HomeMy WebLinkAbout2009-02-02_County_of_Hawaii_v_Coupe_Family_and_Robert_Nigel_Richards_-_Memorandum_in_Opposition_to_Defendant-Appellant's_Request_for_Statutory_Damages FILED
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No. 28822
JAN 33 Ph 2: 08 �
IN THE SUPREME COURT OF THE STATE OF HAWAII
COUNTY OF HAWAII, a municipal ) CIVIL NO. 05-1-015 "�Gf. CLERK EX OFFlCIp
RTHIfc� C:;1CUII COl1RT
corporation, ) (Kona) (Condemnation) S-1�:' ( «Aur i
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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 i
Defendant-Appellant, )
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and ) �'
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ROBERT NIGEL RICHARDS, TRUSTEE
UNDER THE MARILYN SUE WILSON
TRUST; MILES HUGH WILSON, et al., ) f��f c __x O
Defendants.
COUNTY OF HAWAPI, 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 MEMORANDUM IN OPPOSITION
TO DEFENDANT-APPELLANT'S REQUEST FOR STATUTORY DAMAGES
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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
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IVAN M. TORIGOE 4327
KATHERINE A. GARSON 5748
Deputies Corporation Counsel
County of Hawaii
Hilo Lagoon Centre
101 Aupuni Street, Suite 325 i
Hilo, Hawaii 96720
Telephone: 961-8251
Facsimile: 961-8622
Email:jkamela @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 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, } 4
Honorable Ronald Ibarra, Judge
Defendant-Appellant, )
}
and }
ROBERT NIGEL RICHARDS, TRUSTEE ) F
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
i TRUST; C&J COUPE FAMILY LIMITED ) TO HAW. REV. STAT. § 101-27 (FILED
4 PARTNERSHIP; MILES HUGH WILSON, ) OCT. 11, 2007)
et al., )
THIRD CIRCUIT COURT
Defendants-Appellants. )
Honorable Ronald Ibarra, Judge
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PLAINTIFF-APPELLEE COUNTY OF HAWAI`I'S MEMORANDUM IN OPPOSITION
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TO DEFENDANT-APPELLANT'S REQUEST FOR STATUTORY DAMAGES
Plaintiff-Appellee County of Hawaii ("County"), by and through its undersigned
counsel, hereby opposes Defendant-Appellant C&J Coupe Family Limited Partnership's
("Coupe") Request for Statutory Damages as follows: E
I. INTRODUCTION
On February 8, 2008, Coupe fled its Notice of Appeal in Civil No. 00-1-181K of the
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denial of the Motion for Statutory Damages on the grounds that the trial court is deemed to have E
denied the motion by not Wiling on it within 90 days pursuant to Rule 4(a)(3), Hawaii Rules of
Appellate Procedure("HRAP"). (Record on Appeal, Volume 43, Document 00542). On
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December 24, 2008, this Court filed its Opinion which held that Coupe is entitled to damages
under Hawaii Revised Statutes ("HRS") § 101-27, including reasonable attorneys' fees. '
See page 14 of the Opinion.
Pursuant to Rule 39, HRAP, and HRS § 101-27, Coupe seeks an award of attorney's fees
and costs in the following amounts: $45,383.50 for 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.
"Generally, under the `American Rule,' each party is responsible for paying his or her
own litigation expenses." DFS Group L.P. v. Paiea Properties, 110 Hawaii 217, 219, 131 P.3d
500, 502 (2006) (citations and internal quotation marks omitted). Consequently, "[n]o attorneys'
fees may be awarded as damages or costs unless as provided by statute, stipulation, or
agreement." Food Pantry, Ltd. v. Waikiki Business Plaza, Inc., 58 Haw. 606, 618, 575 P.2d 869,
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878 (1978) (citations omitted); see, also, Chun v. Board of Trustees of Employees'Retirement
Sys., 92 Hawaii 432, 439, 992 P. 2d 127, 134 (2000).
Rule 39(c) and (d)(1), HRAP, in pertinent parts, provide that:
(c) Costs defined. Costs in the appellate courts are defined as: (1)the cost of the
original and one copy of the reporter's transcripts if necessary for the
determination of the appeal; (2) the premiums paid for supersedeas bonds or other `
bonds to preserve rights pending appeal; (3) the fee for filing the appeal; (4)the
cost of printing or otherwise producing necessary copies of briefs and appendices,
provided that copying costs shall not exceed 20¢ per page; (5) necessary postage,
cost of facsimiles, intrastate travel, long distance telephone charges; and (5) any
other costs authorized by statute or rule.
(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[.]
And HRS § 101-27 provides that Coupe may recover costs of court, reasonable
attorneys' fees and other reasonable expenses.
County specifically opposes Coupe's Request for Statutory Damages as to the following:
1- No Attorneys' Fees for unsuccessful claims;
2. Attorneys' fees and costs as itemized in the January 24, 2008 bill should be
denied;
3. Costs for legal research should be disallowed;
4. Messenger Fees, general excise tax and interest are not appropriate court costs;
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5. Photocopying costs are excessive.
