Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rash v. Moczulski

Superior Court of Delaware, New Castle

October 16, 2017

Rash
v.
Moczulski, et al

          Lawrance S. Kimmel, Esquire Kimmel Carter Roman Peltz & O'Neill, P.A.

          Richard D. Abrams, Esquire Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP Citizens Bank Center.

          CHARLES E. BUTLER JUDGE.

         Defendants' Motion tor Costs is GRANTED in part and DENIED in part.

         Counsel:

         This is (hopefully) the last matter to be cleared up concerning this litigation, which saw a verdict for the Plaintiffs for zero dollars, a Superior Court denial of Plaintiffs' new trial motion with additur of $10, 000 in favor of Plaintiffs, an appeal of the denial of the new trial motion by the Plaintiffs and a cross appeal of the additur ruling by Defendants, resulting in an affirmance of the Superior Court, and now Defendants' Motion for Costs.

         The basis for Defendants' Motion for Costs is Defendants' Offer of Judgment pursuant to Del. Super. Ct. Civ. R. 68. Rule 68 provides that where a defendant makes an Offer of Judgment that is not accepted by the plaintiff within 10 days, there may be consequences. "If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer."[1]

         Here, Defendants made an Offer of Judgment in the amount of $50, 002 in June, 2015. The offer was not accepted, and a trial was subsequently held. The jury found that Defendants caused injury but assessed the damages at zero dollars. That made no one happy. In lieu of granting a new trial, the Court awarded additur of $10, 000 which, we now know, fell quite a bit short of the previously rejected Offer of Judgment. Proving that no good deed goes unpunished, we must now sort out the relationship between "costs" payable after a judgment under Rule 54 and after an Offer of Judgment under Rule 68.

         For purposes of this discussion, these two superficially conflicting rules can be harmonized by saying that when a Rule 68 Offer of Judgment has been rejected and the judgment is for less than the offer, the Court has no discretion in that it must award costs (a discretion it retains under Rule 54) but the amount of those costs are subject to the definition of "costs" under Rule 54, which definition embeds the rule of reasonableness. With all that said, we will get on with it.

         Transcript Fees

         After the jury's award of zero dollars to the Plaintiffs, Plaintiffs moved for a new trial. The defense resisted and sought (and was granted) time to get the trial transcript prepared in support of its opposition to the new trial motion. These expenses came after the Offer of Judgment was made, and the Plaintiffs agree that these expenses should be assessed against them, so the Court will award $783 in trial transcript expenses to Defendants.

         Costs on Appeal

         Both sides filed cross appeals to the Delaware Supreme Court. In the Court's view, costs on appeal are governed by Supreme Court Rule 20, which states that if the judgment is affirmed, costs are to be taxed to the appellant. In this case, both sides appealed, so both sides were "the appellant, " and the judgment was affirmed. The Court is therefore of the view that both sides must bear their own costs of the appeal. This would include Defendants' use of a copy binding service and other miscellaneous charges.

         Expert Witness Fees

         Defendants' largest post Offer of Judgment expense was for expert witnesses. Defendants seek an award ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.