Almeida v. Almeida

• Decision Date: 09 September 1983
• Docket Number: No. 8651,8651
• Citation: 669 P.2d 174,4 Haw.App. 513
• Parties: Ludvina ALMEIDA, Plaintiff-Appellee, v. George Thomas ALMEIDA, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 174

669 P.2d 174

4 Haw.App. 513

Ludvina ALMEIDA, Plaintiff-Appellee, v. George Thomas ALMEIDA, Defendant-Appellant.

No. 8651.

Intermediate Court of Appeals of Hawai'i.

Sept. 9, 1983.

Syllabus by the Court

1. The rule regarding indispensable parties is founded on equitable considerations and is not jurisdictional. Even if an absent party is deemed needed for the just adjudication of a claim, a decision to dismiss must be based on the pragmatic "equity and good conscience" test of Rule 19(b), Hawaii Rules of Civil Procedure.

2. Where defendant delayed in making his motion to dismiss the complaint on the ground that plaintiff failed to join an indispensable party until the very morning of the trial and the absent party would not be adversely affected, the denial of the motion was not reversible error.

3. A gift is a voluntary transfer of property by one person to another without any consideration or compensation and its essential elements are donative intent, delivery, and acceptance.

4. The burden of proving an alleged gift is usually on the donee. However, in cases of close kinship between the donor and donee, there is a presumption that a gift was intended and the presumption must be rebutted by clear and convincing evidence.

5. An agreement to support a person is not uncertain because a court or jury can determine in each case what performance is reasonably necessary for support.

6. Generally, the statute of limitations does not begin to run on a contract until it is breached. In the absence of repudiation, the limitations period does not begin to run until the contract is to be performed.

7. In the absence of extraordinary circumstances, a court of equity will usually grant or withhold relief in analogy to the statute of limitations relating to law actions of like character.

8. Where the consideration for a deed is an agreement of support, the courts tend to be lenient toward the grantor, especially if the grantor is aged. The relief accorded such grantor may be rescission and cancellation of the deed or other equitable remedies.

9. The relief granted in equity is dictated by the equitable requirements of the situation and must be adapted to the facts and circumstances of the particular case.

Edward S. Kushi, Jr., Wailuku, (Law Offices of Lawrence N.C. Ing, Crockett & Nakamura, Wailuku, of counsel), for defendant-appellant.

Edward F. Mason, Wailuku (Mason and Scott, Wailuku, of counsel), for plaintiff-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

TANAKA, Judge.

Defendant George Thomas Almeida (George) appeals from the judgment divesting him of his interest in certain real property and vesting it in his joint tenant, plaintiff Ludvina Almeida (Mrs. Almeida). We affirm.

The action involves Lot 12-B, area 12,000 square feet, together with an undivided one-half interest in a roadway lot and two easements (the Property), located in Pukalani, Maui. Mrs. Almeida and her husband, Manuel Almeida (Mr. Almeida), acquired the Property in 1951. By deed dated December 26, 1961, Mr. and Mrs. Almeida conveyed the Property to their son George and his wife Mildred S. Almeida (Mildred). Upon the request of Mrs. Almeida, George and Mildred conveyed the Property to her by deed dated March 12, 1963.

Shortly after Mr. Almeida died in 1964, Mrs. Almeida built a house on the Property where she has since resided. By deed dated March 19, 1965, Mrs. Almeida conveyed the Property to herself and her son Harry Almeida (Harry), as joint tenants. By deed dated February 15, 1968 (1968 Deed), Mrs. Almeida and Harry conveyed the Property to Mrs. Almeida and George, as joint tenants.

On October 22, 1980, Mrs. Almeida filed a complaint alleging, inter alia, that (1) she and George agreed that upon his retirement from military service, George would return to Maui, reside with her, and care for her needs for the rest of her life and, in return, she would insure that he would become the owner of the Property upon her death; (2) she fulfilled her end of the promise by the execution of the 1968 Deed; and (3) George failed and refused to perform his part of the agreement. She sought a decree divesting George of all right, title and interest in the Property.

George counterclaimed alleging joint ownership of the Property and seeking partition.

After a bench trial, the trial court entered its findings of fact and conclusions of law on October 20, 1981 and its judgment on December 9, 1981. The judgment "divested" George of his "right, title and interest" in the Property, "vested" the same in Mrs. Almeida and dismissed George's counterclaim. George appeals.

The issues on appeal are whether the trial court erred (1) in denying George's motion to dismiss for want of an indispensable party, (2) in failing to find that the 1968 Deed effected a gift of a joint interest in the Property to George, (3) in finding an agreement by George to care for Mrs. Almeida, (4) in ruling against George's affirmative defenses of statute of limitations and laches, and (5) in decreeing divestiture of George's interest in the Property. We find no reversible error.

