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Home My WebLink About2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards No. 28822 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII COUNTY OF HAWAII, a municipal ) CIVIL NO. 05-1-015K corporation, ) (Kona) (Condemnation) Plaintiff-Appellee, ) APPEAL FROM FIRST AMENDED FINAL JUDGMENT VS. ) (filed September 27, 2007) C&J COUPE FAMILY LIMITED ) THIRD CIRCUIT COURT PARTNERSHIP, ) Honorable Ronald Ibarra, Judge Defendants-Appellants, ) and ) ROBERT NIGEL RICHARDS, TRUSTEE ) UNDER THE MARILYN SUE WILSON ) '`'a cr► TRUST; MILES HUGH WILSON, et al., ) ;r n Defendants. COUNTY OF HAWAII, a municipal ) CIVIL NO. 00-1-181K corporation, ) (Kona) (Condemnation) Plaintiff-Appellee, ) APPEAL FROM THE DENIAL OF THE POST-JUDGMENT MOTION OF VS. ) DEFENDANT C&J COUPE FAMILY LIMITED PARTNERSHIP FOR ROBERT NIGEL RICHARDS, TRUSTEE ) STATUTORY DAMAGES PURSUANT UNDER THE MARILYN SUE WILSON ) TO HAW. REV. STAT. § 101-27(FILED TRUST; C&J COUPE FAMILY LIMITED ) OCT. 11, 2007) PARTNERSHIP; MILES HUGH WILSON, ) et al., ) THIRD CIRCUIT COURT Defendants-Appellants. ) Honorable Ronald Ibarra, Judge PLAINTIFF-APPELLEE COUNTY OF HAWAI`I'S ANSWERING BRIEF APPENDIX"A" STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE LINCOLN S.T. ASHIDA 4478 Corporation Counsel GERALD TAKASE 3260 Assistant Corporation Counsel JOSEPH K. KAMELAMELA 2493 MICHAEL J. UDOVIC 5238 IVAN M. TORIGOE 4327 KATHERINE A. GARSON 5748 Deputies Corporation Counsel County of Hawaii Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: 961-8251 Facsimile: 961-8622 Email:jkamela @co.hawaii.hi.us Attorneys for Plaintiff-Appellee County of Hawaii 2 TABLE OF CONTENTS I. STATEMENT OF THE CASE......................................................................................2-13 A. Introduction............................................................................................................. 2 B. History of the Case.............................................................................................2-13 11. STANDARD OF REVIEW......................................................................................... 13-15 A. Abatement Claims—Clearly Erroneous .......................................................... 13-14 B. Motion for Statutory Damages—De Novo..................................................... 15 C. Pretext for Public Use Claim—Clearly Erroneous............................................... 15 III. ARGUMENT .............................................................................................................. 16-28 A. Abatement Decision Should be Affirmed........................................................16-21 B. Motion for Statutory Damages was Properly Denied......................................22-26 C. Trial Court Properly Found Public Purpose.....................................................26-28 IV. CONCLUSION................................................................................................................. 28 APPENDIX"A" Transcript of Proceedings of November 8, 2007, in County of Hawaii v. Robert Nigel Richards,et al., CV. No. 00-1-0181 K and 05-1-015K TABLE OF AUTHORITIES Altmann v. Republic ofAustria 335 F.Supp.2d 1066 (C.D.Cal. 2004) ............................................................................. 27 Allstate Ins. Co. v. Ponce 105 Hawaii 445, 99 P.3d 96 (2004)......................................... .................................... 14 American Home Assur. Co. v. Plaza Materials Corp. 908 So.2d 360 (2005)........................................................................................................ 27 Ariyoshi v. HPERB 5 Haw.App. 533, 704 P.2d 917(1985)............................................................................. 15 Berry v. Chaplin 74 Cal.App.2d 669, 169 P.2d 453 (1946)......................................................................... 15 Bertelmann v. Lucas, et al. 31 Haw. 71 (Hawai'i Terr. 1929) ...................................................................................... 9 Bockweg v. Anderson 333 N.C. 486, 428 S.E.2d 157 (1993).............................................................................. 17 Booker v. Midpac Lumber Co., Ltd. 65 Haw. 166, 649 P.2d 376 (1982)................................................................................... 15 Burke v. Oklahoma City 350 P.2d 264 (Ok1.1960)..................................................................................................21 Chun v. Board of Trustees of Employees'Retirement System 106 Hawai'i 416, 106 P.3d 339 (2005) ............................................................................ 14 Franklin &Franklin v. 7-Eleven Owners for Fair Franchising 85 Ca1.App.4th 1168, 102 Ca1.Rptr.2d 770 (2000).......................................................... 18 Gray v. Administrative Director of the Court, State of Hawai`i 84 Hawai'i 138, 931 P.2d 580 (1997) .............................................................................23 Halpern v. Board of Education 196 Conn. 647, 495 A.2d 264 (1985) .............................................................................. 19 Hamada v. Westcott 102 Hawai'i 210, 74 P.3d 33 (2003) ......................................................................................... 23 Hawaii Housing Authority v. Lyman 68 Haw. 55, 704 P.2d 888 (1985).................................................................................... 26 Hawai'i Housing Auth. v. Midkii f 467 U.S. 229, 104 S.Ct.2321 (1984)................................................................................ 26 Hawaii Teamsters &Allied Workers, Local 966 v. Dept of Labor &Indus. Relations 110 Hawai'i 259, 132 P.3d 368 (2006) ........................................................................ 13-14 Horter v. Commercial Bank& Trust Co. 99 Fla. 678, 126 So. 909 (1930)................................................................................. 17, 18 In Re Moreau 161 S.W.3d 402 (Mo.App. S.D. 2005).............................................................................20 Kehr v. Kehr 173 Neb. 532, 114 N.W.2d 26 (1962).............................................................................. 17 Kelly v. Kelly 245 S.W.3d 308 (Mo. App. W.D. 2008).......................................................................... 19 Kelo v. City of New London 2004 WL 2802967 ............................................................................................................ 27 Kelo v. City of New London 545 U.S. 469, 125 S.Ct. 2669 (2005)...........................................................................26-27 Leslie v. Estate of Tavares 91 Hawai'i 394, 984 P.2d 1220 (1999) ........................................................................... 15 Lingle v. Hawaii Govt Employees Assn, AFSCME, Local 152 107 Hawai'i 178, 111 P.3d 587 (2005) ............................................................................. 15 Los Angeles Branch NAACP v. Los Angeles Unified School Dist. 750 F.2d 731 (C.A.Cal. 1984.)......................................................................................... 18 Matsushita v. Container Home Supply, Inc. 6 Haw. App. 439 (1986) ................................................................................................... 9 Oahu Lumber And Building Company v. Ah Yok And King Fong 11 Haw. 416 (1898) .......................................................................................................... 17 Patrick V. Koepke Constr., Inc. v. Woodsage Constr. Co. 119 S.W.3d 551 (Mo.App. E.D.2003)............................................................................. 19 Red Mountain, LLC v. Fallbrook Public Utility District 143 Cal.AppAth 333, 48 Cal.Rptr.3d 875 (2006)............................................................. 18 ii Red Oak Farm, Inc. v. City of Ocala 636 So.2d 97 (Fla.App. 5 Dist. 1994)..............................................................................20 Richardson v. City and County of Honolulu 76 Hawai'i 46, 868 P.2d 1193 (1994) ................................................................................4 Saracino v. Hartford Financial Services Group, Inc. 50 Conn. Supp. 503, 2007 WL 5145671 (Conn. Super. 2007)................................... 16, 19 Shelton Eng'g Contractors v. Hawaii Pac. Indus. 51 Haw. 242 (1969) ........................................................................................... 8, 9, 16, 18 State ex rel. City of Springfield v. Conley 760 S.W.2d 948 (Mo.App. W.D. 1988)............................................................................ 19 State ex rel. Devonshire v. Superior Court 70 Wash.2d 630, 424 P.2d 913 (1967)............................................................................. 21 State ex rel. Henry v. Superior Court 155 Wash. 606, 284 P. 788 (1930).................................................................................... 21 State v. Charlton 71 Wash.2d 748, 430 P.2d 977(1967)............................................................................. 21 State v. Davis 53 Haw. 582,499 P.2d 663 (1972).................................................................................. 23 State v. Kotis 91 Hawaii 319, 984 P.2d. 78 (1999)................................................................................ 15 State of Georgia v. City of Chattanooga 264 U.S. 472, 44 S.Ct. 369, 68 L.Ed. 796(1924)............................................................ 20 Tennessee Gas Transmission Co. v. Violet Trapping Co. 200 So.2d 428 (La.App.1967).............................................................. ......... 21 ................... Thomas v. Navas 47 Haw. 605, 393 P.2d 645 (1964).................................................................................. 19 Township of West Orange v. 769 Associates, L.L.C. 172 N.J. 564, 800 A.2d 86 (2002)................................................................................4, 15 Whittier Union High School Dist. v. Beck 45 Cal.App.2d 736, 114 P.2d 731 (1941).................................................................. 11, 24 iii `fir►° STATE STATUTES Hawaii Revised Statutes Section101-16.................................................................................................................. 16 Section101-27...........................................................................................10,42, 15, 22-25 Section101-32............................................................................................................. 11-12 HAWAII RULES Hawaii Rules of Civil Procedure Rule50................................................................................................................................6 Rule54(d)(2)(B)...............................................................................................................24 Rule59.............................................................................................................................. 13 Rule62.............................................................................................................................. 13 Hawai`i Rules of Appellate Procedure Rule4(a)(3)....................................................................................................................... 13 OTHER County of Hawaii Resolution No. 244-98 .......................................................................................................................... 3 No. 266-00 .................................................................................................................passim No. 31-03 ...................................................................................................................passim County of Hawaii Ordinance No. 89-142 .......................................................................................................................... 2 No. 96-7 .............................................................................................................................. 3 No. 96-8 .............................................................................................................................. 3 No. 05-25 ............................................................................................................................2 Hawaii Long Range Land Transportation Plan Final Report(May 1998)....................................3 Mamalahoa Bypass Road Final EIS (1999).................................................................................... 3 Hawaii County Council General Plan (2005)................................................................................3 iv No. 28822 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII COUNTY OF HAWAII, a municipal ) CIVIL NO. 05-1-015K corporation, ) (Kona) (Condemnation) Plaintiff-Appellee, ) APPEAL FROM FIRST AMENDED FINAL JUDGMENT vs. ) (filed September 27, 2007) C&J COUPE FAMILY LIMITED ) THIRD CIRCUIT COURT PARTNERSHIP, ) Honorable Ronald Ibarra, Judge Defendants-Appellants, ) and ) ROBERT NIGEL RICHARDS, TRUSTEE ) UNDER THE MARILYN SUE WILSON } TRUST; MILES HUGH WILSON, et al., ) Defendants. ) COUNTY OF HAWAII, a municipal ) corporation, ) CIVIL NO. 00-1-181K ) (Kona) (Condemnation) Plaintiff-Appellee, ) APPEAL FROM THE DENIAL OF THE vs. ) POST-JUDGMENT MOTION OF DEFENDANT C&J COUPE FAMILY ROBERT NIGEL RICHARDS, TRUSTEE ) LIMITED PARTNERSHIP FOR UNDER THE MARILYN SUE WILSON ) STATUTORY DAMAGES PURSUANT TRUST; C&J COUPE FAMILY LIMITED ) TO HAW. REV. STAT. § 101-27 (FILED PARTNERSHIP; MILES HUGH WILSON, ) OCT. 11, 2007) et al., ) THIRD CIRCUIT COURT Defendants-Appellants. ) Honorable Ronald lbarra, Judge sxondem\mamalahoakoupe 288221answering brief5-16-08UKKfc.doc PLAINTIFF-APPELLEE COUNTY OF HAWAII'S ANSWERING BRIEF COMES NOW, Plaintiff-Appellee County of Hawaii ("County"), by and through its undersigned counsel, hereby submits its Answering Brief as follows: I. STATEMENT OF THE CASE A. Introduction. This case involved the condemnation of a small segment of a much larger parcel of land owned by several parties as tenants in common, including Defendant-Appellant and Third-Party Plaintiff-Appellant C & J Coupe Family Limited Partnership ("Coupes") for the purpose of constructing a bypass highway makai of the Mamalahoa Highway. The larger Coupe property runs all the way from the makai side of the Mamalahoa Highway down to the ocean. (Record on Appeal ("R.O.A."), Trial Exh. D-107 (May 2000, Site Map(Mamalahoa Highway Bypass Road)).) The segment which the County acquired for the bypass highway bisects the larger Coupe property. Id. B. History of the Case. The trial court correctly found that a highway to bypass the Mamalahoa Highway will serve the public interest by alleviating unacceptable and unsafe traffic conditions. This finding is supported by several studies, and no credible evidence to the contrary was offered by the Coupes. September 27, 2007, First Amended Findings of Fact, Conclusions of Law and Order ("1 stAmd.FOFCOL"), FOF 16-¶9.2 (R.O.A., 00-1-181K, Vol. 41, Document 00507 (hereinafter referenced as "V.41/00507," and 05-1-15K, V.27/01031.) 1 The non jury trial commenced on July 9, 2007. The trial judge assigned separate letters to each party for exhibits: J was Joint Exhibits, R was for Coupes' Exhibits, D was for Third-Party Defendant-Appellee 1250 Oceanside Partners aka Hokuli`a's ("Oceanside") Exhibits, and P was for the County's Exhibits. Hereinafter, any reference to these exhibits will be as Exh. J, R, D or P. 2 See Hawai`i Belt Road Holualoa to Papa Preliminary Engineering Report(June 1979) at III-3, Exh. D-2 (State of Hawaii Department of Transportation concluded that a highway to bypass the Mamalahoa Highway would be beneficial because the Mamalahoa Highway did not conform to the desired level of service criteria due to the inadequate physical elements of the existing highway,high accident rates, anticipated higher traffic volume and congestion, and the need for a route continuously around the island);Kona Regional Plan (1982), Exh. P-6 ("traffic counts [on Mamalahoa Highway] show the traffic to be equal to or exceeding the roadway design capacity which is an undesirable traffic condition. . . . [resulting in] heavy burden on the roadway network, increasing both travel time and inconvenience," and a community survey conducted in connection with the report indicated that the deteriorating traffic condition was viewed as a major problem by a third of the sample group.); 1989 Hawaii County Council General Plan (Ordinance 89-142) (adopted the 1979 State bypass highway and identified as desirable the construction of a roadway from Keauhou to Napoopoo.), Exh. J-245;Parson Brinckerhoff Quade and Douglas, Inc., Traffic Impact Study (1995), p.10; Exh. D-138 (the bypass "will result in a beneficial reduction of traffic volumes on Mamalahoa Highway."); 2 Oceanside is the developer of the project known as "Hokuli`a," sited on a 1550-acre parcel of land extending from the ocean to almost the Mamalahoa Highway. Hokuli`a's site straddles the boundaries of North and South Kona, County of Hawaii. Development Agreement, (Ex. A project map), Exh. J-45. The Coupes' property is located contiguous south to Hokuli`a. Exh. D-107 (5100, Site Map (Mamalahoa Hwy Bypass Road)). In January 1996, the County Council approved Ordinances 96-7 and 96-8 that primarily concerned change of zoning for the Hokuli`a project. Both ordinances provided, as conditions of approval,that Oceanside was to construct a bypass highway between Keauhou and Captain Cook ("Bypass"). The Bypass would need to cross lands owned by many landowners. As a result,the ordinances anticipated that the County might need to use its eminent domain power in connection with the construction of the Bypass. Exh. J-45 (Ex.s B and Q. On April 20, 1998, the County Council passed Resolution 244-98 that adopted a Development Agreement between the County and Oceanside that addressed compliance with the conditions of approval in Ordinances 96-7 and 96-8. Exh. J-45; J-314. ¶11(a) of the Development Agreement addressed potential use of the County's power of condemnation.' Exh. J-45. As interpreted by the trial court, the Development Agreement provided that, at Oceanside's request, the County was to condemn rights-of-way which Oceanside was unable to acquire through private negotiations. (R.O.A., 00-1-181K, V.41/00507, FOF¶30, and 05-1-15K, V.27/01031, FOF ¶30.) Starting in 1997, Oceanside and the County engaged in negotiations with the Coupes to obtain right-of-way needed to construct the Bypass through their property. Exh. J-142. However, despite lengthy negotiations, Oceanside and the County were unable to reach an Hawaii Long Range Land Transportation Plan Final Report(May 1998)pp. 24-32; Exh.J-380 (recognized the need, based on traffic safety considerations, for the Hokuli`a bypass); Mamalahoa Bypass Road Final EIS(1999); Exh. J-135 ("The fundamental public enhancement provided by the proposed project [Mamalahoa bypass] will be its contribution to helping relieve the congested regional transportation system." ; 2005 Hawaii County Council General Plan Ordinance 05-25) adopted the Mamalahoa bypass, Exh. P-7 Although not material to this appeal, contrary to the opening brief at page 6, 1stAmd.FOF$34 did not find that the Development Agreement attempted to relieve Oceanside of an obligation to acquire property for the Bypass. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) As noted earlier, Ordinances 96-7 and 96-8 established conditions of approval, as opposed to obligations. Furthermore, the two ordinances anticipated that the County might need to use its eminent domain power in connection with the construction of the Bypass. 3 agreement with the Coupes and they eventually reached an impasse in 2000. Exh.s J-294; J-437; J-142; J-143; J-313; Test. Takase (7/16/07pm,p. 21) (Supplemental R.O.A., filed 5/l/08, ("S.R.O.A."), 00-1-181K, V.43/T0008 and 05-1-15K, V.30/T0008); Frye Depo. p. 318 ((R.O.A., 00-1-181K,V.39/D011, and 05-1-15K,V.26/D011). On May 23, 2000, Oceanside asked the County to commence condemnation proceedings relating to the Coupes' lands. 1stAmd.FOF 161 (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031). On July 26,2000, the County Council adopted Resolution No. 266-00 that authorized the County to initiate eminent domain proceedings,pursuant to the Development Agreement, for the condemnation of the Coupes' property to be used for the Bypass. Exh. J-231. On October 9, 2000, the County filed a condemnation complaint against the Coupes in Civil No. 00-1-181K. Exh. J-232. (R.O.A., 00-1-181K, V.1/00001.) Resolution No. 266-00 and the October 2000 Complaint attached a survey that identified the specific parcel to be obtained comprising an area of 2.9 acres. The trial court determined in 2007 that the County Council passed Resolution No. 266-00 in order to comply with the Development Agreement,pursuant to which Oceanside gave the County a directive to commence such condemnation proceedings. The trial court determined that compliance by the County with an existing contractual commitment to condemn was not a proper public purpose for a condemnation, and thus dismissed the condemnation action commenced pursuant to Resolution 266-00. 