In re Marn Family Litig.

129 Hawai'i 269

297 P.3d 1125

In re MARN FAMILY LITIGATION.

No. CAAP–10–0000181.

Intermediate Court of Appeals of Hawai‘i.

March 28, 2013.

Appeal From The Circuit Court Of The First Circuit (Master File No. 00–1–MFL).

Alexander Y. Marn, Appellant, on the briefs, pro se.

Michael L. Freed, on the briefs, for Plaintiff–Appellee James Y. Marn, Jr.

Steven Guttman and Miriah Holden, (Ressner Umebayashi Bain & Matsunaga), on the briefs, for Plaintiff–Appellee James K.M. Dunn, as Successor Trustee of the Annabelle Y. Dunn Trust, Dated June 18, 1991.

Louise K.Y. Ing, Tina L. Colman, and Andrew D. Smith, (Alston Hunt Floyd & Ing), on the briefs, for Liquidating Receiver Thomas E. Hayes.

FOLEY, Presiding Judge, FUJISE and GINOZA, JJ.

SUMMARY DISPOSITION ORDER

Appellant Alexander Y. Marn (Alexander) appeals pro se from the October 25, 2010 Partial Final Judgment entered by the Circuit Court of the First Circuit (Circuit Court).¹ The Partial Final Judgment entered judgment against Alexander as to the claims that he asserted in Civil No. 98–4706–10 (Buy-out Lawsuit) and as to the claims that were asserted against him in Civil No. 98–5371–12 (Judicial Accounting Lawsuit). The Partial Final Judgment was certified for immediate appeal pursuant to Rule 54(b) of the Hawai‘i Rules of Civil Procedure and Alexander timely filed his appeal.

Before consideration of the merits of Alexander's appeal, we must address the argument of all three appellees that Alexander's opening brief violates multiple aspects of Rule 28 of the Hawai‘i Rules of Appellate Procedure (HRAP) and therefore warrants dismissal of this appeal. We conclude that Alexander's opening brief does not comply with HRAP Rules 28(a), (b)(1), (b)(3), (b)(4), (b)(5), (b)(7), and (b)(10) and based on the pervasive and substantial nature of these violations, dismiss this appeal.

In his opening brief, Alexander attempts to incorporate by reference arguments made in briefs filed in other appeals. He asks that “such references and observations be provided its full weight and gravity as may be permitted under the HRAP rules governing Appellant's Opening Brief.”

Parties are not permitted to incorporate by reference arguments made in briefs filed in other appeals or in the trial-level proceedings. The Hawai‘i Supreme Court has explicitly rejected such a practice, holding that it violates HRAP Rule 28(a). See Kapiolani Commercial Ctr. v. A & S P'ship, 68 Haw. 580, 584, 723 P .2d 181, 184–85 (1986). Accordingly, Alexander was prohibited from asserting arguments by reference and we only address those arguments made in his opening brief filed in this appeal.

Alexander also references an “Exhibit 8” filed with this court and coded as a Supplemental Opening Brief along with other exhibits in support of his Opening Brief, arguing that it serves as a factual record of court proceedings and that it provides an index—as permitted by HRAP Rule 28(a)—that allows the court to locate necessary evidence. However, a review of Exhibit 8 demonstrates that it is replete with Alexander's arguments and characterizations of statements contained in transcripts from the trial-court proceedings. For example, Alexander states, “For Court to instruct Rec'r to file reasons for his involvement in trial shows how this court is willing to allow biases to be inserted in the trial proceedings.” Moreover, aside from references to the transcripts, Exhibit 8 includes only one reference to the record on appeal and, thus, does little to help the court locate the evidence. In sum, Exhibit 8 is not a court record or an index. Instead, Exhibit 8 is an attempt to add more than twenty pages of briefing and, when combined with Alexander's forty-six-page opening brief, the documents violate HRAP 28(a), even as modified by this court's order granting him leave to file a fifty-page opening brief. As Exhibit 8 consists of a document not part of the record, its attachment to the brief is also a violation of HRAP Rule 28(b)(10).

The table of authorities included in Alexander's opening brief is not a table of authorities. Instead, it merely states, “Please refer to the TABLE OF AUTHORITIES cited in prior filings under ICA Case ID No. 29601, Opening Brief, filed June 8, 2009, dkt 74 [four (4) pages], as may be applicable.” On its face, this clearly does not comply with the rule's requirement that an opening brief include “a table of authorities listing the cases, alphabetically arranged, text books, articles, statutes, treatises, regulations, and rules cited, with references to the pages in the brief where they are cited.” HRAP 28(b)(1). The statements provided in the table-of-authorities section highlights the absence of any good-faith effort to comply with HRAP 28(b)(1).

