2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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1-181K, V.43/T0032, and 05-1-15K, V.30/T0032.); 8/2/07 pp.78-79(S.R.O.A., 00-1-181K, V.43/T0015, and 05-1-15K, V.30/T0015.). Horter v. Commercial Bank& Trust Co., 99 Fla. 678, 684-85, 126 So. 909, 912 (1930) ("Pleas in abatement are not favored by the courts, and the greatest strictness is applied to them, and they will not be aided in construction by any intendments . . . . The plea will generally fail where there is a substantial difference in the relief sought in the two suits.") Accordingly, the Coupes have not established that the two cases entailed the same causes and same relief. Thus,the trial court correctly dismissed the abatement claims alleged in Count 6 of the Coupes' Second Amended Counterclaim and First Amended Third-Party Complaint in Civil No. 00-1-181K filed on December 7, 2005, and in Count 2 of the Coupes' Counterclaim and Cross-Claim in Civil No. 05-1-15K filed on February 12, 2007. Even assuming for purposes of argument that the cases had the same causes and sought the same relief, abatement would not apply because the cases were consolidated. Kehr v. Kehr, 173 Neb. 532, 535, 114 N.W.2d 26, 28 (1962) ("Under the foregoing rules the trial court did not err in sustaining the plea in abatement directed to plaintiffs first suit. We think it would have been more expeditious, however, for the trial court to have directed a consolidation of the two cases for the purpose of trial and decision."The purpose of abatement "to avoid multiplicity of suits,"does not apply where the matters are consolidated.) The opening brief at page 28 correctly states that the policies underlying the abatement doctrines are the "prevention of vexatious litigation,judicial economy, and to protect the courts from the possibility of inconsistent judgments."12 However, on the next page of the opening brief, without citation to any authority,the Coupes wrongly contend that consolidation is not relevant to the abatement analysis. As noted above, consolidation and amendment of the pleadings are often-used practical tools to achieve these policy goals. Id.;Bockweg v. Anderson, 333 N.C. 486, 500, 428 S.E.2d 157, 166 (1993) ("Just as defendants acted at their peril in not insisting in the federal action on continued consolidation of the two facets of the same claim and relying on the res judicata defense in the state action, the plaintiff acted at his peril by running the risk that the defendants 12 Oahu Lumber And Building Company v. Ah Yok And King Fong, 11 Haw. 416 (1898) ("The ground upon which courts proceed in abating a subsequent suit on the ground of the pendency of a former action between the same parties and for the same cause is, that the subsequent one is unnecessary and therefore oppressive and vexatious.") 17