The consideration of an appeal is made "basically upon the record certified to [the appellate court by the lower court]." McAulton v. Smart, 54 Haw. 488, 492, 510 P.2d 93, 96 (1973). Putting it another way, a review must be based "upon the evidence contained in the record, not upon matters outside of the record[.
The Sixth Circuit followed the same theory in Management Investors v. United Mine Workers of America, supra. The position adopted by the Sixth Circuit as an interpretation of Lasater is the more widely accepted view, as the cases cited above indicate, though a minority of courts have permitted Chapter X bankrupts to assert sufficient title to bring suit against third parties on unlisted claims, at least until creditors petition the bankruptcy court to reopen and a trustee is appointed. See, e.g., Heywood-Wakefield Co. v. Small, 96 F.2d 496, 500-01 (1st Cir. 1938) (suit for patent infringement); Mills Novelty Co. v. Monarch Tool Mfg. Co., 49 F.2d 28 (6th Cir.), cert. denied, 284 U.S. 662, 52 S.Ct. 37, 76 L.Ed. 561 (1931) (same); Loose v. Brubacher, 219 Kan. 727, 549 P.2d 991 (1976) (interest in land); McAulton v. Smart, 54 Haw. 488, 510 P.2d 93 (1973) (same); People v. Cole Check Service, Inc., 175 Cal.App.2d 777, 346 P.2d 838 (Dist.Ct.App. 1959). In the present case we are faced with a bankrupt's claim to a cause of action not listed in a Chapter XI bankruptcy. Chapter XI proceedings, in which the debtor remains in possession, present a stronger case for preventing bankrupts from asserting title to unlisted assets than in Chapter X cases such as Lasater and Scharmer.
However, appellate courts have discretion to take judicial notice in the interests of justice: "Where the equity of the situation dictates, we will use our discretion to take judicial notice of matters of which courts may properly take judicial notice but which are not part of the record on appeal." Eli v. State, 63 Haw. 474, 478, 630 P.2d 113, 116 (1981) (citing McAulton v. Smart, 54 Haw. 488, 510 P.2d 93 (1973) ) (taking judicial notice of court files); see also Gao v. State, Dep't of Attorney Gen., 137 Hawaiโi 450, 459 n.6, 375 P.3d 229, 238 n.6 (2016) (taking judicial notice of publicly available manual where appellant had been pro se until pro bono counsel was appointed). As noted above, there may be an exception with respect to court records in a related proceeding.
"In considering any appeal, we do so . . . upon the record certified to this court by the circuit court." McAulton v. Smart, 54 Haw. 488, 492, 510 P.2d 93, 96 (1973) (emphasis added). The "record" includes the HPA's motion for judgment on the pleadings and Barnett's opposition to that motion. It is indefensible to affirm the court's June 22, 2000 order granting HPA's motion for judgment on the pleadings without reviewing the merits of the appeal when Barnett has appealed from the order.
This court has never directly considered whether a trial court may take judicial notice of the "records and files" in the case before it pursuant to HRE Rule 201, although it has indicated that a trial court may take judicial notice of "the pleadings, findings of fact and conclusions of law" filed in a separate court proceeding.See Fujii v. Osborne, 67 Haw. 322, 329, 687 P.2d 1333, 1338-39 (1984) (citing Lalakea v. Baker, 43 Haw. 321 (1959);McAulton v. Smart, 54 Haw. 488, 510 P.2d 93 (1973)). See also State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985) ("This court has validated the practice of taking judicial notice of a court's own records in an interrelated proceeding where the parties are the same."
See Fujii v. Osborne, No. 8898 decided August 27, 1984. It, of course, could not take judicial notice of other matters in the files of the preceding civil case nor of the files in the bankruptcy case. Lalakea v. Baker, 43 Haw. 321 (1959); McAulton v. Smart, 58 Haw. 488, 510 P.2d 93 (1973). Only limited matters from those two files were placed, by certified exhibits, before the circuit court on the motion for summary judgment.
The order obviously was ambiguous and required construction. Appellee did not request the court in Civil No. 69007 to take judicial notice of the pleadings, findings of fact and conclusions of law, and orders in Civil No. 46782, as it could have, pursuant to Rule 201, HRE. See Lalakea v. Baker, 43 Haw. 321 (1959); McAulton v. Smart, 54 Haw. 488, 510 P.2d 93 (1973). If the court below had exercised its discretion to judicially notice those documents under Rule 201(b), HRE, it would have been required to give the parties some indication of that action, so that they could exercise their right to be heard on the judicial notice matter under Rule 201(e), HRE.
Ordinarily, matters not presented to the trial court may not be considered by the appellate court on appeal. Orso v. City and County, 55 Haw. 37, 514 P.2d 859 (1973). Where the equity of the situation dictates, we will use our discretion to take judicial notice of matters of which courts may properly take judicial notice but which are not part of the record on appeal. See McAulton v. Smart, 54 Haw. 488, 510 P.2d 93 (1973). It has been held that an appellate court may, in its discretion, take judicial notice of the files or records of a case on appeal. State ex rel. Hernandez v. McConahey, 42 Wis.2d 468, 167 N.W.2d 412 (1969).
No evidence was presented in the lower court regarding this issue and no cases in point are provided by the parties in their briefs on appeal. The failure of a bankrupt to list a claim of an interest in land in his bankruptcy schedule does not necessarily estop him from asserting the claim after his discharge, particularly where the omission was not due to intent to conceal or other fraudulent motive. ( McAulton v. Smart, 54 Haw. 488, 510 P.2d 93; 9 Am.Jur.2d, Bankruptcy, ยง 860, p. 642.) Accordingly we reverse the order granting summary judgment and remand the case for further proceedings in accordance with the views expressed herein.
" Steadman, The Statutory Elements of Hawaii's Adverse Possession Law, 14 HBJ 67, 73-74 (1978). See McAulton v. Smart, 54 Haw. 488, 510 P.2d 93 (1973). Accordingly, we hold that the trial court was clearly erroneous in concluding that appellees acquired absolute fee title to the property by adverse possession against appellants.