BOBBY N. HARMON
10959 Southgate Manor Drive, No. 4
Louisville, Kentucky 40229
Respondent, pro se
THE ARBITRATION TRIBUNALS OF THE
AMERICAN ARBITRATION ASSOCIATION
In the matter of the Arbitration between MARY LOU WOO, Trustee, Claimant, and BOBBY N. HARMON, Respondent
Case No. 74 166 00491 03 JUSC
RESPONDENT’S PRE-HEARING POSITION STATEMENT
ARBITRATION
DATE: December 2 to December 3, 2003
TIME: From 9:00 A.M. (Hawaii Time)
BEFORE: Judith Neustadtar
________________________________
RESPONDENT’S PRE-HEARING
POSITION STATEMENT
Respondent BOBBY N. HARMON hereby submits his Pre-Hearing Position Statement. This Statement will be supplemented subject to any additional information which may be learned during the course of these hearings.
1. Party Filing Pre-Hearing Statement
This Statement is submitted by Respondent Bobby N. Harmon, Case No. 99-04339. This Statement is prepared without the assistance of an attorney, due, in large part to the fact that P&C Insurance Company, Inc. has not properly responded to Harmon’s tender of defense in this case.
2. Jurisdiction and Venue
Respondent has no comment at this time, but reserves the right to do so after Discovery is completed.
3. Response to Claimant’s Substance of Action Statement
Respondent disputes Claimant’s statement that the Agreement resolving all the disputed issues had been signed by all parties, including the Respondent, and approved by the Bankruptcy and the U.S. District Courts. The records will show that the Agreement was not signed by many of the parties until after the court had approved the Settlement Agreement. Respondent is of the belief that the Trustee’s actions of submitting an unsigned document to the Court invalidated the Agreement. Respondent also believes that certain parties that should have signed the Agreement did not, and that some of the unidentified signatures on the Agreement may be forgeries, and, if so, Respondent asks the Arbitrator to declare the Contract null and void.
Respondent believes that certain attorneys committed fraud by falsely claiming to represent parties in these cases when in actuality, they were not authorized by these parties. Respondent believes that certain attorneys also falsely claimed to be acting with the authorization of certain insurance companies in the negotiation of the Settlement Agreement when, in fact, they were not.
Respondent believes that Trustee Mary Loo Woo and her attorney, Steven Guttman, have undisclosed conflicts-of-interests with other parties in this case.
Respondent believes that Claimant’s accountant, Michelle H. Tucker, CPA, has undisclosed conflicts-of-interests with other parties in this case.
Respondent believes that Claimant has “unclean hands” and has breached her fiduciary duties by demanding this unnecessary and frivolous Arbitration.
Respondent believes that Claimant has breached her fiduciary duties by not properly accounting for payments purportedly made to the Internal Revenue Service and the Hawaii Tax Collector.
Respondent denies Claimant’s assertions that his “letter writing campaign” constituted, in any way, a breach of the Agreement.
Respondent believes that P&C Insurance Company, Inc., and attorney Matt Tsukazaki have wrongfully and improperly denied Harmon’s tender of defense in this Arbitration, resulting in “bad faith” claims practices.
Respondent believes that John Mullen Company has failed to promptly respond to Harmon’s tender of defense to P&C Insurance Company, resulting in “bad faith” claims practices.
Respondent believes that Island Insurance Company has wrongfully denied Harmon’s tender of defense in this Arbitration, resulting in “bad faith” claims practices.
Respondent believes that Claimant and other parties have breached the Agreement by reason of fraud and material misstatements; by failing to disclose material conflicts-of-interest; by failing to properly account for payments to creditors, including the IRS and Hawaii State Tax Collector; by failing to diligently pursue Harmon’s RICO lawsuit; by failing to obtain valid signatures of all parties to the Agreement before submitting it to the Court for approval.
4. Undisputed Facts
Respondent agrees with Claimant’s undisputed facts; however, Respondent believes that there are many facts in this case that are being improperly withheld by Claimant.
5. Disputed Facts
Except for the undisputed facts identified above, all other facts relative to this proceeding and the underlying matters are disputed.
6. Relief Requested
Respondent requests that the Arbitrator issue a finding that the Settlement Agreement is null and void due to the reasons stated in Paragraph 3 above.
In the event the Arbitrator does not find the Agreement to be null and void, Respondent requests that the Arbitrator issue a finding that the Claimant and other Parties have breached the Agreement.
Respondent seeks full and final enforcement of the issues set forth in the Agreement, including payment by Harmon’s employer, Kamehameha Schools, of all payroll taxes and employee retirement benefits (IRS Forms W-2 and 1099-R) due under the Settlement.
Respondent also requests a finding that Claimant’s Demand for Arbitration is frivolous and requests an award of appropriate sanctions against the Claimant.
Respondent objects to Claimant’s late request for payment of Claimant’s attorneys’ fees and costs incurred in connection with this proceeding. Respondent also requests a finding that Claimant is responsible for payment of Respondent’s fees and costs incurred in connection with this proceeding, including payment for his hours in pro se preparation for these arbitration hearings, at an hourly rate equal to that of Claimant’s attorney.
7. Witnesses to be Called.
Please refer to Respondent’s revised Witness List and Summary of Testimonies submitted to the AAA on November 24, 2003.
8. Exhibits
Respondent has received Claimant’s List of Exhibits submitted to the AAA on November 12, 2003; however, he has not yet received the actual exhibits. Until these actual exhibits have been received, Respondent is not able to prepare and submit the joint exhibits or separate exhibits requested by the Arbitrator.
9. Further Discovery and Other Matters
Respondent had hoped that the arbitration could have been completed as scheduled for December 2 and 3, 2003, since these prolonged preliminary proceedings have already caused Respondent substantial financial and mental hardships. It is obvious, however, that neither party has had the opportunity to fully prepare their respective cases; therefore, Respondent does not object to postponement of the arbitration until a mutually agreeable date in the Spring of 2004.
Respondent is not, however, agreeable to traveling to Honolulu to be physically present for purposes of the arbitration for the reasons stated in my letter of November 19, 2003, addressed to the American Arbitration Association.
Respondent also requests that the Arbitrator establish a new pre-arbitration schedule as suggested in the same November 19th letter.
10. Stipulations
Claimant has not initiated any discussions with the Respondent regarding any stipulations.
11. Amendments and/or Dismissals
Respondent wishes to reserve all rights to request amendments or dismissals of the pending issues depending upon facts revealed in Discovery.
12. Agreed Statement of Facts
Respondent agrees that there is no agreed statement of facts; but would argue that Claimant has the responsibility for initiating action to develop such a Statement.
13. Bifurcation, Separation of issues
At this time, Respondent does not anticipate the need for a bifurcation or separation of the issues, but reserves all rights to do so if the need arises during these proceedings.
14. Estimated Time of Arbitration
If the parties are unable to reach an agreement which significantly decreases the number of witnesses, and if Claimant’s request that Respondent be physically present for the arbitration is granted, then Respondent estimates that the arbitration should take four weeks or longer.
As a reasonable and cost-effective alternative to telephone or video conferencing for oral depositions and testimony of witnesses, Respondent requests that witnesses should instead be required to submit written answers to interrogatories. This would greatly reduce the costs and inconveniences to all parties involved.
15. Claims of Privilege or Work Product
Respondent wishes to reserve all legal rights to claim privilege and/or work product concerning the testimony of witnesses Bradley Tamm, Arnold Phillips, Roy Hughes and John Goemans, Respondent’s former counsel.
DATED: Louisville, Kentucky, November 24, 2003.
_____________________________
BOBBY N. HARMON, pro se
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