Waltrip v. Lopes, Sr. ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-SEP-2021
07:52 AM
Dkt. 70 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DEBORAH J. WALTRIP, Plaintiff-Appellant,
v.
MILES J.K. LOPES, SR., Defendant-Appellee
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2RC161000263)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Self-represented Plaintiff-Appellant Deborah J. Waltrip
appeals from the "Final Decision and Order: Denying Plaintiff's
October 9, 2017 Motion to Set Aside Dismissal and Dismissing Case
with Prejudice" entered by the District Court of the Second
Circuit, Wailuku Division, on October 15, 2018.1 We affirm the
Final Decision and Order.
Waltrip's opening brief does not contain the required
statement of the points of error.2 Nevertheless, to promote
1
The Honorable Adrianne N. Heely presided.
2
Rule 28 of the Hawai#i Rules of Appellate Procedure (HRAP)
provides, in relevant part:
Rule 28. BRIEFS.
. . . .
(b) Opening brief. Within 40 days after the filing
of the record on appeal, the appellant shall file an opening
brief, containing the following sections in the order here
indicated:
(continued...)
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access to justice, the Hawai#i Supreme Court instructs that
pleadings prepared by self-represented litigants should be
interpreted liberally, and self-represented litigants should not
be automatically foreclosed from appellate review because they
fail to comply with court rules. Erum v. Llego, 147 Hawai#i 368,
380-81, 465 P.3d 815, 827-28 (2020). Accordingly, we address
Waltrip's appeal on the merits based upon what we are able to
discern her arguments to be.
Our review is also hampered by Waltrip's failure to
request transcripts of proceedings before the district court.3
Most of Waltrip's arguments on appeal involve oral motions, court
rulings, and other matters that transpired during court hearings.
It is Waltrip's burden, as the appellant, "to show error by
reference to matters in the record, and [appellant] has the
responsibility of providing an adequate transcript." Bettencourt
v. Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995)
2
(...continued)
. . . .
(4) A concise statement of the points of error set
forth in separately numbered paragraphs. Each point shall
state: (i) the alleged error committed by the court or
agency; (ii) where in the record the alleged error occurred;
and (iii) where in the record the alleged error was objected
to or the manner in which the alleged error was brought to
the attention of the court or agency. . . .
. . . .
Points not presented in accordance with this section
will be disregarded[.]
3
Rule 10 of the Hawai#i Rules of Appellate Procedure (HRAP)
provides, in relevant part:
Rule 10. THE RECORD ON APPEAL.
. . . .
(b) The transcript of court proceedings.
(1) REQUEST TO PREPARE TRANSCRIPT.
(A) When to request. When an appellant desires to
raise any point on appeal that requires consideration of the
oral proceedings before the court appealed from, the
appellant shall file with the appellate clerk, within 10
days after filing the notice of appeal, a request or
requests to prepare a reporter's transcript of such parts of
the proceedings as the appellant deems necessary that are
not already on file in the appeal.
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(quoting Union Bldg. Materials Corp. v. Kakaako Corp., 5 Haw.
App. 146, 151, 682 P.2d 82, 87 (1984)). Copies of some
transcripts were attached to the answering brief filed by self-
represented Defendant-Appellee Miles J.K. Lopes, Sr., but we
cannot consider them because they are not part of the record on
appeal.4 We are able, however, to consider the district court's
minutes. See Rule 10(a) of the Hawai#i Rules of Appellate
Procedure (HRAP);5 Rule 4(f) of the Hawai#i Court Records Rules
(HCRR).6
The procedural history of this case — which we glean
from the district court's file and minutes — shows that Waltrip
filed a district court complaint against Lopes on February 4,
2016. The complaint alleged that Lopes owed $10,398 to Waltrip.
Lopes appeared, self-represented, for the district court's
4
HRAP Rule 28 provides, in relevant part:
Rule 28. BRIEFS.
. . . .
(b) Opening brief. Within 40 days after the filing
of the record on appeal, the appellant shall file an opening
brief, containing the following sections in the order here
indicated:
. . . .
(10) An appendix. Anything that is not part of the
record shall not be appended to the brief, except as
provided in this Rule.
. . . .
(c) Answering brief. . . . The brief shall be of
like character as that required for an opening brief[.]
5
HRAP Rule 10 provides, in relevant part:
Rule 10. THE RECORD ON APPEAL.
(a) Composition of the record on appeal. The record on
appeal shall consist of the trial court . . . record, as set out
in Rule 4 of the Hawai#i Court Record Rules[.]
6
HCRR Rule 4 provides, in relevant part:
Rule 4. CONTENT OF COURT AND ADLRO RECORDS; INFORMATION
DISCREPANCY.
The record of each case . . . shall include:
(f) minutes[.]
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
February 22, 2016 answer calendar and entered a denial. The
district court ordered the parties to mediate and set a status
conference for May 2, 2016.
The status conference was continued until May 9, 2016.
At the conference the district court again ordered the parties to
mediate and set another status conference for November 7, 2016.
On November 7, 2016, Lopes was not in the courtroom
when the case was called at 9:30 a.m. The district court entered
Lopes's default. Lopes appeared at 9:40 a.m., but Waltrip had
already left the courtroom. Lopes filed a motion to set aside
his default at 10:25 a.m. that day. The motion was set for
hearing on November 28, 2016. At 11:23 a.m. the same day,
Waltrip filed a motion for default judgment against Lopes.
The district court denied Waltrip's motion for default
judgment, granted Lopes's motion to set aside his default, and
issued a trial order. Trial was set for February 6, 2017.
