78 Hawai'i 213, Fuller v. Pacific Medical Collections, Inc.
| Decision Date | 22 March 1995 |
| Docket Number | Nos. 17743,18338,s. 17743 |
| Citation | 78 Hawaii 213,891 P.2d 300 |
| Parties | 78 Hawai'i 213 Donna FULLER and Patricia Agcopra, individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. PACIFIC MEDICAL COLLECTIONS, INC.; Reliable Collection Agency, Ltd.; Jonathan Kirschner; and Joseph Leder; Defendants-Appellees; and John Does 1-10, Defendants. Carmela G. BAQUI, Rosalino Agcopra, and Patricia Agcopra, individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. RELIABLE COLLECTION AGENCY, LTD.; Jonathan Kirschner; and Joseph Leder; Defendants-Appellees; and John Does 1-10, Defendants. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
This consolidated appeal arises from claimed violations of Hawai'i Revised Statutes (HRS) chapter 443B (Supp.1992) which governs collection agency practices.
Although enforcement of chapter 443B, is delegated to the director of commerce and consumer affairs, that delegation does not preclude individuals qualifying as "consumers" under HRS § 480-1 (Supp.1992) from filing suit for chapter 443B violations deemed to be unfair or deceptive trade practices under chapter 480 (1985 and Supp.1992).
While the doctrine of collateral estoppel bars the relitigation of district court judgment awards following default or confession, subsequent claims for chapter 443B injunctive relief, chapter 480 damages and related punitive damages are not barred by the doctrine of res judicata because such claims could only be brought in the circuit court or were related to the circuit court claims and could not have been properly litigated in the district court.
[78 Hawai'i 216] As to summary judgment granted the defendants on Count I of the Complaint in No. 18338 (Civ. No. 93-1756) involving the question whether the plaintiffs may sue the collection agencies for their alleged failure to remit all attorney's fees collected under a judgment to the agencies' own attorney, a majority of the court would vacate summary judgment, and the dissent would affirm.
Exhibits offered in support of a motion to dismiss or for summary judgment must be admissible in evidence to be considered and good judicial administration requires that the trial courts ensure the necessary foundation has been established before granting the motion.
Corporate directors, officers, employees and agents may be personally liable and subject to the provisions of chapter 480 if they personally participate in conduct prohibited by chapter 443B.
Summary judgment on appeal will not be awarded to the nonmoving party where the moving party below has not been given a full and fair opportunity to dispute the facts alleged by his, her, or its adversary.
Norman K.K. Lau, on the briefs, Honolulu, for plaintiffs-appellants.
Robert E. Chapman and Patricia S. Zell (Stanton Clay Tom Chapman & Crumpton, of counsel), on the brief, Honolulu, for defendants-appellees.
Before BURNS, C.J., and WATANABE and ACOBA, JJ.
In this consolidated appeal, we have been asked to review the appropriateness of summary judgments 1 granted to the defendants-appellees collection agencies and employees (Defendants) against the individual plaintiffs-appellants (Plaintiffs) on allegations that Defendants' debt collection practices violated Hawai'i Revised Statutes (HRS) chapter 443B (Supp.1992), which regulates such agencies. We vacate the December 21, 1993 order granting summary judgment in Appeal No. 17743 (Fuller ). As to Counts II through IV of the complaint in Appeal No. 18338 (Baqui ), we vacate the amended order granting summary judgment. As to Count I of the complaint in Baqui, the majority of this court vacates the amended order granting summary judgment in favor of Defendants but I would affirm for the reasons set forth in Part III. Consequently, we vacate the March 11, 1994 amended order granting summary judgment in Appeal No. 18338 (Baqui ) as to all counts. Finally, we remand the cases for further proceedings.
The complaints allege that Defendants obtained judgments against Plaintiffs in the district court following assignments to defendant agencies of debts owed by Plaintiffs to health care providers. After the district court judgments were filed, Plaintiffs brought the underlying complaints in the circuit court alleging Defendants' violation of chapter 443B.
In Fuller, Plaintiffs-Appellants Donna Fuller and Patricia Agcopra (collectively, Fuller) filed suit on April 30, 1993, against Defendants-Appellees Pacific Medical Collections, Inc. (Pacific), Reliable Collection Agency, Ltd. (Reliable), Jonathan Kirschner (Kirschner), and Joseph Leder (Leder) on behalf of themselves and others. Defendants filed an answer on May 24, 1993, and an amended answer on June 4, 1993. Discovery had been commenced by Fuller. Before all discovery was completed, Defendants moved on July 23, 1993 to dismiss the complaint. 2 The motion to dismiss was supplemented by affidavits and exhibits, and therefore, treated as a motion for summary judgment under Hawai'i While Fuller was pending on appeal, Plaintiffs moved to consolidate Baqui and Fuller, with the apparent concurrence of Defendants. In the consolidation motion, counsel agreed that the briefs filed in Fuller would "serve as the briefs" in Baqui. This court granted the motion to consolidate appeals on December 5, 1994.
