NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-17-0000846

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

DEBORAH J. WALTRIP, Plaintiff-Appellant, 

v.

MILES J.K. LOPES, SR., Defendant-Appellee 

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT

WAILUKU DIVISION

(CASE NO. 2RC161000263)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Self-represented Plaintiff-Appellant Deborah J. Waltrip

appeals from the "Final Decision and Order: Denying Plaintiff's

October 9, 2017 Motion to Set Aside Dismissal and Dismissing Case

with Prejudice" entered by the District Court of the Second

Circuit, Wailuku Division, on October 15, 2018.1 We affirm the

Final Decision and Order.

Waltrip's opening brief does not contain the required

statement of the points of error.2 Nevertheless, to promote

1 The Honorable Adrianne N. Heely presided. 

2 Rule 28 of the Hawai#i Rules of Appellate Procedure (HRAP)

provides, in relevant part:

Rule 28. BRIEFS.

. . . .

(b) Opening brief. Within 40 days after the filing

of the record on appeal, the appellant shall file an opening

brief, containing the following sections in the order here

indicated:

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000846

10-SEP-2021

07:52 AM

Dkt. 70 SO
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access to justice, the Hawai#i Supreme Court instructs that

pleadings prepared by self-represented litigants should be

interpreted liberally, and self-represented litigants should not

be automatically foreclosed from appellate review because they

fail to comply with court rules. Erum v. Llego, 147 Hawai#i 368,

380-81, 465 P.3d 815, 827-28 (2020). Accordingly, we address

Waltrip's appeal on the merits based upon what we are able to

discern her arguments to be.

Our review is also hampered by Waltrip's failure to

request transcripts of proceedings before the district court.3

Most of Waltrip's arguments on appeal involve oral motions, court

rulings, and other matters that transpired during court hearings. 

It is Waltrip's burden, as the appellant, "to show error by

reference to matters in the record, and [appellant] has the

responsibility of providing an adequate transcript." Bettencourt

v. Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995)

2(...continued)

. . . .

(4) A concise statement of the points of error set

forth in separately numbered paragraphs. Each point shall

state: (i) the alleged error committed by the court or

agency; (ii) where in the record the alleged error occurred;

and (iii) where in the record the alleged error was objected

to or the manner in which the alleged error was brought to

the attention of the court or agency. . . .

. . . .

Points not presented in accordance with this section

will be disregarded[.]

3 Rule 10 of the Hawai#i Rules of Appellate Procedure (HRAP)

provides, in relevant part:

Rule 10. THE RECORD ON APPEAL.

. . . .

(b) The transcript of court proceedings.

(1) REQUEST TO PREPARE TRANSCRIPT.

(A) When to request. When an appellant desires to

raise any point on appeal that requires consideration of the

oral proceedings before the court appealed from, the

appellant shall file with the appellate clerk, within 10

days after filing the notice of appeal, a request or

requests to prepare a reporter's transcript of such parts of

the proceedings as the appellant deems necessary that are

not already on file in the appeal.

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(quoting Union Bldg. Materials Corp. v. Kakaako Corp., 5 Haw.

App. 146, 151, 682 P.2d 82, 87 (1984)). Copies of some

transcripts were attached to the answering brief filed by selfrepresented Defendant-Appellee Miles J.K. Lopes, Sr., but we

cannot consider them because they are not part of the record on

appeal.4 We are able, however, to consider the district court's

minutes. See Rule 10(a) of the Hawai#i Rules of Appellate

Procedure (HRAP);5 Rule 4(f) of the Hawai#i Court Records Rules

(HCRR).6

The procedural history of this case — which we glean

from the district court's file and minutes — shows that Waltrip

filed a district court complaint against Lopes on February 4,

2016. The complaint alleged that Lopes owed $10,398 to Waltrip. 

Lopes appeared, self-represented, for the district court's

4 HRAP Rule 28 provides, in relevant part:

Rule 28. BRIEFS.

. . . .

(b) Opening brief. Within 40 days after the filing

of the record on appeal, the appellant shall file an opening

brief, containing the following sections in the order here

indicated:

. . . .

(10) An appendix. Anything that is not part of the

record shall not be appended to the brief, except as

provided in this Rule.

. . . .

(c) Answering brief. . . . The brief shall be of

like character as that required for an opening brief[.]

5 HRAP Rule 10 provides, in relevant part:

Rule 10. THE RECORD ON APPEAL.

(a) Composition of the record on appeal. The record on

appeal shall consist of the trial court . . . record, as set out

in Rule 4 of the Hawai#i Court Record Rules[.]

6 HCRR Rule 4 provides, in relevant part:

Rule 4. CONTENT OF COURT AND ADLRO RECORDS; INFORMATION

DISCREPANCY.

The record of each case . . . shall include:

(f) minutes[.]

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February 22, 2016 answer calendar and entered a denial. The

district court ordered the parties to mediate and set a status

conference for May 2, 2016.

The status conference was continued until May 9, 2016. 

At the conference the district court again ordered the parties to

mediate and set another status conference for November 7, 2016. 

On November 7, 2016, Lopes was not in the courtroom

when the case was called at 9:30 a.m. The district court entered

Lopes's default. Lopes appeared at 9:40 a.m., but Waltrip had

already left the courtroom. Lopes filed a motion to set aside

his default at 10:25 a.m. that day. The motion was set for

hearing on November 28, 2016. At 11:23 a.m. the same day,

Waltrip filed a motion for default judgment against Lopes.

The district court denied Waltrip's motion for default

judgment, granted Lopes's motion to set aside his default, and

issued a trial order. Trial was set for February 6, 2017.

