2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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III. ARGUMENT A. Abatement Decision Should be Affirmed The County submits that the trial court correctly decided that the Coupes failed to prove the claim for abatement because the two lawsuits had different causes and prayed for different relief. See Shelton„51 Haw. at, 249, 456 P.2d at 226-227 (1969) ("The Hawaii cases clearly indicate that where the party is the same in a pending suit, and the cause is the same and the relief is the same, a good plea in abatement lies."). The cause in Civil No. 00-1-181K was based on Resolution 266-00 that authorized the condemnation action at Oceanside's directive pursuant to the Development Agreement. In contrast, the cause in Civil No. 05-1-15K was based on Resolution 31-03 that authorized the condemnation action to acquire right of way for a public highway, without reference to the Development Agreement, where the trial court found that the Department of Public Works decided the property to be condemned. lstAmd.FOF¶101-¶102. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) Saracino v. Hartford Financial Services Group, Inc., - -- A.2d ----, 50 Conn. Supp. 503, 2007 WL 5145671 (Conn. Super. 2007) (where the allegations in the two complaints are "not premised on the same factual circumstances"the same cause requirement for purposes of abatement is not established). The relief sought in Civil No. 00-1-181K was a 2.9-acre parcel described in a survey attached to Resolution 266-00. In contrast,the relief sought in Civil No. 05-1-15K was a 3.348- acre parcel described in a survey attached to Resolution 31-03. 11 The opening brief at page 24 argues that the differences in the property sought in the two lawsuits "were minor at best." However,the trial court made the factual determination: "As there is nearly a half acre difference (0.448 acres) in the prayer for relief in the two eminent domain cases, the Court concludes that Civil No. 00-1-181K and Civil No. 05-1-15K request different relief for the purposes of abatement.” 1stAmd.COL¶l 1. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) Moreover, contrary to the "minor at best" statement,the Coupes' counsel admitted to the trial court on two occasions that the parcels are "substantially different." 7/27/07 p.50 (S.R.O.A., 00- 11 HRS § 101-16 provides: "The complaint shall also contain a statement of the use to which the land sought to be condemned is to be put, a description of each and every piece of land sought to be condemned, and whether the same includes the whole or only a part of an entire tract or parcel. A map shall accompany the complaint which shall correctly delineate the land sought to be condemned and its location." 16