HomeMy WebLinkAbout2009-03-02_County_of_Hawaii_v._Coupe_Family_and_Robert_Nigel_Richards_Responses_to_Objections_Re_Request_for_Statutory_Damages 4
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No. 28822
IN THE SUPREME COURT OF THE STATE OF HAWAII
COUNTY OF HAWAI`1, 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 K
PARTNERSHIP, )
} Honorable Ronald Ibarra, Judge-
Defendant-Appellant,
and
ROBERT NIGEL RICHARDS, TRUSTEE
UNDER THE MARILYN SUE WILSON
TRUST; MILES HUGH WILSON, et al., ) X30
Defendants. ) w
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 Ibarra, Judge
PLAINTIFF-APPELLEE COUNTY OF HAWAI`I'S RESPONSE TO DEFENDANT-
APPELLANT'S RESPONSES TO OBJECTIONS RE: -RE12UEST FOR STATUTORY
DAMAGES
CERTIFICATE OF SERVICE
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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:}kamela @co.hawaii.hi.us
Attorneys for Plaintiff-Appellee County of Hawaii
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No. 28822
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
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
Defendant-Appellant, )
}
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. 00-1-181 K
(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 Ibarra, Judge
PLAINTIFF-APPELLEE COUNTY OF HAWAI`PS RESPONSE TO DEFENDANT-
APPELLANT'S RESPONSES TO OBJECTIONS RE: REQUEST FOR STATUTORY
DAMAGES
Pursuant to the Order of this Court filed on February 9, 2009, Plaintiff-Appellee County
of Hawaii ("County"), by and through its undersigned counsel, hereby responds to Defendant-
Appellant C&J Coupe Family Limited Partnership's ("Coupe") Responses to Objections Re:
Request for Statutory Damages as follows:
I. INTRODUCTION
On February 19, 2008, Coupe filed its Responses to Objections regarding Request for
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Statutory Damages ("Responses"). In its Responses, allegedly in accordance with Rule 39,
HRAP, and HRS § 101-27, Coupe seeks an additional award of attorneys' fees and costs of
$13,088.60 for filing its Responses, and less than $2,375.77 for attorneys' fees and taxes from its
initial request of$55,157.51 that included attorneys' fees, $5,775.59 for total costs (including
messenger fees of$60.00, legal research costs of$2,115.61, and $2,369.00 for copying costs at
20¢ per page), $2,098.07 for general excise tax, and $1,900.35 for interest on the fees amount.
HRS§ 10 1-27 allows Coupe to recover damages from the County that include its "costs
of court, a reasonable amount to cover attorney's fees paid . . . . and other reasonable expenses."
In its Responses, Coupe asserts essentially that almost anything it paid, whether reasonable or
not, is its damage.
County opposes Coupe's Request for Statutory Damages because it fails to satisfy the
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requirements of HRS § 101-27 and Rule 39, HRAP, as to the following:
1. Request for additional fees and costs should be denied;
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2. No Attorneys' Fees for unsuccessful claims;
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3. Attorneys' fees and costs as itemized in the January 24, 2008, bill should be
denied;
4. Costs for legal research, messenger fees, and photocopying, and interest should be
disallowed; and
5. If this Court allows general excise tax recovery, the amount being requested in
this matter should be substantially reduced.
H. DISCUSSION
A, Additional Re nest for Attorneys' Fees and Costs Should Be Denied.
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In its request for additional request for attorneys' fees and costs for filing its Responses,
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Coupe has failed to comply with Rule 39(d)(1), HRAP. Rule 39(d)(1), HRAP, in pertinent parts,
provide that:
(d)Request for fees and costs; objections.
(1) A party who desires an award of attorney's fees and costs shall request them
by submitting an itemized and verified bill of fees and costs, together with a
statement of authority for each category of items and, where appropriate, copies
of invoices, bills, vouchers, and receipts.
