Petition for Writ of Certiorari — Parnar v. Law Offices of Chanin
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Supreme Court, U.g,
FILED
O7Z'T8 56 may 181998
OFFICE OF THE CLERK
No. 97-
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1997
EUGENIE PARNAR,
Petitioner,
THE LAW OFFICES OF JOHN A. CHANIN,
Respondent.
On Petition for Writ of Certiorari
to the Hawaii Supreme Court
PETITION FOR WRIT OF CERTIORARI
EUGENIE PARNAR
Petitioner Pro se
252 Paoa Place, #3-3
Honolulu, Hawaii 96815
(808) 955-5050
i
QUESTIONS PRESENTED FOR REVIEW
1. Whether this Court should review constitutional law
violations where the alternative is allowing blatant State
Court nullification of State and Federal laws and United
States Constitutional guarantees.
2. Whether a fraud upon the court judgment and record
fraught with flagrant and manifest violations of a litigant’s
United States constitutional nghts inherent to the
administration of justice provide sufficient unconscionable
abuse of power to warrant this Court’s plenary de novo
review when a State Supreme Court acts sovereign to the
Constitution of the United States.
3. Whether the access to court guarantee of the United
States Constitution is violated by Order of a State Supreme
Court justice prohibiting the clerk from accepting further
filings in an appeal.
i
PARTIES TO THE PROCEEDING
The names of the parties appear on the caption.’
' Regarding John A. Chanin, the Respondent, on March 19, 1998,
the Supreme Court of the State of Hawaii entered an Order Allowing
Resignation in Lieu of Discipline and, therefore, The Law Offices of
John A. Chanin no longer exists.
At the time the Hawaii Supreme Court was considering Petitioner’s
appeal, the State Office of Disciplinary Counsel, which is under the
jurisdiction of the Hawaii Supreme Court, was conducting an
investigation of attorney John A. Chanin which led to the Order
Allowing Resignation in Lieu of Discipline. (Appendix VII) Under
the Rules of the Supreme Court of the State of Hawaii, Rule 2.14(d),
the sarrendering of his bar license constitutes a consent to disbarment
for purposes of these rules.
sail
iii
TABLE OF CONTENTS
CITATIONS OF OFFICIAL AND UNOFFICIAL
REPORTS OF OPINIONS AND ORDERS ENTERED
EEE hone ae cease ee eee eee 1
STATEMENT OF THE BASIS OF JURISDICTION... 2
CONSTITUTIONAL PROVISIONS AND RULES
oe 8 ed Nr 2
STATEMENs OF THE CASE... wee eee. 5
Sk 0 Ns ob iN 6600 0b ew 1]
I.
THIS COURT SHOULD REVIEW THE
CONSTITUTIONAL LAW VIOLATIONS WHERE
THE ALTERNATIVE IS ALLOWING BLATANT
STATE COURT NULLIFICATION OF STATE
AND FEDERAL LAWS AND UNITED STATES
CONSTITUTIONAL GUARANTEES. ........ 11
Il.
A FRAUD UPON THE COURT JUDGMENT AND
RECORD FRAUGHT WITH FLAGRANT AND
MANIFEST VIOLATIONS OF A LITIGANT’S
UNITED STATES CONSTITUTIONAL RIGHTS
INHERENT TO THE ADMINISTRATION OF
JUSTICE PROVIDE SUFFICIENT
UNCONSCIONABLE ABUSE OF POWER TO
WARRANT THIS COURT’S PLENARY DE NOVO
REVIEW WHEN A STATE SUPREME COURT
ACTS SOVEREIGN TO THE CONSTITUTION OF
UNE IEEE RURREES 5 ons os cc ec ea savee 19
iv
Il.
THE ACCESS TO COURT GUARANTEE OF THE
UNITED STATES CONSTITUTION IS VIOLATED
BY ORDER OF A STATE SUPREME COURT
JUSTICE PROHIBITING THE CLERK FROM
ACCEPTING FURTHER FILINGS IN AN
RECA Kee NS ne PERUSE COCR ea ee 25
APPENDICES .
All orders are from courts of the State of Hawaii.
Appendix I
Supreme Court Notice of Entry of Judgment on
PE 3h ook oe Ree Pee hae ak A-]
Appendix I]
Supreme Court Summary Disposition Order ....... Ant
Appendix II
Judgment of the Circuit Court of the First Circuit ... A-6
Appendix IV
Order of the Circuit Court of the First Circuit
Denying Petitioner’s Motion to Open and Amend
Judgment Entered May 24, 1996. ............. A-13
Appendix V
Order of the Circuit Court of the First Circuit
Granting Plaintiff's [Respondent] Motion for
DUONG hw dS ews sane ek eee areas A-20
Appendix VI
Supreme Court Order Allowing Resignation in
Re I ei hes ba ei wee oes wouee A-22
Appendix VII
Order of the Supreme Court,
Prohibiting Clerk from Accepting Further Filings .. A-24
Appendix VIII
Supreme Court, State of Hawaii
Office of Disciplinary Counsel
Notice Concerning Attorney John A. Chanin ..... A-26
Appendix IX
Potttiioner’s Opening Brief .............5.4.-. A-27
Appendix X
Wee Bee BE ons UNS ee Nees A-82
Appendix XI
Petitioner’s Memorandum In Opposition
to Respondent’s Motion for Sanctions ......... A-102
vi
TABLE OF AUTHORITIES CITED
CASES
ACLU v. Mabus,
719 F.Supp. 1345 (S.D. Miss. 1989), vacated 911
F.2d 1066 (5th Cir. 1990); reh. den. 919 F.2d 735
SS REE Ga A Eka eNOS wick 45s e oe 27
Archibeque v. Atchison, Topeka and Santa Fe Ry. Co.,
yp Bigs Fe be M.A are ee 18
Azer v. Courthouse Racquetball Corp.,
9 Haw.App. 530, 852 P.2d 75 (1993) ........ 21
Bounds v Smith,
430 U.S. 817, 97 S.Ct 1491, 52 L. Ed. 2d 772
ak es ee hia iow wus 27
California v. FCC,
Fee ee A Ae: AFP G) oo og cv cele CEH 24
Chisom v. Stephenson,
Pe ee I BIE) Gb ieee sw nceess 22
Chuck v. St. Paul Fire and Marine Ins. Co.,
61 Haw. 552, 606 P.2d 1320 (Hawaii 1980) .. 8, 15
Cohen v. Beneficial Loan Corp.,
337 U.S. 541, 69 S.Ct., 1221, 93 L.Ed 1528
Eo a ae bes Ra eo ed bie eee eo 8
Crow v Crow,
485 S.W.2d 928 (C.C.A. Texas 1972) ........ 12
Degen v. United States,
517 U.S. 820, 116 S.Ct. 1777 (1996) ......... 17
Douglas v. California,
372 US 353, 83 S Ct 814, 9 L. Ed 2d 911,
CEI sos RRA WWE Sins a's 27, 28
Draper v. Washington, ie:
372 US 487, 833 S Ct 774, 9 L Ed 2d 899
CR9GS) 6 vc ea eb ad siete week ew ne eas 27
England v. Doyle,
mek Rime Bee Cree Cs IPD) gw eects. 24
Geders v. United States,
425 U. S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592
PR aew oe Ere yu s es Ks wcwedeseebok ee 22
Griffin v. Illinois,
351 U.S. 12, 100 L. Ed 891, 76 S Ct. 585, 55
GR PEENOE) oc ecw ewcesvecens 27, 28
Groves v. Witherspoon,
379 F. Supp. 52 (E.D.Temm. 1974) .......... 12
Haner v. Hamner,
BIE EE CHP COMED give ence keds e's oats 21
Hastings-Murtagh v. Texas Air Corp.,
SED Faas SOO (a FO 19GE) cece. 14
Hazel-Atias Glass v. Hartford Empire,
322 U.S. 238, 64 S.Ct. 997, 88 L.Ed 1250
ha alia eRe eee eee bei bie e's 19-21
In re French,
RD oe ON a os BESO 23
In re Intermagnetics America,
Pe ee CU APOE) occ cw ce cee ss 24
In re Marriage of Miller,
Pee WG SOae COE BONO) cs ee ee Sees 22
Kang v. Harrington,
59 Haw. 652, 587 P.2d 285 (1978) .......... 20
Lane v Brown,
372 US 477, 83 S Ct. 768, 9 L Ed 2d 892
Ph a ou ebay kes me eee hee aaa 27
Leavitt v. Jane L. et al,
518 US 137, 116 S Ct 2068, 135 L Ed 2d 443,
SNE Sard adeno Gl Bod ate ed os Sod a RD oo 13, 14
Lockwood v. Bowles,
be SOR. vie Lede) oat) a rer 24
Magoon v. Magoon,
70 Haw. 605, 780 P.2d 80 (1989) ........... 20
SESE SAL
Orner v. Shalala,
30 F. 3d 1307 (10th Cir. 1994) .......... 12, 18
People v. Radinsky,
Po ge ON oe ee 23
Porter v. Goodyear Tire and Rubber,
SOR Fae Bh ks Ce Ge AITO) ence ecu ees 23
Rinaldi v. Yeager,
384 US 305, 86 S Ct. 1497, 16 L. Ed. 2d 377
Ea a Swe kb ea aa Se waha We ee a 27, 28
Rodriguez v. Westlab, Inc.,
833 F.Supp. 425, (S.D.N.Y. 1988) .......... 12
Rook v. Rook,
See ee Fae OR RORY © 6 be oe eed wee eine 24
Root Refining v. Universal Oil Products,
169 F.2d 514 (3d Cir. 1948) ........... 19, 20
Rozier v. Ford Motor Company,
Se ae Se Ae Ge AED nice nes we ke es 24
Societe Internationale Pour Participations
Industrielles et Commerciales, S.A. v. Rogers,
357 U.S. 197, 78 S.Ct. 1087, 78 LEd. 2d 1255
COE sane cee baa wee Bhd be ed 16, 17
Southwest Slopes v. Lum,
81 Haw. 501, 918 P.2d 1157 (App. 1996) .. 20, 24
State v. Martin,
SG Ei, 258, SOS POe 127 (3GTS) vs vcd cae 20
Trehan v. Von Tarkanyi,
85 BR. 920 (G.D.N.Y. 1968)... wc cens im, 22
U.S. v. Brian N.,
ke ve fp Ee a. rrr 24
Virgin Islands Housing Authority v. David,
Sad ue Te Che GA, BFBT) nn akan daei ces 23
ix
UNTTED STATES CONSTITUTION
FE TE SRG EGR Serie ewes ee 2, 26, 27
Pe Si es bee wae 08 3, 11, 16
EE S00 Cece eae sow eb eS ks 3,4
Fourteenth Amendment ........ 3, 11, 16, 17, 25-28
UNITED STATES CODE
28 United States Code § 1257(a) ........... 2, 11
Hawall CONSTITUTION
Article I, Section 5 of the Hawaii Constitution .. 4, 10
Article I, Section 13 of the Hawaii Constitution .... 4
Court RULES
Federal Rules of Civil Procedure, Rule 37 ....... 17
Federal Rules of Civil Procedure, Rule 38(2) ...... 4
Hawaii Rules of Civil Procedure, Rule 37 ........ 7
Hawaii Rules of Civil Procedure, Rule 38(a) ...... 5
Hawaii Rules of Civil Procedure, Rule 55(b)(2) .... 9
Hawaii Rules of the Circuit Courts, Rule 23 ....... 7
Hawaii Supreme Court Rules, Rule 2.14 ........ 25
Rules of the Supreme Court of the United States,
Be ees La Se ee ok OR Rene ee 2, 16
OTHER CITATIONS
16 Am Jur 2d, Constitutional Law, pg. 951 ...... ll
47 Am_Jur.2d, Judgments, Section 891 at 365
CU « 86 oh Oia Okeke OOO eRe 21
Moore & Lucas, Moore’s Federal Practice,
V. 7, Section 60.33 at 60-359 (1982) ......... 21
Wright, Miller and Kane, Federal Practice
and Procedure, Civil 2d, V. 9, Section 2681
UN I 0 oS se ae 22
No.
In the Supreme Court
OF THE
United States |
October Term, 1998
Eugenie Parnar,
Petitioner,
vs,
The Law Offices of John A. Chanin,
Respondent.
CITATIONS OF OFFICIAL AND UNOFFICIAL
REPORTS OF OPINIONS AND ORDERS ENTERED
IN THE CASE
The Hawaii Supreme Court Notice of Entry of Judgment
Upon Appeal is not reported, but is attached to this
Petition. (Appendix I). The Hawaii Supreme Court
Summary Disposition Order is reported at 87:-Haw. 35, 950
P.2d 1235 (Haw. 1998), and is attached to this Petition.
(Appendix II). The Judgment against Petitioner entered by
the Circuit Court of the First Circuit of the State of
Hawaii, is not reported, but is attached to this Petition.
(Appendix IIT) The Order of the Circuit Court of the First
Circuit of the State of Hawaii Denying Petitioner’s Motion
to Open and Amend Judgment, is not reported, but is
2
attached to this Petition. (Appendix IV) The Order of the
Circuit Court of the First Circuit of the State of Hawaii
Granting Plaintiff's [Respondent] Motion for Sanctions is
not reported, but is attached to this Petition. (Appendix V)
The Order of the Hawaii Supreme Court prohibiting the
clerk from accepting further filings is not reported, but is
attached to this Petition (Appendix VII).
STATEMENT OF THE BASIS OF JURISDICTION
The Notice of Judgment on Appeal of the Hawaii
Supreme Court in this case was entered February 17, 1998.
(Appendix I)
It is the final judgment from the highest court of the
State of Hawaii. No rehearing has been requested, ordered,
or denied.
Jurisdiction is conferred on this Court with regard to
this Petition by 28 USC Section 1257(a), Article II,
Section 2 of the United States Constitution, and Supreme
Court Rule 10.
CONSTITUTIONAL PROVISIONS AND RULES
INVOLVED IN THE CASE
The First Amendment of the United States Constitution
provides:
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the night of the people peaceably
to assemble, and to petition the Government for
redress of grievances.
3
The Fifth Amendment of the United States Constitution
provides:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall
private property be taken for public use without just
compensation.
The Seventh Amendment of the United States
Constitution provides:
In Suits at common law, where the value in
controversy shall exceed twenty dollars, the nght of
trial by jury, shall be preserved, and no fact tried by
a jury shall be otherwise reexamined in any Court of
the United States, than according to the rules of the
common law.
The Fourteenth Amendment of the United States
Constitution provides:
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States, and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall
4
any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws.
Following the Preamble, the State of Hawaii
Constitution states that "[t]he Constitution of the United
States of America is adopted on behalf of the people of the
State of Hawaii.”
Article I, Section 5 of the Hawaii Constitution provides:
Section 5. No person shall be deprived of life,
liberty or property without due process of law, nor be
denied the equal protection of the laws, nor be denied
the enjoyment of the person’s civil nghts or be
discriminated against in the exercise thereof because
of race, religion, sex or ancestry.
Article I, Section 13 of the Hawaii Constitution (former
Article J, Section 10, as amended with respect to the
amount in controversy) provides:
In suits at common law where the value in
controversy shall exceed five thousand dollars, the
' right of trial by jury shall be preserved. The
legislature may provide for a verdict by not less than
three-fourths of the members of the jury.
Rule 38(a), Federal Rules of Civil Procedure, provides:
Rule 38. Jury Trial of Right
(a) Right Preserved. The right of trial by jury as
declared by the Seventh Amendment to the
5
Constitution or as given by a statute of the United
States shall be preserved to the parties mviolate.
Rule 38(a), Hawaii Rules of Civil Procedure, provides:
Rule 38. JURY TRIAL OF RIGHT
(a) Right Preserved. The right of trial by jury as
given by the Constitution or a statute of the State or
the United States shall be preserved to the parties
inviolate.
STATEMENT OF THE CASE
On June 18, 1990, John A. Chanin, Respondent herein
filed a complaint in the First Circuit Court of Hawaii
claiming a balance of $24,431.88 in attorney fees still
owing after taking $45,545.68 from the trust account of his
client, Eugenie Parnar, Petitioner herein. Petitioner filed
an answer and counterclaim on July 9, 1991, charging him
with breach of his fee agreement, false and fraudulent
billings, and legal malpractice. Respondent made
musrepresentations, increased his hourly rate without notice,
submitted false and fraudulent billings, including entry for
55 hours in one day for one attorney work and engaged in
negligent representation of Petitioner causing her
substantial damages. Petitioner requested a jury trial.
Respondent noticed Petitioner’s deposition for December
4, 1991, and thereafter "day to day until completed.”
When Petitioner and her attorney attended the deposition,
Respondent began questioning abusively, then, with no
advance notice, suddenly announced that he had to
terminate the deposition, saying he had to leave at 11:30
a.m. that day to go to the airport to catch a flight to the
6
mainland. The record further reveals that Respondent’s
conduct of the deposition was harassing and abusive as he
asked totally irrelevant and obnoxious questions before
abruptly stopping it. As presented in the Opening Brief
(Appendix IX) and provided by the record, Respondent
asked no questions about Respondent’s services as her
attorney, Petitioner’s alleged outstanding legal bills,
Respondent’s malpractice, or anything whatsoever about
the allegations in the complaint or counterclaim.
Petitioner thereafter filed a motion to terminate the
deposition. At the hearing on Petitioner’s motion, the
court found the questioning irrelevant and a waste of time.
The court did not terminate the deposition, but ordered
limitations on Respondent’s deposition tactics. Although
ordered to prepare the order, Respondent never did and it
was never entered.
Petitioner thereafter declmed to submit to a deposition
due to the absence of a written limiting order,
Respondent’s failure to take the deposition on court
ordered dates; his failure to return Petitioner’s files so that
she could prepare for the deposition; and after Petitioner’s
attomey withdrew, because then she was without legal
representation. Respondent filed motions to compel which
were heard before different judges and he misrepresented
to each court what other judges had previously ruled. He
told one court that the limiting order had been filed when
the record provides it had never been filed. Respondent
attributed statements to judges that appear nowhere in the
record or transcripts of proceedings. When Respondent
obtained an oral order limiting the deposition to specific
dates, he failed to notice Petitioner’s deposition for those
dates.
«ita uamaaaaaaulaameia
5
Later, Respondent again noticed a deposition and served
Petitioner with a subpoena duces tecum when her attorney
withdrew leaving her without counsel. Petitioner sought a
protective order to continue her deposition until she found
an attorney and obtained her files from Respondent. While
the court ordered Petitioner to submit to a deposition on
March 22, 1995, a written order was never entered from
which Petitioner could seek appellate review.
Petitioner complied with his subpoena duces tecum and
timely notified Respondent by letter that she could not
submit to a deposition without ‘counsel and without
Respondent returning her files and she needed the entry of
an order so that she could seek appellate review.
Respondent immediately filed a motion seeking
sanctions on Petitioner for failure to appear at the
deposition even though no written order was ever entered.
Petitioner, pro se, timely filed her Memorandum in
Opposition to [Respondent’s] Motion for an Order
Imposing Sanctions Upon [Petitioner] for Failure to Submit
to The Taking of Her Deposition, filed March 24, 1995.
(Appendix XJ).
In making her objections, Petitioner argued that
Respondent’s motion for sanctions under Rule 37, Hawaii
Rules of Civil Procedure (“HRCP") was an attempt to
thwart her right of constitutional due process; that
Respondent himself had engaged in unfair and inequitable
conduct by disregarding Rule 23, Hawaii Rules of the
Circuit Courts (which mandate submission of proposed
orders for entry) by failing to submit orders; that by
refusing to return her files, her right to fair preparation for
deposition and trial was jeopardized; that Respondent was
8
not entitled to any sanctions and certainly not dismissal of
her counterclaim, based on the law and special
circumstances of this case; and that dismissal of her
counterclaim and entry of default would be a denial of her
right to a hearing on the merits in this case and would
violate her fundamental constitutional rights including her
right to jury trial. Petitioner argued particularly that entry
of the order was needed in order for her to seek immediate
appellate review of the violations of her constitutional
rights as therein outlined and that failure to enter orders
violated her constitutional right to seek appellate review.
