NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-JUN-2023
07:54 AM
Dkt. 55 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
MELEANA L. SMITH, Petitioner-Appellee,
v.
MARIAM WAHBAA, Respondent-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH AND SOUTH KONA DIVISION
(CIVIL NO. 3DSS-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Self-represented Defendant-Appellant Mariam Wahbaa
(Wahbaa) appeals from the September 8, 2021 Order Granting
Petition for Injunction Against Harassment (Order Granting
Petition for Injunction), filed and entered by the District
Court of the Third Circuit, Ka‘u Division (District Court).1
In what appears to be an Opening Brief, entitled
"Restraining Order Appeal," Wahbaa argues, among other things,
that she did not "get a chance to speak to defend [her]self."
1 The Honorable Kimberly B. Taniyama presided.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Wahbaa's Opening Brief does not comply with Hawai‘i Rules of
Appellate Procedure (HRAP) Rule 28. There are no points of
error, no record references, and no transcript of the September
8, 2021 hearing at which the Order Granting Petition for
Injunction was issued.
Despite non-compliance with the HRAP, we endeavor to
afford "litigants the opportunity to have their cases heard on
the merits, where possible." Marvin v. Pflueger, 127 Hawai‘i
490, 496, 280 P.3d 88, 94 (2012) (cleaned up). To promote
access to justice, we interpret pleadings prepared by self-represented litigants liberally and attempt to afford them
appellate review even though they fail to comply with court
rules. See Erum v. LLego, 147 Hawai‘i 368, 380-81,
465 P.3d 815,
827-28 (2020). Accordingly, we consider Wahbaa's arguments to
the extent we can discern them.
Upon careful review of the record and the brief
submitted by Wahbaa,2 and having given due consideration to the
arguments advanced and the issue raised, we affirm.
The procedural history of this case, which we glean
from the District Court's file and minutes, shows that on June
29, 2021, Smith filed a Petition for Ex Parte Temporary
Restraining Order (TRO) and for Injunction Against Harassment
(Petition for Injunction) against Wahbaa. The District Court
issued the TRO.
On July 13, 2021, there was a hearing with both Smith
and Wahbaa present, and the District Court scheduled an
evidentiary hearing on the Petition for Injunction on September
8, 2021 at 10:00 a.m.
2 Plaintiff-Appellee Meleana L. Smith (Smith) did not submit an
Answering Brief.
2
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At the September 8, 2021 hearing, for which no
transcript is provided,3 the minutes reflect a time of "1002" or
10:02 a.m., and state:
Petitioner [Smith] present. Absence of Respondent
[Wahbaa]. Arabic interpreter . . ., present by remote
appearance for respondent [Wahbaa]. Three calls made for
Respondent [Wahbaa], respondent [Wahbaa] is not present.
Interpreter released. Court granted injunction for three
years.
A Return of Service filed on the same date states: "[Wahbaa]
walked into the courtroom at 10:08 a.m. after case had already
been heard. [Wahbaa] handed a copy of order during recess."
The Return of Service shows that Wahbaa was served in open court
at 10:14 a.m.
On September 22, 2021, Wahbaa timely appealed, and her
Notice of Appeal states:
Notice of Appeal
I [sic] Mariam Wahbaa, is writing [sic] this notice to
appeal to inform the court that I would like to appeal the
restraining order judgement held against me.[sic] On
September 8th, 2021 at 10:00 AM I had a court date and the
case number is 3DSS-21-00525 and was at the court at 10:00
AM and got in the court room at 10:04 AM. I was present and
the judge did not call on me to defend myself and dismissed
my case. Out of respect I waited there for her to call on
me but she didn't and just left the court room. I would
like to appeal this decision because I believe I did not
have a fair trial. I also had a flight on the same date
and had to postpone my flight because of this.
(Emphases added). Wahbaa's Opening Brief states that she did
not "get a chance to speak" and essentially presents her factual
account and opinion about the circumstances concerning herself
and Smith surrounding the Petition for Injunction. Wahbaa's
3 Wahbaa did not request transcripts of the September 8, 2021
evidentiary hearing as required by HRAP Rule 10. See HRAP Rule 10(a)(1)(A)
(requiring a transcript request "[w]hen an appellant desires to raise any
point on appeal that requires consideration of the oral proceedings before
the court appealed from . . . .").
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account and opinion are not part of the record. The remainder
of Wahbaa's brief discusses an issue that has no discernible
relevance to this appeal.
We do not have a record of what transpired at the
September 8, 2021 hearing. "The burden is upon appellant in an
appeal to show error by reference to matters in the record, and
he [or she] has the responsibility of providing an adequate
transcript." Bettencourt v. Bettencourt, 80 Hawai‘i 225, 230,
909 P.2d 553, 558 (1995) (alteration in original) (citation and
internal quotation marks omitted). An appellate court will not
presume error from a silent record. In re Camacho, 140 Hawai‘i
404, 413,
400 P.3d 605, 614 (App. 2017) (citing State v. Hoang,
93 Hawai‘i 333, 336,
3 P.3d 499, 502 (2000)).
Here, it appears that the District Court started the
hearing at 10:02 a.m., with Smith and the Arabic interpreter for
Wahbaa present. When Wahbaa failed to appear, the District
Court made three calls, to which Wahbaa did not respond;
dismissed the interpreter; and granted Smith's Petition for
Injunction. The Return of Service states Wahbaa entered the
courtroom at 10:08 a.m., but Wahbaa claims appearing in the
courtroom at 10:04 a.m. While Wahbaa's time of arrival is
contested, it is not disputed that Wahbaa was late. The
District Court cannot be faulted for conducting the 10:00 a.m.
hearing at 10:02 a.m. See Waltrip v. Lopes, No. CAAP-17-
0000846, 2021 WL 4129784, at *3 (App. Sept. 10, 2021) (SDO)
("[Defendant] 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 [defendant]'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 [defendant]'s
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default."); Yoshimi Hata v. Muñoz, No. 28291, 2008 WL 4151817,
at *3 (App. Sept. 10, 2008) (SDO) (holding that the district
court could not be faulted for conducting a hearing as scheduled
when defendants appeared over twenty-five minutes late at a
hearing due to their failure to properly request accommodations
and not contacting the court).
Without a transcript, there is no basis upon which to
review Wahbaa's claims regarding the District Court not calling
Wahbaa or not allowing Wahbaa to speak at the hearing. See
Bettencourt, 80 Hawai‘i at 230, 909 P.2d at 558. On this record,
we cannot say that the District Court erred in proceeding with
the hearing and granting the Petition for Injunction. See
Waltrip,
2021 WL 4129784, at *3; Yoshimi Hata,
2008 WL 4151817,
at *3.
For the foregoing reasons, we affirm the September 8,
2021 Order Granting Petition for Injunction Against Harassment,
filed and entered by the District Court of the Third Circuit,
Ka‘u Division.
DATED: Honolulu, Hawai‘i, June 23, 2023.
On the briefs:
/s/ Keith K. Hiraoka
Mariam Wahbaa, Presiding Judge
Self-Represented Respondent-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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