Lane v. Yamamoto
| Decision Date | 11 May 1981 |
| Docket Number | No. 7013,7013 |
| Court | Hawaii Court of Appeals |
| Parties | Stephen W. LANE, Plaintiff-Appellant, v. George YAMAMOTO and the City and County of Honolulu, Defendants-Appellees. |
Syllabus by the Court
1. Documents attached to motions for summary judgment under Rule 56, Hawaii Rules of Civil Procedure, cannot be considered unless they are either sworn to or certified.
2. Where there is evidence from which it might be found that a public official, in the exercise of his discretion, acted with malice toward the plaintiff in delaying the return of his property to him, it was improper to grant summary judgment.
3. The City and County of Honolulu can be held liable for the malicious use of discretion by a public official acting within the scope of his employment.
4. Where there is no set procedure available for a party to follow in seeking return of property seized by the police, there was no administrative remedy to be exhausted.
5. An action seeking damages and return of alleged wrongfully withheld property is not rendered moot simply by the return of the property.
6. While a public official may be liable for punitive damages where he maliciously uses his discretion, a municipal corporation can be liable only for actual damages arising out of such act by the official.
Michael P. Akana, Law Offices of David L. Turk, Honolulu, for appellant; Roy J. Bell, Honolulu, on brief.
John W. K. Chang, Deputy Corp. Counsel, Honolulu, James E. Ross, Deputy Corp. Counsel, Honolulu, on brief for appellee.
Before HAYASHI, C. J., and PADGETT and BURNS, JJ.
This is an appeal from an order granting a motion to dismiss or in the alternative, for summary judgment. Appellant contends that based upon the record, there was a genuine issue of material fact as to whether Appellee George Yamamoto, in refusing for a period of time to return appellant's gun to him, acted with malice. Based upon the record, there was evidence of malice and accordingly, we hold that the matter should have been left for a jury trial.
Most, if not all, of the documents attached to the appellee's motion to dismiss or in the alternative, for summary judgment were neither sworn to nor certified and must therefore be disregarded under the decisions of this court in Munds v. First Insurance Co. of Hawaii, Ltd., 1 Haw.App. 104, 614 P.2d 408 (1980) and the Supreme Court of Hawaii in Cane City Builders v. City Bank, 50 Haw. 472, 443 P.2d 145 (1968) and Pacific Concrete Federal Credit Union v. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980).
The sequence of events, however, is not in dispute. Appellant owned a gun which was stolen. The gun was subsequently recovered by the police and the person in possession thereof charged. On November 15, 1976, he pleaded guilty to the charge. Appellant thereupon made several efforts to have his gun returned to him and when it was not promptly returned, filed suit on November 18, 1976. The felon was sentenced on January 7, 1977 and the time for appeal, therefore, ran on January 17th. Some days later, the gun was returned to the appellant.
There is no set procedure with respect to when and how stolen property recovered by the police will be returned to its owners. The matter apparently is left entirely in the discretion of the prosecutor. In this case, it is alleged that the prosecutor, Appellee George Yamamoto, delayed the return of the gun because of malice toward the appellant, Stephen W. Lane. There is evidence in the record which would support this contention. For example, James F. Nagle, one of the prosecutors, testified by deposition:
A. When I initially talked to George after talking with Stephen Lane about the returning of the gun when I had mentioned the facts of the case to George, George said when I told him that Stephen Lane wanted the return of the gun, George said, "Oh, f______ him; he's not going to get his gun back." And he elicited the reasons when I asked why.
There are other examples in the depositions and in the record from which a reasonable man might reach the conclusion that Appellee Yamamoto was exercising his discretion to refuse to return the gun because of malice toward the appellant. Under the decisions in Medeiros v. Kondo, 55 Haw. 499, 522 P.2d 1269 (1974); Runnels v. Okamoto, 56 Haw. 1, 525 P.2d 1125 (1974), and Orso v. City & County of Honolulu, 56 Haw. 241, 534 P.2d 489 (1975), Appellee Yamamoto can be held liable for damages if it is found that in exercising his discretion with respect to whether to return appellant's property, he was "motivated by malice, and not by an otherwise proper purpose, ..." Medeiros...
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