Tradewinds Hotel, Inc. v. Cochran

• Decision Date: 20 May 1977
• Parties: TRADEWINDS HOTEL, INC., Plaintiff-Appellee, v. Donald Robert COCHRAN, as Trustee under unrecorded Declaration of Trust dated
• Court: Hawaii Court of Appeals

Page 60

799 P.2d 60

8 Haw.App. 256

TRADEWINDS HOTEL, INC., Plaintiff-Appellee, v. Donald Robert COCHRAN, as Trustee under unrecorded Declaration of Trust dated May 20, 1977, Defendant-Appellant and John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10 Doe Corporations 1-10; Doe Entities 1-10; and Doe Governmental Units 1-10, Defendants.

No. 14073.

Intermediate Court of Appeals of Hawai'i.

Oct. 4, 1990.

Reconsideration Denied Oct. 19, 1990.

Syllabus by the Court

1. A motion to enjoin a defendant trustee from appearing pro se on behalf of the trust is not a motion affecting a substantive issue and is not covered by Rule 7(f), HCCR.

2. The time limitations of Rule 60(b), HRCP, for filing a motion for reconsideration of a final judgment, order, or proceeding, are not applicable to a motion for reconsideration of an order denying a motion to enjoin a defendant trustee from appearing pro se on behalf of the trust, since the order is not a final judgment, order, or proceeding.

3. Courts have inherent and statutory powers to deal with the unauthorized practice of law and may, sua sponte, prevent an unauthorized person from practicing law in a case pending before it.

4. An attorney for a litigant has standing to request the court to prohibit another party's pro se appearance in a case pending before it as being in violation of the prohibition against the unauthorized practice of law.

5. Unless cogent reasons support the second court's action, any modification of a prior ruling of another court of equal and concurrent jurisdiction will be deemed an abuse of discretion.

6. A judge may modify a prior order of a fellow judge on a multiple judge court where exceptional circumstances are presented.

7. Where a pre-trial order was entered by one judge and the case was to proceed to trial before a second judge, it was not an abuse of discretion for the civil administrative judge, one of whose functions is to ensure that the civil courts function in an orderly and efficient manner, to examine the record and correct any patent errors, and to countermand the pre-trial order.

8. The general rule is that a trustee may not represent the trust in litigation unless, having the right sought to be enforced, he is the real party in interest.

9. A defendant trustee who claims the right to appear pro se for the trust has the burden of proving that he is the real party in interest.

10. Appellant's failure to include transcripts of the proceedings below prevents appellate review of the alleged trial court errors.

11. Where appellant has failed to comply with the requirements of Rule 28(b)(4), HRAP, the appellate court may disregard his points of error.

12. The denial of a motion for continuance is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse.

13. An equity court has plenary power to fashion its decree in such a manner as to recognize and maintain the equities of the parties.

14. Lease covenants of quiet enjoyment and unhindered use of the premises are not breached by a party's well-founded attempts to enforce a perceived breach of the lease provisions by the other party.

15. A party who prevails on the main issue in dispute, even though not to the extent of his original contention, is deemed to be the successful party for the purpose of taxing costs and attorney's fees.

16. Where, in an action on a lease containing a provision for attorney's fees, plaintiff, as the prevailing party, basically sought non-monetary relief, the limitation imposed by HRS § 607-17 on the amount of attorney's fees recoverable is not applicable, and the amount awarded as attorney's fees is limited to that reasonably and necessarily incurred by plaintiff to protect its interest under the lease.

17. Although the trial court has discretion in the matter of allowing or disallowing costs, that discretion should be exercised sparingly when the requested expenses are not specifically allowed by statute or precedent.

Donald R. Cochran, Trustee, on the briefs, Honolulu, pro se.

Clyde Wm. Matsui, Randall Y.S. Chung, Kevin P.H. Sumida, Gary W.B. Chang, Michael N. Tanoue, Cary T. Tanaka (Clyde Wm. Matsui, A Law Corp., of counsel), on the brief, Honolulu, for plaintiff-appellee.

Edward C. Kemper, Honolulu, and Mary Blaine Johnston, Wailuku, Maui, on the brief, for amicus curiae American Civ. Liberties Union of Hawaii Foundation.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

Defendant-Appellant Donald Robert Cochran, Trustee (Defendant), appeals from the judgment in favor of Plaintiff-Appellee Tradewinds Hotel, Inc. (Plaintiff). We vacate a portion of the award of costs and remand for further proceedings. In all other respects, we affirm.

