Schmidt v. Dubin

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-MAR-2024
07:57 AM
Dkt. 87 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

THOMAS SCHMIDT, Plaintiff-Appellant,
v.
GARY VICTOR DUBIN; DUBIN LAW OFFICES,
Defendants/Third-Party Plaintiffs/Third-Party Counterclaim
Defendants-Appellees,
and
JOHN AND MARY DOES 1-10, DOE CORPORATIONS,
PARTNERSHIPS OR OTHER ENTITIES 1-10, Defendants,
and
GARY VICTOR DUBIN; DUBIN LAW OFFICES,
Defendants/Third-Party Plaintiffs/Third-Party Counterclaim
Defendants-Appellees,
v.
JOHN S. CARROLL,
Third-Party Defendant/Third-Party Counterclaim
Plaintiff-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 15-1-0482)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.)

Plaintiff-Appellant Thomas Schmidt (Schmidt), appearing

pro se,1 appeals from the November 8, 2018 Final Judgment

(Judgment) entered by the Circuit Court of the First Circuit

1
After briefing was completed and this case was placed on the ready
calendar, on October 1, 2020, Samuel P. King, Jr. entered an appearance as
counsel for Schmidt.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(Circuit Court), in favor of Defendants/Third-Party

Plaintiffs/Third-Party Counterclaim-Defendants/Appellees Gary

Victor Dubin and Dubin Law Offices (collectively, Dubin).2

Schmidt also challenges the Circuit Court's December 27, 2016

Order Granting [Dubin's] Motion for Partial Summary Judgment #1

on All Claims Based on an Alleged Debt (Order Granting MPSJ #1).

Schmidt raises four points of error on appeal,

contending that: (1) the Circuit Court erred in granting MPSJ

#1; (2) the Circuit Court erred in denying Schmidt the
opportunity to testify as to when his claims against Dubin

accrued; (3) the Circuit Court erred in not making a

determination as to when Schmidt knew or should have known he had

a cause of action against Dubin; and (4) this case should be

remanded to the Circuit Court for a determination as to when

Schmidt's claims accrued.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, we resolve

Schmidt's points of error as follows:

Schmidt's opening brief does not comply with Hawai#i
Rules of Appellate Procedure (HRAP) Rule 28, including the

failure to cite record references as required by HRAP Rule

28(b)(3). However, the Hawai#i Supreme Court instructs that

pleadings prepared by self-represented litigants should be

interpreted liberally, and such parties should not be

automatically foreclosed from appellate review because they fail

2
The Honorable Bert I. Ayabe presided.

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to comply with court rules. Erum v. Llego, 147 Hawai#i 368,

380-81, 465 P.3d 815, 827-28 (2020). Therefore, we have

considered the merits of Schmidt's arguments to the extent they

can be discerned.

(1, 3, & 4) Schmidt argues that the Circuit Court

erred in entering the Order Granting MPSJ #1, which stated in

pertinent part:
Partial summary judgment is hereby entered in favor of
[Dubin], and against [Schmidt], on all of [Schmidt's] claims
for recovery of an alleged debt and/or which are premised
upon an alleged debt, because all claims for breach of
contract, in the nature of assumpsit and/or recovery of a
debt are time-barred as a matter of law pursuant to [Hawaii
Revised Statutes (HRS) § 657-1(1) (2016)]. This includes,
e.g., [Schmidt's] claims against [Dubin] for breach of
contract, financially benefitting from breach of contract,
deprivation of [Schmidt's] assets, unjust enrichment,
intentional infliction with economic advantage, retention of
economic benefit, conversion, return of money, an
accounting, fraud, fraudulent concealment, reimbursement of
attorneys' fees and costs, and any other claims by [Schmidt]
in this lawsuit, which are premised in any way upon an
alleged debt.
In addition, pursuant to HRCP 56(d) and HRE 201, the
Court takes judicial notice of the judicial admissions made
on the record by [Schmidt] in this action, that [Schmidt] is
not pursuing a legal malpractice claim against either
[Dubin] and accordingly, hereby enters partial summary
judgment in favor of [Dubin], and against [Schmidt], on all
of [Schmidt's] claims for legal malpractice, pursuant to
HRCP 54(d).

Schmidt makes no argument on appeal that the Circuit
Court erred in granting partial summary judgment on any legal

malpractice claim, and therefore, any challenge to that ruling is

waived.

Schmidt's sole argument is that the Circuit Court erred

in concluding that his breach of contract claims against Dubin

were time-barred as a matter of law.3

3
Schmidt makes no argument on appeal that the Circuit Court erred
in concluding that claims other than the breach of contract claim were time-
barred. Therefore, any challenge to the entry of summary judgment with
(continued...)