1 stAmd.FOF ¶62, 75-84 (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031); 1stAmd.Judg. TLA (R.O.A., 00-1-181K, V.41/00508 and 05-1-15K, V.27/01032).4 4 Although the County did not appeal this finding, the County and Oceanside vigorously argued at trial that the County Council made the final decision in Resolution 266-00 on whether and if so what property to condemn in part because the definition of"County"in the Development Agreement(§2h) excluded the County Council and thus promises made by the County did not affect the Council's ultimate power of condemnation consistent with the holding in Richardson v. City and County of Honolulu, 76 Hawaii 46, 58, 868 P.2d 1193, 1205 (1994). (S.R.O.A., 00-1-181K, V.43/T0011 (at pp. 22, 32-34, 48-51, 53-60) and T0021 (at pp. 18-21, 49-50), and 05-1-15K, V.30/T0011 (at pp. 22, 32-34, 48-51, 53-60) and T0021 (at pp. 18-21, 49- 50) In addition, Township of West Orange v. 769 Associates, L.L.C., 172 N.J. 564, 575-76, 800 A.2d 86, 92-93 (2002) correctly held that a county agreement with a developer to condemn does not constitute an improper delegation of condemnation powers where government made the initial decision to condemn for public use. See Oceanside Trial Memorandum at pp. 5-12. (R.O.A., 00-1-181K, V.39/00480 and 05-1-15K, V.27/01003.) 4 On October 10, 2000, the trial court issued an Order Putting Plaintiff in Possession in Civil No. 00-1-181K. 1stAmd.FOF¶65 (R.O.A., 00-1-181K, V.41/00507 and 05-1-1$K, V.27/0103 1). (R.O.A., 00-1-181 K, V.1/00004.) On February 21, 2002, the County issued final subdivision approval for the Bypass that identified the specific Coupe parcel needed for County approved plans for the Bypass as comprising an area of 3.348 Acres. Exh. D-119; Exh. R-420. On December 11, 2002, the Court entered an order in Civil No. 00-1-181K staying the order of possession until final judgment. Exh. D-126. (R.O.A., 00-1-181K, V.5/00079.) The trial court stayed the possession order on the grounds that there was a genuine issue of material fact as to public purpose related to the validity of the Development Agreement.5 id. On January 23, 2003, the County Council adopted Resolution No. 31-03, authorizing the County to initiate a second eminent domain proceeding for condemnation of the Coupes' property for the Bypass. Exh. J-241. Unlike Resolution 266-00, this resolution did not reference the Development Agreement and instead the County Council determined that the Bypass will provide "a regional benefit for the public purpose and use which will benefit the County." Id. Also,the trial court found that by 2003,the"County realized that the Bypass required more land than Civil No. 00-1-181K and County Resolution 266-00 was attempting to condemn." 1stAmd.FOF¶86. (R.O.A., 00-1-181K,V.41/00507 and 05-1-15K, V.27/01031.) Therefore, Resolution 31-03 sought a 3.348-acre parcel as compared to the 2.9-acre parcel sought in Resolution 266-00. On January 28, 2005, the County filed its second condemnation action against the Coupes in Civil No. 05-1-15K. Exh. J-242. Resolution 31-03 and the January 2005 Complaint both 5 See 1stAmd.FOF 65-72 (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031); See also 7/11/02 transcript(R.O.A., 00-1-181K,V.6/T0002); 9/5/02 Order Amending Order Granting County of Hawai`i's Motion for Partial Summary Judgment as to Defendants/Counterclaimants' Sixth and Seventh Affirmative Defenses and First Claim for Relief Asserted in the Answer and Counterclaim Filed January 24, 2001 (R.O.A., 00-1-181K,V.3/00056); 12/10/02 transcript (R.O.A., 00-1-181K, V.6/T0003); and 12/11/02 Order Granting Defendants'/Counterclaimants' Motion to Vacate Order Putting Plaintiff in Possession,or in the Alternative for a Stay on the Order Putting Plaintiff in Possession Until Final Judgment Filed November 27, 2002 (R.O.A., 00-1-181 K, V.5/00079). 5 attached a survey that identified the specific parcel to be obtained comprising an area of 3.348 acres. IstAmd.FOF¶85-¶102.6(R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) On February 7, 2005, before the Coupes were served with the Complaint in Civil No. 05- 1-15K,the Coupes filed a Motion to Dismiss or in the Alternative to Consolidate. (R.O.A., 05-1- 15K,V.1/00702.) On March 31, 2005, the Court entered its order consolidating Civil No. 00-1-181K and Civil No. 05-1-15K. 1stAmd.FOF¶88. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) The pleadings pending at the time of trial were: (a) County's Complaint in Civil No. 00-1-181K filed on October 9, 2000, and First Amended Complaint in Civil No. 05-1-15K filed on January 11, 2007; (b) Coupes' Second Amended Counterclaim and First Amended Third-Party Complaint in Civil No. 00-1-181K filed on December 7, 2005, and Counterclaim and Cross-Claim in Civil No. 05-1-15K filed on February 12, 2007, both of which included claims for abatement; and (c) County, Coupes and Oceanside's answers to these pleadings. The consolidated non jury trial of Civil No. 00-1-181K and Civil No. 05-1-15K was held on July 9-12, 16-20, 23, 25-27, 30-31 and August 2, 2007, before the Honorable Ronald Ibarra. On July 27, 2007, during oral argument on a Rule 50 motion for judgment, counsel for the Coupes argued that there are"substantial differences" between Civil No. 00-1-181K and Civil No. 05-1-15K: Page 50 3 . . . . But there 4 are some substantial differences between the cases. First 5 of all the parties, as the Court has pointed out, are 6 different. 7 There's a half an acre difference in the actual 8 size of the land. Which if twenty percent is de minimis, 9 that's news to us. It's a different shape, different 10 configuration of land. And of course,the public-use issue 6 Deputy Corporation Counsel Gerald Takase testified that the three-year delay in filing this complaint was because the County wanted to resolve the Kelly case, Civil No. 00-1-0192K, before proceeding further in what became Civil No. 05-1-015K. Test. Takase (7116107pm,pp.51 -52) (S.R.O.A., 00-1-0018K, V.43/T0007, and 05-1-15K, V.30/7`0007). 6 �., ANN 11 is different because we don't have the resolutions being 12 the same in both cases. (S.R.O.A., 00-1-181K, VANT0032, and 05-1-15K, V.30/T0032.) On August 2, 2007, during the closing argument, counsel for the Coupes again took the position that the 2.9-acre parcel prayed for in Civil No. 00-1-181K is substantially different from 3.348-acre parcel prayed for in Civil No. 05-1-15K: Page 78 7 THE COURT: So, you would agree that 8 although the first complaint only mentioned 2 point 9 something acres and the second mentioned 3 point, that 10 the 2 point-- the three plus acres is covered in the 11 first complaint? 12 MR. KUPCHAK: No,we do not admit that. 13 THE COURT: You don't admit that. 14 MR. KUPCHAK: No. I think--the first 15 complaint has a map and metes and bounds attached to it. 16 And what--the second complaint also has a map of metes 17 -- 18 THE COURT: Yes. 19 MR. KUPCHAK: -- and bounds. It's a 20 different configuration, but when you put the more or 21 less in your deeds, what have you, when you have that 22 situation, they're saying someone goes out and surveys 23 what we're calling for here and it comes out a few feet 24 off,that's it. This is a 20 percent change in the 25 thing that's a different configuration. So they Page 79 1 admitted that they cut back the sides and changed the 2 drainage. It's --to the extent, the half acre 3 difference. 4 THE COURT: So you seem to be arguing that 5 abatement should not lie. 6 MR. KUPCHAK: I'm saying that the County 7 believed it was the same thing. They held off the suit 8 because they thought Kelly would be coming down for two 9 years and they put a cloud over our property. But I'm 10 saying that they're essentially seeking the same remedy 1 l against the same smaller property on it. 12 THE COURT: But different property. 13 MR. KUPCHAK: Um -- 7 14 THE COURT: Is seeking. 15 MR. KUPCHAK: Half an acre is different. 16 THE COURT: And you say it's a substantial 17 difference. 18 MR. KUPCHAK: Twenty percent difference. The Coupes have never retracted these statements. (S.R.O.A.,00-1-181K, V43/T0015, and 05- 1-15K,V.30/T0015.) On September 27, 2007, the trial court entered its First Amended Findings of Fact, Conclusions of Law and Order wherein it: (1) denied the County's request for condemnation in Civil No. 00-1-181K on the grounds that"County Resolution 266-00 illegally delegated its power of condemnation, through the Development Agreement, to a private party, 1250 Oceanside Partners, and therefore did not have proper public purpose" (page 46); and (2) granted the County's request for condemnation in Civil No. 05-1-15K on the grounds that "there was a valid public purpose in Civil No. 05-1-15K"(page 49) because "County Resolution 31-03 did not refer to the Development Agreement"and "stands independently from the Development Agreement" (page 43) and"the final determination of the Mamalahoa Bypass Highway remained with the County of Hawaii Department of Public Works (page 25)."7 (R.O.A., 00-1-181K, V.41/00507, and 05-1-15K, V.27/01031.) Regarding the abatement claims,the trial court concluded: Abatement 6. Abatement may be invoked where: (1)the party is the same in a pending suit, (2)the cause is the same, and(3)the relief is the same. Shelton Eng'g Contractors v. Hawaii Pac. Indus., 51 Haw. 242, 249 (1969). If abatement is invoked,the second action is generally the one that is 7 The opening brief at page 3 incorrectly states that the trial court found that the proposed taking in Civil No. 00-1-181K"was not for public use, but for Oceanside's private benefit." The trial court never found that the Bypass was for Oceanside's private benefit. The trial court found that regardless of the significant public benefit to be derived from the Bypass, Resolution 266-00 was not supported by public purpose because the decision to condemn was improperly delegated to Oceanside in the Development Agreement. (R.O.A., 00-1-181K, V.41/00507, COL ¶¶ 78-80, and 05-1-15K, V.27/01031, COL IN 78-80.) Thus, once Resolution 31-03 directed condemnation independent from the Development Agreement, the trial court determined there was proper public purpose. (R.O.A., 00-1-181K, V.41/00507, COL ¶¶93, 99, 101, 102, and 05- 1-15K, V.27/01031, COL 1193, 99, 101, 102.) 8 4� dismissed. Bertelmann v. Lucas, et al., 31 Haw. 71, 72(Hawai'i Ten. 1929). 7. Abatement generally refers to a procedural or jurisdictional issue that can be cured. Shelton Eng'g Contractors, 51 Haw. at 249. 8. Abatement may still be raised as grounds for a motion to dismiss. Matsushita v. Container Home Supply, Inc., 6 Haw. App. 439, 445 (1986). 9. The parties in Civil No. 00-1-181K and Civil No. 05-1-15K are the same. 10. Civil No. 00-1-181 K is an eminent domain action based on County Resolution 266-00. Civil No. 05-1-15K is an eminent domain action based on County Resolution 31-03. As the basis for these two County Resolutions are substantially different from each other,and have been voted on by two "different" County Councils over four years apart,the Court concludes that Civil No. 00-1-181K and Civil No. 05-1-15K are separate claims for the purposes of abatement. 11. Civil No. 00-1-181K prays for the condemnation of 2.90 acres of the Defendants' land. Civil No. 05-1-15K prays for the condemnation of 3.348 acres of the Defendants' land. 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. The Motion to Dismiss based on abatement made by the Coupe's during trial is denied. See 1stAmd.COL 6-11. (R.O.A., 00-1-181K,V.41/00507 and 05-1-15K, V.27/01031.) On September 27, 2007, the trial court also entered its First Amended Final Judgment ("First Amended Final Judgment")that stated at pages 4 and 6 (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K,V.27/01031): I. Civil No. 00-1-181K; B. C&J Coupe Family Limited Partnership Counterclaims; Count 6 [Abatement] There is no abatement. Judgment is hereby entered in favor of County of Hawaii and 1250 Oceanside Partners, and against C&J Coupe Family Limited Partnership because the claims are substantially different, based on different resolutions that were passed by separate and different County Councils over four years apart, pray for different relief, and do not fall under the doctrine of abatement. II. Civil No. 05-1-15K; B. C&J Coupe Family Limited Partnership Counterclaims; Count 2 [Abatement] 9 There is no abatement. On the Counterclaim filed in Civil No. 05-1-15K, alleging that the filing of the second complaint in Civil No. 05-1-15K should be abated, judgment is hereby entered in favor of County of Hawaii and 1250 Oceanside Partners, and against C&J Coupe Family Limited Partnership. The Court concludes that the claims are substantially different as they are based on different resolutions that were passed by separate and different County Councils over four years apart,pray for different relief, and do not fall under the doctrine of abatement. On October 11, 2007,the fourteenth day after the First Amended Final Judgment was entered,the Coupes filed their Motion for Statutory Damages Pursuant to HRS § 101-27 ("Motion for Statutory Damages")purportedly for attorneys' fees and costs expended on Civil No. 00-1-181K.8 (R.O.A., 00-1-181K, V.41/00510, and 05-1-15K, V.28/01034.) On October 26, 2007,the Coupes filed their Notice of Appeal in Civil No. 05-1-15K. (R.O.A., 00-1-181K, V.42/00515, and 05-1-15K, V.29/01039.) On October 31, 2007,the County filed its Memorandum in Opposition to the Motion for Statutory Damages wherein it argued that HRS § 101-27 does not apply because the property was finally taken for public use where the Coupes were awarded just compensation for the property. (R.O.A., 00-1-181K,V.42/00519, and 05-1-15K,V.29/01043.) The opposition memorandum noted that"[a]lthough the first case sought to condemn 2.9 acres and the second case sought to condemn 3.348 acres,the 2.9 acres was physically within the 3.348 acres. Thus, the same 2.9 acres that was the subject of the first case,was condemned in the second case." The County also argued that the Coupes filed the Motion for Statutory Damages outside of the 10- day period permitted under HRS § 101-27. On November 5, 2007,the Coupes filed a Reply Memorandum in support of their Motion for Statutory Damages wherein they argued that the property was not finally taken in Civil No. 8 The Motion for Statutory Damages sought over $2 million in fees and costs purportedly for Civil No. 00-1-181K but the motion and its supporting documents did not provide a means to determine whether the requested amounts were expended in Civil No. 05-1-15K or were expended in Civil No. 00-1-181K on issues other the improper delegation claim. Assuming arguendo that the Coupes are entitled to an award of damages under HRS § 101-27, any award would be limited to reasonable attorneys' and costs paid by the Coupes to establish improper delegation of condemnation power in Civil No. 00-1-181K, and not for attorneys' fees an costs expended on other issues in Civil No. 00-1-181K and not for amounts expended in Civil No. 05- 1-15K. 10 00-1-181K. (R.O.A., 00-1-181K, V.42/00522, and 05-1-15K, V.29/01046.) The Reply Memorandum also argued that the ten-day period in HRS § 101-27 only applies to jury demands. At the November 8, 2007, hearing on the Motion for Statutory Damages,the trial court inquired about the effect of the consolidation of the cases on the requirement that"the property concerned is not finally taken for public use." (Transcript of Proceedings,November 8, 2007, at 16, See Appendix "A."9) Counsel for Coupes responded that"the cases remained separate and distinct cases and they were not merged by the consolidation." Id. at 9. Counsel for the County and Oceanside argued that consolidation should result in denial of the Motion for Statutory Damages because pursuant to Whittier Union High School Dist. v. Beck, 45 Cal.App.2d 736, 114 P.2d 731 (1941),the Court should not ignore that consolidation resulted in the County ultimately obtaining the condemnation order it needed in Civil No. 05-1-15K even though the Court also simultaneously denied condemnation Civil No. 00-1-181K. Id. at 32, 47-48. The Coupes' counsel also stated that if the County had amended the first lawsuit as opposed to bringing another one, their Motion for Statutory Damages would be weaker. Id. at 24-25. On December 3, 2007, the Court entered the Order Putting Plaintiff/Counterclaim Defendant County Of Hawaii In Possession Pending Appeal And Accounting For Amounts Deposited In Court("Possession Order")pursuant to HRS § 101-32 wherein the amounts awarded in the First Amended Final Judgment were deposited into Court. The amounts deposited included just compensation,blight of summons damages and interest in Civil No. 05-1-15K and blight of summons damages and interest in Civil No. 00-1-181K. (R.O.A., 00-1- 181K,V.41/00510, and 05-1-15K, V.28/01034.) On December 6,2007, the Coupes filed a Supplemental Memorandum in support of the Motion for Statutory Damages that primarily addressed their opposition to the Possession Order. (R.O.A., 00-1-181K, V.42/00527, and 05-1-15K,V.29/01049.) On December 12, 2007,the Court requested supplemental briefs on when evidence of damages sought under HRS § 101-27 needed to be submitted to the Court. (S.R.O.A., 00-1- 181K, V.431T0033, and 05-1-15K, V.30/T0033.) 9 On May 15, 2008, we contacted the Third Circuit Court in Kona to inquire whether the clerk was going to supplement the record on appeal to include the transcript. The clerk who prepared the record on appeal and the supplement was not available and is scheduled to return on May 27, 2008. 11 On December 14, 2007,the County filed its Supplemental Memorandum in opposition to the Motion for Statutory Damages wherein the County argued that the Coupes failed to take steps to have that claim timely tried under HRS § 101-27. (R.O.A., 00-1-181K, V.42/00530, and 05-1-15K, V.29/01051.) On December 19, 2007, the Coupes filed their Supplemental Reply Memorandum in support of their Motion for Statutory Damages wherein they argued that their Motion for Statutory Damages was timely filed because the Coupes' right to damages under HRS § 101-27 did not accrue until 30-days after final judgment where there is no appeal.10 (R.O.A., 00-1- 181K, V.42/00531, and 05-1-15K, V.29/01052.) On December 31, 2007, the Coupes filed a Motion to Vacate, or in the alternative to Stay Order Putting Plaintiffs in Possession("Motion to Vacate Possession Order") wherein they argued that the Possession Order did not conform with HRS § 101-32 because it did not require a deposit for further damages that may be sustained if the property is not finally taken for public use. (R.O.A., 00-1-181K, V.42/00532, and 05-1-15K,V.29/01053.) They also argued that they were entitled to a stay of the Possession Order on the grounds that the appellate courts may find that Civil No. 05-1-15K was abated by Civil No. 00-1-181K. On January 18, 2008, the County filed its memorandum in opposition to the Motion to Vacate Possession Order where it argued: (1) HRS § 101-32 does not require deposits for further damages (beyond amounts awarded for just compensation) but rather is within the discretion of the trial court; and(2) the trial court did not abuse its discretion because (a) even if the Court's condemnation order in Civil No. 05-1-15K is reversed on appeal,the County would not likely be required to physically restore the property because the County would simply file another condemnation action (on the grounds that the public necessity for the road, the best location and the physical needs for construction, maintenance and operation compel the County to acquire the property), and (b)the Coupes did not present any evidence that the County would not be in a financial position to restore the property if ordered to do so. (R.O.A., 00-1-181K, V.42/00535, and 05-1-15K, V.29/01056.) The Coupes did not file a reply memorandum regarding the Motion to Vacate Possession Order. to If this argument is correct, the Coupes filed the Motion for Statutory Damages too early— 14 days after the First Amended Final Judgment. 12 On February 8, 2008,the Coupes filed their Notice of Appeal in Civil No. 00-1-181 K of the denial of the Motion for Statutory Damages on the grounds that the trial court is deemed to have denied the motion by not ruling on it within 90 days pursuant to Haw. R. App. P 4(a)(3). (S.R.O.A., 00-1-181K, V.43/00542, and 05-1-15K,V.30/01063.) On March 13, 2008,the trial court entered its order denying the Motion to Vacate Possession Order on the grounds that: (1) the motion was untimely under HRCP Rule 59; (2) even if the motion was timely under HRCP Rule 62, no additional amount is needed to cover any further damage in the event that this issue is reversed on appeal because the County can file another condemnation action; and(3)there is no dispute that the County would not have the financial ability to pay any additional damages. (S.R.O.A., 00-1-181K, V.43/00548, and 05-1- 15K, V.30/01069.) On March 31, 2008, the Coupes filed,with the Intermediate Court of Appeals, a Motion to Vacate Order Putting Plaintiff/Counterclaim Defendant County of Hawaii in Possession Pending Appeal and Accounting for Amounts Deposited in Court filed December 3, 2007 ("Appellate Motion to Vacate Possession Order"). The Coupes primarily argued that the trial court committed error by dismissing the abatement claim. On April 7, 2008, the County filed their opposition memorandum to the Appellate Motion to Vacate Possession Order wherein the County argued that the motion does not address the basis of trial court's decision dismissing the abatement claims. The County also argued that consolidation of the lawsuits defeats any abatement claim. On April 21, 2008,this Court denied the Appellate Motion to Vacate Possession Order without prejudice to the parties further addressing these issues in their respective briefs. 