2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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Workers, Local 966 v. Dept of Labor &Indus. Relations, 110 Hawaii 259, 265, 132 P.3d 368, 374(2006) ("Questions of fact are reviewed under the `clearly erroneous' standard.") The trial court determined that the causes are different because the cases are based on different resolutions. 1stAmd.COL ¶10. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) Although this is denominated as a conclusion of law, it is based on factual findings that Resolution 266-00 authorized condemnation at Oceanside's request pursuant to the Development Agreement and Resolution 31-03 authorized condemnation without reference to the Development Agreement where the Department of Public Works controlled selection of the property to be condemned by making the final determination on the alignment of the Bypass. 1stAmd.FOF¶85 to 1102. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) Similarly,the trial court determined that relief in the cases is different. 1 stAmd.COL 111. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) Although this is also denominated as a conclusion of law, it is based on factual findings that after Resolution 266-00, the "County realized that the Bypass required more land than Civil No. 00-1-181K and Resolution 266-00 was attempting to condemn." 1stAmd.FOF¶86. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K,V.27/01031.) Also,the determination that 3.348 acres is sufficiently different from 2.9 acres for purposes of abatement is a question of fact. Given the questions of fact involved in the trial court's determination that the causes and relief are different,the standard is clearly erroneous. Chun v. Board of Trustees of Employees' Retirement System, 106 Hawaii 416, 430, 106 P.3d 339, 353 (2005) (quoting Allstate Ins. Co. v. Ponce, 105 Hawaii 445, 453, 99 P.3d 96, 104 (2004)) The Supreme Court stated "A COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the court's conclusions are dependent upon the facts and circumstances of each individual case." Whether consolidation is pertinent to the abatement claims and whether abatement implicates subject matter jurisdiction only become relevant if this Court sets aside the trial court's findings that the causes and relief are different. If that occurs, then this Court should determine these issues under the de novo standard where this Court should find that even if the causes and relief are the same, consolidation of the actions satisfies the policies underlying abatement such that dismissal of the abatement claims should be affirmed. 14