At the hearing, Petitioner, pro se, argued that there was
no order entered by the court on her motion for protective
order which she needed in order to seek appellate review.
She provided that as cited in her memorandum, the Chuck
v. St. Paul Fire and Marine Ins. Co., 61 Haw. 552, 606
P.2d 1320, 1321 (Hawaii 1980) and Cohen v. Beneficial
Loan Corp., 337 U.S. 541, 69 S.Ct., 1221, 93 L.Ed 1528
(1949) cases indicated that she had a right to seek appellate
review under the collateral order doctrine on the Court’s
decision denying her motion for protective order.
Despite the constitutional arguments and other issues
raised by Petitioner in her memorandum in opposition and
at the hearing, the court granted Respondent’s motion and
imposed the harshest of sanctions, dismissing Petitioner’s
counterclaim with prejudice, and entry of default against
Petitioner on Respondent’s claim without making any
findings of bad faith, wilful disobedience, or fault.
(Appendix V)
Subsequently, without notice or hearing, the court
entered judgment in favor of Respondent in the amount of
$24,431.88, plus additional elements including prejudgment
9
interest, attorneys’ fees and costs without proof of those
amounts. The judgment mushroomed to $47,346.26.
(Appendix II)
Petitioner, pro se, filed a motion to open and amend the
judgment and for new trial, arguing that the judgment was
void and should be vacated because it was entered without
notice and an opportunity to be heard as required by
Hawaii Rules of Civil Procedure ("HRCP”), Rule 55(b)(2),
before entry of judgment; without any proof hearing;
without the amount of the judgment being substantiated;
and based on newly discovered evidence of Respondent’s
conflict of interest. The trial court denied Petitioner’s
motion and demied her any proof hearing, right to jury
trial, and her right to contest the amount of the judgment.
Respondent was ordered to draft the order. The Court
entered, over Petitioner’s objections,” Respondent’s
proposed order replete with an erroneous statement of
facts. The order (Appendix IV) failed to address
Petitioner’s argument based on constitutional violations.
Petitioner, pro se, timely filed a notice of appeal from
the judgment and order denying her motion to open and
amend the judgment. In her Opening Brief, (Appendix
LX)’, Petitioner argued that the lower court judgment was
2 Petitioner’s memorandum in opposition to the proposed order
denying her motion is not attached because it is fully addressed in the
Opening Brief (Appendix IX).
> The exhibits attached to the Opening Brief are not included in
this Appendix as it is not feasible at this time to format them m
compliance with the Supreme Court’s requirement that text be no
smaller than 12 point type in the body and 10 point type in foomotes
while maintaining the nature, content, and readability, of the original
documents which can be provided if necessary.
10
obtained by fraud on the court and should be vacated; that
she was justified in not submitting to a deposition without
counsel and files; that she was not found to have acted
willfully or in bad faith justifying the drastic action of
default and dismissal; that she was not warmed of sanctions
prior to default with a less drastic sanction being
considered; that the judgment was improperly entered as it
was signed by a different judge than the judge that
conducted the hearing; and that thus she was denied her
consttutional right to due process as guaranteed her under
the United States Constitution and the Hawaii Constitution.
Respondent filed an untimely Answering Brief without
rebutting Petitioner’s arguments and points of error in the
Opening Brief and without citing any cases.
Petitioner, filed her Reply Brief (Appendix X) further
addressing the fraud upon the court committed by
Respondent, who completely failed to rebut Petitioner’s
arguments and points of error, and her request that the
Hawaii Supreme Court, pursuant to rules of court and the
Constitution, afford relief from attorneys who perpetrate
fraud upon the court, use abusive litigation practices, and
ignore court rules and orders and that these constitute a
clear and undisputable flagrant abuse of her nghts
inconsistent with Constitutional guarantees and the
administration of justice.
On January 27, 1998, the Hawaii Supreme Court entered
its summary disposition order (Appendix II) denying her
appeal and furthering the violation of her Constitutional
rights under the Fourteenth Amendment to the United
States Constitution and due process and equal protection
under Article I, Section 5 of the Hawaii State Constitution.
1]
On February 17, 1998, the Hawaii Supreme Court
entered its judgment on appeal (Appendix I) from which
this Petition for Writ of Certiorari is filed.
ARGUMENT
L
THIS COURT SHOULD REVIEW THE
CONSTITUTIONAL LAW VIOLATIONS
WHERE THE ALTERNATIVE IS ALLOWING
BLATANT STATE COURT NULLIFICATION
OF STATE AND FEDERAL LAWS AND
UNITED STATES CONSTITUTIONAL
GUARANTEES.
"The guaranty of due process found in the Fifth
Amendment of the Federal Constitution declares that no
person shall "be deprived of life, liberty, or property
without due process of Jaw.” The Fourteenth Amendment
declares that no state shall "deprive any person of life,
liberty, or property without due process of law." The Fifth
Amendment is a limitation upon the powers of Congress,
while the Fourteenth Amendment is a limitation upon the
powers of the states." 16 Am Jur 2d, Constitutional Law,
pg. 951.
Petitioner herein, in vindication of her Federal
constitutionally protected rights, brings before this court a
fraud upon the court judgment to request a Writ of
Certiorari. Title 28 U. S. C. § 1257(a), provides that final
judgments or decrees rendered by the highest court of a
State in which a decision could be had, may be reviewed
by the Supreme Court by Writ of Certiorari where any
title, right, privilege or immunity is specially set up or
claimed to be violated under the Constitution. All courts
12
state and federal are mandated to apply United States
Constitutional law. Rodriguez v. Westlab, Inc., 833
F.Supp. 425, 428 (S.D.N.Y. 1988).
The summary ruling by the Hawaii Supreme Court,
without opinion, Appendix II of this Petition, validates a
void, fraud upon the court judgment in selective application
of the law, is repugnant to and violates the Constitution of
the United States. It is the duty of the Circuit Court of
Hawaii and the Hawaii Supreme Court, the State’s highest
court to apply constitutional law and prevent the
perpetration of fraud upon the court to obtain a judgment
in violation of due process. United States Constitutional
due process analysis can only conclude that fraud upon the
court by an attorney and officer of the court resulting in a
fraudulent judgment cannot stand. Fraud vitiates every
transaction tainted by it, even the solemm judgment of
courts of record. Crow v Crow, 485 S.W.2d 928, 931
(C.C.A. Texas 1972). Where fraud vitiates a judgment or
decree then it cannot stand; fraud vitiates and avoids all
human transactions, from the solemn judgment of a court
to a private contract. Groves v. Witherspoon, 379 F. Supp.
52, 59, 61 (E.D.Tenn. 1974). Where a default judgment is
the result of fraud on the court it is void and must be set
aside as a nullity. Trehan v. Von Tarkanyi, 85 B.R. 920,
921, 933 (S.D.N.Y. 1988). Relief from void judgments is
not discretionary, it is mandatory. Orner v. Shalala, 30 F.
3d 1307, 1310 (10th Cir. 1994).
Entry of a judgment because of fraud on the court and
the judicial errors violate the due process constitutional
rights to have matters fairly adjudicated. When the Hawaii
Supreme Court by its Summary Disposition Order and the
Notice of Judgment on Appeal, affirmed the void judgment
based on fraud upon the court, it furthered the violation of
13
Petitioner’s right to have matters fairly adjudicated, and her
due process constitutional rights were violated.
Petitioner bases her argument on Leavitt v. Jane L. et.
al., 518 U S 137, 116 S Ct 2068, L Ed 2d 443 (1996),
wherein at pages 144 and 145, this Court provided that it
does not normally grant petitions for certiorari solely to
review application of state law by a federal court of
appeals, but this Court should undoubtedly do so where the
alternative is allowing blatant federal-court nullification of
state law.
Similarly to Leavitt, this Court is requested to give
certiorari standing to an extraordinary case based on a
failure of a State court to apply state and federal law and is
urged to exercise its inherent plenary power of de novo
review of a fraud upon the court erroneous judgment
affirmed by a State Supreme Court where the alternative is
allowing blatant state court nullification of State and
Federal laws and Constitutional guarantees of State and
Federal Constitutions.
It is in the context of the Supreme Court’s "plainly
wrong" interpretation in Leavitt, Id., at 144 and 145, that
this case falls and presents a State Supreme Court’s
equivalently clear refusal to apply State and Federal law by
giving standing to a fraud upon the court judgment, which
has the kind of national significance for the grant of
certiorari and the typical predicate for exercise of Supreme
Court jurisdiction. The upholding of fraud upon the court
by an attorney as an officer of the court, is "plainly wrong"
by any standard and frustrates all laws, statutes, and
legislative intent pertaining to fraud and fraud upon the
court, and constitutional guarantees of due process.
14
The Leavitt Court, Id., at 145, provided that the general
presumption of the United States Supreme Court that
Federal Courts of Appeals correctly decide questions of
state law reflects a judgment as to the utility of reviewing
such questions in most cases, not a belief that the courts of
appeals have some natural advantage in that domain. The
court stated further at 145:
That general presumption is obviously inapplicable
where the court of appeals’ state-law ruling is
“plainly wrong.”
The decision of the Hawaii Supreme Court was "plainly
wrong” in affirming 2 "plainly wrong” lower court
judgment. The Hawaii Supreme Court by summarily
affirming the lower court’s judgment against Petitioner
nullified State law and State and United States
Constitutional guarantees of due process, equal protection,
fair hearing, and fundamental fairness. This constituted a -
judicial abuse of power.
Petitioner had a judgment entered against her without
notice and opportunity to be heard on its contents. This
violates her due process rights under the United States
Constitution. In Hastings-Murtagh v. Texas Air Corp., 119
F.R-D. 450 (S.D. Fla. 1988), the court in providing that a
person must be given minimal due process before judgment
can be entered against such person, stated at page 455 that:
A fundamental aspect of constitutional law is the
providing of minimal due process to an individual
who could have an interest affected by the outcome
of a litigation. A court, therefore, must assure that
these affected individuals are provided with notice of
the action and an opportunity to be heard.
ie
=
15
Petitioner had decisions against her made by lower
courts but written orders were not entered from which
Petitioner could exercise her right to seek interlocutory
appellate review. Petitioner cited in her Memorandum in
Opposition to Sanctions (Appendix XI), Chuck, supra, 606
P.2d at 1321 which recognized that a party could seek
interlocutory review of an order without waiting until final
adjudication. Petitioner argued that she had a right to
entry of orders so that she could exercise her right to seek
review of them. The court ignored this in entering
judgment against her, when a written order had never been
entered from which she could seek reconsideration or
appellate review, thus denying her due process rights.
Relevant documents throughout the record substantiate
Petitioner repeatedly argued in protection of her Federal
due process and equal protection constitutional rights. In
her objections to Plaintiff's proposed order denying her
motion to open and amend judgment entered January 11,
1996, filed February 20, 1996, Petitioner provided:
This repeated false certification by [Respondent] and
his not serving me in accordance with the Hawaii
Rules of Civil Procedure ("“HRCP”) denies me my
rights to the Rules as applicable to every other
individual, my rights to fair procedure and fair
hearing, violates due process and equal protection
rights guaranteed every individual by the Hawaii
Constitution and the Constitution of the United
States, and for the Court to look aside and give
Plaintiff carte blanche noncompliance exemption to
the rules because he is an officer of the court is class-
based invidious discrimination and violates my civil
rights.
16
Petitioner asserts she has the right to honest, fair and
equal administration of laws and protection of her
constitutional rights and any denial of her right to a
‘conscientious and fair administration of the judicial process
by a court as required by law is an interference of her
Fourteenth Amendment rights under the United States
Constitution.
This Court should exercise its discretion under its own
Rule 10 to review “plainly wrong” federal constitutional
violations resulting from the judgment procured by fraud
upon the court, violations of due process, equal protection,
fair hearing and fundamental fairness, and denial of
Petitioner’s the right to a trial by jury.
The "plainly wrong” entry of judgment violated
Petitioner’s rights of due process, liberty, property, and to
a trial on the merits. The right to one’s “day in court” is
one of the most fundamental of constitutional nghts.
Nonetheless, without admonition, the State court
disregarded these nights by upholding abuse of process and
obstruction of justice, dismissed Petitioner’s counterclaim,
and entered default against her, thus denying Petitioner her
“day in court,” the harshest of sanctions.
This court addressed the issue of "whether Fifth
amendment due process is violated by the striking of a
complaint because of a plaintiff's inability, despite good-
faith efforts, to comply with a pretrial production order.”
Societe Internationale Pour Participations Industrielles et
Commerciales, S.A. v. Rogers, 357 U.S. 197, 210, 78 S.Ct.
1087, 78 L.Ed. 2d 1255 (1958). This Court concluded that
"[t]he findings below, and what has been shown as to
petitioner’s extensive efforts at compliance, compel the
conclusion on this record that petitioner’s failure to satisfy
4
3
3
‘
17
fully the requirements of this production order was due to
inability fostered neither by its own conduct nor by
circumstances within its control.” Jd. at 211. "“[WJe think
that [Federal Rules of Civil Procedure) Rule 37 should not
be construed to authorize dismissal of this complaint
because of petitioner’s noncompliance with a pretrial
production order when it has been established that failure
to comply has been due to inability, and nor to willfulness,
bad faith, or any fault of petitioner." Id. at 212 (emphasis
added).
Petitioner did not act with willfulness, bad faith, or
fault. Given Respondent’s previous abusive deposition
tactics, she could not submit to a second deposition without
counsel to represent her; without Respondent’s return of
her files in the underlying suit which would allow her to
prepare; and without Respondent submitting the earlier
limiting order regarding the taking of her deposition.
Despite this, and Respondent’s repeated
misrepresentations to the court as evidenced in the record,
which the court ignored, the harshest of sanctions were
imposed on Petitioner in denial of her constitutionally
protected rights to due process under the Fourteenth
Amendment and particularly her right to jury trial on the
merits.
The court in reversing the striking of a claimant’s filings
and the granting of judgment, provided in Degen v. United
States, 517 U.S. 820, 116 S.Ct. 1777 (1996) at page 828:
The right of a citizen to defend his property against
attack in a court is corollary to the plaintiff's mght to
sue.
18
s*esef
It remains the case however, that the sanction of
disentitlement is most severe and so could disserve
the dignitary purposes for which it is invoked. The
dignity of a court derives from the respect accorded
its judgments. That respect is eroded, not enhanced,
by too free a recourse to rules foreclosing
consideration of claims on the merits.
A judgment is void if it violates due process. Orner v.
Shalala, 30 F.3d 1307 (10 Cir. 1994). Due process
requires that the harsh sanction of dismissal be predicated
on willfulness, bad faith, or fault. Archibeque v. Atchison,
Topeka and Samta Fe Ry. Co., 70 F.3d 1172 (10 Cir.
1995).
In Petitioner’s case, these due process predicates were
not met
Accordingly, the Petition for Writ of Certiorari should
be granted to protect Petitioner’s constitutional right of due
process, equal protection, fundamental faimess, jury trial,
and fair access to adjudication as nullified by the State
lower court and Supreme Court by entry of the judgment,
based on fraud upon the court and contrary to fundamental
fairness which violated Petitioner’s State and United States
constitutional rights.
19
IL
A FRAUD UPON THE COURT JUDGMENT
AND RECORD FRAUGHT WITH FLAGRANT
AND MANIFEST VIOLATIONS OF A
LITIGANT’S UNITED STATES
CONSTITUTIONAL RIGHTS INHERENT TO
THE ADMINISTRATION OF JUSTICE
PROVIDE SUFFICIENT UNCONSCIONABLE
ABUSE OF POWER TO WARRANT THIS
COURT’S PLENARY DE NOVO REVIEW
WHEN A STATE SUPREME COURT ACTS
SOVEREIGN TO THE CONSTITUTION OF
THE UNITED STATES.
This case presents the issue whether the affirmance of a
fraud upon the court judgment and flagrant and manifest
violations of a litigant’s due process rights inherent to the
administration of justice provides sufficient unconscionable
abuse of power to warrant this Court granting a Writ of
Certiorari.
This Court had the issue of fraud upon the court before
it in Hazel-Atlas Glass v. Hartford Empire, 322 U.S. 238,
246, 64 S.Ct 997, 1003, 88 L.Ed 1250, 1256 (1944),
which rendered, page 244, that where enforcement of a
judgment is "manifestly unconscionable,” a federal court
will wield the power over judgments to correct injustices.
This Court further, page 245, recognized that:
Every element of fraud here disclosed demands the
exercise of the historic power of equity to set aside
fraudulently begotten judgments.
In Root Refining v. Universal Oil Products, 169 F.2d at
522 (3d Cir. 1948), the Court at page 518 provided that,
20
"the inherent power of a federal court to investigate
whether a judgment has been obtained by fraud is without
question.” The Court further recognized that fraud upon
the court “is a wrong against the institutions set up to
protect and safeguard the public. Jd., at 522.
"Fraud, misrepresentation, and circumvention used to
obtain a judgment, are generally regarded as sufficient
cause for the opening or vacating of the judgment [.]"
Southwest Slopes v. Lum, 81 Haw. 501, 511, 918 P.2d
1157 (App. 1996). "The possibility that Plaintiffs used
fraud upon the court when obtaining the summary
judgment in their favor,” ruled the Hawaii Intermediate
Court of Appeals, "motivates us to vacate and remand."
Id.; see also, Magoon v. Magoon, 70 Haw. 605, 616, 780
P.2d 80 (1989) ("a court has inherent power to investigate
whether a judgment was obtained by fraud"); State v.
Martin, 56 Haw. 292, 294, 535 P.2d 127 (1975) ("implicit
in the proper and orderly administration of justice"); Kang
v. Harrington, 59 Haw. 652, 660, 587 P.2d 285 (1978)
(“the appropriate action to be taken in a case of fraud upon
the court is for the injured party to seek [relief] from the
judgment of the court.”)
In Hazel-Atlas Glass, supra, page 246, this Court
addressed fraud on the court and lawyers in classic
language by Mr. Justice Black:
{Tampering with the administration of justice in the
manner indisputably shown here involves more than
an injury to a single litigant. It is a wrong against
the institutions set up to protect and safeguard the
public, institutions in which fraud cannot
complacently be tolerated consistently with the good
order of society.
|
21
"Every element of fraud here disclosed demands the
exercise of the historic power of equity to set aside
fraudulently begotten judgments.” Jd. at 245;
"A number of courts have relied on Hazel-Atlas as
authority for the proposition that involvement of an
attorney in the perpetration of the fraud is a key factor in
the existence of fraud upon the court." 47 Am_Jur.2d,
Judgments, Section 891 at 365 (1984). Professor Moore
states the following about Hazel Atlas:
[A]n attorney of Hartford was implicated in
perpetrating the fraud. We believe that this is
important, for, while an attorney should represent his
client with singular loyalty, that loyalty obviously
does not demand that he act dishonestly or
fraudulently; on the contrary his loyalty to the court,
as an officer thereof, demands imtegrity and honest
dealing with the court. And when he departs from
that standard in the conduct of a case he perpetrates a
fraud upon the court. :
Moore & Lucas, Moore’s Federal Practice, V. 7, Section
60.33 at 60-359 (1982). "Fraud on the court,” notes
Professor Moore, "is a fraud perpetrated by officers of the
court so that the judicial machinery cannot perform im the
usual manner{.J" Jd. at 60-360; see also, Haner v. Haner,
373 P.2d 577, 579 (Utah 1962) (false statements by
lawyers that prevent a party from prosecuting a claim or
defense constitute fraud on the court.)
