Abello v. Kopitke

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-APR-2025
09:06 AM
Dkt. 73 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MARIA ABELLO and TEANCUM, INC., Plaintiffs-Appellees, v.
KYLE K. KOPITKE, Defendant-Appellant; NATIONAL
KOREAN WAR MUSEUM, Defendant-Appellee;
and DOE DEFENDANTS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC101002183)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

Kyle K. Kopitke, representing himself, appeals from the
Judgment for Maria Abello and Teancum, Inc. and against Kopitke
and National Korean War Museum, entered by the Circuit Court of
the First Circuit on January 13, 2022.1 We affirm.
Abello and Teancum sued Kopitke and Museum on
October 13, 2010. The complaint alleged breach of contract,
conversion, misrepresentation, fraud, and defamation. Kopitke,
representing himself, filed a document titled Response to Summons
Answer to Complaint on March 22, 2011. It stated, "I Kyle
Kopitke deny the charges." Kopitke did not demand a jury trial.
On June 14, 2011, Kopitke filed another document titled Response
to Summons Answer to Complaint. It again denied "each and all
charges." It also alleged Kopitke "was the President of the

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The Honorable Gary W.B. Chang presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

[Museum's] Board of Trustees at the time listed in the complaint"
and the exhibit attached to Abello's complaint "is not the
contract I signed." Kopitke did not demand a jury trial.
On December 6, 2011, the circuit court entered an order
precluding Kopitke from representing Museum and entering Museum's
default under Hawai#i Rules of Civil Procedure (HRCP) Rule 55(a).
The record contains no appearance of counsel for Museum.
A jury-waived trial was held on October 2 and 3, 2012.
Kopitke did not attend the trial. Counsel for Abello and Teancum
was to submit proposed findings of fact and conclusions of law.
The proposed findings and conclusions were filed nine years
later, on October 2, 2021. The circuit court entered findings of
fact, conclusions of law, and an order for entry of judgment on
November 12, 2021. The Judgment was entered on January 13, 2022.
This appeal followed.
Kopitke's opening brief does not comply with Hawai#i
Rules of Appellate Procedure (HRAP) Rule 28(b). But to promote
access to justice, we liberally interpret pleadings prepared by
self-represented litigants and do not automatically foreclose
them from appellate review because they violate court rules.
Erum v. Llego, 147 Hawai#i 368, 380-81, 465 P.3d 815, 827-28
(2020). Consistent with the supreme court's policy to reach the
merits of an appeal, Hous. Fin. & Dev. Corp. v. Ferguson, 91
Hawai#i 81, 85–86, 97 P.2d 1107, 1111–12 (1999), we address what
we ascertain to be Kopitke's arguments.
(1) Kopitke argues he "was not afforded a right to
jury trial." He filed a 17-page document in circuit court on
August 3, 2012. It included a Motion for Jury Trial. By minute
order of August 24, 2012, the court denied the motion. A copy of
the minute order was mailed to Kopitke. A written order denying
the motion was entered on January 2, 2013. We review for abuse
of discretion. Lii v. Sida of Hawaii, Inc., 53 Haw. 353, 355,
493 P.2d 1032, 1034 (1972).

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Kopitke's motion stated, "I never waved [sic] my right
to a jury trial, in fact I would like one. I reassert my right
to a jury trial granted under the Constitution." HRCP Rule 38
allows a party to request a jury trial by serving a demand for
one "not later than 10 days after the service of the last
pleading directed to such issue," and says a party's failure to
serve and file a demand for jury trial "constitutes a waiver by
the party of trial by jury." The last pleading directed to a
jury trial was Kopitke's June 14, 2011 answer. The deadline for
him to demand a jury trial was June 24, 2011. He waived his
right to a jury trial because he did not file or serve a demand
by that date. See Lii, 53 Haw. at 355, 493 P.2d at 1034. The
circuit court acted within its discretion by denying the motion.
(2) Kopitke argues he "was not allowed to appear via
zoom or telephone which prevented [him] the right to introduce
evidence, and cross examine witnesses." We initially note that
even if the Zoom video conference service existed in October
2012, it wasn't used by the Hawai#i Judiciary.
Kopitke's August 3, 2012 filing included a Motion to
Appear by Telephone During Trial. It stated, "Due to health
issues I am unable to travel to Hawaii." The circuit court
denied the motion in its August 24, 2012 minute order, which was
mailed to Kopitke. A written order denying the motion was
entered on January 2, 2013. We review for abuse of discretion.
Tamman v. Tamman, No. CAAP–13–0000109, 2015 WL 9594740, at *4
(Haw. App. Dec. 31, 2015) (mem. op.).
The circuit court's order stated, "In light of the
contentious issues of fact in this case, it would be extremely
disruptive and inefficient for a party to conduct a trial by
telephone." The court had inherent power to control the
litigation process. See Tamman, 2015 WL 9594740, at *4 (noting
"the Family Court properly exercised its inherent power to
control the litigation process and promote a fair process by
requiring [defendant] to appear in person for trial.").
Moreover, Kopitke offered no evidence showing what "health

