No. 28822 (December 24, 2008)
Opinion [pdf]
OPINION OF THE COURT BY ACOBA, J.
This case arises from two condemnation actions brought by Plaintiff-Appellee County of Hawai'i (Appellee or the County). In both actions Appellee sought to condemn property belonging to Defendant-Appellant C&J Coupe Family Limited Partnership (Appellant) for use as a public highway (Bypass). 1250 Oceanside Partners (Oceanside), a development company that was to build the Bypass through an agreement with Appellee, was added in Civ. No. 00-1-0181K (Condemnation 1) as a Third-Party Defendant and, therefore, is the Third-Party Defendant-Appellee in the appeal in that case. Oceanside was ordered joined.as a defendant on indispensable party grounds in Civ. No. 05-1-015K (Condemnation 2) and, therefore, is the Defendant-Appellee in the appeal from that case. The court consolidated the cases and dismissed Condemnation 1 in favor of Appellant but granted condemnation in Condemnation 2, entering judgment in favor of Appellee and Oceanside on September 27, 2007. Oceanside joined Appellee in its answering brief on appeal and, therefore, is bound by the resolution herein of the issues raised.
Appellant appeals from (1) the automatic denial by operation of law of Appellant's post-judgment motion for statutory damages pursuant to HRS § 101-27 (1993) in Condemnation 1 and (2) the September 27, 2007 First Amended Final Judgment of the Circuit Court of the Third Circuit (the court) in favor of Appellee in Condemnation 2. Related to the court's judgment dismissing Condemnation 1, Appellant argues that it was entitled to statutory damages under HRS § 101-27 because "[Appellee] did not succeed in taking the property in that case." Related to Condemnation 2, Appellant argues that (1) the court lacked subject matter jurisdiction under the doctrine of abatement, and (2) if the court had subject matter jurisdiction, it erred in failing to consider whether the asserted public purpose was a pretext for private benefit. On appeal, Appellant asks this court to (1) remand Condemnation 1 for an award of damages, and (2)(a) reverse the court's Judgment in Condemnation 2 for lack of jurisdiction, or, in the alternative, (b) vacate the Judgment in Condemnation 2 and remand for determination of whether the asserted public purpose was pretextual.
We hold that (1) a landowner in a condemnation action is entitled to damages under HRS § 101-27 where the property at issue is not finally taken in the context of a particular condemnation proceeding, irrespective of whether the government attempts to take the land through subsequent condemnation proceedings; (2) abatement does not apply where the relief sought in two concurrent actions is not the same; and (3) although our courts afford substantial deference to the government's asserted public purpose for a taking in condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner's defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS § 101-27 in Condemnation 1 is vacated and the case remanded for a determination of damages, (2) the court's conclusion that Condemnation 2 was not abated by Condemnation 1 is affirmed, and (3) the court's Judgment in Condemnation 2 is vacated and the case remanded for a determination of whether the public purpose asserted in Condemnation 2 was pretextual. [footnotes omitted]
Concurring and Dissenting Opinion by C.J. Moon, in which J. Levinson joins [pdf]
