Hilton Hawaiian Village Joint Venture v. Les Femmes Magnifique, Inc. (In re Les Femmes Magnifique, Inc.)

23 B.R. 580, 1982 Bankr. LEXIS 3264
CourtUnited States Bankruptcy Court, D. Hawaii
DecidedSeptember 23, 1982
DocketNo. 82-0118
StatusPublished
Cited by1 cases

This text of 23 B.R. 580 (Hilton Hawaiian Village Joint Venture v. Les Femmes Magnifique, Inc. (In re Les Femmes Magnifique, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hilton Hawaiian Village Joint Venture v. Les Femmes Magnifique, Inc. (In re Les Femmes Magnifique, Inc.), 23 B.R. 580, 1982 Bankr. LEXIS 3264 (Haw. 1982).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JON J. CHINEN, Bankruptcy Judge.

On June 22,1982, Plaintiff Hilton Hawaiian Village Joint Venture (hereafter “Hilton”) filed a Complaint to Vacate Stay and for Order Directing Turnover of Possession of Premises and for Administrative Rents. At the hearing on Debtor’s Motion to Dismiss for Failure to State a Claim on August 6, 1982, it was agreed between the parties that the instant action should proceed solely on the issue of whether Plaintiff is entitled to a vacation of the automatic stay imposed under § 362(a) of the Bankruptcy Code.

Hearings in regard to Hilton’s complaint were held on August 16 and 18, 1982. J. Stephen Street and Susan Tius represented Hilton and Edward C. Kemper represented Les Femmes Magnifique, Inc. (hereafter “Debtor”). Based upon the evidence adduced, the record of this action and in Adversary No. 82-0077, and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Debtor entered into an Agreement with Hilton dated January 8, 1981, under which Debtor was to use the Long House of the Hilton Hawaiian Village to present a certain specified cabaret show. The term of the Agreement is for two (2) years, commencing on February 1, 1982 and ending January 31, 1983. Effective August 21, 1981, Hilton and Debtor entered into an Addendum amending the January 8, 1981 Agreement.

2. The terms of the Agreement, as amended, include inter alia, the following provisions:

(a) Debtor “will produce and present a show in the LONG HOUSE patterned after the ‘Crazy Horse’ show of Paris and substantially as depicted on those certain video tapes given to HILTON.”

(b) “[T]he content of the show shall at all times be subject to the approval of HILTON and its approval or disapproval shall be within its sole discretion.... ”

[582]*582(c) On a monthly basis the Debtor shall pay Plaintiff lease rent of $3,138.00, pay the cost of any operating losses for beverage services plus a guaranteed minimum monthly beverage profit of $4,000.00, and reimburse Plaintiff for all its utility charges, which cost between $900.00 and $1,400.00 per month.

(d) A party shall be deemed to be in default where “he has received notice of the alleged default and has failed to rectify notice of the alleged default within fifteen (15) days of receipt of said notice, except, however, that any continued production following a disapproval by HILTON of the Show content, costuming, or staging, as provided in paragraph 1, supra, shall constitute an immediate default and HILTON shall have the right to terminate this agreement without further notice.”

(e) Debtor “shall be responsible at its sole expense to provide all property, sets, lights, lighting and sound systems and equipment, costumes, props and all other physical aspects, effects and accoutrements used in and for the production, and upon termination of this agreement, if COMPANY is not then in default, may remove all such property and equipment and upon HILTON’s request shall restore the premises to the condition that existed prior to commencement of this agreement. If COMPANY’S property is not removed within fifteen (15) days after the termination of this agreement, it shall become the property of HILTON.”

3. After a series of discussions between September, 1981 and January, 1982 concerning the Les Femmes show and after Debt- or’s failure to make payments according to the Agreements, Hilton gave written notice, by letter of April 14, 1982, of Debtor’s breach of its Agreement with Hilton. By letter of April 19,1982, Debtor was advised that, if it did not make payment of amounts then due and owing, the Agreement would be terminated and the last show would be performed on April 30, 1982.

4. As of March 31, 1982, Debtor was in default of its Agreement with Hilton for failure to pay rents, utility charges, beverage costs and minimum beverage profits during February and March in the amount of $36,904.55. The Debtor’s schedule of liabilities allows Hilton’s pre-bankruptcy claim as of April 30,1982 in the amount of “$45,-000.00 approx.”

5. Debtor filed its petition for relief under Chapter 11 on April 30,1982 but did not inform Hilton until May 1, 1982. At that time Hilton took the position that it was not bound to continue to provide, without payment, the services specified in its January 8,1981 Agreement, as amended, such as host services, ticket collection, waiters, waitresses, and bartenders, nor was it bound to continue to provide liquor and other beverages beyond the noticed termination of its Agreement with Debtor.

6. At hearings on May 4, 11, and 13, 1982, this Court provided for continued performances of the Les Femmes show with required payments by Debtor to Hilton for its out-of-pocket expenses for labor and beverages, but not for electricity, administrative expenses necessary for the production of the show, rents and minimum beverage profits. The Court required on May 13, 1982 that these out-of-pocket expenses payment be made daily to Hilton.

7. The Les Femmes show continued to be performed until May 21, 1982 when it was voluntarily suspended by Debtor. And thereafter, no show has been performed in the Hilton Long House, and Hilton has been unable to use the Long House for other purposes because of the pendency of this action.

8. Mr. Suresh Jhaveri, President of Les Femmes, testified that post-bankruptcy the show was turned over to an individual named Mr. Bernard Drisang, whom Mr. Jhaveri did not supervise directly, and who was supposed to make up any operating losses sustained by the show from his own assets. Mr. Jhaveri testified that Mr. Dri-sang left Hawaii without paying the performers.

9. Since bankruptcy was filed, no rent has been paid by Debtor to Hilton for the months of May or June, 1982. Rents were [583]*583paid for July and August, 1982 pursuant to court order. Mr. Jhaveri testified that the source of these rental payments was India Imports International, Inc. No minimum beverage profit payments ($4,000.00 per month) have been made for any month post-bankruptcy.

10. Hilton’s manager, Mr. Bruce Ulrich, testified that Hilton is harmed not just by financial losses due to continued occupation by Les Femmes of the Hilton Long House. He testified that the injury to Hilton goes also to Hilton’s good will in being unable to fully serve its guests. He testified that the dark and idle Long House could be expected to damage Hilton’s image as an alive and vital hotel and that the current uncertainty as to its use damages Hilton’s business reputation.

11. Mr. Ulrich testified that the Long House could be alternatively utilized for banquets generating gross revenues of $15,-000.00 to $20,000.00 per month, twenty percent of which would be profit to Hilton. Additionally, Mr. Ulrich testified that the Long House could also be utilized for meetings and exhibits, generating additional revenues with minimal overhead expenses. Mr. Ulrich also testified that consideration had been given to the Long House as a site for an electronic gameroom or for retail shop space.

12. The Les Femmes show has not been profitable as conceded in Mr. Jhaveri’s testimony and as evidenced by Debtor’s $778,-353.88 in debts to India Imports International, Inc., another company of which Mr. Jhaveri is president and from which Mr. Jhaveri authorized repeated substantial loans to meet operating losses.

13. Mr.

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23 B.R. 580, 1982 Bankr. LEXIS 3264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hilton-hawaiian-village-joint-venture-v-les-femmes-magnifique-inc-in-re-hib-1982.