Opposition Brief — Richardson v. Lane

Supreme Court, U.S,

EILED

No. 87-472 oct 21 war

SOSRRERSHSEANIOL, UR,

CLERK

{> }

In The

Supreme Court of the United States

October Term, 1987

ne

—_

LEON D. RICHARDSON and MARGIE J. RICHARD-

SON, husband and wife, and COPTHORNE N. V., a

Netherland Antilles corporation,

Petitioners,

HOWARD T. LANE, WILLIS SINSABAUGH, WATER-

FRONT PROPERTIES, INC., a Hawaii corporation,

and THE FIDELITY STANDARD LIFE INSUR-

ANCE COMPANY,

Respondents.

diineiccume ee

JOINT BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

t>

Vv

WAYNE NASSER BRUCE C. BIGELOW

Counsel of Record Counsel of Record

MICHAEL W. GIBSON WESLEY W. ICHIDA

LORRIN B. HIRANO CATHY A, LEE

ASHFORD & WRISTON CASE & LYNCH

235 Queen Street, 7th Floor 2500 & 2600 Mauka Tower

Honolulu, Hawaii 96813 737 Bishop Street

Telephone No. (808) 524-4787 Honolulu, Hawaii 96813

Telephone No. (808) 547-5400

Counsel for Respondent

Howard T. Lane Counsel for Respondents

Willis Sinsabaugh and

Waterfront Properties, Inc.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

I.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Hawaii Intermediate Court of Ap-

peals correctly affirmed the trial court’s dismissal of Pe-

titioners’

complaint for lack of prosecution, pursuant to

Hawaii R. Civ. P. 41(b), where, on the morning that jury

trial was to begin, the Petitioners had left the jurisdiction

and Petitioners’

attorney left the courtroom and deliber-

ately refused to comply with the trial court’s order to

proceed with their case?

2. Whether the Hawaii Intermediate Court of Ap-

peals correctly declined to review the trial court’s pre-

trial orders where to do so would violate the State of

Hawaii’s policies (1) against piecemeal appeals and (2)

in favor of requiring an appellant to present an adequate

record for the purposes of appellate review?

em

il

II.

TABLE OF CONTENTS

Page

I. QUESTIONS PRESENTED FOR REVIEW ... i

iH. TABLE OF CONTR ee occ

it. ZABLE OF AUT tee oe iv

iV. STATEMENT OF Tue CABS 2... 1

, Ae! ih 5, y ne cane mM N IM arn TEAST ATs. 2 7

A. THERE ARE NO SPECIAL AND IM-

PORTANT REASONS FOR GRANTING

THE PETITION FOR WRIT OF CER-

TIORAB. IN Tris CABS 7

B. CERTIORARI SHOULD NOT BE GRANT-

ED AS THERE ARE INDEPENDENT

AND ADEQUATE STATE GROUNDS

WHICH SUPPORT THE DECISION OF

THE HAWAIT INTERMEDIATE COURT

OP AES MA oiikincec ace enpheceataeie 8

C. THE PRETRIAL ORDERS WERE NEI-

THER DISPOSTTIVE OF THE CASE NOR

FINAL FOR THE PURPCSE OF APPEAL 10

D. THE DECISION OF THE HAWATL INTER-

MEDIATE COURT OF APPEALS DOES

NOT CONFLICT WITH DECISIONS OF

py. tt Bis i): Semen WE

K. THE DECISION OF THE HAWAIT IN-

TERMEDIATE COURT OF APPEALS IS

CONSISTENT WITH THE DECISIONS

OF THE FEDERAL COURTS OF AP-

gf FAT , Sen AORN RP ncn enenee nae

ill

TABLE OF CONTENTS—Continued

Page

F. HAWAII’S CIVIL JUSTICE SYSTEM

PROTECTS PETITIONERS’ CONSTITU-

TIONAL RIGHTS | Ricks setenen cleans -~ 36

G. THE PETITION FOR WRIT OF. CER-

TIORARI SHOULD BE DENIED AS UN-

Sees USP ee 17

ee Ft) ) 0 can Ess Sey oe

Pigg i) epoca ae

lv

IIT.

TABLE OF AUTHORITIES

Page(s)

CasEs

Anderson v. Allstate Insurance, 630 F.2d 677 (9th

Cir. 1980) ....... OE ENE PB tres BA MLA OD tee 10, 11, 16

Andrews v. Louisville & N.R. Co.. 406 U.S. 320 (1972) 8

Catlin v. United States, 324 U.S. 229 (1945) ou. =D

Department of Banking v. Pink, 317 U.S. 264 (1942) . 18

Doe V v. Roe V, 5 Hawaii App. 610, 704 P.2d 940

ES petesteae IER ete ese cineca, Rank Aes a NT RAO 9

F.C.C. v. League of Women Voters, 468 U.S. 364

(ES Ret aR nen CAREER AO, STE Cre ON Se ran re oe See 20

Fackelman v. Bell, 564 F.2d 734 (5th Cir. 1977) .............. 17

Firestone Tire d Rubber Co. v. Risjord, 449 U.S.

IRIN aren seme ei on Te Pir ah re Ce 11

Forgay v. Conrad, 47 U.S. (6 How.) 201 (1848) 20000. _ 10

Gardner v. Westinghouse Broadcasting Co., 487

ek OE 8 | ROKR meee ict ok cae ae lps Oat PO RR 11

Glover v. Fong, 39 Hawaii 308 (1952) no ceeeeceeeceeceeeeee 11

H.R. Livermore Corp. v. Aktienqesellschaft

Gebruder, 432 F.2d 689 (D.C. Cir. 1970) 17

Hammond Packing Co. v. Arkansas, 212 U.S. 322

(A gE ORO I RE NURI UTS FCN en AT eal PA teh 14

Huey v. Teledyne. Inc., 608 F.2d 1234 (9th Cir.

| Reg ERT Peete TEE eit Ors CERRO aL -ce Se aEN oe

Hughley v. Eaton Corporation, 572 F.2d 557 (6th

ov Ag: | ASD RU niaeet aie cae NER Pls SesrcheDey 5 Oe eames 16

Link v. Wabash Railroad Co., 370 U.S. 626 (1962) 7,14

Marquette Nat. Bank v. First of Omaha Corp.,

(ie Ek. } eee eanthaneesonnels OraS aan emOnne ae

TABLE OF AUTHORITIES—Continued

Page(s)

