David Penney First Plaintiff And: Elsie Penney Second Plaintiff And: Murley Pitts First defendant And: Bruce Pitts Second defendant, 2018 NLSC 76

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Penney v. Pitts , 2018 NLSC 76 Date : April 11, 2018 Docket : 201506G0113 Between: David Penney First Plaintiff And: Elsie Penney Second Plaintiff And: Murley Pitts First defendant And: Bruce Pitts Second defendant Before: Justice Garrett A. Handrigan Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: April 6, 2018

Summary:

David and Elsie Penney applied to quiet the title to land they claimed at Canning’s Cove, NL. Bruce and Murley Pitts opposed theirapplication and filed an adverse claim. The Penney’s served a formal offer to settle the matter on the Pitts on April 15, 2016 by whichthe Penney’s would forego any costs they had incurred to the date of the offer if the Pitts withdrew their adverse claim. The Pitts did not accept the offer to settle and the Penney’s did not withdraw or revoke it. The matter proceeded to trial and the Courtdismissed the Pitts’ adverse claim.

The Court also ordered the Pitts to pay the Penney’s their costs to be taxed on Column 3 of the Scaleof Costs. The Penney’s failed to apply within 15 days of judgment for the Court to determine costs based on their offer to settle. ThePenney’s filed a formal order, incorporating the costs’ order the trial judge made. The Penney’s applied to have costs determined underRule 20A.10. The Pitts opposed their application. The Court dismissed the Penney’s application. It found that it was functus officio and had no jurisdiction to reconsider the initial costs’order it made.

It ordered the Penney’s to pay the Pitts the costs of this application, to be taxed on Column 3 of the Scale of Costs. Appearances: Stacy G. MacDonald Appearing on behalf of the Plaintiffs James D. Hughes, Q.C. and Philip C.W. Whalen Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: McLean v. Carr Estate, (NL CA), [1996] N.J. No. 181, 142 Nfld. & PEIR 25 (Nfld.C.A.); Stockwood v. Hayden, 2010 NLCA 68; Rowe v. Raleigh Industries of Canada Ltd., 2005 NLCA 65; Penney v. Pitts, 2017NLTD(G) 60; McLean et al. v. Carr Estate et al., (NL SC), [1994] N.J.

No. 119, 116 Nfld. & PEIR 271 (Nfld.S.C.T.D.); McLean et al. v. Carr Estate et al., (NL SC), [1994] N.J. No. 383, 125 Nfld. & PEIR 165 (Nfld.S.C.T.D.); Marcotte v. Martin, 2004 NLSCTD 56 , 2004 NLTD 56; Kielley v. General Hospital Corp. et al., (NL SC), [1998] N.J. No. 213, 167 Nfld. & PEIR 343 (Nfld. S.C.T.D.); Cable v. Cable, 2010 NLCA 31. STATUTES CONSIDERED: Quieting of Titles Act, R.S.N. 1990, c. Q-3. RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D.

REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] David and Elsie Penney applied to this Court on October 15, 2015 to quiet the title to land they claimed at Canning’s Cove,NL. Bruce Pitts, also of Canning’s Cove, claimed an interest in part of the land. Bruce Pitts and Murley Pitts, his brother, objected to thePenney’s quieting application by filing an adverse claim on December 21, 2015. I ordered that the application be converted to astatement of claim so that all pre-trial processes would apply to it.

I heard the application over several days, ending on March 9, 2017,and reserved my judgment until March 22, 2017. [2] On March 22, 2017, I dismissed the Pitts’ adverse claim. I found that the Penney’s proved they own the land by possessingit exclusively for at least 40 years. I directed that a certificate of title issue for the property subject only to the statutory exceptions andqualifications contained in

section 22 of the Quieting of Titles Act, R.S.N. 1990, c. Q-3. I also ordered the Pitts to pay the Penney’s coststo be taxed according to Column 3 of the Scale of Costs; including the costs of an originating application for an injunction that thePenney’s took out against the Pitts before the Penney’s applied to quiet title to the land. [3] On March 3, 2018, the Penney’s applied for an order under Rule 20A.10 of the Rules of the Supreme Court, 1986, S.N.L.1986, c. 42, Sch. D to increase the costs they recover from the Pitts because of a settlement offer they made to the Pitts on April 15,2016.

