student's consent, if

"an educational agency or institution initiates legal action

against a parent or student." 34 CFR § 99.31(a)(9)(iii)(A). The

"educational agency or institution may disclose to the court,

without a court order or subpoena, the education records of the

student that are relevant for the educational agency or

institution to proceed with the legal action as plaintiff." Id.

Disclosure without the student's consent is also

appropriate if the "disclosure is in connection with financial

aid for which the student has applied or which the student has

received, if the information is necessary for such purposes as to
. . . [e]nforce the terms and conditions of the aid." 34 CFR

§ 99.31(a)(4)(i)(D). And FERPA "does not create a private right

of action . . . under 42 U.S.C. § 1983." Desyllas v. Bernstine,

351 F.3d 934, 940 n.2 (9th Cir. 2003).

Based on the foregoing, we hold that the district court

did not err in granting DOE's motion for summary judgment and

4
UH's Administrative Procedures can be found at:
https://www.hawaii.edu/policy/index.php?action=viewPolicy&policySection=ap&pol
icyChapter=7&policyNumber=022&menuView=closed (last visited Aug. 16, 2022).

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awarding money damages. Therefore, we affirm the district

court's May 3, 2018 Judgment.

DATED: Honolulu, Hawai#i, August 22, 2022.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Sandra J. Roberts,
Self-represented /s/ Karen T. Nakasone
Defendant-Appellant. Associate Judge

Lyle T. Leonard, /s/ Sonja M.P. McCullen
Deputy Attorney General, Associate Judge
for Plaintiff-Appellee.

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