Marshali v. Sielaff, 492 F.2d 917 (3d Cir. 1974) .....14, 15, 16

McCarthy v. Jaress, — Wawaii App. —, 711 P.2d

PI eee eee 19

McKeague v. Talbert, 3 Hawaii App. 646, 658 P.2d

Pe NE eo ciel banged eetiaakcaeeees PRM ME SO 11

Powers v, Ellis, 55 Hawaii 414, 520 P.2d 431 (1971) .... 9

Puget Sound Power & L. Co. v. King County, 264

EE anf | RCRD ade er meet le WIE Bos 6G Cee 19

Reif v. A.H. Robbins, 90 F.R.D. 526 (E.D. Pa. 1981) . 15

Richardson v. Lane, No. 11353, slip op. (Hawaii

Intermediate Court of Appeals, April 3, 1987,

Oe SEY 5 ee ee ee 2,6

Richardson-Merrell, Inc. v. Keller, 472 U.S. 424 (1985) 11

Societe International Pour Participations Indus-

trielles et Commerciales v. Rogers, 357 US.

a S| pete caer tone NCE ati hn dtl sn ae etl 14

State v. Iaea, 55 Hawaii 80, 515 P.2d 219 (1973) uw. 11

Sullivan v. Pacific Indemnity, 566 F.2d 444 (3d

RE enn cw gence ee eee 16

Union Bldg. Material Corp. v. Kakaako Corp.,

) Hawaii App. 146, 682 P.2d 82 (1984) oo. 9

United States v. Hollywood Motor Car Company,

id, Se a ee Cee? a eee . ll

White v. New Hampshire Dept. of Employment

Security, 466 U8. 406 (196)) 20

Wolfe v. North Carolina, 364 U.S. 177 (1959) ww. ~=—-10

vi

TABLE OF AUTHORITIES—Continued

Page(s)

CONSTITUTIONAL PROVISIONS

ge EA 2 5 Santer ee a een oa ens 1 AoE 8

er en a ne cates 17

STATUTES

Section 601-7(b), Hawaii Rev. Stat. 00. 4

Section 641-1(b), Hawaii Rev. Stat. occ ccssssssscceeeee 9

Rvutes or EvipENcE

Hawaii Rules of Evidence 103(a)(2) ccc... 10, 12

ProcepuraL Rules

i Ce ee ee

a SO Oo ee ee

Supreme Court Rule 20.4 snciracgaaaacgeatee pee 18, 19

Supreme Court Rule 21.1(a) ..................... ‘aiitindtesieatee tial 8

IIT I i an Mone |

Hawaii Rule of Appellate Procedure 10(b) 20...

Hawaii Rule of Appellate Procedure 11(a) 0...

Hawaii Rule of Appellate Procedure 31(e) 20000. 18

Hawaii Rule of Appellate Procedure 39 eee 19

Hawaii Rule of Appellate Procedure 40(a) 0000000... 18

Hawaii Rule of Appellate Procedure 41(b) 0... 18

Hawaii Rule of Civil Procedure 37 ...cececcecssssescsssseneeceeneeeeeem 2

Hawaii Rule of Civil Procedure 41(D) nee 7

COO

Minn. Rules Civ. App. Proe. 136.02, 140 0... a

IV.

STATEMENT OF THE CASE

This Petition arises out of an action which was dis-

missed with prejudice for failure to prosecute when the

Petitioners failed to appear for trial, and Petitioners’

attorney, at the Petitioners’ instruction, ignored the trial

court’s order to proceed, and walked out of the courtroom

on the morning of trial.

The underlying action began with the purchase and

sale of a luxury home in Honolulu, Hawaii for $1.35 mil-

lion in June, 1981. About six months after the Petition-

ers (purchasers of the house and plaintiffs below), had

executed an agreement of sale with Respondent Howard

Lane (seller of the house and defendant below),! a heavy

rainstorm oceurred. Petitioners alleged that during the

storm water leaked through portions of the walls of the

house, Petitioners stopped payments under the agreement

of sale in January of 1982. In March of 1982, Petitioners

sued for specific performance or rescission of the agree-

ment of sale, fraud, and for damages.

During the dispute and shortly before the Complaint

was filed, Petitioner Leon Richardson sent a telex to Re-

spondents accusing them of, infer alia, erimiaal fraud, and

threatening to report Respondents to various public of-

ficials, including the U.S. Department of Justice, the

Australian Embassy in Washington, D.C., and the Lieu-

tenant Governor of the State of Hawaii. Following the

. Respondents Willis Sinsabaugh and Waterfront Properties,

Inc. were the seller's brokers. Waterfront Properties, Inc.

has no parent, subsidiary, or affiliate Companies; see Su-

preme Court Rule 28.1.

bo

filing of the suit, Respondents counterclaimed for en-

forcement or eancellation of the agreement of sale and

for damages for libel and defamation based upon this

telex.

The trial on the claims involved in the complaint.

counterclaim and erosselaims of the other parties was set

for the week of Januery 21, 1985. As the Hawaii Inter-

mediate Court of Appeals (‘‘ICA’’) correctly states in

its Opinion, the matter had, by then, degenerated into a

battle over discovery proceedings. Richardson v. Lane,

No. 11353, slip op. at 2 (Hawaii Intermediate Court of

Appeals, April 3, 1987, as amended) (‘‘Opinion’’), re-

printed in Petitioners’ Appendix (‘*P.A.’’) at A-1 through

A-11.

On January 16, 1985, Respondent Lane filed a Motion

to Dismiss and for Sanctions pursuant to Hawaii R. Civ. P.

37 on the grounds that Petitioners had violated a Stipula-

tion and Order issued by the Hawaii Cireuit Court’s Mo-

tions Judge on October 2. 1984 regarding the taking of

depositions of expert witnesses. The motion was predi-

eated on the Petitioners’ willful violation of that discovery

order in refusing to allow the Respondents to complete

the depositions of two of Petitioners’ expert witnesses and

to commence the deposition of a third expert witness. Pe-

titioners opposed the motion.

