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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-NOV-2021
08:14 AM
Dkt. 111 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE MATTER
OF
THE ESTATE OF JOHN R. STEVENS, Deceased
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(P. NO. 13-1-0362)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)
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
1/
The Honorable R. Mark Browning presided.
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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
2/
Carmen's points of error have been restated and condensed for
clarity.
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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.
3/
It appears that the Probate Court did not formally dispose of
Carmen's application for change of venue by written order. Nevertheless, the
application was implicitly denied when the Probate Court issued the May 25,
2017 Order.
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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;
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(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:
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FINDINGS OF FACT
. . . .
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 herein on December 14,
2016; Carmen K. Stevens' Petition Objecting to Sale, to Void
Sale and to Hold Personal Representative Liable for
Restitution filed herein on January 11, 2017; Carmen K.
Stevens' Petition for Removal of Personal Representative for
Cause and Hold; Liable [sic] filed herein on January 11,
2017.
12. Except for Carmen's Motion [to Request Payment of
Claim filed July 16, 2015 (Motion)], each of Carmen's
petitions have been denied. See Order Denying Carmen K.
Stevens' Petition to Request Accounting and Distributions
and Removal of Trustee/Personal Representative and Carmen K.
Stevens' Petition for Determination of Heirs filed herein on
March 1, 2016; Order Denying Carmen K. Stevens' Petition to
Appoint Master Filed 12/13/2016 & Carmen K. Stevens'
Petition of Demand for Bond by Interested Persons Filed
12/13/2016 filed herein on February 7, 2017; Order Denying
Carmen K. Stevens' Petition for Inspection Filed January 11,
2017; Carmen K. Stevens' Petition for Partial Distribution
Filed January 11, 2017; Carmen K. Stevens' Petition
Objecting to Sale to Void Sale Etc. Filed January 11, 2017 &
Carmen K. Stevens' Petition for Removal of Personal
Representative for Cause filed herein on May 25, 2017.
13. At a hearing on April 6, 2017, the Court
admonished Carmen regarding her frivolous filings, in light
of the fact that the assets of the Estate had been depleted.
14. Cognizant of the fact that Carmen is a pro se
litigant, at a hearing on August 31, 2017, the Court advised
Carmen of the procedure for obtaining a judgment from the
Family Court with respect to the amount of arrearages Carmen
claims are owed to her by Decedent's Estate.
15. However, instead of seeking a judgment in Family
Court as instructed, Carmen attempted to seek
reconsideration of this Court's October 6, 2017, Order
Regarding Carmen K. Stevens' Motion to Request Payment of
Claim Filed July 16, 2015. See Carmen K. Stevens' Petition
of Objection, Reconsideration, and Clarification of Order
("Petition of Objection") filed herein on September 25,
2017.
16. Carmen did not attempt to obtain a Family Court
judgment, and instead, filed her Petition of Objection,
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accusing the Court of being "confused or mistaken" and
stating that the Court was "not fully aware of all the
details of all the documents" filed in this proceeding.
Petition of Objection at 2.
17. The Court reviewed and carefully considered all of
the pleadings in this case before rendering its decisions,
and contrary to Carmen's assertions, was not "confused or
mistaken" regarding Carmen's claims.
18. Carmen has not produced a Family Court judgment
liquidating the amount of her claim, despite being advised
to do so at the August 31 , 2017, hearing and in the
October 6, 2017, Order Regarding Carmen K. Stevens' Motion
to Request Payment of Claim Filed July 16, 2015.
. . . .
CONCLUSIONS OF LAW
. . . .
5. Carmen is a vexatious litigant because she meets
each of these three tests as set forth under HRS § 634J-1.
6. Construing each petition filed by Carmen as a
separate "civil action," more than five civil actions have
been denied in the preceding seven-year period. See Haw.
Rev. Stat. § 634J-1; see also Order Denying Carmen K.
Stevens' Petition to Request Accounting and Distributions
and Removal of Trustee/Personal Representative and Carmen K.
Stevens' Petition for Determination of Heirs filed herein on
March 1, 2016 (denying one petition); Order Denying Carmen
K. Stevens' Petition to Appoint Master Filed 12/13/2016 &
Carmen K. Stevens' Petition of Demand for Bond by Interested
Persons Filed 12/13/2016 filed herein on February 7, 2017
(denying two separate petitions); Order Denying Carmen K.
Stevens' Petition for Inspection Filed January 11, 2017;
Carmen K. Stevens' Petition for Partial Distribution Filed
January 11, 2017; Carmen K. Stevens' Petition Objecting to
Sale to Void Sale Etc. Filed January 11, 2017 & Carmen K.
Stevens' Petition for Removal of Personal Representative for
Cause filed herein on May 25, 2017 (denying three separate
petitions).
