GHP Horwath P.C. v. Kazazian

1

2024 CO 8

In Re: GHP Horwath, P.C.; Nadine Pietrowski; Bohn Aguilar, LLC; Michael G. Bohn; and Armando Y. Aguilar, Petitioners v. Nina H. Kazazian, Respondent

No. 23SA146

Supreme Court of Colorado, En Banc

February 20, 2024

Original Proceeding Pursuant to C.A.R. 21

Rule Made Absolute

Attorneys for Petitioners:

Bohn Aguilar, LLC Michael G. Bohn Armando Y. Aguilar Lakewood Colorado

Respondent Nina H. Kazazian, pro se Vail, Colorado

Attorneys for Amicus Curiae Atrium Condominium Association, Inc.:

Nemirow Perez P.C. Miles L. Buckingham Denver, Colorado Wollenweber Freedman, P.C. Lee H. Freedman Lakewood, Colorado

PER CURIAM

¶1 "Every person has an undisputed right of access to the Colorado courts of justice." People v. Dunlap 623 P.2d 408, 410 (Colo. 1981). Yet while article II, section 6 of the Colorado Constitution affords litigants the right to the administration of justice "without sale, denial or delay," this right is impeded when a pro se party "pursues myriad claims without regard to relevant rules of procedural and substantive law." Bd. of Cnty. Comm'rs of Morgan Cnty. v. Winslow, 862 P.2d 921, 923 (Colo. 1993). In those rare instances, the pro se litigant's right of access to our state courts is not absolute and may be curtailed to cease continued disruption of judicial administration. In fact, we have "the duty and the power to protect courts, citizens and opposing parties from the deleterious impact of repetitive, unfounded pro se litigation." Id. at 924 (quoting Dunlap, 623 P.2d at 410). By balancing a pro se litigant's "right of access" against the interests of the public, we heed that duty. Francis v. Wegener, 2021 CO 66, ¶ 59, 494 P.3d 598, 608.

¶2 This case requires such a balancing. In the past eleven years, respondent, Nina H. Kazazian, has initiated no fewer than ten lawsuits and twice as many appeals-most of which courts have found to be duplicative, meritless, or otherwise frivolous. Her actions have resulted in admonishment, sanctions, and ultimately her disbarment from the practice of law. Now, no longer constrained by the ethical obligations of attorneys, Kazazian persists as a pro se party, creating new proceedings or prolonging old ones to continue her fruitless attempts at relitigating long-decided issues. This vexatious behavior has led petitioners- GHP Horwath, P.C.; Nadine Pietrowski; Bohn Aguilar, LLC; Michael G. Bohn; and Armando Y. Aguilar (collectively "Petitioners")-to ask us to permanently enjoin Kazazian from proceeding pro se in Colorado state courts. We recognize that this opinion is lengthy and a cumbersome read, but considering the extraordinary relief requested and Kazazian's actions, the details are necessary. Faced with the grievous nature of Kazazian's misuse of the legal system, we are compelled to grant Petitioners' requested relief.

I. Facts and Procedural History

¶3 To be perfectly clear about why we are taking such dramatic action, we will describe in detail Kazazian's actions in the related underlying matters.^[1]

¶4 Petitioners and amicus curiae Atrium Condominium Association, Inc. ("Atrium") raise two separate timelines of facts that undergird the issues with Kazazian. We will describe the facts relating to Petitioners first and the facts relating to Atrium second.

A. Cases Involving Petitioners

¶5 GHP Horwath, P.C. ("GHP") is a now-dissolved accounting firm. Kazazian retained GHP through her divorce attorney to perform an evaluation of her then-husband's business. After Kazazian's divorce attorney withdrew from her case, GHP exited without producing an expert report.

1. Initial Small Claims Proceeding^[2]

¶6 In August 2013, Kazazian commenced a small claims proceeding against GHP seeking return of the retainer she had paid for the expert report, plus attorney fees.^[3] After a transfer requested by GHP,^[4] a voluntary dismissal at Kazazian's request, GHP's appeal of that dismissal,^[5] a remand, and a hearing in the Denver County Small Claims Court, Kazazian prevailed. She won a portion ($2,100) of the retainer, with judgment deferred pending resolution of the parties' requests for attorney fees, which were to be determined at a later hearing.