The Penney’s note that they did not withdraw their offer and that the Pitts did not accept it. The Penney’s also claim that they

achieved a result at trial that was as, or more favourable than the terms of the offer they made to the Pitts. [4] The Pitts oppose the application on three bases.

They say: firstly, this Court is functus officio the costs issue; secondly, thePenney’s did not apply “…for a determination as to costs based on the application of Rule 20A…within 15 days following the filing ordelivery of the decision or order”; and thirdly, the Penney’s April 15, 2016 offer to settle was not “…a genuine offer in that it providedno compromise in the context of the litigation”: Paragraph 6 of the Pitts’ Response to Interlocutory Application. [5] I heard the Penney’s application on April 6, 2018 and reserved my ruling until now.

The Issues [6] The Penney’s application and the Pitts’ response to it raise three issues: 1. Is this Court functus officio the issue of costs? 2. If not, did the Penney’s make a genuine offer to settle on April 15, 2016? 3. If so, are the Penney’s entitled to increased costs under Rule 20A.10 because of their offer to settle? [7] I find, for reasons I will state shortly, that I am functus officio as to costs in this matter. Thus, I will deal only with the firstissue.

However, because the Penney’s applied under Rule 20A.10 I will discuss how the Rule applies generally; but I will also showwhy it does not apply in this matter. The Law Functus Officio Rules of Court [8] Rule 15.07 of the Rules of the Supreme Court, 1986 provides: “Clerical mistakes in decisions or orders, or errors arisingtherein from any accidental mistake or omission, or an amendment to provide for any matter which should have but was not adjudicatedupon, may at any time be corrected or granted by the court, without appeal”.

Case Law [9] Cameron, J.A. discussed the meaning of “functus officio” and the general effect of Rule 15.07 in McLean v. Carr Estate, (NL CA), [1996] N.J. No. 181, 142 Nfld. & PEIR 25 (Nfld. C.A.): “Functus officio means, literally, having dischargedhis duty. Determining whether a judge is functus officio involves, in light of rule 15.07, drawing a line between an omission by the trialjudge - a failure to do something which should have been done - and the discharge of the duty but failing to consider some argumentwhich had someone, whether counsel or judge, thought about it might have had an impact on the result.

The line is not easily drawn. If acourt was required to answer four questions, but determined only three, clearly, it would not have done something it was required to do.The judge would not be functus officio, at least, in respect of the fourth question”: McLean v. Carr, paragraph 16.

Costs under Rule 20A.10 Rule 20A.10 [10] Rule 20A.10 of the Rules of the Supreme Court, 1986 states: “Notwithstanding the provisions of this rule, the court, inexercising its discretion as to costs, may take into account any offer to settle made in writing, the date the offer to settle was served, theterms thereof and any other relevant matters”. Case Law [11] Welsh, J.A. explained the operation of Rule 20A.08 in Stockwood v.

Hayden, 2010 NLCA 68, this way: “…[D]espite thediscretionary language in rule 20A.08 and the reference to ‘costs on a party and party or some other greater basis as the judge deemsappropriate’, where an offer is made by the plaintiff, subsection (1) has been applied such that, ordinarily, where the defendant fails toaccept an offer as specified in the rule, costs after the date of service of the offer will be awarded on a solicitor and client basis”:Stockwood, paragraph 15.

She referred to this as the “presumptive” rule. [12] Later in the same judgment, the learned justice distinguished between the operation of Rules 20A.08 and Rule 20A.10: “Asimilar presumptive approach does not apply to rule 20A.10. This difference is a result of the differing language, with rule 20A.08 beingmore specific. By way of contrast, rule 20A.10 simply provides that an offer to settle may be taken into account when the courtexercises its discretion in ordering costs”: Stockwood, paragraph 17. [13] Welsh, J.A. also alluded to Cameron, J.A.’s

interpretation of Rule 20A.10 in Rowe v. Raleigh Industries of Canada Ltd., 2005NLCA 65: “The whole purpose of rule 20A.10 is to permit a judge to consider an offer of settlement in circumstances which are notdirectly governed by other aspects of Rule 20A. The most obvious example of its use is where the time requirements of rule 20A.08 arenot met. However, I would not limit its use to this example”: Rowe, paragraph 34. [14] This is the law I will apply to the issues I stated above. I turn now to analyze those issues starting with the background to them. Analysis Background

[15] When I gave judgment on March 22, 2017 in the action between the Penney’s and the Pitts, I ordered the Pitts to pay thePenney’s “costs to be taxed according to Column 3 of the Scale of Costs; including the costs of the originating application that the…[Penney’s] took out against the…Pitts] for an injunction before beginning this application”: Paragraph 4 of the Final Order dated andfiled on June 7, 2017. [16] The Penney’s made a formal offer to the Pitts on April 15, 2016 to settle the quieting of titles application.