Defaults obtained by fraud upon the court are
particularly vulnerable to reversal. "[DJismissal of a
pending action by the trial court with prejudice is not
favored." Azer v. Courthouse Racquetball Corp., 9
22
Haw.App. 530, 540, 852 P.2d 75 (1993); see also Wright,
Miller and Kane, Federal Practice and Procedure, Civil
2d, V. 9, Section 2681 at 402 (1983) (“defaults are not
favored by the law and any doubts usually will be resolved
in favor of the defaulting party"); Jrehan, supra at 921
("as a result of the fraud perpetrated by the Trehans the
default judgment is void"); Anno, 78 A.L.R.3d 150 (1962),
"Fraud in Obtaining or Maintaining Default Judgment as
Grounds for Vacating or Setting Aside Judgment in State .
Courts."
Judgments are not vacated merely because perjured
evidence is introduced at a hearing. Chisom v. Stephenson
363 P.2d 229, 232 (Okla. 1961). "[I]}t must be such fraud
as to prevent the other from having a trial on the issues."
Id. “Fraud upon the court embraces,” declared the
Montana Supreme Court recently:
only that species of fraud which subverts or attempts
to subvert the integrity of the court itself, or fraud
perpetrated by officers of the court so that the
judicial machinery cannot perform in an impartial
manner. Jn re Marriage of Miller, 902 P.2d 1019,
1022 (Mont. 1995) (emphasis added).
"Fraud upon the court includes only the most egregious
conduct,” said the court, "such as the fabrication of
evidence in which an attorney has been implicated[.]" Jd.
"(If our adversary system is to function according to
design,” said Justice Marshall in Geders v. United States,
425 U. S. 80, 93, 96 S.Ct. 1330, 1333, 47 L. Ed. 2d 592,
602 (1976), "we must assume that an attorney will observe
his responsibilities to the legal system.”
-
id
»
23
Respondent tainted every ruling in this case by
repeatedly making misrepresentations and fabricating
evidence in court documents and hearings, specific
instances of which were outlined in Petitioner’s Opening
and Reply Briefs, which resulted in a judgment against
Petitioner and dismissal of her counterclaim. Respondent,
by filing false documents and making misrepresentations
a fraud upon the court." People v. Radinsky,
490 P.2d 951, 953 (Colo. 1971). The Radinsky court
declared at page 952:
If acts of this type that the respondent has committed
are not promptly and severely punished, the public
will not have reason to trust lawyers that maintain the
high standards of our profession.
x**x «zt
Since a lawyer is an officer of the court, we cannot
tolerate or allow fraud by a lawyer to go unpunished.
zee
Our most sacred duty is to maintain the integrity of
the law profession by disciplining lawyers who
indulge in practices which are designed to perpetrate
a fraud on the courts.
See also, In re French, 28 Haw. 47, 59 (1924) (attorney
disbarred for giving "deliberately false" testimony.)*
* See also, Virgin Islands Housing Authority v. David, 823 F2d
764, 767 (3d Cir. 1987) (‘we believe that Maduro’s argument
perpetrated fraud upon the district court”); Porter v. Goodyear Tire and
(continued...)
24
The use of fraud, misrepresentation, and circumvention
to obtain a judgment constitute cause for opening or
vacating a judgment. Southwest Slopes, supra, page 511.
Further, a judgment obtained by fraud is a "void judgment”
and may be attacked at any time by any court. Rook v.
Rook, 353 S.E.2d 756, 758 (Va. 1987).
This Court is requested to exercise its discretion to
determine that the judgment against Petitioner was void,
"plainly wrong,” constitutionally defective, and set it aside.
In doing so, this Court is respectfully requested to
review the record and the fraud upon the court committed
by an attorney, officer of the court, in light of its own
independent judgment without giving special weight to the
State court decisions. U.S. v. Brian N., 900 F.2d 218, 220
(10th Cir. 1990). Particularly this Court should review
constitutional questions de novo. California v. FCC, 75
F.3d 1350, 1361 (9th Cir. 1996).
The judgment entered against Petitioner based on
Respondent’s fraud upon the court conduct is void, violates
*(...continued)
Rubber, 536 F2d 1115, 1119 (6th Cir. 1976) ("since attomeys are
officers of the court, their conduct, if dishonest, would constitute fraud
on the court”); Lockwood v. Bowles, 46 F RD. 625, 633 (D.C_D.C.
1969) (“when [an attorney] departs from that standard in the conduct of
a case he perpetrates a fraud upon the court”); England v. Doyle, 281
F.2d 304, 306 (9th Cir. 1960) (“unconscionable plan or scheme which
is designed to improperly influence the court"); Rozier v. Ford Motor
Company, 573 F 2d 1332, 1338 (Sth Cir. 1978), (fabrication of
evidence by a party in which an attorney is implicated is fraud upon
the court”); In re Intermagnetics America, 926 F 2d 912, 916 (9th Cir.
1991) (“fraud upon the court includes both attempts to subvert the
integrity of the court and fraud by an officer of the court.”)
Aa Mate as
Pd ple
25
due process under the Fourteenth Amendment to the United
States Constitution, and warrants de novo review by this
Court.
Il.
THE ACCESS TO COURT GUARANTEE OF
THE UNITED STATES CONSTITUTION IS
VIOLATED BY ORDER OF A STATE
SUPREME COURT JUSTICE PROHIBITING
THE CLERK FROM ACCEPTING FURTHER
FILINGS IN AN APPEAL.
Subsequent to the Hawaii Supreme Court’s Notice of
Judgment on Appeal, Respondent herein resigned the
practice of law in lieu of discipline. The Hawaii Supreme
Court’s Order Allowing Resignation in Lieu of Discipline
was entered March 19, 1998, Appendix VI. Under Rule
2.14, Hawaii Supreme Court Rules, it is a disbarment for
all purposes under these rules.
On March 20, 1998, in accordance with the Order
Allowing Resignation in Lieu of Discipline, Michael T.
Lee, Assistant Disciplinary Counsel of the Office of
Disciplinary Counsel ("ODC"), published on March 20,
1998, To All State and Federal Judges in Hawai’i, a Notice
conceming Attorney John A. Chanin, which stated:
Administrative Judges are asked to take such action
as is deemed necessary to protect the rights of any
clients of Mr. Chanin whose cases may be pending
court.
A copy of the notice is attached as Appendix VIII.
26
This Court is respectfully requested to take the action
requested herein to protect the rights of Petitioner, a former
client of Respondent and victim of his conduct.
_On April 12, 1996, Petitioner filed in the Hawaii
Supreme Court her emergency motion for stay of
enforcement of final judgment on appeal pending obtaining
the ODC records and to remove from the lower court
calendar Respondent’s motion to terminate stay, to
distribute funds from Petitioner’s cash deposit in lieu of
appeal bond, and for attorney’s fees and costs on appeal.
The Order regarding that Motion dated April 8, 1998,
attached hereto as Appendix VII, provides:
IT IS HEREBY ORDERED that the motion is
stricken.
IT IS FURTHER ORDERED that the Clerk shall
accept no further filings in this appeal.
Petitioner argues that this Order prohibiting further
filings violated the access to court guarantee of the United
States Constitution. That right is:
fundamental and is protected by the United States
Constitution whether the claim arises under state or
federal law. The right is grounded in the First
Amendment right to petition the government for
redress, the Article Four protection of privileges and
immunities, and the due process clause of the
Fourteenth Amendment.
4
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.
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4
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3
;
3
:
bt
27
ACLU v. Mabus, 719 F.Supp. 1345, 1358 (S.D. Miss.
1989), vacated 911 F.2d 1066 (Sth Cir. 1990); reh. den.
919 F.2d 735 (Sth Cir. 1990).
It is a well-established rule that once a State, or the
Federal Government establishes procedures of appellate
review, it must insure equal and open access to those
procedures for all appellants. Rinaldi v. Yeager, 384 US
305, 86 S Ct. 1497, 16 L. Ed. 2d 377 (1966); Griffin v.
Minois, 351 U.S. 12, 100 L. ed 891, 76 S Ct. 585, 55
ALR2d 1055 (1956); Douglas v. California, 372 US 353,
83 S Ct 814, 9 L. Ed 2d 911, (1962); Lane v Brown, 372
US 477, 83 S Ct 768, 9 L Ed 2d 892 (1963); Draper v.
Washington, 372 US 487, 833 S Ct 774, 9 L Ed 2d 899
(1963).
Litigants, like Petitioner, should have an adequate
opportunity to represent their claims fairly within the legal
system. The order prohibiting such access is an
unconstitutional abridgment or impairment of a litigant’s
rights of access to the courts, a principle derived from
constitutional guarantees of due process and equal
protection. This Court, in Bounds v Smith, 430 U.S. 817,
$22, 97 S.Ct 1491, 52 L. Ed. 2d 772 (1977), recognized
that access to'the courts must be adequate, effective, and
meaningful.
Petitioner provides that the liberty guarantee of the
United States is violated by the prohibition of filing of
court documents; that documents should be able to be filed
without interference; and that the court cannot suppress or
pass judgment upon legal documents prior to filing in the
court, and that to do so constitutes an abridgment of a
litigant’s rights to petition the government for redress of
grievances under the First Amendment to the United States
28
Constitution and a violation of the due process and equal
protection nights of the Fourteenth Amendment.
Rinaldi, Id. 384 US 305, 16 L.Ed 2d 577, 581, 86 S Ct
1497, provided:
[5] This Court has never held that the States
are required to establish avenues of appellate review,
but is now fundamental that, once established, these
avenues must be kept free of unreasoned distinctions
that can only impede open and equal access to the
courts. Griffin v. Illinois,-351 U.S. 12, 100 L Ed 891,
76 S Ct $85, 55 ALR2d 1055; Douglas v California,
US 353, 9 L ed 2d 899, $3 S Ct 774.
The Hawaii Supreme Court by prohibiting further filings
violated Petitioner’s rights of due process and court access
because Petitioner is no longer able to exercise her right to
further petition the State Supreme Court for reconsideration
of that prior order or other relief.
CONCLUSION
This Court is urged to grant certiorari because the
subject matter of the Petition has significant public interest;
the case involves legal principles of major significance to
the jurisprudence of the State; and, the decision of the
State Supreme Court allowing a fraud upon the court
judgment to stand is in conflict with fraud upon the court
decisions in other States.
The unpublished decision by the Hawaii Supreme Court
without opinion refused to address any of the fraud on the
court cases and federal and state laws and Constitutional
29
violations Petitioner raised in her defense and cited in her
Opening and Reply Briefs.
The decision affirmed the right of State circuit court
judges to uphold a judgment procured by fraud despite the
record and numerous cases cited rendering such action as
contrary to law and the Constitutions of the United States
and the State of Hawaii. The decision looked aside to the
rendering of written orders, adherence to rules of court and
civil procedure, openly defied due process, and rewarded
Respondent against every attempt by Petitioner to defend
against his fraudulent action.
process rights and right to jury trial on the merits under the
Constitutions of the United States and the State of Hawaii.
The Hawaii Supreme Court affirmed a void judgment
based on the violations of state and federal laws and
constitutional protections. This judgment denied Petitioner
her constitutional rights and this Court should grant the
Petition in order to fully review what was "plainly wrong.”
Respectfully submitted,
Eugenie Parnar
252 Paoa Place, #3-3
Honolulu, Hawaii 96815
808/955-5050
Pro se
APPENDIX
A-|
Appendix I
All orders are from courts of the State of Hawaii
Supreme Court Notice of Entry of Judgment on Appeal
S.C. No. 19946
IN THE SUPREME COURT OF
THE STATE OF HAWAII
THE LAW OFFICES OF
JOHN A. CHANIN,
Plaintiff-Appellee,
VS.
EUGENIE PARNAR,
Defendant-Appellant.
EUGENIE PARNAR,
Counterclaimant and Appellant,
VS.
THE LAW OFFICES OF
JOHN A. CHANIN,
Counterclaim-Defendant and Appellee.
Civil No. 90-1843
APPEAL FROM THE
1) THE JUDGMENT FILED ON JANUARY 11, 1996,
AND
A-2
2) THE ORDER DENYING DEFENDANT EUGENIE
PARNAR'S MOTION TO OPEN AND AMEND
JUDGMENT ENTERED JANUARY 11, 1996, FILED
MAY 24, 1996.
FIRST CIRCUIT COURT
HON. Robert G. Klein
HON. Francis Q.F. Wong
HON. Russell Nnagata
HON. Barry Kurren
HON. Thomas Kaulukukui, Jr.
HON. Virginia L. Crandall
HON. Kevin S.C. Chang
HON. Wilfred K. Watanabe
HON. Colleen K. Hirai
HON. Herbert Shimabukuro
HON. Wendell K. Huddy
HON. Karen N. Blondin
HON. Gail C. Nakatani
HON. Danial G. Heely
Judges
[Filed]
[1998 Feb-17 9:24 AM]
[L. Nakagawa]
[Clerk Supreme Court]
NOTICE OF MENT ON APP
TO THE HONORABLE PRESIDING JUDGE OF THE
FIRST CIRCUIT COURT.
A-3
PLEASE TAKE NOTICE the following Judgment on
Appeal is entered this day by the Supreme Court of the State
of Hawaii:
Pursuant to the summary disposition order of the Supreme
Court entered on January 21, 1998 the Judgment filed on
January ll, 1996, and the Order Denying Defendant Eugenie
Parnar's Moion to Open and Amend Judgment entered
January ll, 1996, filed May 24, 1996 are affirmed.
DATED: Honolulu, Hawaii, FEB 17 1998.
BY THE COURT:
[L Nakagawa]
[Clerk Supreme Court]
APPROVED:
/s) MARIO R. RAMIL
JUDGE
A-4
Appendix II
Supreme Court Summary Disposition Order
No. 19946
IN THE SUPREME COURT OF
THE STATE OF HAWAII
THE LAW OFFICES OF
JOHN A. CHANIN,
Plaintiff-Appellee,
VS.
EUGENIE PARNAR,
Defendant-Appellant.
EUGENIE PARNAR,
Counterclaimant and Appellant,
vs.
THE LAW OFFICES OF
JOHN A. CHANIN,
Counterclaim-Defendant and Appellee.
Civil No. 90-1843
FIRST CIRCUIT COURT
A-5
[Filed]
[1998 Jan - 21 10:43 AM]
{[K. Miyamura]
[Clerk Supreme Court]
SUMMARY DISPOSITION ORDER
Upon careful review of the record and the briefs submitted
by the parties and having given due consideration to the
arguments made and the issues raised by the parties,
IT IS HEREBY ORDERED that the judgment(s) or
order(s) from which the above-captioned appeal is taken is
hereby affirmed.
DATED: Honolulu, Hawaii, January 21, 1998.
On the briefs:
Peter Van Name Esser /s/ Ronald T.Y. Moon
(on the opening brief) /s/ Steven H. Levinson
for Defendant-Appellant/ /s/ Paula A. Nakayama
Counterclaimant and /s/ Mario R. Ramil
Appellant /s/ Michael A. Town
John A. Chanin
Plaintiff-Appellee
Counterclaim-Defendant
and Appellee, Pro Se
Eugenie Parnar
(on the reply brief),
Defendant-Appellant and
Counterclaimant Pro Se
A-6
Appendix III
Judgment of the Circuit Court of the First Circuit
THE LAW OFFICES OF
JOHN A. CHANIN
JOHN A. CHANIN 650-0
2618 Pauahi Tower
1001 Bishop Street
Honolulu, Hawaii 96813
Telephone: (808)538-1637
Facsimile: (808) 532-1401
Attorney for Pro Per
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAII
THE LAW OFFICES OF
JOHN A. CHANIN,
Plaintiff,
VS.
EUGENIE PARNAR,
Defendant.
CIVIL NO. 90-1843-06
(Contract)
JUDGMENT
EXHIBITS "A" - "B"
Sin Sill AAA hal Begs 0
A-7
[Filed]
[1996 Jan - 11 4:04 PM]
[F. Otake]
[Clerk]
JUDGMENT
Plaintiff THE LAW OFFICES OF JOHN A. CHANIN's
Motion for Sanctions Against Defendant EUGENIE
PARNAR having come on for hearing before the Honorable
Wendell K. Huddy on April 19, 1995, at 10:30 a.m. and the
Order Granting Plaintiff's Motion for Sanctions against
Defendnat EUGENIE PARNAR having been entered on
August 8, 1995; and
Based upon the affidavits, pleadings and files therein,
with good cause appearing therefor;
IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that Judgment be entered in favor of Plaintiffs
THE LAW OFFICES OF JOHN A CHANIN, and against
Defendant EUGENIE PARNAR in the principal amount of
$24,431.88, plus pre-judgment interest of $13,437.55, plus
attorneys’ fees of $7,581.46 and costs of $1,895.37.
All other claims and counter-claims are hereby dismissed.
DATED: Honolulu, Hawaii, January 10, 1996.
/s/ DANIEL G. HEELEY
for Judge Wendell Huddy
A-8
EXHIBIT "A"
THE LAW OFFICES OF
JOHN A. CHANIN
JOHN A. CHANIN 650-0
2618 Pauahi Tower
1001 Bishop Street
Honolulu, Hawaii 96813
Telephone: (808)538-1637
Facsimile: (808) 532-1401
Attorney for Pro Per
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAII
THE LAW OFFICES OF
JOHN A. CHANIN,
Plaintiff,
VS.
EUGENIE PARNAR,
Defendant.
Civil No. 90-1843-06
(Contract)
ORDER GRANTING PLAINTIFF'S MOTION FOR
SANCTIONS AGAINST DEFENDANT EUGENIE
PARNAR ON MARCH 24, 1995
— |
ms. a 5 F Sa a
We aatoe Sa Su AR arn iittala “
A-9
Date: April 19, 1995
Time: 10:30 a.m.
Judge: Wendell Huddy
[Filed]
[1995 Aug - 8 3:34 PM]
[N. Anaya]
[Clerk]
ORDER GRANTING PLAINTIFF'S MOTION FOR
SANCTIONS AGAINST DEFENDANT EUGENIE
PARNAR ON MARCH 24, 1995
Plaintiff, the Law Offices of John A. Chanin, filed its
Motion for an Order for Sanctions Against Defendant
Eugenie Parnar on March 24, 1995; the matter came on for
hearing on April 19, 1995 before the undersigned Judge of
the Circuit Court of the First Circuit; the Court read the
submissions of the parties and heard their arguments, and
having considered the foregoing as well as the files and
records in this case, for Good Cause Appearing, the Court
does hereby order, Adjudge and Decree, that the following
sanctions shall be and are hereby are imposed against
Defendant Eugenie Parnar:
(1) That Defendant Parnar's counter-claim against
Plaintiff is hereby dismissed with prejudice;
A-10
(2) That Defendant Parnar is hereby held in default as
against the claims of Plaintiff, as set out in its Complaint,
said Default to be entered forthwith;
DATED: Honolulu, Hawaii, July 31, 1995
/s) WENDELL H. HUDDY
Judge of the above-entitled court
APPROVED AS TO FORM
{no signature]
EUGENIE PARNAR
A-1]
EXHIBIT "B"
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAII
THE LAW OFFICES OF
JOHN A. CHANIN,
Plaintiff,
V.
EUGENIE PARNAR,
Defendant.
Civil No. 90-1843-06
(Contract)
AFFIDAVIT OF JOHN A. CHANIN
STATE OF HAWAII )
) SS.
CITY AND COUNTY OF HONOLULU )
COMES NOW JOHN A. CHANIN, and under oath
_ deposes and says:
1. That he is an attorney licensed to practice in the State
of Hawaii and generally doing business as " The Law Offices
of John A. Chanin", Plaintiff herein;
2. That Affiant was the Defendant's attorney in
conjunction to this matter;
A-12
3. That an Order Granting Plaintiff's Motion for Sanctions
Against Defendant Eugenie Parnar filed on March 24, 1995,
filed August 8, 1995;
4. That the final invoice received by Defendant Eugenie
Parnar was on February 5, 1991;
5. That the principal amount due and owing is
$24,431.88;
6. That the pre-judgment interest of $13,437.55 is due and
owing;
7. That the attorney's fees is $7,581.46 and costs is
$1,895.37 is due and owing:
FURTHER AFFIANT SAYETH NAUGHT.