The motion was heard by the trial judge on January

17, 1985. After hearing argument from all parties and

inquiring into the facts and circumstances surrounding

the Motion, the court ruled that the Petitioners had failed

to comply with the discovery order, and ordered that the

————_—_ °°.

testimony of three expert witnesses be excluded from

trial. P.A. ‘*F’’.

Notwithstanding Petitioners’ rhetoric to the contrary,

this order did not deprive Petitioners of any constitu-

tional right to jury trial or to due process. As shown by

Petitioners’ own Supplemental Pretrial Statement filed

on January 17, 1985, Petitioners had listed over 27 fact

witnesses and 15 expert witnesses. Respondents’ Appen-

dix (**R.A.’’) at B-2, B-3. Even without the three exclud-

ed expert witnesses, Petitioners had other engineering

and architect witnesses available to testify. Moreover,

’

Petitioners’ claims were based on rescission, misrepresen-

tation, specific performance and fraud, and expert wit-

nesses were not necessary under Hawaii law to present

a prima facie ease.

Also on January 17, 1985, Lane filed a Motion to Dis-

miss on the grounds that Petitioners had failed to comply

with a previous order orally made on December 5, 1984,

and entered by the Cirenit Court Motions Judge on Jan-

uary 14, 1985, requiring Petitioners to deposit forthwith,

as security, ‘fall payments due under the Agreement of

Sale’’ which is the subject of this aetion (‘*Security Or-

der’’). The Seeurity Order did not specify the exact

amount to be deposited; however, by the end of 1984 the

entire principai balance of the agreement of sale hat be-

eome due and Respondent Lane was owed nearly $1,000,000,

including interest and late fees. See, e.g., P.A. at L-21,

lines 11-15.

This motion was heard by the Trial Judge on Jan-

uary 18, 1985. Petitioners orally opposed the motion.

After argument, the trial court denied the motion to dis-

miss, but amended the order to specify that the amount to

be deposited was $743,750.2 The court further ruled that

the sum was to be deposited by 9:30 a.m. on January 21,

1985. P.A. ‘‘G’’. The court, however, expressly refused

to threaten any sanction for failure to comply with this

ruling or with the Security Order. In fact, ne sanctions

were threatened or imposed against Petitioners for fail-

ure to comply with either order. Sce P.A. p. L-24, lines

13-16, and at M-9, lines 10-24.

On January 21, 1985 Petitioners did not appear for

trial. Instead, Petitioners, through their attorney, sub-

mitted an ‘‘Affidavit of Plaintiff Leon D. Richardson

Disqualifying the Honorable Edwin Y. Sasaki Pursuant

To Section 601-7(b), H.R.S.’’ in an attempt to stop this

trial. See R.A. at ‘*A’’. The affidavit, in substance, stated

that the trial ecurt was biased and partial based on the

court’s rulings involving the exclusion of three expert

witnesses and the modifying of the order requiring sums

to be deposited into court. In the affidavit, however, Pe-

titioners acknowledged that they knew they could appeal

those rulings. After considering the affidavit, the trial

court declined to disqualify itself. See e.g. P.A. at M-65.

The court then called the case for trial. Respondents

and their attorneys were present. The role of the jury

venire was taken. At a bench conference following the roll

eall, Petitioners’ attorney requested permission to take

an interlocutory appeal, which was denied. P.A. at M-5.

3 Petitioners claimed that there was an oral modification of

the payment terms. In specifying the amount, Judge Sasaki

in fact gave the Petitioners the benefit of this doubt. See,

P.A. at L-21, lines 7-10, 24-25.

Dr. Dubin then obstinately resisted all orders that he pro-

ceed:

THE COURT: All right. Your objection is noted.

We'll proceed with the trial.

MR. DUBIN: On that basis, I will say that we do

not waive our right to trial by jury.

THE COURT: The jury panel is sitting right there.

MR. DUBIN: I’m instructed not to participate in

these proceedings.

THE COURT: The panel is sitting right there. Mr.

Dubin, and what you have been instrueted to do, I

don’t know. We will proceed with the calling of the

twelve.

MR. DUBIN: I’m telling the Court that it is my

legal opinion that I cannot participate in this pro-

ceeding and still protect the rights of my client. I

would ask the Court, under these circumstances, to

grant a continuance of one day so that I could at least

have the opportunity to present a legal memorandum

to the Court showing that the legal issues in this ease,

the trial judge does make decisions.

THE COURT: Mr. Dubin, vou knew from last week

what was going to happen today. You’ve had all

weckend to work on it. I don’t see where one more

day would help. We will proceed.

* a *

(End of bench conference).

(Mr. Dubin left the courtroom).

See P.A. at M-9, 10 (emphasis added.)

Faced with the absence of the Petitioners and Peti-

tioners’ attorney, the court dismissed the complaint for

lack of prosecution and entered a default against Petition-

6

ers as to the counterclaim. The court then dismissed the

jury venire. Following entry of judgment, Petitioners ap-

pealed to the Hawaii Intermediate Court of Appeals.

On April 3, 1987, the ICA rendered its opinion af-

firming the trial court’s dismissal of the Complaint with

Prejudice and the entry of default. Richardson v. Lane,

No. 11353, slip op., as amended. The ICA further specif-

ically held that it would not review any of the alleged er-

rors that occurred prior to the dismissal of the Complaint,

as it had no record upon which to evaluate the effect of

the orders and that to do so would violate Hawaii’s policy

against piecemeal appeals.2 Opinion, at 7.

On May 4, 1987, Petitioners filed an Application for

Writ of Certiorari to Review the Opinion filed April 3,

1987, amended by order filed April 22, 1987 upon recon-

sideration. By Order dated May 8, 1987, the Hawaii Su-

preme Court denied Petitioners’ Application for Writ of

Certiorari.

On May 19, 1987, the ICA filed a Notice of Entry of

Judgment on Appeal and Judgment on Appeal.

On August 17, 1987, Petitioners mailed the subject

Petition for Writ of Certiorari to the United States Su-

preme Court. The Petition was filed on September 21,

1987.

—— - -0

3 The original opinion of the Hawaii Intermediate Court of

Appeals affirmed the trial court’s granting of attorneys’ fees

and costs to Respondents Sinsabaugh and Waterfront Prop-

erties. By order dated April 22, 1987, the Court partially

amended its opinion and reversed the trial court’s grant-

ing of such fees and costs.

V.