The County did not receive any itemized and verified bill of fees and costs for Coupe's request
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for attorneys' fees and costs for filing its Responses. Without the itemized and verified bill of
fees and costs, the County is unable to reasonably provide objections to Coupe's additional
requests for Statutory Damages. Still, the burden is on attorney seeking fees to lay the
appropriate foundation. See, e.g., Sharp v. Hui Wahine, 49 Haw. 241, 661 P.2d 242 (1966).
On page 4 of the Responses, there is a chart indicating the amount of timespent by e ac h
attorney. But there is no description of the professional services that were provided. The
attorneys for Coupe have already admitted that they should not have invoiced $2,280.50 (plus.
tax) in their initial request. Responses, at 5 and 9. So, the County is entitled to review any
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verified bill to determine the appropriateness of Coupe's requests for additional attorneys' fees
and costs. Hence, Coupe's request for additional fees and costs should be denied for failing to
comply with 39(d)(1), HRAP.
B. No Attorneys' Fees For Unsuccessful Claims.
Coupe asserts that it only seeks damages for the appeal of Condemnation 1. However,
upon review of all of the invoices, Coupe has sought attorneys' fees for matters not related to the
appeal of Condemnation 1. The invoices, Exhibit"A" of Coupe's Request for Statutory
Damages filed January 20, 2009, indicate at least the following description of work that should
not be allowed:
BILL DATE Date of Attorney Description Hours Reason to
Service Exclude
February 20, 1/14/2008 MMM Review of 0.80 Matsuda v.
2008 Ninth Circuit Honolulu had
Case no relevance
on issue of
1/14/2008 RHT Review 0.60 damages
Matsuda case
June 25, 2008 5/23/2008 RHT Review 0.30 Matsuda v.
Matsuda cert Honolulu and
petition and abatement
opposition have no
relevance on
5/26/2008 CHKC Review 3.00 issue of
County's damages
Brief,
research on
abatement
July 23, 2008 6/17/2008 RHT County's 0.10 Case
Application to transferred,
Transfer case County
to Hawaii prevailed on
Supreme its
Court Application
to Transfer
6/234/2008 RHT Memo in 0.80 case
Opposition to
Transfer
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October 21, 9/3/2008 MMM Develop and 0.20 Consolidation
2008 Strengthen is not a
Arguments re damage issue
consolidation
and damages
9/30/2008 MMM Abatement 0.70 County
Issues prevailed on
Abatement
RHT Research for 1.00 Issue
Abatement
November 14, 10/1/2008 MMM Research and 0.40 County
2008 Review of prevailed on
I Record of Abatement
Appeal Issue
regarding
Abatement
Furthermore, for professional services provided for Supplementing the Record on
Appeal, and for preparing and arguing the Oral Argument, Coupe was not clear as to what issue
the services were related solely to the issue of damages. In billings dated May 22, June 25,
July 23, August 21, and October 21, a substantial amount of time was spent in supplementing the
Record on Appeal, and there is no clear indication that that time was solely spent for the
damages issue. And in billings dated October 21 and November 14, 2008, a substantial amount j
of time by two attorneys was recorded for the preparation and presentation of oral argument
without identifying the specific amount of time spent for the damage issue; for example,
charging 2.50 hours for a one-half hour argument for the damages issue before this Court on
October 16, 2009, should be unreasonable. Hence, these billings that is not clear enough to '
identify what issue they relate to should be excluded because Coupe has the burden of proving
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any entitlement to reimbursement for attorneys' fees and cost.
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C. Attorneys' Fees and Costs For January 24 2008 Bill Should Be Denied.
Coupe never provides a clear explanation and rationale for obtaining all of the attorneys'
fees of costs related to the bill dated January 24, 2008, where the description of the professional
services rendered involved only those services provided prior to the filing of the Notice of
Appeal, which is,prior to February 8, 2008. It is more appropriate for Coupe to seek such fees
and costs with the trial court.
