*1 58B JAIME V. DEL ROSARIO DAVID KOHANUINUI
AND COMMERCIAL REFUSE SERVICE.
Nо. 4980. 24, 1971. Richardson, C.J., Marumotó, Abe, Jj.
Levinson and' Kobayashi, KOBAYASHI, OPINION BY OP THE COURT from an order of the appeal circuit court *2 defendant’s granting motion dismiss.
On Y. Del 2,1965 Jaime Rosario filed a injuries suffered on March 1963 due complaint alleging to defendant David of negligеnt operation Kohanuinui’s Defend- defendant Commercial Refuse Service’s vehicle. claim was barred alleged by ants’ answer this part of limitations.1 Defendants year two filed a motion to dismiss this subsequently upon grоund. testimony given by At a on this hearing motion, Kenneth K. attorney Koyanagi, plaintiff’s Refuse Service. for the insurer of defendant Commercial between testimony negotiations settlement dealt with filing complaint. prior thеse two conducted to the of his contention that the conduct Koyanagi, To support from as- estopped defendants equitably defendants’ agent, plaintiff’s at- bar, the statute limitations serting noting affidavit personal torney additionally submitted this The adjuster. this substance negotiations all follows. plain- 1964 he wrote to in June stated that Koyanagi Dr. Nada- that his requesting physician, attorney tiff’s reason Rosario. Koyanagi’s Del examine plaintiff moto, injuries attrib- of plaintiff’s the extent to determine Del Rosario hav- negligence, alleged to defendants’ utable before March 1, in a accident prior hurt been Ko- between сonversations Following telephone this letter, the matter took attorney regarding and plaintiff’s yanagi plaintiff’s called Koyanagi on August 12,1964, Then place. had was told plaintiff the examination attorney аbout 241-7, Damage persons language or § ItLH The relevant property, is: injury damages recovery compensation “Actions for years property two after within persons cause shall be instituted * ** accrued, .” of action statutory counterpart. 657-7is the current HRS a law proceed given green light” “the attorney me time told you suit. “At that further Koyanagi testified, ap- he even Nadamoto. by not examined get would you You made said pointment phone. wasn’t I heard on [August 12, time it, that’s 1964] you.” hand, the other attorney, The on al- attorney contradicted Koyanagi’s significantly. were dis-
leged negotiations that at the time settlement аt request September, cussed “in and in August, of the suit because Mr. filing withheld the Koyanagi examined wanted have. the plaintiff to at least making denied physician to that.” prior that “either asserted request. Plantiff’s further *3 other 1964 1965 we had December of January Mr. because discussion Mr. Koyanagi [and] by Del not been examined point Rosario at that had still Rosario Del I to contact Mr. Nadamoto, supposed to contaсt Dr. Nadamoto Mr. was supposed having recall this was the conversation again, and had with does not recall Koyanagi.” Koyanagi Mr. conversation. much of reiterates
The affidavit substance of his and also states that talk of December 1964 1965 January promised “was a representative [Koya- doctor’s defendants’ until nagi] not to file an action the same was agreed received.” to dismiss statute defendаnts’ motion on the granting the court “no mislead- concluded there was limitations, claim rejecting plaintiff’s adjuster,” thus finding pre- We
equitable estoppel. reverse, as to a material genuine sented raises a issue entitled not to a that defendants therefore were as a matter of law. Aku v. 52 Haw. Lewis,
If when on motion ruling to dismiss, tbe court con siders matters outside tbe as it did in tbe pleadings, instant tbe motion case, becomеs one for summary judgment. Richards v. Midkif, 396 P.2d 32, 38, (1964); H.R.C.P. Rule 12(b).2 As the affidavit of plain tiff’s attorney was before tbe properly we must court, determine on appellate review whether all of tbe evidence, when viewed in tbe light most favorable to Del Rosario, presents a genuine factual issue equi that would tably estop. defendants tbe asserting statutory bar. Aku v. Lewis, supra at
When there is disputed material factual issue as to whether a suit is timеly defendant should not brought, a be granted on the summary judgment basis limitations. Begnaud (6th F.2d 323 Cir. White, Delson v. 1948); Supp. (E.D.N.Y. F. Minogue, 190 1961); Zimmerman v. F. Supp. Poindexter, (D.C. 56.17(21) Practice 1947); Haw. Federal Moore, 2546 (2d 1966). ed. therefore on this sole appeal is whether the evidence raises the issue of estoppel; induced to namely, through attorney, plaintiff, refrain from before filing suit because Koyanagi’s conduct? we are this factual deciding
While not concerned *4 plaintiff’s and the affidavit of conflicting testimony issue, the initially wrote to attor- Koyanagi do raise it. attorney that see Nadamoto. asking in June 1964 ney plaintiff seven thereafter other Communications For about weeks August 12,1964 this sаme On regarding subject. transpired 56(e) part: Rule H.R.C.P. reads in [summary] judgment sought if rendered forthwith the be “The shall genuine affidavits, any, pleadings, no that there is [and] if show issue, any moving party is entitled and that as to material fact * * *” law. to a a matter Koyanagi’s plaintiff’s attorney phone call received and ready allegedly requested stated he was to file was suit, and Koyanagi plaintiff not to do wanted examined so because request allegedly made a month first. Another such allegedly in in had Decem- later. Then a final conversation Koyanagi agreed Januáry to call Dr. Na- ber supplied)3 “promised” (emphasis to to send damoto