BOBBY N. HARMON
Louisville, Kentucky 40229
Respondent, pro se
THE ARBITRATION TRIBUNALS OF THE
AMERICAN ARBITRATION ASSOCIATION
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In the matter of the Arbitration between MARY LOU WOO, Trustee, Claimant, and BOBBY N. HARMON, Respondent
Case No. 74 166 00491 03 JUSC
Pretrial Conference
June 9, 2004
Arbitration Date
June 14 and 15, 2004
Arbitrator
Judith Neustadter
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RESPONDENT’S ANSWER TO CLAIMANT’S STATEMENT IN OPPOSITION TO RESPONDENT’S MOTION TO DISMISS COMPLAINT OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
Respondent BOBBY N. HARMON (“Respondent”), hereby submits this Answer in response to Claimant MARY LOU WOO’s (“Claimant”) STATEMENT IN OPPOSITION TO RESPONDENT’S MOTION TO DISMISS COMPLAINT OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT.
In her Opposition Statement, Claimant states that the validity of the Settlement Agreement is not an issue before the American Arbitration Association (“AAA”), and that if Respondent wishes to raise arguments as to the validity of the Agreement, Respondent must direct his efforts to the United States District Court for the District of Hawaii and the United States Bankruptcy Court for the District of Hawaii. Respondent disagrees with this statement due to the fact that all of Claimant’s Issues 1-5 arose out of what Harmon believes to be the fraudulent acts of two or more Defendants, and their attorneys, in the settlement of his RICO lawsuit. While the Respondent intends to eventually raise these arguments with the Courts, and by making additional claims against various parties to the Settlement, this does not preclude him from using the Claimant’s negligence, acts of bad faith, and fraud as defenses in the instant Arbitration.
A. ALLEGATIONS OF NEGLIGENCE AND OMISSIONS.
Claimant dedicates over 4 pages to defending herself against Respondent’s claims of negligence and omissions. While Respondent believes that the Claimant’s statements are open to argument, he believes that much of this information is immaterial to these proceedings and should be reserved for the Courts or insurance companies to decide when these claims are presented to these bodies.
To simplify these arguments, however, Plaintiff asks that the Arbitrator take note of Claimant’s comments in paragraph 2 on page 5 of her Opposition:
“The allegations raised by Respondent in paragraphs A.2.a. and A.2.b of the Motion are illustrative of his naivete as to the procedural practices of the courts. The proposed settlement agreement, in the form agreed to by all parties and their counsel, was properly appended to the Trustee’s Motion to Approve Settlement Agreement.
“Contrary to Respondent’s allegation that Exhibit 5 to the Settlement Agreement is not the Order Granting Trustee’s Motion to Approve Settlement filed on March 24, 2000, Exhibit 5 is, in fact, a file-stamped copy of the Order. While the marker page used in lieu of Exhibit 5 in the Trustee’s Motion should have been substituted with a file-stamped copy of the Order in the fully executed, approved Settlement Agreement, this oversight hardly represents an act of negligence or omission on the part of Claimant or her counsel.”
Respondent contends that this admitted “oversight” on the part of Claimant was indeed a serious act of negligence and omission which has caused Harmon to engage in his alleged “letter writing campaign” which is at issue in the current Arbitration. I refer you to Claimant’s Exhibit 5, which includes a letter dated December 14, 2000, from Steven Guttman to Bradley Tamm, in which he states:
“You had forwarded to me Mr. Harmon’s letter addressed to you dated November 4, 2000. His letter inquired as to Exhibit 5 to the settlement agreement and expressed “concerns regarding possible misrepresentations” in regard to the settlement. I telephoned you upon receipt of your transmittal letter enclosing Mr. Harmon’s correspondence and have been meaning to further follow up with you by letter.
“As we discussed, Exhibit 5 is the bankruptcy court pleading entitled, ‘Order Approving Settlement, Release and Indemnification Agreement’. I believe you have a copy of this Order, but if not please telephone Terri Viernes of my office and she will provide you with a filed copy of the pleading.”
Respondent stated in his letter of December 26, 2000, addressed to Bradley Tamm:
“Thank you for your letter dated December 27, 2000, in which you enclosed Steven Guttman’s letter dated December 14, 2000.
