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Olga Mary Lansing v. Nancee Jenko-Crispin

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII


August 24, 2011

OLGA MARY LANSING, PLAINTIFF/COUNTERCLAIM-DEFENDANT/APPELLANT,
v.
NANCEE JENKO-CRISPIN, DEFENDANT/COUNTERCLAIM PLAINTIFF/APPELLEE

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 06-1-1891)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)

Plaintiff/Counterclaim-Defendant/Appellant Olga M. Lansing (Lansing) appeals pro se from the February 4, 2009 amended judgment entered by the Circuit Court of the First Circuit (circuit court)*fn1 in favor of Defendant/Counterclaim Plaintiff/Appellee Nancee Jenko-Crispin (Jenko-Crispin).

Lansing filed this case seeking the return of a deposit she made as the winning bidder at a October 13, 2004 foreclosure auction. Jenko-Crispin was the court-appointed commissioner overseeing the auction. Arlette Harada (Harada) was Jenko Crispin's attorney.

Lansing's Opening Brief fails to comply with Hawaii Rules of Appellate Procedure (HRAP) Rule 28(b)(4) because it does not identify the alleged error committed by the court nor cite where in the record the alleged error occurred, where she objected to such error, or where it was brought to the attention of the court. HRAP Rule 28(b)(4)(i)-(iii). An appellant's "failure to conform his [or her] brief to the requirements of HRAP Rule 28(b) burdens both the parties compelled to respond to the brief and the appellate court attempting to render an informed judgment" and would alone be grounds to dismiss an appeal. Hous. Fin. & Dev. Corp. v. Ferguson, 91 Hawaii 81, 85-86, 979 P.2d 1107, 1111-12 (1999). However, as the appellate courts have "consistently adhered to the policy of affording litigants the opportunity to have their cases heard on the merits, where possible," Bettencourt v. Bettencourt, 80 Hawaii 225, 230, 909 P.2d 553, 558 (1995) (citation and internal quotations omitted), we attempt to address Lansing's appeal. Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Lansing's points of error as follows:

(1) Lansing alleges the circuit court erred in accepting orders prepared by Harada. Under Rule 23 of the Rules of the Circuit Court of the State of Hawaii (RCCH), it is routine practice in Hawaii circuit courts that the prevailing party, or his or her attorney, prepare proposed orders, which the circuit court may then approve. RCCH Rule 23 is a procedural provision intended to expedite the court's business. Rhoads v. Okamura, 98 Hawaii 407, 410, 49 P.3d 373, 376 (2002), overruled on other grounds by Alford v. City & Cnty. of Honolulu, 109 Hawaii 14, 23, 122 P.3d 809, 818 (2005). The opposing side may object as to form prior to entry of the order. RCCH Rule 23(b). The circuit court cannot be said to have acted merely as a "stamp of approval" to the proposed orders prepared by Harada, given that it edited several of the orders before signing them and entering them.

(2) Lansing alleges that the circuit court acted "without her input" but fails to cite with any specificity where such an alleged error occurred. It is unclear what specific action of the circuit court Lansing claims as error here. Given that "[t]he appellate courts are not obliged to search the record to crystallize the parties' arguments," Laeroc Waikiki Parkside, LLC v. K.S.K. (Oahu) Ltd. P'ship, 115 Hawaii 201, 218 n.19, 166 P.3d 961, 978 n.19 (2007) (citing Lanai Co., Inc. v. Land Use Comm'n, 105 Hawaii 296, 309 n.31, 97 P.3d 372, 385 n.31 (2004)), we decline to consider this argument.

(3) & (4) Lastly, Lansing alleges that the circuit court failed to acknowledge Harada's fraud. Harada is not a party in this case. See Hawaii Rules of Civil Procedure Rule 18, 21. Therefore, the circuit court had no authority to act on Lansing's complaints against Harada. See Filipino Fed'n of Am., Inc. v. Cubico, 46 Haw. 353, 372, 380 P.2d 488, 498 (1963) ("In order for the decree of the lower court to be binding upon such persons, they must be made parties to the suit, either as plaintiffs or defendants."); Magoon v. Afong, 10 Haw. 340 (Haw. Rep. 1896).

Appellants have "the burden of demonstrating that they are entitled to the relief sought before this court." Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawaii 277, 309 n.21, 172 P.3d 1021, 1053 n.21 (2007) (citing Bettencourt, 80 Hawaii at 230, 909 P.2d at 558). Lansing has not met that burden here.

Therefore, the February 4, 2009 amended judgment of the Circuit Court of the First Circuit against Lansing and in favor of Jenko-Crispin is affirmed.


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