ARGUMENT

A. THERE ARE NO SPECIAL AND IMPORT-

ANT REASONS FOR GRANTING THE PE-

TITION FOR WRIT OF CERTIORARI IN

THIS CASE.

The principal and dispositive issue presented to the

ICA below is set forth in the first sentence of Section I

of the Opinion:

When plaintiffs’ counsel informed the trial court

that plaintiffs had instructed him not to participate

further in the proceedings and left the courtroom,

plaintiffs effectively abandoned their cause of action

and the trial court correctly dismissed the complaint

under Rule 41(b), Hawaii Rules of Civil Procedure

(HRCP) (1980), for lack of prosecution. [Footnote

omitted.] (Opinion at 4-5, Petitioner’s Appendix A-5,

A-6).

In deciding this issue, the ICA did not depart from

any principles set forth in the decisions of this Court.

See, for example, Link v. Wabash Railroad Co., 370 U.S.

626 (1962).

Petitioners’ refusal to proceed on the morning of

trial, in direct violation of the trial court’s order to do so,

and with full knowledge that they had an appropriate

remedy by way of appeal, was a deliberate waiver of their

claims and their right to a review of the pretrial orders.

Petitioners fail to present this issue directly for review

by this Court. See Petitioners’ Questions Presented.

Therefore, this Court should not consider whether the dis-

missal of the Complaint was improper. Supreme Court

Rule 21.1(a); Andrews v. Louisville & N.R. Co., 406 U.S.

320 (1972).

This case presents no special and important reasons

for consideration or review by this Court. Supreme Court

Rule 17. At best, the actions by Petitioners in this case

are unlikely to be repeated with any regularity. Notwith

standing the uniqueness of the facts, the case presents no

new issue of law or application of law which would justify

granting certiorari.

The Opinion by the ICA is entirely consistent with

this Court’s rulings, with the rulings of other Federal

Courts of Appeals, and with the rulings of other state

courts of last resort. The rules of law applied in the ICA

opinion neither depart from accepted judicial principles,

nor decide important public questions that warrant review

by this Court. See, sections V(C), V(D) and V(B), infra.

This case offers no opportunity for this Court to settle

any important question of Fourteenth Amendment* due

process principles which have not been heretofore settled

by this Court.

B. CERTIORARI SHOULD NOT BE GRANT-

ED AS THERE ARE INDEPENDENT AND

ADEQUATE STATE GROUNDS WHICH

SUPPORT THE DECISION OF THE HA-

WAII INTERMEDIATE COURT OF AP-

PEALS.

After deciding that the trial court had properly dis

missed the complaint and entered a default against the

Petitioners, the ICA went on to hold that:

‘ U.S. Const. amend. X!V.

By refusing to proceed with the trial, plaintiffs

left the trial court no choice but to dismiss their com-

plaint. Plaintiffs’ argument that the preclusion order

was destructive of their case carries no weight against

the record here. There is no way we can evaluate the

effect of the Order because Plaintiffs’ refusal to pro-

ceed has left us without a record of the remainder of

their proof. Finally ... we will not discuss alleged

errors that oceurred prior to the dismissal of the com-

vlaint, as to do so would be contrary to this juris-

diction’s policy against piecemeal appeals. Doe V v.

Roe V,5 Hawaii App. 610, 704 P.2d 940 (1985) (foot-

note omitted).

(Opinion at 7, Petitioner’s Anpendix at A-8).

The ICA’s decision not to go beyond the dismissal

below is fully supported by two important state interests

in proper trial procedure. First. by voluntarily default-

ing and allowing judgment to be taken against them. Pe-

titioners improperly attempted to circumvent the state’s

recognized policy against piecemeal appeals. Doe V v. Roe

V,5 Hawaii App. 610, 704 P.2d 940 (1985); Powers v. El-

lis, 55 Hawaii 414 (1971); Catlin v. United States, 324 U.S.

229 (1945). Althoueh not directly at issue here, the Hawaii

legislature has expressly stated that a trial judge’s denial

of a request for leave to take an interlocutory appeal

is unreviewable by any court. Section 641-1(b), Hawaii

Rev. Stat.

Second, Hawaii appellate procedure imposes the duty

on the appellant to marshal an adequate record for the

purposes of review on appeal. Union Bldg. Material Corp.

v. Kakaako Corp., 5 Hawaii App. 146, 152-155, 682 P.2d

82, 88 (1984); Haw. R. App. Proc. 10(b) and 11(a). This

duty applies not only to the presentation of an adequate

10

existing record, but also to the creation of a meaningful

record in the trial court. See, Hawaii R. Evid. 103(a) (2).

By refusing to proceed with any proof, and by failing to

make an offer of proof, Petitioners deprived the appellate

court of any record of the effect of the pretrial orders.

This prevented any useful review. See Opinion at p.7;

P.A. at A-8. Moreover, the Petitioners’ list of witnesses,

R.A. B-1, B-2, submitted four days before trial, shows that

proceeding to trial would not have been a futile act.

The alleged constitutional errors in the pretrial rul-

ings had not been properly presented to the ICA, and re-

view was properly precluded by legitimate and recognized

state policies. The ICA’s ruling being supported by these

policies, and there being no improper evasion of the con-

stitutional issues by the ICA, this Court should also re-

fuse to review them. See, Wolfe v. North Carolina, 364

U.S. 177 (1959).

C. THE PRETRIAL ORDERS WERE NEI-

THER DISPOSITIVE OF THE CASE NOR

FINAL FOR THE PURPOSE OF APPEAL.

In an effort to evade the effect of their voluntary

default at trial, Petitioners argue that the pretrial orders

were somehow dispositive of their case. Petitioners also

claim that the doctrine against piecemeal appeals has ‘lost

favor.’’? See Petitioners’ Brief at 31-33, citing Forgay v.

Conrad, 47 U.S. (6 How.) 201 (1848) and Anderson v.

