Lawrance S. Kimmel, Esquire Kimmel Carter Roman Peltz &
Richard D. Abrams, Esquire Mintzer, Sarowitz, Zeris, Ledva
& Meyers, LLP Citizens Bank Center.
CHARLES E. BUTLER JUDGE.
Motion tor Costs is GRANTED in part and DENIED in
(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.
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."
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
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.
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.
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.
largest post Offer of Judgment expense was for expert
witnesses. Defendants seek an award ...