
    STATE OF HAWAII, BY ITS ATTORNEY GENERAL, BERT T. KOBAYASHI v. MAURICE ZIMRING, ET AL.
    No. 4906.
    December 31, 1970.
    Richardson, C.J., Marumoto, Abe, Levinson, JJ., and Circuit Judge Ogata in Place op Kobayashi, J., Disqualified.
   OPINION OP THE COURT BY

MARUMOTO, J.

This is an interlocutory appeal by Maurice Zimring and Molly Zimring, defendants, from the order of the third circuit court granting the motion of the. State of Hawaii to dismiss their counterclaims in its action to quiet title to approximately 7.9 acres of land created by the Puna volcanic eruption of 1955, mentioned in State v. Zimring, 52 Haw. 472, 479 P.2d 202 (1970).

The Zimrings made two counterclaims. In the first counterclaim, they claimed title as against the State to the newly created land by adverse possession for more than 10 years. In the second counterclaim, they claimed damages against the State for trespass, disparagement of title, and interference with contract.

We need not be concerned with the propriety of dismissal of the first counterclaim.. The title as between the State and the Zimrings will be determined on the trial of the issue as to whether the State is entitled to ownership Of land newly created by volcanic eruption, upon remand of this case pursuant to State v. Zimring, supra, and not upon the issue of adverse possession by the Zimrings, for there cannot be adverse possession against the sovereign. Application of Kelley, 50 Haw. 567, 445 P.2d 538 (1968).

With respect to the second counterclaim, we think that the circuit court erred in granting the motion to dismiss. The dismissal will foreclose the Zimrings from asserting this counterclaim in case they prevail on the issue of ownership.

The State based its motion on HRS § 662-15(1), which exempts from the general waiver of immunity from liability for the torts of State employees, mentioned in HRS § 662-2, “the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved be abused.” Whether an act of a State officer or employee comes within the discretionary function exception is a question of fact.

The court treated the State’s motion as a motion under H.R.C.P. Rule 12(c), which reads:

“(c) MOTION FOR JUDGMENT ON THE PLEADINGS. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment, and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”

Eelen B. Ryan (Ryan £ Ryan of counsel, Molly D. Zimring and Franklin E. Zimring with her on the brief) for defendants-appellants.

Alana W. Lau, Deputy Attorney General (Bertram T. Kanbara, Attorney General, with her on the brief) for plaintiff-appellee.

The second counterclaim stated a claim upon which relief could be granted in the light of the general waiver of immunity in HRS § 662-2. Any exception from that waiver of immunity is a matter of defense. Stewart v. United States, 199 F.2d 517 (7th Cir. 1952). Thus, the order of dismissal here cannot be treated as an order of dismissal for failure to state a claim. Nor may it be considered as a judgment on the pleadings, for the State did not file a reply to the counterclaim, and the pleadings were not closed. Also, it may not be treated as an order on a motion for summary judgment because the State did not present any matter establishing the absence of any genuine issue of material fact with reference to the discretionary function exemption, by affidavit, or otherwise.

Reversed.  