SUMMARY DISPOSITION ORDER
The Association of Apartment Owners of Moana Pacific (AOAO) appeals from the Hawai‘i Rules of Civil Procedure (HRCP) Rule 54(b) judgment for Tropical Plumbing & Bath, Inc. and its owner, Melvin Charles Beeck, Jr., entered by the Circuit Court of the First Circuit on April 23, 2019.
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The AOAO challenges the: (1) July 7, 2016 order denying its motion to dismiss Tropicals complaint;
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and (2) February 11, 2019 order granting in part and denying in part Tropical and Beecks motion for partial summary judgment. We affirm in part, vacate in part, and remand for further proceedings.
(1) We review a ruling on a motion to dismiss de novo. We assume the facts alleged in Tropicals complaint are true and view them in the light most favorable to Tropical to determine if they warrant relief under any legal theory. Bank of Am., N.A. v. Reyes-Toledo, 143 Hawai‘i 249, 256-57, 428 P.3d 761, 768-69 (2018).
Tropicals complaint alleged that Tropical contracted with the AOAO to hydro-jet the Moana Pacifics laundry and kitchen sink drain lines. A copy of the contract was attached. The AOAO terminated the contract before Tropical began its work.
The AOAO argued the contract was void because it didnt contain information about lien rights, bonding, and Tropicals statutory right to resolve alleged construction defects before litigation, as required by Hawaii Revised Statutes (HRS) § 444-25.5.
Tropical argued that the AOAO was not a “homeowner” to whom HRS § 444-25.5 applied. We need not resolve that legal issue because HRS § 444-25.5 does not apply to a contract for maintenance work that does not require a permit. Hawaii Administrative Rules (HAR) § 16-77-80(c) (eff. 2002). Viewing the allegations in the complaint in the light most favorable to Tropical, the scope of work under Tropicals contract is “service-type work (e.g., maintenance work performed by ․ plumbing contractors) that does not require a permit by a county or other local subdivision of the State.” Id. The circuit court was not wrong to deny the AOAOs motion to dismiss.
(2) Tropical and Beeck moved for partial summary judgment on its claim for breach of contract and the AOAOs counterclaim for negligent misrepresentation and fraud in the inducement on December 21, 2018.
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The AOAO counter-moved for partial summary judgment on Tropicals claim for breach of contract on December 28, 2018. On February 11, 2019, the circuit court entered orders granting summary judgment for Tropical on its claim for breach of contract and on the AOAOs claims for negligent misrepresentation, fraud, and conspiracy, and denying the AOAOs counter-motion.
We review a grant of summary judgment de novo. Nozawa v. Operating Engineers Local Union No. 3, 142 Hawai‘i 331, 338, 418 P.3d 1187, 1194 (2018). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id. at 342, 418 P.3d at 1198. A fact is material if it would establish or refute an element of a cause of action or defense. Id. The evidence is viewed in the light most favorable to the non-moving party. Id.
(a) The AOAOs second amended counterclaim alleged that Beeck negligently misrepresented Tropicals hydro-jetting experience, and that Beeck, Tropicals CEO Olivia Kwong, and the AOAOs former resident manager Randy Kowalkowski fraudulently induced the AOAO to sign the contract.
To prove negligent misrepresentation the AOAO must show: (1) false information was supplied because of failure to exercise reasonable care or competence in communicating the information; (2) the AOAO relied on the false information; and (3) the AOAO suffered a loss. Santiago v. Tanaka, 137 Hawai‘i 137, 154, 366 P.3d 612, 629 (2016). To prove fraudulent inducement sufficient to invalidate the contract, the AOAO must show (1) a representation of a material fact, (2) made to induce the AOAO to act, (3) known to be false but reasonably believed true by the AOAO, and (4) on which the AOAO reasonably relied and acted to its damage. Matsuura v. E.I. du Pont de Nemours & Co., 102 Hawai‘i 149, 162–63, 73 P.3d 687, 700–01 (2003).
Viewed in the light most favorable to the AOAO, the AOAOs evidence showed that Tropical misrepresented its hydro-jetting experience to the AOAO, and the AOAO relied on Tropicals misrepresentation and would not have contracted with Tropical had it known of Tropicals lack of experience. Tropical argues that any misrepresentation to the AOAO was made by Kowalkowski (the AOAOs resident manager), not Tropical. But the AOAO presented evidence of the relationship between Kowalkowski and Beeck that, when viewed in the light most favorable to the AOAO, could show that Kowalkowski acted as Tropicals agent. Whether Tropical exercised reasonable care or competence in communicating its hydro-jetting experience, whether Kowalkowski was Tropicals agent, and whether the AOAOs reliance was reasonable, are questions for the trier of fact that should have precluded summary judgment.
(b) If the AOAO proves that Tropical fraudulently induced it to contract for the hydro-jetting, the contract would be invalid. There were genuine issues of material fact precluding summary judgment on the AOAOs fraudulent inducement claim. The circuit court thus erred by granting summary judgment for Tropical on its breach-of-contract claim.
For these reasons, the July 7, 2016 “Order Denying Defendant Association of Apartment Owners of Moana Pacifics Motion to Dismiss Plaintiff Tropical Plumbing & Bath, Inc.s Complaint with Prejudice, Filed on May 31, 2016” is affirmed; the February 11, 2019 “Order Granting in Part and Denying in Part Without Prejudice Plaintiff/Counterclaim Defendant Tropical Plumbing & Bath, Inc. and Additional Counterclaim Defendant Melvin Charles Beeck, Jrs Motion for Partial Summary Judgment, Filed on December 21, 2018” is vacated; the April 23, 2019 “HRCP Rule 54(b) Judgment in Favor of Plaintiff/Counterclaim Defendant Tropical Plumbing & Bath, Inc. and Counterclaim Defendant Melvin Charles Beeck, Jr. and Against Defendant/Counterclaim Plaintiff Association of Apartment Owners of Moana Pacific” is vacated; and this case is remanded to the circuit court for further proceedings consistent with this summary disposition order.
Keith K. Hiraoka Presiding Judge
Sonja M.P. McCullen Associate Judge
Kimberly T. Guidry Associate Judge
FOOTNOTES
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. The Honorable James C. McWhinnie presided.
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. The Honorable Virginia L. Crandall presided.
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. Tropical moved for summary judgment on its claim for breach of the implied covenant of good faith and fair dealing, but that claim was dismissed by stipulation of the parties on February 12, 2019. Tropical also moved for summary judgment on the AOAOs counterclaim that Beeck, Kwong, and Kowalkowski conspired to defraud the AOAO, but “[c]ivil conspiracy does not alone constitute a claim for relief.” Roberts Haw. Sch. Bus, Inc. v. Laupahoehoe Transp. Co., 91 Hawai‘i 224, 260 n.44, 982 P.2d 853, 889 n.44 (1999) (citations omitted), superseded on other grounds by statute as noted in, Haw. Med. Assn v. Haw. Med. Serv. Assn, Inc., 113 Hawai‘i 77, 106-07, 148 P.3d 1179, 1208-09 (2006).