2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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On February 8, 2008,the Coupes filed their Notice of Appeal in Civil No. 00-1-181 K of the denial of the Motion for Statutory Damages on the grounds that the trial court is deemed to have denied the motion by not ruling on it within 90 days pursuant to Haw. R. App. P 4(a)(3). (S.R.O.A., 00-1-181K, V.43/00542, and 05-1-15K,V.30/01063.) On March 13, 2008,the trial court entered its order denying the Motion to Vacate Possession Order on the grounds that: (1) the motion was untimely under HRCP Rule 59; (2) even if the motion was timely under HRCP Rule 62, no additional amount is needed to cover any further damage in the event that this issue is reversed on appeal because the County can file another condemnation action; and(3)there is no dispute that the County would not have the financial ability to pay any additional damages. (S.R.O.A., 00-1-181K, V.43/00548, and 05-1- 15K, V.30/01069.) On March 31, 2008, the Coupes filed,with the Intermediate Court of Appeals, a Motion to Vacate Order Putting Plaintiff/Counterclaim Defendant County of Hawaii in Possession Pending Appeal and Accounting for Amounts Deposited in Court filed December 3, 2007 ("Appellate Motion to Vacate Possession Order"). The Coupes primarily argued that the trial court committed error by dismissing the abatement claim. On April 7, 2008, the County filed their opposition memorandum to the Appellate Motion to Vacate Possession Order wherein the County argued that the motion does not address the basis of trial court's decision dismissing the abatement claims. The County also argued that consolidation of the lawsuits defeats any abatement claim. On April 21, 2008,this Court denied the Appellate Motion to Vacate Possession Order without prejudice to the parties further addressing these issues in their respective briefs. 1I. STANDARD OF REVIEW A. Abatement Claims—Clearly Erroneous Coupes contend that whether the trial court's dismissal of their abatement claims should be reversed concerns subject matter jurisdiction and thus the standard of review is de novo. As briefed below,the County submits that whether Civil No. 05-1-15K should be abated by Civil No. 00-1-181K does not implicate subject matter jurisdiction. Rather,the primary issue is whether the causes and relief of the two lawsuits are the same which involves questions of fact and thus the standard of review is clearly erroneous. See, e.g., Hawaii Teamsters &Allied 13