In particular, theyagreed “…to settle the claim against the…[Pitts] and…forgo seeking costs up to the date herein against the…[Pitts] in consideration ofthe…[Pitts] withdrawing their Adverse Claim within seven (7) days herein”. The Penney’s served this offer to settle on counsel for thePitts’. The Pitts’ did not accept the offer and the Penney’s did not revoke or withdraw it. [17] I started the trial on September 13, 2016 and continued it on September 14, 2016 and March 8 and 9, 2017. I reserved myjudgment and filed it on March 22, 2017.

In addition to the order of costs that I set out above, I dismissed the Pitts’ adverse claim. I alsodeclared that the Penney’s owned the land they had applied for and I directed that a certificate of title confirming they owned theproperty issue to them under the Quieting of Titles Act. [18] On May 10, 2017, counsel for the Penney’s forwarded a draft bill of costs to counsel for the Pitts and included with it a copy ofthe offer to settle that the Penney’s made more than a year earlier on April 15, 2016. Counsel for the Penney’s drafted the bill of costs.

He claimed, as provided for in Rule 20A.08 (1), party and party costs plus taxed disbursements to the date of service of the offer tosettle and after that date, double party and party costs plus taxed disbursements.

But the Penney’s did not apply to this Court under Rule20A.08 (3) (b) “…for a determination as to costs based on the application of Rule 20A…within 15 days following the filing or deliveryof the decision or order…”. [19] Ultimately, counsel for the parties met with a taxing master of this Court and the Penney’s asked him for double party andparty costs because of the offer to settle they made to the Pitts on April 15, 2016. The Pitts noted for the taxing master that the Penney’sfailed to apply under Rule 20A.08(3)(

b) for this Court to determine costs because of the offer to settle. The taxing master wiselydeclined to tax the Penney’s bill of costs pending a decision from this Court on the effect of the Penney’s offer to settle. The Penney’sfiled this interlocutory application on March 3, 2018 to decide the effect of their offer to settle. [20] This is the background to the Penney’s application. I turn now to discuss the issues I stated earlier, starting with the Pitts’claim that I am functus officio the issue of costs. Discussion Functus Officio [21] In McLean v.

Carr Estate, Cameron, J.A. said that “Functus officio means, literally, having discharged his duty”. That is tosay, the judge has decided all issues that were before him in the cause. In the matter of Penney v. Pitts, 2017 NLTD(G) 60, I had twoissues to decide: if the Penney’s proved on a balance of probabilities they owned the land they claimed at Canning’s Cove; and if so,were they entitled to costs. [22] I dealt with both issues, finding first that they proved they owned the land and declaring them to own it; and then ordering thePitts to pay the Penney’s costs.

As to costs, I did not know when I made the order that the Penney’s had offered to settle the matter onApril 15, 2016, so I simply ordered the default position of costs that Rule 55.04 (2) provides for; or costs “according to Column 3 of theScale of Costs”. [23] I filed my written decision in the matter on March 22, 2017. The Penney’s filed the formal order from my decision on June 7,2017, stating the relief that I granted them in my written reasons. Thus, I dealt with the issues before me in that cause, or to paraphraseCameron, J.A. in McLean v. Carr Estate, I discharged my duty.

It is true that I did so only to the extent of what I knew at the time. WhatI did not know when I made my decision and when I endorsed the order the Penney’s tendered as a final order, was that they had offeredto settle the matter with the Pitts several months before the trial began. [24] The Penney’s might have applied under Rule 20A.08(3) for me to determine their costs because of the offer to settle they madeto the Pitts on April 15, 2016; but they did not.

Had they applied, of course, my order on costs would be, to use the words from the Rule,“deemed to be suspended and of no force and effect” until I dealt with the application to determine costs because of the offer. Without aRule 20A.08(3) application, my order was not suspended and continued to remain in full force and effect. The June 7, 2017 filing datewas also the beginning of the 30-day appeal period that expired on July 7, 2017, with neither party appealing my decision. [25] While I rely on Cameron, J.A.’s statement of the law in McLean v.

