Food Pantry, Ltd. v. Waikiki Business Plaza, Inc. , 58 Haw. 606 ( 1978 )

CONCURRING AND DISSENTING OPINION OF

KIDWELL, J.

I concur in all aspects of the majority opinion in this case, except the conclusion in part IV that the lessor is entitled to fair market rental as determined by the trial court for the period of the lease subsequent to April 25, 1973. The fact which controls, in my opinion, is that the lessor did not terminate the lease. So long as the lessor permitted the lease to remain in effect, the lessor’s damages should be limited to those awardable for the lessee’s breach of the non-assignment covenant.

The parties were defending clearly-defined positions. The lessee sought a declaration of its right to assign or sublet and an injunction against termination of the lease. The lessor counterclaimed for a declaration of its right to terminate the lease and for damages, costs and attorney’s fees. Whatever its reasons, the lessor chose not to commit itself to its remedy of termination of the lease. The majority opinion makes it clear that the lessor was not entitled to recover from the lessee more than nominal damages while the lease remained in effect. I am unable to perceive why the trial court’s award of damages to the lessor, in the form of increased rent, has more validity for the period after April 25, 1973 than for the earlier period.

The majority appears to argue that the lessee got what it was seeking, in the form of a restraint upon the exercise of the lessor’s right of termination, and must take with it the unseverable condition which the court attached and which required the lessee to do one of two things, both of whmh it had strenuously resisted. The lessee has taken the only course open to it in order to escape from its dilemma, by appealing to this court. I see no suitable way of dealing with the case before us except to reverse both the adjudication that the lessor could not terminate the lease and the award of damages for its loss of that right.

This disposition would put the parties where they left themselves, i.e., with the lessee vulnerable to a right of termination which the lessor chose not to exercise. We would thereby avoid entanglement in the affairs of these parties, who have obviously been employing against each other all of their strategical and tactical skills. Although the resolution of the problem which has been adopted by the majority does not offend my sense of fairness, I feel obliged to dissent in the particulars stated.