Union Bldg. Materials Corp. v. Kakaako Corp.

• Decision Date: 10 April 1984
• Docket Number: No. 9030,9030
• Citation: 682 P.2d 82,5 Haw.App. 146
• Parties: UNION BUILDING MATERIALS CORP., Plaintiff-Appellant, Cross-Appellee, v. The KAKAAKO CORPORATION and Partnership Pacific Bank, N.V., Defendants-Appellees, Cross-Appellants.
• Court: Hawaii Court of Appeals

Page 82

682 P.2d 82

5 Haw.App. 146

UNION BUILDING MATERIALS CORP., Plaintiff-Appellant, Cross-Appellee, v. The KAKAAKO CORPORATION and Partnership Pacific Bank, N.V.,

Defendants-Appellees, Cross-Appellants.

No. 9030.

Intermediate Court of Appeals of Hawai'i.

April 10, 1984.

As Amended April 17 and May 29, 1984.

Syllabus by the Court

1. Where appellant has failed to comply with Rule 3(b)(5), Rules of the Supreme Court, in that its opening brief does not state any points on appeal, quote findings of fact or conclusions of law urged as error, or state the particulars wherein the findings or conclusions are erroneous, the appellate court may deny the appeal.

2. If appellant wishes to urge on appeal that a finding or conclusion is unsupported by the evidence, he must include a transcript of all the evidence relevant to such finding or conclusion.

3. Appellant has the burden of furnishing the appellate court with a sufficient record to positively show the alleged error, and must include in the record all the evidence on which the lower court based its findings. If this is not done, the lower court must be affirmed.

4. Where a lease is unambiguous its construction is a matter of law for the court, and the appellate court is not bound by the trial court's construction.

5. Leases must be construed as a whole so as to give effect to the intention of the parties and the language is to be reasonably construed so as not to give one of the parties an unreasonable advantage over the other.

6. Where a sublease provided that its term was to continue until the demised premises shall be required by the sublessor for a major redevelopment project of five million dollars ($5,000,000), the sublease is for an indefinite term and where rent is reserved on a monthly basis, is a month-to-month tenancy under HRS § 666-2.

7. HRS § 666-2 establishes a minimum period for notice of termination of a month-to-month tenancy, and the parties to a sublease may agree that the tenancy may only be terminated upon the occurrence of a condition subsequent and a longer notice period prior to such occurrence.

W. Patrick O'Connor, Honolulu (Barlow & O'Connor, Honolulu, of counsel), for plaintiff-appellant, cross-appellee.

Daral G. Conklin, Honolulu (Chad P. Love, Honolulu, with him on the briefs; Conklin, Schneider & Love, Honolulu, of counsel), for defendants-appellees, cross-appellants.

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

HEEN, Judge.

Plaintiff, appellant-cross appellee, Union Building Materials Corp. (Union) and defendants, appellees-cross appellants, The Kakaako Corporation and Partnership Pacific Bank N.V. (hereafter Kakaako and Pacific, or collectively Defendants where appropriate) have appealed from the declaratory judgment of the trial court. We affirm the trial court's holding that the sublease between the parties is a valid sublease On September 7, 1978, Union sued Kakaako for damages alleging that Kakaako had breached the terms of a sublease between Kakaako, as sublessor, and Union, as sublessee, and had committed certain tortious acts. Pacific was joined later as a co-defendant. Kakaako and Pacific denied Union's allegations. Kakaako counterclaimed for damages and for a declaratory judgment "decreeing and determining the date and conditions upon which [the sublease] will terminate."

but reverse its holding that thesublease is for a term of years.

Jury trial on the parties' monetary claims and a concurrent bench trial on Kakaako's declaratory relief counterclaim began on September 21, 1981. The jury's verdict awarding money damages to Union was entered on October 2, 1981, and on December 2, 1981, the court entered its findings of fact, conclusions of law and declaratory judgment on Kakaako's counterclaim. In response to Union's motion, the court filed amended findings of fact and conclusions of law and declaratory judgment on August 25, 1982. Union filed its notice of appeal on September 24, 1982, and Defendants filed their notice of cross-appeal on October 8, 1982. ¹ The parties have not appealed from the jury verdict.

The appeals will be discussed seriatim.

FACTS

The sublease was originally entered into by Mainline Harbor Properties (MHP), as sublessor, and Union, as sublessee, effective November 25, 1974. Pacific acquired the sublease in June 1976, upon MHP's default on its mortgage to Pacific, and transferred the sublease to Kakaako in June 1977. The sublease demised to Union approximately 100,525 square feet of the property in downtown Honolulu known as the "Iron Works" property owned by the B.P. Bishop Estate. The total area of the property exceeds 9 acres.