Allstate Insurance, 630 F.2d 677 (9th Cir. 1980). Peti-

tioners’ contentions are unsupported. Forgay involved

a decree which adjudicated rights to, and possession of

certain property. The only issue left for adjudication

was an adjusting of accounts between the parties. Ander-

[itiaieaciaereeeeeeeeseeeenineeeeeieitasieniaianiaiiaiiiiialiiaiaaiaias

11

son involved in a case in which finality had been achieved

and ‘‘there was nothing left to be decided.’’ Anderson,

630 I°.2d at 681.

This Court’s recent cases have consistently upheld the

policy against appeals of an interlocutory order, especial-

ly where the order is not dispositive of the case and is

fully reviewable on appeal from a subsequent final judg-

ment. Richardson-Merrell, Inc. v. Keller, 472 U.S. 424,

430-81 (1985); United States v. Hollywood Metor Car

Company, Inc., 458 U.S. 263 (1982); Firestone Tire d 2ub-

ber Co, v. Risjord, 449 U.S. 368 (1981); Gardner v. West-

inghouse Broadcasting Co., 487 U.S. 478 (1978).

Here, contrary to Petitioner’s claims, none of the

pretrial orders was destructive of Petitioners’ case. None

of the orders would be unreviewable after judgment:

(1) The affidavit which was filed in an attempt to

disqualify the trial judge was insufficient under Hawaii

law since adverse pretrial rulings cannot form the basis

for disqualification. Glover v. Fong, 39 Hawaii 308, 316

(1952). No inadmissible ‘‘facts’’ were argued to the trial

court during the pretrial motions. Furthermore, the affi-

davit did not, in and of itself, prevent the trial from pro-

ceeding. McKeague v. Talbert, 3 Hawaii App. 646, 652.

655, 658 P.2d 898, 904-905 (1983) ; State v. Taea, 55 Hawaii

80, 515 P.2d 219 (1973).

(2) Petitioners have also grossly exaggerated the

order requiring the deposit of the payments due under the

agreement of sale into court. Before the action began in

March of 1982, Petitioners refused to make any further

payments under the agreement of sale, and at the time of

trial Petitioners owed Respondent Lane nearly $1,000,000

including the entire balance which fell due in January of

12

1983. Petitioners had also refused to relinquish possession

of the house. If Respondent Lane had prevailed on the

counterclaim for enforcement or if Petitioners had pre-

vailed on their claim for specific performance, Petitioners

would have had to pay at least $500,000 for the property

even assuming offsets for any necessary repairs. Petition-

ers, however, were not residents of the United States, and

there was no indication that they had substantial assets

in the jurisdiction which could provide reasonable secur-

ity that any judgment could be paid. Under the circum-

stances, the Cireuit Court did not abuse its discretion

in requiring the posting of reasonable security.

Moreover, this was not, as Petitioners characterize

it, an ‘‘over-the-weekend’’ order. The motion was orig-

inally heard before the Cirenit Court motions judge in

September of 1984. An order was orally rendered on De-

eember 5, 1984. The amount was not specified in the or-

der, but the parties were well aware of what the order

meant.

Finally, and perhaps most importantly, the record is

clear that the trial judge neither enforced nor threatened

to enforce this order prior to trial. See P.A. L-24, lines

13-16 and p.M-9, lines 1 through 24.

(3) Petitioners’ argument that the alleged ‘‘pre-

clusion order’’ was destructive of their ease is also con-

tradicted by the record. First, the ICA correctly realized

that Petitioners had failed to preserve an adequate record

for review of the order. Opinion at 7, P.A. at A-8. There

was no attempt to put on any evidence, nor was any re-

quired offer of proof made. See Haw. R. Evid. 103(a) (2).

13

Second, Petitioners had at least 39 other fact and ex-

pert witnesses remaining to testify as to the elements of

their various claims. For example, Petitioners could have

prevailed on their count for rescission by proving a ma-

terial breach of the agreement of sale through Petition-

ers’ numerous fact witnesses: for example, Frappia, Spi-

vak, Barwick, Thursby, the Vilorias, Queriones and Peti-

tioners themselves.*

Petitioners could have proved special damages through

two other experts, Norman Lacayo and Dennis Shiu. Mr.

Lacayo was an architect and had performed an inspection

of the property soon after the alleged damages occurred.

Shiu, Smith, Gray, Iida and Nakagawa all had engineering

backgrounds and were listed to testify. Dr. Lum was

available to testify as to general damages.

As to claims of misrepresentation, Petitioners them-

selves were listed to testify, as well as Spivak, Barwick,

Coleman, Respondent Lane, and Respondent Lane’s chil-

dren. Finally, as to breach of duty by Respondents Sinsa-

baugh and Waterfront Properties, Inc., Petitioners had

their real estate expert witnesses.

This cursory review of the pretrial pleadings directly

contradicts Petitioners’ contention that the preclusion or-

der completely destroyed their case. Attorney Gibson’s

statement that Lipman’s architect report was the ‘‘guts’’

of the ease may have indicated his recognition that the

architect’s report was a significant factor, but it is by no

means a concession that it was essential.

5 See R.A. at B, and Record (‘’R’’) at Vol. IX at 43-75, Peti-

tioners’ Pretrial Statement. -

14

There is no unfairness in a rule which requires a party

to follow the proper procedure, regardless of adverse evi- ‘

dentiary and pretrial rulings, especially where proof on

the essential elements of the case was still intact. There

is thus no reason for this Court to review the pretrial rul-

ings as destructive oi Petitioners’ case.

D. THE DECISION OF THE HAWAII INTER-

MEDIATE COURT OF APPEALS DOES

NOT CONFLICT WITH DECISIONS OF

THIS COURT.

Neither Hammond Packing Co. v. Arkansas, 21 US.

322 (1908), Societe International Pour Participations In-

dustrielles et Commerciales v. Rogers, 357 U.S. 197 (1958)

nor any other case cited by Petitioners is inconsistent with

the holding of the ICA. The cases cited by Petitioners do

not involve comparable factual situations, These cases ad-

dress the issue of the courts’ discretion to impose discovery

sanctions and expressly recognize that a court has the

power to render orders such as those at issue here. See,

e.g. Link v. Wabash, 317 U.S. 626. Petitioners have con-

sistently failed to address the key issue presented by this

case—whether the trial court abused its discretion in dis-

missing this ease with prejudice when the Petitioners con-

tumaciously refused to proceed on the morning of trial.

E. THE DECISION OF THE HAWAII INTER.-

MEDIATE COURT OF APPEALS IS CON-

SISTENT WITH THE DECISIONS OF THE

FEDERAL COURTS OF APPEALS.

