Ek v. Boggs

• Decision Date: 29 August 2003
• Docket Number: No. 22798.,22798.
• Citation: Ek v. Boggs, 75 P.3d 1180, 102 Haw. 289 (Haw. 2003)
• Parties: William EK, Plaintiff-Appellant, v. Steven Eugene BOGGS and Sandy Boggs, Defendants-Appellees, and Doe Defendants 1-100, Defendants.
• Court: Hawaii Supreme Court

75 P.3d 1180

102 Haw. 289

William EK, Plaintiff-Appellant, v. Steven Eugene BOGGS and Sandy Boggs, Defendants-Appellees, and Doe Defendants 1-100, Defendants.

No. 22798.

Supreme Court of Hawai`i.

August 29, 2003.

William Ek, plaintiff-appellant, pro se.

Norman K.K. Lau and Allison M. Fujita, Honolulu, for defendant-appellee Steven Eugene Boggs.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by ACOBA, J.

We hold that the Circuit Court of the First Circuit (the court) had the authority to declare Plaintiff-Appellant William Ek (Ek) a vexatious litigant pursuant to Hawai'i Revised Statutes (HRS) § 634J-1 (1993)¹ and did not abuse its discretion in entering a prefiling order under HRS § 634J-7(a) (1993),² preventing Ek from filing any "new litigation" without leave of a presiding judge in the instant case or in any future cases.

I.

On June 1, 1998, Ek filed a complaint for specific performance and damages (the complaint) and a notice of pendency of action (NOPA) against Defendants Appellees Steven Eugene Boggs (Boggs) and Sandy Boggs, a.k.a. Sandy Burgard (Burgard). Ek, a pro se litigant, argued that he had an interest in Boggs's property on Maka'a Street, Honolulu, Hawai'i (the property) because he had done repairs on it and that Burgard had promised him an interest in the property in return. According to Boggs's answering brief, however, Ek never served Boggs with the complaint. Boggs was apparently unaware of the complaint until he conducted a title search in conjunction with an attempt to obtain a loan, and uncovered the NOPA on the property.

On July 24, 1998, Boggs filed an answer to the complaint, a counterclaim, and a cross-claim. Thereafter, Boggs filed three motions: 1) a motion to expunge the NOPA; 2) a motion to post security; and 3) a motion for an award of attorney's fees and costs. In these motions, Boggs argued that the court should expunge the NOPA because in a previous case, civil number XX-XXXX-XX, the court had already divested title to the property from Burgard and transferred it wholly to him, and because a previous NOPA on the property, filed by Burgard, had been expunged and attorney's fees awarded to Boggs.

In the same document, Boggs also requested that Ek be declared a vexatious litigant on the grounds that Ek failed to properly serve the complaint, and that the NOPA was frivolous since Ek "ha[d] no Deed, Agreement of Sale, Assignment, or any other document establishing any interest in the Property." In addition, Boggs contended that Ek "caused unnecessary delay by providing over 756 documents allegedly in response to Boggs'[s] First Request for Production of Documents" and that all these documents were "non-responsive." These 756 documents themselves, however, are not part of the record. Boggs also claimed that Ek failed to provide adequate notice for several depositions and wrongly served several other documents. For example, Ek allegedly served a subpoena duces tecum on Boggs rather than on Boggs's attorney and served a subpoena duces tecum on Boggs's wife, who was not at home, by tacking it on her gate.

On January 22, 1999, Ek filed a memorandum in opposition to Boggs's motions. In his memorandum, Ek stated that he had a claim to the property because Burgard had promised him the interest to the property as payment for the repairs. He argued that "`[t]he likelihood of success on the merits is irrelevant to determining the validity of the lis pendens [,]'" (quoting S. Utsunomiya Enters. v. Moomuku Country Club, 75 Haw. 480, 866 P.2d 951 (1994)), and that his "claim to title and possession of the Property in itself justifies the NOPA." As for the vexatious litigant argument, Ek did not present any arguments in rebuttal because he planned to defend himself with evidence at a February 3, 1999 hearing. Transcripts of the hearing, however, were not ordered and are not presented to us on appeal.³

On March 5, 1999, the court⁴ filed an order (1) granting all of Boggs's motions because "there is no evidence that [Ek] ever had or ever will have any right, title, or interest in the real property located at 7249 Maka'a street[,]" (2) directing that Ek sign a release of the NOPA, and (3) ruling that Ek was a "vexatious litigant" as defined by HRS § 634J-1.⁵ Accordingly, the court issued a prefiling order mandating that Ek 1) obtain permission to file future pleadings, and 2) post security of $25,000 in cash or by bond within forty-five days of February 3, 1999 or face dismissal of his complaint. Specifically, the court stated that

Ek shall obtain approval of this Court prior to filing any future pleadings except for the response/objection allowed herein; and that Plaintiff William Ek shall post security of $25,000 in cash or bond within 45 days of February 3, 1999 with the condition that any party can seek to increase or decrease the $25,000 security depending on any changes in circumstances. Failure to file the $25,000 security on or before 45 days from February 3, 1999 shall result in Plaintiff William Ek's Complaint against Defendant Steven Eugene Boggs being dismissed with Prejudice pursuant to H.R.S. § 634J-5.