The dispute involves the interpretation of the following provision of the sublease:

2. TERM. The term of this sublease shall commence at 8:00 a.m. on November 25, 1974 and shall continue, thereafter, until the premises occupied by the sublessee under this sublease shall be required by MHP or its successors and assigns for major redevelopment of five million dollars ($5,000,000.00) or more by the sublessor. In order to cancel said sublease, the sublessor shall be required to give the sublessee one hundred twenty (120) days advance written notice prior to the starting date of physical redevelopment; which date shall be the corresponding termination date of this sublease. The sublessee may cancel this sublease at any time by giving the sublessor one hundred twenty (120) days advance written notice by registered mail of sublessee's intention to terminate the sublease.

The court's amended findings of fact, conclusions of law and declaratory judgment are as follows:

1. Sublease No. 19, the subject matter of this litigation, has sufficient definiteness to constitute a sublease for a term of years. The provisions under paragraph 3 Rent reflect that the parties intended that the sublease run for a period of years. There is also a definite outside termination date as the sublease must terminate upon expiration of the Bishop Estate Master Lease.

2. Paragraph 2 Term provides for an earlier termination date upon fulfillment of certain conditions that were bargained for and agreed upon between the parties. One condition is that the premises occupied by Plaintiff under the Sublease be required by Defendant or its successors as a part of a major redevelopment project of $5,000,000.00 or more.

3. The evidence clearly reflects that the parties intended that $5,000,000.00 be 4. Paragraph 2 Term of Sublease No. 19 also provides:

expended on a redevelopment project which would include the premises occupied by Plaintiff under Sublease No. 19. Furthermore, Defendants went to great lengths at the trial to show that considerably more than $5,000,000.00 will be spent on a project which includes Plaintiff's premises as part of the proposed major redevelopment.

"... In order to cancel said sublease the sublessor shall be required to give the advance written notice prior to the starting date of physical redevelopment; which date shall be the corresponding termination date of the sublease..."

The evidence also reflects that the parties fully intended that Plaintiff be permitted to remain upon the premises until the start of physical redevelopment and that this would be triggered by commencement of actual demolition of improvements existing on the subject premises.

5. This event is capable of ascertainment and is not so ambiguous or vague as to render the provision meaningless. Furthermore, this language was put into final form by Defendant-landlord and it should not be permitted to use the same to defeat both the operation of the contract or the expressed intent of the parties.

CONCLUSIONS

1. Sublease No. 19 is a valid sublease for a term of years.

2. Said Sublease will terminate upon expiration of the Bishop Estate Master Lease and may be terminated earlier pursuant to provisions in paragraph 2 Term of said Sublease.

3. Paragraph 2 Term requires that the sublessor expend at least $5,000,000.00 on a major redevelopment project which includes Plaintiff's demised premise.

4. Paragraph 2 Term further requires that the sublessor give Plaintiff 120 days advance written notice prior to the starting date of physical redevelopment, that is, the commencement date of actual demolition of improvements existing on the subject property, which date shall be the corresponding termination date of the sublease.

JUDGMENT

IT IS HEREBY ORDERED, ADJUDGED, DECREED AND DECLARED that Sublease No. 19, dated November 25, 1974, concerning real property described therein and located at the area commonly known as "The Ironworks", is a valid sublease for a term for years and may be terminated prior to expiration of the master lease in accordance with the provisions of paragraph 2 Term of said Sublease which requires (a) that the sublessor expend at least $5,000,000.00 on a major redevelopment project which includes Plaintiff's demised premises and (b) that the sublessor give Plaintiff 120 days advance written notice prior to the starting date of physical redevelopment, that is, the commencement date of actual demolition of improvements existing on the subject property, which date shall be the corresponding termination date of the Sublease.

UNION'S APPEAL

Union argues that under paragraph 2, Kakaako only has the right to terminate the sublease if it embarks upon a redevelopment project calling for the expenditure of $5,000,000 on the subleased premises alone; therefore, the trial court's finding that "[T]he parties intended that $5,000,000 be expended on a [redevelopment] project which would include the [subleased] premises[.]," was clearly erroneous.

For the reasons set forth below, we affirm that finding.

(1)

Union's opening brief does not state any points on appeal or quote any findings or conclusions urged as error, or include a statement of the particulars wherein the findings or conclusions are alleged to be erroneous, all in violation of Rule 3(b)(5), Rules of the Supreme...