[78 Hawai'i 217] Rules of Civil Procedure (HRCP) Rule 56(c). HRCP Rule 12(b) and (c). 3 Accord Baehr v. Lewin, 74 Haw. 530, 546, 852 P.2d 44, 53 (1993). On November 30, 1993, the circuit court granted the motion, and the order granting the motion was filed on December 21, 1993. The order stated that "Plaintiffs have no standing." Fuller filed their notice of appeal on January 18, 1994. 4
In Baqui, Plaintiffs-Appellants Carmela G. Baqui, Rosalino Agcopra, and Patricia Agcopra (collectively Baqui) filed suit against Reliable, Kirschner, and Leder. The complaints in Fuller and Baqui set forth the same claims and prayers for relief. Defendants filed their answer on May 24, 1993 and their amended answer on June 4, 1993. In their answers, Defendants in Fuller and Baqui set forth the same defenses except that in Baqui, Defendants also included the defenses of "unauthorized transfer of accounts, misappropriation, conversion and extortion." 5 Discovery had been commenced by Baqui. Before all discovery was completed, Defendants moved on July 23, 1993 to dismiss the complaint. The motion to dismiss was supplemented by affidavits and exhibits, and therefore, treated as a motion for summary judgment under HRCP Rule 56(c). HRCP Rule 12(b) and (c). On November 30, 1993, the circuit court granted the motion to dismiss and the order was filed on December 27, 1993.
As in Fuller, the Baqui order stated that "Plaintiffs have no standing." On January 6, 1994, Baqui filed a motion for reconsideration. The court denied that motion on March 11, 1994, but directed that an amended dismissal order be filed. The amended order filed on March 11, 1994, deleted the predicate of "Plaintiffs have no standing." Baqui filed their first notice of appeal on April 7, 1994. This appeal was dismissed as premature because a final judgment had not been filed. Judgment was eventually filed on July 22, 1994. The second and effective notice of appeal was filed on August 15, 1994.
As a preliminary matter, the parties indicate that the Fuller defendants were granted leave by the Hawai'i Supreme Court to file, in the circuit court, a motion to delete the words "because Plaintiffs have no standing" from the order granting the dismissal motion. However, the record on appeal reveals that no motion is pending before the circuit court. Defendants point out that a similar order was amended in Baqui pursuant to their motion. But, in the absence of any amendment of the record, the "Plaintiffs have no standing" order is the pertinent order for purposes of the Fuller appeal.
In Fuller, the circuit court granted the motion to dismiss via a minute order on the ground that "PLAINTIFFS HAVE NO STANDING" because the "DCCA [ (director of commerce and consumer affairs) (director) ] IS THE AGENCY TO ENFORCE LAWS." The written order filed on December 21, 1993, states that "the Complaint filed April 30, 1993 is hereby dismissed with prejudice In Baqui, as also indicated supra, the same circuit court initially rendered the same order but on March 11, 1994, the court ruled that the order be amended by "deleting the phrase 'because Plaintiffs have no standing', because the basis for granting said Motion was all of the arguments in Defendants' Motion and not limited to any single argument."
[78 Hawai'i 218] because [Fuller have] no standing." As indicated supra, the order, on the present state of the record, reflects that dismissal was based on Plaintiffs' lack of standing
While HRS § 443B-2 (Supp.1992) does delegate enforcement of the chapter to the director, enforcement may also be had through HRS chapter 480 (1985 and Supp.1992). HRS § 443B-20 (Supp.1992) states that, "A violation of this chapter by a collection agency shall constitute unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce for the purpose of section 480-2." HRS § 480-2(d) (Supp.1992), in turn, permits suit on any unfair and deceptive trade practice to be brought by a "consumer." HRS § 480-13(b) allows "[a]ny consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2" to sue for damages. The complaints, thus, pray for relief under HRS § 480-13(b) (Supp.1992) based on violations of HRS chapter 443B.
A " '[c]onsumer' means a natural person who, primarily for personal, family, or household purposes, purchases ... services...." HRS § 480-1 (Supp.1992). To the extent, therefore, that Fuller and Baqui are "consu...
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