Peter Mahoney

The plaintiffs moved to set aside an administrative dismissal order, later shifting to argue the dismissal was a nullity as to one plaintiff whose action had been automatically stayed under Rule 11.01 following an undisclosed transfer of interest.

The court found the dismissal order was a nullity with respect to the stayed action, but nevertheless dismissed that action for delay under Rule 11.03, applying the rule within the currency of the existing motion.

As to the second plaintiff's action, the court applied the Reid factors and found the plaintiffs had not satisfactorily explained significant delay, had not been transparent with the court regarding the transfer of interest, and that the defendant had suffered evidentiary prejudice.

Both actions were dismissed and costs of $7,500 were awarded to the defendant.

The plaintiff sued its former lawyer's estate and professional corporation for negligence and breach of contract after the lawyer allowed a construction lien to expire by failing to set the action down for trial within two years.

The defendants conceded the breach of the standard of care but disputed causation and damages, arguing the plaintiff failed to mitigate by not enforcing a related judgment and that the property lacked sufficient equity.

The court found the plaintiff did not act unreasonably in relying on the lawyer's advice that the lien was valid.

Assessing the complex evidence on the contaminated property's retrospective value, the court determined there was equity in the property and fixed damages at $472,000.

Following a trial in which the plaintiff obtained judgment for unpaid amounts arising from a business relationship, the court addressed the issue of costs.

The plaintiff sought partial indemnity costs to the date of settlement offers and substantial indemnity costs thereafter under Rule 49.

The court found the offers did not qualify for enhanced costs because they had been withdrawn and were not properly filed.

Considering the conduct of the parties and complications arising from an acknowledged but unpleaded debt owed by the plaintiff to the defendant, the court reduced the costs sought and awarded partial indemnity costs only.