Eto v. Muranaka

• Decision Date: 06 November 2002
• Docket Number: No. 23296.,23296.
• Parties: Takako ETO, Plaintiff-Appellant, v. Ryu MURANAKA, Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Governmental Entities 1-10, Defendants.
• Court: Hawaii Supreme Court

57 P.3d 413

99 Haw. 488

Takako ETO, Plaintiff-Appellant, v. Ryu MURANAKA, Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Governmental Entities 1-10, Defendants.

No. 23296.

Supreme Court of Hawai`i.

November 6, 2002.

As Amended November 12, 2002.

Greg Nishioka (Nishioka & Fujioka), on the briefs, Honolulu, for plaintiff-appellant.

Richard Philpott & Carolyn K. Gugelyk (Goodsill Anderson Quinn & Stifel), on the briefs, Honolulu, for defendant-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that an alleged tortfeasor not found in Hawai`i, who is a citizen and resident of Japan, was amenable to service under Hawai`i Revised Statutes (HRS) §§ 634-35 (1993) and 634-36 (1993), and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters [hereinafter Hague Convention]. In the instant case, Defendant-Appellee Ryu Muranaka (Defendant) was amenable to service under HRS §§ 634-35 and 634-36 and under the Hague Convention, when that treaty applied. However, (1) the first complaint of Plaintiff-Appellant Takako Eto (Plaintiff) was not timely served on Defendant, (2) HRS § 657-18 (1993) did not toll the statute of limitations, (3) the dismissal of the first complaint without prejudice did not toll the statute of limitations, and (4) the filing of a second complaint did not relate back to the date of the filing of the first complaint. Therefore, the circuit court of the first circuit (the court)¹ was correct in granting Defendant summary judgment on Plaintiff's second complaint on the ground that the statute of limitations had run.

I.

Plaintiff claimed that on August 16, 1994, she was standing in line to cook her food at a barbeque grill when Defendant splashed grease on her clothes. The two engaged in a brief discussion, after which Defendant took a set of iron tongs and pressed it against Plaintiff's nose. He then orally threatened her and struck her with the tongs three times below her right eye.

The police arrived on the scene and arrested Defendant. Plaintiff asserted that she suffered blurred vision and burns as a consequence of Defendant's conduct. Both Plaintiff and Defendant are citizens and residents of Japan.

II.

As a result of the aforesaid incident, Plaintiff filed a complaint for personal injuries, Civil No. 96-3372-08, on August 15, 1996 (First Complaint). Pursuant to Rules of the Circuit Courts of the State of Hawai`i (RCCH) Rule 28 (1971), Plaintiff was required to serve the First Complaint on Defendant by February 15, 1997, six months after filing the action.²

Plaintiff did not serve Defendant by that date. Her prior counsel was unsuccessful in obtaining Defendant's address from the Honolulu Police Department (HPD). Plaintiff's present counsel also sought the assistance of Defendant's employer, Japan Airlines, which refused to assist in the matter. After criminal charges against Defendant were dismissed, HPD released his purported address to Plaintiff on May 16, 1997. That address in Japan, however, was no longer valid when obtained by Plaintiff. In the latter part of 1997, Plaintiff located Defendant's then-current address.

Pursuant to the Hague Convention, Plaintiff mailed the First Complaint and summons to the Japan Ministry of Foreign Affairs, which received it on December 12, 1997. Plaintiff's counsel was informed by a March 22, 1998 letter from the Consulate General of Japan that the Japan Ministry of Foreign Affairs served the First Complaint on Defendant on January 28, 1998, one year and five months after the filing of the First Complaint on August 15, 1996.

On February 10, 1998, Defendant moved to dismiss Plaintiff's First Complaint. A hearing on the motion to dismiss was apparently held on March 25, 1998 and the motion was granted by Judge Kevin S.C. Chang.

On March 27, 1998, prior to the filing of Judge Chang's written order of dismissal which was eventually filed on May 1, 1998, Plaintiff filed a "Motion to Set Aside Dismissal Without Prejudice, for Rehearing of Defendant's February 10, 1998 Motion to Dismiss, or for Reconsideration of Order Granting Defendant's Motion to Dismiss Complaint . . . , to Extend Time for Service of [First] Complaint and for Entry of Default." On April 8, 1998, while the March 27 motion to set aside dismissal was still pending, Plaintiff filed a second complaint, Civil No. 98-1677-04 (Second Complaint), "in an abundance of caution to preserve Plaintiff's right[s]." The Second Complaint is identical to the First Complaint.