Carr Estate to decide the issues in this matter, I find thefacts of the case equally instructive. I will elaborate. [26] Keith McLean overturned his all-terrain vehicle after hitting a raised culvert on a back road and injured himself. He wasadmitted to hospital and died there. His family sued various parties because of Mr. McLean’s death, including a medical doctor,Adeleke E. Badejo. The trial judge found Dr. Badejo, the third defendant, liable for Mr. McLean’s death. In particular, the trial judgefound that Dr. Badejo failed to order a CT scan soon enough after Mr. McLean was admitted to hospital for Dr.

Badejo to operate on Mr.McLean after he began showing signs of increasing intra-cranial pressure from his injuries. [27] The trial judge’s decision on liability appears as McLean et al. v. Carr Estate et al., (NL SC), [1994] N.J.No. 119, 116 Nfld. & PEIR 271 (Nfld. S.C.T.D.) (I call this McLean #1). The other defendants were the executor of the estate ofMichael Carr as first defendant, George A. Fox as second defendant and the General Hospital Corporation as fourth defendant. The trialjudge dismissed the action as against the first, second and fourth defendants. [28] The trial judge assessed damages for Mr.

McLean’s death separately from his hearing on liability. His decision on damagesappears as McLean et al. v. Carr Estate et al., (NL SC), [1994] N.J. No. 383, 125 Nfld. & PEIR 165 (Nfld. S.C.T.D.)(I call this McLean #2). The trial judge also dealt with costs in the same reasons. In particular, he found that it was reasonable for the

plaintiffs to have sued the first, third and fourth defendants, as well as the third defendant; but he ordered the third defendant to pay suchcosts to the other defendants as the plaintiffs might otherwise have to pay to them. [29] The trial judge referred to this order on costs as a Bullock Order which he described as “…one in which a plaintiff whoreceived judgment against one of several defendants, but has the action dismissed against others, is entitled to recover costs, includingthose paid to the successful defendants, from the unsuccessful defendant”: McLean #2, paragraph 46. [30] The trial judge also considered whether he was functus officio as to costs; but decided that he was not.

He questioned himselfrhetorically about jurisdiction to make a Bullock Order because he had earlier made an order for costs in which he required the plaintiffsto pay the taxed costs of the first, second and fourth defendants. The trial judge made the initial order as to costs on March 4, 1994 andthe formal order including the part dealing with costs was filed on March 9, 1994.

The final order was, as the trial judge said, “…prepared by the plaintiff’s, [and] initialed by a brother judge (presumably because I was unavailable)”: McLean #2, paragraph 39. [31] The trial judge relied on Rule 15.07 to replace his earlier order with the Bullock Order. He answered the third defendant’sclaim that he was functus officio as to costs because of his earlier order this way: “Rule 15.07 provides that an order can be amended toprovide for any matter which should have been adjudicated upon. I am satisfied the matter of entitlement to a Bullock Order should havebeen adjudicated upon.

In these circumstances I believe I have authority to amend the order entered”: McLean #2, paragraphs 44 &45. [32] The third defendant appealed the trial judge’s Bullock Order. I referred to this decision earlier when I stated the law thatapplies to functus officio. I repeat the citation for it: McLean v. Carr Estate, (NL CA), [1996] N.J. No. 181, 142Nfld. & PEIR 25 (Nfld. C.A.) (I refer to it in the balance of these reasons as McLean #3). Cameron, J.A. found that the trial judge wasfunctus officio costs when he made the Bullock Order and she set it aside.

She reverted to the earlier order that the trial judge made inhis March 4, 1994 decision, as formalized by the order the plaintiffs filed on March 9, 1994. [33] This is the ratio of Cameron, J.A.’s decision: “In this case, no one argued the possibility of a Bullock order prior to March 4, 1994. The drafting and filing of the order of March 9,1994 reflecting the decision of March 4, 1994 indicates that this was not some error in understanding on the part of the parties or the trialjudge.

If the trial judge had determined costs at the same time as liability as a result of a misunderstanding as to the timing ofconsideration of costs one would have expected counsel for the first respondents to have made his application for a Bullock order beforedrafting the order of March 9, 1994 or, alternatively, the trial judge would have referred to this in his reasons for reopening the issue. It seems to me that this is a case of failure to make an argument.