and attorney plaintiff’s report. attorney, in The doctor’s agreed legal not to commence action until the turn; received. Koyanagi’s say this evidence we cannot that view of plaintiff’s latе not induced claimed conduct could have filing. Undisputed establishes that seven months attorney tolling prior plaintiff’s had his to the statute’s permission Koyanagi client’s file knew this, suit, medically Koyanagi and Del Rosario examined wanted ongoing negotiations concluded. settlement were before legal charged forestalling plaintiff’s contingency The action Koyanagi’s request4 physical and at was this examinatiоn, attorney agreed' defer-litigation he received until report. attorney plaintiff’s months follow- some two hád That alleged in filé suit which communication estoppel.5 necessarily preclude his assertion not does summary judgment opposition motion for While affidavit to a an issúe, resolving may, be it for a factual' as the basis cannot be used considered ards v. Cf. presented. of fact Rich to ascertain whether an issue supra Midkiff, at 39. August 1964, Sep- attorney requests made in were Plaintiff’s claims January finally and in December tember precise point factual determina- on this makes a clash Koyanagi’s impossible promрts consideration of tion summary judgment credibility,
attorney’s improper res- matter 456, 459, Midkiff, olution. State January nego- noting 1964 or 1965” in this “December Worth is that arranging tiation, plaintiff’s ex- the medical testified that notify was to cоntact amination promise, of either evidence indicate doctor. does the satisfaction Nowhere *5 588
A plausible inference6 tbe evidence is the attor- ney fully expected prior to March 1, inference and the issue of raised estoppel must be thereby resolved by the trier of fact.
Reversed and remanded for trial. John F. Zimmerman & (Fong, Miho, Ghoy Robinson of counsel) for plaintiff-appellant.
Wayne Kekina K. (Herbert Shimabukuro with him on the brief, Shimabukuro & Ventura Libkuman, counsel) for defendants-appellees. MARUMOTO,
DISSENTING OPINION OE dissent. The sole here is the existence or nonexistence of a genuine issue of material mate- rial fact whether the being actions оf the of de- fendants’ insurance lull carrier were such attorney reasonably feeling security into the de- fense limitation would not be asserted. existence nonexistence of that issue is deter- test, mined by the same which a motion for directed verdict. Chambers v. United 357 224 States, F.2d (8th Cir. Fischer Co. 1966); Construction v. Firemen’s Fund Insurance 420 (10th F.2d 271 Cir. Co., 1969).
That test is stated in v. Southern Railway Brady Co., 320 U.S. as follows: 476, (1943), “When the evidence is weighing such that without promise pеrformance nor if was conditioned on the other. McGrath, 480, Note, Homes, however, Chesapeake 489, 249 Md. Inc. 245, (1968) Valley ; Bank of Phoenix v. A.2d Nat. Electrical (1961); Pomeroy, 90 Ariz. Dist. No. P.26 1941). Equity Jurisprudence (5th 813 236 ed. underlying alleged in the Inferences drawn from the facts materials ruling (affidavits testimony) the court on a motion considered summary light most to the be viewed in favorable must Garages, opposing party 628, the motion. Abraham v. S.E. Onorato *6 the сredibility of the witnesses there but can be reasonable as to the court conclusion the should verdict, determine the directed proceeding verdict non-suit, or otherwise in accordance the рractice without, the submission to or by notwith- jury, the such standing By verdict. direction the trial of the result is saved from the mischance of over speculation legally unfounded claims.”
Another the statement of test in Fischer Cоns appears truction Co. Fund v. Firemen’s Insurance supra at Co., it is that a justified stated directed verdict is There, if proof the is “so in overwhelmingly preponderant favor of the movant as to no other permit rational conclusion.”
In this the test in jurisdiction, stated Carreira v. Haw. Territory, a case a 513, (1954), involving of question as follows: negligence,
“Where the are disputed facts and reasonable men differ on or the might the facts inferences which may reasonably be the drawn the of facts, negligence jury is left the under proper instructions; but where there is no conflict from the evidence and but it one inference can bе drawn from the is the duty facts, the the question of court of pass upon negligence proximate questions cause of law.” test That has been reiterated in Price, Haw. Young Haw. 313, (1963), rehearing 395 P.2d 367 (1964). court mo- granted the circuit defendants’ case, that plaintiff’s attorney tion “was not stating dismiss, lulled into it like to make it “would security,” remiss in not eminently attorney] clear [the his time.” filing complaint in showing
Without into of made at going the details on thе motion think that hearing proof dismiss, in the de- so favor overwhelmingly preponderant conclusion than as to no other rational" permit fendants the circuit court. that reached to file com- That the failure lulled into being manner not due to timely a plaint not-be asserted that the statute would feeling security done on March filing-was the fact that is evident-from had from the attor- after the statute day run; 1965,.one discussion in his affidavit after his last ney’s that, statement two January 1965, in the first week period expiration limitation, before the months three and on the weeks period out of state for “was and from legislative duties”; involved return thereof *7 2nd realized “in March we 1965.” filed the action on run and statute had