Real Estate & Property Law

HAWSCT: Property Owners Entitled To Attorneys Fees & Costs In Failed Taking, Even If Gov't Prevails In Intermediate Steps

By Robert Thomas (inversecondemnation.com)

Under Haw. Rev. Stat. § 101-27, when a condemnation action is "abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use," the condemnor is liable for: 

all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded 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

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 Hawaii Supreme 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. [Disclosure: we represent the property owner in these cases.]  The court remanded the issue of damages sustained at the trial court level, and in a May 14, 2009 order (posted here), the trial court awarded the property owners 100% of the attorneys fees incurred at trial, including over $1.5 million in attorneys fees and $111,000 in costs.

Additionally, in County of Hawaii v. C&J Coupe Family Ltd. P'ship, No. 28822 (Apr. 21, 2009) (opinion posted here), the Supreme Court held that a condemnee is also entitled to damages it sustains on appeal.  As noted in this post, we asked the Supreme Court to reconsider the its conclusion that the property owner was not entitled to damages associated with the County's motion to transfer the consolidated appeals from the Intermediate Court of Appeals to the Supreme Court because "the County prevailed" on that motion.  See slip op. at 29-30.  Today, in an order, the court agreed and amended its earlier opinion to read:

Although the County prevailed on that motion, it appears that Appellant has properly included attorneys' fees incurred in defending the motion to transfer in its Request, inasmuch as fees are encompassed under HRS § 101-27 as part of "all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings" in Condemnation 1.  Therefore, those entries will be included in the fee award.

Order at. 5.  In other words, what matters for the determination of governmental liability under section 101-27 is whether the property is "finally taken," not whether the government wins intermediate steps along the way. If the taking fails, the government is liable for all of the property owner's fees and costs, even those related to motions the government may have won. The court did not amend any other portion of the opinion, noting that all expenses claimed under section 101-27 must be reasonable, and that copying costs are not included within the meaning of the term "costs of court" as used in that statute.  The amended opinion is posted here.

Full post as published by inversecondemnation on May 23, 2009 (boomark / email).