 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Ditto v. McCurdy12/3/2003
e 60(b), other than HRCP Rule 60(b)(2) regarding newly discovered evidence, are implicated. By failing to argue the point, Ditto has waived all bases set out in HRCP Rule 60(b), except for HRCP Rule 60(b)(2) (regarding newly discovered evidence), as grounds for appealing the denial of her HRCP Rule 60(b) motion. HRAP Rule 28(b)(7) (2000).
Relief under HRCP Rule 60(b) based on newly discovered evidence can be granted provided the evidence meets the following requirements: (1) it must be previously undiscovered even though due diligence was exercised; (2) it must be admissible and credible; (3) it must be of such a material and controlling nature as will probably change the outcome and not merely cumulative or tending only to impeach or contradict a witness.
Orso v. City & County of Honolulu, 56 Haw. 241, 250, 534 P.2d 489, 494 (1975).
Claiming that all elements set forth in Orso have been satisfied, Ditto points out that the new evidence (i.e., the July 13, 2000 letter) "did not even exist until almost four months" after the March 24, 2000 order was entered. Furthermore, the new evidence is admissible and credible inasmuch as " t is a correspondence from one of McCurdy's many attorneys to Ditto's attorney." Asserting that the new evidence is "highly material and controlling in this case so as to change its outcome[,]" Ditto states:
McCurdy's admission of his intent to violate ERISA by using pension money to bid in a foreclosure auction clearly demonstrates that his reliance upon the anti-alienation provision in opposing set off was illusory. It means that either the anti-alienation provision is not as restrictive as contended by McCurdy and or that it would have been violated anyway.
McCurdy counters that the July 13, 2000 letter fails to meet the criteria outlined in Orso, stating:
The letter was from McCurdy's attorney, not from McCurdy, and the language used by McCurdy's attorney was that McCurdy "may" decide to submit a bid at a foreclosure sale through his pension plan, as opposed to "will". (ROA, Vol. 18, p. 139) There was no clear expression of intent of what McCurdy's attorney meant, let alone what McCurdy meant. The letter simply was not an admission by McCurdy that he was intending to use pension funds. Ditto's attorneys can only speculate as to what McCurdy actually intended. As such it is clearly irrelevant. . . . Moreover, the actual evidence submitted to the Circuit Court refutes that any of the plans funds were used to bid on the foreclosure sale property. (ROA Vol. 18, p. 167)
McCurdy goes on to point out that the actual successful bidder at the foreclosure sale was not the subject pension plans, and he never made an offer on behalf of the pension plans. Regardless, inasmuch as he does not have the authority "to cause any of the plans to be alienated" or "to make offers of the plans funds or to spend money of the plans," McCurdy maintains the July 13, 2000 letter is irrelevant.
As previously indicated, a circuit court's determination of an HRCP Rule 60 motion is reviewed for an abuse of discretion. Amantiad, 90 Hawaii at 158, 977 P.2d at 166. The burden of establishing abuse of discretion is on the appellant, and a strong showing is required to establish it. Lepere v. United Pub. Workers, Local 646, 77 Hawaii 471, 474, 887 P.2d 1029, 1032 (1995). Additionally, it is well established that, when an appellant desires to raise any point on appeal that requires the consideration of the oral proceedings before the court appealed from, the appellant bears the burden of showing error by reference to matters in the record, and he or she has the responsibility of providing the relevant transcript. See
Page 1 2 3 4 5 6 7 8 Hawaii Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|