Our appellate rules require a

concise statement of the case, setting forth the nature of the case, the course and disposition of proceedings in the court or agency appealed from, and the facts material to consideration of the questions and points presented, with record references supporting each statement of fact or mention of court or agency proceedings.

HRAP Rule 28(b)(3). Additionally, it requires the appellant to include all supporting and contradictory evidence in summary fashion, with appropriate record references. Id.

The statement of the case in Alexander's opening brief does not describe the nature of the case or the course and disposition of proceedings, nor does it include any citations to the record or any relevant contrary facts. Given these deficiencies, Alexander's opening brief also does not comply with Rule HRAP 28(b)(3).

Most problematic is Alexander's points of error. Alexander lists seventeen items. His entire point on appeal section, is reproduced below:

At this stage, Appellant raises ICA's attention to those areas “observed” to be highly questionable from a[sic] Appellant's view point, and are introduced here, although it may not be listed in priority of importance, nor is it a totally comprehensive list due to shortness of time to research twelve (12) years of records on appeal and timely file this opening brief:

1) Jury demanded trial vs. bench trial

2) Buy out case predates all suits filed, but tried after judicial accounting.

• The chronological reversing of trial sequence is biased.

3) Role of the receiver

4) The special accounting master “expert” PWC selected by the Court.

5) Quantum meruit denied by untimely submittal and statute of limitations.

6) Court decisions based on false statements of fact in hearing.

7) Denial of access to records of the partnership.

8) The transcripts of the proceedings cast a special light on the case.

9) Court treatment of Defendants' compensation inequitable

10) Court aware of every partner owed in excess of $1.0 m to the business

• PWC letter to Judge Marks dated April 8, 2005.

• Punitive damages applied to 2 of 4 partners only

11) Court's eagerness to find fault with Defendant's defense at ‘every turn’.

• Quantum meruit misses short timing, due to

• counsel's newness to case, but is an excessively harsh denial of defendant's claims

12) Receiver's analysis of partners' equity on liquidation is highly unreliable.

• Executive summary (3/17/08) vs. Credit Bid Analysis (9/11/10) are worlds apart. Self serving misinformation disseminated.

13) Selective withholding of Rule 54(b) certification for appeal

14) Defendant's annual compensation (actual vs. market, per PWC)

15) Defendant's bid to purchase MSC property under procedures established by the Receiver derailed by last minute insertion by Receiver of requirement for majority interest approval required for issuance of clear title to property.

16) Trial Standards: Quantum of Proof–Hawaii Rule of Evidence, Rule 304

• Preponderance of evidence vs. Clear and Convincing evidence.

17) Distribution History and Performance

• PWC report pg. 134 & JYM testimony ( see Tr. 6/8/06 at 42–43)

Because of the limited time and page limits established by ICA Order filed March 28, 2011 ( see dkt 65 at 2), and Appellant's appeal attorney in a prior assignment has provided much research and submitted legal briefs to ICA covering several of the critical issues and basis for our appeal, Appellant will be making liberal references to those Briefs, Replies, legal references and filings submitted with ICA on behalf of Appellant as part of this brief. Appellant is not an attorney by education or training, but incorporates “observations” of the proceedings which Appellant believes demonstrates violations of law and ask whether the proceeding under these violations afforded Defendant a fair and equitable adjudication of the dispute before the lower court. Appellant respectfully requests that such references and observations be provided its full weight and gravity as may be permitted under the HRAP rules governing Appellant's Opening Brief.

The opening brief must include “[a] concise statement of the points of error set forth in separately numbered paragraphs” with each point stating “the alleged error committed by the court,” “where in the record the alleged error occurred,” and “where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court [.]” HRAP Rule 28(b)(4).

Here, very few of Alexander's asserted points of error specify actions taken by the Circuit Court. Additionally, none of the points of error identify where in the record the alleged error occurred or identify where in the record the alleged errors were objected to. These failings are not cured elsewhere in the brief. See Marvin v. Pflueger, 127 Hawai‘i 490, 497, 280 P.3d 88, 95 (2012); see also In re Estate of Damon, 119 Hawai‘i 500, 504, 199 P.3d 89, 93 (2008) (finding that appellant's opening brief “sufficiently satisfies” the requirements of HRAP 28(b)(4) when the necessary citations are located elsewhere in the brief) Accordingly, Alexander Marn's opening brief does not comply with HRAP 28(b)(4).

The standard-of-review section of...