Hawaiian Trust Co., Ltd. v. Cowan, 8641

• Decision Date: 19 April 1983
• Docket Number: No. 8641,8641
• Citation: 4 Haw.App. 166,663 P.2d 634
• Parties: HAWAIIAN TRUST COMPANY, LIMITED, Plaintiff-Appellee and Cross-Appellant, v. Rex COWAN, Kayoko Cowan, also known as Kayoko Takatsu, and Francis X. Mullahey, Defendants, and Jerry P. Beam and Ben Gromet, Defendants-Appellants and Cross-Appellees.
• Court: Hawaii Court of Appeals

Page 634

663 P.2d 634

4 Haw.App. 166

HAWAIIAN TRUST COMPANY, LIMITED, Plaintiff-Appellee and Cross-Appellant, v. Rex COWAN, Kayoko Cowan, also known as Kayoko Takatsu, and Francis X. Mullahey, Defendants and Jerry P. Beam and Ben Gromet, Defendants-Appellants and Cross-Appellees.

No. 8641.

Intermediate Court of Appeals of Hawai'i.

April 19, 1983.

Motion for Reconsideration May 16, 1983.

Syllabus by the Court

1. Where a trial transcript has not been ordered and is not part of the record and the appellate court cannot determine that the trial court's findings of fact are clearly erroneous without such transcript, the trial court's findings and conclusions will be left undisturbed.

2. Where a party seeks and obtains an adjudication of rights and a monetary judgment which is not nominal, the twenty-five per cent limit of Hawaii Revised Statutes § 607-17 relating to attorney's fees applies.

Jack C. Morse, Honolulu (Morse & Nelson, Honolulu, of counsel), for defendants-appellants and cross-appellees Ben Gromet and Jerry P. Beam.

Paul Maki, Honolulu (Woo, Kessner & Duca, Honolulu, of counsel), for plaintiff-appellee and cross-appellant.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

TANAKA, Judge.

In this action, plaintiff Hawaiian Trust Company, Limited (HTCL), the landlord, sought summary possession of certain premises and judgment for unpaid lease rents and other charges. Defendants Ben Gromet (Gromet) and Jerry P. Beam (Beam) appeal from the judgment in HTCL's favor. HTCL cross-appeals on the ground that the trial court's award of attorney's fees is inadequate. ¹ We affirm in part and reverse in part.

The dispositive issues on appeal are (1) whether the record on appeal is adequate for this court to review the trial court's findings of fact, and (2) whether the trial court erred in the amount of attorney's fees awarded to HTCL. We answer no to the first question, and yes to the second.

HTCL's amended complaint named the following defendants: Rex Cowan (Rex), Kayoko Cowan, also known as Kayoko Takatsu (Kayoko), Beam, Francis X. Mullahey (Mullahey), and Gromet. In count I, HTCL alleged that (1) as trustee for H. William Burgess (Burgess), HTCL was the owner of the Sneeky's Restaurant premises at 6 Marin Street in Honolulu (the Premises), (2) in October, 1980, HTCL entered into a written lease with the Cowans for the Premises, (3) the Cowans had not paid rent and other charges from April 1, 1981, and (4) the Cowans were in breach and had been given notice of the termination of the lease. In counts II, III and IV, it was alleged that (1) Beam and Mullahey claimed to be assignees of the lease from the Cowans, but since HTCL had not consented to such assignment they had no interest in the lease and, alternatively, (2) Beam and Mullahey were liable for rent and other charges for the time they were in possession of the Premises. In count V, HTCL alleged that Gromet was liable for rent and other charges as the guarantor of the Cowans.

Defendants Rex and Kayoko were defaulted. Defendants Beam, Mullahey and Gromet denied the allegations and interposed various affirmative defenses, including the defense of Statute of Frauds.

On August 18 and 19, 1981, a bench trial was held. On October 20, 1981, the court filed its findings of fact and conclusions of law. The judgment was filed on December 4, 1981.

A notice of appeal ² was timely filed. HTCL's cross-appeal followed. I.

Gromet and Beam (appellants) contend that seven of the ten findings of fact and nine of the eleven conclusions of law of the trial court are erroneous. Yet, appellants have failed to include the transcript of the proceedings of August 18 and 19, 1981 as a part of the record on appeal. ³

Rule 75(b), District Court Rules of Civil Procedure (DCRCP) (1981), provides in part:

If an appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence, or contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion.

In Marn v. Reynolds, 44 Haw. 655, 663, 361 P.2d 383, 388 (1961), our supreme court stated that the findings of a trial court "cannot be passed upon in review, in the absence of the evidence upon which the findings were based," and dismissed the appeal when the record failed to include a trial transcript. See also Thomas v. Computax Corp., 631 F.2d 139 (9th Cir.1980); Brattrud v. Town of Exline, 628 F.2d 1098 (8th Cir.1980). Our supreme court has left a trial court's finding undisturbed where the appellant had failed to order the proper transcripts of proceedings. State v. Goers, 61 Haw. 198, 600 P.2d 1142 (1979). See also McDonough Marine Service, Inc. v. M/V Royal Street, 608 F.2d 203 (5th Cir.1979).

