Stewart v. Brennan

Citation748 P.2d 816,7 Haw.App. 136
Decision Date15 January 1988
Docket NumberNo. 11660,11660
PartiesRobert A. STEWART, Plaintiff-Appellant, v. Edward BRENNAN and Roger Lindus, Defendants-Appellees.
CourtCourt of Appeals of Hawai'i

Syllabus by the Court

1. Since a motion for judgment notwithstanding the verdict (judgment n.o.v.) is technically only a renewal of the motion for directed verdict made at the close of the evidence, it cannot assert a ground that was not included in the motion for directed verdict.

2. Hawaii Rules of Civil Procedure (HRCP) Rule 50(a) requires a motion for directed verdict to state the specific grounds therefor.

3. Where appellees improperly asserted in their motion for judgment n.o.v. specific grounds not set forth in their motions for directed verdict, but appellant failed to state in his brief that appellees' error rendered the granting of the judgment n.o.v. improper, appellant waived that error on appeal.

4. Although the construction and the legal effect to be given a contract is a question of law, when the terms used by the parties to a contract are ambiguous, the parties' intent in using those terms is a question for the trier of fact.

5. Where the contractual terms are ambiguous, to ascertain the parties' intent the trier of fact may consider extrinsic evidence, including evidence of surrounding circumstances and the parties' subsequent conduct in construing the contract. The course of dealing between the parties and the custom and usage of the trade at the time are two of the surrounding circumstances which may be considered.

6. The standard for granting a judgment n.o.v. is the same as that for granting a directed verdict. Thus, a judgment n.o.v. should be granted only if a directed verdict should have been granted.

7. In granting or denying a motion for new trial under HRCP Rule 50(c)(1), the court must specify the grounds therefor.

8. Since the granting of a new trial is within the trial court's discretion, it will not be overturned absent an error of law or a clear abuse of discretion.

9. A party may not rely on opposing trial counsel's misconduct as a ground for new trial unless the party had objected to that conduct and brought it to the attention of the trial court.

10. The jury instructions must be viewed in light of all the instructions as a whole. The fact that a particular instruction or an isolated paragraph may be objectionable, as inaccurate or misleading, will not constitute a ground for reversal.

11. Where the alleged violations of an in limine order by plaintiff during the course of trial did not affect the substantial rights of defendants, a mistrial was not warranted.

James C. McWhinnie (Edward J. Bybee with him on the briefs, Rother, Bybee, Chang & Rulon, of counsel), Honolulu, for plaintiff-appellant.

James T. Leavitt, Jr. (Woodruff K. Soldner with him on the brief), Honolulu, for defendants-appellees.

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

TANAKA, Judge.

This litigation involves the premises demised under an April 20, 1981 sublease (Sublease) between defendants Edward Brennan (Brennan) and Roger Lindus (collectively Defendants), the owners of Niu Valley Shopping Center (Niu Center), as the "Landlord," and Stewart Properties, Inc. (Properties), as the "Tenant." Plaintiff Robert A. Stewart (Stewart), the assignee of Properties' claim, appeals (1) the oral judgment notwithstanding the special verdict (judgment n.o.v.) in favor of Defendants, (2) the written order which conditionally granted Defendants' alternative motion for a new trial, and (3) the summary judgment in Defendants' favor. We hold that the trial court improperly granted the oral judgment n.o.v., the conditional written order, and the summary judgment. We reverse the judgments and order, reinstate the special verdict, and remand the case for further proceedings.

I. FACTS

In 1964 the owners 1 of the Niu Center subleased a portion of the premises to Stewart Pharmacies, Ltd. (Pharmacies) for a 20-year term. Although the 1964 sublease limited the use of the premises to the operation of a drugstore, Pharmacies divided the premises into three separate spaces. Pharmacies operated a drugstore in one of the three spaces, sub-subleased the second to Properties for the operation of a coffee shop restaurant, and sub-subleased the third space to an unrelated corporation for the operation of a restaurant, named the Sty, which sold and served alcoholic beverages. The Niu Center's owners did not object to this arrangement despite the variance between the actual uses of the premises and the use specified in the 1964 sublease.

