State v. Kauai Kai, Inc.

627 P.2d 284, 2 Haw. App. 118, 1981 Haw. App. LEXIS 183
CourtHawaii Intermediate Court of Appeals
DecidedApril 22, 1981
DocketNO. 6864
StatusPublished

This text of 627 P.2d 284 (State v. Kauai Kai, Inc.) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kauai Kai, Inc., 627 P.2d 284, 2 Haw. App. 118, 1981 Haw. App. LEXIS 183 (hawapp 1981).

Opinion

OPINION OF THE COURT BY

HAYASHI, C.J.

Appeal is taken from a judgment in favor of the State finding that the State was entitled to cancellation and the recovery of past due lease rental on the appellants’ failure to comply with the terms of the general lease agreements.

Appellants cite as error the following: (1) that notices of the default and subsequent forfeiture and cancellation of the leases were improper and incomplete; (2) that the cure provisions in the event of default were unreasonable as applied to them; (B) that appellants Dyer and Lum, both directors of Appellant Kauai Kai, Inc., were not given proper notice in their capacity as sureties under [119]*119HRS § 171-20; and (4) that the State unreasonably withheld its consent to assignment of the leases to Western Resorts, Inc., after their cancellation.

For the reasons stated herein, we affirm the decision of the trial court.

In 1965, the State Department of Land and Natural Resources Board (Board) leased two adjoining parcels of land situated at Nawiliwili, Lihue, Kauai. Parcel S-3884 was leased to Alfred Akana on January 11, 1965; the adjoining parcel S-3942 was leased to Wallace Dyer on November 16, 1965. Both of the leases were for a term of fifty-five (55) years. Under the terms of the lease agreements, both parcels were leased to be developed for “hotel-apartment purposes and accessory uses incidental to and customarily connected within such areas.” The terms of Akana’s lease required construction to begin within three years and Dyer’s lease required construction to begin within two years. Neither party began construction within the required times and lease rentals on both parcels became delinquent. In its meeting of June 28,1968, the Board consented to the assignment of both the leases to Kauai Kai, Inc., and also granted the extension of the construction deadline to June 30, 1969, on the condition that Kauai Kai, Inc.: (1) furnish performance and improvement bonds and (2) pay the delinquent rentals. Wallace Dyer and Kenneth Lum were officers and directors of Kauai Kai, Inc. Larry K. S. You was a director and its project coordinator.

From 1969 to the time of this action, extensive correspondence and communications were exchanged between the Board and the appellants concerning the appellants’ numerous requests for extension of the construction deadlines because of various difficulties it encountered, its continuous delinquent status with respect to the payment of the lease rentals, and its failure to maintain the performance bonds. The correspondence was either addressed to, received by and responded to by Larry K. S. You, Officer, Director, and Coordinator of Kauai Kai, Inc., 925 Bethel Street, Honolulu, Hawaii, on the stationery of the Polynesian Development Company, Inc., at the same address, Larry K. S. You, Project Coordinator; or Wallace Dyer, Polynesian Development Company, Inc., at the same address, President, Kauai Kai, Inc. On November 3, 1972, four years after the leases had been assigned to Kauai Kai, Inc., a letter to [120]*120the appellants from the Board’s Kauai land agent contained the following:

Of considerable concern to us is the fact that your accounts under both leases are in arrears in the amount of $8,400.00 and that the building requirements are five years overdue without benefit of a current extension of the construction deadline.
We are certain that you are aware of the fact that either the delinquency or non-performance of the building requirement are grounds for instituting defaults and forfeiture against you....

Appellants took no action.

On November 29, 1972, the Board’s Kauai land agent again wrote to Kauai Kai, Inc., stating:

We wrote you on November 3, 1972 concerning General Lease Nos. S-3884 and S-3942 at Nawiliwili, Kauai.
May we again request that you please within fifteen days from the date of this letter, bring your accounts up to date and apply for an extension of the construction requirement based on current plans.
We regret to advise should you not perform, that we will have no other alternative but to recommend that default and forfeiture proceedings be commenced against you.

Again, appellants took no action.

On January 12, 1973 the Board sent a notice of default to the appellants via certified mail, return receipt requested, to the effect that the appellants had ninety days with respect to the Akana lease and sixty days with respect to the Dyer lease to cure the breach by (1) the payment of past due rentals and (2) the submission of a development plan for improvements on the property. Appellants did neither, and on June 8, 1973 the Board served the appellants again by certified mail, return receipt requested, with a notice of cancellation and forfeiture of the leases. In February 1974, sometime after the forfeiture and cancellation of the leases, the attorney for appellants and a group called Western Resorts, Inc., requested the Board’s consent to an assignment of the forfeited, cancelled leases to Western Resorts, Inc., which request was not granted.

This action was then brought by the State against Kauai Kai, Inc., as lessees, against Dyer and Akana as assignors of the leases to Kauai Kai, Inc., and against Dyer and Lum as sureties (appellants) to collect [121]*121the delinquent rentals in the amount of $8,778.63.

Kauai Kai, Inc., and Dyer as its president and as an individual, counter-claimed against the State alleging that the State unreasonably refused to approve an assignment of the lease from Kauai Kai, Inc., to Western Resorts, Inc. After trial, the trial judge entered judgment for the State of Hawaii and dismissed the counter-claim filed by Kauai Kai, Inc., and Dyer. Appellants appealed.1

Appellants’ first contention is that the service of the notice of the Board’s entry of default and its cancellation and forfeiture of the lease were improper and incomplete. The Board sent notice of the ■ entry of the default addressed to the appellants via certified mail, return receipt requested. The receipt was signed by “L. You.”

In the event of a default or breach in the lease of land under its jurisdiction, the manner and to whom notice of breach or default be given is governed by HRS § 171-20.2

Appellants argue that the State’s reliance on HRCP Rule 5 for the proposition that the notice was complete upon mailing is misplaced, because no civil action had commenced at the time of the giving of the notice to bring the Hawaii Rules of Civil Procedure into play. Hence, You’s denial of receipt of the notice rendered it im[122]*122proper and incomplete. We disagree. HRS § 171-20 provides for such service by registered or certified mail. The leases in question both contain the following provision concerning notice to the lessee of default in its terms.

4. Breach.

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Cite This Page — Counsel Stack

Bluebook (online)
627 P.2d 284, 2 Haw. App. 118, 1981 Haw. App. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kauai-kai-inc-hawapp-1981.