HomeMy WebLinkAbout2008-06-13_County_of_Hawaii_v._Coupe_Family_and_Robert_Nigel_Richards_-_Application_for_Transfer_to_the_Supreme_Court No. 28822 j
IN THE SUPREME COURT OF THE STATE OF HAW 13 PH 2- 03
COUNTY OF HAWAII, a municipal ) CIVIL NO. 055.1-015Kj 1'4G' �!
corporation, ) (Kona) (Condemn fo'jo Cl r,;l O RT X OFFICIO
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, ) ,�
m o
and ) ;
ROBERT NIGEL RICHARDS, TRUSTEE ) T 'a CT, r
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
PETITIONER/PLAINTIFF-APPELLEE COUNTY OF HAWAI`I'S
APPLICATION FOR TRANSFER TO THE SUPREME COURT
DECLARATION OF JOSEPH K. KAMELAMELA
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 Petitioner/Plaintiff-Appellee County of Hawaii
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
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 Ibarra, Judge
PETITIONER/PLAINTIFF-APPELLEE COUNTY OF HAWAI`I'S
APPLICATION FOR TRANSFER TO THE SUPREME COURT
COMES NOW, Petitioner/Plaintiff-Appellee County of Hawaii ("County"), by and
through its undersigned counsel, and hereby submits this application for transfer to the Hawaii
Supreme Court,pursuant to Rule 40.2 of the Hawaii Rules of Appellate Procedure ("HRAP")
and Hawaii Revised Statutes ("HRS") § 602-58.
I. REQUEST FOR TRANSFER TO THE SUPREME COURT
The County requests a transfer of Respondent/Defendant-Appellant and Third-Party
Plaintiff-Appellant C &J Coupe Family Limited Partnership("Coupes") appeal from the
Intermediate Court of Appeals ("ICA")to the Hawaii Supreme Court.
II. PRIOR PROCEEDINGS
On October 9,2000,the County filed a condemnation complaint against the Coupes in
Civil No. 00-1-181K. Trial Exh. J-232.1 (Record On Appeal, Civ. 00-1-181K, Volume I/
Document 00001 hereinafter referenced as "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. Id.
On October 10, 2000,the trial court issued an Order Putting Plaintiff in Possession in
Civil No. 00-1-181K. September 27, 2007, First Amended Findings of Fact, Conclusions of Law
and Order("1stAmd.FOFor COL")¶65 (R.O.A., 00-1-181K,V.41/00507 and 05-1-15K,
V.27/01031). (R.O.A., 00-1-181K,V.l/00004.)
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.2 Id.
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 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
2
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
attached a survey that identified the specific parcel to be obtained comprising an area of 3.348
acres. 1stAmd.FOF¶85-¶102.3 (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. lstAmd.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-Parry 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 lbarra.
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 (RO.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.,00-1-181K,V.5/00079).
3 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)(Supplemental Records on Appeal("S.R.O.A.")00-1-0018K,
V.43/T0007,and 05-1-15K,V.30/T0007).
3
On July 27, 2007, during oral argument on a Hawaii Rules of Civil Procedure
("HRCP"), 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,
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 (Pages 78 and 79 of the S.R.O.A., 00-1-
1814,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).114
(R.O.A., 00-1-181K, V.41/00507, and 05-1-15K,V.27/01031.)
4 The opening brief at page 3 incorrectly states that the trial court found that the proposed taking in Civil No.00-1-
181 K"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 1178-
80,and 05-1-15K,V.27/01031,COL 1178-80.) Thus,once Resolution 31=03 directed condemnation independent
4
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
dismissed. Bertelmann v. Lucas, et al., 31 Haw. 71, 72 (Hawai'i Terr.
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. 00-1-181 K 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
from the Development Agreement,the trial court determined there was proper public purpose. (R.O.A.,00-1-181K,
V.41/00507,COL 1193,99, 101, 102,and 05-1-15K,V.27/01031,COL 1193,99, 101, 102.)
5
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]
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 Hawai'i Revised
Statutes ("HRS") § 101-27 ("Motion for Statutory Damages")purportedly for attorneys' fees and
costs expended on Civil No. 00-1-181K.5 (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.)
5 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.00-1-181&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.
6
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.
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.
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-
1811,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.)
7
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.43/T0033, and 05-1-15K,V.30/T0033.)
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.6 (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. 00-1-181 K.
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
6 If this argument is correct,the Coupes filed the Motion for Statutory Damages too early— 14 days after the First
Amended Final Judgment.
8
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.
On February 8, 2008,the Coupes filed their Notice of Appeal in Civil No. 00-1-181K 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 HRAP 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 [the County] in Possession Pending Appeal and Accounting for
9
Amounts Deposited in Court filed December 3,2007 ("Appellant's 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 Memorandum in Opposition to Appellant's
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,the ICA denied Appellant's Motion to Vacate Possession Order
without prejudice to the parties further addressing these issues in their respective briefs.
III. STATEMENT OF FACTS
A. Nature of Case.
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 the 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. (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.
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. FOF 16-¶9.7 (R.O.A., 00-1-181K, Vol. 41, Document 00507 (hereinafter referenced as
"V.41/00507," and 05-1-15K, V.27/01031.)