1I. STANDARD OF REVIEW A. Abatement Claims—Clearly Erroneous Coupes contend that whether the trial court's dismissal of their abatement claims should be reversed concerns subject matter jurisdiction and thus the standard of review is de novo. As briefed below,the County submits that whether Civil No. 05-1-15K should be abated by Civil No. 00-1-181K does not implicate subject matter jurisdiction. Rather,the primary issue is whether the causes and relief of the two lawsuits are the same which involves questions of fact and thus the standard of review is clearly erroneous. See, e.g., Hawaii Teamsters &Allied 13 Workers, Local 966 v. Dept of Labor &Indus. Relations, 110 Hawaii 259, 265, 132 P.3d 368, 374(2006) ("Questions of fact are reviewed under the `clearly erroneous' standard.") The trial court determined that the causes are different because the cases are based on different resolutions. 1stAmd.COL ¶10. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) Although this is denominated as a conclusion of law, it is based on factual findings that Resolution 266-00 authorized condemnation at Oceanside's request pursuant to the Development Agreement and Resolution 31-03 authorized condemnation without reference to the Development Agreement where the Department of Public Works controlled selection of the property to be condemned by making the final determination on the alignment of the Bypass. 1stAmd.FOF¶85 to 1102. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) Similarly,the trial court determined that relief in the cases is different. 1 stAmd.COL 111. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) Although this is also denominated as a conclusion of law, it is based on factual findings that after Resolution 266-00, the "County realized that the Bypass required more land than Civil No. 00-1-181K and Resolution 266-00 was attempting to condemn." 1stAmd.FOF¶86. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K,V.27/01031.) Also,the determination that 3.348 acres is sufficiently different from 2.9 acres for purposes of abatement is a question of fact. Given the questions of fact involved in the trial court's determination that the causes and relief are different,the standard is clearly erroneous. Chun v. Board of Trustees of Employees' Retirement System, 106 Hawaii 416, 430, 106 P.3d 339, 353 (2005) (quoting Allstate Ins. Co. v. Ponce, 105 Hawaii 445, 453, 99 P.3d 96, 104 (2004)) The Supreme Court stated "A COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the court's conclusions are dependent upon the facts and circumstances of each individual case." Whether consolidation is pertinent to the abatement claims and whether abatement implicates subject matter jurisdiction only become relevant if this Court sets aside the trial court's findings that the causes and relief are different. If that occurs, then this Court should determine these issues under the de novo standard where this Court should find that even if the causes and relief are the same, consolidation of the actions satisfies the policies underlying abatement such that dismissal of the abatement claims should be affirmed. 14 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 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 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 a would remain silent,not raise in the state action a plea in abatement or a defense of prior action pending,wait for the entry of the federal judgment, and only then raise the claim-splitting defense in a motion for summary judgment on the ground of res judicata.") Indeed,Franklin & Franklin v. 7-Eleven Owners for Fair Franchising, 85 Cal.App.4th 1168, 1175, 102 Cal.Rptr.2d 770(2000)held that the rule of priority (the second case abates to the first)"is designed to avoid the unfortunate results of these conflicts by requiring, in effect, a consolidation of the separate actions in the court in which jurisdiction of the parties first attached." Red Mountain, LLC v. Fallbrook Public Utility District, 143 Cal.App.4th 333, 356-57,48 Cal.Rptr.3d 875, 895 (2006) ("Klopping is inapposite because Fallbrook's eminent domain action and Red Mountain's inverse condemnation action were consolidated and proceeded to judgment together, and the two actions did not involve the exact same property, legal issues or damages. In any event,Klopping does not support the proposition that an inverse condemnation action cannot exist contemporaneously with an eminent domain action involving the same property. Mopping contemplates separate, unconsolidated actions pending simultaneously,with one of the actions proceeding to judgment first and precluding a later judgment in the other action on the same issues.") See Shelton, 51 Haw. at 249,456 P.2d at 226 (1969)("Abatement almost always refers to a procedural or jurisdictional defect which can be cured rather than to a substantive issue.") Not surprisingly, the County is unable to locate a case that applied abatement where the cases were consolidated. In this case, if the matters were sufficiently the same such that abatement might apply, consolidation was an appropriate procedural cure (and one that was requested by the Coupes)to achieve the policies underlying the abatement doctrine. While some courts have described abatement in terms applied to the doctrine of res judicata, those courts require strict compliance with the same causes and same relief elements. Horter v. Commercial Bank& Trust Co., 99 Fla. 678, 685, 126 So. 909, 912 (1930) ("The identity of the matters involved must be such that a judgment in the first suit could be pleaded in bar as a former adjudication.") In this case, assuming arguendo that this Court disagrees with the trial court and finds that the causes and relief of the cases are identical, res judicata would not apply to bar Civil No. 05-1-15K or any other case because Civil No. 00-1-181K commenced before the County Council passed Resolution 31-03. Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 750 F.2d 731, 739 (C.A.Cal. 1984.) ("The rule that a judgment is conclusive as to every matter that might have been litigated `does not apply to new rights 18 acquired pending the action which might have been, but which were not, required to be litigated. ' Plaintiffs may bring events occurring after the filing of the complaint into the scope of the litigation by filing a supplemental complaint with leave of court, but there is no requirement that plaintiffs do so.") (emphasis added.) The opening brief at pages 29-30 argues that abatement is a matter of subject matter jurisdiction citing Shelton. As noted above,Shelton held that-- "Abatement almost always refers to a procedural or jurisdictional defect which can be cured rather than to a substantive issue." This quote from Sheldon cited to Thomas v. Navas, 47 Haw. 605, 393 P.2d 645 (1964). The Thomas court held that a suit on behalf of a minor in her own name as opposed to through an appointed guardian "was of a nature that could have been cured by amendment at any time. . . [and] is a matter of procedure and not of substance, and must be made by plea in abatement or by plea or answer in the nature thereof and is waived by pleading to the merits." Id. 47 Haw. at 608-09, 393 P.2d at 647. Since subject matter jurisdiction is not waivable it is not likely that the Hawaii Supreme Court intended to hold that abatement involves subject matter jurisdiction. Saracino, 50 Conn. Supp. 503, 2007 WL 5145671 at 2 (Conn. Super. 2007) and Halpern v. Board of Education, 196 Conn. 647, 652 n. 4,495 A.2d 264, 266 (1985)held that abatement does not implicate the subject matter jurisdiction of the court and the trial court has broad discretion in applying abatement. It appears that courts that hold that abatement implicates subject matter jurisdiction also strictly require that the causes and relief be"identical." Whereas, courts that do not equate abatement with subject matter jurisdiction give trial judges broad discretion in applying abatement. For example, Kelly v. Kelly, 245 S.W.3d 308, 314 (Mo. App. W.D. 2008)held: The abatement doctrine technically does not apply unless the issues are the same, and the alignment and identity of the parties is identical. Cf. Conley, 760 S.W.2d at 950 (acknowledging that the rule is not inflexible and may apply in some situations even though the parties are reversed.) The pending action doctrine is described in Rule 55.27(a)(9), which has been said to codify the common law doctrine of abatement. Patrick V. Koepke Constr., Inc. v. Woodsage Constr. Co., 119 S.W.3d 551, 556 (Mo.App. E.D.2003). But the pending action defense can be waived under the express provision of Rule 55, which states that `[a] defense [ ][t]hat there is another action pending between the same parties for the same cause in this state ... is waived' if not made by motion `nor included in a responsive pleading.' Rule 55.27(g)(1)(F). One would never view subject matter jurisdiction as being waivable. In fact, Rule 55.27(3)recognizes the difference between the abatement doctrine and subject matter jurisdiction, stating that 19 `[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 will."); Burke v. Oklahoma City, 350 P.2d 264, 268 (Okl.1960) ("Right to exercise power of eminent domain cannot be contracted away, and contract between the city and landowner, whereby city agreed not to condemn any land for a certain street, in consideration of the landowner's conveying to it certain land for that street, did not affect the city's power to condemn land therefor. . . . [T]he right of eminent domain is inalienable, cannot be surrendered in whole or in part and cannot be contracted away and res adjudicate and estoppel do not constitute defenses to the causes of action set forth in the petition to condemn as filed by the City. . . ."); Tennessee Gas Transmission Co. v. Violet Trapping Co., 200 So.2d 428 (La.App.1967) (the plaintiff, using a procedure like eminent domain, was held to be acting through extended powers and a former agreement not to condemn was no valid restriction on the later action against the same property for an enlarged right of way. The right cannot be limited by agreement.);State v. Charlton, 71 Wash.2d 748, 750, 430 P.2d 977, 978-979 (1967) ("There is authority in this state to the effect that the power of eminent domain cannot be surrendered or bartered away,nor can an agent of the state bind it to a restricted exercise of that power. State ex rel. Devonshire v. Superior Court, 70 Wash.2d 630, 424 P.2d 913 (1967), State ex rel. Henry v. Superior Court, 155 Wash. 606, 284 P. 788 (1930)."). Such cases support the fundamental principle that the County can not be denied rights to acquire property, that is, the power of eminent domain, it determines to be necessary to the County's function by reason of contract, res judicata, estopple or claim of abatement in prior legal action(s). The opening brief at page 28 also argues that concurrent lawsuits violate the Coupes' due process rights. The Coupes cite three unrelated cases. The cases involve failure to comply with notice requirements and eminent domain statutes, but the Coupes do not allege any notice or statutory compliance defects against the County. The only due process argument set forth in the opening brief states: "Due process is violated when a property owner is forced to endure concurrent attempts to condemn the same land." (page 29) The County submits that the Coupes' due process rights were not violated because the cases involved different causes and relief, and the cases were consolidated. Moreover, the Coupes failed to make this argument at trial. The Coupes' due process arguments at trial only concerned alleged defects with the Development Agreement not related to defending against two lawsuits. Coupes Proposed FOFCOL pp. 56-60 (R.O.A., 00-1-181 K, V.40/00495, and 05-1-15K, V.27/01019). 21 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 condemnation in Civil No. 05-1-15K at the same time it denied the request for condemnation in Civil No. 00-1-181 K, the Coupes have not established that "the property concerned [was] not finally taken for public use."14 Moreover, under the First Amended Final Judgment,the Coupes have received their "entitled to compensation"and are not entitled to "possession of the property concerned." The opening brief totally ignores these two statutory requirements. The Coupes argue that the two lawsuits must be analyzed separately because HRS § 101- 27 refers to "any proceedings"and"in such proceedings." Regardless, as noted above, the statute also anticipates no just compensation and restoration of possession of the property, both of which clearly did not occur under the First Amended Final Judgment. Given the totality of HRS § 101-2715 and the holding in State v. Davis, the Coupes have not carried their burden of proving that HRS § 101-27 applies to an eminent domain defendant who ultimately lost in a consolidated condemnation trial, received just compensation and was not restored with possession of the property. Hamada v. Westcott, 102 Hawaii 210, 217, 74 P.3d 33,40 (2003) (Given American rule, party seeking attorneys' fees has the burden of establishing that applicable statute expressly applies to allow an award of reasonable attorneys' fees.) Second, if the Coupes are entitled to damages under HRS § 101-27 for prevailing on the condemnation count in Civil No. 00-1-181 K,the Coupes failed to take steps to have that claim tried"within ten days from the date of the entry of an order or judgment" as required by 14 State V. Davis, 53 Haw. 582, 585, 499 P.2d 663, 666 (1972)("The eminent domain law, HRS ch. 101, is devoid of any grant of authority to require payment of attorneys' fees or costs except under HRS s 101-27, which provides that defendants in condemnation actions shall be entitled to recover litigation costs and attorneys' fees in the event that eminent domain proceedings are abandoned or discontinued or the property not finally taken for public use. This appears to manifest a legislative intent to preclude such recovery if the prORertv concerned is finally taken for public use.")(emphasis added)State v. Davis also held: "It is clear from HRS s 101-27, however, that judgment in an eminent domain proceeding is not to be deemed `in favor of the defendant and against the plaintiff' unless the property sought to be condemned is not finally taken for public use." Id. 53 Haw. at 586, 499 P.2d at 667. " Gray v. Administrative Director of the Court, State of Hawaii, 84 Hawaii 138, 148, 931 P.2d 580, 590 (1997) ("When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature,which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a mariner consistent with its purpose.") 23 HRS § 101-27. The Coupes argue at footnote 10 that the Motion for Statutory Damages was filed"no later than 14 days after entry of an appealable order or judgment" under Rule 54(d)(2)(B). However, the Coupes' proposed Findings of Fact& Conclusions of Law filed on August 23, 2007, at page 68, concedes that a determination of damages under HRS § 101-27 needed to have been tried within 10-days from the entry of the judgment denying condemnation.16 (R.O.A., 00-1-181K,V.40/00495, and 05-1-15K, V.27/01019.) The County submits that the structure of the last sentence of HRS § 101-27 clearly provides that the 10-day period is not limited to demands for trial by jury. Finally, the Court's retention of jurisdiction in the First Amended Final Judgment cannot serve to extend the 10-day period. The Coupes also argue that the legislature did not intend that a county would be able to bring serial eminent domain actions without reimbursing landowner costs in the initial unsuccessful action or actions. The County is not advocating that it can repeatedly lose condemnation actions without risk of liability for damages under HRS § 101-27. However, there was no potentially compensable "abuse"here because of the consolidation of the two lawsuits resulting in one trial and one judgment where a condemnation order was entered in favor of the County. In Whittier, 45 Ca1.App.2d at 738,the appellate court rejected a claim for statutory damages where a condemnation action was dismissed but prior to dismissal the county purchased the property from the defendant via an out of court contract. The Whittier court did not ignore the totality of the circumstances. The Court stated: The sole question properly presented by this appeal,therefore, is whether the dismissal of the action by the plaintiff after the purchase of the property constituted an abandonment of the proceedings within the meaning and application of section 1255a. Obviously, there was no such abandonment. The property in question had been acquired by purchase,plaintiff had achieved the 16 The Coupe's proposed Order at page 68 (R.O.A., 00-1-181K, V.40/00495, and 05-1-15K, V.27/01019) states: IT IS HEREBY ORDERED that upon dismissal herein of the eminent domain action, Defendants are entitled to statutory damages pursuant to Haw. Rev. Stat. 101-27 and that this Court retains jurisdiction to hear `[i]ssues of fact arising in connection with any claim for such damage shall be tried by the court without a jury 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 judgment 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.' 24 purpose of the suit, the matter had been settled out of court and there was no further necessity of a judgment of condemnation. Plaintiff having acquired the property which formed the subject of the proceeding in eminent domain could hardly be said to have abandoned its efforts to acquire the same. The question is answered by the apparent purpose for which section 1255a was enacted, namely, `to meet certain abuses arising out of resort to the action without seriously intending to prosecute it to a conclusion.' The Coupes' counsel admitted at the hearing on the Motion for Statutory Damages that if the allegations in Civil No. 00-1-181K had been amended to add allegations regarding Resolution 31-03 as opposed to filing Civil No. 05-1-15K, "we may not be here or at least our position wouldn't be as strong as is today." Transcript of Proceedings,November 8, 2007, at 24- 25. The County submits that the effect of such an amendment is no different than consolidation of the cases that occurred here. The pretrial and the trial efforts in the consolidated cases would not have been materially different if there was an amendment to pleadings in Civil No. 00-1- 181 K as opposed to filing Civil No. 05-1-15K and consolidating it with Civil No. 00-1-181 K. The Coupes asserted the same defenses, counterclaims and claims against the County in both cases. The County submits that under the circumstances the Motion for Statutory Damages was properly denied. Lastly, if Coupes are entitled to damages under HRS § 101-27, the statute limits the award to "damage as may have been sustained by the defendant by reason of the bringing of the proceedings . . . paid by the defendant in connection therewith." In other words, the Coupes are only entitled to the damages incurred from successfully defending against the condemnation award in the first case. In fact,the Motion at page 7 admits that the appropriate standard under HRS § 101-27 is "to place litigants in a position they occupied as if no"first lawsuit had been filed. The First Amended Final Judgment entered judgment in favor of the Coupes on the condemnation claim in the first case "because County Resolution 266-00 illegally delegated its power of condemnation, through the Development Agreement, to a private party, 1250 Oceanside Partners, and therefore did not have proper public purpose." In other words, the Coupes prevailed on their improper delegation of condemnation power defense in the first case. Accordingly, any award under HRS § 101-27 should be limited to amounts paid for the improper delegation of condemnation power defense in the first case. 25 The Motion for Statutory Damages sought over$2 million in fees and costs purportedly for Civil No. 00-1-181K but the motion and its supporting documents did not provide a means to determine whether the requested amounts were expended in Civil No. 05-1-15K or were expended in Civil No. 00-1-181K on issues other the improper delegation claim. Thus, the trial court did not abuse its discretion by denying the motion because the Coupes failed to submit a sufficient record for the trial court to award reasonable attorneys' fees. C. Trial Court Properly Found Public Purpose The applicable public purpose test is "where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause." Hawai`i Housing Auth. v. Midkiff, 467 U.S. 229, 241, 104 S.Ct. 2321, 2329-2330 (1984); Hawaii Housing Authority v. Lyman, 68 Haw. 55, 68, 704 P.2d 888, 895-896 (1985) (reaffirmed a minimum rationality standard of review to be applied in evaluating legislative findings of public use);Kelo v. City of New London, 545 U.S. 469, 487-488, 125 S.Ct. 2655-2667 (2005)("Alternatively, petitioners maintain that for takings of this kind we should require a `reasonable certainty' that the expected public benefits will actually accrue. Such a rule,however, would represent an even greater departure from our precedent. `When the legislature's purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings-no less than debates over the wisdom of other kinds of socioeconomic legislation-are not to be carried out in the federal courts."') The opening brief at pages 31 and 32 urges this Court to accept the test in Justice Kennedy's concurring opinion in Kelo that: "A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits. . . ."Id. at 491, 26 125 S.Ct. at 2669. That test,however,was not adopted by the Kelo majority.17 18 However, even if this Court adopts the Kennedy test,there is no evidence that there is only incidental or pretextual public benefit from the Bypass. In fact, the Coupes provided testimony to the County Council on Resolution 31-03 that"[w]e recognize the need for the road; and it's not our intention to deprive the public of that highway; but we see some serious shortfalls in terms of this [acquisition] agreement" (Exh. D-127). Presented with no credible evidence that the Bypass will provide only incidental public benefit, the trial court properly found public purpose by relying upon the several government studies that recognized the long-standing public need for the Bypass based on traffic capacity and safety considerations. 