1. Third Circuit

Contrary to the Petitioners’ contentions, the decision

of the ICA is properly based on the decision of the Third

Cireuit in Marshall v. Sielaff, 492 F.2d 917 (8d Cir. 1974).

Diiticeceeseeneeereenereensesmsmemeemneaiasl

Petitioners’ attempt to distinguish Jarshall is wholly

inaccurate. See Six Points in Petition at pp. 30-31. First,

9

contrary to Petitioners’ characterization of the ease, the

Third Cireuit Court of Appeals expressly refused to reach

the merits of the question as to whether the district court

correctly decided the issue of jurisdiction over the other

witnesses. Second, the court never reached the question

as to the need for the witnesses; in fact, in Marshall, as

here, the petitioner claimed that the witnesses were ‘‘essen-

tial.’’ Marshall, 492 F.2d at 918. Third, there is no in-

dication in Marshall as to the expected length of the trial.

Fourth, the Marshall opinion does not state that find-

ings and conclusions were made as to the preclusion order.

Fifth, the Third Cireuit Court of Appeals expressly re-

fused to consider the preclusion orders, contrary to Peti-

tioners’ statement. Sixth, the Marshall trial court’s con-

sideration of lesser sanctions was never discussed, and

Petitioners’ conjecture as to what was in the record is

entirely inappropriate.

In short, there are no factual distinctions between the

Marshall case and the instant case which prevent the ICA

from following the Third Cireuit’s thoughtful rationale.

It must further be emphasized that contrary to Peti-

tioners’ assertion, Warsha/l has not been ‘‘abandoned’’ in

its own jurisdiction by Reif v. A.H. Robbins, 90 F.R.D. 526

(i.D. Pa. 1981). Reif did not involve a dismissal for fail-

ure to prosecute where the plaintiff had wilfully refused

to proceed with trial. Thus, the Reif court did not even

diseuss the specific holding of Jarshall, The Reif court

16

simply cited Marshall for the general proposition that dis-

missal for failure to prosecute is ‘‘a harsh remedy and ‘

should be resorted to only in extreme eases.’’ This is

hardly a basis for claiming that the Third Cireuit has

abandoned Marshall.

Indeed, the Third Circuit expressly relied upon Mar-

shall in deciding the subsequent case of Sullivan v. Pacific

Indemnity, 566 F.2d 444 (3d Cir. 1977). In Sullivan, the

trial court dismissed plaintiffs’ claims when the plaintiffs

refused to proceed to trial after the trial court denied its

request for class eertification. The Third Cireuit dis-

missed the appeal, and held, in reliance on Jarshall, that

it would not review the pretrial ruling on the basis that

it would not allow the plaintiff to cireumvent the proper

appellate processes.

2. Other Circuits

The ICA’s decision is also consistent with Hughley v.

Eaton Corporation, 572 F.2d 557 (6th Cir. 1978) and Huey

v. Teledyne, Inc., 608 F.2d 1234 (9th Cir. 1979) (quoting

extensively from Marshal/, Sullivan, and Hughley). Also

as explained above, contrary to Petitioners’ assertions the

ICA decision does not conflict with the Ninth Cireuit’s

decision in Anderson v. All e Insurance Co., 630 F.2d

677 (9th Cir. 1950).

F. HAWAII’S CIVIL JUSTICE SYSTEM PRO-

TECTS PETITIONERS’ CONSTITUTION-

AL RIGHTS.

The Petitioners’ complaints concerning Hawaii’s civi!

justice system are completely groundless. Petitioners were

never denied the opportunity to present their case. When

the Petitioners were faced with two adverse pretrial rul-

ings, they deliberately disobeyed the trial court’s order to

17

begin trial, intentionally waived their claims and improp-

erly sought to appeal the interlocutory orders.

No ‘‘substantive justice’’ was sacrificed to the interest

of court administration. The trial judge appointed to

preside over this jury trial was not engaged in any con-

spiracy or administrative ‘‘railroading.’’? The Hawaii Con-

stitution expressly authorizes Judge Sasaki’s assignment

to hear this case below and no proper challenge has been

made to this provision by Petitioners herein. See Hawaii

Const. art. VI, see, 2.

The arbitrary and capricious conduet at issue here was

that of Petitioners themselves. Respondents respectfully

urge this Court to deny ihe Petition herein, and respect-

fully assert their right to the protection of a further, legiti-

mate state interest—that of protecting a defendant against

continued uncertainty and undue delay in the vindieation

of his or her claims. See Fackelman v. Bell, 564 F.2d 734,

796 (Sth Cir. 1977); H.R. Livermore Corp. v. Aktiengesell-

schaft Gebruder, 482 F.2d 689, 691 (D.C. Cir. 1970).

G. THE PETITION FOR WRIT OF CERTIOR-

ARI SHOULD BE DENIED AS UNTIME.-

LY SUBMITTED.

As a final matter, Respondents note that the Petition,

originally submitted on August 17, 1987, was returned to

Petitioner as out-of-time. See Supreme Court Rule 20.3.

Respondents agree that the Supreme Court Clerk was cor-

rect in doing so, and the Petition should be dismissed as

untimely filed.

This Court has held that a State appellate court’s

judgment is final for the purposes of Certiorari when the

‘‘reeord shows that the order of the appellate court has

in fact fully adjudicated rights and that the adjudication

18

is not subject to further review by a state court.’’ Depart-

ment of Banking v. Pink, 317 U.S. 264, 268 (1942). United

States Supreme Court Rule 20.4 emphasizes that this date

is not the date of ‘‘the issuance of the mandate (or its

99

equivalent under loeal practice).

Under the Hawaii Rules of Appellate Procedure

(H.R.A.P.), the **deeision®* of an appellate court is ren-

dered at the time of the filing of its opinion, memorandum

opinion, or order. The filing of the opinion or ruling by

the ICA starts the time periods running for further re-

view. See H.R.A.P. 31(e) and 40(a).

H.R.A.P. 41(a) expressly sets the date by which the

decision of an appellate court becomes final:

The timely filing for a Motion for Reconsideration

shall stay the finality of the decision until the disposi-

tion of the Motion unless otherwise ordered by the

Court. The timely filing of an Application for a Writ

of Certiorari shall stay the finality of the decision un-

less otherwise ordered by the Supreme Court. Jf the

Application for a Writ is rejected, the decision shall

be final as of the date of rejection. (Hmphasis added).