On May 1, 1998, Judge Chang's order granting dismissal without prejudice was filed. In issuing its order, the court determined that "service was not completed in a timely manner":

[T]he [First] Complaint in this case was filed in August of 1996 and there have been two extensions of time in which to effect service. Despite those extensions, service was not completed in a timely manner and Plaintiff did not file a motion to enlarge the time period to effect service before the hearing on Defendant's Motion to Dismiss. Plaintiff has failed to meet her burden of proof that there is jurisdiction over the Defendant in this case.

Subsequently, Plaintiff filed a motion for extension of time to serve the First Complaint nunc pro tunc, which was heard by Judge Virginia Lea Crandall. On June 15, 1998, Judge Chang filed an order denying Plaintiff's March 27, 1998 motion to set aside dismissal or for reconsideration without prejudice and allowed Plaintiff to apply to Judge Crandall for an order extending time for service:

Plaintiff's motion is denied without prejudice. Service of process, if any, upon Defendant was untimely based upon the Honorable Virginia Lea Crandall's last order extending time for service. Plaintiff must apply to Judge Crandall if Plaintiff seeks a nunc pro tunc ruling extending time for service. The granting of such a motion by Judge Crandall may constitute new grounds to re-apply to this Court for reconsideration of its previous dismissal order. The Court makes no ruling with regard to any issues regarding the tolling of the statute of limitations in this matter because there is no motion before it in that regard.

(Emphasis added.)

On July 2, 1998, Plaintiff again filed a "Motion for Reconsideration of Order Granting [Defendant]'s Motion to Dismiss [the First] Complaint."

On September 21, 1998, Plaintiff filed an "Ex Parte Motion for First Extension [of] Time for Service of [the Second] Complaint." Judge Crandall granted the motion on September 21, 1998, and extended the period to serve the Second Complaint "from October 8, 1998 up to and including April 8, 1999."

On September 24, 1998, Judge Chang rendered an "Order Denying Plaintiff's [July 2, 1998] Motion for Reconsideration of Order Granting [Defendant]'s Motion to Dismiss Plaintiff's Complaint," stating that "Plaintiff has failed to establish [an] adequate factual and/or legal basis for the Court to reconsider the Order granting Defendant Muranaka's Motion to Dismiss [the First] Complaint." Plaintiff never appealed the decisions pertinent to the First Complaint.

On October 30, 1998, Plaintiff apparently mailed the Second Complaint and summons to Japan's Ministry of Foreign Affairs, which received them on November 2, 1998. Service was effected on November 21, 1998. Defendant answered the Second Complaint on January 25, 1999.

III.

As previously indicated, on April 8, 1998, while the First Complaint was still pending, Plaintiff filed the Second Complaint, Civil No. 98-1677-04, more than three years after the alleged incident. Also, as mentioned, the Second Complaint is identical to the earlier First Complaint.

On April 26, 1999, Defendant filed a "Motion to Dismiss Plaintiff's [Second] Complaint or, in the Alternative, for Summary Judgment." At a hearing on May 25, 1999, Judge Gail C. Nakatani granted the motion. Judge Nakatani's order, filed on June 17, 1999, stated, "The Court finds that the Defendant has established that he is entitled to summary judgment as a matter of law because the Second Complaint now before the Court was filed untimely, having been filed at least a year past the applicable two-year statute of limitations." (Emphasis added.) Additionally, the court found "that no tolling of the statute of limitations is applicable in this matter [because] ... the Second Complaint was filed as a different case, and hence there is no saving from the statute of limitations." Judge Nakatani ordered that "Defendant's motion, treated herein as a motion for summary judgment, [be] granted."

On February 29, 2000, and pursuant to Hawai`i Rules of Civil Procedure (HRCP) Rule 58,³ Judge Nakatani entered judgment against Plaintiff and in favor of Defendant. Plaintiff filed this appeal on February 29, 2000.

IV.

On appeal, Plaintiff urges that the court erred in granting Defendant's motion for summary judgment on her Second Complaint. She argues (1) that HRS § 657-18 tolls the statute of limitations for effecting service on Defendant, a person "absent" from the State, (2) that whether or not Defendant was amenable to personal service within the definition of HRS § 657-18 is an issue of material fact not subject to resolution by summary judgment, and (3) that the statute of limitations did not run while the First Complaint was pending before the court. We observe that, whereas Plaintiff took no appeal from the orders affecting the First Complaint, those orders have become final.

V.

A.

The statute of limitations for a personal injury action is "two years after the cause of action accrued, and not after[.]" HRS § 657-7 (1993). Plaintiff urges that HRS § 657-18 tolled the limitations period for her personal injury action because Defendant was "absent" from the State of Hawai`i. HRS § 657-18 states in part that,

[i]f at any time when any cause of action specified in this part ... accrues

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