There is nothing in law which requires that a Bullock order be made inthe circumstances of this case….The trial judge made a determination as to costs in the March 4, 1994 decision which was formalized inthe subsequent order. He was, therefore, functus officio and had no jurisdiction to make the Bullock order. I would add only that had hehad that jurisdiction, I would not have interfered with the order. The Bullock order is, therefore, overturned.

The order of March 9, 1994is, of course, valid and applies”: McLean #3, paragraphs 17 & 18. [34] The facts of the McLean cases make the Cameron, J.A.’s decision particularly compelling authority for my finding in this casethat I am functus officio.

Let me summarize the circumstances Cameron, J.A. relied on in the McLean cases to set aside the BullockOrder because she found that the trial judge was functus officio as to costs when he made the it: • No one argued the possibility of a Bullock Order before the trial judge made his initial decision on costs; • The drafting and filing of the formal order indicates that the initial costs order did not result from a misunderstanding by theparties or the trial judge; • If the trial judge had initially determined costs because of a misunderstanding, plaintiffs’ counsel should have applied for aBullock order before drafting and filing the formal order; • It was a case of failing to make an argument; and • The trial judge’s initial decision on costs was formalized in the subsequent order and became a final order, which the trial judgecould neither correct nor amend. [35] The parallels between the McLean cases and this one are so obvious that I will not state them.

Suffice to say that those parallelsjustify my finding that I am functus officio because of the order I made on March 22, 2017, as formalized by the final order the Penney’sfiled on June 7, 2017. [36] I note here, as well, that the Penney’s have also asked me to consider “correcting” or “amending” my order by applying Rule15.07 of the Rules of the Supreme Court, 1986.

It will be recalled that Rule 15.07 allows a Court to correct “clerical mistakes indecisions or orders, or errors arising therein from any accidental mistake or omission, or an amendment to provide for any matter whichshould have but was not adjudicated upon, may at any time be corrected or granted by the court, without appeal”. My order for costs tothe Penney’s is neither a clerical error, the result of mistake or omission, nor does it involve a matter on which I failed to adjudicate.

Imade my order as to costs definitively, acting on the best information I had at the time. [37] Cameron, J.A. acknowledged in McLean v. Carr Estate that it can be difficult at times to draw a line between “an omission bythe trial judge - a failure to do something which should have been done - and the discharge of the duty but failing to consider someargument which had someone, whether counsel or judge, thought about it might have had an impact on the result”; but this is not one ofthose cases. Costs under Rule 20A.10

[38] The Penney’s claim that Rule 20A.10 gives me discretion to review my order and vary it if appropriate. It reads:“Notwithstanding the provisions of this rule, the court, in exercising its discretion as to costs, may take into account any offer to settlemade in writing, the date the offer to settle was served, the terms thereof and any other relevant matters”. It is true that Rule 20A.10allows a Court to consider an offer to settle that may not comply with Rule 20A. [39] For example, in Rowe v.

Raleigh, that I referred to earlier, Cameron, J.A. noted that “[t]he whole purpose of rule 20A.10 is topermit a judge to consider an offer of settlement in circumstances which are not directly governed by other aspects of Rule 20A”. Sheconsidered the “…most obvious example of its use is where the time requirements of rule 20A.08 are not met: Rowe, paragraph 34. Similarly, in Stockwood v.

Hayden, Welsh, J.A. noted that “…rule 20A.10 simply provides that an offer to settle may be taken intoaccount when the court exercises its discretion in ordering costs”: Stockwood, paragraph 17. [40] Welsh, J.A. also drew an important distinction between costs ordered under Rule 20A.08 and costs awarded under Rule20A.10: If a party complies with the conditions in Rule 20A.08 it is “presumed” that the costs awarded will be on costs on “some othergreater basis” than party and party costs. This is not so under Rule 20A.10, where the costs are not presumed.

It is true that Rule 20A.10confers an overriding discretion on me as to costs but the discretion is not so robust as to offset the impact of the doctrine of functusofficio in this case. [41] Let me offer some instances when Rule 20A.08 was not available and this Court either stated when costs may be ordered underRule 20A.10 or actually used Rule 20A.10 to order costs in its stead: • Marcotte v. Martin, 2004 NLSCTD 56 , 2004 NLTD 56: The defendant applied under Rule 20A.10 because the offer tosettle the defendant made to the plaintiff was less favourable than the judgment the plaintiff obtained.