/s) JOHN A. CHANIN
A-13
Appendix IV
Order of the Circuit Court of the First Circuit
Order Denying Petitioner's Motica to Open and Amend
Judgment Entered January 11, 1996
THE LAW OFFICES OF
JOHN A. CHANIN
JOHN A. CHANIN 650-0
The Executive Centre
1088 Bishop Street
Suite 511
Honolulu, Hawaii 96813
Telephone: (808) 538-1637
Facsimile: (808) 531-5055
Plaintiff Pro Per
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAII
THE LAW OFFICES OF
JOHN A. CHANIN,
Plaintiff,
VS.
EUGENIE PARNAR,
Defendant.
Civil No. 90-1843-06
(CONTRACT)
A-14
ORDER DENYING DEFENDANT EUGENIE PARNAR'S
MOTION TO OPEN AND AMEND JUDGMENT
ENTERED JANUARY 11, 1996
Date: January 31, 1996
Time: 10:30 a.m.
Judge: Daniel G. Heely
[Filed]
[1996 May - 24 10:55 AM]
[F.Otake]
[Clerk]
ORDER DENYING DEFENDANT EUGENIE PARNAR'S
MOTION TO OPEN AND AMEND JUDGMENT
ENTERED JANUARY 11, 1996
Defendant Eugenie Parnar's Motion to Open and Amend
the Judgment Entered on January 11, 1996 which was filed
on January 17, 1996 and came on for hearing before the
Honorable Daniel G. Heely on January 31, 1996; the Court
has reviewed the records and files in this matter as well as
the submissions of the parties; the Court has also considered
the arguments of Defendant Parnar and John A. Chanin of
behalf of The Law Offices of John A. Chanin, Plaintiff
herein, and based upon the foregoing the Court finds:
1. The Complaint in this matter was filed by Plaintiff on
June 18, 1996;
2. Defendant Parnar's deposition, duly noticed by
Plaintiff, was commenced on December 4, 1991; the
deposition was to be continued at a date mutually agreed
A-15 Be
upon by Plaintiff and Defendant through her then counsel
Philip D. Bogetto;
3. Since the interruption of Defendant Parnar's deposition
on December 4, 1991, Plaintiff has been forced to file
numerous motions to compel Defendant Parnar to appear for
the continuation and of her deposition, and in spite of the fact
that Defendant Parnar has been ordered to appear and allow
for the continuation and completion of her deposition, she
~ has refused to do so;
i
>
|
res
a
2
4. That as early as January 1992, Defendant Parnar filed a
Motion to have her deposition terminated and as the result of
the hearing, she was ordered by Judge Robert Klein, to
arrange for the resumption of her deposition; Parnar failed to
do so;
i 5 aR ie i gna SES Sa ha es PAN th ec Neale
58 a ASAD vile RMN ee) Mi
5. Defendant then filed a Motion for Summary Judgment
and used the pendency of that Motion as an excuse for not
going forward with her deposition:
6. After Defendant Parnar's Motion for Summary
Judgment and her Request for Leave to File an Interlocutory
; Appeal were both denied, she still continued to refuse to ~
4 make herself available for the resumption of her deposition;
NB ded WO a aA NS aia 2 BRE 08
My 7. In September of 1993, Judge Melvin Soong after a
hearing on Plaintiff's Motion to Compel, ordered Defendant
Parnar to resume her deposition; however, before the Order
could be entered, Defendant Parnar filed her objections to the
proposed Order and continued to refuse to cooperate in
making arrangements for the taking of her deposition;
CER BAY ea: eee eg ae rer ee
A-16
8. In November of 1993, Plaintiff was again forced to file
a Motion to Compel Defendant Parnar to appear for the
resumption of the taking of her deposition; Defendant Parnar
requested the continuance of the hearing so that she could
find new counsel; consequently, the matter did not come on
for hearing until March 4, 1994, two (2) years after the
deposition was originally begun;
9. At the March 4th hearing before Judge Kevin Chang,
attorneys Bogetto and Lila Barbara Kanae appeared; Mr.
Bogetto indicated that he was no longer representing
Defendant Parnar whereas Ms. Kanai indicated that although
she had been retained, she was not as yet counsel on record;
Ms. Kanai further indicated that she was not familiar with the
file and requested another continuance; Judge Chang refused
to allow the matter to be continued any further and
consequently, Defendant Parnar shoe to speak on her own
behalf;
10. Judge Chang ruled that the deposition was to
continue and so as to avoid any further delay, designated a
specific date, i.e. March 24, 1994;
11. On March 8, 1995, Ms. Kanai filed a Motion
Requesting a Rehearing on the matter which had just been
heard by Judge Chang, her reason being that she was now
actively involved in the case and there were "many matters"
which needed to be looked into: the Motion for a Rehearing
was denied;
12. Shortly after the denial of the request for rehearing,
Defendant Parnar relieved Ms. Kanai of any further
involvement as her attorney; Defendant Parnar notified
Plaintiff of this turn of events and further indicated that in
ibn a5 Shalt AN ARI ald Maal an pad
A-17
spite of the Order directing her to do so, she would not attend
the deposition because she did not have an attorney;
13. The case was set for trial during the week of
September 12, 1994; as of the time of the setting, Defendant
Parnar had still failed to appear for the resumption of her
deposition, and she continued to refuse to appear based upon
the fact that she still had not retained counsel;
14. In August of 1994, Defendant Parnar moved to have
the matter taken off the trial calendar in that she was still
without counsel; Judge Herbert Shimabukuro, indicating his
concern about the problems that often occur in cases of self-
representation took the matter off of the trial calendar so that
Defendant Parnar could find counsel;
15. Ata subsequent trial setting before Judge Wendell
Huddy, Defendant Parnar again protested that she was not
prepared to go to trial in that she still had not been able to
obtain counsel; her protest notwithstanding Judge Huddy set
the case for trial during the week of December 18, 1995;
16. Shortly after the trial setting conference, Plaintiff
again noticed Defendant Parnar's deposition and requested
that she turn over various documents regarding her defenses
and her counter-claim; Defendant Parnar immediately filed a
Motion for a Protective Order, indicating that she did not
have an attorney and did not believe that she should be
"subjected" to Plaintiffs questioning without the "protection"
of counsel;
17. Defendant's Motion for a Protective Order was
heard on February 2, 1995 and was denied by Judge Huddy;
at the time of the hearing, Judge Huddy also Ordered
A-18
Defendant Parnar to deliver the documents requested by
Plaintiff at his office no later than March 3, 1995 and further
Ordered Defendant Parnar to appear at Plaintiff's office for
the resumption of her deposition at 9:00 a.m. on March 22,
1995;
18. In response to this latest Order by Judge Huddy
directing Defendant to resume her deposition, she filed still
another Motion for rehearing indicating that she still was
without counsel; this Motion was also denied;
19. On March 3, 1995, Defendant Parnar and an
"escort" appeared at Plaintiff's office and delivered her
responses to Plaintiff's request for documents; her responses
were evasive, inadequate and incomplete;
20. Less that 24 hours before her deposition was to be
taken, Defendant Parnar's "escort" again appeared at
Plaintiff's office with a letter from Defendant in which she
indicated that she would not attend the resumption of her
deposition, citing all of the reasons which she had raised in
the past including the fact that she still was unable to retain
counsel:
21. Based upon Defendant's continuing refusal to
comply with the Orders of Court, Plaintiff filed a Motion for
Sanctions on March 24, 1995; the matter was heard by Judge
Huddy on April 19, 1995;
22. On August g, 1995, the Order granting the requested
sanctions was signed by Judge Huddy and filed;
pai a Sa BS at le! St aac el Seah Lakh
* SN Tah At. a oA SH
PR a EP ih Sieh WSN CaCO wal heats RR
A-19
23. Subsequently, on January 11, 1996, the Judgment
which Defendant in her present Motion requests be opened
and amended, was filed;
Based upon the foregoing, for GOOD CAUSE
APPEARING, it is hereby ORDERED, ADJUDGED and
DECREED that Defendant Parnar's Motion to Open and
Amend the Judgment Entered on January 11, 1996 is hereby
DENIED.
DATED: Honolulu, Hawaii, May 24, 1996.
/s/ DANIEL G. HEELY
JUDGE OF THE ABOVE-
ENTITLTED COURT
APPROVED AS TO FORM:
[Unsigned]
EUGINIE PARNAR
A-20
Appendix V
Order of the Circuit Court of the First Circuit
Granting Plaintiff's [Respondent] Motion for Sanctions
THE LAW OFFICES OF
JOHN A. CHANIN
JOHN A. CHANIN 650-0
1001 Bishop Street
2618 Pauahi Tower
Honolulu, Hawaii 96813
Telephone: (808)538-1637
Facsimile: (808) 532-1401
Attorney Pro Per
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAITI
THE LAW OFFICES OF
JOHN A. CHANIN,
Plaintiff,
VS.
EUGENIE PARNAR,
Defendant.
Civil No. 90-1843-06
(Contract)
[Filed]
[1995 Aug - 8 3:34 PM]
[N. Anaya]
—-
ide RP GRRE AGE EA rile Sols ses
A-21
[Clerk]
ORDER GRANTING PLAINTIFF'S MOTION FOR
SANCTIONS AGAINST DEFENDANT EUGENIE
24.199
Plaintiff, the Law Offices of John A. Chanin, filed its
Motion for an Order for Sanctions Against Defendant
Eugenie Parnar on March 24, 1995; the matter came on for
hearing on April 19, 1995 before the undersigned Judge of
the Circuit Court of the-First Circuit; the Court read the
submissions of the parties and heard their arguments, and
having considered the foregoing as well as the files and
records in this case, for Good Cause Appearing, the Court
does hereby order, Adjudge and Decree, that the following
sanctions shall be and are hereby are imposed against
Defendant Eugenie Parnar:
(1) That Defendant Parnar's counter-claim against
Plaintiff is hereby dismissed with prejudice;
(2) That Defendant Parnar is hereby held in default as
against the claims of Plaintiff, as set out in its Complaint,
said Default to be entered forthwith;
DATED: Honolulu, Hawaii, July 31, 1995
/s/’ WENDELL H. HUDDY
APPROVED AS TO FORM
[no signature]
EUGENIE PARNAR
A-22
Appendix VI
Supreme Court Order
Allowing Resignation in Lieu of Discipline
NO. 21407
IN THE SUPREME COURT OF
THE STATE OF Hawaii
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner,
VS.
JOHN A. CHANIN,
Respondent.
ODC NO. 97-280-5474
[Filed]
[1998 Mar - 19 1:37 PM]
[K. Miyahara]
[Clerk Supreme Court]
ORDER ALLOWING RESIGNATION
IN LIEU OF DISCIPLINE
Upon consideration of Petitioner Office of Disciplinary
Counsel's "Ex Parte Motion For Order Granting Request of
John A. Chanin To Resign From the Practice of Law in Lieu
iii aed
o
;
€
4
+
*
7
i
A-23
of Discipline," and the memorandum, affidavit, and exhibit
in suport thereof, it appears the motion is supported by
Respondent Chanin's affidavit and that the affidavit meets
the requirements of Rule 2.14(a) of the Rules of the Supreme
Court of the State of Hawaii. Therefore,
IT IS HEREBY ORDERED that the motion is granted
and the request of Respondent John M. Chanin to resign in
lieu of discipline is granted, effective upon the filing of this
order.
IT IS FURTHER ORDERED that (1) the Clerk shall
immediately remove the name of Respondent John A.
Chanin from the roll of attorneys licensed to practice law in
this jurisdiction and (2) within ten (10) days after entry of this
order. Respondent John A. Chanin shall deposit with the
Clerk of this Court the original certificate evidencing his
license to practice law in this jurisdiction.
IT IS FINALLY ORDERED that (1) Respondent John A.
Chanin shall comply with the requirements of Rule 2.16 of
the Rules of the Supreme Court of the State of Hawaii and
(2) the Disciplinary Board shall provide notice to the public
and judges as required by rule 2.16 of the Rules of the
Supreme Court of the State of Hawaii.
DATED: Honolulu, Hawaii, March 19, 1998.
/s/ Ronald T.Y. Moon
/s/ Robert G. Klein
/s/ Steven H. Levinson
/s/ Paula A. Nakayama
/s/ Mario R. Ramil
A-24
Appendix VII
Order of the Supreme Court,
Prohibiting Clerk from Accepting Further Filings
No. 19946
IN THE SUPREME COURT OF
THE STATE OF Hawaii
THE LAW OFFICES OF
JOHN A. CHANIN,
Plaintiff-Appellee,
VS.
EUGENIE PARNAR,
Defendant-Appellant.
EUGENIE PARNAR,
Counterclaimant and Appellant,
VS.
THE LAW OFFICES OF
JOHN A. CHANIN,
Counterclaim-Defendant and Appellee.
Civil No. 90-1843
[Filed]
[1998 Apr - 8 1:59 PM]
{[L. Nakagawa]
[Clerk Supreme Court]
Pe ae en —_
ee ek BN yee hla SS van
Pits? amas Meany
A-25
ORDER
Upon consideration of (1) Appellant's "emergency motion
for stay of enforcement of final judgment on appeal pending
obtaining of records regarding... [a disciplinary case}"
(motion) and (2) the record, it appears this appeal was
decided by summary disposition order on January 21, 1998,
the notice and judgment on appeal was entered on F ebruary
17, 1998, and this case is closed. Therefore,
IT IS HEREBY ORDERED that the motion is stricken.
IT IS FURTHER ORDERED that the Clerk shall accept
no further filings in this appeal.
DATED: Honolulu, Hawaii, April 8, 1998.
/s/ Mario R. Ramil
Associate Justice
A-26
Appendix VIII
Supreme Court, State of Hawaii
Office of Disciplinary Counsel
Notice Concerning Attorney John A. Chanin
NOTICE CONCERNING ATTORNEY
JOHN A. CHANIN
MEMO TO: All State and Federal Judges in Hawaii
FROM: Michael T. Lee /s/ Michael T. Lee
Assistant Disciplinary Counsel
DATE: March 20, 1998
SUBJECT: Order Granting Request to Resign in Lieu of
Discipline
In accordance with RSCH 2.16(f), we enclose a certified
copy of an order of the Supreme Court of Hawaii allowing
Honolulu attorney John A. Chanin to resign in lieu of
discipline, effective March 19, 1998.
Administrative Judges are asked to take such action as is
deemed necessary to protect the rights of any clients of Mr.
Chanin whose cases may be pending in court.
If there are any questions, please telephone me at 521-4591.
MTL:jv
enclosure
~~
A-27
Appendix IX
Petitioner's Opening Brief
No. 19946
IN THE SUPREME COURT OF
THE STATE OF Hawaii
THE LAW OFFICES OF
JOHN A. CHANIN,
Plaintiff-Appellee,
VS.
EUGENIE PARNAR,
Defendant-Appellant.
EUGENIE PARNAR,
Counterclaimant and Appellant,
vs.
THE LAW OFFICES OF
JOHN A. CHANIN,
Counterclaim-defendant and Appellee.
Civil No. 90-1843
APPEAL FROM
1) THE JUDGMENT FILED ON JANUARY 11, 1996,
AND
A-28
2) THE ORDER DENYING DEFENDANT EUGENIE
PARNAR'S MOTION TO OPEN AND AMEND
JUDGMENT ENTERED JANUARY 11, 1996, FILED
MAY 24, 1996.
FIRST CIRCUIT COURT
HON. Robert G. Klein
HON. Francis Q. F. Wong
HON. Russell Nnagata
HON. Barry Kurren
HON. Thomas Kaulukukui, Jr.
HON. Virginia L. Crandall
HON. Kevin S. C. Chang
HON. Wilfred K. Watanabe
HON. Colleen K. Hirai
HON. Herbert Shimabukuro
HON. Wendell K. Huddy
HON. Karen N. Blondin
HON. Gail C. Nakatani
HON. Danial G. Heely
Judges
[Filed]
[1997 Apr - 22 3:09 PM]
[Eugene L. Sabado]
[Clerk Supreme Court]
P tb N BRIEF
and
RTIF TE VICE
A-29 ~
PETER VAN NAME ESSER 3515
Suite 400, Seven Waterfront Plaza
500 Ala Moana Boulevard
Honolulu, HI 96813
Telephone: (808) 538-3636
Attorney for Defendant-Appellant and Counterclaimant
EUGENIE PARNAR
I. STATEMENT OF THE CASE.
A. The Underlying Lawsuits.
On June 18, 1990, Plaintiff-Appellee and Crossclaim
Defendant JOHN A. CHANIN ("Chanin") filed a complaint
for attorney's fees against Defendant-Appellant and
Counterclaimant EUGENIE PARNAR ("Parnar") in First
Circuit Court. Record on Appeal, Volume I ("RA-I") at 1.
On July 9, 1991, Parnar filed an answer and counterclaim
against Chanin charging him with breach of his fee
agreement, false billings and legal malpractice. RA-I at 103.
Chanin claimed Parnar owed him a balance of $24,431.88
(after taking $45,545.68 from her trust account) for services
performed when he represented her in a fee dispute with
predecessor counsel in Parnar v. Americana Hotels, Civil
No. 52878, where Parnar obtained damages from Americana
for unlawful termination. RA-I at 1. Parnar hired Chanin
after this Court affirmed her award against Americana in
Americana Hotels. RA-I at 186. Parnar hired Chanin to 1)
defend against Americana's petition for certiorari in the U. S.
Supreme Court, 2) defend against a fee claim by predecessor
counsel David Schutter, and 3) defend against a fee claim by
predecessor counsel Michael Lilly. Jd.
A-30
Chanin did not perform as promised. Jd. He was not a
member of the U. S. Supreme Court bar. Jd. He settled with
Schutter. /d. He lost the challenge to Lilly's fees. Jd. He
assigned an inexperienced associate to the Lilly dispute,
resulting in defeat and a near default of Parnar’s appeal. /d.
He increased his hourly rate without notice, and submitted
false, inflated billings, including one entry for 55 hours by
one attorney on one day. Jd.
B. Parnar's December 4, 1991, Deposition.
The parties agreed on a December 4, 1991, deposition
date at Chanin's office. RA-I at 131-135. Bogetto and
Parnar cleared their calendars for two days. Jd. Chanin's
office called Bogetto three times to inquire as to Parnar’s
appearance. Jd. Nothing was said about scheduling conflicts
or Chanin's plans to leave Honolulu on the day of the
scheduled deposition. /d. Bogetto and Parnar appeared at
Chanin's offices at 9:00 AM on December 4, 1991. Jd.
Chanin conducted the deposition in his office--rather than
his conference room--from a chair placing him above
Bogetto and Parnar, seated on a two-seat couch. /d. at 132,
136. His interrogation was insulting, intimidating and,
according to then-First Circuit Judge Robert G. Klein,
entirely irrelevant. RA-I at 131, 139.
Chanin questioned Parnar about 1) the number of lawsuits
she had filed in her life, 2) the number of depositions she had
taken, 2) her marital history, 3) her education, 4) her
residential history, 5) her employment history, 6) her work
hours in all her jobs, 7) why and when she left each job, 8)
the names of her superiors, and 9) why she sued Americana
Hotels. RA-I at 139-171.
A-31
When Parnar could not recall dates or names, or asked to
speak to Bogetto, Chanin refused, asking questions like,
"why don't you answer my question first?" "is that your
testimony?" "is that an answer?" "what do you mean?"
"you're sure now?" "you don't have any recollection
whatsoever as to when you worked there?" "you don't recall
what?" "now will you answer the question?" "you can't be
any more accurate than that?" "so you don't have any
recollection whatsoever?" "what about the question do you
not understand?" and "is it really your testimony under oath
that you can't recall?” RA-I at 143, 150-152, 155-156, 160,
163-164, 168.