7 See Hawaii Belt Road Holualoa to Papa Preliminary Engineering Report(June 1979)at 111-3, Exh.D-2(State of
Hawaii Department of Transportation concluded that a highway to bypass the Mamalahoa Highway would be
10
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)).
B. Resolutions Adopted Prior to the Filing.of Second Condemnation Action.
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 (Exh.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
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.");Hawai`i 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
Hawai`i County Council General Plan(Ordinance 05-25)adopted the Mamalahoa bypass,Exh.P-7
11
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
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 (7/16/07 p.m.,p. 21) (Supplemental R.O.A., filed 5/1/08,
("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/DO11, and 05-1-15K, V.26/DO11).
On May 23, 2000, Oceanside asked the County to commence condemnation proceedings
relating to the Coupes' lands. 1stAmd.FOF¶61 (R.O.A., 00-1-181K, V.41/00507 and 05-1-15K,
V.27/01 031).
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 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.
8 Although not material to this appeal,contrary to the opening brief at page 6, 1 stAmd.FOF 134 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,V27/01031.) 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.
12
After the Court entered an order on December 11, 2002, 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), 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 T86. (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.
IV. STATEMENT OF POINT OF ERRORS
Coupes have raised the following points of error on appeal:
1. The circuit court's judgment is void for lack of subject matter jurisdiction;
2. The circuit court erred when it denied Coupes' motion to dismiss because an
eminent domain action is abated and lacks subject matter jurisdiction when the same court is
already entertaining an eminent domain case filed by the same plaintiff, against the same
defendants,to take the same property for the same purpose;
3. The circuit court erred when it concluded under both federal and state law that the
taking of Coupes' property was for public use and was not pretextual;
4. The circuit court erred when it determined that Coupes were precluded from
asserting a claim in inverse condemnation under federal and state law;
13
5. The circuit court erred because the just compensation and damages awarded to
Coupes were not supported by the evidence, and are inadequate to meet federal and state
constitutional standards for just compensation and damages; and
6. The circuit court erred when it did not award Coupes damages pursuant to
HRS § 101-27 within ninety(90) days of the day the motion was filed as required by HRAP
4(a)(3). See Coupes' Amended Statement of Points Appellant Intends to Present on Appeal,
filed April 21, 2008, at 1-2.
V. STATUTORY QUALIFICATIONS FOR TRANSFER
The Hawaii Supreme Court"shall" grant an application to transfer a case within the
jurisdiction of the ICA when a case involves a"question of imperative or fundamental public
importance." HRS § 602-58 (a).
The circuit court concluded as a matter of fact that, for Civ.No. 05-1-015K,there was a
long-standing, clearly demonstrated public need and purpose for the Bypass. The Coupes argue,
however, among other matters,that there was no public purpose,that the taking was pretextual,
and that this action should have been abated because of the filing of the first eminent domain
action in Civ.No. 00-1-0181K.
The County submits that the long-desired and much-needed public highway for the Kona
communities raise issues of"fundamental public importance"because there is a significant and
immediate need for the proposed bypass highway and the Coupes appeal is preventing the
completion of 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" (E h. D-127). Presented with no credible evidence that the Bypass will provide only
14
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. lstAmd.FOF¶6-¶9. (R.O.A., 00-1-181K,
V.41/00507 and 05-1-15K,V.27/01031.)
The County feels strongly and compelled to file this application for transfer to have our
high court decide this matter expeditiously, due to the significant importance that the Bypass will
have to the Kona communities and to clarify the government's authority in condemning land for
a public purpose, such as, for the construction of a highway.
VI. CONCLUSION
Based on the foregoing, the County respectfully requests that its application for transfer
be granted and that Coupe's appeal be transferred to this Honorable Court.
Dated: Hilo,Hawaii, June 13, 2008.
COUNTY OF HAWAII,
Petitioner/Plaintiff-Appellee
By
JOSEPH K. KAMELAMELA
Deputy Corporation Counsel
Its Attorney
15
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
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 Ibarra, Judge
DECLARATION OF JOSEPH K. KAMELAMELA
I, JOSEPH K. KAMELAMELA, declare as follows:
1. I am the deputy corporation counsel assigned to handle the above-captioned
matter on behalf of Petitioner/Plaintiff-Appellee County of Hawaii ("County").
2. I am familiar with the factual evidence and trial record and have worked on this
matter for the last three years.
3. I have thoroughly reviewed the record and relevant law in this appeal.
4. I understand that I may be subject to sanctions in bringing this application for
transfer.
5. I am not presenting this application for transfer for any improper purpose,but file
this application based on the good faith belief that it presents a question of imperative or
fundamental public importance and involves a question of first impression.
6. The legal contentions to be put forth are warranted by existing law or non-
frivolous argument for the extension,modification or reversal of existing law.
7. Each assertion of fact and statement of prior proceedings is supported by the
record.
I hereby certify and affirm under penalty of law the foregoing is true and correct.
Dated: Hilo, Hawaii, June 13, 2008.
JOSEPH K. KAMELAMELA
2
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
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 copies of the foregoing document was duly served upon
the following, postage prepaid, on June 13, 2008:
M
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 Respondent/Defendant-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-Parry Defendant
1250 OCEANSIDE PARTNERS aka HOKULI`A
DATED: Hilo, Hawaii, June 13, 2008.
JOSEPH K. KAMELAMELA
Deputy Corporation Counsel
County of Hawaii
2