1 stAmd.FOF¶6-¶9. (R.O.A., 00-1- 181K, V.41/00507 and 05-1-15K, V.27/01031.) On appeal, the Coupes have not disputed the finding of public benefit from the Bypass at 1stAmd.FOF¶6-¶9. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) Instead, the opening brief at page 5 has accused the trial court of failing to consider evidence on"whether the government's proffered public purpose supporting a taking is a pretext hiding a predominantly private benefit." At trial, the Coupes' private benefit arguments were: (1) the County changed the Bypass's northern terminus from mauka at Kuakini Highway to makai at AIN Highway to benefit Oceanside to the detriment of the County; and(2) Oceanside (and not the County) determined the alignment of the Bypass. (Coupes Proposed FOFCOL pages 6-18 (R.O.A., 00- 1-181K, V.40/00495, and 05-1-15K, V.27/01019)) Contrary to arguments in the opening brief, the trial court did not fail to analyze these private benefit allegations. The trial court specifically found that the"alignment of the Mamalahoa Bypass Highway, with a northern terminus at Alii 17 Only United States Supreme Court majority opinions, not concurring opinions, are binding on State courts. American Home Assur. Co. v. Plaza Materials Corp., 908 So.2d 360(2005) (United States Supreme Court concurring opinions are not binding on State courts as precedent); Altmann v. Republic ofAustria, 335 F.Supp.2d 1066 (C.D.Cal. 2004) (stating that Supreme Court Justice's concurring opinion in a previous case is mere dictum, and, not being the opinion of the court, is non-binding). 18 The Coupes` amicus brief in Kelo advocated the position rejected by the majority: "Accordingly, the taking party must assume the burden of proving, by clear and convincing evidence,that the anticipated public benefit will be realized. The determination of whether the taking party has met this burden of proof involves an independent evaluation of the evidence by the court, with no deference granted to the local legislative authority." [Kelo v. City of New London, 2004 WL 2802967 at 16-17.] 27 Highway was preferred and selected by the County of Hawaii's Department of Public Works, and is consistent with the General Plans that have been adopted by the County" and in"County Resolution Number 31-03, the final determination of the Mamalahoa Bypass Highway remained with the County of Hawaii Department of Public Works." 1 stAmd.FOF¶101 and 1102. (R.O.A., 00-1-181K,V.41/00507 and 05-1-15K, V.27/01031.) Moreover, the trial court specially considered whether"the use is clearly and palpably of a private character" and found that it was not. 1stAmd.COL¶98 and 1101. (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K, V.27/01031.) The Coupes offer no proof that the trial court improperly excluded private benefit evidence or failed to consider evidence relating to those topics. At the end of the day, the Coupes have failed to acknowledge that the trial court determined, with overwhelming factual support, that there was long-standing, clearly demonstrated public need and purpose for the Bypass. Instead, the Coupes point out only that the County insisted that Oceanside build the bypass highway as a condition of moving forward with its project. The Coupes then rely on this isolated fact to assert that the public benefit to be derived from the highway was thereby somehow rendered merely"pretextual." The fact that Oceanside thereafter needed to build the highway in order to move forward with its project, does not convert the long-desired and much-needed public highway into a predominantly private benefit. In the eyes of the law, the Bypass remains what it will in fact be: a public highway long needed to serve the Kona communities. IV. CONCLUSION For the reasons stated above, we respectfully request that this Court affirm the First Amended Final Judgment and the Denial of the Motion for Statutory Damages. Dated: Hilo, Hawaii, May 16, 2008. COUNTY OF HAWAII, Plaintiff-Appellee JOSEPH K. KAMELAMELA Deputy Corporation Counsel Its Attorney 28 E IN THE CIRCUIT COURT OF THE THIRD CIRCUIT THIRD DIVISION STATE OF HAWAII COUNTY OF HAWAII } CV. NO. 00-1-0181K CV. NO. 05-1-015K Plaintiff, ) ) VS . ) ) ROBERT NIGEL RICHARDS, Trustee } Under the Marilvn Sue Wilson } COPY Trust : C&J COUPE FAMILY } LIMITED PARTNERSHIP: MILES } HUGH WILSON; et al . , } } Defendants. ) TRANSCRIPT OF PROCEEDINGS Before the Honorable Ronald Ibarra, Judge, Third Division, presiding, on Thursday, November 8, 2007 . --000-- DEFENDANT C AND J COUPE FAMILY LIMITED PARTNERSHIP FOR STATUTORY DAMAGES PURSUANT TO HAWAII REVISED STATUTES SECTION 101-27. Transcript prepared from KURT T. FAUT, CSR #418 video disc bv: Official Court Reporter State of Hawaii APPENDIX"A" 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT THIRD DIVISION STATE OF HAWAII APPEARANCES For the Countv of Hawaii : JOSEPH K. KAMELAMELA, ESO. Deuuty Corporation Counsel 101 AuAuni Street Suite 325 Hilo, Hawaii 96720 For the Defendant C&J Coupe KENNETH R. KUPCHAK, ESO. Familv Limited Partnership: - and - ROBERT H. THOMAS, ESO. Damon, Kev, Leong, Kupchak, Hastert Attornevs at Law 1600 Pauahi Tower 1001 Bishop Street Honolulu, Hawaii 96813-3480 For 1250 Oceanside Partners : WILLIAM K. MEHEULA, ESQ. Winer, Meheula, and Devens Attornevs at Law 707 Richards St . , PH-1 Honolulu, Hawaii 96813 PERMISSION TO COPY DENIED HR 3. 606. 3, BTC. 3 v1� 1 Thursday, November 8, 2007 2 --000-- 3 THE CLERK: Civil Numbers 00-1-181K and 05-1-15K, 4 County of Hawaii versus Robert Nigel Richards, et al. , for 5 motion of Defendant C and J Coupe Family Limited 6 Partnership for Statutory Damages Pursuant to Hawaii 7 Revised Statutes Section 101-27. 8 THE COURT: Good morning, Counsel. State your 9 appearance. 10 MR. KAMELAMELA: Joseph K. Kamelamela, deputy 11 corporation counsel, representing the county. 12 MR. THOMAS : Good morning, your Honor. Robert 13 Thomas and Kenneth Kupchak for the defendants, the C and J 14 Coupe Family Limited Partnership. And may the record 15 reflect that with us in the courtroom today are Charles and 16 Joan Coupe. 17 THE COURT: Okay. You may be seated. 18 MR. MEHEULA: Good morning, your Honor. Bill 19 Meheula for Oceanside. 20 THE COURT: Good morning. Who is arguing the 21 motion? 22 MR. THOMAS: That would be me, your Honor. 23 THE COURT: Okay. 24 MR. THOMAS: Your Honor, eminent domain is a game 25 where the legislature, from the inception of the case to t "f STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606":13 ETC. 4 -� 1 trial, tilts the playing field in favor of the government. 2 It can seize property ex parte, make take-it-or-leave-it 3 offers of compensation, and it' s generally a process where 4 the government enjoys every advantage in a civil case. 5 It 's Godzilla versus Bambi. But in this case, your Honor, 6 Bambi won. 7 In that rare instance where property is not taken 8 in a proceeding in eminent domain, Section 101-27 of the 9 Hawaii Revised Statutes represents a shifting of the 10 playing field. And the government is liable for all damage 11 it has proximately caused by bringing the proceedings. And 12 property owners, in that instance, the legislature has 13 decreed, should be made whole. 14 And the starting and ending point for this 15 analysis, your Honor, is the language of the statute, 16 Section 101-27. And it says, if you would indulge me, that 17 whenever any proceedings are instituted under this chapter 18 are dismissed or abandoned for any cause or the property is 19 not finally taken, the property owner shall -- in other 20 words, it ' s a mandatory command by the legislature. 21 And the Supreme Court and this Court has held in 22 Leslie that the word shall does mean shall . It' s a 23 mandatory entitlement -- shall be entitled in such 24 proceedings for all such damage, and it is not limited, as 25 may have been sustained, and this is the money quote, by STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 6063 ETC. 5 j 1 reason of the bringing of the proceedings, bringing in the 2 question of causation including, but not limited to, 3 attorney's fees in connection therewith, costs and other 4 expenses. 5 The Hawaii Supreme Court in 1887, as early as 6 1887 in the case of -- in the matter of The Widening of 7 Fort Street, said that eminent domain statutes must be 8 strictly complied with since they're a derogation of the 9 common law. So the Court 's discretion on this is limited. 10 And it -- the statute says all damage, not some. 11 And at that point, your Honor, we have submitted 12 with our motion and with our reply brief how much the 13 defendants in this case have incurred, actually incurred 14 and paid as damages as a consequence of the filing of the 15 first case. 16 The Hawaii Supreme Court, in the Sheffly case, 17 cited at 196 Hawaii Reporter, page 408, in 2001, said that 18 in a case where the party achieves an excellent result, and 19 in this case, in Civil Number 00-1-018-, a more excellent 20 result could not be imagined, that we can't parse out on a 21 claim-by-claim basis the amounts spent by a party to 22 litigate the case. 23 THE COURT: Okay. Let ' s separate this. You're 24 jumping ahead before whether -- and your short argument as 25 far as you' re entitled to attorney fees. Now you're going STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606-.13, ETC. 6 --� 1 to the apportionment and reasonableness. But let ' s stick 2 to the first, as far as the statute says, when you say 3 shall . What is the purpose of the statute? 4 MR. THOMAS: The purpose of the statute, your 5 Honor, is to -- when eminent domain proceedings are either 6 abandoned voluntarily by the government -- 7 THE COURT: Yeah. Abandoned. 8 MR. THOMAS: -- or, as in this case, the property 9 is not taken for public use within a eminent domain case, 10 that the government has to make the property owner whole, 11 put them back into the position that they would have been 12 had that case never been brought . 13 THE COURT: Okay. The clear scenario or the 14 clear hypothetical would be, as you say, the government has 15 abandoned, They file a lawsuit for whatever reason. 16 There' s a cloud on the title. The property owner is 17 prohibited to use the property. Right? 18 MR. THOMAS: Correct . 19 THE COURT: Free use of the property in open 20 market. And then the government abandons. 21 MR. THOMAS: Yes. 22 THE COURT: And the property is never acquired 23 for public use. 24 MR. THOMAS: Correct. 25 THE COURT: That would be the easy scenario that STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606. 3 ETC. 7 1 would fall within the statute. 2 MR. THOMAS: Correct . And we submit that is the 3 case in this case, your Honor. 4 THE COURT: Well, if you -- yes. I can see, if 5 you go by lawsuit by lawsuit . Right? 6 MR. THOMAS: Yes. 7 THE COURT: And as we learned in law school, not 8 every square peg fits in the square hole or round hole. 9 And this is what we have, right? 10 MR. THOMAS: Correct . 11 THE COURT: Now we have the first lawsuit that 12 there' s no abandonment . It went to trial on the merits . 13 MR. THOMAS: Correct . - 14 THE COURT: And you say that alone is sufficient 15 because the government did not finally acquire the property 16 in that lawsuit. 17 MR. THOMAS: Correct. 18 THE COURT: Then we have, I guess, the one that 19 doesn't make the peg fit in the hole is now we have the 20 subsequent lawsuit. 21 MR. THOMAS: Correct. 22 THE COURT: And I heard the arguments that the 23 first lawsuit was two point something acres, the second 24 lawsuit was three point something acres, the third lawsuit 25 was similar -- or it' s part of the second lawsuit as far as 1 1 STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENTED HRS. 606.13, ETC. 8 1 the property's concerned. So what does the meaning, 2 finally acquire means, taking the two cases? 3 MR. THOMAS: Your Honor, thank you. Two things . 4 First of all, the statute doesn' t tell us what finally 5 acquired means, although the term final judgment is used in 6 the first section. The first sentence of that is 7 discontinued. Or in other words, whenever any proceeding 8 instituted under this part, and the key language here is 9 proceedings, are abandoned or discontinued before a final 10 judgment . 11 Now, the Hawaii Supreme Court, in the Heirs of 12 Kapahi case in 1968 said that final judgment means judgment 13 entered after an appeal, or if, and then the statute 14 continues, if for any cause the property concerned is not 15 finally taken. In that case, since the language of the 16 statute does not provide us a definition of what does it 17 mean finally taken -- and we submit that the finally taken 1s in that must be read in light of a earlier statement or 19 that earlier phrase in the statute, final judgment. And in 20 neither of these cases is it contemplated that there is a 21 series -- or a series of eminent domain cases essentially 22 attempting to seize the same property. 23 So in that case, two things: The question before 24 the Court, I think, or the issue that the Court has to 25 resolve is: Did the consolidation of these cases before us STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 ems+, PERMISSION TO COPY DENIED HRS. 606.13 ETC. 9 1 turn multiple eminent domain cases from separate 2 proceedings into a single proceeding as defined in Section 3 101-27? And for a couple of reasons, we submit that's not 4 the case. That even though we tried this case together 5 with the subsequent eminent domain cases, they remain 6 separate and distinct cases and they were not merged by the 7 consolidation. 8 First of all they retain separate civil numbers 9 to this day. And generally speaking, under Rule 42, 10 consolidation, unless it states otherwise, is simply a 11 matter of convenience for the Court and the parties. So 12 there' s a trying of the merits or the issues in the case 13 together, but it certainly does not take what formally had 14 been two cases and convert them into one. 15 And then finally on that regard, the Court 's 16 order of consolidation is silent on that and at least seems 17 to -- entered on March 31st, 2005, it simply says the case 18 shall be consolidated with -- Civil Number 05-1-015 is 19 consolidated with Case Number One, which is 00-1-018 . 20 And in that case, there was no statement by the 21 Court that it was anything but a run-of-the-mill, for lack 22 of a better term, consolidation under Rule 42 . And Rule 23 42, the case law's quite clear as well as the language of 24 the rule, that unless stated otherwise, it's simply for the 25 convenience of the parties. It does not take two cases and STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED ERS. 606. 3 ETC. 10 1 turn them into one. 2 And I would point out also, your Honor, the final 3 line of that order, it seems, without trying to put words 4 in the Court ' s mouth, that the defendants' request for fees 5 and costs is the deferred resolution-of-the-merits portion 6 of this case. So at least the order, and the way that the 7 Court ' s final findings of fact, amended findings of fact, 8 conclusion of law, and orders came out, it was broken out 9 by two cases. So it appeared to us fairly plainly that 10 we' re still operating as two separate eminent domain cases 11 tried together for convenience. 12 THE COURT: Let me ask you, on the -- again, the 13 purpose of that statute, to afford the landowner redress if 14 the government does not finally acquire the property for 15 public use. What is the -- that would provide damages, 16 right? 17 MR. THOMAS: Correct . 18 THE COURT: what is the damages here? 19 MR. THOMAS: The damages here include, according 20 to statute, defendants ' cost of court. So costs, or 21 reasonable amount to cover attorney' s fees, and other 22 reasonable expenses. And the statute uses the phrase 23 unlike, for instance, the contract statute on fee-shifting. 24 And, for instance, federal civil rights laws with respect 25 to fee-shifting does not simply talk about attorney's fees STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606.13 ETC. 11 1 and costs, but says damages. 2 And by all accounts, that language is intentional 3 that the legislature -- when we speak of damages, we tend 4 to think of tort type of cases. And the goal in damage 5 situations is compensatory, to make the plaintiff or the 6 wronged party, to put the wronged party back in the 7 position it would have been had this case not been brought. 8 And I think the policy, your Honor, that we set 9 out in our reply brief is really the answer to the question 10 of why we have -- why we ask for damages and why we're 11 entitled to them in this type of case when there' s a 12 multiple series of eminent domain actions. 13 THE COURT: So damages in this case, you argue, 14 are attorney' s fees, court costs? 15 MR. THOMAS: Yes. 16 THE COURT: Where are the damages that the 17 statute also would include, you know, the redress if, you 18 know, from the government action of filing a lawsuit 19 whereby the property owner cannot use his property? You 20 seem to just argue in this case all we have is attorney' s 21 fees, costs, and defending of the lawsuit, which makes this 22 probably the only kind of case would consider attorney' s 23 fees as one hundred percent as damages. 24 MR. THOMAS: Damages. Correct, your Honor. And 25 I think -- I 'm sorry. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606 .13 ETC. 12 -} 1 THE COURT: So do I analyze attorney's fees as as 2 long as you expend it, that' s the damages suffered? Or 3 again, like damages, you prove there' s damages. The Court 4 does not have to go beyond whether it 's reasonable or not . 5 You proved you suffered it out of pocket. Where here you 6 seem to argue that this is the only type of scenario where 7 courts do not review attorney' s fees and costs for 8 reasonableness . It 's basically, we spend it; it ' s part of 9 the damages; Judge, under the statute, you award it. 14 MR. THOMAS: Well your Honor, I point the Court 11 out to the phrase within the statute that where we're 12 talking here: All such damages may have been sustained by 13 the defendant by reason of the bringing of the proceedings. 14 So if that language were standing alone, then that would be 15 the case. Then anything that -- it would simply be a 16 matter of proof at that point. Any type of special damage 17 we can show that we incurred, we would be entitled to. 18 However, I would like to continue with the 19 statute that says : And the possession of the plaintiff of 20 the property concerned. So in that sense, it ' s not just 21 limited. And I think what the statute says is all such 22 damage includes, but isn' t limited to, attorney' s fees and 23 costs. Because in some cases, not this one, there were -- 24 there are damages sustained by the fact that the 25 defendant -- or the plaintiff may have come in and already STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 \ PERMISSION TO COPY DENIED HRS. 606.13, ETC. 13 --:� 1 taken possession of the property. 2 So in that case, there may be damages that may 3 stem from either the removal of the plaintiff from the 4 property or the fact that the defendant was barred from 5 using the property or accessing the property for certain 6 times. 7 But the statute also continues: And other 8 reasonable expenses. And it says: Costs of court, a 9 reasonable amount to cover attorney' s fees. We would never 10 ask the Court to simply rubber stamp what we put in and 11 say, well, you proved you expended them, you've got them. 12 The Court does have the discretion within there, or the 13 statute gives the Court -- the question to the Court of: N14 Are the damages sustained with respect to attorney' s fees 15 reasonable? But that is the limit, we suggest, your Honor, 16 of the discretion of the Court. But we would never suggest 17 that the Court does not have that discretion and simply has 18 to rubber stamp what we're asking for. 19 And the Supreme Court in that Sheffly case that 20 we cited as well, as I mentioned earlier, said that that' s 21 the standard of reasonableness, although in that context it 22 was under a different statute, how to determine 23 reasonableness, is that you look to the common core of 24 facts. It seems that the county has objected to this on 25 the basis that, well, this was spent -- certain amounts STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIID HRS. 606.13, ETC. 14 1 were spent on certain issues and not with respect, at least 2 in the county's words, to eminent domain defenses, per se, 3 but on counter claims. 4 But the Supreme Court in that case said you 5 should not parse out those expenses. You look to whether 6 there was a common core of facts and legal issues involved 7 in a case. And that really, the final result, the final 8 question, the bottom-line question for the Court on 9 determining the amount, the reasonableness of the requested 10 attorney' s fees is: Did the party, did the lawyers achieve 11 an excellent result? 