Stahl v. Balsara

• Decision Date: 18 December 1978
• Docket Number: No. 6082,6082
• Citation: 60 Haw. 144,587 P.2d 1210
• Parties: Ann E. STAHL, Plaintiff-Appellant, Cross-Appellee, v. Dadi BALSARA, also known as Dr. Dadi Balsara, Defendant-Appellee, Cross-Appellant.
• Court: Hawaii Supreme Court

Page 1210

587 P.2d 1210

60 Haw. 144

Ann E. STAHL, Plaintiff-Appellant, Cross-Appellee, v. Dadi BALSARA, also known as Dr. Dadi Balsara Defendant-Appellee, Cross-Appellant.

No. 6082.

Supreme Court of Hawai'i.

Dec. 18, 1978.

Syllabus by the Court

1. Ordinarily to be actionable, false representation must relate to an existing material fact, or a material fact which has existed in the past, not to a promise or prognostication concerning a future happening.

2. To recover damages in a tort action, based upon fraud, the plaintiff must have justifiably relied upon the representations.

3. HRCP, Rule 50(b), requires that a proper motion for a directed verdict be made at the close of all the evidence as a prerequisite to a motion for a judgment N.O.V.

4. A new trial may be granted where the movant's evidence manifestly outweighs the evidence introduced by the other party.

5. The action of a trial judge on a motion for new trial is within his discretion and is reviewable only for abuse of discretion.

Thomas T. Watts, Honolulu (Kemper & Watts, Honolulu), for plaintiff-appellant, cross-appellee.

David C. Schutter, Honolulu, for defendant-appellee, cross-appellant.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

OGATA, Justice.

Plaintiff-appellant, cross-appellee, Ann E. Stahl (hereinafter appellant) appeals from the trial court's order and judgment, both dated July 17, 1975. The order granted a judgment N.O.V. against appellant in favor of defendant-appellee, cross-appellant, Dadi Balsara, also known as Dr. Dadi Balsara (hereinafter appellee); and the judgment dismissed both the appellant's complaint and the appellee's counterclaim. Appellant further appeals from the order dated September 5, 1975, entered by the court below which denied her motion for new trial. Appellee cross appeals from that part of the order of July 17, 1975, which denied his motion for new trial as to damages on his counterclaim and which granted, Sua sponte, a judgment N.O.V. as to appellee's counterclaim. We affirm the order of the trial court which granted appellee's motion for judgment N.O.V. on appellant's complaint, reverse the order which granted, Sua sponte, a judgment N.O.V. on appellee's counterclaim, and affirm the orders denying new trials to both appellant and appellee.

On August 10, 1973, appellant filed in the court below a complaint against appellee in which she sought damages against appellee based upon fraud. In her complaint appellant alleged in substance that appellee was a world renowned yoga expert, astrologer, palmist and para-psychologist; that she had telephoned appellee to engage his services in reading her palm and in attempting to foretell appellant's future; that appellant's first appointment with appellee was on or about June 7, 1971, and thereafter appellant saw appellee at irregular intervals through August, 1972. Appellant alleged that during that period of time appellee falsely and fraudulently represented to appellant that in order for appellant's daughters to be protected against pregnancy out of wedlock, it was necessary for appellant to purchase pendants for each of her daughters; that appellant would never have to worry about money because she would be receiving $50,000.00 checks through the mail; that appellant's income would triple in twenty-one days; and that appellant would become the owner of three apartment buildings, a home on Tantalus and a four bedroom condominium. Appellant also alleged that these representations were known by appellee to be false when made and were made with intent to deceive appellant to induce her to purchase an automobile, jewelry, clothing and other personal effects for appellee's use and benefit; that appellee additionally received from appellant monies in excess of the value of services which appellee rendered to appellant and her daughters; and that appellant believed all of the promises, predictions and representations made to her by appellee at the times they were made and in reliance thereon, appellant was induced to use her own funds and borrow moneys from others which totaled $14,516.25, and which was expended for the appellee's use and benefit as aforesaid. Appellant further alleged that she made repeated demands upon appellee to repay the above sum and/or for the return of the jewelry and other properties, but that appellee has refused to repay the said sum or to return such jewelry and properties, except for the sum of $2,900.00.