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II. DISCUSSION
A. No Attorneys' Fees For Unsuccessful Claims.
Coupe has the burden of establishing that they are entitled to an award of reasonable
attorney's fees. Hamada v. Wescott, 102 Hawaii 210, 217, 74 P.3d 33, 40 (2003) (given the
American Rule, party seeking attorneys' fees has the burden of establishing that applicable
statute expressly applies to allow an award of reasonable attorneys' fees).
Porter v. Hu, 116 Hawai'i 42, 67-68, 169 P.3d 994, 1019-20 (App.2007) held as follows:
In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the
United States Supreme Court addressed the issue of`whether a partially
prevailing plaintiff may recover an attorney's fee for legal services on
unsuccessful claims.' Id. at 426, 103 S.Ct. 1933.According to Hensley, the trial j
court must determine (1) whether or not unsuccessful claims are related to
successful claims, see id at 434, 103 S.C4 1933, and(2) whether or not `the
plaintiff achieved a level of success that makes the hours reasonably expended a
satisfactory basis for making a fee award 1.]'Id Unsuccessful claims are
deemed unrelated if they are `distinctly different claims for relief that are based
on different facts and legal theories.'Id Thus, even where the claims are
brought against the same defendants, counsel's work on one claim may be
unrelated to his or her work on another claim,'id at 434-3S, 103 S.0. 1933,
work on such an unsuccessful claim cannot be deemed to have been expended
in pursuit of the ultimate result achieved,'id at 43S, 103 S C. 1933 (internal
quotation marks and citations omitted), and `the hours spent on the
unsuccessful claim should be excluded in considering the amount of a
reasonable fee.'Id at 440, 103 S.Ct. 1933.
On the other hand, if`the plaintiffs claims for relief involve a common core of
facts or are based on related legal theories and much of counsel's time is devoted
generally to the litigation as a whole, making it difficult to divide the hours
expended on a claim-by-claim basis,' id. at 435, 103 S.Ct. 1933, `such a lawsuit
i cannot be viewed as a series of discrete claims.' Id. In that situation, 'a plaintiff
who has won substantial relief should not have his or her attorney's fee reduced
simply because the trial court did not adopt each contention raised.' Id. at 440,
II 103 S.Ct. 1933.
As to the required level of success, `where a plaintiff has obtained excellent
results, his or her attorney should recover a fully compensatory fee' because
'litigants in good faith may raise alternative legal grounds for a desired outcome,
and the court's rejection of or failure to reach certain grounds is not a sufficient
reason for reducing a fee.' Id. at 435, 103 S.Ct. 1933. `If, on the other hand, a
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plaintiff has achieved only partial or limited success, the product of hours
reasonably expended on the litigation as a whole times a reasonable hourly rate
may be an excessive amount even where the plaintiff's claims were interrelated,
nonfrivolous, and raised in good faith.'
(emphasis added).
In addition, in Schefke v. Reliable Collection Agency, Ltd., 96 Hawaii 408, 44445,
32 P.3d 52, 88-89 (2001), the Hawaii Supreme Court remanded and directed the trial court to
engage in a Hensley analysis to determine whether it was reasonable to award attorney's fees for
the entire time spent on the case, noting that time spent on unsuccessful claims unrelated to the
plaintiffs successful claims could not be part of any award of" `reasonable attorney's fees' under
Hawaii fee-shifting statutes."Schefke, 96 Hawaii at 445, 32 P.3d at 89. The court directed that
the trial court "consider whether Plaintiffs successful and unsuccessful claims `involved a `
common core of facts or were based on related legal theories,' Hensley, 461 U.S. at 435,
103 S.Ct. 1933[.]"Schefke, 96 Hawaii at 445, 32 P.3d at 89 (brackets omitted).
In this case, Coupe sought appeal on three points and prevailed on two out of the three.
However, the abatement point that Coupe did not prevail on was a point that Coupe discussed
extensively in its briefs. Moreover, the abatement issue is totally unrelated and do not involve
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the same common core of facts or legal theories to the HRS § 101-27 statutory damages issue or
the pretext public purpose issue. Therefore, all of the attorneys' fees expended on the abatement
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issue should be excluded. In addition, those billings that are not clear enough to identify what
issue they relate to should be excluded because Coupe has the burden of proving any entitlement
to reimbursement for attorneys' fees and cost.
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B. Attorneys' Fees and Costs For January 24,2008 Bill Should Be Denied.
Upon review of Exhibit"A" of Coupe's Request for Statutory Damages, the first three
pages, for the bill dated January 24, 2008, 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. For example, it is clear that the following descriptions for professional
services should be disallowed because there is no evidence that those services were done solely
for the instant appeal:
1. Attorney Kudo-Chock billed 7.5 hours and $1,087.50 in connection with a Motion
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to Disburse Deposit. See entries 12/05107, 12/07/07 and 12/10/07.