Thus, the decision of the ICA is final and not subject to

reconsideration or alteration following the date of the

denial of an Application for Writ of Certiorari. This

express statement of finality thus distinguishes this case

from Marquette Nat. Bank v. First of Omaha Corp., 439

U.S. 299 at n.18 (1978) (decided under Minn. Rules Civ.

App. Proe. 136.02, 140).

The subsequent judgment submitted pursuant to

H.R.A.P. 41(b) cannot have the effect of altering, amend-

ing, or reopening the decision, Respondents assert that

19

this document neither orders nor adjudges any issue, and

contains little more than a recital of the disposition of the

lower court’s ruling by the appellate court. In effect, it is

the jurisdictional ‘‘mandate’’ under loeal practice and un-

der Supreme Court Rule 20.4. See PA. at Exhibits D, and

K. This case is also, therefore, distinguishable from

Puget Sound Power & L. Co. v. King County, 264 US. 22,

24-25 (1923) which was decided before the adoption of

current Supreme Court Rule 20.4.

In McCarthy v. Jaress, —- Haw. App. —, 711 P.2d 1315,

1318 at n.5 (1985), the ICA ruled that the entry of judg-

ment and notice of entry of judgment revest jurisdiction

over the merits of the case in the Hawaii Cireuit Courts.

In so ruling, the ICA compared the filine of a Federal

District Court ‘‘Judyment’’, which starts the time from

which appeals must be taken under the Federal Rules of

Appellate Procedure, to the ICA’s opinion, which starts

the time running for further review under the H.R.A.P.

By necessary implication, under the H.R.A.P. the ‘Final

Judgment’’ is equivalent to the ‘*mandate’’ issued by the

Federal appellate courts.

The Petitioners’ Application for Writ of Certiorari to

the Hawaii Supreme Court in this case was denied on May

8, 1987. Petitioners’ attempted submission of the Peti-

tion on August 17, 1987 was therefore out-of-time, and the

original rejection of the Petition by the Office of the Clerk

was correct.

Petitioners may argue that the judement of the ICA is

somehow ‘‘reopened’’? or amended by a suvsequent grant-

ing of costs and attorneys’ fees. Under H.R.A.P. 39, the

20

awarding of costs and fees does not reopen the judgment ;

rather, only an Amended Notice of Entry of Judgment is

issued. Moreover, an award of costs and fees is predi-

eated on the fact that the underlying claims involved in

the suit have been finally decided in favor of the party

seeking them. Therefore, the issue of costs and fees is

collateral to and separate from the issues already finally

decided. White v. New Hampshire Dept. of Employment

Security, 455 U.S. 445 (1981); F.C.C. v. League of Women

Voters, 468 U.S. 364 (1984).

Respondents therefore respectfully urge this Court to

deny the instant Petition as being untimely submitted.

ray

Vv

VI.

CONCLUSION

Petitioners’ utter disregard of the trial court’s orders

to begin trial, and their deliberate default on the morn-

ing of trial, properly resulted in the dismissal of the com-

plaint with prejudice and the entry of default. For the

above-stated reasons, Respondents respectfully request

that the Petition for Certiorari be denied.

DATED this 20th day of October 1987 at Honolulu,

Hawaii.

ASHFORD & WRISTON CASE & LYNCH

WAYNE NASSER, BRUCE C. BIGELOW,

Counsel of Record Counsel of Record

MICHAEL W. GIBSON WESLEY W. ICHIDA

LORRIN B. HIRANO CATHY A. LEE

Counsel for Respondent Counsel for Respondents

Howard T. Lane Willis Sinsabaugh and

Waterfront Properties, Inc.

No. 87-472

In The

Supreme Court of the United States

October Term, 1987

co)

LEON D. RICHARDSON and MARGIE J. RICHARD-

SON, husband and wife, and COPTHORNE N. V., a

Netherland Antilles corporation,

Petitioners,

VS.

HOWARD T. LANE, WILLIS SINSABAUGH, WATER-

FRONT PROPERTIES, INC., a Hawaii corporation,

and THE FIDELITY STANDARD LIFE INSUR-

ANCE COMPANY,

Respondents.

o

APPENDIX

>

App. A-1

GARY VICTOR DUBIN 3181

Attorney at Law

Suite 800

345 Queen Street

Honolulu, Hawaii 96813

Telephone No. 537-2300

Attorney for Plaintiffs

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAITI

LEON D. RICHARDSON, CIVIL NO. 70332

et al.,

AFFIDAVIT OF

Plaintiffs, PLAINTIFF LEON

D. RICHARDSON

Vs. DISQUALIFYING

)

)

)

)

) THE HONORABLE

HOWARD T. LANE, et al, ) EDWIN Y. SASART

) PURSUANT TO

Defendants, ) SECTION 601-7(b)

) OF THE HAWAII

)

)

)

)

)

)

)

)

)

REVISED STAT-

UTES; COUNSEL’S

CERTIFICATE OF

GOOD FAITH;

EXHIBITS 1 AND 2

and

THE FIDELITY

STANDARD LIFE

INSURANCE COMPANY,

Intervenor/

Defendant. Trial: January

21, 1985

AFFIDAVIT OF PLAINTIFF LEON D. RICHARDSON

DISQUALIFYING THE HONORABLE EDWIN Y.

SASAKT PURSUANT TO SECTION 601-7(b) OF

THE HAWAIL RREVISED STATUTES

STATE OF HAWAITI )

) SS.

CITY AND COUNTY OF HONOLULU)

LEON D. RICHARDSON, being first duly sworn on

oath, deposes and says:

App. A-2

1. Lama Plaintiff in the above action. My wife and

I came to Honolulu from Hong Kong a few days ago to

meet with out [sic] trial counsel, Mr. Dubin, to prepare

for the jury trial of this case commencing January 21,

1985.

9. This has been a long ordeal for both of us and we

were most anxious to get the trial underway and to resolve

this legal dispute with these Defendants at this time.

3. Following our arrival, our trial preparation has

been completely interrupted by two events: the filing of

two motions to dismiss by Defendant Lane, for hearing

before Judge Edwin Y. Sasaki, who our counsel and we

learned on January 15, 1985, had been designated as the

trial judge for our trial.

