No. SCWC-28826, Thursday, October 18, 2012, 9 a.m.

ROBERT KUTKOWSKI, Petitioner/Plaintiff-Appellant/Plaintiff-Cross-Appellee, vs. PRINCEVILLE PRINCE GOLF COURSE, LLC, a Delaware Limited Liability Company, Respondent/Defendant-Appellee/Defendant-Cross-Appellant, and DOE CORPORATIONS 1-5, DOE LIMITED LIABILITY COMPANIES 1-5, DOE PARTNERSHIPS 1-5, DOE ENTITIES 1-5, JOHN DOES 1-5, AND JANE DOES 1-5, Defendants.

Attorneys for Petitioner/Plaintiff-Appellants/Plaintiff-Cross-Appellee:

Margery S. Bronster, Rex Y. Fujichaku, and Joe P. Moss

Attorneys for Respondent/Defendant-Appellee/Defendant-Cross-Appellant:

David W. Proudfoot and Max W.J. Graham, Jr.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Order assigning Circuit Court Judge Karen T. Nakasone, due to a vacancy, filed 07/03/12.

NOTE: Order accepting Application for Writ of Certiorari, filed 08/01/12.

COURT: MER, CJ; PAN, SRA, & SSM, JJ; Circuit Court Judge Karen T. Nakasone assigned due to a vacancy.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

This is a landlord-tenant case presenting two issues of first impression in the State of Hawai`i: (1) whether a right of first refusal is the type of term and condition applicable to a holdover tenancy; and (2) whether a right of first refusal is triggered when a lessor sells the subject property as part of a larger parcel.

Petitioner/Plaintiff-Appellant/Plaintiff-Cross-Appellee Robert Kutkowski (“Kutkowski”) and Respondent/Defendant-Appellee-Cross-Appellant Princeville Prince Golf Course LLC’s (“Princeville”) predecessor entered into a License Agreement governing a half-acre parcel of land in Kauai upon which Kutkowski resided. The License Agreement contained a right of first refusal provision and a holdover provision. Kutkowski held over past the term of the License Agreement. During the holdover period, Princeville’s predecessor sold its 1040-acre Master Parcel, of which the half-acre parcel was an undivided part, without first offering the half-acre parcel for sale to Kutkowski.

Kutkowski filed a First Amended Complaint for specific performance of his right of first refusal. Princeville filed a counterclaim for declaratory relief, seeking, inter alia, a declaration from the circuit court that Kutkowski’s right of first refusal did not survive into the holdover period. The circuit court disposed of the case on cross-motions for summary judgment, holding that Kutkowski’s right of first refusal did survive into the holdover period but that Princeville’s sale of the entire 1040-acre parcel did not trigger Kutkowski’s right of first refusal over the half-acre parcel. The ICA affirmed the circuit court.

On certiorari, Kutkowski seeks review of the ICA’s April 26, 2012 Judgment on Appeal, entered pursuant to its March 20, 2012 Opinion, and presents the following questions:

A. Whether the Intermediate Court of Appeals (“ICA”) gravely erred in affirming the Circuit Court’s judgment of October 2, 2007.

B. Whether the ICA gravely erred in finding that Kutkowski’s right of first refusal to purchase his lease premises (“Premises”) was not triggered when Princeville Corporation sold the leased premises to Princeville Golf Course, LLC (“Princeville LLC.”)

C. Whether the ICA gravely erred in finding that Kutkowski’s requested relief of specific performance would require a wholesale reformation of the parties’ agreement.

D. Whether the ICA gravely erred in denying any equitable relief because Kutkowski did not seek to enjoin or rescind the sale of the larger parcel (“Master Parcel”) of which the leased premises were a part.