12 And without trying to false modesty here, you 13 couldn't ask for a more excellent result in this, + 14 especially given the lay of the land and how the law is on 15 this where there are very strong presumptions in favor of 16 public use. 17 And here the Court, as the Court is well aware, 18 came out with a judgment that the county could not take the 19 property because it did not show a public use in the first 20 case. 21 THE COURT: Go back to the statute again, this 22 final taken, finally taken for public use. The statute, as 23 you read it, right, whenever any proceedings instituted 24 under this part are abandoned -- there' s no abandonment 25 here. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13, ETC. 15 - } 1 MR. THOMAS: No abandonment, your Honor. 2 THE COURT: Or discontinued -- there' s no 3 discontinuance here. 4 MR. THOMAS: Correct. Went to judgment. 5 THE COURT: Now, had the county abated, would 6 that fall in there, that first lawsuit? 7 MR. THOMAS: Had the county abated, as I think 8 the Court recalls several -- I won' t say countless times, 9 but many times during the course of the trial, and even 10 before the complaint in the second case was served upon the 11 defendants -- I mean we literally heard about it, I think, 12 in the newspaper that a second eminent domain case has been 13 filed. The defendants, the Richards family, suggested that 14 this second action was abated by the presence of the first. 15 We understand the Court disagreed with that . 16 But yes. It's not like we haven't been warning 17 them since at least 2002 that one of these has to go. And 18 that if they did not elect, which the county pointedly 19 refused to do right up until closing argument, that if they 20 did not elect one or the other, that the law was going to 21 make an election for them and abate the second action. 22 Now, that says -- the way the statute reads is 23 anytime, whether it ' s abated, whether it ' s voluntary 24 dismissal, whether, as in the first case, it ' s a judgment 25 on the merits of the property or the proceedings are .l J STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FART, CSR 418 PERMISSION TO COPY DENIED HRS. 606.46, ETC. 16 -i 1 abandoned or discontinued or the property is not taken for 2 public use, then the damages statute kicks in. And what 3 that really says is that, okay, the government is free, one 4 supposes, to keep trying to take property. 5 THE COURT: I understand. That ' s the other 6 concern. But let' s keep the statute -- go over the statute 7 again. So we said abandoned? Not here. 8 MR. THOMAS: Not here. 9 THE COURT: Discontinued? 10 MR. THOMAS: Not here. 11 THE COURT! All it says is: Abandoned or 12 discontinued before reaching a final judgment . 13 MR. THOMAS: Correct . 14 THE COURT: So it was not abandoned or 15 discontinued, and there was a final judgment. 16 MR. THOMAS: Yes. 17 THE COURT: Then the part that you seem to argue 1s fits, is or: Or if for any cause the property concerned is 19 not finally taken for public use. 20 MR. THOMAS: Correct. 21 THE COURT: So if for any cause the property 22 concerned is not -- and you argued that in the first 23 lawsuit, for any cause the property was not taken. 24 MR. THOMAS: Correct. 25 THE COURT: And they argue, well, the second STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606.13, ETC. 17 -� 1 lawsuit finally ended up in the taking for public use. 2 MR. THOMAS: Correct. They're arguing that the 3 proceedings include any subsequent cases . 4 THE COURT: Okay. 5 MR. THOMAS: Or any subsequent lawsuits in 6 eminent domain. 7 THE COURT: So let me hear you argue what 8 scenario would fit in and protect the county as far as 9 finally taken for public use. 10 MR. THOMAS: Well, the county' s protected, in a 11 sense, your Honor, by the entire structure of Chapter 101 . 12 As I 've mentioned in the opening statements here, the 13 county -- this is a county game, at this point. This is a Y14 government, eminent domain. It ' s the offer you can' t 15 refuse as the landowner. 16 You're really -- short of being accused of a 17 crime, I would suggest that being on the target end of 18 eminent domain is probably the next best thing or the next 19 worst thing to being on the prosecutorial end of the state 20 because your rights under Chapter 101 are fairly limited. 21 Most of the legal presumptions are in favor of the 22 government with respect to whether the property can be 23 taken. And most, if not virtually all eminent domain 24 cases, but for a few, the litigation takes place over the 25 question of valuation and not the government ' s power to STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERNISSION TO COPY DENIED HR3. 606.23, ETC. 18 - 1 take. - 2 And so the county does not need protection from 3 this, from damage claims. Because in that case the 4 government holds all the marbles . It decides whether it 5 wants to bring suit. It decides whether it wants to seek 6 possession. It can do it ex parte. It can do it with very 7 little -- or in our case, we had some strange notices going 8 off to the wrong addresses to say that this was public 9 knowledge within the county or in this district. 10 So in that case it's within the county' s 11 discretion and power whether to institute these cases and 12 to start this massive legal ball rolling against landowners 13 who literally have done nothing wrong. It' s not like 14 they' re tortfeasors. They're not people who have broken 15 some sort of contract. They simply have what, I guess, the 16 bad fortune of owning property that at least the government 17 claims they need. 18 THE COURT: Give me -- make a simple scenario 19 where this statute would protect the county regarding 20 finally taken for public use. What scenario would fall in 21 that, finally taken for public use? 22 MR. THOMAS: Well, your Honor, if -- 23 THE COURT: Not the simple one, right? I can see 24 the simple one, right, basically you follow the 25 condemnation lawsuit . There' s no problem, the STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 1rr+' PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 19 1 garden-variety lawsuit, like you said, public purpose. 2 MR. THOMAS: Right. And it --- 3 THE COURT: So why was this statute enacted? 4 MR. THOMAS: This statute ' s designed to keep the 5 very situation we' re dealing with here where the county 6 keeps coming back and over and over and over again. At 7 some point, a defendant, I don't care if you' re Bill Gates, 8 you're going to get expensed to death. And you cannot 9 continue to fight an unjust eminent domain action if the 10 government keeps coming back at you without having to make 11 you whole at the end of every cycle. 12 THE COURT: Why do they say that then? Okay. 13 Finally, if not, basically you could just say, well, not y14 taken for public use in a lawsuit. What does this finally? 15 It seems like a drawn-out process is involved, finally. 16 MR. THOMAS: Finally, I think, again, your Honor, 17 it goes back to that first -- it ties into the first part 18 of that, the first clause of that sentence. Are 19 discontinued before reaching final judgment . So are they 20 abandoned or discontinued in these proceedings? The first 21 question is: Was it abandoned or discontinued before 22 reaching a final judgment? 23 So in other words, anytime during the course of 24 the trial in Circuit Court or, one would presume, on 25 appeal, if the county backs off and says, well, there STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606q. 3, ETC. 20 1 hasn't been a final judgment. We're going to back off. 2 Turns out we don't want, don' t need this property. We've 3 got other priorities. At that point the county is on the 4 hook for damages. 5 THE COURT: So that' s clear, right? 6 MR. THOMAS: That ' s quite clear. 7 THE COURT: That' s clear. 8 MR. THOMAS: And then the second part of that 9 phrase -- 10 THE COURT: Which the first part doesn't apply 11 here. 12 MR. THOMAS: The first part: Or for any cause 13 the property concerned is not finally taken, what does that 14 mean? Finally taken in this case. And at this point, your 15 Honor -- 16 THE COURT: Why would they need to put finally? 17 You know, you could say, or for any cause the property is 18 not taken. 19 MR. THOMAS: I think for the same reason. I 20 think, at this point, I can' t get into the mind of the 1929 21 legislature. And there really -- we took a look, tried to 22 look for some legislative history on that, and I have to 23 report that we couldn't find any that would explain that 24 point. 25 But for the same reason, I would, just from - � STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606.13 ETC. 21 1 reading it, discontinued before reaching a final judgment, 2 again, the word final in there may be at least somewhat 3 superfluous. That before -- or just it could have very 4 well said under this part or abandoned or discontinued, 5 period. Or if for any cause the property concerned is not 6 taken for public use. And I would think that that sort of 7 sentence would have the same operative effect. 8 I think it ' s just the legislative drafters 9 attempting to be fairly clear that you have to have 10 finality in a case. And in this case I think we're of the 11 position that it is final . At this point the appeal window 12 has closed. There was no interlocutory appeal as allowed 13 by law from the finding of public use, and there was no = 14 appeal filed within the thirty-day window in Case Number 15 One with respect to the final judgment as well . So there 16 were two opportunities for appeal on the public-use appeal, 17 and both are gone. 18 THE COURT: And the statute not only uses the 19 final, finally, the word finally once, it also goes on: A 20 defendant who would have been entitled to compensation or 21 damage had the property been finally taken. 22 MR. THOMAS: Correct . Same language, same -- we 23 would expect that that language is -- whatever the 24 legislature meant with respect to the first finally, it ' s 25 simply saying it again in that portion of it. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 22 1 THE COURT: In using the word finally, does that "f 2 not connote that this is long proceedings, that the county 3 may not get it right the first time, and finally you' re at 4 the end? 5 MR. THOMAS: I don't think so, your Honor, for a 6 couple of reasons. First of all, the language of the 7 statute, proceedings under this part, it doesn' t seem to 8 contemplate, at least on a plain reading of it, multiple 9 eminent domain cases. As your Honor mentioned, we're in 10 sort of -- we' re in the exception to the rule here, that 11 usually the county may try and doesn't get it, it quits, it 12 loses. In the best-world scenario, it would go away, and 13 that would be the end of the day. 14 But we know that ' s not the case, and this case is 15 sort of the paradigm of that, where the county didn't wait 16 for the first case to be concluded, as it could have done, 17 and as we asked them to elect to do. It simply piled on 18 and brought another case without dismissing the first. If 19 that ' s the case, we've got two eminent domain cases going 20 on at the same time. Now -- 21 THE COURT: If the county dismissed the 22 first, prior to judgment -- 23 MR. THOMAS: Yes. 24 THE COURT: -- you would be arguing same thing 25 you are here. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 AIML PERMISSION TO COPY DENIED HRS. 606.73, ETC. 23- 1 MR. THOMAS: Sure. That may be under the 2 first -- 3 THE COURT: That's clear. 4 MR. THOMAS: -- the first clause of the sentence. 5 THE COURT: That's clear. Because, what you 6 would argue, this continued -- 7 MR. THOMAS: Correct. 8 THE COURT: -- the first lawsuit. 9 MR. THOMAS: And in fact we argued that in our 10 motion to dismiss the second case, that we said, your 11 Honor, if you abate the second case, we're entitled to 12 damages for there under the discontinued portion of -- 13 discontinued language in that first clause of the sentence. 14 THE COURT: Now, if the county amended the first 15 complaint by -- I won't use the word abandon because that' s 16 what you want because you can say that it ' s abandoned by 17 taking out some certain provisions. 18 MR. THOMAS: Correct. 19 THE COURT: Would you still argue that the county 20 abandoned certain theories and, therefore, it would be -- 21 or discontinued, even though there might be just one 22 lawsuit? 23 MR. THOMAS: The Court asked earlier what' s the 24 county's protection against this, and I think the Court has 25 hit the nail on the head on that one. That's county' s } STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 24 -� 1 protection on this. By statute, by the Rules of Civil 2 Procedure, the government ' s able to amend its existing 3 pleadings to cover more or less property and that sort of 4 thing. 5 So had the county -- I mean, it 's not the 6 situation we' re in right now. But had the county amended 7 Case Number One, we'd have a little different situation, 8 and we may not be arguing that that is abandonment or 9 discontinuance of the proceedings. That it' s the same 10 civil number. The county has simply, more or less, amended 11 the amount of land that it determines it takes. 12 And that 's a fairly common situation in eminent 13 domain law where it turns out that your precondemnation 14 surveys of the property for roads and whatnot turn out to 15 be just a bit off. And it looks like you're going to need 16 a little bit more or a little bit less. And so those types 17 of amendments are covered under statute and under the Rules 18 of Civil Procedure. 19 So that' s the protection that the county had if 20 it wanted to -- of course, it would be free at that point 21 to say, you know what, let's dismiss this case and start 22 all over again. At which point it would be liable. But if 23 we were in the situation where the county amended the 24 lawsuit versus just bringing another one, we may not be 25 here or at least our position wouldn't be as strong as it ,t STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HR9. 606. 3 ETC. 25 1 is today. 2 THE COURT: Okay. And to make clear, the damages 3 that you argue here is basically the attorney' s fees and 4 costs . There's no damages from the free use of the 5 property in the open market? 6 MR. THOMAS: No, your Honor. We're not seeking 7 it in the motion. Yes. 8 THE COURT: And the next question I have on that 9 damages: What is the -- in determining damages -- well, 10 strike that. In determining attorney' s fees, and I see you 11 stated a list of things the Court should consider, but I 12 did not see a category where the Court should consider the 13 value of the lawsuit as far as whether the attorney' s fees 14 are reasonable. 15 In other words, to make a simple example, if you 16 have a lawsuit that 's worth $100, as far as the claim, is 17 it reasonable to spend $1000 on attorney' s fees? 18 MR. THOMAS : How much is the Constitution worth 19 in this case, your Honor? 20 THE COURT: Well, that 's why I -- 21 MR. THOMAS: Right. Right. That -- we' re not 22 aware of any Hawaii law with respect to this standard. And 23 the Supreme Court and I know the federal courts deal with 24 Constitutional issues like this a lot. I'm sorry to report 25 that under this provision, the Hawaii Supreme Court and STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FART, CSR 418 PERMISSION TO COPY DENIED HRS. 606.1;3, ETC. 26 1 Intermediate Court of Appeals, as far as we can tell, has 2 never addressed the issue of importance or reducing the 3 question of what the government can or shouldn't do to a 4 monetary value. 5 THE COURT: Okay. In this case, of course, if 6 your client argued -- you argued on behalf of your client 7 there was a private taking, or not for public purpose. 8 MR. THOMAS: Not for public use, correct. 9 THE COURT: Which in the second lawsuit, the same 10 property or more than the property in the first case was 11 taken for public purpose. But in the first case, there was 12 also another argument that you raised that the assessments 13 against your client was improper, right, the assessments? 1� 14 MR. THOMAS: Correct . 15 THE COURT: The zones that was imposed on next to 16 the highway. How much, if you will, if that 's the value of 17 the case, that your client would have had to pay if the 18 zone of -- the fair share was imposed on your client? 19 MR. THOMAS: Excuse me, your Honor. 20 THE COURT: It ' s all in the record as far as the 21 percentage, right, the percentages? 22 MR. THOMAS: I believe so, your Honor. It was in 23 the millions of dollars, if I remember, the value -- 24 THE COURT: Your client -- 25 MR. THOMAS: -- right? The value of the fair STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606.13 ETC. 27 - .� 1 share or what the fair-share assessment may be at some 2 point. 3 THE COURT: Along that road as far as, if you 4 look at, as far as if you can place a value that you' re 5 protesting that your client pay this much, and that ' s 6 improper. How much are you talking about? 7 MR. THOMAS: I 'm sorry, your Honor. I don't know 8 the exact figure. It is in the record. And I can state 9 with some certainty that I recall that it was -- the value 10 of the fair-share assessment that the Court struck down was 11 illegal was in the millions of dollars. 12 THE COURT: If the county enforced it, which we 13 don' t know when -- 14 MR. THOMAS: Yes. 15 THE COURT: -- that your client would be liable 16 for how much? 17 MR. THOMAS: Millions of dollars, your Honor. 18 I 'm sorry. I don' t know the exact figure as I stand here 19 today. And thank you. The number was somewhat inchoate 20 because it was dependent upon values at some future point 21 in time, what that might be at the point of seeking more 22 intense development on any particular parcel. Because I 23 believe that was the trigger to the fair share is when an 24 owner along the path -- 25 THE COURT: Upzone. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.1.3, ETC. 28 -� 1 MR. THOMAS: -- came in for upzoning, exactly. 2 And what the value was at that day, you know, the sky --- if 3 real estate values are any indication, that the sky could 4 be the limit. And again, your Honor, I point out that this 5 case, the first question we have to ask is : What ' s the 6 value of the government following the law at that point? 7 And in our system -- you know, we've seen cases 8 where there' s literally nothing at stake and millions of 9 dollars awarded in attorney' s fees or one dollar in 10 compensatory damage and treble damages because somebody, 11 the government, violated the law and went outside of what 12 it was supposed to do. 13 THE COURT: Does this statute contemplates the J14 government to make mistakes and to correct their mistakes? 15 MR. THOMAS: I think so. I mean government ' s not 16 infallible. And in this case, they can say, well, we went 17 too far. We need to abandon or discontinue. Or the Court 18 can hold that it can' t take property for public use. And 19 all this statute is saying -- we' re not asking for anything 20 like just compensation and damages as the phrase is used in 21 other parts of Chapter 101, or in the Constitution. 22 This is simply saying: Put us back in the 23 position we would have been had the government not gone 24 down this road and made a mistake. And the question, as we 25 pointed out in our reply brief, is this statute allocates - STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606. 3 ETC. 29 -�� 1 the risk of government mistakes right where it should be. 2 And that' s in the government, the very party who has the 3 controlling hand in eminent domain litigation. 4 It ' s certainly not the landowner who at this 5 point, you know, is in a reactive mode and really can' t do 6 much. So 101-27, sort of the natural purpose of it is to 7 make the government responsible to make landowners whole 8 when the government has made a mistake in one way or the 9 other. So it just simply places the risk of government 10 mistakes right where it should be. 11 THE COURT: Okay. Anything else? 12 MR. THOMAS: No. And if the Court has no 13 questions on our -- the amount of the damages that we claim 14 for attorney' s fees, I ' ll turn it over to Mr. Kamelameia. 15 MR. KAMELAMELA: Your Honor, they currently 16 allow attorney's fees and costs where there is express 17 provision in the statute to do so. And as far as the 18 purposes of Section 101-27, your Honor, I think there's two 19 purposes. 20 One of 'em is so that the government doesn't play 21 fast and loose with landowners, as expressed in that first 22 sentence that talks about abandonment and discontinuance. 23 The second purpose, your Honor, is that the government, 24 when it seeks to condemn property, must have a good-faith 25 belief that it ' s doing so in good faith. And that's why we „r STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 ,rte- PERMISSION TO COPY DENIED, HRS. 606.13, ETC. 30 1 have the second portion: If for any cause the property i 2 concerned is not finally taken for public use. That ' s the 3 purposes in this case. 4 What we have established sc far, your Honor, 5 throughout the whole trial is that since 1996, the Coupes 6 knew that there was the need for a bypass road. They knew 7 that the elevation at -- they knew approximately how much 8 acreage that there was going to be, about three point four 9 acres. And at no time did the county say that we will 10 abandon trying to get the road through. And at no time did 11 it say that there was no public use. 12 THE COURT: Okay. Well, I think we all agree 13 that there' s no abandonment or there' s no discontinuation. 14 MR. KAMELAMELA: Right . And so when you look at 15 that other portion of the property not finally taken for 16 public use -- 17 THE COURT: Or for any cause. 