Wiginton v. Pacific Credit Corp.
| Decision Date | 21 September 1981 |
| Docket Number | No. 7165,7165 |
| Citation | 2 Haw.App. 435,634 P.2d 111 |
| Parties | Roy L. WIGINTON, Plaintiff-Appellee, Cross-Appellant, v. PACIFIC CREDIT CORPORATION, dba City Collectors, Defendant-Appellant, Cross- Appellee, and State of Hawaii, by Walter T. Yamashiro, Director of the Office of Consumer Protection, Applicant for Intervention. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. A trial judge possesses broad discretion to grant or deny equitable relief.
2. It is improper to grant summary judgment on a claim under Hawaii Revised Statutes (HRS) § 480-13 (1976, as amended) where an issue of fact exists as to whether damages were incurred.
3. An appellate court may decline to decide issues which have become moot in the course of appeal.
4. The abolition of the administrative agency moots the issue of primary jurisdiction.
5. The denial of a Hawaii Rules of Civil Procedure (HRCP), Rule 41(b), motion to dismiss for contumacious conduct will not be reversed on appeal absent an abuse of discretion.
6. A compromise and settlement should be construed to include only those matters the parties intended to include.
7. A release between parties on a retail installment contract does not ipso facto release a party's collection agency from a deceptive collection practice action.
8. To make a case under HRS § 480-13 (1976, as amended), four elements must be proved: (1) violation of chapter 480; (2) injury to plaintiff's business or property resulting from such violation; (3) proof of the amount of damages; and (4) that the action is in the public interest or that the defendant is a merchant.
9. Violations of chapter 443 are per se statutory violations for purposes of HRS § 480-2 (1976).
10. Under HRS § 480-13 (1976, as amended), the making of a payment to a creditor is not injury to a person's property unless the payment is made beyond an existing debt or obligation.
11. Under HRS § 480-13 (1976, as amended), the incurring of an expense is not injury to a person's property unless the expense is incurred in pursuance of matters beyond an existing debt or obligation.
12. De minimus damages are sufficient for an action under HRS § 480-13 (1976, as amended).
13. Voluntary cessation of the illegal activity does not necessarily moot a request for an injunction under HRS § 480-13 (1976, as amended).
14. The issues of costs and fees may be decided prior to entry of judgment or within a reasonable time thereafter prior to an appeal being taken under HRCP, Rule 73.
15. Where an appeal is taken on the merits before costs and fees are awarded, the lower court loses its jurisdiction to award them until disposition of the appeal.
16. Where a statute provides that attorney's fees and costs shall be paid to a prevailing party, an award will not be denied because legal representation was provided without charge if the party is legally obligated to pay to his counsel whatever fees he receives.
Matthew J. Yingling, Honolulu (James M. Sattler, Honolulu, with him on the briefs), for defendant-appellant, cross-appellee.
John Harris Paer, Legal Aid Soc. of Hawaii, Honolulu (Richard S. Kanter, Legal
Aid Society of Hawaii, Honolulu, with him on the briefs), for plaintiff-appellee, cross-appellant.
Before HAYASHI, C. J., and PADGETT and BURNS, JJ.
In this suit for relief against unfair and deceptive collection practices, Defendant Pacific Credit Corporation, dba City Collectors, appeals the granting of summary judgment in favor of Plaintiff Roy L. Wiginton and the denial of its cross-motion for summary judgment; Wiginton cross-appeals the failure to award him reasonable attorney's fees. We affirm in part and reverse in part.
The primary issues on appeal are as follows:
(1) Whether the trial court erred in not invoking the doctrine of primary jurisdiction. The issue is moot.
(2) Whether the trial court abused its discretion when it refused to dismiss Wiginton's suit for his failure to prosecute. Affirmed.
(3) Whether the trial court erred in concluding that the Release given by Wiginton to his creditor did not release his claims against City Collectors. Reversed.
(4) Whether the trial court erred in finding, as a matter of law, that Wiginton established his right to damages under Hawaii Revised Statutes (HRS) § 480-13 (1976, as amended) by showing that he was wrongfully induced to pay money or incur expenses beyond an existing obligation as a result of a per se statutory violation. Reversed.
(5) Whether the trial court erred in deciding that Wiginton's request for a permanent injunction was not moot. Affirmed.