Chanin also made unnecessary and belligerent comments
like, "I don't want to get bogged down," "you lost me," "I
just did," "the fact of the matter is," "just answer that
question," "if you were in court on the stand and I asked you
the question you'd have to answer it," and "I must tell you
that I've asked that question to people over the last 20 some
odd years and this is the first time I've had that kind of
resporise." Jd. at 145, 153, 155, 159, 160. Bogetto objected
repeatedly to irrelevant questions:
I'm going to object on the grounds of relevance. What
she was doing back in 1975 at the Ala Moana Hotel
has nothing to do with this lawsuit.
RA-I at 154, see also, Id. at 155 ("irrelevant") and Jd. at 157
("I object as to relevancy"). Chanin ignored Bogetto's
objections. When Parnar testified that she worked for the
Hawaii Crime Commission for three years in the 1970's,
Chanin inquired:
A-32
What did the program substantially consist of? Was it
about the birds and the bees? Was it about crime?
Was it about drugs? Was it about geography?
RA-I at 167-168. Chanin asked no questions about 1)
Chanin's services as her attorney, 2) Parnar's alleged
outstanding legal bills, 3) Chanin's malpractice, or 4)
anything whatsoever about the allegations in the complaint
or counterclaim. /d.
After asking irrelevant, obnoxious questions for 60
minutes, Chanin abruptly stopped the deposition. /d. at 168.
At 10:46 AM Chanin told Parnar and Bogetto he "had to
leave at 11:30 AM to go to the airport to catch a flight to the
mainland." RA-I at 134. "[W]e are stopping now and then
picking up again at our offices on January 6, 1992," Chanin
said. RA-I at 169. "We had anticipated we would be here all
day," Bogetto noted for the deposition record, "I understand
that you did not anticipate it would take that long and
therefore have plans to leave town today." Jd.
C. Parnar's Motion to Terminate: Judge Klein.
On January 3, 1992, Parnar filed a motion to terminate her
deposition, "on the ground that such examination is being
conducted in bad faith and in such manner as unreasonably
to annoy, embarrass or oppress defendant." RA-I at 131.
Chanin "had no serious intent of taking a deposition on
December 4, 1991, for discovery purposes,” claimed Parnar,
"he asked questions irrelevant to the lawsuit for which the
deposition was called." Jd. at 135. "Chanin's voice
intonations were sarcastic and his demeanor imperious and
intimidating." /d. at 137. Parnar noted:
heaceasieiiiieiieiiiniiaiiiaiisiiiiill
nl, linha niin er
A-33
I have had my deposition taken on four prior occasions
and never had to endure the abuse of dignity that Mr.
Chanin tried to display toward me.
RA-I at 137. Parnar attached a copy of the December 4,
1991, deposition transcript to her motion to terminate. /d. at
139.
Chanin filed opposition papers falsely stating, "counsel
failed to raise an objection as to relevance during the
deposition[.]" RA-I at 197. Chanin insisted his questions
were "well within the liberal scope of discovery[.]" Jd. at
196.
The parties appeared before First Circuit Judge Robert
Klein on March 3, 1992. "I certainly couldn't see where the
questions were going," commented Judge Klein after
reviewing the transcript:
I was trying to think of where in the pleadings--having
looked at the counterclaims, the defenses, the
affirmative defenses and the case in chief, what this
related to.
3/3/92 Tr. at 3 (emphasis added). "What difference does it
make," he asked, "whether she was a part-time waiter?" Jd.
"You're trying to collect attorney's fees from this woman,"
said Judge Klein, "what's the difference where she worked 20
years ago?" Id.
When Chanin complained that Parnar was nonresponsive
during the deposition, Judge Klein said, "it falls under the
tubric of ask a silly question." Jd. at 4. "[Y]ou were just
asking basically a lot of irrelevant questions," he said, "[i]t is
A-34
a waste of time[.]" Jd. at 5. "[I]t's basically a collection case,
Mr. Chanin." /d. at 7. "35 pages to establish nothing
relevant," observed Judge Klein-again, "is a total waste of
time." Jd.
Judge Klein declined Parnar's request to terminate the
deposition, but told Chanin, "get to the point[.]" Jd. at 8. "I
don't want to see you back here again." Jd. As the prevailing
party, Chanin was charged with preparing the written order.
No such order was ever prepared by Chanin. RA-II at 32.
Displeased with the court's ruling, Chanin ignored the issue
of relevancy and dispatched notices setting depositions for
April 23, May 12, and June 9, 1992. Jd. Citing HRCP Rule
30(d) and HCCR Rule 23, Bogetto wrote Chanin and said he
would not attend a deposition until Chanin filed a proposed
order denying Parnar's motion to terminate accompanied by
relevancy limitations imposed by Judge Klein at the March
3, 1992, hearing. RA-II at 32-33.
D. Chanin's Motion to Compel: Judge Kanlukukui.
On July 8, 1992, Chanin filed a motion to compel Parnar
to appear at her deposition. RA-I at 254. His papers
contained serious misstatements of fact. "[O]n or about
December 4, 1991, Plaintiff began [his] deposition of
Defendant in the above entitled matter." /d. at 258. "During
said deposition,” wrote Chanin, "Defendant refused to
answer relevant questions put to her and terminated the
deposition without allowing Plaintiff to complete his
questioning." /d. "Plaintiff has terminated one deposition
during Defendant's questioning,” claimed Chanin. Jd. at 256.
"Defendant moved for a protective order after unilaterally
terminating her deposition." /d. at 258.
a cena
A-35
These allegations contained three basic fabrications.
First, at the March 3, 1992, hearing on Parnar's motion to
terminate, Judge Klein found Chanin's questions irrelevant.
"[Y]ou were just asking basically a lot of irrelevant
questions," said the court, "nothing relevant." 3/3/92 Tr. at
5, 7. Chanin never submitted a proposed order to Judge
Klein, and no transcript of the hearing was prepared until this
appeal. In his July 8, 1992, moving papers Chanin claimed
Parnar filed a motion "for protective order" and declared,
"[t]his court denied Defendant's motion and instructed that
Plaintiff complete its deposition of Defendant with due
sensitivity to Defendant." RA-I at 258. This statement flatly
mischaracterized Judge Klein's March 3, 1992, oral ruling’.
Second, Parnar answered every question put to her by
Chanin, even those objected to as irrelevant. See RA-I at
139-171. Chanin's statement otherwise misstated the
deposition record.
Third, Chanin's claim that Parnar "terminated" the
December 4, 1991, deposition was a lie, since it was he who
abruptly cancelled because of a plane flight kept secret from
Bogetto and Parnar. Jd. at 170; see also, RA-II at 32.
' Chanin repeatedly characterized Parnar's objections as focused on the
height of his chair. Hence his suggestion that Judge Klein directed him
to honor her "sensitivity." By ignoring her objections to relevancy, and
his unilateral termination of the December 4, 1991, deposition, Chanin
skillfully belittled his opponent's position and distorted Judge Klein's
1992 oral ruling.
A-36
Because of a pending criminal trial, Bogetto filed no
response and sent a friend to ask for a continuance at the July
21, 1992, hearing before First Circuit Judge Thomas K.
Kaulukukui on Chanin's motion. 7/21/92 Tr. at 2. In
Bogetto's absence Chanin lied:
All I want to do your honor is get a date certain set to
take this lady's deposition and to get sanctions because
we have been here so often trying to get Ms. Parnar to
show up[.]
7/21/92 at 3 (emphasis added). First, Chanin had already
taken Parnar's deposition, which he terminated, and which
Judge Klein characterized as "35 pages to establish nothing
relevant[.]" 3/3/92 Tr. at 7. Second, this was Chanin's first
motion to compel, and telling Judge Kaulukukui he had
"been here so often trying to get Ms. Parnar to show up" was
a lie. 7/21/92 Tr. at 3.
The court granted Bogetto's motion to continue and took
the matter off calendar. Jd. at 7. Chanin never renewed his
motion and Judge Kaulukukui never ruled. Jd. Instead,
Chanin dispatched further notices setting dates for Parnar's
continued deposition. RA-II at 5. Bogetto wrote back
declining to appear unless Chanin filed a proposed order
summarizing Judge Klein's ruling. RA-II at 32, 40. Chanin's
papers before Judge Kaulukukui, noted Bogetto, made clear
he would not abide by Judge Klein's rulings. /d’.
* In his written opposition to Chanin's second motion to compel Bogetto
observed, "[t]he written order of Judge Klein is necessary in order to
clearlv define the parameters of Plaintiff's deposition tactics[.]" RA-II at
35.
A-37
E. Chanin's Motion to Compel: Judge Nagata.
On August 25, 1993, Chanin filed a second motion to
compel. RA-II at 19. It was as full of lies as his first. Jd.
Chanin claimed Parnar "used every available excuse to avoid
having her deposition taken." /d. at 22. He ignored Judge
Klein's relevancy rulings. Jd. He claimed his opponent
"refused to answer relevant questions" at the 1991 deposition
and "terminated the deposition without allowing Plaintiff to
complete [his] questions." /d. at 24. He claimed Bogetto
"readily admitted that Defendant has no intention whatsoever
of having her deposition taken and will do everything
possible to avoid being deposed," which was a lie. /d. at 23.
40. He claimed Bogetto "agreed to deposition dates" and
then cancelled them, which was also a lie. /d. at 8, 22-23,
40.
Chanin claimed Judge Kaulukukui--who heard Chanin's
first motion to compel--was "upset not only with the obvious
stalling tactics," but "indicated his great displeasure with Mr.
Bogetto" for failing to attend the July 21, 1992, hearing. /d.
at 23. In fact, Bogetto sent substitute counsel and Judge
Kaulukukui freely granted his request for a continuance
because "he is presently in district court in that he is
conducting a trial." 7/21/92 Tr. at 2. "I understand the
schedule of Mr. Bogetto," declared Judge Kaulukukui, "I am
going to grant a continuance and have this matter taken off
calendar[.]" Jd. at 5.
On September 24, 1993, Chanin and Bogetto appeared
before First Circuit Judge Russel Nagata. Chanin's oral
presentation contained more lies. "Judge Kaulukukui pretty
much had reached the point of a limit of his patience,"
Chanin lied. 9/24/93 Tr. at 2. "[E]ither take the deposition
A-38
or I [will] have this matter heard," Judge Kaulukukui
supposedly told the absent Bogetto, "I'm getting tired of all
this." Jd. Judge Kaulukukui said no such thing. See 7/21/92
Tr. 1-14. Chanin got away with lies about Judge Kaulukukui
because neither Bogetto nor Judge Nagata were at the prior
hearing.
Chanin lied about Parnar's objections, claiming they were
based on chair height. /d. at 3. He lied about Judge Klein's
rulings, suggesting he ruled Chanin's questions irrelevant
without considering the counterclaim for malpractice. /d. at
3, 10°.
Chanin lied about Judge Klein's order. /d. at 3. "An order
ultimately got filed," Chanin lied, "it's the issue that has been
raised every single time[.]" /d. Judge Nagata asked Chanin
to produce the order. /d. "I don't have it in this particular
file,” Chanin replied, "the other files go back quite a ways.”
Id. at 4. "Mr. Bogetto filed the order," Chanin lied, "[h]e
took it upon himself to file it." Jd. "It's never been an issue,"
Chanin lied, "and no one has ever legitimately raised it as a
issue.” Jd.
Chanin attacked Bogetto. Jd. Bogetto would agree to a
deposition date, Chanin lied, and "the night before I would
receive a letter saying, oh, he can't make it." /d. Bogetto
would demand a copy of Judge Klein's order, said Chanin,
and "[t]he issue has long since been resolved for two
years[.]" Jd. at 5.
> The counterclaim was filed by Parnar four months before the
December 4, 1991, deposition, and Judge Klein expressly referred to it
before ruling on March 3, 1992, that Chanin's deposition questioning
was, “a complete waste of time." See 3/2/92 Tr. at 3 ("having looked at
the counterclaims|.}")
A-39
Bogetto told Judge Nagata that no such order had been
filed. Jd. at 7. "[W]e did have a hearing," said Bogetto, "and
Judge Klein did issue a ruling, and as far as I'm aware there
has been no order entered on that motion to terminate." Jd.
Bogetto said:
My client would like to have that order entered setting
the parameters of a continued deposition of her to be
taken by Mr. Chanin. ... I would like to have that
order entered before we go because we're going to get
into an argument about whether or not he's going too
far.
9/24/93 Tr. at 7. Judge Klein, said Bogetto, "looked at the
transcript of the previous deposition and thought that a lot of
the questions were irrelevant{.]" Jd. at 8. "All I'm asking the
court," pleaded Bogetto, "is say, look, submit that order, get
it signed and filed, and then schedule the deposition[.]" Jd. at
8.
"I'm going to enter an order compelling the deposition,"
ruled Judge Nagata. /d. at i2. "[{C]ertain things weren't
filed," said Nagata, "so I'm not going to award any
sanctions." Jd. Judge Nagata ordered Chanin to prepare an
order setting a deposition date for Parnar on October 13, 14,
or 15, 1993. Jd. at 13.
Chanin did not notice an October 1993 deposition. The
court signed and filed an order prepared by Chanin (ordering
a deposition on October 13, 14 or 15, 1996) on October 26,
1993. RA-II at 61. Chanin noticed a new deposition on
November 10, 1993. RA-II at 63. Bogetto wrote Chanin
declining to appear because 1) Chanin had not filed a order
A-40
for Judge Klein, and 2) the October 26, 1993, order entered
by Judge Nagata was void on its face. RA-II at 80, 83.
On November 18, 1993, Chanin filed a motion for
sanctions for Parnar's failure to appear on November 10,
1993. RA-II at 66. Bogetto is "raising the exact same issues
that he had raised many times before," lied Chanin,
"uniformly denied by every judge previously hearing them."
Id. at 73. In fact, no prior judge rejected Parnar's claims, and
Judge Klein upheld her relevancy objections. No judge had
reviewed Judge Nagata's order, since Judge Nagata was the
first judge to rule on a motion to compel. On March 4, 1994,
Chanin's motion for sanctions was heard before First Circuit
Judge Kevin Chang. 3/4/94 Tr. at 1. Bogetto filed papers in
opposition but did not appear, having withdrawn in favor of
attorney Lila Kanae. /d. Kanae did her best to reiute
Chanin's distortions of prior proceedings. Jd. She told Judge
Chang that Chanin had not given Parnar her files from
Americana Hotels, so she could not prepare for a deposition
on his fees or malpractice, or for trial. RA-II at 138. "[T]he
files maintained by Bogetto," Kanae told Judge Chang, "are
by no means sufficient for counsel to properly prepare for a
deposition of Defendant{.]" Jd’.
* Kanae wrote Chanin three times requesting Parnar's Americana Hotels
files without success. RA-II at 138. Unable to obtain files, and lacking
the records to defend Parnar at a deposition or trial, Kanae withdrew two
months later. RA-II at 145-149.
After Kanae withdrew, Parnar wrote letters pro se to Chanin
requesting her files, with similar results. RA-II] at 171-172. Itisa
breach of professional ethics for an attorney to withold client files. See
(continued...)
A-4]
"I don't want to take her deposition,” said Chanin, "I
think it's time just to dismiss her counterclaim.” 3/25/94 Tr.
at5. Thatclaim "makes all kinds of irresponsible
allegations about me," Chanin lied. Jd’. "This is about her
fifth lawyer in this matter," Chanin lied again, "[n]ow we
have still another[.}" /d°. "I have been put to the test before
virtually every judge on the circuit court level," Chanin lied
still again, "to get some kind of accommodation.” /d. at 6’.
Chanin asked for sanctions against the absent Bogetto as
well. Jd. Bogetto's objections to the November 10, 1993,
deposition were "nonsense," lied Chanin, and based on
“psychological harassment." /d at 6. Chanin told Judge
Chang, with no evidence whatsoever, that Parnar’s lawyers
are:
*(...continued)
Office of Disciplinary Counsel v. Kagawa, 63 Haw. 150, 622 P.2d 115
(1981). Parnar’s inability to obtain files from Chanin made it difficult for
her to find new counsel and impossible to prepare for Chanin's
deposition. /d.
* Parnar’s counter-claim merely claimed Chanin overcharged her,
assigned an inexperienced associate to her case, “and negligently
provided legal services . . . resulting in substantial economic loss.” RA-!
at 103, 106.
* Lila Kanae was Parnar’s second, and final, lawyer, after Philip Bogetto,
in Civil 90-1843-06. See e.g, RA-I at 58.
’ Chanin's first motion to compel was heard by Judge Kaulukukui in
Bogetto's absence. 7/21/92 Tr. at 1. When Judge Kaulukukui took it off
calendar, Chanin did not seek a second hearing date. Jd. There were no
orders and no sanctions. /d. Judge Nagata heard Chanin's second
motion to compel. Because of Chanin's negligence, Judge Nagata filed a
void order. Judge Nagata did not impose sanctions. There are 22 circuit
court judges in Honolulu.
A-42
being led around by a woman who is going to continue,
quite frankly, to use the threat of litigation against them
to make them do her bidding.
3/4/94 Tr. at 15. This statement was a lie.
Parnar's new lawyer, Lila Kanae, argued:
[Chanin] willfully refused to follow Rule 23 . . . which
requires submission of a proposed written order within
ten days of the oral ruling. Here he didn't want to file a
written order because Judge Klein's order was adverse
to him. It limited the manner and scope of how the
deposition would be taken. So what did he do? He
chose to ignore it.
3/4/94 Tr. at 8. Chanin, argued Kanae, requested sanctions
under HRCP Rule 37(b) without showing Parnar's refusal to
attend a court-ordered deposition. Jd. Judge Nagata's order
"requires a deposition be had on a date which has already
lapsed." Jd. at 9. Kanae said she had received no files and
could not prepare her client for a deposition or trial if she had
no files. Jd.
Chanin lied in rebuttal. /d. at 14. "Judge Nagata said no
more history Mr. Bogetto." Jd. "Judge Kaulukukui said |
don't want to hear any more of this." /d. The transcripts of
those hearings contradict these claims. See 7/21/92 Tr. at 1-
10;
Chanin's merdacity failed to elicit sanctions. 3/4/94 Tr. at
18. But Judge Chang ordered Parnar to attend a deposition
on March 25, 1994, although Chanin had not filed a motion
to compel. /d. "Mr. Chanin," said the court, "will you
A-43 “
prepare the order?" Jd. "Yes, I will," said Chanin. /d. at 19.
Chanin did not prepare a proposed order and it was never
filed. 9/7/94 Tr. at 4-5. Further, Chanin did not notice a
March 25, 1994, deposition. Jd.
On March 8, 1994, Parnar filed a motion for rehearing,
asking, that Judge Chang order Chanin to produce files. RA-
I] at 135. On May 5, 1994, Parnar's motion was denied.
RA-III at 16. The order did not compel Parnar to attend a
deposition or direct Chanin to give Parnar her files. /d.
Without files, and unable to prepare for a deposition or trial,
Kanae withdrew. RA-II at 145.
Parnar now had two major problems. She had no lawyer
and she had no files. RA-III at 120, 190, 199. On August
23, 1994, she filed a motion to continue the September 1994
trial date. RA-III at 182. The motion was argued before
First Circuit Judge Herbert Shimabukuro. 9/7/94 Tr. at 1.
Chanin objected but the court granted the motion. /d. at 12.
Parnar "has made some effort to obtain counsel," said Judge
Shimabukuro, "[b]y the nature of this case maybe some
attorneys are avoiding it." Jd. at 12-13.
G. Parnar's Motion for Protective Order: Judge Huddy.
Chanin sent no notices of deposition to Parnar between
April 1994 and January 1995, when he finally dispatched a
notice with a subpoena seeking documents. RA-III at 203,
205. Parnar had been without counsel for eight months,
despite contacting 70 lawyers. 2/2/95 Tr. at 5-6. She had no
files. Jd. Parnar filed a motion for protective order before
the deposition claiming 1) Chanin had not provided fair
notice, 2) Parnar had no counsel or files, and 3) the subpoena
did not comply with court rules. RA-III at 221.