18 MR. KAMELAMELA: For any cause. 19 THE COURT: Yes. 20 MR. KAMELAMELA: Right. -- they haven't 21 established right now that the property that the county 22 needed for the bypass, you know, was not finally taken for 23 public use. In fact, it has -- 24 THE COURT: Well -- 25 MR. KAMELAMELA: -- somewhat . j STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 oo - .�. PERMISSION TO COPY DENIED HRS. 606.13, ETC. 31 -, 1 THE COURT: Their argument is not in the first 2 lawsuit, right? 3 MR. KAMELAMELA: Right. But what we have here, 4 your Honor, is something that happened at the same time. 5 THE COURT: And that ' s what they're requesting 6 attorney's fees for, the first lawsuit . 7 MR. KAMELAMELA: Right. But we have to look at 8 what finally happened. 9 THE COURT: Why -- see, I would -- as I asked the 10 question: If the county had amended the complaint, or in 11 the first -- or why did the county file the second 12 complaint then? 13 MR. KAMELAMELA: Your Honor, because there was 14 that issue with the, you know -- J 15 THE COURT: I think it's already -- right? 16 MR. KAMELAMELA: Right, with the development 17 agreement. And that would have been a substantial change, 18 your Honor. And it' s not just like trying to amend the 19 more-or-less in terms of the acreage. So there is a basis 20 for filing the second lawsuit. And that just goes to show 21 that the county had continued to state clearly to the 22 public of the need for Mamalahoa Bypass, and that we needed 23 the Coupe' s property. 24 THE COURT: So in this case, really, according 25 to the defendants, basically, having two lawsuits, whatever j STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED MRS. 606.13 ETC. 32 1 1 the county did with the two lawsuits, one of them is going 2 to result in them asking for attorney's fees. 3 MR. KAMELAMELA: Yeah. But this statute doesn' t 4 allow them to ask for attorney's fees because it says here 5 that the property concerned is not finally taken for public 6 use. 7 THE COURT: Okay. And this goes to their 8 argument, right, how many lawsuits can the county file, and 9 then ten, and the county says finally we got it. 10 MR. KAMELAMELA: Right. And I've heard it said 11 that this statute is to allow the county some mistakes, but 12 it 's not like -- it 's the type of mistake where the county 13 was acting in bad faith with the Coupes here in seeking to 14 complete the roadway. 15 And in line with that, your Honor, if we look at 16 the Torrens case that was cited by Kupchak, there's a case 17 that' s cited there on page, I think it's 598. It's the 18 Whittier Union High school District case versus Beck. And 19 it states that their action was dismissed after the 20 condemnor had purchased the subject property by contract 21 during the pendency of the suit. 22 And in that case, the Court disallowed recovery 23 of fees commenting that plaintiff's good faith in the 24 instant case was shown when the property was actually 25 purchased. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606 , ETC. 33 1 Although it's not exactly similar to this case, 2 but what that shows, your Honor, that sometimes a case 3 could be dismissed. And if the purchaser was -- that the 4 condemnor got the property anyway, the mere fact of the 5 dismissal doesn't mean that that condemnor would be subject 6 to attorney's fees and costs. 7 And that' s what we have here, your Honor. We 8 have a situation where, from the beginning of the first 9 lawsuit all the way up to trial, including the second 10 lawsuit, we have always, in good faith, informed the 11 parties that there is public use for Coupes' property and 12 we needed it for the road. 13 THE COURT: So let me stop you there. 14 MR. KAMELAMELA: Okay. 15 THE COURT: If the county never filed the second 16 complaint, if the county did not file the second complaint 17 and proceeded to trial on the first complaint and the 18 results were the same, would you agree or disagree that 19 then on that first complaint they're not entitled 20 attorney' s fees? 21 MR. KAMELAMELA: If we didn't file the second? 22 THE COURT: No. They would be entitled to 23 attorney' s fees or not entitled to -- yes. Just one 24 complaint, the first one, we' ll break it up, went to trial. 25 Same result . They come in, same motion. What' s the STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 ,sue. t� PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 34 1 county' s analysis? You said they're entitled to attorney' s 1 2 fees, or the county is going to say wait a minute, we're 3 not done yet, I'm going to file another lawsuit . 4 MR. KAMELAMELA: You know, your Honor, that' s a 5 good question. 6 THE COURT: It ' s a hypothetical . 7 MR. KAMELAMELA: Yeah. I 'm assured that that 8 didn' t happen in this case, your Honor. And I have a hard 9 time with hypotheticals where, you know -- again, that' s 10 not what happened here. 11 THE COURT: Well, I 'm just breaking it up in 12 slices, right, and try to see where is the square pegs 13 that 's sticking out of the round hole. What part of the 14 square peg . . . 15 MR. KAMELAMELA: The best answer that I can think 16 of is that it would go back to that, if for any cause the 17 property concerned is -- 18 THE COURT: -- not taken. 19 MR. KAMELAMELA: Yeah. Not -- 20 THE COURT: Not finally taken for public. 21 MR. KAMELAMELA: Right . 22 THE COURT: So that' s why I 'm asking you that, 23 because what' s the finally means? 24 MR. KAMELAMELA: Is that when we finally -- 25 THE COURT: So you have one lawsuit . And there STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 35 1 might be scenarios. Although, you know, the burden is very 2 hard, as Counsel stated. There' s always a presumption, but 3 it 's a judicial determination as far as public use -- 4 MR. KAMELAMELA: Right. 5 THE COURT: -- right? So will there be a 6 situation sometime where the county files a lawsuit, goes 7 to trial, there' s no public purpose found? 8 MR. KAMELAMELA: Well, I think -- 9 THE COURT: And then the county -- 10 MR. KAMELAMELA: I think if the county stopped at it that time and just said, you know, they're not going to do 12 anything else . . . 13 THE COURT: That' s clear. It ' s discontinued. 14 MR. KAMELAMELA: Yeah. 15 THE COURT: Okay. So the county files a lawsuit. 16 Through the discovery process, the county's convinced maybe 17 to discontinue without any stipulation as to attorney's 18 fees and costs being borne by each side. So you said the 19 county would have to pay attorney' s fees because they 20 discontinued, absent any stipulation. 21 MR. KAMELAMELA: Yeah. That's the clear case. 22 THE COURT: Right. Then the county continues, go 23 forward, judgment against the county, no second lawsuit . 24 MR. KAMELAMELA: If there' s no second lawsuit, 25 that ' s -- STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606.13, ETC. 36 1 THE COURT: If you read the statute, it says 2 they never acquired at that time. But thereafter, then the 3 county says, well, maybe we still need the, whatever, the 4 land for -- it ' s public use. Now we file another lawsuit. 5 So can the county get back their first attorney's 6 fees paid, having filed the second lawsuit, which may have 7 resulted in the determination that the county had a public 8 use and the Court found? 9 MR. KAMELAMELA: Yeah. I 'd have difficulty with 10 that hypothetical, your Honor. 11 THE COURT: Well, that ' s their argument, 12 basically. That 's their argument. 13 MR. KAMELAMELA: Yeah. That ' s their argument. 14 THE COURT: That's why I ask, you know, in that 15 form because that' s what their arguing, right? The first 16 lawsuit was decided; second lawsuit, the county won. 17 MR. KAMELAMELA: Right. 18 THE COURT: Shall you guys get the attorney' s 19 fees from the first lawsuit because you got the property in 20 the second lawsuit? 21 MR. KAMELAMELA: Your Honor, I think we have to 22 go back to what the purpose of the -- of Section 101-27 is. 23 And there' s only two purposes that we know of. 24 THE COURT: Well, I would agree that 25 discontinuance or abandon before reaching final judgment. STATB OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, MRS. 606.13 ETC. 37 1 But then you got that for any cause, the property concerned 2 is not finally taken. And that ' s why I extended that 3 second case out. You know, that' s where you' re trying to 4 say for any cause the property concerned is not finally 5 taken for public use. 6 You seem to argue it in your brief that 7 basically, at least for the case, the facts of the case 8 here, the two lawsuits were close in time. 9 MR. KAMELAMELA: Well, if -- 10 THE COURT: You mentioned same time the Court 11 rendered its decision. 12 MR. KAMELAMELA: At the same time. 13 THE COURT: At the same time. ' 14 MR. KAMELAMELA: And that' s true. Because we're 15 again focusing on what the purpose of this section is. 16 THE COURT: So your argument would be -- my 17 hypothetical is, if it' s not the same time, if the Court 18 had actually -- which the county had objected anyway, 19 right, to consolidation over the Court' s order? 20 MR. KAMELAMELA: Right. 21 THE COURT: The county objected to Court 22 consolidating the case. And actually the record speaks for 23 itself where the similarities as far as whatever common 24 facts or different facts are involved. But the county 25 objected. And had the county' s objection been sustained, STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606.13, ETC. 38 1 and this went to separate trials, and the same results -- 2 MR. KAMELAMELA: And again -- 3 THE COURT: -- but different time now -- 4 MR. KAMELAMELA: Different time. 5 THE COURT: -- you don' t have the argument that 6 the judgment was entered the same time. 7 MR. KAMELAMELA: And then we look at the 8 statutes, the same purpose, that finally we got the 9 property. 10 THE COURT: Well see, but so, you know, I 'm 11 trying to hear your arguments. In this case, you seem to 12 argue, well, the lawsuits were decided the same time, 13 right, in your argument? -; 14 MR. KAMELAMELA: Right . 15 THE COURT: But you seem to infer, based on my 16 hypothetical, different times, judgment coming back in 17 different times. And no matter what time, we finally got 18 the property. 19 MR. KAMELAMELA: Right . 20 THE COURT: Don't matter how far in the future. 21 MR. KAMELAMELA: Yeah. But we wouldn't do that 22 because there' s an interest in terms of building the road 23 within a certain time. Because as we know, costs increase. 24 So I couldn't see spacing it. So I think the most 25 reasonable thing was to file the lawsuit. I STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 39 -.� 1 THE COURT: Well, normally -- this is not the 2 garden-variety condemnation case. 3 MR. KAMELAMELA: No, it's not. 4 THE COURT: Normally when the county makes 5 mistakes, they amend their complaint. 6 MR. KAMELAMELA: Right . 7 THE COURT: Instead of filing new lawsuit and 8 have two lawsuits, right? 9 MR. KAMELAMELA: Yeah. But then we would be 10 still doing the same kind of trial, the same issues . 11 THE COURT: Well, in this factual scenario, this 12 is different . 13 MR. KAMELAMELA: No. I 'm pretty sure that they 14 would raise the same issues, your Honor, as to the defense. 15 THE COURT: Well -- 16 MR. KAMELAMELA: Because if we look at what their 17 claims were with respect to both of the lawsuits, in both 18 lawsuits they still attacked the development agreement. So 19 whether we had amended it or not, I think we'd be praying 20 for the same thing. 21 THE COURT: That's why I am saying the facts in 22 this case, because it involved a development agreement, 23 it 's different from the garden-variety condemnation. 24 MR. KAMELAMELA: Right . 25 THE COURT: Normally you do not have a STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 ,tor PERMISSION TO COPY DENIED MRS. 606.13 ETC. 40 1 development agreement in the normal condemnation case. - 2 That legislative body refers to -- you know, I know you 3 disagree with my findings, but you see where I refer to my 4 findings? 5 MR. KAMELAMELA: Right . 6 THE COURT: In normal condemnation case, if you 7 had a mistake made by the county, you would amend the 8 complaint, not file another lawsuit, prior to judgment, 9 that is. 10 MR. KAMELAMELA: I know that there have been 11 other cases in Hawaii that had -- 12 THE COURT: Two lawsuits on the same piece of 13 property pending at the same time? y 14 MR. KAMELAMELA: I think that there was one, your 15 Honor, that I recall that happened. 16 THE COURT: One case that you remember two 17 lawsuits being filed on the same property? 18 MR. KAMELAMELA: Yeah. Right . 19 THE COURT: And there was no amendment? 20 MR. KAMELAMELA: No. 21 THE COURT: Was that in the county of Hawaii? 22 MR. KAMELAMELA: No. It 's not here. 23 THE COURT: Okay. But so that ' s why -- you know, 24 this is not the garden-variety case for condemnation. 25 MR. KAMELAMELA: No. It 's not the garden-variety -� STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FART, CSR 418 PERMISSION TO COPY DENIED HRS. 606.13, ETC. 41 -.� 1 case. But at the same time, your Honor, the kind of issues 2 that have been raised -- 3 THE COURT: Okay. Now, I asked the policy about 4 the statute. And I don't see it -- I read basically this 5 is, at least it' s undisputed that the underlying policy, 6 which is stated in other previous cases -- because this 7 statute was in existence. Although you look at when it was 8 last amended, you know, in 185. 9 MR. KAMELAMELA: Right. 10 THE COURT: But it didn't pertain to a material 11 amendment. It 's been in existence for a long time. And 12 all the old cases that you read, which is annotated in the 13 statute, right, you know, the Helea case, although it might 14 be dicta, it mentioned the purpose of, at that time, the 15 Revised Statute of Hawaii would be to, which I ask counsel 16 there, to compensate the owner if the condemnor, having 17 commenced the action, restrained the owner from the free 18 use of the property in the open market and does not finally 19 acquire the property for public use. That' s part of what I 20 see. 21 MR. KAMELAMELA: Right. And I heard you ask that 22 question. And Mr. Thomas said that, you know, they're not 23 asking for damages for restraint of use of the property. 24 THE COURT: Yes. I asked him that. But the 25 other purpose where it seems to be Mr. Thomas's argument is STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 too PERMISSION TO COPY DENIED, HRS. 606.13, ETC. 42 1 basically this, which is not explicit, but where the 2 government -- and we' re talking about public use, right? 3 Public use is not something that, which Mr. Thomas argues, 4 is not -- basically, it ' s almost there' s a presumption of 5 public use when the government, right, declares by 6 legislative action, the public use, roads, schools? 7 MR. KAMELAMELA: Correct. 8 THE COURT: So isn' t the policy then that because 9 they talk about, you know, the county really -- the 10 government must really mess up on public use, and therefore 11 we're going to give this, the private landowner, you know, 12 remedy. Because frankly, if you think about it, how many 13 cases in this state or even the United States, you know, it 14 was pointed out by Mr. Thomas, right, where the government 15 failed the public use? Not many -- 16 MR. KAMELAMELA: No, not many. 17 THE COURT: -- right? Because there' s always the 18 presumption, and the Court generally gives deference. But 19 it ' s a judicial decision. And so isn' t this statute says 20 that, well, government, when you don' t have, finally 21 acquire the property for public use, then the landowner 22 should have damages to include attorney' s fees? 23 MR. KAMELAMELA: Right. That ' s what I pointed 24 out earlier that that ' s one of the purposes. It' s that 25 when the county cannot establish public use for that STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606.13 ETC. 43 1 property, then -- 1 2 THE COURT: Okay. So complaint by complaint, 3 shouldn' t the burden be on the county then as to who should 4 bear, in interpreting the statute, who should bear the 5 burden on public use as far as who should be responsible 6 for that public use not being determinant in a lawsuit? 7 That ' s why I asked the case. Okay. The county 8 says, okay, we' re going to have all these other lawsuits. 9 Frankly, I don' t think that was contemplated in the statute 10 where the government can file separate lawsuits . I think it it was contemplated that the government makes mistakes and 12 may amend. And frankly, I don't think that the county or 13 the government makes mistakes on public use. So if there 14 is one, shouldn't the statute cover it? 15 MR. KAMELAMELA: Cover, you mean, this situation? 16 But I think it does cover it. 17 THE COURT: You mean allow them attorney' s fees? 18 MR. KAMELAMELA: No. No. I kind of 19 misunderstood you. I said no. It doesn' t cover. Only 20 because when you look at the legislation itself, it uses 21 the term "finally taken" twice. 22 THE COURT: Yes. Which I agree. You know, I 23 asked Mr. Thomas. It contemplates, I think, that, you 24 know, there might be a snag or whatever you want to call 25 it, a hold up. And certainly in Hawaii I think we all are STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED MRS. 606.13 ETC. 44 1 familiar with the H-3, how long that' s taken. Right? And 1 2 so isn' t that the kind of situation, maybe? 3 MR. KAMELAMELA: I think it is that kind of 4 situation where the county finally takes the property for 5 public use. 6 THE COURT: Any other arguments, attorney' s fees, 7 your -- 8 MR. KAMELAMELA: Yes. 9 THE COURT: You seem to argue that if, assuming 10 for argument' s sake -- 11 MR. KAMELAMELA: Right. It is argument's sake. 12 THE COURT: -- it should be only to the 13 public-purpose issue. 14 MR. KAMELAMELA: Just the public-purpose issue, 15 they should be able to -- 16 THE COURT: The development agreement. 17 MR. KAMELAMELA: Yeah. They should be able to 18 tell us where, for example, like how much time. Because 19 they seemed to have lumped everything together. I mean, 20 they had many different claims there, a lot of different 21 Constitutional issues that they did not prevail on. 22 And I also agree with the Court that we have to 23 look at what the value of this case is in terms of how much 24 just compensation was given, well, you know, plus the 25 blight of summons, which we had deposited the monies for STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 �✓ ''orb PERMISSION TO COPY DENIBD HRS. 606.13 ETC. 45 -�-� 1 already. 2 THE COURT: As of October 31st. 3 MR. KAMELAMELA: As of October 31st. 4 THE COURT: Anything else? 5 MR. KAMELAMELA: No. Nothing further, Judge. 6 THE COURT: Mr. Meheula? 7 MR. THOMAS: Your Honor, just for the record. 8 I 'm sorry, Bill . Just one minute. 9 THE COURT: You'll have the rebuttal . 10 MR. THOMAS: Right . We' re just going to object 11 for the record to Oceanside -- they don't have a dog in 12 this hunt. 13 THE COURT: Well, I' ll ask Mr. Meheula as a L14 friend of the Court. I'd like to hear this legal argument. 15 MR. THOMAS: Certainly, your Honor, just for the 16 record. Thank you. 17 MR. MEHEULA: Thank you, your Honor. Your Honor, is Oceanside takes the position that -- 19 THE COURT: You filed a joinder. 20 MR. MEHEULA: Yes, your Honor. When you read the 21 Statute 101-27, it clearly does not apply to the Coupes in 22 this circumstance. And I think you got to start off with 23 under American Jurisprudence, you know, you're not entitled 24 to attorney's fees unless it's expressly provided by 25 statute. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 ,•0», 114.✓ � PERMISSION TO COPY DENIED HRS. 606.13, ETC. 46 } 1 THE COURT: I think that' s the American Rule, 2 right? 3 MR. MEHEULA: Right . And it 's their burden of 4 proof . Okay? Now, it doesn' t apply -- they don't apply to 5 this statute for two reasons. I mean, there' s really two 6 levels of requirements here. We've talked about the first 7 one quite a bit, and that is it wasn' t abandoned or 8 discontinued or the property concerned is not finally taken 9 for public use. I see those three as one layer. 10 And of course, the first two don' t apply. The 11 second one is, the question is: Does that apply; does it 12 not apply? I'm going to get back to that. But I think the 13 second qualification also is right after that . It says : A 14 defendant who would have been entitled to compensation or 15 damages had the property been finally taken. That's not 16 them, and that ' s another requirement. That shows the 17 legislative intent under this circumstance. They have 18 received just compensation. They have received interest 19 from January of 105. They have received blight since 20 October of 2000 . So you know, this statute doesn' t apply 21 in that second requirement also. 22 But let me go back to the first one and talk 23 about the property concerned is not finally taken for 24 public use. You know, the statute could have said property 25 not taken for public use in a final judgment, but it STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION ,TO COPY DENIED HRS. 606.13, ETC. 47 -� 1 doesn't say that. So the question is: Did the legislature 2 intend that the Court, in applying this, would turn a blind 3 eye to reality? And we believe not. I mean, if you look 4 at the Davis case, it said, this is the Hawaii case that 5 Mr. Kamelamela cited, State versus Davis, a 1972 case, it 6 says -- 7 THE COURT: Yes. 8 MR. MEHEULA: -- with respect to this statute: 9 This appears to manifest a legislative intent to preclude 10 such recovery if the property concerned is finally taken 11 for public use. 12 I mean, I do not believe, given the language of 13 the statute, given the Davis, and given that Witter case -� 14 cited in Torrens, that the Court should turn a blind eye 15 that exactly at the same time that they were awarded 16 judgment in the first case, the Court awarded the county 17 condemnation in the second case. So they cannot say that 18 the property was not finally taken. 