 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Apodaca v. AAA Gas Co.3/11/2003
116 N.M. at 360-61, 862 P.2d at 1219-20 (indicating desire to harmonize Rules 1-054 and 1-068); Shelton, 1999-NMCA-048, 1 (noting "Rule 1-068 provides an incentive for defendants to make reasonable settlement offers before trial"); Gilmore v. Duderstadt, 1998-NMCA-086, 41, 125 N.M. 330, 961 P.2d 175 (discussing tension between Rules 1-054 and 1-068 and holding even if plaintiff could not receive costs under 1-068, pre-offer costs could be awarded to plaintiff as prevailing party under Rule 1-054); Dickenson v. Regent of Albuquerque, Ltd., 112 N.M. 362, 363, 815 P.2d 658, 659 (Ct. App. 1991) (relying on federal law in construing Rule 1-068). We therefore adopt the Supreme Court's interpretation of Rule 1-068-that the Rule does not apply where a judgment is entered in the defendant's favor. Although we recognize that the holding of Delta Air Lines, Inc. has been criticized in the past, the holding remains the law, despite attempts to expand its scope, and most federal courts, as well as many state courts have followed the Court's ruling. See, e.g., Fry v. Bd. of County Comm'rs, 7 F.3d 936, 944 (10th Cir. 1993); Danese v. City of Roseville, 757 F. Supp. 827, 831 n.4 (E.D. Mich. 1991); Landon v. Hunt, 938 F.2d 450, 451-52 n.1 (3rd Cir. 1991) (per curiam); Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 293 (6th Cir. 1989); but see Darragh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 743 S.W.2d 804, 805-06 (Ark. 1988); Beattie v. Thomas, 668 P.2d 268, 274 (Nev. 1983). When a judgment is entered in the defendant's favor, the proper relief is found under Rule 1-054. Accordingly, we hold that the trial court did not err in denying post-offer costs to AAA Gas under Rule 1-068. Since we have held that the decision to award these costs should be analyzed under Rule 1-054(D), we must determine whether the trial court abused its discretion in denying AAA Gas its costs.
Rule 1-054(D)
Plaintiffs' opposition to the award of these costs under Rule 1-054(D) was premised on their inability to pay. In AAA Gas's view, however, the court's ruling was impermissibly based on the financial disparity of the parties alone. AAA Gas also argues it was an abuse of discretion not to require Plaintiffs to disclose information relating to their indigence, specifically their workers' compensation benefits and Fisher Controls settlements. It does not appear from the record, however, that AAA Gas ever requested the court to have Plaintiffs disclose their workers' compensation settlement to substantiate a claim of financial hardship and we do not consider that contention. See State v. Silver, 83 N.M. 1, 2, 487 P.2d 910, 912 (Ct. App. 1971) (declining to consider new contentions on appeal where record did not reflect it was presented to the trial court).
As to the remaining charges, this Court reviews the trial court's assessment of costs in a civil action under an abuse of discretion standard. Key, 2000-NMSC-010, 7; Gallegos ex rel. Gallegos, 117 N.M. at 489, 872 P.2d at 907. Under Rule 1-054(D)(1), "costs . . . shall be allowed [as a matter of course] to the prevailing party unless the court otherwise directs." The Rule, therefore, creates a presumption that the prevailing party is entitled to costs. Key, 2000-NMSC-010, 6. The burden is on the losing party to "overcome this presumption by showing bad faith on [AAA Gas's] part, misconduct during the course of the litigation, that an award to [AAA Gas] would be unjust, or that other circumstances justify the denial or reduction of costs." Id. " he losing party's ability to pay is a proper factor to consider in determining whether to award costs." Gallegos ex rel. Gallegos, 117 N.M. at 490, 872 P.2d 908. Disparity in resources between t
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|