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issues" prevented him from traveling to Hawai#i for the trial.
He offered no other reason supporting his motion. On this
record, the circuit court acted within its discretion by denying
the motion.
(3) Kopitke argues, "the Contract between the parties
was forged by [Abello]. [Kopitke] submitted to the court clear
and convincing data showing the contract was forged by [Abello].
. . . [The trial judge] errored [sic] in not accepting evidence
that the Contract between the parties was forged by [Abello]."
Kopitke's brief does not cite to the record where the data or
evidence on which he relies can be found. We are not obligated
to search the record for information that should have been
provided by Kopitke. Haw. Ventures, LLC v. Otaka, Inc., 114
Hawai#i 438, 480, 164 P.3d 696, 738 (2007) (citing Lanai Co.,
Inc. v. Land Use Comm'n, 105 Hawai#i 296, 309 n.31, 97 P.3d 372,
385 n.31 (2004) (explaining that an appellate court "is not
obligated to sift through the voluminous record to verify an
appellant's inadequately documented contentions"). We note that
Kopitke did not offer the evidence during trial, because he did
not attend the trial.
We also note that on September 29, 2015 — almost three
years after the trial — Kopitke filed a Motion to Dismiss;
Contract Fraud. Attached to the motion were three versions of
the contract, all dated May 1, 2003, and all notarized on
June 27, 2003, by the same notary public.2 The circuit court
denied the motion by order entered on January 12, 2016. It
ruled:

Defendant Kopitke does not deny that he signed the contract.
The differences between the three forms of the contract are
all as to the form of the contracts and not as to their
substance. In substance, all three versions of the
contracts are identical. Therefore, the alleged fraud is

2
Kopitke argued there was no notary seal on one version, but the
handwritten notation "LS" appears on each document. The letters LS stand for
the Latin phrase locus sigilli, which means "the place of or for the seal –>
abbreviation L.S." Merriam-Webster.com Dictionary, https://merriam-
webster.com/dictionary/locus%20sigilli (last visited Apr. 17, 2025).

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immaterial because no version of the contract alters or
changes the substance of any of the terms and conditions of
the contract, or any of them.

The circuit court's finding that the different versions
of the contract were substantively identical was neither clearly
erroneous nor wrong. Kopitke cites no legal authority supporting
his claim of fraud, nor did he specify whether he was arguing
fraudulent inducement, constructive fraud, fraud in the factum,
civil fraud, or some other fraud. We conclude the circuit court
did not err by denying Kopitke's motion.
(4) Kopitke argues Abello's attorney "did not discuss
filing judgment or findings of fact with [Abello]. Overstepped
authority." He claims the circuit court "errored [sic] by not
investigating that [Abello's] attorney did not discuss filing
judgment or findings of fact with [Abello]." Kopitke did not
raise this argument below. It is waived. Haw. Ventures, LLC,
114 Hawai#i at 500–01, 164 P.3d at 758–59. Even if it weren't,
Kopitke makes no factual or legal argument to support his
contention. HRAP Rule 28(b)(7) ("Points not argued may be deemed
waived.").
(5) Kopitke argues "the Judge accepted all of the
Findings of Fact put forth by [Abello's] attorney even though
they were false." We review findings of fact for clear error.
Est. of Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152
P.3d 504, 523 (2007). Kopitke's brief doesn't quote the findings
he claims are false or reference them in an appendix, as required
by HRAP Rule 28(b)(4)(C). Nor does his brief explain what
findings were false, or why. And Kopitke did not order the trial
transcript for the record on appeal. "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) (brackets omitted). Without
the trial transcript, we have no basis to conclude that any of

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the circuit court's findings of fact were clearly erroneous.
This point is waived. HRAP Rule 28(b)(7).
(6) Kopitke argues he "was acting as Chairman of the
Board of Trustees and should have not been sued individually
along with the museum. The standard is not to sue the Chairman
of the Board." Kopitke's brief contains no factual or legal
support for his argument. His point is waived.
(7) Kopitke argues Abello "was in violation of
Rule 25; case should have been dismissed." Kopitke seems to
refer to HRAP Rule 25(f), which requires that a self-represented
litigant file a notice of any change in mailing address,
telephone number, or electronic mail address and, if a registered
Judiciary Electronic Filing System (JEFS) User, update his or her
JEFS User account information, within 10 days of the change.
HRAP Rule 25 does not apply to the circuit courts.
Abello's attorney moved to withdraw from representing
her in this appeal on June 18, 2022. The motion provided
Abello's last known mailing and email addresses and telephone
number, as required by HRAP Rule 50(a). We granted the motion.
A self-represented Abello filed her answering brief on July 28,
2022.3 The answering brief shows Abello's mailing and email
addresses and telephone number. Kopitke has the information
necessary to communicate with Abello about this appeal and to
conventionally serve her with his reply brief, had he filed one.
"The law is clear in this jurisdiction that the
appellant has the burden of furnishing the appellate court with a
sufficient record to positively show the alleged error."
Bettencourt, 80 Hawai#i at 230, 909 P.2d at 558. Kopitke has not
furnished a sufficient record, nor has he shown any error. The

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Abello also filed the answering brief on behalf of Teancum.
Abello is not an attorney, and cannot represent Teancum. Oahu Plumbing &
Sheet Metal, Ltd. v. Kona Constr., Inc., 60 Haw. 372, 374, 590 P.2d 570, 572
(1979) ("[A] corporation cannot appear and represent itself either in proper
person or by its officers, but can do so only by an attorney admitted to
practice law."). We disregard the brief with respect to Teancum, and treat it
as being in default of its answering brief.

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Judgment entered by the circuit court on January 13, 2022, is
affirmed.
DATED: Honolulu, Hawai#i, April 21, 2025.

On the briefs:
/s/ Katherine G. Leonard
Kyle Kenley Kopitke, Acting Chief Judge
Self-represented
Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Maria Abello,
Self-represented /s/ Sonja M.P. McCullen
Plaintiff-Appellee, Associate Judge
and Teancum, Inc.,
Plaintiff-Appellee.

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