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The parties agree that the statute of limitations for a

breach of contract claim is six years and that an action must be

commenced within six years after the cause of action accrued,

pursuant to HRS § 657-1(1). The allegedly breached agreement was

for Dubin to provide legal services to Schmidt in a separate suit

that Schmidt had initiated pro se against Jerry A. Ruthruff

(Ruthruff Suit). Dubin argues that Schmidt's breach of contract

cause of action accrued in 2006, because that was when Dubin

"repudiated" Schmidt's claim that he had paid Dubin $100,000 to
represent him, and Schmidt had knowledge of the facts necessary

for him to bring a breach of contract action. Schmidt argues

that his breach of contract claims against Dubin did not accrue

until November 18, 2013, when an order of dismissal was entered

against him in the Ruthruff Suit. Evidence was presented that

Dubin did in fact repudiate Schmidt's claim and that a check

payable to Dubin for $25,000 was to pay for his representation of

Schmidt's son. However, there is also evidence in the record

that Dubin "threatened" to withdraw as counsel in the Ruthruff

Suit in 2009 and that Dubin remained counsel of record until

after the Ruthruff Suit was dismissed.
Under Hawai#i law, "a right of action accrues whenever
. . . a breach of . . . contract has occurred . . . as will
give a right to then bring and sustain a suit."
Schimmelfennig v. Grove Farm Co., 41 Haw. 124, 130 (1955);
see also Waxman v. Citizens Nat. Trust & Sav. Bank of Los
Angeles, 123 Cal.App.2d 145, 266 P .2d 48, 50 (1954)
("Ordinarily, a cause of action for breach of contract

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(...continued)
respect to other claims identified in the first quoted paragraph of the
Circuit Court's Order Granting MPSJ #1 is waived. See HRAP Rule 28(b)(7).
Similarly, Schmidt makes no arguments concerning the Circuit Court's December
27, 2016 order granting Dubin's motion for partial summary judgment #2, and
therefore any challenge to that order is waived.

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accrues on the failure of the promisor to do the thing
contracted for at the time and in the manner contracted.")
Water Comm'n of County of Hawai#i v. Nat'l Am. Ins. Co., 930
F.Supp. 1411, 1419 (1996).

Weidenbach v. Koolau Agr. Co., Ltd., No. 24315, 2009 WL 537098,

*4 (Haw. App. Mar. 3, 2009) (SDO); see also Au v. Au, 63 Haw.

210, 219, 626 P.2d 173, 180 (1981) ("Normally, the statute of

limitations begins to run on a contract when the contract is

breached."). Nevertheless, this court has held:
However, where a duty imposed prior to a limitations
period is a continuing one, the statute of limitations is
not a defense to actions based on breaches of that duty
occurring within the limitations period[.] Furthermore,
where a contract provides for continuing performance over a
period of time, each breach may begin the running of the
statute anew such that accrual occurs continuously. Thus,
for the purposes of the statute of limitations, the effect
of a continuing obligation in a contract is that the cause
of action accrued anew every day for each continuation of
the wrong.

Dominguez v. Price Okamoto Himeno & Lum, No. 28140, 2009 WL

1144359, *4 (Haw. App. Apr. 29, 2009) (SDO) (citations and

quotation marks omitted).

Here, there is no ruling that an agreement existed

between Schmidt and Dubin, only that the statute of limitations

had run on any contract claims. We make no finding concerning
the existence or terms of an agreement or contract between the

parties. Yet, "the moment at which a statute of limitations is

triggered is ordinarily a question of fact." Norris v. Six Flags

Theme Parks, Inc., 102 Hawai<i 203, 206, 74 P.3d 26, 29 (2003)

(citation omitted). The Circuit Court made no determination as

to when Schmidt's alleged breach of contract cause of action

accrued. Moreover, based on the record before the Circuit Court

and the standards applicable to summary judgment, we conclude

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that there is a genuine issue of material fact as to when an

alleged breach of contract action accrued in this case.

Therefore, the Circuit Court erred in concluding that Schmidt's

breach of contract claims against Dubin were time-barred as a

matter of law.

(2) Schmidt makes no argument in support of his second

point of error, and therefore it is waived. See HRAP Rule

28(b)(7).

For these reasons, the Circuit Court's November 8, 2018
Judgment is affirmed in part and vacated in part. The Judgment

is vacated with respect to the Circuit Court's granting of

summary judgment on Schmidt's breach of contract claim(s) against

Dubin on the grounds that they were time-barred. The Judgment is

affirmed in all other respects. This case is remanded to the

Circuit Court for further proceedings consistent with this

Summary Disposition Order.

DATED: Honolulu, Hawai#i, March 28, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Thomas F. Schmidt,
Plaintiff-Appellant, Pro Se. /s/ Clyde J. Wadsworth
Associate Judge
Lois H. Yamaguchi,
Jodie D. Roeca, /s/ Sonja M.P. McCullen
(Roeca Luria Shin LLP), Associate Judge
for Defendants/Third-Party
Plaintiffs/Third-Party
Counterclaim-Defendants/
Appellees.

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