In re Stevens

150 Hawai‘i 218

499 P.3d 418 (Table)

In the MATTER OF the ESTATE OF John R. STEVENS, Deceased

NO. CAAP-18-0000101

Intermediate Court of Appeals of Hawai‘i.

November 17, 2021

On the briefs:

Carmen K. Stevens Self-represented Petitioner-Appellant.

Douglas C. Smith, Madeleine M.V. Young, and Ross Uehara-Tilton (Damon Key Leong Kupchak Hastert) for Personal Representative-Appellee.

(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)

SUMMARY DISPOSITION ORDER

This appeal arises out of a probate proceeding for the will and estate of John R. Stevens (the Stevens Estate ). Self-represented Petitioner-Appellant Carmen K. Stevens (Carmen ) appeals from the following documents (collectively, the challenged orders and judgments ), entered in the Circuit Court of the First Circuit (Probate Court )¹ :

(1) the October 6, 2017 Order Regarding [Carmen's] Motion to Request Payment of Claim Filed July 16, 2015 (October 6, 2017 Order );

(2) the October 6, 2017 Judgment on [the October 6, 2017 Order];

(3) the January 22, 2018 Order (1) Denying [Carmen's] Petition of Objection Reconsideration and Clarification of Order Filed September 25, 2017 and (2) Granting in Part Petition to Strike [Carmen's] Petition of Objection Reconsideration and Clarification of Order Filed September 25, 2017[,] For Entry of Order Declaring Interested Party [Carmen] a Vexatious Litigant, Entry of Pre-Filing Order, and for Posting of Security Filed December 5, 2017 (January 22, 2018 Order );

(4) the January 22, 2018 Judgment on [the January 22, 2018 Order];

(5) the January 22, 2018 Judgment on the award of attorneys' fees and costs (Judgment on Fee Award ); and

(6) the January 22, 2018 Pre-Filing Order.

On appeal, Carmen contends that: (1) venue in the First Circuit was improper; (2) the Probate Court abused its discretion and violated due process in declaring Carmen a "vexatious litigant" pursuant to Hawaii Revised Statutes (HRS ) § 634J-1 and - 7 ; (3) the Probate Court erred and/or abused its discretion by failing to explain its rulings and to enter written findings of fact and conclusions of law concurrently with its orders and judgments; (4) the Probate Court engaged in acts of judicial misconduct.²

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Carmen's points of error as follows.

(1) Carmen contends that the First Circuit Court "has no legal venue to hear and hold this case nor to make orders and judgments." She argues that although the case was first commenced in the First Circuit, it can only be lawfully maintained in the Third Circuit, because the decedent owned real property only in the Third Circuit and was a resident of the Third Circuit at the time of his death.

We conclude that Carmen waived any objection to venue in the First Circuit. The record reflects, and Carmen concedes, that she initiated this probate proceeding in the First Circuit by filing her Informal Application for Appointment of Special Administrator (Informal Application ) on June 4, 2013. Carmen asserted in the Informal Application that "[v]enue is proper pursuant to HRS § 560:1-303(a) & (b) and HRS § 560:3-201(b), as this is the court in which a proceeding was first commenced and as such, has the exclusive right to proceed." Similarly, in a Petition for Formal Probate of Will and Supervised Administration, filed on September 8, 2014, Carmen stated: "Venue is in this Court because at the time of death, real property of the Decedent was located in this judicial circuit[,]" i.e., the First Circuit. Carmen did not raise any objection to venue until December 14, 2016, when she filed an application for change of venue to the Third Circuit. And she did not appeal from a subsequent May 25, 2017 judgment, entered pursuant to Hawai‘i Probate Rules (HPR ) Rule 34(a), which certified for appeal a May 25, 2017 order denying several petitions filed by Carmen on January 11, 2017 (May 25, 2017 Order ).³ Under these circumstances, we conclude that Carmen waived her venue challenge. Alamida v. Wilson, 53 Haw. 398, 401, 495 P.2d 585, 588 (1972) ("Since venue requirements are based upon concepts which are unrelated to judicial power, requirements of venue may be waived." (citing Kaui v. Kauai County, 47 Haw. 271, 386 P.2d 880 (1983) )); see also Haw. Rev. Stat. § 603-37.5(b) ("Nothing in sections 603-36 to 603-37.5 shall impair the jurisdiction of a circuit court of any matter involving a party who does not interpose timely and sufficient objection to the venue.").