D. Only Reasonable Costs Allowed And Interest Not Allowed.
Coupe asserts that it can seek all costs for computer research, messenger fees and
photocopying as damages. However, HRS § 10 1-27 clearly provides recovery as damages to
include"costs of court, a reasonable amount to cover attorney's fees paid . . . , and other
reasonable expenses." HRS § 101-27 does not provide that Coupe can recover as damages all
costs or expenses. It would be unreasonable, for example, for Coupe to demand the costs for the
photocopying without identifying the reasonableness of the cost; it is not good enough to claim
that since Coupe paid for those costs, it is recoverable as damages.
Coupe still has the burden to establish the appropriate costs of court and reasonable
expenses that is permitted under HRS § 101-27. Because Coupe has failed to establish the
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reasonableness of its request for computer research, messenger fees and photocopying, those
costs should not be allowed.
Lastly, Coupe has not cited any statutory nor case authority for an award of interest in
this complex and novel appeal to commence at the date of each invoice. Clearly, HRS § 101-27 `
does not specifically allow prejudgment interest. Instead, Coupe relies on HRS § 636-16 and
cites Tri-S Corp. v. Western World Ins. Co., 1 10 Haw. 473, 498, 13 S P.3d 82, 107 (2006) (a
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breach of contract case) for the proposition that this Court has authority to award prejudgment
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interest. But both HRS § 636-16 and the ruling in the Tri-S Corp. case are inapplicable in this
instant condemnation case. HRS § 636-16 allows prejudgment interest in civil cases "provided
that the earliest commencement date in cases arising in tort, may be the date when the injury first
occurred and in cases arising by breach of contract, it may be the date when the breach first
occurred." This present condemnation case could not reasonably be considered a tort or contract
case; and, hence, prejudgment interest cannot be based on HRS § 636-16.
E. General Excise Tax If Any, Should Be Less Than Amounts Requested
If this Court allows general excise tax, Coupe's request for the recovery of excise tax of
$2,098.07 (initial Request) plus $515.34 (Additional Request) should be substantially reduced
because of Coupe's failure to comply with Rule 39, HRAP, failure to segregate from its billings
all matters not related to the damages issue, failure to establish that the attorneys' fees and costs
in the January 24, 2008 bill was related to the proceedings on appeal, and failure to demonstrate
the reasonable costs for legal research, messenger fees and photocopying. See DFS Group
L.P. v. Paiea Properties, 110 Hawaii 217, 221-23, 131 P.3d 500, 504-06 (2006) (Excise taxes
allowed in an assumpsit case).
III. CONCLUSION
For the reasons stated above, we respectfully request this Court to deny Coupe's Request
for Statutory Damages for the following:
1. Request for additional fees and costs;
2. Attorneys' Fees for unsuccessful claims;
3. Attorneys' fees and costs as itemized in the January 24, 2008, bill;
4. Costs for legal research, messenger fees, and photocopying, and interest; and
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5. If this Court allows general excise tax recovery, the amount being requested in
this matter should be substantially reduced.
Dated: Hilo, Hawaii, March 2, 2009.
j COUNTY OF HAWAII,
Plaintiff-A pellee
I By
.JOSEPH K. KAMELAMELA
MICHAEL J. UDOVIC
Deputy Corporation Counsel
Its Attorney
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No. 28822
IN THE SUPREME COURT 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
Defendant-Appellant, }
}
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
}
1 CERTIFICATE OF SERVICE
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I HEREBY CERTIFY that a file-stamped copy of the foregoing document was duly
served upon the following via electronic mail and by U.S. mail, postage prepaid, on March 2,
2009:
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
krknhawaiila er.com
mmm hawaiilaw er.com
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
meheulagpacificlaw.com
Attorneys for Third-Party Defendant
1250 OCEANSIDE PARTNERS aka HOKULI`A
DATED: Hilo, Hawaii, March 2, 2009.
r '
JOSEPH LK. KA ELAMELA
MICHAEL J. UDOVIC
Deputy Corporation Counsel
County of Hawaii
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