Thus, the offer to settle did notcomply with Rule 20A.08(2). • Stockwood v. Hayden, 2010 NLCA 68: The Court considered costs in a family matter under Rule 20A.10 and not under 20A.08because the “…element of a trade-off [involved in assessing offers to settle under Rule 20A.08] does not comport well in the context ofcustody, access and parenting issues which are concerned with the best interests of the child”: Stockwood, paragraph 27. • Rowe v. Raleigh Industries of Canada Ltd., 2005 NLCA 65: If a plaintiff is totally unsuccessful, Rule 20A.08 does not apply butresort may be had to Rule 20A.10. • Kielley v.

General Hospital Corp. et al., (NL SC), [1998] N.J. No. 213, 167 Nfld. & PEIR 343 (Nfld.S.C.T.D.): The defendant served an offer to settle on the plaintiff less than seven days before trial. Thus, the offer did not comply withthe time limit set out in Rule 20A.02. The Court said it would have reviewed the offer under Rule 20A.10 if it had considered the offer a“proper” one; which it did not. • Cable v. Cable, 2010 NLCA 31: Rule 20A.08 does not apply when a plaintiff to whom an offer has been made does not obtain ajudgment in his or her favour.

However, under Rule 20A.10 the existence of a settlement offer may be considered even if Rule 20A.08does not apply. [42] I intend the preceding to be an illustrative, not an exhaustive sampling of when a court might use Rule 20A.10 to declare costsbecause Rule 20A.08 is not available.

It will be apparent that a Court may resort to Rule 20A.10 in a variety of instances; for example, ifthe offer to settle the party who made it is relying on is less favourable than the judgment the party opposite receives; in family mattersinvolving non-monetary issues; if the party offering fails completely to obtain judgment in his/her favor; if the offer is outside the timelimit set in Rule 20A.08; and the like. [43] It is clear from my review of the law, that a party who makes an offer to settle and does not apply to the judge within 15 daysfollowing the filing or delivery of the judge’s decision or order to determine costs by applying Rule 20A.08 cannot resort to Rule20A.10.

This is especially so where, as here, the final order has been filed. The matter is res judicata at that point and the trial judge isfunctus officio. [44] Let me summarize my findings this way: I have no basis to reopen the order under Rule 15.07 nor do I have jurisdiction toreconsider the costs order. My ruling on costs in my March 22, 2017 judgment crystallized into a final order when the Penney’s filed theformal order on June 7, 2017. I am, as the Pitts claim, functus officio as to costs in this matter and I dismiss the Penney’s application toreconsider my original costs order.

Costs [45] The Penney’s will pay the Pitts their costs of this application to be taxed on Column 3 of the Scale of Costs.

Summary and Disposition [46] David and Elsie Penney applied to quiet the title to land they claimed at Canning’s Cove, NL. Bruce and Murley Pitts opposedtheir application and filed an adverse claim. The Penney’s served a formal offer to settle the matter on the Pitts on April 15, 2016 bywhich the Penney’s would forego any costs they had incurred to the date of the offer if the Pitts withdrew their adverse claim. [47] The Pitts did not accept the offer to settle and the Penney’s did not withdraw or revoke it. The matter proceeded to trial and theCourt dismissed the Pitts’ adverse claim.

The Court also ordered the Pitts to pay the Penney’s their costs to be taxed on Column 3 of theScale of Costs. The Penney’s failed to apply within 15 days of judgment for the Court to determine costs based on their offer to settle. The Penney’s filed a formal order, incorporating the costs’ order the trial judge made. The Penney’s applied to have costs determinedunder Rule 20A.10. The Pitts opposed their application. [48] The Court dismissed the Penney’s application. It found that it was functus officio and had no jurisdiction to reconsider theinitial costs’ order it made.

It ordered the Penney’s to pay the Pitts the costs of this application, to be taxed on Column 3 of the Scale of

Costs Order [ 49 ] In the result, I order that: 1. The application is dismissed. 2. David and Elsie Penney pay Bruce and Murley Pitts costs of the application, to be taxed on Column 3 of the Scale of Costs. _____________________________ Garrett A. Handrigan Justice