7. Second, Carmen K. Stevens' Petition of Objection,
Reconsideration and Clarification of Order , filed herein on
September 25, 2017 ("Petition of Objection"), was an attempt
in bad faith to re-litigate the final determination of her
Motion. See HRS § 634J-1.
8. Finally, Carmen, while acting pro se, has filed, in
bad faith, unmeritorious petitions, pleadings, and other
papers, and has engaged in conduct and other tactics that
are frivolous or solely intended to cause unnecessary delay
to this litigation, by her futile attempts to compel a
distribution from an estate that is simply insolvent. See
id.
9. Accordingly, the Court concludes that Carmen meets
the definition of a "vexatious litigant," as set forth in
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HRS § 634J-1, and entry of an order declaring Carmen to be a
vexatious litigant, and entry of a pre-filing order
prohibiting Carmen from filing any new litigation without
leave of court, are appropriate.
In determining that Carmen qualified as a vexatious
litigant under HRS § 634J-1(1), the Probate Court construed each
petition filed by Carmen in the underlying proceeding "as a
separate 'civil action,'" and on that basis concluded that "more
than five civil actions have been denied in the preceding
seven-year period." However, Carmen's petitions in the
underlying proceeding were not separate civil actions for
purposes of HRS § 634J-1(1).
HRS § 634J-1 defines the term "litigation," as used in
HRS Chapter 634J, to mean "any civil action or proceeding,
commenced, maintained, or pending in any state or federal court
of record." The statute does not define the term "civil action,"
and the cases construing HRS Chapter 634J do not elaborate the
term's meaning. See, e.g., Pennaflor v. Mossman, 141 Hawai#i
358, 366, 409 P.3d 762, 770 (2018) (concluding that for purposes
of HRS Chapter 634J, post-conviction proceedings pursuant to
Hawai#i Rules of Penal Procedure Rule 40 and for writ of habeas
corpus under 28 U.S.C. § 2254 are not "civil actions or
proceedings" and thus do not constitute "litigation" under HRS
Chapter 634J). We recognize, however, that HRS § 634J-1(1)
refers to a plaintiff who has commenced, prosecuted, or
maintained at least five "civil actions," while § 634J-1(3)
refers to a plaintiff who has filed, in bad faith, "unmeritorious
motions, pleadings, or other papers[.]" The legislature's use of
different words in these two subsections suggests that the term
"civil actions" is not synonymous with the terms "motions,
pleadings, or other papers." See Trustees of the Estate of
Bishop, 146 Hawai#i at 280, 463 P.3d at 937 ("When the
legislature uses different words in a statute, . . . the
different words are presumed to have different meanings."); Ass'n
of Condo. Homeowners of Tropics at Waikele v. Sakuma, 131 Hawai#i
254, 256, 318 P.3d 94, 96 (2013) ("Courts are bound to give
effect to all parts of a statute, and that no clause, sentence,
or word shall be construed as superfluous, void, or insignificant
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if a construction can be legitimately found which will give force
to and preserve all words of the statute." (brackets omitted)
(quoting Keliipuleole v. Wilson, 85 Hawai#i 217, 21, 941 P.2d
300, 304 (1997))).
In examining extrinsic sources, we note that Black's
Law Dictionary defines "civil action" as "[a]n action brought to
enforce, redress, or protect a private or civil right; a
noncriminal litigation." Black's Law Dictionary (11th ed. 2019);
see State v. Nilsawit, 139 Hawai#i 86, 91-92, 384 P.3d 862, 867-
68 (2016) (citing Black's definition of "civil action" in
construing the term "civil matter" in HRS § 641-1). The relevant
civil procedure and probate rules are also instructive. Hawai#i
Rules of Civil Procedure (HRCP) Rules 2 and 3 state,
respectively: "There shall be one form of action to be known as
'civil action[,]'" and "[a] civil action is commenced by filing a
complaint with the court." HRCP Rule 7 identifies the pleadings
allowed in a civil action (e.g., a complaint and an answer) and
states that "[a]n application to the court for an order shall be
by motion . . . ." In contrast, HPR Rule 2 provides: "There
shall be one form of action for any case to which these rules
apply, which shall be known as a 'proceeding[.]'" The Commentary
to HPR Rule 2 states in part: "Regular civil cases and family
court cases are referred to as 'civil actions.' The Uniform
Probate Code generally refers to all actions thereunder as
'proceedings.'" HPR Rule 3(a) identifies the form of pleadings
allowed in a probate proceeding as follows:
(a) Form. There shall be a petition and a response or
objection. For purposes of these rules, an application in an
informal proceeding is a petition, unless the context of the
rule indicates otherwise. Persons may file a joinder,
response, or objection to a petition . . . . Persons may
file a memorandum in support of their pleadings. . . .
Every petition, except one entitled to be heard ex parte,
shall be accompanied by an order setting date, time, and
place of hearing . . . .
