Opinion
C.A. No. 02C-12-003WLW.
Submitted: December 27, 2007.
Decided: March 31, 2008.
Upon Defendant RHIS, Inc.'s Motion to Tax Costs.
Granted in Part; Denied in Part.
William D. Fletcher, Jr., Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware and Marry F. Higgins, Esquire, Odessa, Delaware; co-counsel for Plaintiffs.
Robert K . Pearce, Esquire of Ferry Joseph Pearce, P.A., Wilmington, Delaware; attorneys for Defendant Richard Davis.
Norman H. Brooks, Esquire of Marks O'Neill O'Brien Courtney, P.C., Wilmington, Delaware; attorneys for Defendant RHIS.
ORDER
On October 24, 2007 a jury returned a verdict in favor of Defendant RHIS, Inc., d/b/a Reliable Home Inspection Service ("RHIS"). On November 7, 2007, RHIS moved to tax costs. The Court grants a modified amount of RHIS's request.
Background
Prior to purchasing the home in which she still lives, Tina Atwell ("Plaintiff") contracted RHIS to conduct a home inspection. After the inspection, which noted certain shortcomings but none that involved the furnace or moisture issues, she purchased the house from Defendant Richard Davis ("Davis or Seller"). During her first winter in the house, Plaintiff discovered severe water damage, dampness, mold and other water-related issues with the house. She and her daughter allegedly suffered a variety of medical problems related to the mold. Plaintiff filed suit on behalf of herself and her daughter against Davis and RHIS.
In the initial pleadings, Plaintiffs also sued Lititz Mutual Insurance Company who was found not liable in a summary judgment decision. Atwell v. RHIS, Inc., 2005 WL 1952932 (Del.Super., May 31, 2005).
The case went to trial and the jury was hung, 11-1 in favor of the Plaintiffs. The case was retried and this time the jury returned a verdict in favor of RHIS. RHIS now moves for an Order taxing costs against the adult plaintiff, Tina Atwell.
Between those times Defendant Davis settled in the amount of $237,500.00.
RHIS presented the following figures as costs to this litigation:
1. $9,174.82 Expert witness fee and travel expenses of defendant's liability expert, Patrick Porzio. This amount is broken down as follows:
a. $8,000.00 Testifying in court
i. $1,600.00 10/22/07
ii. $1,600.00 10/22/07
iii. $1,600.00 10/11/07
iv. $1,600.00 10/10/07
v. $1,600.00 10/06/07
b. $672.80 Travel
i. $130.00 10/22/07
ii. $130.00 10/18/07
iii. $137.60 10/11/07
iv. $137.60 10/10/07
v. $137.60 10/05/07
c. $502.02 Lodging
i. $373.50 10/18/07
ii. $128.52 10/05/06
2. $2,375.00 Services rendered by Patrick Porzio associated with his trial testimony.
3. $594.15 Dr. Gregory Marcotte's deposition transcript costs.
4. $56.00 Court fees: subpoenas.
Discussion
The Superior Court Civil Rule 54(d) provides that "costs shall be allowed as of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the Court otherwise directs." Title 10 Del.C. § 8906 provides that "the fees for witnesses testifying as experts . . . shall be fixed by the court in its discretion, and such fees so fixed shall be taxed as part of the costs in each case. . . ." Superior Court Civil Rule 54(f) provides that "[t]he fees paid court reporters for the Court's copy of transcripts of depositions shall not be taxable costs unless introduced into evidence. Fees for other copies of such transcripts shall not be taxable costs."The Court is persuaded by Plaintiffs' argument that since RHIS' motion is only against Tina Atwell and not her daughter, the full amount ought to be divided by two. The Court is to fix the costs for the expert testimony, and finds that $1,600/day is reasonable. Therefore it will allow for only one of the fees associated with Expert Porzio for October 22 and allow the rest to stand. The Court finds the travel costs reasonable but does not normally allow lodging costs, and will follow that tradition today. Associated fees are generally not allowed unless they have to do with travel time, waiting in the courthouse for the call of the witness or for testifying in court. The listed associated fees appear not to be associated with these events and therefore will not be allowed. Plaintiffs paid the costs associated with the Court's copy of Dr. Marcotte's deposition transcript, and therefore the cost for RHIS' copy, although read into evidence, will not be allowed. The fee associated with the subpoenas are uncontested and therefore the Court will allow them.
Stevenson v. Henning, 268 A.2d 872, 874 (Del. 1970).
The following table summarizes the costs the Court will allow:
1. $3,564.40 Expert witness fee and travel expenses of defendant's liability expert, Patrick Porzio ($7,128.80/2). The amount is broken down as follows:
a. $6,400 Testifying in court
i. $1,600.00 10/22/07
ii. $1,600.00 10/11/07
iii. $1,600.00 10/10/07
iv. $1,600.00 10/06/07
b. $672.80 Travel
i. $130.00 10/22/07
ii. $130.00 10/18/07
iii. $137.60 10/11/07
iv. $137.60 10/10/07
v. $137.60 10/05/07
2. $56.00 Court fees: subpoenas
Conclusion
The Court grants Defendant's Motion for Taxing of Costs in the reduced amount of $3,564.40. IT IS SO ORDERED.