HAWSCT: Property Owners Entitled To Attorneys Fees & Costs On Condemnation Appeal

In the latest reported decision arising out of the County of Hawaii's attempt to take property, the Hawaii Supreme Court held that a condemnee who appeals the denial of damages for a failed taking is entitled to damages it sustains on appeal. 

In County of Hawaii v. C&J Coupe Family Ltd. P'ship, No. 28822 (Apr. 21, 2009), the court held that a property owner is entitled to be made economically whole pursuant to Haw. Rev. Stat. § 101-27, including the reasonable attorneys fees and costs it incurs on appeal.  Section 101-27 requires the condemnor to pay "damages" including attorneys fees and costs when property is not "finally taken" for public use.  In these consolidated cases, the trial court struck down an attempted taking for a road for lack of public use, but in a separate case prosecuted concurrently, the court held the property could be taken.

The County asserted that it was not liable for damages for the failed taking because the property was "finally taken" in the second action.  In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the court held that property is not "finally taken" in a condemnation action when a single condemnation fails or is dismissed, even if the condemnor succeeds in a subsequent -- or concurrent -- attempt to take the property.  It remanded the issue of damages incurred in the trial court to that court for a determination. 

The latest opinion only deals with damages sustained on appeal. The court noted (see slip op. at 13 n.6) that the hourly rate and hours spent are deemed reasonable unless the condemnor specifically objects. The court also held that a post-judgment application to the appellate clerk under Haw. R. App. P. 39 is the proper method to recover damages sustained in the appeal.

Disclosure: we represent the property owner in these cases.