A-44
Parnar's motion was heard before First Circuit Judge
Wendell K. Huddy on February 2, 1995. 2/2/95 Tr. at 1.
Chanin appeared and repeated his lies. /d. at 6-9. "[S]he has
done a better job of avoidance," he said, "than any attorney I
have ever met." /d. at 8. Chanin had not yet checked his
warehouse for Parnar's files. Jd. at 9. He said she refused to
be deposed because his chair was higher. /d. He ignored his
termination of the 1991 deposition, misstated Judge Klein's
relevancy ruling*, and omitted his failure to prepare timely
orders for Judges Nagata and Chang. /d.
Chanin also placed false words in "the last judge's”
mouth. /d. at 10. "Enough Miss Parnar,” this judge
supposedly told her, "I don't care whether you have an
attorney or not." /d. "Your deposition is going to be taken."
Id. Chanin did not say when he heard these words and no
transcript of any hearing contains them. And none could,
because Judge Huddy was the first judge to hear a discovery
motion by Chanin after Parnar became pro se.
Judge Huddy asked Parnar about getting a lawyer. /d. at
13. "I've had a difficult time," she said, "I've been told my
case is famous." Jd. One lawyer told her, she said, "I bet
you won't get anyone on this island[.]" /d. "I need counsel,"
said Parnar, "before I can go into a deposition." /d. "I need
my files." Jd.
* "Judge Klein was under the mistaken impression,” Chanin lied to Judge
Huddy, “that it was merely a collection action” when he found the
questions “irrelevant” ir 1992. 2/2/95 Tr. at 11. “[I]}t is well beyond that
at this juncture,” Chanin told Huddy, “because she has raised these
counterclaims claiming maipractice." /d. As noted in foomote 3, supra,
this statement was a lie.
A-45.
Huddy "grant[ed] the motion in part and den[ied] the
motion in part." /d. at 14. He continued the deposition date
because of Chanin's short notice, but ordered Parnar to
produce documents on March 3, 1995, and attend a
deposition on March 22, 1995, with or without counsel. /d.
at 15. Judge Huddy did not sanction Parnar, or threaten her
with future sanctions if she failed to comply. Jd.
On February 24, 1995, Parnar moved for rehearing, saying
she did not have time to find counsel or obtain Chanin's files.
RA-II at 246. Judge Huddy's order setting a deposition in
thirty days would have a "chilling effect," she said, "on
Defendant's ability to find counsel because an attorney would
be relictant to take on a complex case such as this without
adequate time[.]" /d. at 251.
Pamar delivered documents on March 3, 1995, which
were jew because Chanin still had her Americana files. RA-
I] at 161. March 22, 1995, went by without 1) a deposition,
2) a ruling on the motion for rehearing, 3) Chanin looking for
files, or 4) an order directing her deposition appearance. /d.
On May 1, 1995, Judge Huddy denied Parnar's motion for
reheanng. RA-II at 325.
OnMarch 21, 1995, Parnar wrote Chanin telling him she
couldnot attend a March 22, 1995, deposition, because 1) no
order 1ad been signed, 2) she had no lawyer, 3) she had no
files, znd 4) she wished to seek review of Judge Huddy's
order-when filed--because it had directed her to attend a
depostion by an abusive lawyer without counsel or files.
RA-Ilat 295-300.
A-46
On March 24, 1995, Chanin filed a motion for order
imposing sanctions under HRCP "Rule 37." RA-II at 228.
He did not specify what sanctions or what subsection of Rule
37 applied:
Defendant has been ordered to appear for her
deposition by numerous judges (including Judges
Klein, Soong, Watanabe, Huddy, Chang and
Kaulukukui).
RA-II at 231. This statement misled the court. Judges
Soong and Watanabe never heard any discovery motions in
this case’. Judge Klein ruled Chanin's December 4, 1991,
deposition questions were irrelevant and denied the motion
to terminate, but filed no order. Judge Kaulukukui continued
a motion to compel, never ruled, and filed no order. Judges
Chang and Huddy asked Parnar to attend a deposition, but
filed no orders. When Chanin moved for sanctions under
HRCP Rule 37 on March 24, 1995, Parnar had never
declined to attend a deposition compelled by a written order.
Parnar filed pro se opposition papers. RA-II at 301. She
said she'd contacted over 70 lawyers seeking representation
in this case. Jd. She'd placed adds in the Honolulu
Advertiser, the Star Bulletin and the Hawaii State Bar
Journal, and supplied a copy. Jd. "Defendant is not
* Ata March 30, 1994, hearing on Lila Kanae's motion to withdraw as
Parnar's counsel, Chanin told First Circuit Judge Wilfred Watanabe that
Judge Chang had ordered Parnar to attend a deposition. 3/30/94 Tr. at 3.
Judge Watanabe, at the only hearing he sat on in this case, told Chanin,
“{yJou can take that up with Judge Chang." Id. Chanin's claim that
Judge Watanabe ordered Parnar to attend a deposition was a lie. RA-II at
231.
A-47
disregarding the system," she wrote to Judge Huddy, "the
system is disregarding her." Jd.
On April 19, 1995, Judge Huddy conducted a hearing on
Chanin's motion. Parnar told the court she could not attend a
deposition with Chanin without counsel or files. 4/19/95 Tr.
at 2.
Chanin reiterated his prior distortions. Jd. "The
arguments that are being raised now," said Chanin, "have
been raised since December 1991." Jd. at 5. Chanin did not
explain how this could occur when Parnar had been without
counsel only since April 1994. Jd. Although his motion did
not specify a sanction, Chanin asked Judge Huddy to
“dismiss her counter-claim and default her as to the defenses
that she may have in my claim against her[-]" Jd. at 6. When
Parnar asked to respond, Judge Huddy refused. Jd.
In his ruling Judge Huddy repeated Chanin's false
statements about other judges. Jd. at 7. "She was ordered by
Judge Klein, Judge Soong, Judge Watanabe, Judge Chang
[and] Judge Kaulukukui," remarked Judge Huddy, "to attend
her deposition." /d. Judge Huddy suggested without proof
and without permitting her to respond, that Parnar caused
Chanin's failure to obtain written orders by removing them
from his chambers. /d. "[I]t's very suspect," he said. Jd.
"Parnar has made it clear that she does not intend to attend
a deposition," Judge Huddy said, "until she gets counsel[.]"
Id. at 8. "[T]hat's been her whole tactics." Jd. "[I]t's for
those reasons that the court grants the motion:" Jd.
Judge Huddy did not find bad faith, callous disregard or
willful disobedience. Jd. He did not specify a sanction. Jd.
A-48
On August 8, 1995, Judge Huddy filed an order granting
Chanin's oral motion for sanctions. RA-II at 329; see
Appendix A. "Good cause appearing," Huddy ordered,
"Parnar's counter-claim against Plaintiff is hereby dismissed"
and "Parnar is hereby held in default as against the claims of
Plaintiff].]" Jd.
I. Judgment for Dismissal and Default: Judge Heely.
On November 28, 1995, Chanin wrote Judge Huddy,
attaching a proposed judgment for signature and a one-page
affidavit explaining a $47,346.26 demand. RA-II at 336.
Chanin mailed Parnar the cover letter but did not send the
attachments. Jd. The affidavit, which was later attached to
the filed judgment, contained the following:
4. That the final invoice received by Defendant
Eugenie Parnar was on February 5, 1991; 5. That the
principal amount due and owing is $24,431.88; 6.
That the pre-judgment interest of $13,437.55 is due and
owing; 7. That the attorneys’ fees is $7,581.46 and
costs is $1,895.37 is [sic] due and owing;
RA-III at 5-6; see Appendix B. Chanin's averment that a
final, $24,431.88 invoice was sent to Parnar on February 5,
1991, flatly contradicted his previous filings. See
A-49
Appendix C'*. Chanin submitted no other "proof" for a
judgment twice the size of the prayer in his complaint. Jd.
Parnar responded to Chanin's letter by filing "objections to
entry of Plaintiff's November 28, 1995, judgment." RA-II at
336. She did not respond to his affidavit or $47,346.26
demand because she had not seen them. /d. Parnar noted
she had not been served with the proposed judgment and
asked for a proof hearing on damages under HRCP Rule
55(b)(2). Id.
On January 11, 1996, First Circuit Judge Daniel G. Heely
signed Chanin's proposed judgment "for Judge Huddy." RA-
III at 1; see Appendix B. Chanin's affidavit was attached.
Id. There is no record that Judge Huddy reviewed Chanin's
proposed judgment or affidavit, or adopted Chanin's
demands. Chanin awarded himself $24,431.88 in principal,
$13,437.55 in prejudgment interest, $7,581.46 in fees, and
$1,895.37 in costs, or $47,346.26. Jd.
J. Parnar’s Motion to Open Judgment; Judge Heely.
On January 17, 1996, Parnar filed a motion under HRCP
Rules 59 and 60 to open and amend judgment or for new
trial. RA-III at 38. She argued $13,437.55 in interest was
awarded in violation of HRS Section 636-16, without motion,
without hearing, and without designating commencement
date or interest rate. Jd. at 110-112. She claimed Judge
'° On June 1, 1992, Chanin filed an affidavit in opposition to Parnar's
motion for summary judgment, attaching a summary of account and
multiple invoices sent to Parnar between February and December 1991.
The final balance listed on Chanin's summary of account was
$19,208.41, not $24,431.88. See Appendix C. Parnar is moving on even
date herewith to supplement the record with this document, which was
inexplicably omitted from the record on appeal.
A-50
Heely, who was new to the case and conducted no proof
hearing, could not execute the judgment. Jd. at 113-115"'.
Chanin filed papers in opposition, claiming his secretary
served Parnar with the proposed judgment and affidavit, but
arguing HRCP Rule 55 did not apply anyway because Parnar
was "defaulted" under HRCP Rule 37. RA-III at 85-86. No
court rules, claimed Chanin, governed Judge Heely's
$47,346.26 default judgment. Jd.
Judge Heeley heard Parnar's motion on January 31, 1996,
and denied it without comment. 1/31/96 Tr. at 9.
Transferred from First Circuit Judge Virginia Crandall's
courtroom two days before, Judge Heely had 48 hours to
review the file. RA-III at 184-185. He asked Chanin to
"prepare an order which lists in detail the specific procedural
background of the case[.]"_ 1/31/96 Tr. at 9.
Chanin submitted this order two weeks later, which
stated:
Plaintiff has been forced to file numerous motions to
compel Defendant Parnar to appear for the continuation
and completion of her deposition, and in spite of the
fact that Defendant Parnar has been ordered to appear
'! Parnar also presented substantial evidence that Chanin had a major
conflict of interest when he accepted representation of her in Americana
Hotels in 1989. RA-III at 43. Chanin represented Parnar in Americana
against lawyers Greeley, Walker & Kowen, without disclosing his prior
association with lawyers in that firm. /d. Chanin and Greeley were
former associates and Greeley was Chanin's personal lawyer for many
years, including his own divorce case. Jd. "If [Chanin] had disclosed
this," said Parnar, "I would not have retained him[.]" /d. at 44.
A-51
and allow for the continuation of her deposition, she
has refused to do so;
RA-III at 2; see Appendix D. Chanin never obtained a valid
order from any judge compelling attendance at a deposition
under HRCP Rule 37(a), and Parnar could not "refuse to do
so." /d. Chanin’s proposed order claimed Judge Soong
ordered Parnar to attend a deposition, when he never
conducted any hearing in this case. Jd. Chanin omitted any
reference to his premature termination of the 1991
deposition. Jd. He omitted Judge Klein's relevancy rulings.
Id. He made no mention of HRCP Rule 55 or Parnar’s
grounds for filing the motion to open and amend judgment.
Id. He made no reference to his affidavit, or the absence of a
proof hearing. Jd. He omitted his demands for $24,431.88
in principal, $7,581.46 in fees, $13,437.55 in prejudgment
interest, and $1,895.37 in costs. Jd. He ignored his failure to
serve Parnar. Jd. He made no attempt to justify Judge
Heely's authority to file a judgment. Jd.
Finally, Chanin's order asked Judge Heely to render
findings covering four years of proceedings in which he
played no role. /d. The matters raised in Parnar's motion
were ignored in the order, while Judge Heely resolved
countless others that were not. /d.
On February 20, 1996, Parnar filed objections to Chanin's
proposed order. RA-III at 184, 206. On May 24, 1996,
Judge Heely signed Chanin's proposed order unchanged. See
Appendix D.
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II. STATEMENT OF POINTS RELIED UPON.
A. Judge Huddy's Orde i ions.
On March 24, 1995, Chanin filed a motion for sanctions
against Parnar for failure to attend a March 22, 1995,
deposition. RA-II at 228. He did not specify what sanctions.
Id. Parnar filed opposition papers noting 1) no order was
filed, 2) Parnar had no counsel, 3) Parnar had no files, and 4)
the February 2, 1995, oral order and prior orders by other
judges were obtained by fraud on the court. RA-II at 295.
On April 19, 1995, Judge Huddy ruled:
[T]he record indicates that the Plaintiff has been
attempting to take Defendant's deposition for over
three years. Trial is imminent, it's scheduled for the
week of December 8, 1995. She was ordered by Judge
Klein, Judge Soong, Judge Watanabe, Judge Chang,
Judge Kaulukukui[,] and this court, most recently, to
attend her deposition.
4/19/95 Tr. at 7. "Ms. Parnar has made it clear," ruled the
court:
that she has not--she does not intend to attend a
deposition . . . until she gets counsel, and that's been
her whole tactics [sic]. And, uh, it's for those reasons
that the court grants the motion.
4/19/95 Tr. at 8. On August 8, 1995, Judge Huddy filed an
order granting Chanin's motion for default. RA-II at 329; see
Appendix A. "Good cause appearing," he ordered, "Parnar's
counter-claim against Plaintiff is hereby dismissed” and
"Parnar is hereby held in default as against the claims of
Plaintiff].]" Jd. at 330.
A-53
The court erred. First, Chanin did not specify the
sanctions sought in his motion. RA-II at 228. When he
orally demanded dismissal and default at the hearing, Judge
Huddy refused to let Parnar respond. 4/19/95 Tr. at 7.
"[Y]ou may not." /d.
Second, neither the court's oral nor written rulings found
bad faith, callous disregard or deliberate misconduct.
Third, Chanin never obtained an order directing Parnar to
attend any deposition.
Fourth, the court's April 19, 1995, oral finding that Judges
Klein, Soong, Watanabe, Chang, Kaulukukui and Huddy
ordered Parnar to attend a deposition, was clearly erroneous.
Fifth, Judge Huddy denied Parnar due process by
imposing a drastic sanction against her for failing to obey a
discovery order, when she could not comply because she had
no lawyer or files.
Sixth, neither Judge Huddy nor any other judge 1) warned
Parnar she would suffer sanctions, 2) considered lesser
sanctions, or 3) imposed lesser sanctions prior to the default
in this case.
Seventh, all of the discovery orders obtained by Chanin
from First Circuit judges--including Huddy's--were obtained
by fraud.
B. Judge Heely's Judgment for Dismissal and Default.
On November 28, 1995, Chanin sent a letter, proposed
judgment and one-page affidavit to Judge Huddy requesting
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a judgment of default. RA-II at 336. Chanin copied the
letter to Parnar, but did not send her the proposed judgment
or affidavit. Jd.
On December 4, 1995, Parnar filed objections to the
proposed judgment based on the letter, informing Chanin she
had not received the documents and requesting a proof
hearing under HRCP Rule 55(b). Jd. On January 11, 1996,
Judge Heely signed Chanin's proposed judgment, "for Judge
Huddy." RA-III at 1; see Appendix B.
Judge Heely erred. First, Chanin did not comply with
HRCP Rule 55(b) because he did not serve the judgment and
affidavit on Parnar prior to its entry by Judge Heely on
January 11, 1996.
Second, because of Parnar's December 4, 1995,
objections, both Chanin and Judge Heely knew Parnar had
not received the proposed judgment and affidavit, which
precluded her from challenging the amounts or claims
therein. Nevertheless, Chanin never sent them to Parnar and
Judge Heely signed the judgment without notice.
Third, Judge Heely did not preside over any hearing in
this case before January 31, 1996. He ignored Parnar's
request for a proof hearing, and had no idea whether Chanin's
demands were fair, supported by evidence, or considered by
Judge Huddy in his order of dismissal and default. Chanin's
$24,431.88 principal demand was $5000 more than a
summary of account balance supplied by Chanin in his
opposition to motion for summary judgment. See Appendix
.
Fourth, Judge Heely awarded $13,347.55 for prejudgment
interest although 1) it was not requested in the complaint, 2)
it was not requested by motion, 2) the court picked no
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commencement date or interest rate, and 3) the court made
no finding on delays.
Fifth, Judge Heely awarded $7,581.46 for fees although,
1) Judge Huddy did not award them, 2) Chanin did not
justify them in his affidavit, 3) fees were not authorized by
contract, statute of court rule, and 4) Rule 37(b) fees are
limited to "reasonable expenses" caused by the failure to
comply with a discovery order.
Sixth, Judge Heely awarded $1,895.37 for costs although,
1) Judge Huddy did not award them, 2) Chanin did not
justify them in his affidavit, 3) Rule 37(b) costs are limited to
“reasonable expenses" caused by the failure to comply with a
discovery order, and 4) Chanin did not file a bill of costs.
Seventh, Judge Heely's judgment was tainted by fraud on
the court, with Chanin lying repeatedly in pleadings,
affidavits and hearings throughout the proceedings leading
up to the judgment.
C. Judge Heely's Order Affirming Judgment.
On January 17, 1996, Parnar filed a motion to open and
amend judgment or for new trial, citing HRCP Rules 59 and
60(b). RA-III at 38, 110. She claimed 1) Chanin did not
comply with HRCP Rule 55(b), 2) Judge Heely could not
sign the judgment because he did not preside at the hearing,
and 3) discovery orders leading up to the judgment were
obtained by fraud on the court. /d.
Judge Heely heard Parnar's motion on January 31, 1996,
and denied it without comment. 1/31/96 Tr. at 9. Because
the motion was transferred from Judge Crandall's courtroom
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two days before, Judge Heely had 48 hours to review the file.
RA-III at 184-185. Unaware of the facts, Judge Heely asked
Chanin to "prepare an order which lists in detail the specific
procedural background of the case." 1/31/96 Tr. at 9. On
May 24, 1996, Judge Heely signed Chanin's proposed order.
RA-III at 211; see Appendix C.
The court erred. First, the May 24, 1996, order contained
findings covering four years of proceedings in which Judge
Heely played no role. Issues raised in Parnar's motion were
ignored, while the court resolved issues scripted by Chanin
that were not. Without transcripts, and without evidence,
Judge Heely had no basis to adopt Chanin's proposed order.
Second, the May 24, 1996, order is clearly erroneous’.
'? Paragraph | is wrong because the complaint was not filed in 1996.
Paragraph 2 omits Chanin's rude termination of the 1991 deposition
because of travel plans. Paragraph 3 is wrong because Chanin filed only
two motions to compel, and neither resulted in signed orders. Paragraph
4 omits Judge Klein's relevancy rulings and Chanin's failure to obtain an
order. Paragraphs 5 and 6 are wrong because Parnar declined to appear
for other reasons. Paragraph 7 is wrong because Judge Soong never
presided at any hearing in this case. Paragraph 8 is wrong because
Chanin did not file a motion to compel in November 1993, and the
hearing on Chanin's motion for sanctions was continued at his request.
Paragraph 9 is wrong because Parnar did not attend this hearing.
Paragraph 10 omits Judge Chang's refusal to impose sanctions.