Relations between Pharmacies and the Niu Center's owners were not amicable: By 1981 there had been two arbitrations, two circuit court cases, and two supreme court appeals involving them. In an effort to terminate the relationship in a mutually agreeable manner, the parties entered into negotiations which resulted in (1) the cancellation of the 1964 sublease to Pharmacies, (2) the assignment of the Sty restaurant sub-sublease from Pharmacies to Defendants, and (3) the execution of the Sublease from Defendants to Properties for the space occupied by Properties. The Sublease was for a term commencing April 1, 1981 and ending on February 28, 1985, 2 but it provided that if Properties sold and assigned the Sublease to an unrelated party by April 1, 1982, the assignee would have an option to extend the term for two five-year periods. The purpose of the latter provision was to motivate Properties to sell and assign the Sublease so that the landlord-tenant relationship between Defendants and Properties could be severed within the one-year period.

On February 1, 1982, KO-TE-YA Hawaii, Inc. (KO-TE-YA) made a written offer to purchase Properties' assets, including the Sublease. The offer included a condition that the closing would be subject to Defendants' written agreement that KO-TE-YA would have the right to apply for a liquor license to sell alcoholic beverages on the premises. In late February 1982, Brennan indicated Defendants' unwillingness to so agree and KO-TE-YA withdrew its offer. Despite subsequent efforts, Properties failed to locate a purchaser of its assets and assignee of the Sublease prior to the April 1, 1982 deadline.

On March 23, 1982, Properties sued Defendants. The first amended complaint includes seven counts. Count 1 alleges that Defendants unreasonably withheld their consent to the proposed assignment of the Sublease from Properties to KO-TE-YA. Count 2 alleges that Defendants "interfered with the contractual relations" between Properties and KO-TE-YA and "other potential assignees." Record, Vol. 1 at 168. Count 3 alleges that Defendants "interfered with the negotiations of [Properties] and potential purchasers," thereby "in effect, unreasonably withheld consent to an assignment of said Sublease." Id. Count 4 seeks to have certain terms in the Sublease declared null and void because of duress. Properties seeks punitive damages in count 5. Count 6 seeks to have declared null and void paragraph 43(f) of the Sublease which gives the option to extend its term only to an assignee under an assignment made prior to April 1, 1982. Count 7 seeks a declaratory judgment that the Sublease "does not restrict ... [the] selling and serving liquor on the premises." Record, Vol. 1 at 171.

On August 10, 1983, the circuit court granted Defendants' "Motion for Separate Trial on Issue of Whether Lease Permits Sale of Intoxicating Liquor." A trial was held on that issue, and on July 2, 1985, the jury rendered its special verdict finding that the Sublease permitted the sale of liquor. A judgment on the special verdict was entered on August 26, 1985.

On August 18, 1985, however, Defendants filed a motion for judgment n.o.v. or, in the alternative, for new trial. On March 4, 1986, the trial court issued a written order stating that it had granted a judgment n.o.v. in Defendants' favor 3 and was conditionally granting a new trial. On May 28, 1986, the court granted summary judgment in Defendants' favor on counts 1, 4, 5, 6, and 7, but not on counts 2 and 3. However, on a motion for reconsideration, the court subsequently granted Defendants a summary judgment on all counts of the amended complaint.

Stewart, who had been substituted in place of Properties as the real party in interest on April 2, 1985, 4 timely appealed.

II. JUDGMENT N.O.V.

Paragraph 30 of the Sublease provided:

(30) Use of Premises. The Tenant will not use the demised premises for the conduct of any business except that of a coffee shop restaurant. No coin-operated games shall be used on the demised premises.

The Sublease contained no other provision governing the use of the premises.

Stewart's stance was that the term "coffee shop restaurant" permitted the sale of liquor on the premises. Defendants contended otherwise. In its special verdict, the jury agreed with Stewart.

In moving for judgment n.o.v., Defendants' contention was that since Stewart produced no evidence of any "expressed" intent concerning the meaning of the term "coffee house restaurant" by the parties, the jury verdict was unsupportable. The trial court agreed with Defendants and orally granted the judgment n.o.v. For the reasons stated below, we hold that the trial court erred.

A.

Initially, we note that because a motion for judgment n.o.v. "is technically only a renewal of the motion for directed verdict made at the close of the evidence, it cannot assert a ground that was not included in the motion for a directed verdict." 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2537 at 598 (1971). See also Lovell Enter., Inc. v. Campbell-Burns Wood Prod., Inc., 3 Haw.App. 531, 540, 654 P.2d 1361, 1367 (1982). The record reveals that Defendants violated this proscription.

At the close of Stewart's case, Defendants moved for directed verdict "on the grounds that we've taken the evidence which has been adduced that Defendant is...

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