Wong v. General Telcourier, Inc.

990 P.2d 107, 92 Haw. 209, 1999 Haw. App. LEXIS 181
CourtHawaii Intermediate Court of Appeals
DecidedNovember 17, 1999
DocketNo. 21968
StatusPublished

This text of 990 P.2d 107 (Wong v. General Telcourier, 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
Wong v. General Telcourier, Inc., 990 P.2d 107, 92 Haw. 209, 1999 Haw. App. LEXIS 181 (hawapp 1999).

Opinion

Opinion of the Court by

BURNS, C.J.

Defendant-Appellant General Telcourier, Inc. (GTI), appeals the district court’s September 1, 1998 Judgment in favor of Plaintiffs-Appellees Richard S.H. Wong, Oswald K. Stender, Marion M.L. Lindsey, Gerard A. Jervis, and Henry H. Peters, Trustees of the Kamehameha Schools Bernice Pauahi Bishop Estate (KSBE) granting KSBE’s motion for summary judgment and awarding KSBE an amount of $24,990.05. We affirm.

In this opinion, we decide that (a) the circuit court’s order confirming the decision of a panel of three appraisers determining the annual gross rent due from the licensee to the licensor for a prior five-year term of the License Agreement is a judgment; and (b) the licensor is authorized to sue the licensee on that judgment for the net amount of the rent actually due for that prior five-year term in any court that has relevant subject matter jurisdiction.

[211]*211In this opinion, we apply the following rules of law:

(a) that attorney fees, interest, and costs shall not be included in computing the jurisdictional amount; and

(b) that

[a] tender of payment of an obligation before action is brought for collection will stop further accrual of interest and cut off liability for costs of collection, if the tender is for the full amount, is without deduction for any claim asserted by the debtor but denied or disputed by the creditor, and is not coupled with any condition which precludes the creditor from contesting the debtor’s claim.

Certified Corporation v. Market Center, Ltd., 51 Haw. 121, 123, 452 P.2d 442 (1969).

BACKGROUND

In July 1987, KSBE and GTI entered into a License Agreement which allowed GTI to use a 10,000 square-foot parcel of land located at Kamehameha Ridge “as a communications relay site.” The License Agreement provided in relevant part as follows:

I. Term—Hive (5) year commencing July 1, 1987, with the term renewed every five (5) years for another five (5) year term unless either party provides written notice of cancellation one year prior to the renewal date.
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4. Rent—$3000 per annum net from July 1, 1987 to June 30, 1992, payable semiannually in advance on the first of July 1, 1987, rent for each successive five (5) year period will be determined by mutual agreement or, if necessary by appraisal.
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II. Appraisal—Whenever this license provides that the rent shall be determined by appraisal, such rent shall be determined by three qualified real estate appraisers, one to be appointed by each of the parties hereto, and Kamehameha Schools/Bishop Estate and Licensee each shall promptly name one such appraiser and give written notice thereof to the other party, and in case either party shall fail so to do within ten days after such notice of the appointment of the first appraiser, the party naming the first appraiser may apply to any person then sitting as judge of the Circuit Court of the Judicial Circuit in which said premises are located for appointment of a second appraiser, and the two appraisers thus, appointed in either manner shall appoint a third appraiser, and in case of their failure [to do so] within ten days after appointment of the second appraiser, either party may have the third appraiser appointed by such judge, and the three appraisers so appointed shall proceed to determine the matter in question, and the decision of said appraisers or a majority of them shall be final, conclusive and binding on both parties hereto. Kamehameha Schools/Bishop Estate and Licensee each shall pay one-half of all proper costs and expenses of such appraisal other than attorneys’ fees.
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22. Kamehameha Schools/Bishop Estate’s Cost and Expenses—Licensee will pay to Kamehameha Schools/Bishop Estate on demand all cost and expenses including reasonable attorneys’ fees incurred by Kamehameha Schools/Bishop Estate in enforcing any of the covenants herein contained, in collecting any delinquent charges payable by Licensee hereunder, or in connection with any litigation commenced by or against Licensee (other than condemnation proceedings) to which Kamehameha Sehools/Bishop Estate without any fault on its part shall be made parties thereof.

Nothing in the License Agreement addresses the question of interest on delinquent payments.

Subsequently, KSBE and GTI were unable to reach an agreement on the annual rent due under the License Agreement for the five-year period from July 1, 1992 through June 30, 1997. As a result, on July 16, 1996, they agreed, pursuant to the License Agreement, to the appointment of a panel of three [212]*212real estate appraisers1 (Appraisers) to determine the rent for the renewal term. On April 4, 1997, the Appraisers issued their decision stating that “the Appraisers, as their decision, hereby determine that, for the five (5) year option period commencing July 1, 1992, the annual license fee for the premises as described will be SIX THOUSAND DOLLARS ($6,000.00).”

On April 7, 1997, KSBE filed a Motion to Confirm Arbitration Award. The circuit court granted this motion in a written order on April 29, 1997 (Confirmation Order). Pursuant to Hawai'i Revised Statutes (HRS) § 658-12 (1993),2 this Confirmation Order is a judgment deciding that “for the five (5) year option period commencing July 1, 1992, the annual license fee for the premises as described will be SIX THOUSAND DOLLARS ($6,000.00).” Athough the Appraisers and the court did not expressly decide that the total license fee owed for the five-year option period was $30,000, we take judicial notice of that computation.

In a letter to GTI dated May 5, 1997, KSBE requested that GTI pay the following amounts:

1. License rent owed through 6/30/97: $15,718.61
(Includes credits for rent already paid)
2. Interest owed through 5/5/97 $ 4,070.70
3. Per diem interest after 5/5/97: $ 4.37

KSBE did not inform GTI of the relevant authority, rates, dates, and numbers involved in its calculation of the interest.3

In response, GTI sent KSBE a cheek in the amount of $15,718.61 and a letter dated June 11, 1997, in which it stated as follows:

Enclosed is Check No. 12015, payable to [KSBE] in the amount of $15,718.61. This payment should be applied to the license rent owed by [GTI] under the [License Agreement] with [KSBE], and determined through arbitration.
We disagree with your letter of May 5, 1997, concerning [KSBE]’s claim for interest. The Decision of the Appraisers dated April 4, 1997, which was the basis for the Order Granting Plaintiffs Motion to Confirm Arbitration Award in S.P. No. 93-0366 does not award any interest to [KSBE]. Accordingly, it is [GTI] ’s position that interest is not due and owing.
Please prepare and file with the Circuit Court of the First Circuit in S.P. No.

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Bluebook (online)
990 P.2d 107, 92 Haw. 209, 1999 Haw. App. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wong-v-general-telcourier-inc-hawapp-1999.