Ditto v. McCurdy12/3/2003
HRAP Rule 10(b)(1) (2001) (appellant's duty to provide transcript where point of appeal requires consideration of the oral proceedings before the agency appealed from). Ditto has failed to meet her burden.
The November 20, 2000 order does not set forth the circuit court's reasons for denying Ditto's HRCP Rule 60(b) motion, stating simply that "the Court[,] having heard oral argument, reviewed memoranda and supplemental memoranda, and otherwise being apprised of the record," orders, adjudges, and decrees the motion is denied in its entirety. On January 2, 2001, Ditto certified to this court pursuant to HRAP Rule 10(b)(2) (1999) that she was not requesting any transcripts be prepared in connection with her appeal from the November 20, 2000 order. Ditto thereby deemed the transcripts of the November 14, 2000 hearing unnecessary for purposes of our review on appeal. See HRAP Rule 10(b)(2).
However, without the November 14, 2000 transcript, we simply do not have a sufficient basis in the record to conclude that the circuit court abused its discretion by denying her motion on the ground of newly discovered evidence. Lepere, 77 Hawaii at 474, 887 P.2d at 1032; see Bettencourt v. Bettencourt, 80 Hawaii 225, 231, 909 P.2d 553, 559 (1995) (affirming the sanctions imposed by the family court because, where the appellant failed to include the relevant transcripts, the appellate court has no basis upon which to review appellant's point of error); see also Tradewinds Hotel, Inc. v. Cochran, 8 Haw. App. 256, 266, 799 P.2d 60, 66 (1990) (court is unable to review asserted errors where appellant has failed to provide transcript of proceedings below); Union Bldg. Materials Corp. v. Kakaako Corp., 5 Haw. App. 146, 151-52, 682 P.2d 82, 87 (1984) ("appellant must include in the record all of the evidence on which the lower court might have based its findings and if this is not done, the lower court must be affirmed"). For example, we do not know whether the July 13, 2000 letter, the gravamen of Ditto's motion, was offered into evidence at the hearing and, if so, whether the circuit court admitted the letter or found it to be credible. Nor do we know whether Smith was called to testify regarding his statements in the July 13, 2000 letter or whether Ditto offered any other evidence in support of her motion. We, therefore, leave undisturbed the circuit court's November 20, 2000 order denying Ditto's HRCP Rule 60(b) motion. See Lepere, 77 Hawaii at 473, 887 P.2d at 1031; Union Bldg. Materials Corp., 5 Haw. App. at 151-52, 682 P.2d at 88; Tradewinds Hotel, 8 Haw. App. at 266, 799 P.2d at 66.
IV. CONCLUSION
Based on the foregoing, we (1) dismiss the appeal and cross-appeal from the March 24, 2000 order and September 28, 2000 judgment in appeal No. 23851 and (2) affirm the November 20, 2000 order denying Ditto's motion to set aside and/or amend the September 28, 2000 judgment, which is the subject of appeal No. 23962.
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