4. My counsel, Mr. Dubin, has informed us that we

will have a mixed trier of fact, that is, that some of the

issues will be decided by the trial judge and some by the

jury. We understand that the jury will be picked at ran-

dom from the community. And naturally we have fully

expected that this Court would appoint a trial judge who

would be neutral at the trial and would go into the trial

not having taken a stance against us.

5. Defendant Lane’s motions to dismiss, however,

coming before the trial but presented nevertheless to the

‘‘trial’’? judge, Judge Sasaki, have, my wife and I feel,

made it impossible to get a fair and impartial trial before

Judge Sasaki who we believe to be prejudiced and biased

against us as a result of his having been called upon by

Defendant Lane to hear and make rulings before trial on

App. A-3

some of the very same issues that will directly and in-

directly have to be decided at trial according to the evi-

dence presented at trial and not before, as we understand

the law and common sense.

6. Weare not lawyers. Mr. Dubin, in his Certificate

of Good Faith which accompanies this Affidavit, provides

the legal details of the manner that Judge Sasaki has, be-

cause of these two pretrial motions, lost, in our view, his

objectivity and impartiality for serving as the triai judge.

7. In layman’s terms, my wife and I have no con-

fidence that we can get a fair trial with him now because

his ruling on Defendant Lane’s motions to dismiss, before

the trial, show to us a bias against us. He has made his

rulings without the benefit of a trial or what Mr. Dubin

refers to as an ‘‘evidentiary hearing’’ and His Honor

has shown, we deeply feel, a mental attitude bent on be-

heving Defendant Lane and his counsel and not us. There

is in our view simply no other explanation for his decisions

against us.

8. We, of course, understand that we can appeal his

decisions which we do not like. What makes him objec-

tionable to us as our trial judge is that we feel that the

trial judge should and must go into the trial without pre-

conceived notions regarding the merits of the dispute.

He should be controlled in his decision making by what

transpires at the trial and the evidence presented there,

and should not have already made up his mind against us

and our legal position which his ruling this week clearly

shows.

9. We feel that Defendant Lane’s two motions to

dismiss should have been heard by other than the trial

App. A-4

judge. Judge Sasaki in our view is now hopelessly con-

taminated by, for example, the nonevidential statements

and misrepresentations made by Attorney Gibson to him

in oral hearing which would never have been permitted be-

fore the trial judge, we assume, at trial. The fact that

Judge Sasaki has ruled adversely to us based on such non-

evidence makes us reasonably believe that he is disposed

against us now, for we are at a loss otherwise to under-

stand how he has ruled as he has done.

10. As our trial judge, we would have no way of now

combatting the false images of us and the preconceived

notions he has of us as a result of what Attorney Gibson

has argued to him in pretrial motion practice. He ob-

viously has opinions on the merits adverse to us which

he has formed before trial and which he will unfairly bring

with him to the trial. Since the key issue in this ease is

rescission and, as we have been told by Mr. Dubin, that

issue is substantially decided by the trial judge, there is

simply no way we can accept his judgment now since be-

fore trial he has ruled so harshly against us.

11. I have instructed my attorney to file this affi-

davit before trial commences Monday, January 21, 1985,

at 9:30 a.m. My wife and I are entering our 70s. We are

not in good health. The thought of having Judge Sasaki

as the ‘‘impartial’’ trial judge for our case which we

brought against these Defendants has caused us both great

mental anguish. We want only an uncommitted trial

judge who is impartial and who has not made up his mind

App. A-5

already on the same issues that are to be tried. We really

do not understand why we would be denied this simple re-

quirement of justice.

FURTHER AFFIANT SAYETH NAUGHT.

/s/ Leon D. Richardson

LEON D. RICHARDSON

Subscribed and sworn to before me

this 18th day of January 1985.

‘s/ Seott Totan

Notary Public, State of Hawaii

My Commission Expires 4-23-88

/

App. B-1

GARY VICTOR DUBIN 3181

Attorney at Law

Suite 800

345 Queen Street

Honolulu, Hawaii 96815

Telephone No, 587-2500

Attorney for Plaintiffs

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

LEON D. RICHARDSON, CIVIL NO. 70332

t al.,

PLAINTIFFS’

Plaintiffs, SU : PLEMENTAL

PRETRIAL

VS. STATEMENT

HOWARD T. LANE, et al.,

Defendants,

and

THE FIDELITY

STANDARD LIFE

INSURANCE COMPANY,

Intervenor/

Defendant.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

PLAINTIFFS’ SUPPLEMENTAL PRETRIAL

STATEMENT

Come now Plaintiffs all, pursuant to Rule 12(a)(10)

of the Rules of the Cireuit Courts of the State of Hawaii.

and hereby submit this Supplemental Pretrial Statement,

|

|

|

App. B-2

amending their Pretrial Statement filed May 23, 1984,

as follows:

— 7 .

APPENDIX A [NEW]:

List of Fact Witnesses

lL. Leon D. Richardson

2. Margie J. Richardson

o. Armel J. Frappia

4+. Frederick Ross Spivak

&. Donna Barwick

6. Robert Thursby

(. Corazon Viloria

S. Marysia Coleman

9. Willis Sinsabaugh

10. Barbara Jean Okada

lt. tloward Lane, Jr.

l2. Gregory Lane

13. Judith Lane

14. Anne Lewis

1D. Dave Lewis

lo. Ted Chinn

17. Lee Grady

Is. tloward Lane, Sr.

i9. Ginger Sinsabaueh

20. Kugenio Queriones

21. Naney Beckner

), Sue Gross

Juan Viloria

13.

App. B-3

Representative of Bishop Estate

(John R Peterson or another)

Representative of Kaiser Development

Company (Riley Smith or another)

Representative of Fireman’s Fund

Insurance (Sharon Takao or another)

Representative of Building Department,

City and County of Honolulu

Rebuttal Witnesses as Required

Authenticating Witnesses as Required

Newly-Discovered Witnesses as Available

APPENDIX B [NEW]:

List of Expert Witnesses

Jack Lipman

Joseph A. Dobrowolski

Norman Lacayo

Denis T. Shiu

Russell L. Smith

Brian L. Gray

Edward lida

Stephen B. K. Moon

Evelyn Havase

Kwong Yen Lum, M.D.

Jerry Nakagawa

Helen Price

Steven Hidano

James Tamura

Paul Hirata