Ottensmeyer v. Baskin

• Decision Date: 02 April 1981
• Docket Number: No. 6941,6941
• Citation: 2 Haw.App. 86,625 P.2d 1069
• Parties: Joan Marie OTTENSMEYER, Plaintiff-Appellant, v. Leonard BASKIN, John Robert Powers School of Hawaii, Inc., Defendants, and Richard You and Miss Universe, Inc., Defendants-Appellees.
• Court: Hawaii Court of Appeals

Page 1069

625 P.2d 1069

2 Haw.App. 86

Joan Marie OTTENSMEYER, Plaintiff-Appellant, v. Leonard BASKIN, John Robert Powers School of Hawaii, Inc., Defendants and Richard You and Miss Universe, Inc., Defendants-Appellees.

No. 6941.

Intermediate Court of Appeals of Hawai'i.

April 2, 1981.

Syllabus by the Court

1. On review of an order granting summary judgment, the court must consider the whole record including the depositions and other materials in determining whether there exists a genuine issue of material fact even though appellant may not have followed the rules below in calling those matters to the attention of the court below.

2. Where the record was sufficient to raise a genuine issue of material fact as to whether one of the parties was another's actual or apparent agent and where the claimed liability of the second party is based upon agency, summary judgment was improperly granted.

Fred W. Rohlfing, Honolulu (Rohlfing, Robertson & Smith, Honolulu, of counsel), for plaintiff-appellant.

Edward Y. N. Kim, Honolulu (Blake T. Okimoto, Honolulu, on the brief), for defendant-appellee Richard You.

Carl Tom, Honolulu (Michael M. Doran, Honolulu, on the brief, Damon, Key, Char & Bocken, Honolulu, of counsel), for defendant-appellee Miss Universe, Inc.

Before HAYASHI, C. J., and PADGETT and BURNS, JJ.

PADGETT, Judge.

This is an appeal from a judgment in favor of the defendants below. Summary judgments had been granted first to Appellee Miss Universe, Inc. and later to Appellee Dr. Richard You. Appellant, of course, contends that there were sufficient genuine issues of material fact raised by the record so as to defeat the summary judgments. We agree.

With respect to Appellee Miss Universe, Inc., it is apparent from the record that there is no genuine issue of material fact as to whether it did anything itself which would give rise to a claim for relief against it by appellant. Appellee Miss Universe, Inc.'s only exposure, therefore, is one of vicarious liability based upon Appellee Dr. You's being either its actual or apparent agent who, in some way, wronged the appellant. We therefore first consider whether summary judgment was properly granted in favor of Appellee Dr. You although that order, in fact, was the second summary judgment order entered.

Appellant was a contestant for the title of Miss Hawaii-U.S.A. 1974. The Hawaii pageant was put on by Appellee Dr. You as a franchisee of Appellee Miss Universe, Inc. The winner could receive certain emoluments and would be a contestant for the title Miss U.S.A. 1974 at the Niagara Falls, New York, pageant. In the 1974 Hawaii pageant, the declared winner was one Agnes Lum who, however, was ineligible for the title by reason of her age. It is contended that Appellee Dr. You knew this in advance of the pageant and that after the pageant he took active steps to prevent appellant, who was first runner-up, from being declared Miss Hawaii-U.S.A. 1974, deprived her of the publicity she should have received and the rewards she anticipated as flowing therefrom as well as some of the emoluments which she claims she should have received.

A number of depositions were taken and it is apparent from an examination of the whole record, considering the depositions and answers to interrogatories, that the assertions made in Dr. You's affidavit in support of his motion for summary judgment were contested in material respects. For example, the deposition of Camille Deubel indicated that the fact of Lum's age and ineligibility was brought up at a meeting attended by Dr. You before the contest took place.

It is also apparent from the transcript of the hearing that the judge below in granting the motion and later denying reconsideration of his order felt it incumbent upon the appellant to file affidavits in opposition to Dr. You's affidavit. A literal reading of Rule 56(e), Hawaii Rules of Civil Procedure (HRCP), could be interpreted to support the court's position. Thus, that rule provides in part:

The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

The record in this case makes it clear that appellant's only response to the motion was an oral one by her counsel at the hearing on the motion where he claimed that a deposition established that there was evidence that Dr. You knew of Agnes Lum's age problem prior to the contest.

Rule 7(b) of ...