2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

Home

`[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter,the court shall dismiss the action.' Rule 55.27(3) (emphasis added).Nonetheless, at least one case purportedly involving the pending action or abatement doctrines has held that courts must address the matter sua sponte, analogizing it to non-waivable subject-matter jurisdiction.See Moreau, 161 S.W.3d at 405. Again, subject matter jurisdiction is not usually something considered waivable in some circumstances and not in others. Here, in the event this Court holds that abatement implicates subject matter jurisdiction, the causes and the relief in Civil No. 00-1-181K and Civil No. 05-1-15K are not identical for reasons previously discussed. On the other hand, if the trial court is granted discretion in applying abatement, the trial court clearly did not abuse its discretion because the causes and relief are sufficiently different and consolidation achieved the goals of abatement. The Coupes argue that Red Oak Farm, Inc. v. City of Ocala, 636 So.2d 97(Fla.App. 5 Dist. 1994), is similar to this case. In Red Oak, a second condemnation action was filed while the first one was on appeal. The City argued that the second case corrected a deficiency related to a failure to comply with specific provisions of Chapter 180, Florida Statutes. The nature of the deficiency was not disclosed in the one-page decision. The appellate court disagreed that there was a so called deficiency difference in the lawsuits, and abated the second case because "the parties are the same, the land is the same, the trial court is the same, and the resulting taking of the parcel is the same as the action presently pending before this court." Id. 636 So.2d at 98. In this case,the relief is different, and the causes are different because Resolution 266-00 was pursuant to Oceanside's directive under the Development Agreement and Resolution 31-03 was not. See 1stAmd.FOF 65, 101-02. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) The most important defect in the Red Oak Farm case, however, is that it omits entirely to address the character of an action in eminent domain . Numerous holdings provide that the power of eminent domain is essential for the proper performance of governmental functions such that that it cannot be surrendered, and, if attempted to be transferred away, or otherwise impeded, such as by a plea in abatement, it may be resumed at will. State of Georgia v. City of Chattanooga, 264 U.S. 472, 480, 44 S.Ct. 369, 370, 68 L.Ed. 796, 799 (1924)(". . . The taking of private property for public use upon just compensation is so often necessary for the proper performance of governmental functions that the power is deemed to be essential to the life of the state. It cannot be surrendered, and, if attempted to be contracted away, it may be resumed at 20