“First, to address Mr. Guttman’s letter:
“As I still do not have a copy of Exhibit 5, I cannot make any determination of whether this clears up any issues or not. I had thought this Exhibit might contain a breakdown of the entities contributing to the settlement, the amount that each contributed, and the attorney’s representing each of the entities named in my RICO lawsuit. This is the information that I need in order to determine if any misrepresentations were made. If Exhibit 5 does not contain this information, then I would need to see whichever documents contain the information.
“Mr. Guttman states that ‘neither the Trustee or I believe there were any misrepresentations in connection with the settlement.’ As this is a legal case, shouldn’t we all be held to a higher standard that ‘we believe’? As I said in my previous letter, there should be existing written documents that clearly state the names of the clients that each attorney is representing.”
It has been nearly three and a half years since I wrote this letter, and over one year since Claimant made her demand for the instant arbitration. Yet, throughout these proceedings, and in all of her Motions and Exhibits where she has included a stated “true and complete copy of the Settlement Agreement,” she has continued to omit Exhibit 5 and has, instead, substituted what Mr. Guttman calls a “marker page”.
B. ACTS OF BAD FAITH AND/OR FRAUD.
Claimant states in her Opposition:
“In Disputed Issue No. 5, the Claimant raised the question as to whether Respondent’s letter writing campaign constituted a breach of the covenant of good faith and fair dealing. Nowhere in her Demand for Arbitration or in her correspondence has the Claimant raised the issue of fraud. Respondent has never filed any document with the AAA which raises the issue of fraud. As such, the issue of fraud is not before the AAA in this proceeding.
“In paragraph B of the Motion, Respondent makes numerous allegations that the Claimant, her counsel, and various other parties to the Agreement acted in bad faith, that the Agreement does not reflect the entire agreement, and that Respondent was ‘induced to sign the Settlement Agreement’. As stated previously, if the Respondent is intent on challenging the validity of the Settlement Agreement, he must do so in an arena other than the AAA as the validity issue, like the issue of fraud, is not before the AAA..”
“Furthermore, the issues of ‘bad faith’ and ‘breach of the covenant of good faith and fair dealing’ are issues of fact and not issues of law. Therefore, neither are in the nature of a summary judgment proceeding and will be addressed at trial....”
Respondent is aware that he has never filed any document with the AAA, in the form of a Counterclaim, which raises the issue of fault. What Claimant apparently fails to realize, however, is that Respondent has presented these arguments in DEFENSE of Claimant’s allegations against him in this matter, and NOT for the purpose of placing these issues before the AAA in this proceeding. As stated previously, while the Respondent intends to eventually raise these arguments with the Courts and in other arenas, this does not preclude him from using the Claimant’s negligence, acts of bad faith, and fraud as DEFENSES in the instant Arbitration.
As a matter of fact, Respondent has already filed his separate NOTICES OF CLAIMS relating to these matters of negligence, omissions, acts of bad faith and fraud, against a number of entities involved in this matter, which are being handled outside the AAA arena and these proceedings. These separate claims have included claims made against the following: the interim and current Trustees of Kamehameha Schools, as individuals; Hamilton McCubbin, CEO; Robert Katz (of Torkildson Katz Fonseca Jaffe Moore & Hetherington); Data House, Inc.; Yukio Takemoto; Rodney Park; Wally Chin; P&C Insurance Company, Inc.; PricewaterhouseCoopers LLP; Marr, Hipp, Jones & Pepper; Morgan, Lewis & Bockiuis; Miller & Chevalier; Marsh Management Services, Inc.; Kamehameha Activities Association; Nathan Aipa; Pauahi Holdings Corporation; Kukui, Inc; Colleen Wong; Louanne Kam; Susan Tius; Rush, Moore, Craven, Sutton, Morry & Beh; Jeffrey H.K. Sia; Ayabe, Chong, Nishimoto, Sia & Nakamura; Marsh & McLennan, Inc.; Aon Insurance Services, Inc.; and Steven Guttman, Esq., and his law firm Kessner, Duca, Umebayashi, Bain & Matsunaga. Claimant is aware of these separate actions as she was provided copies of all Claims Notices for her information. In fact, Claimant has cited Respondent’s Notice of Claim letters as being part of the so-called “letter-writing campaign” issue, and has included copies of these letters as Claimant’s Exhibits 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 76, 77, 78, 79, 80, and 81.