19 THE COURT: I guess that ' s where we' re at, right, 20 case by case, or -- and you seem to -- 21 MR. MEHEULA: And I think the question is, you 22 know: Is that what the legislature intended, that the 23 Court would not take into consideration reality? And 24 that' s why that Witter case, I think, is important. 25 Because the Court there said, hey, you know what, sure, the STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.-13, ETC. 48 1 case was dismissed, but, you know, the government bought it 2 from you. 3 THE COURT: Right. 4 MR. MEHEULA: I mean, it ' s not as obvious a case 5 as here. What it tells you, you can look outside the 6 record. You can find out what really happened. 7 THE COURT: So in the Witter case, case 8 dismissed, like the first lawsuit in this action, went to 9 judgment against the county. Okay. The dismissal, same 10 argument. 11 MR. MEHEULA: Yeah. 12 THE COURT: But the property was acquired. 13 MR. MEHEULA: Property was acquired. ' 14 THE COURT: By contract. 15 MR. MEHEULA: By contract, right. 16 THE COURT: And in this case by second lawsuit. 17 MR. MEHEULA: Right. I mean -- and I think, you 18 know, it' s their burden to prove that they fit in on this 19 statute. They don't fit in on this statute at two levels. 20 So that's why we believe, your Honor, that -- 21 THE COURT: How long? In this case, of course, 22 you know, the county argued it 's simultaneous, pretty much, 23 the judgment came down. What if there was a first lawsuit, 24 the hypothetical I posed, first lawsuit against the county, 25 county stops, they come in for fees, and then, you know, STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 Lurk PERMISSION TO COPY DENIED, HRS. 606.13, ETC. 49 1 the county may have contemplated in the future they're 2 going to file another lawsuit? 3 MR. MEHEULA: You know, much harder case. Okay. 4 But I think even under those circumstances, your Honor, it 5 depends on the facts. I mean, for example, let' s say 6 they're going -- you set ' em back to back, one week at a 7 time. Okay? And let 's say that, you know, they're both 8 tried. And you come down with your award, you know, one 9 time, you know, in one week. Two weeks later, award number 10 two, just like in this case, okay. Week number three, they 11 file their motion for the first case for attorney' s fees. 12 I mean, you know, do they automatically get their 13 fees? I don' t know. I don' t know under that circumstance, r� 14 you know. 15 THE COURT: You sound like a law professor. 16 MR. MEHEULA: Yeah, but we don't have that case. 17 It ' s their burden to prove that this statute applies, and 18 they cannot prove it. And you know what I think is the 19 real killer for them was that second qualification. They 20 are not a defendant, they are not a defendant who is -- who 21 would have been entitled to compensation for damages had it 22 been taken, had it been finally taken. They have been 23 awarded damages . So that's all they get under these 24 circumstances . 25 And I think the dialogue that you had with Mr. i STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, ERS. 606.13. ETC. 50 -.� 1 Kamelamela as to, you know, well, if it had been amended as 2 opposed to two separate -- I mean, I think that just goes 3 to support the denial of their request because it ' s form 4 over substance, if that 's the circumstance, you know. I 5 mean, if we' re going to end up with the same result, I mean 6 they've got to prove the right to attorney' s fees under the 7 statute. They have not. 8 If I could just make a comment on the amount, if 9 you get to that point? 10 THE COURT: Yes. 11 MR. MEHEULA: First of all, I 've been through 12 those attorney' s fees and put them on a spreadsheet and 13 trying to figure out, you know. And I ' ll tell you what I 14 can't figure -- 15 THE COURT: You got the errata? 16 MR. MEHEULA: I got that too, your Honor. But I 17 tell you what : I do not see what they've taken out . They 18 say it's for the first case. It looks like it ' s for both 19 cases, number one; and number two, if they are entitled to 20 attorney' s fees, the measure, according to them and 21 according to the statute, is sort of a but-for. Put 22 yourself back in the position you would have been in had 23 the first lawsuit not been filed. Okay? Had the first 24 lawsuit not been filed, the second lawsuit would be tiled 25 January of 105, and you go forward. �f STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 `vim✓ PERMISSION TO COPY DENIED HRS. 606.13 ETC. 51 1 Okay. Did they spend any more money from January 2 of 105 until today because of the presence of another 3 lawsuit that was filed earlier? That would be the only 4 type of damage they would be entitled to from January of 5 105 out into the future until now. So why they are 6 counting attorney' s fees and costs after January of 105, I 7 don' t get. I don' t get it . Because their measure is but 8 for, you know, you wouldn't have had that. That' s all. 9 That' s all I have, your Honor. 10 THE COURT: Okay. Mr. Thomas? 11 MR. THOMAS: A few rebuttal arguments, your 12 Honor. First of all, the question of we didn't seek 13 damages under 101-27 for the use of the land in the interim 14 because that ' s covered by the Court ' s blight finding. You 15 asked earlier when I was up here: Did we ask for it in 16 this motion? And no. I wanted to explain why we did not, 17 because it 's covered by the Court ' s blight findings. 18 Second, two things, the county makes the argument 19 that Section 101-27 has two purposes. First of all, the 20 government doesn't play fast and loose with landowners. We 21 suggest in this case, your Honor, that a finding that the 22 government has to make the property owners whole would 23 certainly fulfill that purpose in 101-27 . 24 Secondly, that the government must have a 25 good-faith belief in doing so, that it ' s operating in good STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13, ETC. 52 1 faith. And first of all, I would point out that there is 2 no good faith, safe harbor, in 101-27 . And as it reads 3 now, it' s a shall . That means it' s mandatory. It's really 4 along the lines of strict liability. And county said, you 5 know, what about the situation, and I think the Court 6 mentioned that in one of its hypotheticals, what about 7 where it contemplates a mistake? Well, that may be so, 8 your Honor, but Case Number Two was not a mistake. County 9 admits that it did it for deliberate reasons, and it was, 10 as we attached in that December, 2002, as early as 11 December, 2002, it was contemplating a second suit. 12 Since the argument, the second argument, that 13 since 1996, the Coupes knew there was the need for the road 14 somehow precludes -- makes the Coupes bear the risk that 15 the government would bring a legally incorrect eminent 16 domain case, if that 's the standard for whether damages are 17 going to be assessed in this case, then under that county 18 standard, we could never do it . In which case the statute 19 would have to be read as a complete nullity simply by 20 virtue of the fact that the county could simply announce to 21 the world that, say, one day we're going to need some 22 roads, maybe here, maybe there. We might need everybody' s 23 parcel for eminent domain. At that point everybody' s on 24 notice, and the Court could never award damages. 25 And again, the third point that the county made, STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED ERS. 606.13 ETC. 53 1 that the Coupes have not established that the property 2 wasn' t taken eventually in another case. The question of, 3 first of all, how many lawsuits do we have to contemplate? 4 Two, as in this case, two at the same time, two in 5 sequence, three, four? I think we even said at some point 6 twenty. At what point does the government quit? So how 7 long of a gap do we have between cases? 8 I think Mr. Meheula said that, well, what happens 9 if we brought these in -- or the cases were brought in 10 sequence, and there was a slight gap between the two? But 11 how long a gap can we have? Can we have two weeks? In 12 this case, none? Can we have ten years? And the county 13 said, well, some day we may take this property and we my 14 try again. 15 So the statute doesn't say never taken or not 16 ever taken. It says finally taken. And that has to mean 17 finally taken in this case treating each eminent domain 18 action separately. Because I think the Court understands 19 that the courts generally -- it would be very tough for a 20 landowner to get a court to enter an injunction against the 21 government prohibiting it from ever taking private property 22 for a claimed public use. 23 So under the county standards, as long as there 24 was some possibility that the county would come back and 25 keep coming back, in that case you're never going to get - STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED FIRS. 606.13 ETC. 54 -� 1 damages. And we' re right back into the situation in the 2 quotation in our reply brief that we pointed out to the 3 Court where governments were taking the tactic of expensing 4 landowners to death. And at some point, as I mentioned 5 earlier, every landowner will give up because they cannot 6 bear the costs of defense on repeated assaults by eminent 7 domain. 8 So the question becomes -- the Court asked the 9 hypothetical to the county: Well, what happened if you 10 were doing Case Number One only, and you ended up losing 11 that like you did? Would you get damages? And the county 12 was not able to answer that question. 13 Let me try to answer it for them. Under the 14 county' s theory, and I think there was some reluctance to 15 say this, under the county' s theory that 101-27 damages are 16 not available if the county may ever take the property, 17 the county's answer to that would have to be no. That even 18 in the situation where there was no Case Number Two, that 19 if the Case Number One happened, all the county would have 20 to do to provide itself a safe harbor from damages in Case 21 Number One alone would simply be declare, you know what, 22 your Honor, we' re going to try again. And because we're 23 going to try again, and we may win on another case that we 24 may file tomorrow or next year or whenever, you can' t award 25 damages because it may -- the property may finally be STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 55 1 taken. We don' t have any plans to do it now, but we just 2 might . 3 So really the purpose, in that case, you really 4 take the purpose of Section 101-27 which is to allocate the 5 risk of government problems to the government, and really 6 turn the statute on its head. And it would turn from a 7 statute designed to make property owners whole and become 8 really a statute that would encourage serial takings and 9 serial attempts by the county until either the landowner 10 runs out of money or the will power or that the state 11 finally wins. . 12 I want to address, too, your Honor, the arguments 13 of the amicus party. First of all, that Section 101-27 ` 14 doesn't expressly provide for fee-shifting. Well, I don't 15 think 101-27 on a plain reading could be any clearer, at 16 least in the garden-variety type of case. The distinction, 17 I think, as the Court has pointed out is, well, we're 18 dealing with the question of what are the proceedings in 19 the case. And in this case, we suggest to the Court that 20 the only reasonable argument with how that language can be 21 read means in a particular case. Because otherwise, as I 22 just mentioned, you're into the case where 101-27 is then 23 read as encouraging multiple attempts for the government 24 until the landowner runs out of time and money or the 25 government finally gets it right. l 1 STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 56 -� 1 The question raised about are these defendants 2 who would have been entitled to just compensation? 3 Certainly would have been. They were defendants in an 4 eminent domain action. If these defendants, who were the 5 record landowners of that land, were not entitled to, 6 potentially entitled to just compensation in Case Number 7 One, then the case should have been dismissed long ago for S the wrong parties. And simply because they were able to 9 secure just compensation in a subsequent case does not take 10 them out of the language of that statute. Again, for the 11 same reasons that Section 101-27, the proceedings language, 12 has to be read as meaning in this case only. 13 The third question, finally, and again, you go 14 back to that, did the legislature intend to leave it wide 15 open? Did they intend by the use of the word finally taken 16 for public use to make eminent domain cases literally an 17 open-ended process? Unless the county somehow stands 18 before the Court and makes a declaration after they lose a 19 case on public-use grounds that we will never take this 20 case, if that 's the situation, as amicus party and as the 21 county read the statute, that would be the only situation 22 in which the government or the Court could award damages 23 under 101-27 if county stood before the Court and made that 24 declaration. Regardless of how binding it would be upon 25 future counsels, we don't know. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 57 -� 1 And then finally, the Davis case. We cited to 2 that in our reply brief . And the Davis case, it' s a nice 3 little quote, but it ' s wholly inapplicable to this case. 4 Davis simply provided that when land is taken for public 5 use in a case and a plaintiff is awarded just -- or a 6 defendant is awarded just compensation, they' re not 7 entitled to attorney's fees when the land is taken for 8 public use in a discrete case. 9 Some states allow that . They say an element of 10 just compensation is that, you know what, government you 11 have to make the landowner whole again. So not only pay 12 them the fair market value of the land on the date of the 13 taking, but you' re required to pay reasonable attorney' s 7. 14 fees. Florida, for instance, is like that. Federal 15 takings are like that if the landowner comes in with a jury 16 verdict on just compensation higher than the government's 17 original offer, the landowner is then entitled to recover 18 all the attorney's fees as part of just compensation. 19 And in Davis, the property owners made that 20 Constitutional argument that the Hawaii 's Constitution 21 reference to just compensation and damage had to include, 22 as a just-compensation award, attorney' s fees as well to 23 put the plaintiff back in the position it would have been. 24 But again, that ' s not the situation we're faced with in 25 Case Number One, which is the county was prohibited from STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13, ETC. 58 -� 1 taking the property for its claimed public use. j 2 Your Honor, in this case -- let me wrap up here. 3 The Coupes, in Case Number One, refused the offer that 4 can' t be refused. And this is not, as the Court pointed 5 out and as the county admits, that has not been a 6 garden-variety case. We' re here in a situation that not 7 many courts have been faced with because we have a 8 landowner who was successful on a claim that a taking by 9 the government for its stated reasons is not for a public 10 use. And if that 's the case, Section 101-27, the plain 11 language of that statute says in that case, you, the 12 landowner, are entitled to be made whole for all damages 13 you've incurred including a reasonable attorney's fee and 14 costs. 15 THE COURT: Thank you. I ' ll take this under 16 submission. 17 There 's another matter that the Court would like 18 to address, if Counsel is prepared. After the Court issued 19 its, I guess, first-amended judgment, the county filed and 20 deposited with the court the amount of the judgment, plus 21 the blight of summons. That' s until October 31st. And 22 thereafter, Mr. Kupchak' s firm filed a notice of appeal. 23 And the Court has certainly looked at the statute 24 and was going to address it. Knowing that this hearing was 25 going to come, I was going to ask counsel what effect, if STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DRNIED HRS. 606.13, ETC. 59 -.} 1 anything, does the notice of appeal have in the Court 2 filing an order of possession? I think that ' s 3 101-twenty -- 4 MR. KAMELAMELA: 32 . 5 THE COURT: -32, yes. And any disagreement that 6 the Court can issue an order of possession pending an 7 appeal? 8 MR. THOMAS : Your Honor, we haven't had a 9 chance -- on this one, we would appreciate, first, a 10 chance -- 11 THE COURT: I was going to issue an order of 12 possession anyway, but I wanted input . 13 MR. THOMAS : Your Honor, first of all, before we N14 do that, we 'd appreciate any chance to brief this one 15 because, frankly, this is sort of the first time we've 16 heard about this. 17 THE COURT: Yes . But -- 18 MR. THOMAS: But there hasn' t been -- 19 THE COURT: I wasn' t even going to ask your 20 briefing. But I figured we' re going to have this hearing 21 today, that I'd ask you. Because I was going to issue it 22 on my own because -- according to the statute. But I 23 wanted, at least, if you folks were learned -- I know 24 you' re learned enough to provide the Court with your 25 position. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 V PERMISSION TO COPY DENIED HRS. 606.13 ETC. 60 1 MR. THOMAS: First of all, your Honor, in terms 2 of -- there hasn't been, under 101-26, a final order of 3 condemnation at this point . I 'm not sure that there needs 4 to be a order of possession because the Court has to go 5 through the procedures, or the procedures outlined in 6 101-26. And again, why we think briefing might help on 7 this is to figure out whether at that point does, if title a switches, does there need to be an order of possession at 9 that point . 10 Second thing -- I mean, again, your Honor, I 11 apologize. These are somewhat off the top of my head. The 12 way the damage statute is written, 101-27, it says that any 13 deposits made, this is down in sort of the beef of 101-27, 14 past the sentences that we were dealing with 15 earlier, after the issues of fact tried by a jury. And 16 then at the last sentence: In the event judgment is 17 entered in favor of the defendant and against the 18 plaintiff, any monies which have been paid and additional 19 security which has been furnished, that goes to satisfying 20 the damage judgment. 21 So at this point, you know, there was a deposit 22 made, and I 'm sorry if -- I don' t remember off the top of 23 my head. There was a deposit and an original deposit. I 'm 24 not sure if it was stated in those documents whether it 25 was, you know, parsed out between Case One and Case Two. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606.13 ETC. 61 1 Because if it wasn' t, then we may -- that money's still in 2 play. Because as the Court rules on the submitted motion, 3 that may be used to satisfy our damage judgment . 4 THE COURT: Actually, you know, going with your 5 argument, certainly I would agree because you' re looking at 6 the lawsuits separately. 7 MR. THOMAS : Yes. 8 THE COURT: And even taking your argument 9 further, the county prevailed on the second lawsuit. 10 MR. THOMAS : Correct . 11 THE COURT: And so what you seem to be arguing is 12 basically that the damages that have been deposited was for 13 the first lawsuit. Whereas the second lawsuit, as long as r14 they pay the just compensation and the blight of summons 15 pending appeal -- 16 MR. THOMAS: We may be back in there. Although, 17 your Honor, the two things I would point out -- 18 THE COURT: Because the appeal was just, what, 19 the first lawsuit? 20 MR. THOMAS: Number Two, your Honor, the second 21 lawsuit -- 22 THE COURT: You appealed the second lawsuit? 23 MR. THOMAS: -- on the abatement question. Yes. 24 THE COURT: But you' re not asking for damages on 25 the second lawsuit. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13, ETC. 62 -.� 1 MR. THOMAS : Well, we haven' t -- if at the end of 2 the day, the ICA or the Supreme Court agrees that the 3 second case was abated and we prevail in that, then we 're 4 right back with 101-27 for anything under -- 5 THE COURT: But you seem to argue, which is 6 consistent, your argument, that your motion for statutory 7 damages came from the first lawsuit, right? 8 MR. THOMAS: Correct. We tried to be as express 9 on that as we possibly could. 10 THE COURT: Yes. But the county prevailed on the 11 second lawsuit . 12 MR. THOMAS: Correct. 13 THE COURT: So any damages that the county would 14 have to address comes from the first lawsuit. 15 MR. THOMAS: At this point, yes . 16 THE COURT: So how would it affect the order of 17 possession pending appeal? 18 MR. THOMAS: well, again, the order of 19 possession, final order of condemnation is contingent upon 20 the deposit for the amount. But again -- 21 THE COURT: From the second lawsuit. 22 MR. THOMAS: Again, forgive me, your Honor, I 23 just -- I don't remember, not having not been prepared for 24 this question, of the original deposit and the second 25 deposit. was it only with respect -- was it clarified by STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 605.13, ETC. 63 - 1 the county? 2 THE COURT: So that' s one of my questions I had. 3 MR. THOMAS: Right. 