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2. Attorney Kupchak billed 1 hour and $335.00 to review the Motion for release of j
deposit. See entry 12/07/07.
3. Attorney Murakami billed 3.9 hours and $858.00 for"develop issues and strategy
for applying for funds deposited with court." See entry 12/10/07.
So, all of the fees ($11,999.00) and costs ($910.87) from the January 24, 2008 bill should be
denied because the professional services provided involved the proceedings that was still before
the trial judge.
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C. Costs for Computer Legal Research Should Be Denied.
Coupe seeks costs for computer research in the sum of$2,115.61. See Exhibits "B.4"
and "B.5" of Coupe's Request for Statutory Damages.
Neither Rule 39, HRAP, nor HRS § 101-27 specifically allow for costs associated with
legal research searches on-line through a computerized service, such as, Lexis Nexis and
Westlaw.
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In Bjornen v. State Farm Fire and Cas. Co., 81 Hawaii 105, 109, 912 P.2d 602, 606
(App. 1996), the Intermediate Court of Appeals concluded that disbursements for computerized
legal research such as Westlaw are a component of attorney fees and are not taxable. Such legal
research costs "are properly reflected as part of the law firm's overhead and, as such, are a factor
to be included in the setting of attorneys fees as opposed to ordinary costs." Id., 81 Hawaii at
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107, 912 P.2d at 604.
This Court has adopted the position that "disbursements for computerized legal research
. . . are a component of attorney fees and are not taxable costs." DFS Group L.P. v. Paiea j
Properties, 110 Hawaii at 224, 131 P.3d at 507.
Being that the costs for legal research is part of the law firm's overhead costs, the request
for$2,115.61 as legal research services costs should be denied as not taxable.
D. Messenger Fees, General Excise Tag and Interest Should Be Denied.
Coupe further seeks to recover$60.00 for messenger fees. See page 4 of Exhibit"B.1"
of Coupe's Request for Statutory Damages. Absent extraordinary circumstances, the cost of
"messenger fees for the routine task of delivering a party's documents to court is categorically
outside the concept of costs." Hawai`i Ventures, LLC v. Dtaka, Inc., 116 Hawaii 465, 479, 173
P.3d 1122, 1136 (2007) (citation and internal quotation marks omitted). Since Coupe has failed
to establish any extraordinary circumstances in using a messenger, this Court should deny
Coupe's request for messenger fees.
Coupe's request for the recovery of excise tax of$2,098.07 should also be denied. Coupe
does not cite any statutory or case authority for an award of excise tax.
Neither has Coupe cited any statutory nor case authority for an award of interest of
$1,900.35.• Coupe simply stated that as a form of damage, pursuant to HRS § 101-27,
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prejudgment interest is warranted; however, HRS § 101-27 does not specifically allow
prejudgment interest. Hence,the award of interest of$1,900.35 should also be denied.
E. Photocopying Costs Are Excessive.
Coupe seeks photocopying costs in the total amount of$2,369.00. See Exhibit "B.1"of
Coupe's Request for Statutory Damages, pages 1 and 2. At 20 cents per page,Coupe had copied
11,845 pages, with 6,802 pages at a total cost of$1,160.40 being an itemized charge on page 2 of
the March 24, 2008, bill, see Exhibit "A"of Coupe's Request for Statutory Damages. In any
event,this is a lot of sheets of paper, seemingly out of line for this appeal.
As indicated earlier, Rule 39(c)(4), HRAP, allows recovery for "the cost of printing or
otherwise producing necessary copies of briefs and appendices,provided that copying costs shall
not exceed 20¢ per page." It is doubtful that the 11,845 pages or 6,802 pages would be the cost
of printing the necessary copies of briefs and appendices. Because Coupe has failed to establish
the reasonableness of the appropriate taxable costs for photocopying costs, Coupe's request for
such costs should be denied.
IIi. CONCLUSION
For the reasons stated above, we respectfully request this Court to deny Coupe's Request
for Statutory Damages for the following:
1. No Attorneys' fees for unsuccessful claims;
2. Attorneys' fees of$11,999.00 and costs of$910.87 that are itemized in the
January 24, 2008, bill;
3. Costs for legal research totaling $2,115.61;
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4. Messenger Fees of$60.00, general excise tax of$2,098.07 and interest of
$1,900.35; and
5. Photocopying costs of$2,369.00.
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Dated: Hilo, Hawaii, January 30, 2009.
COUNTY OF HAWAII,
Plaintiff-Appellee
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JOSEPH K. KAMELAMELA
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 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
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that two copies of the foregoing document was duly served upon
the following, postage prepaid, on January 30, 2009:
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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 I
The Ocean View Center
Honolulu, Hawaii 96813
Attorneys for Third-Party Defendant
1250 OCEANSIDE PARTNERS aka HOKULI`A
DATED: Hilo, Hawaii, January 30, 2009.
JOSEPH K. KAMELAMELA
Deputy Corporation Counsel
County of Hawaii
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