2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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On December 14, 2007,the County filed its Supplemental Memorandum in opposition to the Motion for Statutory Damages wherein the County argued that the Coupes failed to take steps to have that claim timely tried under HRS § 101-27. (R.O.A., 00-1-181K, V.42/00530, and 05-1-15K, V.29/01051.) On December 19, 2007, the Coupes filed their Supplemental Reply Memorandum in support of their Motion for Statutory Damages wherein they argued that their Motion for Statutory Damages was timely filed because the Coupes' right to damages under HRS § 101-27 did not accrue until 30-days after final judgment where there is no appeal.10 (R.O.A., 00-1- 181K, V.42/00531, and 05-1-15K, V.29/01052.) On December 31, 2007, the Coupes filed a Motion to Vacate, or in the alternative to Stay Order Putting Plaintiffs in Possession("Motion to Vacate Possession Order") wherein they argued that the Possession Order did not conform with HRS § 101-32 because it did not require a deposit for further damages that may be sustained if the property is not finally taken for public use. (R.O.A., 00-1-181K, V.42/00532, and 05-1-15K,V.29/01053.) They also argued that they were entitled to a stay of the Possession Order on the grounds that the appellate courts may find that Civil No. 05-1-15K was abated by Civil No. 00-1-181K. On January 18, 2008, the County filed its memorandum in opposition to the Motion to Vacate Possession Order where it argued: (1) HRS § 101-32 does not require deposits for further damages (beyond amounts awarded for just compensation) but rather is within the discretion of the trial court; and(2) the trial court did not abuse its discretion because (a) even if the Court's condemnation order in Civil No. 05-1-15K is reversed on appeal,the County would not likely be required to physically restore the property because the County would simply file another condemnation action (on the grounds that the public necessity for the road, the best location and the physical needs for construction, maintenance and operation compel the County to acquire the property), and (b)the Coupes did not present any evidence that the County would not be in a financial position to restore the property if ordered to do so. (R.O.A., 00-1-181K, V.42/00535, and 05-1-15K, V.29/01056.) The Coupes did not file a reply memorandum regarding the Motion to Vacate Possession Order. to If this argument is correct, the Coupes filed the Motion for Statutory Damages too early— 14 days after the First Amended Final Judgment. 12