Tuesday, August 26, 2003

Trial court must award costs or explain why not

In the case of In re: Bonds Distributing, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Michael, and Motz, reversed and remanded the final judgment entered in the case for the trial court to award costs or explain why not, and also to take action on whether to provide relief from the supersedeas bond filed in connection with an earlier appeal.

Judge Jones has denied costs a time or two. In one of my cases, I asked that the plaintiff be required to pay restitution to his employer of the employer's payments for his health insurance while the case was on appeal. The judge held that restitution was a matter of discretion and it would be unfair to require the plaintiff to pay back that money. In another case, Judge Jones denied the usual costs to the defendant in a slip-and-fall case, in this opinion, where the facts included these: "In the present case it is undisputed that Mrs. Crusenberry is in her eighties, is physical disabled, lives alone in an apartment, has meager assets consisting of her furniture and an amount saved for her burial, and subsists only on her monthly government checks." When I first read that opinion, I thought, oh no, the defense lawyers have stepped in it, won the case but gone too far, looking for costs from a crippled old lady.

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