I.

On the morning of September 8, 1981, when the trial commenced, George filed a motion to dismiss the complaint. He contended, inter alia, that the complaint should be dismissed because, as a co-grantor in the 1968 Deed, Harry was an indispensable party to the suit. On the same morning, the trial court orally denied the motion. ¹

At the outset, we observe that Rule 19, Hawaii Rules of Civil Procedure (HRCP) (1981), ² regarding indispensable parties "is founded on equitable considerations, and is not jurisdictional." Midkiff v. Kobayashi, 54 Haw. 299, 324, 507 P.2d 724, 739 (1973). Even if an absentee is deemed needed for the just adjudication of a claim, a decision to dismiss must be based on the pragmatic "equity and good conscience" test of Rule 19(b), HRCP. Therefore, after the conclusion of a trial on the merits, there is reluctance on the part of an appellate court to overturn the trial court's decision as to indispensable parties, unless there is real prejudice to the absentee. 7 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1609 (1972).

We are aware of the pronouncement of our supreme court that the "[a]bsence of indispensable parties can be raised at any time even by a reviewing court on its own motion." Haiku Plantations Ass'n v. Lono, 56 Haw. 96, 103, 529 P.2d 1, 5 (1974) (quoting Filipino Federation of America v. Cubico, 46 Haw. 353, 369, 380 P.2d 488, 497 (1963)).

We are also cognizant of the fact that Rule 19, HRCP, was amended in 1972 to conform to Rule 19, Federal Rules of Civil Procedure, as revised in 1966. The Advisory Committee on the Federal Rules of Civil Procedure, in its Note on the 1966 Revision of Rule 19, quoted at 3A J. Moore & J. Lucas, Federal Practice p 19.01[5.-4] (2d ed. 1982), comments as follows:

[W]hen the moving party is seeking dismissal in order to protect himself against a later suit by the absent person ..., and is not seeking vacariously [sic] to protect the absent person against a prejudicial judgment ..., his undue delay in making the motion can properly be counted against him as a reason for denying the motion.

In National Board of YWCA v. YWCA of Charleston, S.C., 335 F.Supp. 615 (D.S.C.1971), defendant moved to dismiss the complaint on the ground that plaintiff failed to join an indispensable party. The court held that "defendant's delay in making its motion until the very morning of trial would warrant its denial because of laches." Id. at 627.

George's primary complaint is that the absence of Harry may subject George to "multiple suits and result in inconsistent judicial decisions imposing undue hardship" on him. Reply Brief at 5. Applying the above principles, we believe that it was fatal for George to have waited to file his motion until the day of trial when Mrs. Almeida was in court ready to proceed. Furthermore, it appeared unlikely that Harry would be adversely affected in a practical sense. A decision on the merits would not have been binding on him.

Consequently, we hold that the trial court's denial of George's motion to dismiss was not reversible error.

II.

"A 'gift' is generally defined as a voluntary transfer of property by one person to another without any consideration or compensation therefor." Welton v. Gallagher, 2 Haw.App. 242, 245, 630 P.2d 1077, 1081 (1982), aff'd, 65 Haw. 528, 654 P.2d 1349 (1982). To constitute a gift, the essential elements are (1) donative intent, (2) delivery, and (3) acceptance. Estate of Lalakea, 26 Haw. 243 (1922); 38 Am.Jur.2d Gifts §§ 17, 20, 34 (1968).

There is no dispute as to delivery and acceptance of the 1968 Deed in this case. The bone of contention is the element of donative intent.

Generally, the burden of proving an alleged gift is on the donee. Siko v. Seguirant, 51 Haw. 118, 452 P.2d 447 (1969); Welton v. Gallagher, supra. However, in cases of close kinship, there is a presumption that a gift was intended and the presumption must be rebutted by clear and convincing evidence. Ables v. Ables, 39 Haw. 598 (1952); Welton v. Gallagher, 2 Haw.App. at 245 n. 1, 630 P.2d at 1081.

Claiming that Mrs. Almeida failed by clear and convincing evidence to rebut the presumption that the 1968 Deed conveying a joint interest in the Property to him was a gift, George contends that the trial court erred in not finding a gift. On the other hand, Mrs. Almeida argues that the evidence was clear and convincing that the conveyance was in consideration of George's agreement to care for her after his retirement from military service; therefore, no gift was intended or involved.

Clear and convincing evidence means such evidence as will produce "in the mind of a reasonable person a firm belief as to the facts sought to be established." Welton v. Gallagher, 2 Haw.App. at 246, 630 P.2d at 1081. We do not believe that conflicting evidence per se precludes it from...