On February 6, 2017, both parties appeared for trial.
The minutes reflect that Waltrip requested a continuance to
attempt mediation, and Lopes requested a continuance to subpoena
documents. The district court continued the trial to July 10,
2017, "by agreement."
At trial on July 10, 2017, both parties testified and
the district court received Waltrip's exhibits 1-7 and Lopes's
exhibits A-E in evidence. Waltrip's Exhibit 1 was a copy of a
letter, allegedly from Lopes, acknowledging a debt to Waltrip of
$10,398, "that I have borrowed during the last three years." The
letter was dated February 8, 2010, and was allegedly signed by
Lopes.
Lopes's Exhibit A was Lopes's written response to
Waltrip's complaint. In it, Lopes denies signing Exhibit 1.
After the district court heard the parties' testimony, trial was
continued to October 9, 2017 "for defense subpoenas . . . and
courts [sic] ruling[.]"
On July 26, 2017, Lopes filed a motion for discovery
from the Hawai#i Department of Labor and Industrial Relations
Appeals Board and Department of Human Services. The motion was
heard on August 21, 2017. At the hearing the district court
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agreed to review documents from the State of Hawai#i in camera;
the State was ordered to provide the documents by October 2,
2017.
The minutes for August 21, 2017, also indicate that
Waltrip made an oral motion for continuance, which was denied.
Waltrip argues she asked for the continuance "to allow for a
handwriting expert to testify on her behalf." The minutes do not
reflect the reason for Waltrip's oral motion, or the reason for
the district court's denial of a continuance. Without a
transcript, we cannot review Waltrip's contention that the
district court erred by denying her motion for a continuance.
The district court then set October 9, 2017, for the "continued
trial/courts [sic] ruling[.]"
Neither party appeared for the October 9, 2017
proceeding. The minutes state that the district court ordered
the "matter be dismissed with prejudice due to lack of evidence
and statutes [sic] of limitations." Waltrip filed a motion to
set aside the dismissal the same day.
Waltrip's motion to set aside the dismissal was heard
on October 23, 2017. The district court denied the motion.
Waltrip showed new exhibits to the court, over Lopes's objection.
The minutes reflect that the court held the new exhibits were not
relevant, and returned them to Waltrip. Waltrip contends this
was error, but we are unable to review the evidentiary ruling
because there is no transcript of the hearing and the record does
not otherwise reveal the nature of the exhibits or include the
basis for the district court's determination that they were not
relevant.
Waltrip's notice of appeal was filed on November 22,
2017. We temporarily remanded the case to the district court for
entry of a written order or judgment. The Final Decision and
Order was entered on October 15, 2018. The district court denied
Waltrip's motion to set aside the dismissal and ordered the case
dismissed with prejudice.
Waltrip's opening brief presents several arguments.
She contends the district court erred by setting aside its entry
of Lopes's default after Lopes failed to appear at 9:30 a.m. on
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November 7, 2016, when the case was called. A trial court's
ruling on a motion to set aside a default is reviewed for abuse
of discretion. See County of Hawai#i v. Ala Loop Homeowners, 123
Hawai#i 391, 404, 235 P.3d 1103, 1116 (2010) (applying Rule 55 of
the Hawai#i Rules of Civil Procedure), abrogated on other grounds
by Tax Found. of Haw. v. State, 144 Hawai#i 175, 439 P.3d 127(2019). An abuse of discretion occurs where the trial court
clearly exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment of a
party litigant. Costales v. Rosete, 133 Hawai#i 453, 465, 331
P.3d 431, 443 (2014). Lopes appeared for the hearing at
9:40 a.m.; he was 10 minutes late. The record does not contain a
transcript of the hearing on Lopes's motion to set aside his
default. On this record we cannot say that the district court
abused its discretion by setting aside the entry of Lopes's
default.
Waltrip cites conflicts between her testimony and
evidence and the testimony and evidence offered by Lopes, arguing
that the district court should have believed her, not Lopes.
However, "[a]n appellate court will not pass upon issues
dependent upon credibility of witnesses and the weight of the
evidence; this is the province of the trial judge." Amfac, Inc.
v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 117, 839 P.2d 10, 28
(1992) (cleaned up).
Waltrip argues that Lopes "made a series of untrue
inflammatory irrelevant comments whose sole purpose was to
inflame the judge and create a negative feeling towards me."
Because the record contains no transcripts of proceedings, we are
unable to assess the merits of Waltrip's argument.
Waltrip's ultimate argument is that the district court
erred by finding that Lopes did not sign Exhibit 1 (the letter
allegedly acknowledging a debt to Waltrip) despite Lopes having
"stated under oath 'she made me sign it.'" Waltrip argues that
"despite this admission Judge Heely still ruled that he hadn't
signed it. This was farcical." Again, we have no basis to
confirm whether or not Lopes made the alleged admission because
Waltrip has not included a transcript of the trial proceedings in
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the record on appeal. Even if she had, we would not second-guess
the trial judge's assessment of the relative credibility of the
witnesses or the weight of the evidence.
For the foregoing reasons, the Final Decision and Order
entered on October 15, 2018, is affirmed.
DATED: Honolulu, Hawai#i, September 10, 2021.
On the briefs:
/s/ Katherine G. Leonard
Deborah J. Waltrip, Presiding Judge
Self-represented
Plaintiff-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Miles J.K. Lopes, Sr.,
Self-represented /s/ Clyde J. Wadsworth
Defendant-Appellee. Associate Judge
7