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Kessel v. Unemori11/21/2002
SUMMARY DISPOSITION ORDER
Plaintiff-Appellant Jon von Kessel (von Kessel) appeals (1) the March 22, 2000 final judgment of the circuit court of the first circuit, entered upon a bench trial, the Honorable Gary W.B. Chang, judge presiding, in favor of Defendant-Appellee Hilton H. Unemori (Unemori); and (2) the underlying findings of fact and conclusions of law and order of the court filed March 8, 2000.
This case involves a contract in which Unemori agreed to purchase a parcel of undeveloped Oregon land from von Kessel, a contract which Unemori breached. Essentially, von Kessel's general argument on appeal is (1) that the court erred in finding that the purchase and sale agreement provided for liquidated damages in the amount of $22,500.00, rather than the $175,000.00 amount that von Kessel contends the purchase and sale agreement specified and the parties intended; and (2) that the court erred in enforcing the $22,500.00 liquidated damages provision it found because, at the time of contracting, that amount was not a reasonable estimate of the damages Unemori's breach would entail.
Upon an exacting review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve the questions presented on appeal as follows:
1. Whether the [court] erred when it found and concluded that [von Kessel] did not complete his preliminary planning?
This finding of fact by the court is not clearly erroneous because there was substantial evidence in the record to support it. State v. Okumura, 78 Hawaii 383, 392, 894 P.2d 80, 89 (1995). The court heard testimony from several different witnesses on this point, including von Kessel, who averred that the subject real property was "permit-ready[,]" but admitted that he had not obtained a permit to start construction. In addition, Unemori's agent, David R. Tacheny (Tacheny), testified that the project had not yet complied with Americans with Disabilities Act rules and had not resolved a wetlands issue, among the many approvals needed before construction could commence. Tacheny also noted that many of the consultants involved in the preliminary planning remained unpaid.
2. Whether the [court] erred when it found and concluded that Exhibit 12 was the Agreement executed on November 5, 1993, as opposed to Exhibit 24? (Underlining in the original.)
Although the court apparently confused the date Exhibit 24 was signed (November 5, 1993) with the date Exhibit 12 was signed (on or about January 6, 1994), this variance is immaterial. Von Kessel himself testified that Exhibit 12 was merely a cleaned-up version of Exhibit 24 that incorporated the handwritten modifications he had made to Exhibit 24 before it was signed, and that Exhibit 12 was "the most recent and amended version of the original contract[,]" the version he had attached to his complaint and was seeking to enforce. The court's error was therefore harmless.
3. Whether the [court] erred when it found and concluded that the sum of $22,500.00 was a reasonable preestimate of harm that [von Kessel] might suffer in the event of a breach of the Agreement by [Unemori].
This finding of fact by the court is not clearly erroneous because there was substantial evidence in the record to support it. Okumura, 78 Hawaii at 392, 894 P.2d at 89. Although Exhibit 12, paragraph 3, refers to "the amount of $175,000 payable to Seller in cash" as "a forfeitable earnest money deposit in accordance with the terms of this Agreement[,]" Exhibit 12, paragraph 7.4, provides that, "Purchaser will pay $175,000.00 in cash at closing, less a credit of $2
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