101-27 Defendant allowed damages upon abandonment or dismissal of proceedings. Whenever any proceedings instituted under this part are abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use, a defendant who would have been entitled to compensation or damages had the property been finally taken, shall be entitled, in such proceedings, to recover from the plaintiff 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; and the possession of the property concerned shall be restored to the defendant entitled thereto. Issues 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, pursuant to the rules of court, within ten days from the date of the entry of an order or judgment allowing the discontinuance of the proceedings, or dismissing the proceedings or denying the right of the plaintiff to take the property concerned for public use. In the event judgment is entered in favor of the defendant and against the plaintiff, any moneys which have been paid, and any additional security which has been furnished, by the plaintiff to the clerk of the court under sections 101-28 and 101-29, shall be applied or enforced toward the satisfaction of the judgment. In the case of the State or a county, if the moneys so paid to the clerk of the court are insufficient, then the balance of such judgment shall be paid from any moneys available or appropriated for the acquisition of the property concerned, or if that is insufficient then the same shall be paid from the general fund of the State or county, as the case may be. [L 1929, c 230, 1; RL 1935, 67; am L 1937, c 184, 4; RL 1945, 318; am L 1951, c 12, 1(k); RL 1955, 8-25; HRS 101-27; am L 1973, c 30, 2; gen ch 1985]

 

Case Notes

 

Section only applies to relief in eminent domain proceedings and does not authorize a collateral suit for damages or an independent suit for injunction and declaratory relief. 49 H. 365, 418 P.2d 482. Section does not apply when there is an abandonment of the original public use. Id.

Partial abandonment. 42 H. 415, 627. Abandonment by amendment. 44 H. 557, 356 P.2d 386. Abandonment may be any time before final judgment. 42 H. 415.

"Final judgment" means judgment entered after an appeal. 50 H. 237, 437 P.2d 321.

Manifests legislative intent to preclude recovery of attorney's fees and litigation costs where the property is condemned. 53 H. 582, 499 P.2d 663.

A landowner in a condemnation action is entitled to damages under this section 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. 119 H. 352, 198 P.3d 615.

"All such damage" under this section provided adequate authority for appellant's request for attorneys' fees and costs on appeal of automatic denial of fees in condemnation proceedings; 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; thus, the county should have been held liable for such damage. 120 H. 400, 208 P.3d 713.

Because this section is silent as to which court a request for damages should be directed, the procedure set forth in HRAP rule 39 applied to the case; that rule specifically required that requests for fees and costs on appeal should be applied for in the supreme court. 120 H. 400, 208 P.3d 713.

Messenger fees are properly seen as part of a law firm's overhead and therefore should be reflected in attorneys' fees, not as costs under this section. 120 H. 400, 208 P.3d 713.

Neither HRAP rule 39 nor this section specifically allows for costs associated with online legal research; if appellant collected an appropriate attorney's fee pursuant to this section, it would have already been made whole for its research costs, and any additional taxation of these costs to appellee would have provided appellant with a windfall; thus, any separate recovery for legal research costs as "other reasonable costs" under this section denied. 120 H. 400, 208 P.3d 713.

Where the record in the case was available in electronic format and appellant did not identify which costs were associated solely with "producing necessary copies of brief and appendices", nor did it make any argument as to why any additional photocopying costs requested were reasonable, appellant's photocopying costs denied. 120 H. 400, 208 P.3d 713.

Prejudgment interest can be recovered as an "other reasonable expense" under this section, but is limited to the specific circumstances of a failed condemnation contemplated by this section. 124 H. 281, 242 P.3d 1136.

Where defendant had not asserted any lengthy delay in the issuance of the judgment of the attorneys' fees or costs at the trial level, and there was no fault found on the part of either defendant or plaintiff for the delay, the trial court had discretion to deny defendant's prejudgment interest claim under the circumstances of the case and the court did not err in denying defendant's request for prejudgment interest under this section. 124 H. 281, 242 P.3d 1136.

Where defendant would not have had cause to move for fees or to litigate the amount of fees on remand had the county not brought the unsuccessful proceeding in the first condemnation, the county was liable for those damages under this section. 124 H. 281, 242 P.3d 1136.

Where there was no evidence that the county's actual purpose for the second condemnation was to avoid liability for attorneys' fees and costs under this section, and while the second condemnation provided an incidental benefit to the county, it was insufficient to rebut the strong presumption in favor of the court's finding of public purpose in the second condemnation. 124 H. 281, 242 P.3d 1136.

Cited: 39 H. 67; 44 H. 10, 13, 352 P.2d 320.

 

 

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