Nowicki v. GMP Associates7/28/2005
NOT FOR PUBLICATION
ORDER DISMISSING APPEAL
By: Lim, Acting C.J., Foley and Fujise, JJ.
In this workers' compensation case, Claimant Jacek Nowicki (Claimant) appeals, pro se, the July 14, 2003 decision and order of the Labor and Industrial Relations Appeals Board (the Board) that granted a June 20, 2003 motion to dismiss filed by Employer-Appellee GMP Associates, Inc. and Insurance Carrier-Appellee Travelers Insurance Company (collectively, Employer). The motion sought dismissal of Claimant's appeal to the Board because Claimant had failed and refused to execute valid authorizations for release of his medical records, despite Employer's repeated requests and several successive Board orders that he do so. Claimant had appealed to the Board from the December 5, 2000 decision of the Director of Labor and Industrial Relations that denied Claimant's workers' compensation claims for psychological stress injuries arising on April 18, 1994 (Case No. 29804855) and September 13, 1995 (Case No. 29711102).
After a painstaking review of the record and the briefs submitted by the parties, including repeated readings of Claimant's opening brief, we dismiss Claimant's appeal, because
(1) Claimant's opening brief does not conform in any manner or particular to any of the provisions of Hawaii Rules of Appellate Procedure (HRAP) Rule 28 (2004), HRAP Rule 30 (2004) (where "the brief of an appellant is . . . not in conformity with these rules, the appeal may be dismissed or the brief stricken and monetary or other sanctions may be levied by the appellate court"); HRAP Rule 28(b)(4) (points of error "not presented in accordance with this section will be disregarded, except that the appellate court, at its option, may notice a plain error not presented"); HRAP Rule 28(b)(7) (points "not argued may be deemed waived"); Housing Fin. and Dev. Corp. v. Ferguson, 91 Hawaii 81, 85, 979 P.2d 1107, 1111 (1999) (appellant's "failure to conform his brief to the requirements of HRAP Rule 28(b) burdens both the parties compelled to respond to the brief and the appellate court attempting to render an informed judgment. . . . uch noncompliance offers sufficient grounds for the dismissal of the appeal" (citation omitted)); Schefke v. Reliable Collection Agency, Ltd., 96 Hawaii 408, 420, 32 P.3d 52, 64 (2001); Bettencourt v. Bettencourt, 80 Hawaii 225, 228, 909 P.2d 553, 556 (1995) ("appellant's brief in almost no respect conforms to the requirements of [HRAP] Rule 28(b), which we have held is, alone, sufficient basis to affirm the judgment of the circuit court" (citation omitted)); Weinberg v. Mauch, 78 Hawaii 40, 49, 890 P.2d 277, 286 (1995); O'Connor v. Diocese of Honolulu, 77 Hawaii 383, 385, 885 P.2d 361, 363 (1994); In re Miller and Lieb Water Co., Inc., 65 Haw. 310, 310-11, 651 P.2d 486, 487-88 (1982) (per curiam) (dismissal of appeal warranted for appellant's failure to conform opening brief to the requirements of the predecessor to HRAP Rule 28(b)(4), Supreme Court Rule 3(b)(5)); Alamida v. Wilson, 53 Haw. 398, 405, 495 P.2d 585, 590 (1972) (failure to conform appellate brief to Supreme Court Rule 3(b)(5) on a point of error warrants dismissal of point of error on appeal); Ala Moana Boat Owners' Ass'n v. State, 50 Haw. 156, 157-59, 434 P.2d 516, 517-18 (1967);
(2) Claimant has failed to include in the record on appeal transcripts of pertinent hearings before the Board, including the transcript of the July 10, 2003 hearing which gave rise to the July 14, 2003 decision and order of the Board that Claimant here appeals, HRAP Rule 10(a)(4) (2004), ("record on appeal shall consist of . . . . the transcripts prepared for the record on appeal"); HRAP Rule 10(b)(1)(A) (2004)
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