City and County of Honolulu v. Toyama, 6363
| Decision Date | 23 July 1979 |
| Docket Number | No. 6363,6363 |
| Citation | 598 P.2d 168,61 Haw. 156 |
| Parties | CITY AND COUNTY OF HONOLULU, a municipal corporation, Plaintiff-Appellee, v. Kamakichi TOYAMA, dba K. T. Poolroom, Fusako Chinen, dba New Kukui Cafe, Bacilio Balalong, Margaret Balalong, Hilario Gungab, Magdalena Gungab, Victorino Nabora, Marina Nabora, Rufino Ramos, Sotera Ramos, Mariano Tarampi, Rita Tarampi, Arnold Ramos, Luis Mendoza, and Ricarte Vidad, Defendants-Appellants. CITY AND COUNTY OF HONOLULU, a municipal corporation, Plaintiff-Appellee, v. Estanislao BALAIS, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. This court may not consider matters outside the record for purposes of appellate review unless the parties comply with H.R.C.P., Rule 75(c), the briefs of the parties treat certain facts as true, or counsel concedes certain facts in oral argument.
2. For purposes of appellate review, this court cannot consider matters outside the record which could not have been considered 3. Under H.R.C.P., Rule 56(c), a summary judgment will be sustained only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
by the trial court at the time its judgment was rendered.
4. Inferences to be drawn from the record must be viewed in the light most favorable to the nonmoving party.
5. For purposes of ruling on a summary judgment a fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.
6. The City Building Department and the City Department of Housing and Community Development do not constitute legal entities which are separate and apart from the City and County of Honolulu.
7. The State Assistance to Displaced Persons Act, HRS chapter 111 (1976), requires that adequate relocation assistance be offered to displaced persons prior to eviction.
8. Where buildings are found by a governmental agency to be substandard, HRS § 53-60(b) (1976) and ROH § 25-9.2 (1975 Cum.Supp.) require that notice and a hearing be afforded to all parties in interest. Failure to give such notice and hearing constitutes a violation of due process.
Lowell Chun-Hoon, Honolulu (King, Nakamura, Nakamura and Takahashi, Honolulu, of counsel; Wayson Chow and Leanor Tamoria, Honolulu, on briefs), for defendants-appellants.
Edmund L. Lee, Jr., Deputy Corp. Counsel, Honolulu, for plaintiff-appellee.
Before RICHARDSON, C. J., OGATA and MENOR, JJ., and MARUMOTO and KOBAYASHI, Retired Justices, assigned by reason of vacancies.
This is an appeal from an order of the circuit court, granting summary judgment for summary possession to plaintiff-appellee City and County of Honolulu (hereinafter appellee) against defendant-tenant-appellants Kamakichi Toyama, dba K. T. Poolroom, Fusako Chinen, dba New Kukui Cafe, Bacilio Balalong, Margaret Balalong, Hilario Gungab, Magdalena Gungab, Victorino Nabora, Marina Nabora, Rufino Ramos, Sotera Ramos, Mariano Tarampi, Rita Tarampi, Arnold Ramos, Luis Mendoza, Ricarte Vidad, and Estanislao Balais (hereinafter appellants).
In the court below appellee brought an action for summary possession against appellant Estanislao Balais and a separate action for summary possession against all the other appellants. These actions were consolidated.
After a hearing, the trial court granted appellee's motion for summary judgment. The writ of possession issued by the trial court was stayed pending appeal to this court. We reverse.
I. Whether appellants received timely notice under HRS § 521-71(a) (1976).
II. Whether adequate relocation assistance was offered to appellants.
III. Whether appellees' failure to give appellants notice and a hearing regarding demolition of the buildings was in violation of due process.
Under H.R.C.P., Rule 56(c), a summary judgment will be sustained only if the record 1 shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Hunt v. Chang, 60 Haw. 608, 618, 594 P.2d 118, 124 (1979); Gealon v. Keala, 60 Haw. 513, 518, 591 P.2d 621, 625 (1979). Inferences to be drawn from the record must be viewed in the light most favorable to the nonmoving party. Hunt v. Chang, supra, 60 Haw. at 618, 594 P.2d at 124; Hokama v. Relinc Corp., 57 Haw. 470, 472, 559 P.2d 279, 281 (1977).