Plaintiff is the corporate owner of a cooperative apartment building. Defendant is the trustee of a trust that owns a share of stock in the corporation and a proprietary lease (Lease) to apartment no. 1208 (the apartment). On March 25, 1986, Plaintiff filed the complaint below against Defendant as trustee alleging that Defendant had violated the provisions of the Lease by: (1) converting the apartment from a one to a three bedroom unit; (2) allowing more than two persons to occupy the apartment; (3) allowing a minor to occupy the apartment. Plaintiff also alleged that Defendant fraudulently induced it to consent to the assignment of the Lease from the apartment's previous owner and was harassing the members of its board of directors. The complaint sought, inter alia, a judgment declaring the stock certificate null and void, cancelling the Lease, and awarding Plaintiff its attorney's fees and costs.

The case was tried by the court with an advisory jury. The jury returned a special verdict finding that Defendant's renovations were in violation of the Lease, that Plaintiff had approved the additional occupancy, and that the occupancy by the minor was not a material breach. The court thereafter entered Amended Findings of Fact (Findings) and Conclusions of Law (Conclusions) and a judgment. The judgment ordered Defendant to cause the trust to restore the apartment to its original configuration within six months, and to cease harassing Plaintiff and its board of directors for a period of one year. The court also awarded Plaintiff its attorney's fees and costs. Defendant appealed. ¹

I.

Defendant first argues that Judge Philip T. Chun (Judge Chun) erred in granting Plaintiff's motion to enjoin Defendant from acting pro se on behalf of the trust. We disagree.

A.

After the complaint was filed, Defendant, acting pro se, filed a motion for a more definite statement of the harassment count. Plaintiff then filed a motion for an order enjoining Defendant from the unauthorized practice of law and striking Defendant's motion for a more definite statement. Defendant opposed Plaintiff's motion and filed an affidavit stating that as the settlor of the trust, its sole trustee, and sole beneficiary, he could appear pro se as the real party in interest. ² Plaintiff's motion was denied by Judge Edwin H. Honda (Judge Honda) on August 13, 1986.

Beginning on October 27, 1986, Charles S. Lotsof, Esq. (Lotsof), began representing Defendant. On June 26, 1987, Lotsof filed a motion to withdraw as Defendant's counsel, stating in a memorandum that "Defendant prefers to defend this case pro se." Plaintiff did not oppose Lotsof's withdrawal, but objected to Defendant's proceeding pro se. Judge Robert G. Klein orally granted Lotsof's motion on July 16, 1987.

On October 27, 1987, Plaintiff moved for reconsideration of the order denying its motion to enjoin Defendant from the unauthorized practice of law. The motion for reconsideration was granted by Judge Chun in an order entered on December 1, 1987. The order stated:

This Court finds cogent reason for reversing the earlier ruling: the law is clear in directing that one cannot represent a trust unless authorized to practice law.

On December 1, 1987, Plaintiff filed another motion to prohibit Defendant's "unlawful practice of law." Judge Richard M.C. Lum orally granted the motion the next day, and a written order was entered on December 8, 1987. Lotsof filed an appearance on December 2, 1987, and represented Defendant at the trial, which began on December 3, 1987.

B.

Citing Rules 7(f), Circuit Court Rules (1984), ³ and 60(b), Hawaii Rules of Civil Procedure (HRCP) (1981), ⁴ Defendant contends that Plaintiff's motion for reconsideration was untimely. We disagree. First, Rule 7(f) applies to motions dealing with substantive issues. Defendant's right to represent the trust is not a substantive issue. Second, Rule 60(b) applies to motions seeking to amend final orders in the nature of judgments. See 11 C. Wright and A. Miller, Federal Practice and Procedure: Civil § 2851 (1973). The order denying Plaintiff's original motion to enjoin Defendant's alleged unauthorized practice of law was not a final judgment or order.

C.

Citing Reliable Collection Agency, Ltd. v. Cole, 59 Haw. 503, 584 P.2d 107 (1978), Defendant next asserts that Plaintiff has no standing to challenge his pro se appearance. We disagree. ⁵

In Reliable, the supreme court held that only the attorney general or the bar association has standing under Hawaii Revised Statutes (HRS) § 605-15.1 (1985) ⁶ to bring an action to enjoin the unauthorized practice of law under HRS § 605-14 (1985). ⁷ However, Reliable is distinguishable from this case. In Reliable, the plaintiff was represented by counsel at trial, and the defendants' counterclaim was addressed to the plaintiff's extrajudicial conduct of its collection business. Id. at 512, 584 P.2d at 112. The counterclaim was not aimed at the plaintiff's authority to conduct its own judicial action pro se. Here, Plaintiff is challenging Defendant's pro se conduct of the trust's defense in active litigation.

Our courts have inherent and statutory powers to deal with the unauthorized practice of law. Id. at...