(2) Carmen contends that the January 22, 2018 Order declaring her to be a vexatious litigant "is inconsistent and arbitrary ... and not based on law." Carmen asserts that "al[ ]though my Petitions have mostly been denied ..., every denial was made unlawfully and against rules, ... and ... thus all were appealable but as a layperson without experience and very little knowledge of the law, I did not at the times of those denials know my right to appeal." Carmen also argues generally that the Probate Court failed to enter written findings of fact and conclusions of law concurrently with its orders.

The supreme court has adopted an abuse of discretion standard for reviewing a trial court's vexatious litigant determination. See Ek v. Boggs, 102 Hawai‘i 289, 294, 75 P.3d 1180, 1185 (2003). "An abuse of discretion occurs where the trial court has clearly exceeded the bounds of reason or disregarded rules or principals of law or practice to the substantial detriment of a party litigant." Id. (quoting Ass'n of Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai‘i 97, 119, 58 P.3d 608, 630 (2002) ) (brackets omitted).

HRS § 634J–7(a) (2016) states:

In addition to any other relief provided in this chapter, the court, on its own motion or the motion of any party, may enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this State on the litigant's own behalf without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. Disobedience of this order by a vexatious litigant may be punished as a contempt of court.

In turn, HRS § 634J–1 (2016) provides, in relevant part:

"Vexatious litigant" means a plaintiff who does any of the following:

(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five civil actions other than in a small claims court that have been:

(A) Finally determined adversely to the plaintiff; or

(B) Unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing;

(2) After litigation has been finally resolved against the plaintiff, relitigates or attempts to relitigate in propria persona and in bad faith, either:

(A) The validity of the determination against the same defendant or defendants as to whom the litigation was finally determined; or

(B) The cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined;

(3) In any litigation while acting in propria persona, files, in bad faith, unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay; or

(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

In Trustees of the Estate of Bishop v. Au, 146 Hawai‘i 272, 463 P.3d 929 (2020), the Hawai‘i Supreme Court held that "a court imposing a vexatious litigant order under HRS chapter 634J is required to make findings that set forth, with reasonable specificity, the perceived misconduct, including a finding of bad faith when applicable, and the authority under which the sanction is imposed." Id. at 283, 463 P.3d at 940. The court made clear that a vexatious litigant order is a sanction order, and that "our cases establish the importance of setting forth findings of fact in a sanctioning order, regardless of the authority under which the sanctions are imposed. Id. at 283 n.21, 463 P.3d at 940 n.21 (emphasis added).

Here, the Probate Court explained the basis for ruling that Carmen is a vexatious litigant under HRS § 634J-1 in the court's April 26, 2018 Findings of Fact and Conclusions of Law (FOFs/COLs ), which were entered after Carmen filed her notice of appeal. However, the court did not set forth in the sanctioning orders – i.e., the January 22, 2018 Order and the Pre-Filing Order – findings that describe, with reasonable specificity, the perceived misconduct and the relevant sanctioning authority. Thus, the sanctioning orders are deficient under Trustees of the Estate of Bishop to the extent they declared Carmen to be a vexatious litigant and imposed filing restrictions upon her pursuant to HRS chapter 634J.

We further conclude that the Probate Court abused its discretion in declaring Carmen to be a vexatious litigant under HRS § 634J–1(1), (2) and (3). The Probate Court made this determination based on the following findings of fact and conclusions of law:

FINDINGS OF FACT

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11. Carmen has filed numerous pleadings in this case. See Carmen K. Stevens' Petition for Determination of Heirs filed herein on July 16, 2017; Carmen K. Stevens' Petition to Request Accounting and Distributions and Removal of Trustee/Personal Representative filed herein on July 16, 2017; Carmen K. Stevens' Petition for Determination of Heirs filed herein on July 22, 2017; Carmen K. Stevens' Petition of Demand for Bond by Interested Persons filed herein on December 13, 2016; Carmen K. Stevens' Petition to Appoint Master filed herein on December 13, 2016; Carmen K. Stevens' Application for Change of Venue filed

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