Au v. Au

• Decision Date: 06 March 1981
• Docket Number: No. 6706,6706
• Citation: 626 P.2d 173,63 Haw. 210
• Parties: , 63 Haw. 263 Belinda AU, Plaintiff-Appellant, v. Gordon S. K. AU and Herbert Hu, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 173

626 P.2d 173

63 Haw. 210, 63 Haw. 263

Belinda AU, Plaintiff-Appellant, v. Gordon S. K. AU and Herbert Hu, Defendants-Appellees.

No. 6706.

Supreme Court of Hawai'i.

March 6, 1981.

On Motion for Partial Reconsideration March 23, 1981.

Syllabus by the Court

1. When the court considers matters outside the pleadings, the motion to dismiss becomes one for summary judgment.

2. A party making or opposing a motion for summary judgment may only rely on facts which are before the court as provided in Rule 56, H.R.C.P.

3. Matters outside the pleadings which can be considered by the court in a summary judgment proceeding include depositions, answers to interrogatories, admissions on file and affidavits. H.R.C.P., Rule 56(c).

4. Unverified statements of fact in counsel's memoranda or representations made in oral argument are not properly before the court on a motion for summary judgment.

5. On a motion to dismiss, our consideration must be strictly limited to the allegations of the complaint and the motion addressed thereto.

6. Where two or more causes of action arise from a single transaction, different statutes of limitations are applicable to the separate claims.

7. The proper standard to determine the relevant limitations period is the nature of the claim or right, not the form of the pleading. The nature of the claim or right is determined from the allegations contained in the pleadings.

8. An owner is responsible for the representations of his agent made within the scope of his agent's selling authority.

9. Applicable limitation period in fraudulent representations is HRS § 657-1(4) which prescribes a six-year limitations period for "(p)ersonal actions of any nature whatsoever not specifically covered by the laws of the State."

10. Applicable limitation period in negligent representation is HRS § 657-1(4) which prescribes a six-year limitations period for "(p)ersonal actions of any nature whatsoever not specifically covered by the laws of the State."

11. Representations made to a prospective purchaser by vendor concerning the condition of a dwelling is an express warranty.

12. Applicable limitation period for breach of contract warranty is HRS § 657-1(1) which prescribes a six-year limitations period for "(a)ctions for the recovery of any debt founded upon any contract, obligation or liability."

13. Pleadings should be construed liberally and not technically.

14. A complaint may be dismissed for failure to state a claim when it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief.

George Kimura, Honolulu (Leslie Togioka, Honolulu, with him on briefs), for plaintiff-appellant.

Reuben S. F. Wong, Honolulu (Robert K. Matsumoto, Honolulu, with him on brief), for defendants-appellees.

Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

OGATA, Justice.

The instant appeal concerns the application of the proper statute of limitations by the trial court to a five-count complaint brought by plaintiff-appellant Belinda Au (hereinafter appellant) against defendant-appellee Gordon Au, the owner of the home (hereinafter appellee Au), and defendant-appellee Herbert Hu, the salesperson (hereinafter appellee Hu), for damages resulting from water leakages in the residence purchased by appellant. Specifically, appellant appeals from an order of the trial court granting appellees' motion to dismiss the complaint based on the bar of the statute of limitations. We affirm with regard to Count IV but reverse as to Counts I, II, and III. ¹

The complaint was filed in the court below by appellant against both appellees on February 6, 1976, and alleged the following: Count I that appellant and appellees are residents of the City and County of Honolulu; that appellant, prior to purchasing the two-story dwelling at 2048 Mauna Place in Honolulu from appellee Au, did inspect the residence and during this inspection appellant noticed what appeared to be a water stain on the wall in the bottom story of the residence; that appellant inquired of both appellees whether the stain was the result of water leakages in the residence; that "the vendor and/or salesman fraudulently represented to vendee that the stain was not a result of water leakages and further fraudulently represented that the residence did not have any water leakages"; that relying on those representations, appellant purchased the residence by an agreement of sale dated October 26, 1973. It was further alleged that in the latter part of December 1973, the bottom story of appellant's residence sustained damage resulting from water leakages and said leakages have been reoccurring thereafter; Count II that appellees negligently represented to appellant that the stain was not the result of water leakages and further negligently represented to appellant that the residence did not have any water leakages; that relying on those representations, appellant purchased the residence by an agreement of sale dated October 26, 1973; that in the latter part of December 1973, the bottom story of appellant's residence sustained damage resulting from water leakages and the leakages have been reoccurring thereafter; Count III that appellees expressly warranted to appellant that the stain was not the result of water leakages and further expressly warranted to appellant that the residence did not have any water leakages; Count IV that appellee Au breached the agreement of sale because of the recurring water leakages in the residence; and Count V that the acts and practices of the salesman were unfair and deceptive in violation of HRS § 480-2.

