County of Hawai`I v. C & J Coupe Family Ltd

• Decision Date: 21 April 2009
• Docket Number: No. 28822.,28822.
• Citation: 120 Haw. 400,208 P.3d 713
• Parties: COUNTY OF HAWAI`I, a municipal corporation, Plaintiff/Counterclaim Defendant-Appellee v. C & J COUPE FAMILY LIMITED PARTNERSHIP, Defendant/Counterclaimant-Appellant and Robert Nigel Richards, Trustee Under the Marilyn Sue Wilson Trust; Miles Hugh Wilson; John Does 1-100; Jane Does 1-100; Doe Partnerships 1-100; Doe Corporations 1-100; Doe Entities 1-100; and Doe Governmental Units 1-100, Defendants. C & J Coupe Family Limited Partnership, Third-Party Plaintiff-Appellant v. 1250 Oceanside Partners aka Hokuli'a, Third-Party Defendant-Appellee (Civ. No. 00-1-0181K). County of Hawai`i, a municipal corporation, Plaintiff/Counterclaim Defendant-Appellee v. C & J Coupe Family Limited Partnership, Defendant/Counterclaimant/Cross Claimant-Appellant and 1250 Oceanside Partners aka Hokuli'a, Defendant/Cross Claim Defendant-Appellee and Robert Nigel Richards, Trustee Under the Marilyn Sue Wilson Trust; Miles Hugh Wilson; John Does 1-100; Jane Does 1-100; Doe Partnerships 1-100; Doe Corporations 1-100; Doe Entities 1-100; and Doe Governmental Units 1-100, Defendants (Civ. No. 05-1-015K).
• Court: Hawaii Supreme Court

208 P.3d 713

120 Haw. 400

COUNTY OF HAWAI`I, a municipal corporation, Plaintiff/Counterclaim Defendant-Appellee v. C & J COUPE FAMILY LIMITED PARTNERSHIP, Defendant/Counterclaimant-Appellant and Robert Nigel Richards, Trustee Under the Marilyn Sue Wilson Trust; Miles Hugh Wilson; John Does 1-100; Jane Does 1-100; Doe Partnerships 1-100; Doe Corporations 1-100; Doe Entities 1-100; and Doe Governmental Units 1-100, Defendants.

C & J Coupe Family Limited Partnership, Third-Party Plaintiff-Appellant v. 1250 Oceanside Partners aka Hokuli'a, Third-Party Defendant-Appellee (Civ. No. 00-1-0181K).

County of Hawai`i, a municipal corporation, Plaintiff/Counterclaim Defendant-Appellee v. C & J Coupe Family Limited Partnership, Defendant/Counterclaimant/Cross Claimant-Appellant and 1250 Oceanside Partners aka Hokuli'a, Defendant/Cross Claim Defendant-Appellee and Robert Nigel Richards, Trustee Under the Marilyn Sue Wilson Trust; Miles Hugh Wilson; John Does 1-100; Jane Does 1-100; Doe Partnerships 1-100; Doe Corporations 1-100; Doe Entities 1-100; and Doe Governmental Units 1-100, Defendants (Civ. No. 05-1-015K).

No. 28822.

Supreme Court of Hawai`i.

April 21, 2009.

As Amended May 22, 2009.

Kenneth R. Kupchak, Robert H. Thomas, Mark M. Murakami, and Christi-Anne H. Kudo Chock (Damon Key Leong Kupchak Hastert), Honolulu, for defendant-appellant, C & J Coupe Family Limited Partnership.

Joseph K. Kamelamela, Michael J. Udovic, Ivan M. Torigoe, and Katherine A. Garson, Deputies Corporation Counsel, County of Hawai`i, for Plaintiff-Appellee, County of Hawai`i.

William Meheula and Derek T. Mayeshiro (Winer Meheula & Devens, LLP), Honolulu, for Third-Party Defendant, 1250 Oceanside Partners aka Hokulia.

MOON, C.J., NAKAYAMA, ACOBA, DUFFY, JJ., and Circuit Judge CHAN, assigned by reason of vacancy.

Opinion of the Court by ACOBA, J.

In County of Hawai`i v. C & J Coupe Family Ltd. Partnership, 119 Hawai`i 352, 198 P.3d 615 (2008), issued on December 24, 2008, this court held that Defendant-Appellant C & J Coupe Family Limited Partnership (Appellant) "is entitled to seek statutory damages [from Plaintiff-Appellee County of Hawai`i (the County)] pursuant to [Hawai`i Revised Statutes (HRS)] § 101-27 (1993) because it prevailed in [Civil No. 00-1-181K (Condemnation 1)],"¹ and "the property in question was not finally taken in Condemnation 1." Id. at 361, 364, 198 P.3d at 624, 627. On January 20, 2009, Appellant filed its Request for Statutory Damages (the Request) and memorandum in support. The County filed its Memorandum in Opposition to Appellant's Request for Statutory Damages on January 30, 2009 (Opposition). Third-Party Defendant-Appellee 1250 Oceanside Partners (Oceanside) joined the County's Opposition and also filed a separate memorandum in opposition to the Request on January 30, 2009. On February 19, 2009, pursuant to this court's February 9, 2009 order, Appellant filed its Responses to Objections re: Request for Statutory Damages (the Response). The County filed a reply to the Response on March 2, 2009 (Reply), in which Oceanside joined on March 2, 2009 (Joinder). On March 5, 2009, Appellant filed an Errata to Responses to Objections re: Request for Statutory Damages (Errata), purportedly to correct certain errors in the Request and in the Response. For the reasons stated herein, Appellant is awarded $25,676.21 in fees and $1,206.35 in costs.