On February 6, 2017, both parties appeared for trial. 

The minutes reflect that Waltrip requested a continuance to

attempt mediation, and Lopes requested a continuance to subpoena

documents. The district court continued the trial to July 10,

2017, "by agreement."

At trial on July 10, 2017, both parties testified and

the district court received Waltrip's exhibits 1-7 and Lopes's

exhibits A-E in evidence. Waltrip's Exhibit 1 was a copy of a

letter, allegedly from Lopes, acknowledging a debt to Waltrip of

$10,398, "that I have borrowed during the last three years." The

letter was dated February 8, 2010, and was allegedly signed by

Lopes.

Lopes's Exhibit A was Lopes's written response to

Waltrip's complaint. In it, Lopes denies signing Exhibit 1. 

After the district court heard the parties' testimony, trial was

continued to October 9, 2017 "for defense subpoenas . . . and

courts [sic] ruling[.]"

On July 26, 2017, Lopes filed a motion for discovery

from the Hawai#i Department of Labor and Industrial Relations

Appeals Board and Department of Human Services. The motion was

heard on August 21, 2017. At the hearing the district court

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agreed to review documents from the State of Hawai#i in camera;

the State was ordered to provide the documents by October 2,

2017.

The minutes for August 21, 2017, also indicate that

Waltrip made an oral motion for continuance, which was denied. 

Waltrip argues she asked for the continuance "to allow for a

handwriting expert to testify on her behalf." The minutes do not

reflect the reason for Waltrip's oral motion, or the reason for

the district court's denial of a continuance. Without a

transcript, we cannot review Waltrip's contention that the

district court erred by denying her motion for a continuance. 

The district court then set October 9, 2017, for the "continued

trial/courts [sic] ruling[.]"

Neither party appeared for the October 9, 2017

proceeding. The minutes state that the district court ordered

the "matter be dismissed with prejudice due to lack of evidence

and statutes [sic] of limitations." Waltrip filed a motion to

set aside the dismissal the same day.

Waltrip's motion to set aside the dismissal was heard

on October 23, 2017. The district court denied the motion. 

Waltrip showed new exhibits to the court, over Lopes's objection. 

The minutes reflect that the court held the new exhibits were not

relevant, and returned them to Waltrip. Waltrip contends this

was error, but we are unable to review the evidentiary ruling

because there is no transcript of the hearing and the record does

not otherwise reveal the nature of the exhibits or include the

basis for the district court's determination that they were not

relevant.

Waltrip's notice of appeal was filed on November 22,

2017. We temporarily remanded the case to the district court for

entry of a written order or judgment. The Final Decision and

Order was entered on October 15, 2018. The district court denied

Waltrip's motion to set aside the dismissal and ordered the case

dismissed with prejudice.

Waltrip's opening brief presents several arguments. 

She contends the district court erred by setting aside its entry

of Lopes's default after Lopes failed to appear at 9:30 a.m. on

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November 7, 2016, when the case was called. A trial court's

ruling on a motion to set aside a default is reviewed for abuse

of discretion. See County of Hawai#i v. Ala Loop Homeowners, 123

Hawai#i 391, 404, 235 P.3d 1103, 1116 (2010) (applying Rule 55 of

the Hawai#i Rules of Civil Procedure), abrogated on other grounds

by Tax Found. of Haw. v. State, 144 Hawai#i 175, 439 P.3d 127

(2019). An abuse of discretion occurs where the trial court

clearly exceeds the bounds of reason or disregards rules or

principles of law or practice to the substantial detriment of a

party litigant. Costales v. Rosete, 133 Hawai#i 453, 465, 331

P.3d 431, 443 (2014). Lopes appeared for the hearing at

9:40 a.m.; he was 10 minutes late. The record does not contain a

transcript of the hearing on Lopes's motion to set aside his

default. On this record we cannot say that the district court

abused its discretion by setting aside the entry of Lopes's

default.

Waltrip cites conflicts between her testimony and

evidence and the testimony and evidence offered by Lopes, arguing

that the district court should have believed her, not Lopes. 

However, "[a]n appellate court will not pass upon issues

dependent upon credibility of witnesses and the weight of the

evidence; this is the province of the trial judge." Amfac, Inc.

v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 117, 839 P.2d 10, 28

(1992) (cleaned up).

Waltrip argues that Lopes "made a series of untrue

inflammatory irrelevant comments whose sole purpose was to

inflame the judge and create a negative feeling towards me." 

Because the record contains no transcripts of proceedings, we are

unable to assess the merits of Waltrip's argument.

Waltrip's ultimate argument is that the district court

erred by finding that Lopes did not sign Exhibit 1 (the letter

allegedly acknowledging a debt to Waltrip) despite Lopes having

"stated under oath 'she made me sign it.'" Waltrip argues that

"despite this admission Judge Heely still ruled that he hadn't

signed it. This was farcical." Again, we have no basis to

confirm whether or not Lopes made the alleged admission because

Waltrip has not included a transcript of the trial proceedings in

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the record on appeal. Even if she had, we would not second-guess

the trial judge's assessment of the relative credibility of the

witnesses or the weight of the evidence.

For the foregoing reasons, the Final Decision and Order

entered on October 15, 2018, is affirmed.

DATED: Honolulu, Hawai#i, September 10, 2021.

On the briefs:

/s/ Katherine G. Leonard

Deborah J. Waltrip, Presiding Judge

Self-represented 

Plaintiff-Appellant. /s/ Keith K. Hiraoka

Associate Judge

Miles J.K. Lopes, Sr.,

Self-represented /s/ Clyde J. Wadsworth

Defendant-Appellee. Associate Judge

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