I.

The trial court found that the two-year limitations period on each of these counts alleged had expired and granted appellees' motion to dismiss based on the bar of the statute of limitations.

Initially, we will consider whether this appeal is a review of a motion to dismiss or a motion for summary judgment.

In certain instances, a motion to dismiss may be treated as one for summary judgment. Gonsalves v. First Ins. Co., 55 Haw. 155, 516 P.2d 720 (1973); Baldeviso v. Thompson, 54 Haw. 125, 504 P.2d 1217 (1972); Del Rosario v. Kohanuinui, 52 Haw. 583, 483 P.2d 181 (1971). We established in Del Rosario, supra, that when the court considers matters outside the pleadings, the motion to dismiss becomes one for summary judgment. In Del Rosario, affidavits were considered outside materials and the motion to dismiss was treated by the court as one for summary judgment.

The court may consider matters outside the pleadings in a summary judgment proceeding under Rules 12(b) and 56(c), H.R.C.P., including depositions, answers to interrogatories, admissions on file and affidavits. See e. g., Freitas v. City & County, 58 Haw. 587, 574 P.2d 529 (1978) (depositions filed and consistent statements of fact in counsel memoranda); Baldeviso v. Thompson, supra (affidavits and sworn testimony); Gonsalves v. First Ins. Co., supra (affidavits); Salem Bank & Trust Co. v. Whitcomb, 261 Ind. 614, 308 N.E.2d 707 (1974) (answers to interrogatories). A party making or opposing a motion for summary judgment may only rely on facts which are before the court as provided in Rule 56, H.R.C.P. Freitas v. City & County, supra; State of Ohio v. Peterson, Lowry, Rall, Barber & Ross, 585 F.2d 454 (10th Cir. 1978); Rule 12(b), H.R.C.P. Unverified statements of fact in counsel's memorandum or representations made in oral argument cannot be considered in determining a motion for summary judgment. Freitas v. City & County, supra; Smith v. Mack Trucks, Inc., 505 F.2d 1248 (9th Cir. 1974).

The record clearly reveals the trial court considered matters beyond those which were contained in the complaint. During the hearing on the motion to dismiss, appellant was permitted to make representations of fact which were outside the pleadings. ² The trial court permitted the representations so that it could determine when the cause of action accrued to apply the relevant limitations period. ³ These representations are also corroborated by the written answers to interrogatories, which are a part of the record. However, there is no indication in the record of whether the trial court considered the interrogatories in making its ruling.

We find that consideration of the oral representations of fact by the trial court did not comply with the provisions of Rule 12(b) and Rule 56, H.R.C.P. Thus, the instant motion to dismiss was not transformed into one for summary judgment. Therefore, our consideration is strictly limited to the allegations of the complaint and the motion addressed thereto in deciding whether the statute of limitations bars this action. Salem Bank & Trust Co. v. Whitcomb, supra.

II.

We now proceed to consider what the proper limitations period is for each of the counts alleged in the complaint.

In reviewing the order granting the motion to dismiss, we deem the allegations contained in the complaint as true. Day v. United Automobiles Aero. & Agr. Imp. Wkrs., Local 36, 466 F.2d 83 (6th Cir. 1972); Gross v. Newburger, Loeb & Co., Inc., 103 Misc.2d 417, 426 N.Y.S.2d 667 (1980); Swauger v. Haury & Smith Contractors, Inc., 512 S.W.2d 261 (Tenn.1974); Callarama v. Associates Discount Corp. of Del., Inc., 69 Misc.2d 287, 329 N.Y.S.2d 711 (1972).

Different causes of action arising from a single transaction may be plead together. H.R.C.P., Rule 18(a). However, where two or more causes of action arise from a single transaction, different statute of limitations are applicable to the separate claims. Triangle Underwriters, Inc., v. Honeywell, Inc., 604 F.2d 737 (2nd Cir. 1979); Henson v. St. Paul Fire & Marine Ins. Co., 354 So.2d 612 (La.Ct.App.1977); Conklin v. Draper, 229 App.Div. 227, 241 N.Y.S. 529 (1930). See generally, 53 C.J.S. Limitations of Actions § 33; 51 Am.Jur.2d, Limitation of Actions, §§ 62-63.

The proper standard to determine the relevant limitations period is the nature of...