¶7 Shortly before the attorney-fees hearing, GHP offered Kazazian $10,000 to settle the matter and dismiss the case with prejudice. After requesting that a signed, notarized copy of the settlement agreement be sent to her for her acceptance and signature, Kazazian rejected the offer and made a counteroffer for $10,800, which GHP did not accept. At the attorney-fees hearing, the parties stated that they had not reached a settlement; Kazazian was then awarded a final judgment of $2,360. Subsequently, Kazazian emailed GHP representing that she had previously signed GHP's $10,000 offer and had dropped it in the mailbox. She attached a copy of the signed and notarized agreement, now countersigned by Kazazian, and demanded payment of $10,000. GHP disregarded this demand and sent Kazazian a check for the final judgment amount of $2,360, which she eventually cashed.

2. Breach of Settlement Agreement Lawsuit^[6]

¶8 About a month later, in June 2016, Kazazian sued GHP and its CEO, Nadine Pietrowski, alleging that they had breached the settlement agreement from the small claims case. The district court granted GHP summary judgment with costs, finding that no contract existed as to the settlement agreement. Specifically, the court found that Kazazian failed to accept the settlement offer by the deadline, affirmatively rejected the offer, and instead made a counteroffer with materially different terms. The court also held that Kazazian's actions-including making a counteroffer, explicitly rejecting GHP's offer, and submitting hearing exhibits that did not include a settlement agreement-clearly indicated that she did not honestly believe she had accepted the settlement offer.

3. Appeal of Summary Judgment and Costs^[7]

¶9 In April 2017, after receiving several extensions of time yet still filing late, Kazazian appealed the district court's summary judgment order. After oral argument, a division of the court of appeals affirmed. Furthermore, the division awarded GHP its appellate attorney fees, holding that Kazazian's appeal was substantially frivolous or groundless. Specifically, the division held that Kazazian's arguments were contrary to the most fundamental concepts of contract law and not rationally grounded in credible evidence. The division then remanded the case to the district court to determine GHP's appellate attorney fees.

4. Attorney Fees and Costs Claims Arising from Breach of Settlement Agreement Lawsuit

¶10 Following the summary judgment order, GHP and Pietrowski moved the district court for attorney fees, arguing that Kazazian's breach of settlement agreement lawsuit lacked substantial justification. A day late, Kazazian filed an opposition to GHP's bill of costs and later a motion to strike GHP's reply. The district court awarded GHP the costs it had requested, ordered that the motion for attorney fees be set for hearing, and denied Kazazian's motion to strike. In advance of the hearing, Kazazian attempted to subpoena GHP's executives, but the subpoenas were quashed.

¶11 After an evidentiary hearing, the district court found that Kazazian's claim was substantially frivolous and groundless because she "presented no rational argument based on evidence or law to support her breach of contract claim," and that instead "the evidence demonstrated that no one, especially an experienced lawyer, would have believed that a contract existed." The district court awarded GHP and Pietrowski $17,757.50 in attorney fees.^[8] Kazazian appealed the award.^[9]She also moved for reconsideration of the court's order, which the district court denied.

¶12 Kazazian sought a stay of the judgment pending the appeal. After GHP attempted to satisfy the judgment by garnishing two of Kazazian's bank accounts, Kazazian filed two claims of exemption and moved to vacate the writ of garnishment. After two hearings,^[10] the court denied both claims of exemption, the motion to vacate, and the motion to stay. GHP then served Kazazian with interrogatories and a subpoena for a C.R.C.P. 69 examination to be held in November 2018. After filing a motion to quash, a motion for entry of partial satisfaction of judgment, a motion for leave to deposit the balance of the judgment with the court pending appeal, a second motion for stay of the judgment, a notice of satisfaction of judgment, a second motion to quash, and after the court held another hearing, Kazazian finally gave GHP a check for the judgment covering the breach of contract attorney fees and costs.

5. Appeal of Order Granting Attorney Fees^[11]

¶13 While the underlying district court case was proceeding, Kazazian appealed the district court's award of attorney fees. She also moved to stay the underlying proceedings, which the court denied. After receiving two extensions of time, Kazazian filed a "draft" opening brief,^[12] an amended opening brief, a combined reply and answer (after three further extensions of time), and a motion to both strike GHP's combined opening brief and answer and to dismiss GHP's cross-appeal.^[13] Eventually, a division of the court of appeals affirmed the district court's grant of attorney fees.

¶14 Pertinent here, the division agreed with the district court that Kazazian "had invented her claim 'out of whole cloth,'" that her assertions were "incredible," that she "made no effort to determine the validity of her claim," that she "made no attempt to reduce or dismiss her invalid claims," and that she "made no attempt to demonstrate that the facts bearing upon the validity of her claim were somehow unavailable to her from the inception."...