(6) Whether the trial court erred in failing to award Wiginton reasonable attorney's fees. Affirmed.
Under Rule 56, Hawaii Rules of Civil Procedure (HRCP), a plaintiff moving for summary judgment is entitled to judgment as a matter of law if the record shows no genuine issue as to any material fact. Technicolor Inc. v. Traeger, 57 Haw. 113, 118, 551 P.2d 163, 168 (1976). For purposes of this appeal, the facts and inferences drawn from them will be viewed in the light most favorable to City Collectors. Iuli v. Fasi, 62 Haw. 180, 184, 613 P.2d 653 (1980).
On June 30, 1972, Wiginton executed a contract with Peoria Motors, Inc., of Peoria, Illinois, for the purchase of a new truck for $6,644.92. Wiginton financed the purchase through Jefferson Trust and Savings Bank of Peoria (Jefferson Bank). Wiginton then moved to New York. Before he moved to Hawaii in 1974, Wiginton, with the Jefferson Bank's permission, sold the truck and applied the "majority" of the proceeds to the debt. 1
On January 20, 1976, Wiginton suffered an injury and since that time has been unable to work. The record does not tell us what, if anything, occurred with respect to the debt between the application of the sales proceeds and Wiginton's injury. 2
On or about March 4, 1976, City Collectors, as the Jefferson Bank's assignee for collection,sent a demand for payment to Wiginton as follows:
DEMAND FOR PAYMENT CREDITORS
STATEMENT
CREDITOR(S) DATE --------------------------------
Jefferson Trust & 3/4/76 Total Amount
Savings Bank
Past Due $ 1284.43
3
--------------------------------
Roy Wiginton Probable
543 Wailepo St. Expense of
A-3
Kailua, Hawaii Legal Process $ 1000
96734
--------------------------------
TOTAL $ 2284.43
--------------------------------
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This private notice is sent to you in order to save additional costs.
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TO THE ABOVE NAMED DEBTOR
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DEMAND is hereby made upon you for PAYMENT, on or before 3/8/76 4 of the
TOTAL sum past due, on the above claim. You are hereby notified that in the
event that this notice is not honored within the time allowed, STATUTORY
PROCESS will be instituted to enforce payment, WITHOUT further notice
whatever being sent you.
CITY COLLECTORS
a division of
PACIFIC CREDIT CORPORATION
Phone (808) 536-7011 (Footnotes added.) City Collectors claims not to have intended to collect from Wiginton any pre-suit payments in excess of $1,284.43, but only to have included the probable attorney's fees in the belief that if a trial were necessary, taxable costs as set forth in HRS § 607-14 (1976) would be incurred.
Upon receipt of the demand for payment, Wiginton became greatly distressed as it appeared to him that City Collectors was requiring him to pay $2,284.43 to cover the probable expenses of $1,000.00 as well as the basic $1,284.43. Immediately after receipt of the demand, he sent City Collectors a money order in the amount of $10.00 and then consulted his attorney. City Collectors subsequently sent a receipt for the $10.00, dated March 10, 1976. The receipt shows that the amount of the account had been $1,284.43, that the amount paid was $10.00, that the payment was by money order, and that the balance due was $1,274.43.
On October 22, 1976, Jefferson Bank filed with the District Court of the First Circuit a complaint against Wiginton for the $1,274.43, the same debt alleged in the demand for payment minus the $10.00 sent, plus the costs of court, interest, and attorney's fees (Civil No. P76-803). On March 2, 1977, this law suit was dismissed with prejudice pursuant to a Compromise Settlement and Mutual Release Agreement (Release) dated February 16, 1977. Wiginton incurred no liability for either the alleged debt or the legal costs. City Collectors was not a named party to the Release.
On December 7, 1976, Wiginton filed his complaint against City Collectors, praying City Collectors moved to stay all proceedings until the court determined the primary jurisdiction issue. On March 9, 1977, the trial court orally denied City Collectors' motion and orally ordered Wiginton to file a petition with the State of Hawaii Collection Agency Board (hereinafter "Board"), requesting that rules and regulations be drafted regarding the prohibited practices part of HRS chapter 443 (1976, as amended) 10 and orally issued a temporary restraining order against City Collectors' use of its demand form. Although proposed orders were submitted by both parties, no orders were ever signed until April 7, 1978, when the trial court entered an order denying the motion to stay all proceedings.
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