Franks v. City and County of Honolulu

• Citation: 843 P.2d 668,74 Haw. 328
• Decision Date: 20 January 1993
• Docket Number: No. 15533,15533
• Court: Supreme Court of Hawai'i
• Parties: Dorothy Zeresta FRANKS, Plaintiff-Appellee, v. CITY AND COUNTY OF HONOLULU, Defendant/Third-Party Plaintiff-Appellant, v. DILLINGHAM CONSTRUCTION PACIFIC, LTD., dba Hawaiian Dredging & Construction Co., Inc.; Oahu Construction Co., Inc.; Defendants-Appellees, and Muroda & Associates, Inc.; Ernest K. Hirata & Associates, Inc.; William Hee & Associates, nka Engineers Surveyors Hawaii, Inc.; Soils International; and Smith, Young & Hida, Inc., nka Smith Young & Associates, Inc., Third-Party Defendants-Appellees, and Kuliouou Valley Associates; Kikuo Yanagi; Blackfield Hawaii Corporation; Excel Realty, Inc.; Hoapili & Partners, nka Independent Truckers & Associates; Kuro Builders, Inc.; Hawaii Housing Authority of the State of Hawaii; Housing Finance Development Corporation of the State of Hawaii; John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50; and Doe Governmental Units 1-50, Defendants.

Page 668

843 P.2d 668

74 Haw. 328

Dorothy Zeresta FRANKS, Plaintiff-Appellee, v. CITY AND COUNTY OF HONOLULU, Defendant/Third-Party Plaintiff-Appellant, v. DILLINGHAM CONSTRUCTION PACIFIC, LTD., dba Hawaiian Dredging

& Construction Co., Inc.; Oahu Construction Co.,

Inc.; Defendants-Appellees,

and

Muroda & Associates, Inc.; Ernest K. Hirata & Associates,

Inc.; William Hee & Associates, nka Engineers Surveyors

Hawaii, Inc.; Soils International; and Smith, Young &

Hida, Inc., nka Smith Young & Associates, Inc., Third-Party

Defendants-Appellees,

and

Kuliouou Valley Associates; Kikuo Yanagi; Blackfield

Hawaii Corporation; Excel Realty, Inc.; Hoapili &

Partners, nka Independent Truckers & Associates; Kuro

Builders, Inc.; Hawaii Housing Authority of the State of

Hawaii; Housing Finance Development Corporation of the

State of Hawaii; John Does 1-50; Jane Does 1-50; Doe

Partnerships 1-50; Doe Corporations 1-50; Doe Entities

1-50; and Doe Governmental Units 1-50, Defendants.

No. 15533.

Supreme Court of Hawai'i.

Jan. 20, 1993.

Syllabus by the Court

1. When construing a statute, this court's foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.

2. We must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

3. When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.

4. If the statutory language is ambiguous or doubt exists as to its meaning, courts may take legislative history into consideration in construing a statute.

5. That a particular interpretation given to a word or phrase in one section of the statute may have an impact on the interpretation of the same word or phrase in another section should be clear and in the absence of an express intention to the contrary, words or phrases used in two or more sections of a statute are presumed to be used in the same sense throughout.

6. It is a cardinal rule of statutory construction that courts are bound, if rational and practicable, to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute.

7. Under Hawaii Revised Statutes (HRS) § 672-2.1 (1985), the phrase "any party or any person served with notice of a claim" is not limited to respondents, or design professionals, but includes claimants.

8. Even absent statutory ambiguity, departure from literal construction is justified when such construction would produce an absurd and unjust result and the literal construction in the particular action is clearly inconsistent with the purposes and policies of the act.

9. Compelling claimants to complete the design professional conciliation panel (DPCP) process under HRS § 672-8 (1985), even though their claims might be unsuitable for such review, would be inconsistent with the purposes and policies of HRS ch. 672. Therefore, claimants may institute an action in circuit court to seek a determination of DPCP unsuitability pursuant to HRS § 672-2.1 prior to a decision of the panel.

Robin M. Kishi, Deputy Corp. Counsel, Honolulu, for defendant/third-party plaintiff-appellant City and County of Honolulu.

Neil F. Hulbert and John H. Donegan of Hong, Iwai, Hulbert & Kawano, Honolulu, for third-party defendant-appellee Engineers Surveyors Hawaii, Inc.

Bruce M. Ito and Diane W. Wong of Libkuman, Ventura, Ayabe, Chong & Nishimoto, Honolulu, for third-party defendant-appellee Soils Intern.

Before MOON, Acting C.J., LEVINSON, J., BURNS, Intermediate Court of Appeals Chief Judge, in place of LUM, C.J., recused, HEEN, Intermediate Court of Appeals Associate Judge, in place of KLEIN, Associate Justice, recused, and SPENCER, Circuit Court Judge, in place of WATATSUKI, Associate Justice, recused, deceased.