(Emphasis added.) Ek did not sign the release of the NOPA nor did he post the $25,000 security. As a result, Boggs's April 8, 1999 motion to dismiss Ek's complaint with prejudice and for an award of attorney's fees and costs was granted by the court on May 4, 1999.

On May 11, 1999, the court filed its final judgment and notice of entry of judgment. Ek claims that neither was served on him "as evidenced by the absence of proof of service or the required notation in the docket."

On July 12, 1999, allegedly the last day Ek had to file a motion to extend time to file an appeal (motion to extend), Ek states he delivered to the court both a letter (the letter) asking for leave to file a motion to extend time and the actual motion itself. In his motion to extend, Ek argued that he had good cause as he was unaware of the entry of final judgment and had no reason to believe its entry was imminent.

On August 6, 1999, the court filed an order denying Ek's motion on the ground that it did not receive the letter, and, as a result, no permission was given. On September 7, 1999, Ek filed a notice of appeal from the August 6 order denying his motion to extend time to file an appeal.⁶

II.

On appeal, Ek argues that the court erred in rendering the prefiling order, because: 1) the court cited no statutory authority for its order and the only relevant statute, HRS § 634J-7 (1993), does not provide for such an action; 2) the order is not narrowly tailored; 3) the order lacks adequate justification on the record; and 4) the order denies Ek due process as it applies to all pleadings. Ek further contends that the court abused its discretion in denying his motion to extend for failure to comply with the prefiling order inasmuch as he did not act wilfully, and the court should have imposed a lesser sanction. Finally, Ek maintains that his motion to extend time should have been granted as he was unaware of the entry of final judgment. Ek's other contentions, namely that 1) the prefiling order is outside of the court's inherent power,⁷ and 2) the order is too vague as to the procedure for obtaining the court's approval for filing a pleading, do not require extended discussion.⁸

III.

Preliminarily, Boggs, in a supplemental brief, argues that Ek's notice of appeal fails to specifically reference the March 5, 1999 prefiling order. Ek's notice of appeal states:

Notice is hereby given that William Ek, pursuant to section 641-1, Hawai'i Revised Statutes, and Rule 3 of the Hawai'i Rules of Appellate Procedure, appeals to the Supreme Court and Intermediate Court of Appeals of the State of Hawai'i from the Order Denying Plaintiff William Ek's Motion to Extend Time to File Notice of Appeal, filed August 6, 1999 and attached hereto as Exhibit "1".

However, attached to the notice as exhibit one is the order denying Ek's motion to extend. This order expressly refers to the prefiling order and rests denial of the motion in part on a violation of that order.⁹ HRAP Rule 3(c) states that a notice of appeal "shall designate the judgment, order or part thereof appealed from." See Chun v. Board of Trs. of Employees' Ret. Sys. of the State of Hawai'i, 92 Hawai'i 432, 448, 992 P.2d 127, 143 (2000) (ruling that because the appellants "did not, in ... their notices of appeal, designate the ... order as an order from which an appeal was being taken, they have not properly appealed it"). However, "`a mistake in designating the judgment ... should not result in loss of the appeal as long as the intention to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake.'" State v. Graybeard, 93 Hawai'i 513, 516, 6 P.3d 385, 388 (App.2000) (quoting City & County of Honolulu v. Midkiff, 57 Haw. 273, 275-76, 554 P.2d 233, 235 (1976))(quoting 9 Moore's Federal Practice § 203.18 (1975))); see also Midkiff, 57 Haw. at 276,554 P.2d at 235 (stating that a notice of appeal "fairly infers an intent to appeal from [a] composite of orders" and "[t]here is no showing of any misleading of the other parties to their detriment" and thus concluding that a notice was sufficient in form (citing Yoshizaki v. Hilo Hosp., 50 Haw. 1, 2, 427 P.2d 845, 846,reh'g granted,50 Haw. 40, 429 P.2d 829, rev'd on other grounds, 50 Haw. 150, 433 P.2d 220 (1967); Credit Assocs. v. Montilliano, 51 Haw. 325, 328, 460 P.2d 762, 764 (1969)). We believe it can be fairly inferred from the court's reasoning in the order denying the motion to extend, which Ek attached as an exhibit to the notice of appeal, that Ek also intended to appeal from the prefiling order. Boggs has not claimed that he was misled in any way by the notice of appeal. Moreover, inasmuch as it was one of the two bases for the court's denial of the motion to extend, examination of the prefiling order is...