2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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B. Motion For Statutory Damages was Properly Denied The County submits that the trial court properly denied the Motion for Statutory Damages (by not ruling on the motion within 90 days)on the grounds that: (1) HRS § 101-2713 does not apply because the property was finally taken for public use in the consolidated action where the Coupes were awarded just compensation for the property; (2) the Motion for Statutory Damages was filed outside of the 10-day period permitted under HRS § 101-27; and (3)the Coupes did not present a sufficient record to determine reasonable attorneys' fees. HRS § 101-27 only applies in this case "if, for any cause, the property concerned is not finally taken for public use, a defendant who would have been entitled to compensation or damages had the property been finally taken, shall be entitled, in such proceedings, to recover from the plaintiff all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded including the defendant's costs of court,a reasonable amount to cover attorney's fees paid by the defendant in connection therewith, and other reasonable expenses; and the possession of the property concerned shall be restored to the defendant entitled thereto." (emphasis added.) Initially, because the 2.9-acre parcel sought in Civil No. 00-1-181K is within the 3.348- acre parcel sought in Civil No. 05-1-15K, and the First Amended Final Judgment ordered 13 HRS § 101-27 states, in part: Whenever any proceedings instituted under this part are abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use, a defendant who would have been entitled to compensation or damages had the property been finally taken, shall be entitled, in such proceedings,to recover from the plaintiff all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded including the defendant's costs of court,a reasonable amount to cover attorney's fees paid by the defendant in connection therewith, and other reasonable expenses; and the possession of the property concerned shall be restored to the defendant entitled thereto. Issues of fact arising in connection with My claim for such damage shall be tried by the court without a iM unless a trial by jury is demanded by either party,pursuant to the rules of court within ten days from the date of the entry of an order or iudgment allowing the discontinuance of the proceedings, or dismissing the proceedings or denying the right of the plaintiff to take the property concerned for public use. (Emphasis added.) 22