Appellants claim that even without the trial transcript, the documentary exhibits in evidence which constitute part of the record on appeal are sufficient to convince us that the trial court's findings are clearly erroneous. Consequently, there has been no violation of Rule 75(b), DCRCP. We disagree.

A.

Appellants contend that due to the existence of an old unexpired lease for the Premises, the trial court's finding that there was a new lease between HTCL and the Cowans commencing October 1980 was clearly erroneous. Appellants state that the old lease signed by Burgess, as landlord, Brick Oven Pie Shops, Inc. (Brick Oven), as tenant, and Gromet and four others, as guarantors, ⁴ had been renewed and was not due to expire until April 30, 1982. Section 27.02 of the old lease provided that "no subsequent alteration, amendment, change or addition to this lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by them." There being no written amendment or termination in evidence, appellants contend that the old lease remained viable.

From the documentary evidence alone, we cannot find and conclude that the old lease remained binding and could not be replaced by a new lease. The provisions in the old lease, the other documentary evidence and reasonable inferences therefrom lead to other logical conclusions. For example, section 23.01 of the old lease provides that the landlord may terminate the lease if the tenant abandons the Premises or defaults in the performance of its obligations thereunder. The documentary evidence shows that in August and September 1980, Kayoko rather than Brick Oven paid the lease rents and other charges. ⁵ A reasonable inference from this fact is that Brick Oven assigned the old lease or sublet the Premises. However, the documentary evidence includes neither a written assignment or sublease nor a written consent of the landlord, as required by section 17.01 of the old lease. A fair inference is that Brick Oven breached the old lease permitting HTCL to terminate the old lease and enter into a new lease. Thus, without the trial transcript, we cannot determine whether the old lease remained viable.

B.

Appellants claim that the Statute of Frauds, Hawaii Revised Statutes (HRS) § 656-1 (1976 & Supp.1982), precluded the existence of an actionable new lease for the Premises. ⁶

Exhibit B is a letter dated October 2, 1980 from Gromet to Burgess, responding to Burgess' proposal for a new five-year lease for the Premises. In Exhibit B, Gromet stated that Rex "is agreeable to the new rent schedule" if it commenced on January 1, 1981. Gromet requested that Burgess "draw up a new lease" if he approved Gromet's letter. The trial court found that Exhibit B was "either an offer or a counteroffer." ⁷ The court also found that by a telephone call, "Burgess accepted Gromet's offer or counteroffer." ⁸ Exhibit C is the new lease signed by Kayoko only.

In pertinent part, HRS § 656-1 provides:

No action shall be brought and maintained in any of the following cases:

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(4) Upon any contract for the sale of lands, tenements, or hereditaments, or of any interest in or concerning them;

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Unless the promise, contract, or agreement, upon which the action is brought, or some memorandum or note thereof, is in writing, and is signed by the party to be charged therewith, or by some person thereunto by him in writing lawfully authorized.

Appellants argue that HRS § 656-1 precluded the enforcement of the new lease (Exhibit C) because Exhibit B was not signed by the Cowans, the parties "to be charged therewith." Gromet who signed Exhibit B was to be a guarantor, and not a tenant, on the new lease. If Gromet was the agent for the Cowans, HRS § 656-1 is unsatisfied since there is no writing by the Cowans lawfully authorizing him to act for them. See Honolulu Memorial Park v. City & County, 50 Haw. 189, 436 P.2d 207 (1967).

We observe that appellants have a tunnel vision concerning the documentary evidence in the case. The status of Exhibit B alone is not determinative of the case. HTCL sought to enforce the new lease against the Cowans, as the tenants, and against Gromet, as a guarantor. While Exhibit B is determinative of Gromet's liability as a guarantor, the liability of the Cowans does not depend solely on this exhibit. Kayoko signed the new lease. The trial court found that the checks dated January 5, 1981 (Exhibit D), January 30, 1981 (Exhibit E) and March 11, 1981 (Exhibit F), each in the amount of $852.80, were "all persuasive items of evidence that the new lease was ineffect [sic]." ⁹ Each of the checks was signed by Kayoko for Sneeky's, No. 6 Marin Street. If Rex was an owner of Sneeky's, Kayoko may have acted for him in making the payments and Rex impliedly ratified the new lease.

It is clear that part performance will take an oral agreement out of the Statute of Frauds "where there has been substantial reliance by the party seeking to enforce the contract." McIntosh v. Murphy, 52 Haw. 29, 34, 469 P.2d 177, 180 (1970). See also Island Holidays, Inc. v. Fitzgerald, 58 Haw. 552, 574 P.2d 884 (1978). The part performance must be such that to allow a promisor to repudiate would constitute an...