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Sales v. Kapiolani Medical Center12/24/2002
s, correspondence, pleadings, exhibits and further transcripts." (Emphasis supplied.) However, Sales failed to ensure that the record as constituted was adequate to carry her case on appeal. HRAP Rule 11(a) (2001) ("After the filing of the notice of appeal, the appellant . . . shall comply with the provisions of [HRAP] Rule 10(b) and shall take any other action necessary to enable the clerk of the court to assemble and transmit the record."). Despite the fact that the primary argument advanced by the Appellees in their June 12, 2001 answering brief concerned the absence of the transcript of proceedings, Sales did not file a reply brief, in which she might have addressed that argument. More important, Sales did not act to remedy the omission. See Bettencourt, 80 Hawaii at 231, 909 P.2d at 559 ("it is counsel's responsibility to review the record once it is docketed and if anything material to counsel's client's case is omitted or misstated, to take steps to have the record corrected" (brackets, citation and internal quotation marks omitted) (referring to the then-applicable Hawaii Rules of Civil Procedure Rule 75(d), the predecessor court rule to HRAP Rule 10(e)(2)); HRAP Rule 10(e)(2) (2001) ("If anything material to any party is omitted from the record by error or accident or is misstated therein, corrections or modifications may be as follows: (A) by stipulation of the parties; or (B) by the court or agency appealed from, either before or after the record is transmitted; or (C) by direction of the appellate court before which the case is pending, on proper suggestion or its own initiative." (Format modified.)).
As explained above, the record sans the transcript does not provide a sufficient basis upon which to review the Board's findings of fact and conclusions of law. See Zemis v. SCI Contractors, Inc., 80 Hawaii 442, 445, 911 P.2d 77, 80 (1996) (applying the de novo standard of review to the Board's conclusions of law and the clearly erroneous standard to the Board's findings of fact, and in the latter instance, considering "whether . . . a finding is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record" (brackets, bold-face type, citation and internal block quote format omitted)); Bumanglag v. Oahu Sugar Co., Ltd., 78 Hawaii 275, 279, 892 P.2d 468, 472 (1995). Hence, we must dismiss Sales' appeal. See Bettencourt, 80 Hawaii at 231, 909 P.2d at 559; Marn, 44 Haw. at 664, 361 P.2d at 389. As we have stated,
the burden is on appellant to convince the appellate body that the presumptively correct action of the circuit court is incorrect. To that end, an appellant is required to file a notice of appeal, order the transcript of the proceedings below, and arrange for transmission of the record. The burden is upon appellant to comply with the rules. The only positive requirement placed on an appellee is to file an answering brief, except where appellee files a cross-appeal, or may wish to respond to an act by appellant. So great is the burden on appellant to overcome the presumption of correctness that appellee's failure to file an answering brief does not entitle appellant to the relief sought from the appellate court, even though the court may accept appellant's statement of facts as correct. Costa, 5 Haw. App. at 430, 697 P.2d at 50-51 (internal citations omitted).
Therefore,
IT IS HEREBY ORDERED that Sales' appeal is dismissed.
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