MOON, Justice.

Defendant/third-party plaintiff-appellant City and County of Honolulu (City) appeals from the orders 1) denying its motion to declare its claim unsuitable for action before the Design Professional Conciliation Panel (DPCP) and 2) granting third-party defendant-appellee Engineers Surveyors Hawaii, Inc.'s (ESH) motion to dismiss the City's third-party complaint, in which third-party defendant-appellee Soils International (Soils) joined. On appeal, the City asserts it was entitled to move for a determination that its negligence claim against ESH and Soils was unsuitable for DPCP review under Hawaii Revised Statutes (HRS) § 672-2.1 (1985), and thus, did not have to wait until the DPCP issued a decision under HRS § 672-8 (1985) before instituting action based upon its claim in circuit court. We agree.

I.

This action originated with the filing of a complaint on May 2, 1990 by plaintiff-appellee Dorothy Zeresta Franks (Franks) against the City and numerous other defendants for damage to her property allegedly due to the development of two subdivisions adjacent to her property. Franks owns a parcel of upgraded real property in Kuliouou Valley, Honolulu. Her property is directly south of the Kau Hale Aupuni O Kuliouou Subdivision (Kau Hale) and directly north of the Kuliouou Circle Cluster Subdivision (Kiliouou Cluster). The City's Department of Public Works had issued grading permits for the Kau Hale and Kuliouou Cluster subdivisions. The City's Building Department had also issued building permits for the construction of residences within both subdivisions. The development of Kau Hale entailed alteration of the natural water run-off for this area and construction of a replacement drainage system. Franks essentially alleges that the defendants were negligent in the design, construction, grading, excavation, and development of the subdivisions and that the City negligently issued grading and construction permits. Franks contends that, as a result of the defendants' negligence, her property has sustained damages due to the instability of her land.

The City filed a third-party complaint in circuit court against ESH and Soils, as well as other third-party defendants who were not parties to the original suit, seeking contribution and indemnification. The City alleged, inter alia, that Franks's injuries and damages were the result of ESH and Soils's professional negligence in the design of grading plans and soils analysis of the area, and that the City essentially relied upon their findings in issuing the grading and construction permits.

ESH, later joined by Soils, moved to dismiss the City's third-party complaint on the grounds that the City was statutorily precluded from proceeding with litigation in the circuit court because it instituted action without first having filed and prosecuted its claim before the DPCP in accordance with the provisions of HRS ch. 672. ¹ The City then filed its claim with the DPCP and moved the circuit court to declare the action unsuitable for DPCP review pursuant to HRS § 672-2.1. ² Specifically, the City asserted that "[w]hether or not the Third-Party Defendant design professionals were negligent in the design of the grading plans and soils analysis is an issue that is an integral part of the litigation in this case."

Following a hearing on both motions, the circuit court granted ESH's motion and dismissed the City's third-party complaint against ESH and Soils on the basis that the City could not institute litigation in circuit court until the DPCP issued a decision and a party to the hearing rejected the panel's decision under HRS § 672-8. With respect to the City's motion for determination of unsuitability, the circuit court accepted ESH's position that the phrase "any party or any person served with notice of a claim," HRS § 672-2.1, was limited to respondents in a DPCP proceeding, and thus, only design professionals had the right to file a motion for determination of unsuitability. Consequently, the court concluded that the City lacked standing to bring the unsuitability motion. The circuit court later denied the City's motion for reconsideration of the order denying its motion for determination of unsuitability, certified as final the order granting ESH's motion to dismiss, and entered judgment in favor of ESH. This timely appeal followed.

II.

In relevant part, HRS § 672-2.1 provides that "[a]ny party or any person served with notice of a claim may file a motion ... for a determination that the subject matter of the dispute is unsuitable for review by [the design conciliation panel.]" (Emphasis added.) The City contends that the language of the statute allows any party to the DPCP proceeding or any person served with notice of claim to move for a determination of unsuitability. On the other hand, ESH and Soils urge this court to interpret the phrase to mean "any party or any person who is served with notice of a claim may move for a determination of unsuitability," thereby limiting the right to do so only to design professionals.

A.

The interpretation of a statute is a question of law reviewable de novo. When construing a statute, our foremost obligation "is to ascertain and give effect to the intention of the legislature" which "is to be obtained primarily from the language contained in the statute itself." In re Hawaiian Telephone Co., 61 Haw. 572, 577, 608 P.2d 383, 387 (1980); accord Gorospe v. Matsui, 72 Haw. 377, 379, 819 P.2d 80, 81 (1991). We must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose. In re Doe Children, 73 Haw. 15, 20, 827 P.2d 1144, 1146 (1992). "When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute an ambiguity exists." State v. Sylva, 61 Haw. 385, 388, 605 P.2d 496, 498 (1980). If the statutory language is ambiguous or doubt...