Claimant’s Exhibit 83 is a letter to Steven Guttman dated August 9, 2002, from Matt A. Tsukazaki, of Torkildson, Katz, Fonseca, Moore & Hetherington, in which Mr. Tsukazaki writes:
“Enclosed please find copies of additional letters sent by Bobby Harmon to various individuals at Kamehameha Schools. We have repeatedly asked you to take immediate corrective action against Mr. Harmon to stop these acts of harassment. We again request that prompt action be taken against Mr. Harmon.
“This letter is to also inform you that no response shall be forthcoming from any representative of Kamehameha Schools or P&C Insurance to these or any other letters sent by Mr. Harmon. All inquiries should be directed through my office as legal counsel for Kamehameha Schools and P&C Insurance. Mr. Harmon is reminded that the rules of court prohibit him from directly contacting parties who are represented by counsel. In the future, Mr. Harmon’s questions or claims should be directed to my office.”
Claimant’s Exhibit 84 is a copy of Respondent’s letter dated August 10, 2002, which was in response to Matt Tsukazaki’s letter of August 9, 2002. In this letter, Harmon writes:
“In your letter you enclosed copies of the following Notice of Claim letters which I addressed to these entities on the dates indicated....
“As you know, in each of these Notice of Claim letters I had asked the addressee to have their INSURANCE COMPANY promptly acknowledge receipt of these claims.
“In your letter, you also state, ‘Mr. Harmon is reminded that the rules of court prohibit him from directly contacting parties who are represented by counsel. In the future, Mr. Harmon’s questions or claims should be directed to my office.’
“Judging from this statement, it appears that I must point out to you again that these are NEW INSURANCE CLAIMS and, as I have not yet filed any new legal actions, it is my belief that these new claims would not be subject to the rules of any court. If, however, you still maintain that there are ‘rules’ which would prohibit me from directly contacting these parties in order to report NEW insurance claims, then I ask that you please furnish me with letters from EACH of the above entities stating that you have been appointed counsel by them for the express purpose of representing them in these NEW insurance claims. I would also ask for written evidence that the INSURANCE CARRIERS for each of these entities have approved your appointment in accordance with the usual provisions in professional liability insurance policies....
“Although you do not make mention of this issue in your letter to Mr. Guttman, I wish to point out again that my first NOTICE OF CLAIM dated June 24, 2002, made against TORKILDSON, KATZ, FONSECA, JAFFE & MOORE, is a NEW CLAIM. As most Professional Liability Insurance policies are written on a “Claims Made” basis, I feel that it is extremely important that you promptly submit this claim to your INSURANCE COMPANY in accordance with the usual Claim Reporting provisions of these policies.”
Respondent asks the Arbitrator to note that copies of his August 10, 2002 letter were sent to Stephen Guttman, and to 16 other individuals and entities who had some meaningful degree of involvement relating to the five issues Claimant has raised in these arbitration proceedings. In particular, this letter addressed the issue which pertains to the IRS W-2 and 1099-R tax forms for the Year 2000.
CONCLUSION
Respondent continues to maintain that the failure of Claimant to provide a true and complete copy of the Settlement Agreement, and all its related documents, is a most serious act of negligence and omission that has a direct bearing on these proceedings. Respondent also continues to maintain that he has presented these arguments in DEFENSE of Claimant’s allegations against him in this matter, and NOT for the purpose of placing these issues before the AAA in this proceeding.
For the reasons stated above, and for other reasons given in Respondent’s Motion to Dismiss Complaint or in the Alternative for Summary Judgment dated May 4, 2004, Respondent hereby requests that the Arbitrator grant Respondent’s Motion To Dismiss Complaint Or In The Alternative for Summary Judgment.
DATED: Louisville, Kentucky, June 3, 2004.
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BOBBY N. HARMON, pro se
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