2008-10-06_Chris Yuen_v_Board_of_Appeals_and_Edmund_Jin_and_Eva_Lu_-_Answering brief-Civil_No_07-1-261K

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(citations and internal quotation marks omitted); Orso v. City and County of Honolulu, 55 Haw. 37, 38, 514 P.2d 859, 860 (1973) ("[m]atters not appearing in the record will not be considered by the court of appeals") (citations omitted). In addition, Appellants Jin and Lu rely on evidence that is not in the record to support their argument. An appellate court "can only consider those materials in the record that were considered by the trial court in its determination" of the matter. Munoz v. Yuen, 66 Haw. 603, 606, 670 P.2d 825, 827 (1983). See also Orso, 55 Haw. at 38, 514 P.2d at 860 ("we must review the circuit court judgment upon the evidence contained in the record, not upon matters outside of the record which were improperly presented to this court"); Sanders v. Point After, Inc., 2 Haw.App. 65, 73, 626 P.2d 193, 199 (1981) ("[t]his court cannot consider matters that are not a part of the record") (citations omitted). Therefore, the Court should not consider Appellants Jin and Lu's argument that"reliable data was not and could not be obtained from a single rainfall gauge and isohyet line." C. The Circuit Court Did Not Err When It Concluded That Appellants An and Lu's Property Does Not Receive Sixty Inches Or More Rainfall Annually Appellants Jin and Lu's argument that their property receives sixty inches or more rainfall annually is unsupported by the evidence in the record. Based on the whole record,the Circuit Court concluded the following: COL No. 4 states in part: 4. There is no evidence in the record that Jin and Lu's property receives an average annual rainfall of not less than sixty inches as required by Rule 22. (R:CV07-1-261K Doc. 021 at 908.) COL No. 6. states: Based on the foregoing, Jin and Lu failed to meet their burden of proof, including the burden of producing evidence as well as the burden of persuasion pursuant to HRS § 91-10(5),to affirmatively show that the Director's decision was arbitrary, capricious, an abuse of discretion, and/or violated law. 26