Paragraph 11 omits Chanin's failure to file a proposed order, and
misstates the reasons for Parnar’s motion for rehearing. Paragraph 12 is
wrong because Kanae withdrew after the March 25, 1994, deposition
date and was not dismissed by Parnar. Paragraphs 13-15 omit the fact
that Chanin sent no notices of deposition to Parnar between April 1994
and January 1995. Paragraph 16 omits the fact that Chanin's subpoena
was not in compliance with court rules, and his notice was unreasonable.
Paragraphs 17-18 omit the fact that Judge Huddy granted part of Parnar's
(continued...)
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Third, Judge Heely's May 24, 1996, order, like every
other order announced or filed in this case, was tainted by
fraud on the court by Chanin's lies in pleadings, affidavits
and hearings.
Ill. QUESTIONS PRESENTED
A. SHOULD THIS COURT VACATE THE
JUDGMENT OF DEFAULT, AND ENTER
JUDGMENT FOR PARNAR, BECAUSE OF
WHOLESALE, CONTINUOUS, AND
OUTRAGEOUS FRAUD ON THE COURT BY
CHANIN FROM 1992 TO 1996?
B. DID JUDGE HUDDY DENY PARNAR DUE
PROCESS OF LAW BY IMPOSING DRASTIC
SANCTIONS OF DISMISSAL AND DEFAULT
WHEN SHE FAILED TO BE APPEAR FOR A
DEPOSITION WITHOUT COUNSEL OR
FILES, WITHOUT WARNING HER ABOUT
SUCH SANCTIONS, AND WITHOUT
CONSIDERING LESSER SANCTIONS?
'2(_. continued)
protective order, denied Chanin's request for sanctions, and did not warn
Parnar of future sanctions. Paragraph 10 omits the fact that Chanin held
Parnar’s files so she could not prepare for her deposition or comply with
his request for documents. Paragraphs 22-23 omit Chanin's failures to
serve the proposed judgment, to justify his $47,346 demand, and to
provide a proof hearing. The entire document fails to respond to Parnar’s
motion to open and amend judgment.
A-58
C. DID JUDGE HEELY ENTER A
DEFECTIVE JUDGMENT WITH SPURIOUS
DEMANDS IN VIOLATION OF HRCP RULE
55(3), AND DENY A MOTION TO OPEN
AN.) AMEND, WITHOUT KNOWING
ANY THING ABOUT THE DISPUTED ISSUES
IN TRIS CASE?
IV. STANDARDS OF REVIEW
A. Fraud upon the Court. Whether a judgment is void
because of fraud upon the court is a matter or law reviewable
de novo. Southwest Slopes v. Lum, 81 Hawaii 501, 918 P.2d
1157 (App. 1996).
B. Compliance with HRCP Rule 37. Whether Judge
Huddy complied with HRCP Rule 37 is reviewable de novo.
W. H. Shipman v. Hawaiian Holiday Macadamia Nut, 8
Haw.App. 354, 802 P.2d 1203 (1990). Assuming
compliance, whether Judge Huddy properly imposed a
default and dismissal is reviewable under abuse of discretion.
Id. Whether Judge Huddy denied Parnar due process of law
by imposing these sanctions is a matter of law reviewable de
novo. Id.
C. Compliance with HRCP Rule 55(b). Whether Judge
Heely complied with HRCP Rule 55(b) is reviewable de
novo. Pogia v. Ramos, 10 Haw.App. 411, 876 P.2d 1342
(1994). Assuming compliance, whether Judge Heely
properly entered a default judgment without notice, without
proof hearing, and without justification for the award, or
properly denied a motion to open and amend judgment, are
reviewable under abuse of discretion. Jd.
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V. ARGUMENT
A. THIS COURT SHOULD VACATE THE
JANUARY 11, 1996, JUDGMENT BECAUSE
IT WAS OBTAINED BY FRAUD ON THE
COURT, AND ENTER JUDGMENT FOR
PARNAR.
Chanin and Parnar appeared before five First Circuit
judges with discovery disputes. Each new judge knew little
or nothing about prior proceedings and relied, of necessity,
upon the parties before them to explain the record.
Chanin, with 30-years' experience and a facility for glib
oratory, represented himself. Bogetto and Kanae represented
Parnar until April 1994, after which Parnar, a secretary,
appeared pro se.
None of the judges in this case reviewed transcripts of
prior hearings. Now that they have been prepared, Chanin's
strategy is clear. In instances too numerous to mention, he
lied. Faced with new judges each time in court, Chanin
dissembled, distorted, and deceived. Vaunting his
experience, his familiarity with judges, and his supposed
knowledge of discovery rules, Chanin bullied and belittled
his pro se opponent. "You get the flavor, your honor," he
would wink at the court, "you see what's going on." "Every
judge in this court," he said again and again, "has felt SOITy
for me and ordered this woman to attend a deposition in my
office."
A-60
Chanin‘s four-year performance perpetrated a fraud on the
court. He lied about the 1991 deposition. He lied about its
termination, his questions, Bogetto's objections, and Parnar's
answers. He lied about Judge Klein's ruling. He lied about
Judge Klein's order. He lied about Judge Nagata, Judge
Watanabe and Judge Soong. He lied about Judge
Kaulukukui's continuance. ile lied about Bogetto and
Parnar. He lied about Parnar's lawyers. He lied about
Parnar's discovery objections. He lied about Parnar's files.
He lied about her counter-claim. He lied about her search for
counsel. He lied about serving Parnar with the proposed
judgment. He lied in his November 28, 1995, affidavit in
support of judgment about his $24,431.88 principal demand.
Frequently Chanin's lies went unchallenged. Bogetto
could not defend himself before Judges Kaulukukui, Chang
or Huddy because he was not there. Parnar could not dispute
Chanin's lies about hearings before Judges Klein,
Kaulukukui, Nagata or Chang because she was not there.
None of these judges challenged Chanin because they sat for
only small portions of the case. Now that this Court has the
whole record before it, Chanin's calumny is clear.
Granted, attorneys exaggerate. Chanin is not the first
lawyer to gild lilies for a fee. At some point, though,
advocacy becomes fraud. The record is rendered so distorted
that the court cannot weigh the truth. An unbroken chain of
lies led five judges on the First Circuit Court to a default
judgment against Parnar.
HRCP Rule 60(b) addresses fraud on the court. "This rule
does not limit the power of a court,” states the final
paragraph, "to set aside a judgment for fraud upon the court."
HRCP Rule 60(b). "Fraud, misrepresentation, and
A-6]
circumvention used to obtain a judgment," said the ICA last
year, "are generally regarded as sufficient cause for the
opening or vacating of the judgment[.]" Southwest Slopes v.
Lum, 81 Hawaii 501, 505, 918 P.2d 1157 (App. 1996). "The
possibility that Plaintiffs used fraud upon the court when
obtaining the summary judgment in their favor," ruled the
ICA, "motivates us to vacate and remand." /d.; see also,
Magoon v. Magoon, 70 Haw. 605, 616, 780 P.2d 80 (1989)
("a court has inherent power to investigate whether a
judgment was obtained by fraud"); State v. Martin, 56 Haw.
292, 294, 535 P.2d 127 (1975) ("implicit in the proper and
orderly administration of justice"); Kang v. Harrington, 59
Haw. 652, 660, 587 P.2d 285 (1978) ("the appropriate action
to be taken in a case of fraud upon the court is for the injured
party to seek [relief] from the judgment of the court.")
In 1944 the United States Supreme Court addressed fraud
on the court and lawyers in classic language by Mr. Justice
Black:
[Tampering with the administration of justice in the
manner undisputably shown here involves more than
an injury to a single litigant. It is a wrong against the
institutions set up to protect and safeguard the public,
institutions in which fraud cannot complacently be
tolerated consistently with the good order of society.
Hazel-Atlas Glass v. Hartford Empire, 322 U.S. 238, 246
(1944). "Every element of fraud here disclosed demands the
exercise of the historic power of equity to set aside
fraudulently begotten judgments." Jd. at 245; see also, Root
Refining v. Universal Oil Products, 169 F.2d 514, 522 (3d
A-62
Cir. 1948) ("it is a wrong against the institutions set up to
protect and safeguard the public.")
"A number of courts have relied on the Hazel-Atlas as
authority for the proposition that involvement of an attorney
in the perpetration of the fraud is a key factor in the existence
of fraud upon the court." 47 Am.Jur.2d, Judgments, Section
891 at 365 (1984). Professor Moore states the following
about Hazel-Atlas:
[A]n attorney of Hartford was implicated is
perpetrating the fraud. We believe that this is
important, for, while an attorney should represent his
client with singular loyalty, that loyalty obviously does
not demand that he act dishonestly or fraudulently; on
the contrary his loyalty to the court, as an officer
thereof, demands integrity and honest dealing with the
court. And when he departs from that standard in the
conduct of a case he perpetrates a fraud upon the court.
Moore & Lucas, Moore's Federal Practice, V. 7, Section
60.33 at 60-359 (1982). "Fraud on the court,” notes
Professor Moore, "is a fraud perpetrated by officers of the
court so that the judicial machinery cannot perform in the
usual manner[.]" Jd. at 60-360; see also, Haner v. Haner,
373 P.2d 577, 579 (Utah 1062) (false statements by lawyers
that prevent a party from prosecuting a claim or defense
constitute fraud on the court.)
Defaults obtained by fraud upon the court are particularly
vulnerable to reversal. "[D]ismissal of a pending action by
the trial court with prejudice is not favored." Azer v.
Courthouse Racquetball Corp., 9 Haw.App. 530, 540, 852
P.2d 75 (1993); see also Wright, Miller and Kane, Federal
A-63
Practice and Procedure, Civil 2d, V. 9, Section 2681 at 402
(1983) ("defaults are not favored by the law and any doubts
usually will be resolved in favor of the defaulting party");
Trehan v. Von Tarkanyi, 85 B.R. 920, 921 (S.D.N.Y. 1988)
(“as a result of the fraud perpetrated by the Trehans the
default judgment is void"); Anno, 78 A.L.R.3d 150 (1962),
"Fraud in Obtaining or Maintaining Default Judgment as
Grounds for Vacating or Setting Aside Judgment in State
Courts."
Judgments are not vacated merely because perjured
evidence is introduced at a hearing. Chishom vy. Stephenson,
363 P.2d 229, 232 (Okla. 1961). "[{I]t must be such fraud as
to prevent the other from having a trial of the issues." Jd.
"Fraud upon the court embraces," declared the Montana
Supreme Court recently:
only that species of fraud which subverts or attempts to
subvert the integrity of the court itself, or Jraud
perpetrated by officers of the court so that the padicial
machinery cannot perform in an impartial manner.
In re Marriage of Miller, 902 P.2d 1019, 1022 (Mont. 1995)
(emphasis added). "Fraud upon the court includes only the
most egregious conduct," said the court, "such as the
fabrication of evidence in which an attorney has been
implicated[.]" Jd. "{I]f our adversary system is to function
according to design," said Justice Marshall in Geders vy.
United States, 425 U.S. 80, 93 (1976), "we must assume that
A-64
an attorney will observe his responsibilities to the legal
system."!°
By repeatedly lying in court documents and hearings,
Chanin tainted the entry of every ruling in this case. He
persuaded Judge Klein to deny a motion for termination. He
convinced Judges Nagata and Chang to compel Parnar's
appearance. He cajoled Judge Huddy into denying a
protective order and entering a default. Judge Heely entered
a $47,346.26 judgment. Chanin's misstatements "perpetrated
a fraud upon the court." People v. Radinsky, 490 P.2d 951,
953 (Colo. 1971). The Radinsky court declared:
If acts of this type that the respondent has committed
are not promptly and severely punished, the public will
not have reason to trust lawyers that maintain the high
standards of our profession.
490 P.2d at 952. "Our most sacred duty is to maintain the
integrity of the law profession by disciplining lawyers who
See also, Virgin Islands Housing Authority v. David, 823 F.2d 764,
767 (3d Cir. 1987) ("we believe that Maduro's argument perpetrated
fraud upon the district court"); Porter v. Goodyear Tire and Rubber, 536
F.2d 1115, 1119 (6th Cir. 1976) ("since attorneys are officers of the
court, their conduct, if dishonest, would constitute fraud on the court");
Lockwood v. Bowles, 46 F. R. D. 625, 633 (D.C.D.C. 1969) ("when [an
attorney] departs from that standard in the conduct of a case he
perpetrates a fraud upon the court"); England v. Doyle, 281 F.2d 304,
306 (9th Cir. 1960) ("unconscionable plan or scheme which is designed
to improperly influence the court"); Rozier v. Ford Motor Company, 573
F.2d 1332, 1338 (Sth Cir. 1978), ("fabrication of evidence by a party in
which an attorney is implicated is fraud upon the court"); Jn re
Intermagnetics America, 926 F.2d 912, 916 (9th Cir. 1991) ("fraud upon
the court includes both attempts to subvert the integrity of the court and
fraud by an officer of the court.")
A-65
indulge in practices which are designed to perpetrate a fraud
on the courts." J/d.; see also, In re French, 28 Haw. 47, 59
(1924) (attorney disbarred for giving "deliberately false"
testimony.)
B. PARNAR'S OBJECTIONS TO DISCOVERY
WERE FOUND SUBSTANTIALLY
JUSTIFIED BY EVERY JUDGE IN THIS
CASE INCLUDING JUDGE HUDDY BEFORE
HE ENTERED A DEFAULT AND DISMISSAL
BECAUSE SHE WOULD NOT ATTEND A -
DEPOSITION WITHOUT COUNSEL OR
FILES.
"A general limitation on the right of discovery," said the
ICA in Lothspeich v. Sam Fong, 6 Haw.App. 118, 711 P.2d
1310 (1985), "is that the information sought must be
‘relevant to the subject matter involved in the pending
action.” Jd. at 122, quoting, HRCP Rule 26(b)(1).
"Depositions are properly taken only for the purposes of
preparing for trial[.]" Jd. HRCP Rule 30(d) provides:
At any time during the taking of the deposition, on
motion of a party . . . and upon a showing that the
examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass, or
oppress the deponent or party, the court may order the
officer conducting the examination to cease forthwith
from taking the deposition, or may limit the scope and
| manner of the taking of the deposition as provided in
Rule 26(c).
HRCP Rule 30(d) (part) (emphasis added).
A-66
On December 4, 1991, after a one-hour, irrelevant,
obnoxious interrogation, Chanin terminated a deposition
because of travel plans requiring his departure two hours
after Parnar arrived.
On January 12, 1992, Parnar filed a motion under HRCP
Rule 30(d) to terminate or limit the scope and manner of her
deposition.
On March 3, 1992, Judge Klein told Chanin he had
conducted an improper interrogation. "35 pages to establish
nothing,” said Judge Klein, "you were just asking basically a
lot of irrelevant questions." 3/3/92 Tr. at 5,7. After
reviewing the complaint and the counterclaim, and reading
the deposition transcript, Judge Klein called Chanin's
performance "a total waste of time." Jd.
For three years after this oral ruling Parnar asked Chanin
to file a proposed order reducing Judge Klein's order to
writing, "limit[ing] the scope and manner of the taking of the
deposition as provided for in Rule 26(c).". HRCP Rule
30(d). Bogetto wrote letters to Chanin and asked judges to
order his compliance with HCCR Rule 23, so a deposition
could be conducted "relevant to the subject matter involved
in the pending action." HRCP Rule 26(c).
Bogetto never obtained a written order by Judge Klein
"limiting the scope and manner" of Parnar's deposition. This
and other objections were presented by Bogetto, Kanae and
Parnar pro se to Judges Nagata, Chang and Huddy. Neither
Parnar nor her lawyers were sanctioned by any judge--
including Judge Huddy--until Judge Huddy entered a default
and dismissal in this case.
A-67
"In an appeal from an order imposing sanctions under
Rule 37(b), said the ICA in Lothspeich, supra, "the appellate
court will consider the propriety of the underlying discovery
order." 6 Haw.App. at 124 "A good faith dispute
concerning a discovery question can. in a proper case,
constitute substantial justification for refusing to give
discovery." Jd.
Judges Klein, Kaulukukui, Nagata, Chang, and Huddy,
acknowledged Parnar's substantial justification for refusing
to attend Chanin's deposition dates by failing to impose
sanctions:
If the motion [to compel] is granted, the court shall,
after opportunity for hearing, require the party or
deponent whose conduct necessitated the motion or the
party or attorney advising such conduct or both of them
to pay the moving party the reasonable expenses
incurred in obtaining the order, including attorney's
fees, unless the court finds that the opposition to the
motion was substantially justified or that the
circumstances makes an award of expenses unjust.
HRCP Rule 37(a)(4)(part) (emphasis added). When Judge
Nagata granted Chanin's motion to compel he refused his
demand for "reasonable expenses" under Rule 37(a)(4).
9/24/93 Tr. at 10. When Judge Chang ordered Parnar to
attend a deposition he declined Chanin's request for
expenses. 3/4/94 Tr. at 18. When Judge Huddy denied
Parnar's motion for protective order he rejected Chanin's
request for expenses. 2/2/95 Tr. at 14.
HRCP Rule 37(a)(4) mandates an award of reasonable
expenses to the prevailing party "unless the court finds that
A-68
the opposition to the motion was substantially justified[.]"
Id. The refusals to award Chanin "reasonable expenses” in
1993, 1994, and 1995 meant Parnar’s objections to Chanin's
notices of deposition were "substantially justified." Jd'*.
"Substantially justified" has been defined by Wright, Miller
and Marcus to mean:
the motion raised an issue about which reasonable
people could genuinely differ whether a party was
bound to comply with the discovery rule.
Wright, Miller and Marcus, Federal Practice and Procedure,
Civil 2d, Section 2288 at 665 (1994). "In such cases the
losing party is substantially justified in carrying the matter to
court." /d. at 666, n.30, quoting, Advisory Committee Note
(1970).
When Parnar declined to attend the March 22, 1995,
deposition, her reasons were "substantially justified." First,
Chanin refused to submit an order to Judge Klein to set
limits on the deposition and had shown he would use it to
harass Parnar. Second, Parnar had no lawyer, and Judge
Huddy's order directing Parnar's attendance at a deposition in
30 days made it impossible to get one. Third, Chanin
refused to give Parnar the Americana Hotels files, and
without them she could not prepare for her deposition or
trial.
'* In Aloha Unlimited v. Coughlin, 79 Hawaii 527, 904 P.2d 541 (App.
1995), the ICA applied similar reasoning when expenses were imposed
after a hearing. "Implicit in the court's order awarding fees and costs is
the finding that Aloha's failure to timely appear for the deposition was
not justified.” 79 Hawaii at 534.
A-69
Judge Huddy abused his discretion in defaulting and
dismissing Parnar's defenses and counterclaims since she
was substantially justified in refusing to attend the March 22.
1995, deposition.
C. JUDGE HUDDY DID NOT FIND PARNAR
ACTED IN BAD FAITH, OR JUSTIFY THE
IMPOSITION OF THE DRASTIC SANCTION
OF DEFAULT AND DISMISSAL IN THIS
CASE.
Judge Huddy entered a default and dismissal because
Parnar could not find a lawyer, and "does not intend to attend
a deposition until she gets counsel[.]" 4/19/95 Tr. at 8. "It's
for those reasons," he said, "that the court grants the motion."
Id.
Parnar contacted 70 lawyers after Kanae withdrew in
April 1994. She submitted paid advertisements to the Star
Bulletin, the Honolulu Advertiser and the Hawaii State Bar
Journal, seeking counsel. Parnar "has made some effort to
obtain counsel," Judge Shimabukuro said, "by the nature of
this case maybe some attorneys are avoiding it." 9/7/94 Tr.
at 12-13. "For one reason or another," Judge Huddy
acknowledged, "you have been unable to engage or retain
other legal counsel." 2/2/95 Tr. at 14 (emphasis added).
Judge Huddy did not find Parnar guilty of bad faith,
abusive litigation practices, callous disregard, or a willful
failure to obey a court order. 4/19/95 Tr. at 13. He entered
default because Parnar refused to attend a deposition without
files or counsel.