For purposes of ruling on a summary judgment a fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. Hunt v. Chang, supra, 60 Haw. at 618, 594 P.2d at 124. See Richards, v. Midkiff, 48 Haw. 32, 39, 396 P.2d 49, 54 (1964).
Appellants contend that appellee failed to comply with the notice requirements of HRS § 521-71(a) (1976) and of the regulations 2 promulgated under the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. 3
Initially, we conclude that the Uniform Relocation Assistance and Real Property Acquisition Policies Act is not within our purview, as it was not introduced in evidence. HRS § 662-13(a) (1976). 4
HRS § 521-71(a) (1976) 5 provides:
(a) When the tenancy is month to month, the landlord or the tenant may terminate the rental agreement upon his notifying the other at least twenty-eight days in advance of the anticipated termination or in cases of voluntary demolition of the dwelling units, ninety days in advance of the anticipated demolition. If notice is revoked or amended and re-issued, the ninety day period shall begin from the date it was reissued or amended.
Appellants contend that appellee was required to give notice "ninety days in advance of the anticipated demolition" because this is a case of "voluntary demolition" under HRS § 521-71(a) (1976).
Webster's Third New International Dictionary (unabridged, 1967) defines "voluntary", in part, as follows:
1. a: proceeding from the will; produced in or by an act of choice . . .; b: performed . . . of one's own free will . . .; e: acting of oneself: not constrained, impelled, or influenced by another . . .; g: acting or done without any present legal obligation to do the thing done or any such obligation that can accrue from the existing state of affairs.
It is undisputed that on September 26, 1975, the City Building Department sent notices to correct to the City Department of Housing and Community Development (DHCD) regarding the buildings at 139-143 North Beretania Street, 155 North Beretania Street, and 1189 River Street, stating that inspectors from the City Building Department had inspected the buildings and
found substandard condition(s) . . . which endangers life, limb, health, property, safety or welfare of the public or the occupants of the building.
The notice to correct regarding the building at 139-143 North Beretania Street stated:
Please take the necessary step(s) within 48 hours to Correct the deficient condition(s) and to complete such Repairs within 90 days. (Emphasis added.)
However, the DHDC decided to demolish the structure instead of making the necessary repairs to the building. The notices to correct regarding the buildings at 155 North Beretania Street and 1189 River Street stated:
Please take the necessary steps within 48 hours to Demolish and remove the structure and complete all such Demolition work within 90 days from receipt of this notice. (Emphasis added.)
In regard to the buildings at 139-143 North Beretania Street, this is a case of "voluntary demolition." Although the City Building Department's notice to correct directed only that the DHCD make repairs "to correct the deficient condition(s)," the DHCD chose to demolish the building.
Notwithstanding the fact that the City Building Department's respective notices to correct directed the DHCD to demolish the buildings at 155 North Beretania Street and 1189 River Street, the decision to demolish these buildings was also voluntary. Appellee's Building Department and appellee's Department of Housing and Community Development are both departments of the executive branch of appellee and are both supervised by appellee's managing director. Charter of the City and County of Honolulu, art. VI, §§ 4-102, 6-102 (1973). The different departments do not constitute legal entities which are separate and apart from appellee.
Since, as to all the buildings herein, this is a case of "voluntary demolition," appellee was required under HRS § 521-71(a) (1976) to notify all of the appellants "ninety days in advance of the anticipated demolition." There is no dispute that on September 30, 1975, DHCD sent each of the appellants a notice to vacate and that all of the appellants received the notice between October 1 and 7, 1975. It is also undisputed that on October 29 or 30, 1975, DHCD personally served all of the appellants except appellant Balais with notices to vacate. The record does not disclose the date of the "anticipated demolition."
In our opinion, since the record does not show that the appellants received notice "ninety days in advance of the anticipated demolition," the trial court erred in granting summary judgment. The action filed by appellee should have been dismissed. Assuming, Arguendo, that appellants had received timely and proper notice, the trial court erred in granting summary judgment without first resolving the issues of the adequacy of relocation assistance and appellants' right to notice and a hearing regarding demolition of the buildings.
Appellants in their arguments rely upon the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 84 Stat. 1894, 42 U.S.C. § 4601 Et seq., and upon the State Assistance to Displaced Persons Act, HRS §...
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