Myers v. Beatty, I-X
| Decision Date | 27 July 1989 |
| Docket Number | No. 13334,I-X,13334 |
| Parties | Roy C. MYERS, Plaintiff-Appellant, v. Douglas Stanley BEATTY, Cindy Beatty, Richard Charles Adler, Barbara Walz Adler and Thomas R. Weightman, Defendants-Appellees, and John Does, et al., Defendants, and Real Estate Commission, Respondent-Appellee. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. When an action is commenced, which may result in collection from the Real Estate Recovery Fund, the plaintiff must notify the Real Estate Commission of the commencement of the action in writing under Hawaii Revised Statutes (HRS) § 467-18(a).
2. Where the notice to the Real Estate Commission of the commencement of the action was not made until eight months after the action had been commenced, the requirement of HRS § 467-18(a) had not been met and, consequently, any rights to recover against the Real Estate Recovery Fund were waived under HRS § 467-23.
William J. Rosdil (Calvin J. Fukuhara, Hilo, on the briefs), for plaintiff-appellant.
Gary W.K. AuYoung (Sidney K. Ayabe with him on the brief, Libkuman, Ventura, Ayabe, Chong & Nishimoto), Honolulu, for defendant-appellee Real Estate Com'n.
Raymond K. Hasegawa, Honolulu, for defendant-appellee Adler.
Stephen J. Menezes, Hilo, for defendant-appellee Beatty.
Before NAKAMURA, Acting C.J., PADGETT, HAYASHI and WAKATSUKI, JJ., and Intermediate Court of Appeals Associate Judge TANAKA, in place of LUM, C.J., Recused.
This is an appeal from an order entered June 23, 1987, denying appellant's motion for an order of payment from the Real Estate Recovery Fund (Fund).
Appellant commenced this case by a complaint filed February 25, 1986, which alleged certain conduct on the part of one Thomas R. Weightman (Weightman) and alleged:
37. Each and/or all of the Defendants herein knew or should have known of the transactions herein, the failure of the AGREEMENT to accurately reflect the facts or the terms of the verbal agreement the misrepresentations of each and/or all of the Defendants, and the failure to disclose material facts by each and/or all of the Defendants, resulting in the Defendants being jointly and/or severally liable to Plaintiff for the sums due and owing under the promissory note attached to the AGREEMENT as Exhibit A and/or the Promissory Note misdated March 13, 1983.
38. Each and/or all of the Defendants are liable to Plaintiff upon the theory of misrepresentation[.]
On October 20, 1986, appellant entered into a settlement with certain of the defendants. On November 17, 1986, the Real Estate Commission (Commission) received notice of appellant's claims against Weightman by a letter dated November 14, 1986. Transmitted therewith were copies of the complaint and settlement agreement. The letter notified the Commission that default had been entered against Weightman and that the plaintiff was willing to postpone the hearing on the judgment for default to permit the Commission sufficient time to review the case. The Commission made no response then or later.
Findings of fact and conclusions of law from the evidence adduced at the notice of proof hearing were entered on March 2, 1987 and, on March 6, 1987, a default judgment of $46,666.90 was entered against Weightman.
On June 26, 1987, appellant filed the motion for order of payment from the Fund. A hearing was held July 15, 1987, and the court...
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76 Hawai'i 39, Kuhnert v. Allison
...must be filed within two years from the accrual of the cause of action. HRS § 467-18 is clear and unambiguous. Myers v. Beatty, 70 Haw. 536, 538, 777 P.2d 709, 710 (1989) (appellants waived the right to recover from the RERF, where notice of the commencement of an action was given eight mon......