4 THE COURT: Because the county did not separate. 5 They just said we put in for the first lawsuit when we had 6 the order of possession. And the county then says, well, 7 use that, give us credit to the second lawsuit. And that ' s 8 one of the questions I had today for the county. 9 MR. THOMAS: And under 101-27, if the Court 10 determines that the Coupes are entitled to some damages, 11 101-27 says you go grab the deposit first. 12 THE COURT: The first lawsuit . 13 MR. THOMAS : In which case, got no right to order 14 of possession. Have no right to the final order of 15 condemnation at that point. 16 THE COURT: Well, that ' s what I wanted this 17 hearing for. I would say, well, contingent on the county 18 putting the additional deposit for the second lawsuit and 19 not using the deposit for the first lawsuit as credit in 20 the second lawsuit. 21 MR. THOMAS: And the other issue is that the 22 Supreme Court, on 101-32, in the Marks against Ackerman 23 case, has always counseled that immediate possession and 24 going forward with the possible irreparable injury to the 25 land and the landowners, you have to temper the need for r STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606 .13, ETC. 64 - .i 1 immediate possession with that sort of thing, and possibly 2 increase the amount of the damages in the event that the 3 defendant prevails on appeal . And that was the Marks 4 versus Ackerman case. 5 It says it' s not an automatic rule, that the 6 Court has some discretion in that saying, well, you've got 7 to increase the amount of the deposit because, you know, on 8 appeal, Coupes could be right on Case Number Two. And if 9 that' s the case, then the county's back on the hook under 10 101-27 again. 11 THE COURT: But the statute provides for 12 expedited appeal, like you cite. 13 MR. THOMAS: Correct. 14 THE COURT: So I think it contemplates whether 15 injury is going to take place. it may not be -- 16 MR. THOMAS: Correct. Those can be mitigated, 17 your Honor. Although in this case, it sounds like county 18 and Oceanside are chomping at the bit to get to the 19 property. And whether the ICA -- we have suggested to the 20 ICA that we have a statutory right of preference on their 21 docket. Now, whether the ICA, the good judges of the ICA 22 agree with that and do that or whether that puts us simply 23 at the end of the criminal queue, and we're the first civil. 24 case that they take in a• year and a half, that's another 25 matter. And I think that's outside of our power to affect STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 iSNW11 PERMISSION TO COPY DENIED HRS. 606 .13 ETC. 65 1 them. we certainly can ask for that . As well as, can -- I 2 mean the parties can go in jointly and ask for that docket 3 preference. 4 THE COURT: That' s why they looked at the 101-32 . 5 It talked about even pending appeal; right? 6 MR. THOMAS: Right. 7 THE COURT: The Court may issue an order of 8 possession. 9 MR. THOMAS : Yes. 10 THE COURT: The only question I had was the 11 amount that the county -- and that' s what I wanted. You 12 answered that. Because -- 13 MR. THOMAS: The Court may issue. First of all, " 14 it ' s the "may issue. " 15 THE COURT: May issue. 16 MR. THOMAS: It 's not "shall . " 17 THE COURT: And as far as the amount, because 18 there' s two lawsuits, certainly, you know the issue on 19 attorney' s fees from the first lawsuit. And you argue that 20 the deposit in the first lawsuit, if the Court awards any 21 attorney' s fees as damages, that deposit should be used to 22 pay, to satisfy -- 23 MR. THOMAS: Correct. 24 THE COURT: -- the damages. 25 MR. THOMAS: I apologize for not knowing. I STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13, ETC. 66 1 don' t recall whether they specified which case it was or l 2 simply tried to pull it over. 3 THE COURT: No. Well, they just -- I looked at 4 that. And they just combine it into one. Basically saying 5 that we posted X dollars in the first lawsuit where we got 6 the order of possession. Carry that over into this -- 7 MR. THOMAS: Right . 8 THE COURT: -- and issue an order of possession. 9 We 're paying the difference. 10 MR. THOMAS : And that may not be there to carry 11 over at this point if we prevail in the motion before the 12 Court today on the 101-27 . 13 THE COURT: Even if you prevail, can I not issue 14 the order of possession on the second lawsuit on the 15 condition that, county, you're not going to use the first 16 deposit as credit, so you'll have to post whatever? 17 MR. THOMAS: 101-32 gives the Court a fair 18 reading of that. It says it 's within the Court' s 19 discretion provided certain things happen. But also, 20 again, we note the Marks case said that the Circuit Court 21 also has the discretion to -- statutory power and inherent 22 power to control its interlocutory order of possession. 23 Again, realizing the realistic possibility that the ICA may 24 reverse Case Number Two and say they can't do it in this 25 case either. STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606.13 ETC. 67 -� 1 THE COURT: Or there might be a cross-appeal on l 2 Case Number One. 3 MR. THOMAS: It 's too late, your Honor. 4 THE COURT: The time ran? But aren't you arguing 5 as part of Case Number One -- 6 MR. THOMAS : No, not for -- 7 THE COURT: -- for abatement? 8 MR. THOMAS : Not for purposes of the notice of 9 appeal. They're still treated under the consolidation 10 order as separate civil numbers, and so each stands -- the 11 notices in each case were -- stand on their own with 12 respect to the time limits for the notice of appeal. 13 THE COURT: Okay. So you ready to tell me why I 14 should not issue an order of possession as far as the 15 likelihood of prevailing on appeal? 16 MR. THOMAS: Well, your Honor -- 17 THE COURT: The abatement issue? 18 MR. THOMAS : -- I mean, these are the same 19 arguments that we've pitched to you many times, and we 20 understand where the Court' s coming from. But for the 21 record here, first of all, it' s a jurisdictional question, 22 I think. It ' s not a matter that was -- that the Court 23 can -- the ICA can, say, well there' s a close call. We're 24 going to go this way. It ' s going to be a question of law. 25 THE COURT: So what happens, again, now, back to .r� STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 68 —,� 1 our old 101 -- 2 MR. THOMAS: Let ' s look at that hypothetical, 3 because -- 4 THE COURT: What happens if, okay, as you argue, 5 and the appellate court, the Supreme Court says, okay, 6 reversed, the county comes in, they file another action -- 7 MR. THOMAS : Well -- 8 THE COURT: -- so you're entitled to attorney's 9 fees again on the second lawsuit? 10 MR. THOMAS: For Number Two this time. 11 Because -- and that, really, that' s the way the statute is 12 designed to work. The county -- there' s nothing the Court 13 can do, for instance, to permanently enjoin the county from 14 ever taking property, this particular property, for any 15 public uses. 16 THE COURT: And does it also go against your 17 argument that basically the courts would give deference to 18 the legislative action, the public purpose? 19 MR. THOMAS: Again, we ' re back to -- we prevailed 20 on that issue -- 21 THE COURT: I 'm talking about the second lawsuit 22 now. 23 MR. THOMAS: -- in Case Number One. In Case 24 Number Two we didn' t convince your Honor of that. And 25 maybe we have to come -- who knows what the future will STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 69 1 hold at that point, whether at that point we all get 2 eminent domain fatigue and go home, or the county does it 3 right finally. But at that point the county certainly, I 4 would guess, would be entitled to keep banging away at it 5 until they get it right. But they can' t do 'em in 6 sequence; they can't do ' em at the same time. And if they 7 do 'em in order, they've got to pay every time they mess it 8 up. 9 So, okay, finally on the third case they get it 10 right or the fifth case or the tenth case they get it 11 right . They've got to keep paying those damages until they 12 do. Because the Court can't enjoin them permanently. And 13 unless the county corporation counsel stands before the 14 Court and promises to the Court that we will never ever 15 seek to take this property for any claimed public use, that 16 possibility is always there. 17 So does the Court have the power to essentially 18 permanently restrain the county from ever exercising its 19 eminent domain powers? Probably not . But who knows? 20 Could we be back here again if ICA reverses? Again, what I 21 started this off with: This is a game that the county 22 writes the rules on. We don't write the resolutions . We 23 don' t determine in their development agreements where they 24 want property. We just happen to have the bad fortune of 25 owning property that county and Oceanside covet, need, for 1 STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 70• 1 the case. And other than that, we've done nothing wrong, n 2 and we have almost literally no control over the process 3 whatsoever. 4 THE COURT: Okay. County? Actually, and the 5 record is clear that this was not a scheduled hearing. And 6 I make it clear. The Court looked at the statute, and I 7 don' t think anybody disagrees, the Court could have made 8 its decision without this input under 101-32. 9 MR. THOMAS: 101-32 . 10 THE COURT: Possession pending appeal. Not 11 unlike the other one, that possession pending the action, 12 101-28, upon motion; this the Court, on its own, provided 13 the county did certain things. Y 14 MR. THOMAS: Again, yes, your Honor. With 15 those -- with the Court ' s discretion under the Marks versus 16 Ackerman, realizing that -- 17 THE COURT: Court' s going to act on its own. 18 But the Court saw the opportunity to get input from learned 19 counsel and is taking this opportunity. 20 Mr. Kamelamela? 21 MR. KAMELAMELA: Your Honor, I think the Court 22 does have the discretion. And to answer one of the 23 questions that you had about the monies that was deposited 24 by the county, the intent of it was to make sure that for 25 the first judgment that there was enough to cover that, `f STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HR B. 606.13, ETC. 71 - 1 which I think we did. And then whatever was balance from 2 the additional amount that was put in would be used for the 3 second case. So that was the county' s intent when it had 4 decided to deposit over $217, 000 . 5 THE COURT: Mr. Meheula? 6 MR. MEHEULA: Your Honor, Oceanside has no 7 objection to the Court 's inclination. 8 THE COURT: Okay. Well -- 9 MR. THOMAS: Just two things, your Honor. 10 THE COURT: Yes. 11 MR. THOMAS: First of all, we noticed that -- the 12 reason we asked for some clarification on that is under 13 101-32, if, for instance, the Coupes were to go in -- and 14 we'd ask the Court to specifically release any blight 15 amounts because we don' t want the last sentence of 16 101-32 -- we want to make it very clear that we're not 17 abandoning any public-use defenses by getting this amount. 18 So you know, there 's no abandonment on that issue. 19 THE COURT: But in the meantime, the clerk hold 20 the monies, unless your client demands it, which amounts to 21 abandonment, if you look at that . Is that correct? 22 MR. KUPCHAK: The appeal period has run on the 23 first case, so there' s no reason that that should be held 24 up from us. 25 MR. THOMAS: Right. Case One has become final . STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.*3 ETC. 72 �. 1 I mean, there' s no appeal at this point from that because 2 the thirty days is pau, and nobody' s appealed from it . So 3 it' s a final, unappealable, unassailable judgment at this 4 point. 5 THE COURT: So why don't you make a written 6 request on that? We' ll have a nonhearing motion, and have 7 the other side. So save your fees and just let me hear the 8 position of the parties. 9 MR. KUPCHAK: I have another question. 10 THE COURT: Yes. 11 MR. KUPCHAK: If you're inclined to grant 12 possession, our makai piece is then non-accessible. How do 13 I get to these one hundred eighty-eight acres that this cut - 14 off? And so I think that this is not a simple issue. 15 THE COURT: What I don't understand, that if 16 the -- how is your client getting access now? 17 MR. KUPCHAK: Right now we own the whole thing. 18 MR. THOMAS: Right. 19 THE COURT: So you're saying if the Court grants 20 possession, your client cannot get to certain areas of his 21 land? 22 MR. KUPCHAK: That one hundred eighty-eight 23 acres is southern, the makai portion of it. There' s no 24 access to it. 25 THE COURT: So when you say -- so the land in STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIID HRS. 606.13, ETC. 73 1 question is going to prohibit access, if it 's granted as 2 order of possession? 3 MR. KUPCHAK: That 's what our concern is . I need 4 to have an access. There are alternative ways . There' s a 5 side road in. Remember, Road C comes through Hokulia. 6 It ' s supposed to be -- under the zoning ordinance, it ' s 7 available to us for access. But I 'd hate to have to go all 8 the way around to get to our piece that ' s on the back side. 9 THE COURT: Well, isn' t there going to be a time 10 where your client is going to have to address that? I can 11 understand why you' re arguing it now. You say, well, we 12 don't have access . But in the event that -- 13 MR. KUPCHAK: We didn' t know this was coming up. 14 THE COURT: In the event that it ' s affirmed by 15 the appellate court -- but I wouldn't think that -- 16 otherwise, if not, I wouldn't have ruled the way it is. Of 17 course, I understand this disagreements in the first 18 lawsuit by other parties too. So how would you address it 19 if in the end this matter was resolved in favor of the 20 county? 21 MR. KUPCHAK: We didn't come prepared today to 22 address this issue, so I mean it' s -- I didn't know that 23 was coming up. 24 THE COURT: I was going to issue an order of 25 possession, but I wanted to know what effect the appeal had STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 74 -.� 1 and the amount of the damages. Because I saw this, as far, l 2 you know, looking at the 101-32 and looking at the damages, 3 how it's going to be paid, that it should be paid out of 4 the fund that ' s deposited. And that ' s what -- you know, I 5 felt I would be more informed having this discussion. 6 But I think, Mr. Kupchak, you can seek other 7 relief. I think you would probably bring that up had the 8 Court issued an order of possession anyway. 9 MR. KUPCHAK: Well, I had anticipated there might 10 be some hearing, and we would have an opportunity to 11 address it. 12 THE COURT: Well, so -- 13 MR. THOMAS : Unless your Honor has any questions. 14 THE COURT: The Court thanks Counsel for the 15 input on 101-32. And although none of the parties 16 requested this, the Court, under 101-32, may put the 17 plaintiff in possession. And certainly the Court would put 18 the plaintiff in possession provided that the plaintiff 19 deposit the necessary amount, keeping the cases separate. 20 Meaning whatever is posted for the first lawsuit will not 21 be used to compensate in the second lawsuit . 22 MR. KUPCHAK: Would you also add what the 23 reasonable access to the makai piece will be afforded to 24 us? 25 THE COURT: Well, what does that mean? STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 75 1 MR. KUPCHAK: Right now, I 'm concerned about this 2 issue. 3 THE COURT: Okay. 4 MR. KUPCHAK: It ' s not title that 's going over. 5 THE COURT: No. 6 MR. KUPCHAK: It' s possession. And it can be 7 conditioned on such. things. Those things can be worked out 8 between the parties, I suspect, or they can come back here. 9 As long as it 's understood that we continue, during this 10 period of time, to have reasonable access to our property, 11 it would help. 12 THE COURT: Let me, first, as far as the 13 conditions for the order of possession on the 101-32, 14 Mr. Kamelamela, are you clear? And so that it ' s clear, you 15 prepare the order of possession and the amount to cover 16 November 30th. So you make the deposit, prorate it to 17 November 30th, and the order of possession will be 18 effective November 30th. 19 In the meantime, on this access issue, it can 20 hopefully be addressed too. So you got it? Is that too 21 much time? 22 MR. KAMELAMELA: Your Honor, I 'm puzzled -- 23 THE COURT: I know you have to go to the county 24 to get the monies. 25 MR. KAMELAMELA: Well, that' s why we had STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED, HRS. 606.13 ETC. 76 -- 1 deposited -- 2 THE COURT: Up to October 30th. 3 MR. KAMELAMELA: Right. 31st. 4 THE COURT: But your client did not have 5 possession yet . 6 MR. KAMELAMELA: Okay. So I need then one more 7 month. 8 THE COURT: So you need -- yes. Your client 9 will, according to the order of possession, and I gave you 10 advance notice, to November 30th, so Friday. You can 11 submit, prorate it until November 30th the just 12 compensation, the blight of summons, November 30th. And 13 prepare the order with it so I can sign it and file it 14 before November, effective November 30th, so there' s no -- 15 then in the meantime, given that time, hopefully that the 16 parties can address the access. 17 But so it' s clear, it has to be two separate 18 cases as far as the deposit that you made the first time 19 and the second time. And to make it clear, when you file 20 your certificate of deposit or the deposit statement, break 21 it down so we can see. 22 MR. KAMELAMELA: Okay. 23 THE COURT: The Court was going to do that, but 24 I leave it to Counsel as to -- for the certificate of 25 deposit, how the funds deposited are allocated between the STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 PERMISSION TO COPY DENIED HRS. 606.13 ETC. 77 1 two cases. So November -- hopefully you' ll file it way 2 ahead of November 30th. 3 MR. KAMELAMELA: Yeah. I got to figure out the 4 amounts. Thank you, Judge. 5 THE COURT: Okay. And I ' ll take the damages 6 issue under submission. Thank you. 7 MR. KUPCHAK: Thank you, your Honor. 8 THE COURT: Court ' s in recess . 9 10 --000-- 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -' STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FAUT, CSR 418 �W PERMISSION TO COPY DENIED HRS. 606.13 ETC. 78 1 CERTIFICATE 2 3 4 STATE OF HAWAII } } ss. 5 COUNTY OF HAWAII } 6 7 8 I, KURT T. FAUT, CSR 418, an Official Court 9 Reporter for the Third Circuit Court, State of Hawaii, 10 hereby certify that the foregoing comprises a full, true, 11 and correct transcription of my stenographic notes taken 12 from video disc in the above-entitled cause. 13 14 15 Dated this 7th day of December, 2007 . 16 17 18 19 KURT T. FAUT, CSR #418 20 21 22 23 24 25 STATE OF HAWAII OFFICIAL COURT REPORTER KURT T. FART, CSR 418 No. 28822 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII COUNTY OF HAWAII, a municipal ) CIVIL NO. 05-1-015K corporation, ) (Kona) (Condemnation) Plaintiff-Appellee, ) APPEAL FROM FIRST AMENDED FINAL JUDGMENT VS. ) (filed September 27, 2007) C&J COUPE FAMILY LIMITED ) THIRD CIRCUIT COURT PARTNERSHIP, ) Honorable Ronald Ibarra,Judge Defendants-Appellants, ) and ) ROBERT NIGEL RICHARDS, TRUSTEE ) UNDER THE MARILYN SUE WILSON ) TRUST; MILES HUGH WILSON, et al., ) Defendants. ) COUNTY OF HAWAI`l, a municipal ) CIVIL NO. 00-1-181K corporation, ) (Kona) (Condemnation) Plaintiff-Appellee, ) APPEAL FROM THE DENIAL OF THE POST-JUDGMENT MOTION OF VS. ) DEFENDANT C&J COUPE FAMILY LIMITED PARTNERSHIP FOR ROBERT NIGEL RICHARDS, TRUSTEE ) STATUTORY DAMAGES PURSUANT UNDER THE MARILYN SUE WILSON ) TO HAW. REV. STAT. § 101-27(FILED TRUST; C&J COUPE FAMILY LIMITED ) OCT. 11, 2007) PARTNERSHIP; MILES HUGH WILSON, ) et al., ) THIRD CIRCUIT COURT Defendants-Appellants. ) Honorable Ronald Ibarra, Judge STATEMENT OF RELATED CASES Plaintiff-Appellee County of Hawaii is unaware of any related cases known to be pending in the Hawaii Courts or agencies. No. 28822 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII COUNTY OF HAWAI`l, a municipal ) CIVIL NO. 05-1-015K corporation, ) (Kona) (Condemnation) Plaintiff-Appellee, ) APPEAL FROM FIRST AMENDED FINAL JUDGMENT VS. ) (filed September 27, 2007) C&J COUPE FAMILY LIMITED ) THIRD CIRCUIT COURT PARTNERSHIP, ) Honorable Ronald Ibarra, Judge Defendants-Appellants, ) and ) ROBERT NIGEL RICHARDS, TRUSTEE ) UNDER THE MARILYN SUE WILSON ) TRUST; MILES HUGH WILSON, et al., ) Defendants. ) COUNTY OF HAWAII, a municipal ) CIVIL NO. 00-1-181K corporation, ) (Kona) (Condemnation) Plaintiff-Appellee, ) APPEAL FROM THE DENIAL OF THE POST-JUDGMENT MOTION OF VS. ) DEFENDANT C&J COUPE FAMILY LIMITED PARTNERSHIP FOR ROBERT NIGEL RICHARDS, TRUSTEE ) STATUTORY DAMAGES PURSUANT UNDER THE MARILYN SUE WILSON ) TO HAW. REV. STAT. § 101-27 (FILED TRUST; C&J COUPE FAMILY LIMITED ) OCT. 11, 2007) PARTNERSHIP; MILES HUGH WILSON, ) et al., ) THIRD CIRCUIT COURT Defendants-Appellants. ) Honorable Ronald Ibarra, Judge CERTIFICATE OF SERVICE I HEREBY CERTIFY that two filed copies of the foregoing document was duly served upon the following,postage prepaid, on May 16, 2008: to KENNETH R. KUPCHAK, ESQ. ROBERT H. THOMAS, ESQ. MARK M. MURAKAMI, ESQ. Damon Key Leong Kupchak Hastert 1600 Pauahi Tower 1001 Bishop Street Honolulu, Hawaii 96813 Attorneys for Defendants-Appellant C & J COUPE FAMILY LIMITED PARTNERSHIP WILLIAM MEHEULA, ESQ. Winer Meheula & Devens, LLP 707 Richards Street, Penthouse 1 The Ocean View Center Honolulu, Hawaii 96813 Attorneys for Third-Party Defendant 1250 OCEANSIDE PARTNERS aka HOKULI`A DATED: Hilo, Hawaii, May 16, 2008. JOSEPH K. KAMELAMELA V4 Deputy Corporation Counsel County of Hawaii 2