Cane City Builders, Inc. v. City Bank of Honolulu, 4674
| Decision Date | 26 June 1968 |
| Docket Number | No. 4674,4674 |
| Citation | 443 P.2d 145,50 Haw. 472 |
| Parties | , 50 Haw. 523 CANE CITY BUILDERS, INC., a Hawaii Corporation, Alfred M. Cambra and Donna Cambra, Plaintiffs-Appellants, v. CITY BANK OF HONOLULU, a National Banking Institution and Richard S. Toriki, Defendants-Appellees. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Under Rule 56 of the Hawaii Rules of Civil Procedure, summary judgment should be granted where there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law.
2. Under Rule 56(e), H.R.C.P., an affidavit in support of a motion for summary judgment must show that the affidavit was made on affiant's personal knowledge and documents or papers referred in and attached to the affidavit must be sworn to or certified.
3. Answers to interrogatories which are filled before the hearing on the motion for summary judgment are properly before the court and they should be considered in connection with the motion.
4. Considering the answers to the interrogatories and the affidavit, there is no question that an issue as to a material fact, namely, whether the parties had entered into the alleged contract, was raised and the court erred in granting the motion for summary judgment.
5. When a corporation is involuntarily dissolved, under the provision of § 172-132, R.L.H.1955, as amended, and a trustee is not appointed by the director of regulatory agencies or by a court, the directors of a dissolved corporation may act as trustees for the creditors and stockholders with full powers to settle its affairs.
6. The record does not show that a trustee or trustees had been appointed pursuant to § 172-132, R.L.H.1955, as amended, and therefore Alfred Cambra who had served as director of the corporation during the entire course of its existence may, as trustee of the corporation, bring this suit on behalf of the dissolved corporation.
7. Although Alfred Cambra was not designated as trustee of the dissolved corporation in any of the pleadings, this court should not be overly technical and hold that he is not properly before the court in that capacity.
Robert A. Franklin, Honolulu, for appellants.
Robert S. Toyofuku, Honolulu, (Hiroshi Sakai, Honolulu, on the brief), for defendants-appellees.
Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ.
This is an appeal from an order of the Circuit Court of the First Circuit granting summary judgment to City Bank of Honolulu, defendant-appellee (hereinafter referred to as 'Bank') in a contract action.
The complaint alleged in part that the Bank and Toriki had entered into a contract whereby Toriki would keep the books Bank and Toriki had entered into a contract whereby Toriki would keep the book of Cane City Builders, Inc. (hereinafter referred to as 'Corporation') in consideration for the retention by the Corporation and the Cambras of their banking accounts with the Bank. It further alleged that the defendants did not maintain adequate or proper books and converted and disposed of funds beloging to the plaintiffs.
Interrogatories were submitted to the Corporation and the Cambras by the Bank on November 1, 1966. The answers thereto were sworn to by the Cambras individually and as officers of the Corporation and filed on January 25, 1967.
On January 20, 1967, the Bank filed a motion to dismiss or for summary judgment. The motion for summary judgment was supported by an affidavit denying the existence of a contract between the plaintiffs and the Bank and a release allegedly executed by the plaintiffs attached to the affidavit of an officer of the Bank.
After a hearing on the motions, the court below denied the motion to dismiss but granted summary judgment pursuant to Rule 56 of the Hawaii Rules of Civil Procedure, It is from that judgment that this appeal is taken.
As a general proposition, summary judgment should be granted where there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law. H.R.C.P., Rule 56(b), (c); Clarke v. Civil Service Commission, 50 Haw. 169, 434 P.2d 312 (1968); Richards v. Midkiff, 48 Haw. 32, 39, 396 P.2d 49, 54 (1964); Brown v. Bishop Trust Co., 44 Haw. 385, 388, 355 P.2d 179, 181 (1960).
The release filed by the Bank would, if validly executed by all parties, be dispositive of the subject matter of this action and therefore a proper basis for the granting of the summary judgment. It must be pointed out, however, that documents referred to in a motion for summary judgment must be sworn or certified and attached to the affidavit if they are to be considered by the court. H.R.C.P. Rule 56(e). The release submitted in this action was attached to an affidavit wherein the affiant stated '(t)hat affiant in early 1964 was shown a copy of the mutual release attached hereto and incorporated herein by reference whereby the plaintiffs agreed to release City Bank of Honolulu from all liabilities.' The statement in the affidavit does not authenticate the release, which was not sworn to or certified, nor is the statement based on the affiant's personal knowledge and therefore the statement does not fulfill the requirement of Rule 56(e), H.R.C.P. Thus, the release was not properly before the court on the motion for summary judgment and the trial judge erred in considering the release in granting the motion of summary judgment.
The other question on this appeal is whether the pleadings, depositions, affidavits, etc., showed that there was no genuine issue as to a material fact and that the Bank was entitled to judgment as a matter of law. As mentioned above, answers to interrogatories were filed by the plaintiffs prior to the hearing on the motion for summary judgment. Although answers to interrogatories are not within the expressed scope of Rule 56, we believe the omission to have been inadvertent. Our rules were pattened after...
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