Appellee answered denying the complaint and filed a counterclaim in which he sought damages against appellant based upon libel and/or slander and/or defamation of character. In his counterclaim, the appellee admitted that he and appellant had entered into a professional relationship during the middle of the summer of 1971, until some time during the year 1972; that during that period appellant had made to appellee various gifts in the form of items of apparel, other personal gifts and monetary payments; that for reasons unknown to appellee, appellant became dissatisfied with the appellee's services and embarked on a campaign to destroy the appellee personally, professionally and socially, and to drive him from the State of Hawaii, the United States of America, and from his chosen profession; that in connection with such campaign appellant engaged in the utterances of numerous untruths about appellee to persons in position to affect appellee's status on visa as well as to persons in position to affect his financial well being, as well as to representatives of appellee's national consulate in Honolulu designed for the purpose of destroying appellee's relationship with his own consulate, and that the appellant also engaged in the publication of various false and untrue written statements about appellee for the same purpose and to the same sorts of people, attempted interference with the appellee's contractual relations with a radio station and numerous clients of appellee.

Both the complaint and counterclaim prayed for special damages, general damages and punitive damages. After the case had been submitted to the jury and during its deliberation it sent an inquiry to the court whether the jury could find in favor of appellant on her complaint as well as in favor of appellee on his counterclaim. In response the court with the approval of both parties instructed the jury that it could in fact find in favor of each party on their respective claims. On June 26, 1975, the jury returned a verdict for the appellant on her complaint and for appellee on his counterclaim. The total verdict for each party was $3.00, or $1.00 for special damages, $1.00 for general damages and $1.00 for punitive damages.

Appellee, having moved for a directed verdict at the close of all the evidence, filed a motion on July 7, 1975, for judgment N.O.V. against appellant on her complaint, and for new trial as to damages on appellee's counterclaim. On July 17, 1975, the court entered an order granting appellee's motion for judgment N.O.V. on appellant's claim, and the court further ordered, Sua sponte, a judgment N.O.V. on appellee's counterclaim. Although this order indicates that appellee's motion for new trial was denied, ¹ it, and the record, failed to so state expressly. Under the circumstances and to clear the record we hold that the order of July 17, 1975, by implication, denied appellee's motion for new trial.

Thereafter, on July 17, 1975, final judgment was entered which dismissed the appellant's complaint and appellee's counterclaim with each side to bear her and his respective costs. On July 28, 1975, appellant filed her motion for new trial, which was denied on September 5, 1975. The motion stated that it was based upon the file in this case, the evidence adduced at trial, the affidavit and memorandum of points and authorities attached to the motion. An examination of the affidavit and the memorandum reveals that the sole ground upon which appellant requested a new trial was based entirely upon jury instruction 1A which was appellant's instruction given by the court over the objection of appellee.

I.

Appellant argues that the evidence adduced in this case was sufficient to send this case to the jury for its consideration. We do not agree.

This court stated in Peine v. Murphy, 46 Haw. 233, 238, 377 P.2d 708, 712 (1962), that:

Fraud is never presumed. Where relief is sought on account of fraudulent representations, the facts sustaining the charge should be clearly and satisfactorily established. (Citations omitted.) Where misrepresentations are made to form the basis of relief, they must be shown to have been made with respect to a material fact which was actually false. (Citations omitted.)

There is no dispute that the parties met for the first time on or about June 7, 1971, when appellant went to see appellee at his room in the Ala Moana Hotel in Honolulu. Appellant was then 47 years old, married and the mother of three daughters, the oldest being 15 years of age. At the time of her first meeting with appellee, appellant was already familiar with astrologers, having previously contacted and associated with eight or nine of these astrologers on the mainland. Appellant met appellee at irregular intervals for professional consultations until December of 1972. The appellant testified at trial that appellee told appellant that in two and a half years she would become a millionaire and own much property; that it was necessary for appellant to purchase a pendant from appellee for the sum of $1,800.00 ² for the purpose of protecting appellant's daughter from being raped; and that if appellant purchased a car for appellee, ³ then within three weeks her income would triple. ⁴ Further, in the instant case, the record is absolutely bare as to any evidence to show whether the appellee had any knowledge of or knew at the time when the above representations were communicated by appellee that they were false.

We hold that...