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In W. H. Shipman v. Hawaiian Holiday Macadamia Nut,
8 Haw.App. 354, 802 P.2d 1203 (1990), the ICA adopted a
five-factor test which a trial court must weigh before
imposing drastic sanctions:
(1) the public's interest in the expeditious resolution of
litigation; (2) the court's need to manage its docket; (3)
the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits; and
(5) the availability of less drastic sanctions.
Shipman, supra, 8 Haw.App. at 362, quoting, United States
ex rel. Wiltec Guam v. Kahaluu Construction, 857 F.2d 600,
603 (9th Cir. 1988); see also, Aloha Unlimited v. Coughlin,
79 Hawaii 527, 532, 904 P.2d 541 (App. 1995) ("five
factors"). "[T]he trial court must articulate on the record its
reasons for dismissing the complaint." /d., quoting, Quality
v. Keating, 675 F.2d 77, 79 (3d Cir. 1982).
More importantly, "in the absence of a showing of bad
faith, willfulness, or callous disregard of the nights of other
litigants," ruled the Shipman court, a default is "an abuse of
discretion." /d. at 361; see also, Aloha Unlimited, supra, 79
Hawaii at 533 ("the element of willfulness is required when
the sanction [is] harsh"); Kukui Nuts of Hawaii v. R. Baird
and Company, 6 Haw.Haw. 431, 436, 726 P.2d 268 (1986)
("[w]e adopt the bad faith requirement"); Azer v. the
Courthouse Raquetball Corp., 9 Haw.App. 531, 540, 852
P.2d 75 (1993) ("[a]n appellate court will uphold a dismissal
with prejudice only where the record clearly shows delay or
contumacious conduct{.])"'° Courts apply this standard
'S Federal courts are in accord. See e.g., Malautea v. Suzuki Motor Co.,
987 F.2d 1536, 1542 (11th Cir. 1993) ("default judgment sanction
(continued...)
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equally to sanctions sought under HRCP Rules 37(b) or
37(d). See, e.g., Shipman; Aloha; Marshall y. Segona, 621
F.2d 763 (Sth Cir. 1980). Wright, Miller and Marcus
declare:
If the failure is because of inability to comply, rather
than willfulness, bad faith, or any fault of the party, the
action should not be dismissed, nor a default judgment
given, and less severe sanctions are the most that
should be invoked.
Wright, Miller & Marcus, Federal Practice and Procedure,
Civil 2d, Section 2284 at 621-622 (1994), citing, Bank
Atlantic v. Blythe Eastman, 12 F.3d 1045 (11th Cir, 1994),
Finally, whether or not Judge Huddy abused his discretion
under HRCP Rule 37, he denied Parnar due process of law:
there are constitutional limits, stemming from the Due
Process Clause of the Fifth and Fourteenth
Amendments, on the imposition of sanctions.
'S(...continued)
requires a willful or bad faith failure to obey a discovery order");
Regional Refuse Systems v. Inland Reclamation, 842 F.2d 150, 153 (6th
Cir. 1988) ("a sanction of last resort may be imposed only if the court
concludes that a party's failure to cooperate in discovery is due to
willfulness, bad faith or fault"); Dorsey v. Academy Moving & Storage,
423 F.2d 858, 860 (Sth Cir. 1970) ("[s]anctions available under Rule
37(b) are predicated upon the presence of such factors as willful
disobedience, gross indifference to the right of the adverse party,
deliberate callousness, or gross negligence"); Independent Productions v.
Leow's, 283 F.2d 730, 733 (2d Cir. 1960) ("dismissal of an action with
prejudice or the entry of a judgment by default are drastic remedies and
should be applied only in extreme circumstances.")
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Wright, Miller & Marcus, Federal Practice and Procedure,
Civil 2d, V. 8A, Section 2283, at 605 (1994), citing, Martin
v. Brown, 63 F.3d 1252 (3d Cir. 1995). "[B]efore imposing a
serious merits sanction, the court should determine whether
the party guilty of failure to provide discovery was unable to
comply[.]" Jd.
In Shipman, supra, the ICA quoted the U. S. Supreme
Court:
Rule 37 should not be construed to authorize dismissal
of this complaint because of petitioner's noncompliance
with a pretrial production order when it has been
established that failure to comply has been due to
inability, and not to willfulness, bad faith or any fault
of petitioner.
8 Haw.App. at 361, quoting, Societe International v. Rogers,
357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958).
"The courts have heeded," declare Wright, Miller and
Marcus, "the doctrine of the Societe Internationale case{.]"
Wright, Miller and Marcus, supra at 609, citing, Nat. Hockey
League v. Metropolitan Hockey, 427 U.S. 639 (1976). _
"[{T]he sanction of dismissal cannot be imposed if the failure
was due to inability to comply." /d.
None of the judges that heard motions in this case--
including Huddy--found Parnar guilty of bad faith. None
imposed sanctions. None awarded expenses, struck
defenses, barred evidence, adjudged contempts, or imposed
any other sanction described in court rules. "[C]ertain things
weren't filed,” said Judge Nagata in 1993, "so I'm not going
to award any sanctions." 9/24/93 Tr. at 12.
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Huddy ordered default and dismissal because 1) Parnar
could not obtain counsel, and 2) she would not attend a
deposition without it'®. This sanction was imposed "on a
party who had made a good faith effort to comply" and it
contravened the Due Process clauses in the United States and
Hawaii Constitutions.
D. PARNAR WAS NOT WARNED OR
SANCTIONED PRIOR TO THE DEFAULT.
AND THERE IS NO INDICATION JUDGE
HUDDY CONSIDERED A LESS DRASTIC
SANCTION.
"[A]s a general rule," declared the ICA in Shipman, supra,
"the [trial] court must consider less severe alternatives and
discuss them if it elects to dismiss." 8 Haw.App. at 364; see
also, Aloha, supra, 79 Hawaii at 535 ("[the] court abuses its
discretion if it imposes a sanction of dismissal without first
considering the impact of the sanction and the adequacy of
less drastic sanctions.") "[T]he reviewing court," declared
the ICA in Shipman and Aloha, "[will] look to whether the
[trial] court warned of the possibility of dismissal." /d'’.
'° In Flaks v. Koegel, 504 F.2d 702 (2d Cir. 1974), the court vacated an
order striking an answer for failure to appear for a deposition.
Defendants, the court noted, "were faced with the problem of obtaining
new counsel after their original counsel had been relieved[.]" 504 F.2d
at 704.
"’ Federal courts are in accord. See e. g., Wright, Miller & Marcus,
Federal Practice and Procedure, Civil 2d, Section 2284 at 620 ( 1994)
("most [courts hold] some consideration of alternative sanctions should
occur"); Poulos v. Naas, 959 F.2d 69, 75 (7th Cir. 1992) ("[w]e have
recommended that courts consider lesser sanctions before imposing
default judgments"); Avionic v. General Dynamics, 957 F.2d 555, 558
(continued...)
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In Aloha the ICA adopted a three-step test for determining
whether the trial court considered less drastic sanctions:
(1) Did the court explicitly discuss the feasibility of
less drastic sanctions and explain why alternative
sanctions would be inadequate? (2) Did the court
implement alternative methods of sanctioning or curing
the malfeasance before ordering dismissal? (3) Did the
court warn the [party] of the possibility of dismissal
before actually ordering dismissal?
Aloha, supra, 79 Hawaii at 535, quoting, United States v.
National medical Enterprises, 792 F.2d 906, 912 (9th Cir,
1986). The answers to these questions in this case are no, no
and no.
First, as noted, prior to Judge Huddy's order of default, no
court filed any order awarding expenses, striking defenses,
"(...continued)
(8th Cir. 1992) ("before dismissing a case under Rule 37(b){2) the court
must investigate whether a sanction less extreme than dismissal would
suffice"); Shea v. Donohoe, 795 F.2d 1071, 1075 (D.C. Cir. 1986)
("dismissal is a sanction of last resort to be applied only after less dire
alternatives have been explored"); Wanderer v. Johnston, 910 F.2d 652,
656 (9th Cir. 1990) ("consider the availability of less drastic sanctions");
Ehrenhaus v. Reynolds, 965 F.2d 916, 121 (10th Cir. 1992) ("the
efficacy of lesser sanctions"); Coane v. Ferara Pan Candy, 898 F.2d
1030, 1032 (Sth Cir. 1990) ("the lesser sanction must be an inefficacious
deterrent"); Schilling v. Walworth County Park, 805 F.2d 272, 275-(7th
Cir. 1986) ("requires that a district court consider less severe sanctions
and explain, where not obvious, their inadequacy for promoting the
interests of justice.")
A-75
designating facts, barring evidence, or imposing any other
punishment. Parnar's first sanction was her last.
Second, there is no indication in the April 19, 1995,
transcript--when Judge Huddy entered a default against
Parnar--that the court considered the use of less drastic
sanctions.
Third, there is no indication in the F ebruary 2, 1995,
transcript--when Judge Huddy denied Parnar's motion for
protective order and ordered her to attend a deposition
without counsel or files--that he would impose sanctions if
she failed to appear.
As Judge Tanaka concluded in Shipman, "there was
neither a warning of the possibility of . . . a default judgment
in favor of Shipman, nor did the court consider less severe
alternative sanctions[.]" 8 Haw.App. at 364. "Accordingly,
we hold that the lower court abused its discretion in
imposing [a default.]" Jd. at 365: see also, Azer v.
Courthouse Raquetball, supra, 9 Haw.App. at 540 ("we are
not convinced that the record clearly shows . . . lesser
sanctions would not serve the best interests of justice.")
E. THE JANUARY 11, 1996, JUDGMENT
WAS ENTERED IN VIOLATION OF HRCP
RULE 55(b), AND IMPROPERLY SIGNED BY
A DIFFERENT JUDGE.
Chanin demanded $24,346 in his complaint. Judge Heely
gave him $47,346 in his judgment. "A judgment by default
may not be different in kind or exceed in amount that prayed
for in the demand for judgment." HRCP Rule 54(c). "HRCP
Rule 54(c) restricts the scope of relief that may be granted by
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default judgment to that specifically prayed for."
Matsushima v. Rego, 67 Haw. 556, 559, 696 P.2d 843
(1985); see also, Bank of Hawaii v. Horworth, 71 Haw. 204,
787 P.2d 674 (1990); Wright, Miller and Kane, Federal
Practice and Procedure, Civil 2d, V. 9, Section 2689 at 453
(1983).
Defaults are addressed in HRCP Rule 55. "Application
for the entry of a judgment by default must be made to the
court under Rule 55(b)(2).". Wright, Miller & Kane, supra,
Section 2684 (1996 Supp. at 104), citing, Zeviar v. Local No.
2747, 733 F.2d 556 (8th Cir. 1984). "[D]efault," notes the
rule, "may be entered as follows:"
If the party against whom judgment by default is
sought has appeared in the action, he . . . shall be
served with written notice of the application for
judgment at least 3 days prior to the hearing on such
application. If, in order to enable the court to enter
judgment or to carry it into effect, it is necessary to
take an account or to determine the amount of damages
or to establish the truth of any averments by evidence
or to make an investigation of any other matter, the
court may conduct hearings or order such references as
it deems necessary and proper[.]
HRCP Rule 55(b)(2). Neither Chanin nor the court
complied.
First, Chanin did not send his proposed judgment to
Parnar before it was signed. "[T]he plain language of HRCP
Rule 55(b)(2) indicates that," the ICA has ruled:
the obligation to serve written notice of an application
for default judgment attaches where the defaulted party
|
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has appeared in the action. Therefore, where a
"defendant has appeared in the action she has a right to
notice under Rule 55(b)(2) even if in default." Stafford
v. Dickison, 46 Haw. 52, 59, 374 P.2d 665 (1962),
Pogia v. Ramos, 10 Haw.App. 411, 419, 876 P.2d 1342
(1994).
Parnar "appeared in the action," and Rule 55(b)(2)
mandates notice "three days prior to the hearing" on such
application: if
This enables a defendant in default to appear at a
subsequent hearing on the question of damages and
contest the amount to be assessed against him.
Wright, Miller and Kane, supra at 413 (1983). "A failure to
give the three days' notice when it is required generally is
considered a serious procedural error that justifies the
reversal or the setting aside of a default judgment." /d. at
438, citing, Marshall y. Boyd, 658 F.2d 552, 554 (8th Cir.
1981); Wilver v. Fisher, 387 F.2d 66. 70 (10th Cir. 1967); ey
Wellsville Bank v. Sutterby, 752 P.24 700, 702 (Kan.App.
i988); Magness v. Masonite, 671 S.W.2d 230, 231
(Ark.App. 1984); Cutillo v. Gerstel, 477 A.2d 750, 753 (Me.
1984).
Second, there was no proof hearing. Except for Judge
Huddy's order and Chanin's affidavit, Judge Heely had no
idea why a default was entered, what Chanin requested in his
complaint, or what Judge Huddy intended to award Chanin.
Further, the $24,431.88 principal demand flatly contradicted
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the $19,208.41 closing balance reported by Chanin in his
opposition to summary judgment. See Appendix C.
Because she was not served with the judgment and
affidavit, Parnar could not challenge them. And if she had
reviewed those documents, she would not have known
Chanin's reasons. He listed none. This case required a proof
hearing under Rule 55(b), especially after Judge Heely
replaced Judge Huddy, and was asked to sign a judgment
twice the size of Chanin's complaint.
"{T]he defaulting party still has standing to contest the
amount of damages." Pogia, supra, 10 Haw.App. at 418; see
also, Occidental Underwriters v. American Security Bank, 5
Haw.App. 431, 433, 696 P.2d 852 (1985) ("[the defaulting
party] has standing to contest the amount of its liability.")
Third, Chanin proffered no justification for principal, fees,
costs or prejudgment interest. His affidavit offered nothing.
The expenses allowable under HRCP Rule 37(b) are
described as follows:
In lieu of any of the foregoing order or in addition
thereto, the court shall require the party failing to obey
the order or the attorney advising him or both fo pay
the reasonable expenses, including attorneys fees,
caused by the failure, unless the court finds that the
failure was substantially justified or that other
circumstances make an award of fees unjust.
HRCP Rule 37(b)((part) (emphasis added). "The expenses
that may be recovered under it are those caused by the failure
to obey an order[.]". Wright, Miller & Marcus, Federal
Practice and Procedure, Civil 2d, V. 8A, Section 2289 at
A-79
674 (1994), citing, Toth v. Trans World Airlines, 862 F.2d
1381, 1385 (9th Cir. 1988),
Chanin asked for $7,581.46 in fees absent statute, contract
or court rule. See Kukui Nuts of Hawaii v. R. Baird, 6
Haw.App. 431, 436, 726 P.2d 268 (1986) ("attorney's fees
and costs may not be awarded absent statute, agreement,
stipulation, or precedent authorizing the allowance thereof"):
Cuerva v. Wong, 1 Haw.App. 194, 201, 616 P.2d 1017
(1980) ("fees may not be awarded unless such award is
authorized by statute, stipulation or agreement|.]")
Further, while fees and costs may be awarded "as a
sanction for abusive litigation," there was no such finding
here. See Kukui Nuts of Hawaii v. R. Baird, 7 Haw.App.
598, 624, 789 P.2d 501, cert. denied, 71 Haw. 668, 833 P.2d
900 (1990). "[T]he court is required to make a specific
finding of bad faith," and "no such finding was made in this
case." Jd. at 624, 626.
Fourth, Judge Heely awarded Chanin $13,436.55 in
prejudgment interest without designating a commencement
date or interest rate, or considering delay. According to HRS
Section 636-16:
In awarding interest in civil cases, the judge is
authorized to designate the commencement date to
conform with the circumstances of each case[.]
"[I]f Section 636-16 prejudgment interest [is] to be awarded,
the designation of its commencement date [is] absolutely
necessary." Rodrigues v. Chan, § Haw.App. 603, 607, 705
P.2d 67 (1985); see also, Schmidt v. Marco Polo Apartments,
73 Haw. 526, 836 P.2d 479 (1992). "Since the trial court did
A-80
not designate the commencement date, it [could] not award
any prejudgment interest." Jd. at 607.
Fifth, Chanin had no grounds to receive costs in this case,
since they are not authorized under HRCP Rule 37(b), and he
did not comply with HRCP Rule 54(d) or file a bill of costs.
Sixth, Judge Heely was not authorized to sign the January
11, 1996, judgment, or the May 24, 1996, order denying
Parnar's motion to open and amend judgment, because he
was not the judge that heard Chanin's default motion in this
case. In 1995 this Court declared:
In civil trials, "[t}he normal rule is that only the judge
who conducted the trial may enter the decision in a
case." Jn re Judicial Determination of Death of Elwell,
66 Haw. 598, 601, 670 P.2d 822, 824 (1983).
Raines v. State, 79 Hawaii 219, 222, 900 P.2d 1286 (1995).
A-81
VI. CONCLUSION.
This Court should vacate the judgment, reverse the default
and dismissal, enter judgment against Chanin on his
complaint and a default against Chanin on Parnar's counter-
claim.
DATED: 4/22/97, in Honolulu, Hawaii.
Respectfully submitted:
/s) PETER VAN NAME ESSER
Peter van name esser
Attorney for Defendant-Appellant
EUGENIE PARNAR
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Appendix X
Petitioner's Reply Brief
s.c. No. 19946
IN THE SUPREME COURT OF
THE STATE OF HAWAII
THE LAW OFFICES OF
JOHN A. CHANIN,
Plaintiff-Appellee,
VS.
EUGENIE PARNAR,
Defencant-Appellant.
EUGENIE PARNAR,
Counterclaimant and Appellant,
VS.
THE LAW OFFICES OF
JOHN A. CHANIN,
Counterclaim-Defendant and Appellee.
Civil No. 90-1843
APPEAL FROM
1) THE JUDGMENT FILED ON JANUARY 11, 1996,
AND
A-83
2) THE ORDER DENYING DEFENDANT EUGENIE
PARNAR'S MOTION TO OPEN AND AMEND
JUDGMENT ENTERED JANUARY 11, 1996, FILED
MAY 24, 1996.
FIRST CIRCUIT COURT
HON. Robert G. Klein
HON. Francis Q.F. Wong
HON. Russell Nnagata
HON. Barry Kurren
HON. Thomas Kaulukukui, Jr.
HON. Virginia L. Crandall
HON. Kevin S.C. Chang
HON. Wilfred K. Watanabe
HON. Colleen K. Hirai
HON. Herbert Shimabukuro
HON. Wendell K. Huddy
HON. Karen N. Blondin
HON. Gail C. Nakatani
HON. Danial G. Heely
Judges
[Filed]
[1997 Sept - 22 1:37 PM]
{K. Miyamura]
{Clerk Supreme Court]
APPELLANT'S REPLY BRIEF
and
CERTIFICATE OF SERVICE
A-84
EUGENIE PARNAR
252 Paoa Place, #3-3
Honolulu, Hawaii 96815
Telephone: (808)955-5050
Defendant-Appellant and Counterclaimant
Pro se
I. INTRODUCTION
Appellee ("Chanin") filed a "purported" answering brief,
entitled "Appellant's [sic] Answer to Appellant's Opening
Brief," two and one-half months after it was due after failing
to timely apply for extension, and in contempt of an order to
show cause.
Chanin has categorically failed or refused to address the
points established by Appellant's ("Parnar") Opening Brief.
In six pages under "Statement of the Case" and one and
one-half pages under "Argument," Chanin refused to cite any
legal authorities, or any part of the record on appeal to rebut
the points of error in the Opening Brief and improperly
attached appendices. No refutation to the arguments in the
Opening Brief constitutes an admission of the points
established by Parnar and her statement of facts should be
accepted as true.
Chanin siates that "[t]he principle disagreement" which
Chanin has with Parnar's statement of the underlying cases
"is the fact that Chanin was hired by Parnar for one specific
purpose and that was to oppose the fees which were being
claimed by attorney Michael Lilly, Esq." AB at 1. C
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