The Commentary to HPR Rule 3(a) states in part:
To simplify probate proceedings, to distinguish them
from civil actions, and to address the confusion that
currently exists with respect to the proper form of
pleadings in trust and other proceedings, all requests for
court relief or action shall be initiated by a petition.
Motions as a form would be prohibited, except where the
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contested matter has been assigned to the regular civil
calendar pursuant to Rule 20, during which assignment the
[HRCP] would apply.
Thus, under the respective civil procedure and probate
rules, a civil action is analogous to, though not necessarily
synonymous with, a probate proceeding, and a pleading or motion
in a civil action is analogous to, though not necessarily
synonymous with, a petition in a probate proceeding. A petition
in a probate proceeding, however, is plainly not synonymous with
a civil action. This conclusion is further supported by HPR Rule
34, which provides that, except for certain identified appealable
judgments, "[a]ny other order that fully addresses all claims
raised in a petition to which it relates, but that does not
finally end the proceeding, may be certified for appeal in the
manner provided Rule 54(b) of the [HRCP]." In other words, fully
resolving a petition does not necessarily end a probate
proceeding, in the same way that fully resolving a pleading or
motion does not necessarily end a civil action – i.e., a petition
may be analogous to a pleading or a motion, but it is not
synonymous with a civil action. Therefore, the Probate Court
erred in construing each petition filed by Carmen in the
underlying proceeding as a separate civil action and in
concluding on that basis that more than five civil actions had
been denied in the preceding seven-year period.
In determining that Carmen qualified as a vexatious
litigant under HRS § 634J-1(2), the Probate Court concluded that
Carmen's September 25, 2017 Petition of Objection "was an attempt
in bad faith to re-litigate the final determination of her
Motion." In determining that Carmen qualified as a vexatious
litigant under HRS § 634J-1(3), the Probate Court concluded that
Carmen "has filed, in bad faith, unmeritorious petitions,
pleadings, and other papers, and has engaged in conduct and other
tactics that are frivolous or solely intended to cause
unnecessary delay to this litigation, by her futile attempts to
compel a distribution from an estate that is simply insolvent."
Both of these conclusions rest on the Probate Court's
determination that Carmen acted "in bad faith." See Trustees of
the Estate of Bishop, 146 Hawai#i at 281, 463 P.3d at 938 ("to
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meet the definition of a vexatious litigant under either HRS §
634J-1(2) or (3), the plaintiff must have acted in bad faith").
However, the FOFs/COLs were "deficient because [they] failed to
specify the perceived misconduct that constituted bad faith and
the court's findings were not tantamount to a finding of bad
faith." Id. at 283, 463 P.3d at 940. Based on FOF 13, it
appears that the Probate Court considered Carmen's various
petitions to be "frivolous," "in light of the fact that the
assets of the Estate have been depleted." Yet the Probate Court
also faulted Carmen for filing the Petition of Objection without
first obtaining a Family Court judgment liquidating the amount of
her claim against the decedent's estate, as instructed by the
Probate Court. These findings do not appear to be entirely
consistent, and they are not tantamount to a finding of bad
faith. We thus conclude that the Probate Court's findings do not
support its determination that Carmen acted in bad faith, for
purposes of deeming her a vexatious litigant under HRS
§ 634J-1(2) or (3).
Accordingly, under Trustees of the Estate of Bishop, we
must vacate the challenged orders and judgments to the extent
they declared Carmen to be a vexatious litigant and imposed
filing restrictions upon her pursuant to HRS chapter 634J.
Because we are vacating the challenged orders and
judgments to this extent, we must also vacate the corresponding
award of attorney's fees and costs entered in favor of the
Stevens Estate. See Ass'n of Owners of Kalele Kai v. Yoshikawa,
149 Hawai#i 417, 420-21, 493 P.3d 939, 942-43 (2021). In
particular, the January 22, 2018 Order enters judgment in favor
of the Stevens Estate and against Carmen in the amount of
$6,756.93, for attorneys' fees and costs "incurred in connection
with the defense against the Petition of Objection, together with
post-judgment interest thereon . . ., subject to the filing of an
affidavit in support thereof." The Judgment on Fee Award reduces
that portion of the January 22, 2018 Order to a separate judgment
in the amount of $6,756.93. The affidavit supporting the award
does not differentiate between fees and costs incurred by the
Stevens Estate in opposing the Petition of Objection and in
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seeking entry of an order declaring Carmen to be a vexatious
litigant. Accordingly, we vacate the award of attorney's fees
and costs in the amount of $6,756.93 entered in favor of the
Stevens Estate and against Carmen.
