THE BUREAUS INVESTMENT GROUP, NO. 2, LLC, Plaintiff-Appellee,
BLASE HARRIS, Defendant-Appellant.
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL No. 08-1-357K).
Paul J. Sulla Jr. for Defendant-Appellant.
Marvin S. C. Dang Jason M. Oliver Paul T. Holtropp for Plaintiff-Appellee.
Leonard, Presiding Judge, Reifurth and Ginoza, JJ.
Defendant-Appellant Blase Harris (Harris) appeals from a Judgment filed August 9, 2010, in the Circuit Court of the Third Circuit (circuit court),  in which the circuit court ruled in favor of Plaintiff-Appellee The Bureaus Investment Group, No. 2, LLC (Bureaus LLC) and against Harris. Judgment was entered pursuant to an "Order Granting Plaintiff's Motion for Summary Judgment as to (1) Plaintiff's Claim Against Defendant and (2) Defendant's Counterclaim" filed on February 2, 2 010.
On appeal, Harris contends that the circuit court erred by (1) not barring Bureaus LLC's claims against Harris pursuant to the statute of limitations; (2) finding no genuine issue of material fact concerning Harris' alleged new promise to pay Bureaus LLC on an account stated; (3) failing to issue a determination as to whether Bureaus LLC is a real party in interest; (4) finding no genuine issue of material fact concerning the amount Harris is alleged to have promised to pay-Bureaus LLC; (5) concluding that Harris was indebted to Bureaus LLC based on evidence for which a sufficient evidentiary-foundation had not been established under Hawaii- Rules of Evidence (HRE) Rule 803(b)(6); and (6) not dismissing Bureaus LLC's First Amended Complaint based upon Bureaus LLC's failure to fulfill conditions set forth in an "Order Granting Plaintiff's Motion to Set Aside Order of Dismissal" (Order Setting Aside Dismissal) filed on October 28, 2008 by the Circuit Court of the First Circuit (First Circuit Court).
For the reasons discussed below, there are genuine issues of material fact as to whether Bureaus LLC's claims are time barred and thus the circuit court properly did not grant summary judgment for Harris on his statute of limitations defense. Likewise, there are genuine issues of material fact whether Bureaus LLC is entitled to collect on the alleged debt and therefore it was error to grant summary judgment in favor of Bureaus LLC. We vacate the judgment and remand for further proceedings.
In this case, Bureaus LLC seeks to recover sums that it alleges Harris owes on an outstanding credit card debt. Bureaus LLC contends that it was assigned the rights to become the creditor on the debt. Harris contends, inter alia, that he previously cleared any outstanding debt, that Bureaus LLC's claim is barred by the statute of limitations, and that Bureaus LLC has failed to establish it is a real party in interest.
On November 6, 2007, Bureaus LLC filed a complaint in the First Circuit Court asserting that Harris had an outstanding credit card debt of $20, 936.16, plus interest. On July 11, 2008, the First Circuit Court dismissed the complaint for want of service. On September 24, 2008, Bureaus LLC filed a "Motion to Set Aside Order of Dismissal Filed on July 11, 2008" pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 60(b). In seeking to set aside the dismissal, Bureaus LLC asserted, inter alia, that the statute of limitations had expired on November 14, 2007. On October 28, 2008, the First Circuit Court filed the Order Setting Aside Dismissal, which included an order that the case be transferred to the Third Circuit.
Bureaus LLC thereafter filed a First Amended Complaint in the Third Circuit on February 6, 2009. On October 22, 2009, Bureaus LLC filed a Motion for Summary Judgment. In support of its summary judgment motion, Bureaus LLC adduced evidence that Harris became delinquent on a credit card issued by First USA Bank, N.A. (First USA) and that on or around January 2000, First USA "charged off" Harris's credit card account, removing it as an asset from First USA's books. Bureaus LLC asserted that it acquired the rights to Harris's outstanding credit card debt by way of a bill of sale and assignment of rights. Bureaus LLC argued that Harris made five payments to Bureaus LLC after it had acquired rights to his account, the last of which was a check made payable to "The Bureaus Inc." dated November 8, 2001, in the amount of $14 8.
On November 23, 2009, Harris filed an opposition to Bureaus LLC's summary judgment motion, as well as a motion to dismiss. In opposing Bureaus LLC's summary judgment motion and in his affirmative motion to dismiss, Harris argued, inter alia, that the claims against him were time barred. We note that as to his motion to dismiss, Harris attached thereto his declaration and exhibits and we will thus treat this motion as a motion for summary judgment. Wong v. Cavetano, 111 Hawai'i 462, 476, 143 P.3d 1, 15 (2006) ("[A] motion seeking dismissal of a complaint is transformed into a Hawai'i Rules of Civil Procedure (HRCP) Rule 56 motion for summary judgment when the circuit court considers matters outside the pleadings[.]"); HRCP Rule 12(c) ("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.") .
In an order filed January 6, 2010, the circuit court denied Harris's motion to dismiss. Harris then filed a Motion for ...