2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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There is no abatement. On the Counterclaim filed in Civil No. 05-1-15K, alleging that the filing of the second complaint in Civil No. 05-1-15K should be abated, judgment is hereby entered in favor of County of Hawaii and 1250 Oceanside Partners, and against C&J Coupe Family Limited Partnership. The Court concludes that the claims are substantially different as they are based on different resolutions that were passed by separate and different County Councils over four years apart,pray for different relief, and do not fall under the doctrine of abatement. On October 11, 2007,the fourteenth day after the First Amended Final Judgment was entered,the Coupes filed their Motion for Statutory Damages Pursuant to HRS § 101-27 ("Motion for Statutory Damages")purportedly for attorneys' fees and costs expended on Civil No. 00-1-181K.8 (R.O.A., 00-1-181K, V.41/00510, and 05-1-15K, V.28/01034.) On October 26, 2007,the Coupes filed their Notice of Appeal in Civil No. 05-1-15K. (R.O.A., 00-1-181K, V.42/00515, and 05-1-15K, V.29/01039.) On October 31, 2007,the County filed its Memorandum in Opposition to the Motion for Statutory Damages wherein it argued that HRS § 101-27 does not apply because the property was finally taken for public use where the Coupes were awarded just compensation for the property. (R.O.A., 00-1-181K,V.42/00519, and 05-1-15K,V.29/01043.) The opposition memorandum noted that"[a]lthough the first case sought to condemn 2.9 acres and the second case sought to condemn 3.348 acres,the 2.9 acres was physically within the 3.348 acres. Thus, the same 2.9 acres that was the subject of the first case,was condemned in the second case." The County also argued that the Coupes filed the Motion for Statutory Damages outside of the 10- day period permitted under HRS § 101-27. On November 5, 2007,the Coupes filed a Reply Memorandum in support of their Motion for Statutory Damages wherein they argued that the property was not finally taken in Civil No. 8 The Motion for Statutory Damages sought over $2 million in fees and costs purportedly for Civil No. 00-1-181K but the motion and its supporting documents did not provide a means to determine whether the requested amounts were expended in Civil No. 05-1-15K or were expended in Civil No. 00-1-181K on issues other the improper delegation claim. Assuming arguendo that the Coupes are entitled to an award of damages under HRS § 101-27, any award would be limited to reasonable attorneys' and costs paid by the Coupes to establish improper delegation of condemnation power in Civil No. 00-1-181K, and not for attorneys' fees an costs expended on other issues in Civil No. 00-1-181K and not for amounts expended in Civil No. 05- 1-15K. 10