## Facts

- Jack Zukerkorn executed a $6,394.21 demand note to First Hawaiian Bank dated November 22, 1965, and a $2,500 two-year note dated September 23, 1966.
- Zukerkorn made no payments on either of the 1965 or 1966 notes.
- On August 6, 1973, Zukerkorn obtained an automobile loan from the Bank, which he later paid off on April 6, 1976.
- Around December 11, 1975, Zukerkorn applied for a Master Charge credit card; he admitted the Bank required him, as a condition of issuance, to pay $100 per month on an “old account,” and he agreed and received the card.
- The Bank asserted the “old account” referred to the 1965 and 1966 notes and that Zukerkorn made a $200 cash payment when the agreement was reached; Zukerkorn denied the notes were identified, denied the promise was tied to those notes, and denied making the $200 payment.
- After the credit card agreement, Zukerkorn made payments described as $200 (May 12, 1976), $100 (June 8, 1976), $100 (July 12, 1976), and $100 (August 23, 1976), in addition to payments on the automobile loan and the Master Charge account.
- On March 3, 1978, the Bank sued on the 1965 note, the 1966 note, and the balance due on the Master Charge account.
- The trial court entered summary judgment for the Bank on all claims; Zukerkorn appealed, disputing revival of the two older notes.

## Issues

1. Whether the record presented any genuine issue of material fact under Rule 56.
2. Whether Zukerkorn revived two otherwise time-barred promissory note debts as a matter of law through later acknowledgment and partial payments connected to the credit card transaction.

## Decision

- The court affirmed summary judgment for the Bank on the Master Charge balance because the Bank’s supporting affidavits were sufficient and were not contradicted.
- The court reversed summary judgment on the 1965 and 1966 notes because the revival question turned on disputed facts, including whether Zukerkorn made a new promise to pay those specific note debts.
- The case was remanded for further proceedings on the two notes.

## Legal Principles

- A debt barred by a six-year statute of limitations may be subject to a new limitations period if the debtor makes a new promise to pay; the promise may be express or implied.
- An express promise that is conditional does not take effect until the condition is satisfied.
- Acknowledgment of a debt or part payment is prima facie evidence of a new promise, but it is not conclusive and may be rebutted by contrary testimony and surrounding circumstances.
- Summary judgment is improper where evidence relevant to revival would permit competing factual inferences about whether a new promise was made as to the particular time-barred debt.

## Conclusion

The court held that uncontroverted evidence supported judgment on the credit card debt, but factual disputes about what “old account” Zukerkorn agreed to pay, and whether he thereby made a new promise to pay the specific time-barred notes, required reversal of summary judgment on the promissory note claims and remand for trial.


First Hawaiian Bank v. Zukerkorn, 2 Haw. App. 383, 633 P.2d 550 (Haw. Ct. App. 1981)