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Kitaami v. Shavelson

Intermediate Court of Appeals of Hawai'i

January 30, 2015

KITAAMI, Plaintiff-Appellee,
v.
EILEEN SHAVELSON, Defendant-Appellant

Editorial Note:

This decision is published in table format in the Pacific and Hawai'i reporter.

APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT. (CASE NO. 5RC13-1-0126).

On the briefs: Eileen Shavelson, Defendant-Appellant, Pro se.

Warren C.R. Perry, for Plaintiff-Appellee.

bye: Nakamura, C.J., Foley and Fujise, JJ.

SUMMARY DISPOSITION ORDER

Defendant-Appellant Eileen Shavelson (Shavelson) appeals from the " Writ of Possession" and " Judgment for Possession" [1] entered on July 17, 2013 in the District Court of the Fifth Circuit[2] (district court).

On appeal, Shavelson contends that Judge Rothchild violated the " Judge's Code." Shavelson also contends that Plaintiff-Appellee Kitaami (Kitaami) interfered with her " guaranteed right to a peaceful home" and retaliated against her, in violation of Hawaii Revised Statutes (HRS) § 521-74 (2006 Repl.).

Shavelson's opening brief does not meet the requirements of Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b). Shavelson's opening brief lacks a concise statement of the case with citation to the record; a concise statement of the points of error that clearly identifies the alleged error and includes record cites to reflect where the error occurred and where Shavelson brought the error to the district court's attention; a Standard of Review section; or an argument section containing citations to authorities or parts of the record. See HRAP Rule 28(b). Non-compliance with HRAP Rule 28 is sufficient grounds to dismiss Shavelson's appeal. See HRAP Rule 30 (" When the brief of an appellant is otherwise not in conformity with these rules, the appeal may be dismissed. .. ." ) See also Bettencourt v. Bettencourt, 80 Hawai'i 225, 230, 909 P.2d 553, 558 (1995). However, in light of Shavelson's pro se status, we seek to address the merits where possible. Wagner v. World Botanical Gardens, Inc., 126 Hawai'i 190, 193, 268 P.3d 443, 446 (App. 2011); see also Bettencourt, 80 Hawai'i at 230, 909 P.2d at 558 (" [T]his court has consistently adhered to the policy of affording litigants the opportunity to have their cases heard on the merits, where possible." (citation and internal quotation marks omitted.))

As best as can be discerned, Shavelson asserts the following on appeal: (1) that the district court's conduct during her June 14, 2013 trial " obstructed justice" [3] and (2) that Kitaami also " obstructed justice, and conspired to obstruct justice in a manner, by way of retaliation towards [Shavelson.]"

We are unable to consider the merits of Shavelson's contentions because she has failed to include the transcript of the trial proceedings in the record on appeal. The Hawai'i Supreme Court has held that " [t]he burden is upon appellant in an appeal to show error by reference to matters in the record, and [she] has the responsibility of providing an adequate transcript." Bettencourt, 80 Hawai'i at 230, 909 P.2d at 558 (citation and internal quotation marks omitted). Shavelson contends that " [g]iven the lack of financial assistance. .. it is largely impossible for her to pay for those transcripts, yet curiously the appellees and their attorney have not bothered paying for them either." [4] Shavelson mistakenly believes that Kitaami shares a burden to procure the transcripts, if financially capable of doing so. However, " [t]he law is clear in this jurisdiction that the appellant has the burden of furnishing the appellate court with a sufficient record to positively show the alleged error." Id. (citation and internal quotation marks omitted).

Without the transcript from the trial, we have no basis upon which to review the merits of Shavelson's appeal. See id.; see also Lepere v. United Public Workers, Local 646, AFL-CIO, 77 Hawai'i 471, 473, 887 P.2d 1029, 1031 (1995); Tradewinds Hotel, Inc. v. Cochran, 8 Haw.App. 256, 266, 799 P.2d 60, 66 (1990); Union Bldg. Materials Corp. v. Kakaako Corp., 5 Haw.App. 146, 152, 682 P.2d 82, 88 (1984) (the court is unable to review asserted errors where appellant has failed to provide a transcript of the trial proceedings).

Therefore,

IT IS HEREBY ORDERED that the " Writ of Possession" and " Judgment for Possession," both entered on July 17, 2013 in the District Court of the Fifth Circuit are affirmed.


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