Because we vacate the challenged orders and judgments
to the extent they declared Carmen to be a vexatious litigant, we
also deny Personal Representative-Appellee Jan Janette Peterson's
(Peterson) motion for judicial notice, filed on August 16, 2018,
and renewed motion for judicial notice, filed on December 5,
2018, as moot.4/
(3) Carmen contends generally that 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. We have resolved
this issue with respect to the challenged orders and judgments to
the extent they declared Carmen to be a vexatious litigant and
imposed filing restrictions upon her pursuant to HRS chapter
634J. See supra. Carmen presents no discernible argument with
respect to any other specific ruling of the Probate Court over
which we have jurisdiction. We thus deem the issue waived. See
HRAP Rule 28(b)(7).
(4) Carmen contends that the Probate Court violated
Hawai#i Revised Code of Judicial Conduct Rule 2.5 and Principles
of Professionalism for Hawai#i Judges Principle 7 by failing to
explain the court's rulings and by failing to enter written
findings of fact and conclusions of law concurrently with its
orders. Carmen seeks "[r]ecusal of Judge R. Mark Browning" as
relief on appeal.
It does not appear that Carmen raised these allegations
of judicial misconduct or sought Judge Browning's recusal in the
Probate Court. See State v. Gonzalez, 128 Hawai#i 314, 317, 288
P.3d 788, 791 (2012) (noting that failure to properly raise issue
4/
Peterson sought judicial notice of certain pleadings filed in
other lawsuits that Carmen purportedly initiated, as relevant to whether the
Probate Court erred in concluding that Carmen qualified as a "vexatious
litigant" under HRS § 634J–1. It appears that these pleadings were not part
of the record that the Probate Court considered in ruling on this issue.
Regardless, these pleadings cannot cure the Probate Court's failure to include
appropriate findings in the sanctioning orders.
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at trial level precludes party from raising that issue on appeal
(quoting State v. Kikuta, 125 Hawai#i 78, 89, 253 P.3d 639, 650
(2011))). A party seeking disqualification or recusal of a judge
"must timely present the objection, either before the
commencement of the proceeding or as soon as the disqualifying
facts become known." Office of Disciplinary Counsel v. Au, 107
Hawai#i 327, 338, 113 P.3d 203, 214 (2005); Chen v. Hoeflinger,
127 Hawai#i 346, 361, 279 P.3d 11, 26 (App. 2012). "Litigants
cannot take the heads-I-win-tails-you-lose position of waiting to
see whether they win and if they lose moving to disqualify a
judge who voted against them." Au, 107 Hawai#i at 339, 113 P.3d
at 215 (quoting Schurz Communications, Inc. v. Fed.
Communications Comm'n, 982 F.2d 1057, 1060 (7th Cir. 1993)).
Because Carmen failed to raise her allegations of judicial
misconduct or to seek Judge Browning's recusal in the Probate
Court, this basis for appeal was waived. See id.; Gonzalez, 128
Hawai#i at 317, 288 P.3d at 791.
Therefore, we vacate the Pre-Filing Order and the
Judgment, entered on January 22, 2018, in the Circuit Court of
the First Circuit. We also vacate the following, entered on
January 22, 2018, in the Circuit Court of the First Circuit, to
the extent they declare Carmen K. Stevens to be a vexatious
litigant and impose filing restrictions upon her pursuant to HRS
chapter 634J, and to the extent they enter an award of attorney's
fees and costs in the amount of $6,756.93 in favor of the Stevens
Estate and against Carmen K. Stevens:
(1) Order (1) Denying Carmen K. Stevens' Petition
of Objection Reconsideration and
Clarification of Order Filed September 25,
2017 and (2) Granting in Part Petition to
Strike Carmen K. Stevens' Petition of
Objection Reconsideration and Clarification
of Order Filed September 25, 2017, For Entry
of Order Declaring Interested Party Carmen K.
Stevens a Vexatious Litigant, Entry of Pre-
Filing Order, and for Posting of Security
Filed December 5, 2017; and
(2) Judgment on Order (1) Denying Carmen K.
Stevens' Petition of Objection
Reconsideration and Clarification of Order
Filed September 25, 2017 and (2) Granting in
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Part Petition to Strike Carmen K. Stevens'
Petition of Objection Reconsideration and
Clarification of Order Filed September 25,
2017, For Entry of Order Declaring Interested
Party Carmen K. Stevens a Vexatious Litigant,
Entry of Pre-Filing Order, and for Posting of
Security Filed December 5, 2017.
We affirm in all other respects.
DATED: Honolulu, Hawai#i, November 17, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Carmen K. Stevens Chief Judge
Self-represented Petitioner-
Appellant.
/s/ Katherine G. Leonard
Douglas C. Smith, Associate Judge
Madeleine M.V. Young, and
Ross Uehara-Tilton
(Damon Key Leong Kupchak /s/ Clyde J. Wadsworth
Hastert) Associate Judge
for Personal Representative-
Appellee.
14