Azer v. Myers

795 P.2d 853, 71 Haw. 506, 1990 Haw. LEXIS 50
CourtHawaii Supreme Court
DecidedJuly 16, 1990
Docket12578, 12629 to 12634
StatusPublished
Cited by21 cases

This text of 795 P.2d 853 (Azer v. Myers) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Azer v. Myers, 795 P.2d 853, 71 Haw. 506, 1990 Haw. LEXIS 50 (haw 1990).

Opinions

[508]*508OPINION OF THE COURT BY

HAYASHI, J.

We granted certiorari to two of the parties in order to address two of the issues raised in connection with the Intermediate Court of Appeals (ICA) opinion in Azer v. Myers [published as SGM Partners v. The Profit Co.], 8 Haw. App. 86,_P.2d_(1990). Based on the reasons set forth below, we reverse in part and affirm in part.

I.

FACTUAL BACKGROUND

The pertinent facts for purposes of this opinion arc as follows.

In May 1983, SGM Partners (SGM), the original owner and lessor of the subject property, entered into a lease with The Profit Co., Ltd. (Profit) for certain commercial space located at 1680 Kapiolani Boulevard, with the lease guaranteeing the use of a certain number of parking stalls. Michael Myers (Myers), one of the SGM partners, had negotiated the lease' on behalf of SGM.

A month later, in June 1983, Ben Gromet’s (Gromct) and Myers’ respective partnership interests in SGM were purchased by two other SGM partners.

Meanwhile, from the opening of Profit’s business in December 1983, SGM failed to provide Profit with the number of parking stalls as agreed upon in the lease. Consequently, Profit began to withhold rent.

[509]*509By letter dated June 3, 1985, a settlement agreement was memorialized between SGM and Profit over the number of parking stalls and withheld rent issues. Soon thereafter, however, SGM failed to furnish Profit with the newly agreed upon number of parking stalls, and Profit refused to comply with the terms of the settlement agreement.

In May 1985, SGM and Maher Azer (Azer), who eventually succeeded SGM as the owner-lessor, filed suit against several defendants, including: 1) Gromet; and 2) the brokers SGM utilized in this leasehold transaction (Brokers). Later, in April 1986, Azer, as successor in interest to SGM, filed an amended complaint alleging, inter alia: 1) negligence and offset claims against Gromet; and 2) breach of fiduciary duty and negligence claims against Brokers.

The case proceeded to a consolidated trial.

During the trial, Gromet moved for directed verdicts on all of Azer’s claims against him. The trial court subsequently granted Gromet’s motion, including Gromet’s motion for a directed verdict on Azer’s negligence and offset claims.

After the jury returned its special verdict, judgment was entered accordingly. Included in the judgment was the entry of judgment in Azer’s favor and against Brokers, based on the jury’s findings of negligence and breach of fiduciary duty on Brokers’ part.

The trial court subsequently denied Azer’s motion to recover attorney’s fees and costs from Brokers.

On appeal, the ICA vacated: 1) the entry of directed verdict in Gromet’s favor on Azer’s negligence and offset claims; and 2) the denial of Azer’s request for attorney’s fees and costs from Brokers. The ICA then remanded for, inter alia: 1) a retrial of Azer’s negligence and offset claims against Gromet; and 2) a determination of attorney’s fees and costs recoverable from Brokers by Azer. In all other respects, the ICA affirmed the trial court.

[510]*510Upon applications to this court, we granted certiorari to two of the parties in order to address two issues we believe are worthy of discussion.

We now proceed to examine these two respective issues.

II.

DIRECTED VERDICT

Gromet, a former partner, contends the ICA erred in vacating the directed verdict in his favor on Azer’s negligence and offset claims.

On a motion for a directed verdict, the evidence is viewed in the light most favorable to the non-moving party. Shannon v. Waterhouse, 58 Haw. 4, 563 P.2d 391 (1977) (per curiam), cert. denied, 440 U.S. 911, reh’g denied, 441 U.S. 917 (1979). And where a jury could reasonably infer that the plaintiff’s claim is sustainable, the motion should be denied. Id. Conversely, where the evidence is insufficient to submit the case to the jury, the trial court should grant the motion for a directed verdict. Id.

We begin by addressing the negligence claim, followed by the offset claim.

A.

Negligence Claim

In his amended complaint, Azer alleged that Gromet acted negligently in misallocating the available number of parking stalls. At trial, the trial court subsequently granted a directed verdict in Gromet’s favor on the negligence claim.

On appeal, the ICA vacated the trial court’s order on this issue. In its ruling, the ICA essentially relied on Myers’ testimony to the effect that “Gromet had a small part in negotiating the Profit [l]ease.” Azer v. Myers, 8 Haw. App. at 117,_P.2d at_. [511]*511Given this evidence, the ICA reasoned that a jury could reasonably find that Gromet was negligent in negotiating a lease which contained parking provisions that were in conflict with the parking provisions of an existing lease with a neighboring tenant.

We disagree. The inference drawn from Myers’ pertinent testimony by the ICA, we believe, is not a reasonable one. The lease, as originally executed in May 1983, is a lengthy and detailed document which contains many provisions in addition to the one page parking provisions.1 In our view, just because Gromet had played a small part in negotiating the lease does not therefore lead to the reasonable inference that Gromet was negligent in misallocating the available number of parking stalls. No evidence was presented as to the subject-matter of Gromet’s participation in the lease negotiations.2

Contrary to the ICA, we hold that the evidence adduced was insufficient to withstand a motion for directed verdict.

B.

Offset Claim

As for Azer’s offset claim against Gromet, the ICA opined:

In view of the possibility that Azer might recover some damages on his negligence claim, it was error to grant a directed verdict on his offset claim.

[512]*512Azer v. Myers, 8 Haw. App. at 117,_P.2d at_.

In view of our ruling upholding the dismissal of Azer’s negligence claim against Gromet, we hold that the trial court’s dismissal of Azer’s offset claim against Gromet was likewise proper. The ICA’s contrary ruling on the offset claim issue was thus in error.

III.

ATTORNEY’S FEES AND COSTS

The trial court denied Azer’s motion to recover attorney’s fees and costs from Brokers.

On appeal, the ICA vacated the trial court’s order denying attorney’s fees and costs to Azer. The ICA ruled that Azer’s breach of fiduciary duty claim against Brokers constituted an action on the listing agreement between SGM and Brokers, and thus, Azer was entitled to attorney’s fees pursuant to Hawaii Revised Statutes (HRS) § 607-17.

Brokers contend that HRS § 607-17

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Bluebook (online)
795 P.2d 853, 71 Haw. 506, 1990 Haw. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/azer-v-myers-haw-1990.