I.

A.

Appellant's Request asked for $45,383.50 in attorneys' fees plus $2,098.07 in general excise tax on those fees, $5,775.59 in costs, and prejudgment interest on those fees and costs in the amount of $1,900.35, all of which it claims to have incurred pursuant to its appeal in Condemnation 1. In addition to those fees and costs, Appellant requests that it recover for the fees and costs incurred in preparing the Request and the court-ordered Response.

B.

The County does not dispute that Appellant is entitled to recover fees and costs on appeal pursuant to HRS § 101-27. However, the County objects to the total amount of fees and costs requested on the grounds that (1) "attorneys' fees and costs for [the] January 24, 2008 bill should be denied[,]" because they "involved only those services provided prior to the filing of the Notice of Appeal," (2) under DFS Group L.P. v. Paiea Properties, 110 Hawai`i 217, 131 P.3d 500 (2006), "costs for computer legal research should be denied[,]" (3) "messenger fees, general excise tax, and interest should be denied," (4) "photocopying costs are excessive," and (5) Appellant should receive "no attorney's fees for unsuccessful claims."

C.

As noted previously, Oceanside joins in the County's Opposition and Reply and, additionally, seeks to clarify that "HRS § 101-27 only allows a condemnation defendant to `recover from the plaintiff [.]'" (Quoting HRS § 101-27.) (Emphasis supplied by Oceanside.) Because "Oceanside was not the plaintiff in [Condemnation 1] or [in Civ. No. 05-1-015K (Condemnation 2),]" and Appellant's Request was filed "only against the County and not against Oceanside[,]" Oceanside urges that this court "expressly rule that [Appellant] is not entitled to relief under HRS § 101-27 from Oceanside."

II.

As set forth supra, because "the property in question was not finally taken in Condemnation 1," C & J Coupe, 119 Hawai`i at 364, 198 P.3d at 627, HRS § 101-27 provides that the defendant, i.e., Appellant, "shall be entitled, in such proceedings, to recover from the plaintiff[, i.e., the County,] all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings ... 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[.]" Thus, the threshold question for this court to determine is whether "all such damage" under HRS § 101-27 provides adequate authority for Appellant's request for attorneys' fees and costs on appeal and, if so, to what extent.

A.

Appellant asserts that "[t]he present request is for damages incurred by [Appellant] in the appeal of [Condemnation 1] and does not include damages incurred by [Appellant] in the trial or remand of [Condemnation 1² ], or in the trial, appeal, or remand of [Condemnation 2]." (Emphasis added.) Appellant further maintains that "[t]his request is limited to the costs and attorney's fees incurred in the appeal of [Condemnation 1]," and Appellant's attorneys' fees "reflect only attorney's fees incurred in the appeal of [Condemnation 1]." (Emphasis added.)

Appellant also indicates that it has made sufficient efforts to specifically identify which fees and costs on appeal were associated with Condemnation 1, as opposed to Condemnation 2. In that regard, Appellant states that "[t]he cost of transcripts in the consolidated trial were [sic] apportioned between [Condemnation 1] and [Condemnation 2]," and that although "[t]he Intermediate Court of Appeals [(ICA)] consolidated the separate appeals of [Condemnation 1] and [Condemnation 2,]" "[t]he working attorneys roughly apportioned the time between the two matters and the matters were billed separately." Hence, on the face of the Request, Appellant does not petition for any damages associated with the appeal of Condemnation 2.³ This court, then, must consider whether HRS § 101-27 provides an appropriate basis for awarding to Appellant fees and costs on appeal associated with Condemnation 1.

B.

By its plain language, HRS § 101-27 appears to provide a sufficient basis for the award of damages in the form of costs and attorney's fees sustained as a result of Appellant's appeal of the automatic denial of fees in Condemnation 1.⁴ The statutory language "all such damage ... sustained ... by reason of the bringing of the proceedings[,]" on its face would appear to encompass what Appellant seeks herein. Due to the court's failure to timely rule on the issue, Appellant was denied the HRS § 101-27 reimbursements it was owed by the County by virtue of Appellant's success in Condemnation 1, and thereby appealed to this court in order to recover the damages owed. Had the County not brought the unsuccessful proceedings in Condemnation 1, Appellant would never have had cause to move for fees and to subsequently appeal. Therefore, the "damage" sustained by Appellant in seeking the fees and costs owed and in appealing the denial of such fees and costs, was part of the damage resulting from the County having brought the unsuccessful proceedings in Condemnation 1. Consequently, under HRS § 101-27, the County should be held liable for "such damage."⁵

III.

Having determined that HRS § 101-27 provides a proper basis for fees and costs incurred on appeal in Condemnation 1, the next question is whether this court is the appropriate venue in which to request such damages. As Appellant points out, although the authority for the damages requested is HRS § 101-27, HRAP Rule 39 governs the procedure for requesting fees and costs in the appellate courts. Because HRAP Rule 39 requires that "[a] request for fees and costs ... must be filed with the appellate clerk," Appellant appears to be correct that "damages incurred by [Appellant] on appeal may only be awarded by this [c]ourt pursuant to [HRAP Rule] 39." (Emphases added.)

HRS § 101-27 does not specify where a request for damages under that section should be filed. However, it does provide that, "[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[.]" (Emphases added.) Despite that language, there is no irreconcilable conflict between the requirement in HRAP Rule 39 that the Request "must be filed with the appellate clerk" and the requirement in HRS § 101-27 that "[i]ssues of fact ... shall be tried by the court." This court has held that where a statute and a rule merely overlap, but do not irreconcilably conflict, effect should be given to both if possible. See ...