The respondent in an appeal sought costs under Rule 37.09, arguing that the appellants had abandoned their motion for a stay pending appeal.
The appellants' representative had stated in multiple emails that the motion was withdrawn, but no formal notice of abandonment was ever served or filed.
The court held that stating an intention to abandon a motion, or even claiming it has been abandoned, does not constitute abandonment under Rule 37.09(1) without serving and filing a formal notice.
The court found the motion was not abandoned and reserved the costs of this motion to the court hearing the stay motion.
