2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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B. Motion for Statutory Damages—De Novo Coupes contend that whether the denial of the Motion for Statutory Damages should be set aside turns on whether HRS § 101-27 applies under the circumstances and thus the standard of review is de novo. See, e.g., Lingle v. Hawai`i Gov't Employees Assn, AFSCME, Local 152, 107 Hawaii 178, 183, 111 P.3d 587, 592 (2005)("Questions of statutory interpretation are questions of law, which are reviewed de novo under the right/wrong standard.") However, alternatively, because the Motion for Statutory Damages was deemed denied because no order was entered within 90 days, the trial court could have denied the motion on the grounds that the Coupes did not present a sufficient record to determine whether the requested amounts were reasonable. The applicable standard of review for the reasonableness of an allowance or award of attorney's fees and costs where authorized is abuse of discretion. Booker v. Midpac Lumber Co., Ltd., 65 Haw. 166, 171, 649 P.2d 376, 379-380 (1982). "In a legal sense discretion is abused whenever in the exercise of its discretion the court exceeds the bounds of reason, all of the circumstances before it being considered."Ariyoshi v. HPERB, 5 Haw.App. 533, 542, 704 P.2d 917, 925 (1985), citing Berry v. Chaplin, 74 Cal.App.2d 669, 169 P.2d 453, 456 (1946). C. Pretext for Public Use Claim—Clearly Erroneous Coupes argue that whether the trial court "should not have rejected allegations of pretextual taking or predominantly private purpose by looking only to the government's claims of public use" should be reviewed de novo on the grounds that these are questions of constitutional law. The County submits that this point of error turns on two issues. First, whether the Coupes have proven that the trial court in fact ignored the Coupes' pretextual allegations which should be reviewed by the clearly erroneous standard. Cf. Township, 172 N.J. at 578, 800 A.2d at 94 (Court stated that"we have never held that the standard is other than the manifest abuse of discretion test.") Second, whether the record lacks substantial evidence to support the finding that there was valid public purpose in Civil No. 05-1-15K, which also should be reviewed by the clearly erroneous standard. Leslie v. Estate of Tavares, 91 Hawaii 394, 399, 984 P.2d 1220, 1225 (1999) (internal quotation marks and citations omitted) (quoting State v. Kotis, 91 Hawaii 319, 328, 984 P.2d 78, 87 (1999)) ("An FOF is also clearly erroneous when the record lacks substantial evidence to support the finding. We have defined substantial evidence as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.") 15