CHAPTER 308

FORMERLY

SENATE BILL NO. 152

AS AMENDED BY HOUSE AMENDMENT NO. 3

AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO CONDEMNATION PROCEDURES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Section 6111, Chapter 61, Title 10 of the Delaware Code by deleting the period '.' at the end of the second sentence of said section and inserting in lieu thereof the following:

except as follows:

(a) At any time prior to the day before the compensation trial of a condemnation proceeding begins, the plaintiff shall serve upon the
defendant(s) an offer to allow judgment to be taken against the plaintiff, in accordance with the terms of the offer, exclusive of court costs and interest. If the defendant(s) accept the offer by serving a written notice of acceptance upon the plaintiff, either party may then file the offer and notice of acceptance with the Court, together with proof of service thereof, and thereupon the Prothonotary shall enter the notice of acceptance as if it were the final award pursuant to Section 6108 of this Chapter. An offer not accepted prior to the swearing of the commissioners pursuant to Section 6108(C) of this Chapter shall be deemed withdrawn, and evidence thereof is not admissible except in a later proceeding to determine costs pursuant to this section. The fact that an offer is made but not accepted shall not preclude a subsequent offer.

(b) If the award of just compensation, exclusive of interest, is closer to the highest valuation evidence provided at trial on the defendant's behalf than the plaintiff's offer made under subsection (a) of this section, the defendant may apply for an order for the plaintiff to pay the defendant's reasonable litigation expenses, including reasonable attorney, appraisal, engineering, or other expert witness fees actually incurred because of the compensation trial, by serving on the plaintiff and filing with the Prothonotary a verified application therefor within fifteen days after the final confirmed condemnation award. The application shall show cause why the defendant is entitled to an award pursuant to this subsection; state the amount sought; and include an itemized statement under oath from an attorney or expert witness representing or appearing at trial on behalf of the defendant stating the fee charged, the basis therefor, the actual time expended, and all actual expenses for which the recovery is sought. If requested by any party, or upon its own motion, the court may hear the parties with respect to the matters raised by the application and determine the amount of litigation expenses to be awarded. Any order of the court awarding expenses pursuant to this subsection shall be filed with the Prothonotary and, unless appealed within thirty days, shall be a final order. Any expenses awarded by the court pursuant to this subsection shall be paid within thirty days of the court's final order. The court, in its discretion, may reduce the amount to be awarded pursuant to this subsection, or deny such award, to the extent that the defendant, during the course of the proceeding, engaged in conduct which unduly and unreasonably protracted the final resolution of the action, or to the extent the court finds that the position of the plaintiff was substantially justified, or that special circumstances make an award of expenses unjust. In no event shall the amount of the expenses awarded pursuant to this subsection exceed the amount awarded as just compensation.

(c) If the award of just compensation, exclusive of interest, is lower than the plaintiff's offer made under subsection (a) of this section, the plaintiff may apply for an order for the defendant to pay the plaintiff's reasonable litigation expenses incurred after the service of the offer, excluding attorney fees but Including reasonable appraisal, engineering, or other expert witness fees actually incurred because of the condemnation trial, by serving on the defendant and filing with the Prothonotary a verified application therefor within fifteen days after the final confirmed condemnation award. The application shall show cause why the plaintiff is

entitled to an award pursuant to this subsection; state the amount sought; and include an itemized statement under oath from an attorney or expert witness representing or appearing at trial on behalf of the plaintiff stating the fee charged, the basis therefor, the actual time expended, and all actual expenses for which the recovery is sought. If requested by any party, or upon its own motion, the court may hear the parties with respect to the matters raised by the application and determine the amount of litigation expenses to be awarded. Any order of the court awarding expenses pursuant to this subsection shall be filed with the Prothonotary and, unless appealed within thirty days, shall be a final order. Any expenses awarded by the court pursuant to this subsection may be deducted from the award of just compensation, unless payment of the expenses awarded is otherwise made within thirty days of the court's final order. The court, in its discretion, may reduce the amount to be awarded pursuant to this subsection, or deny such award, to the extent that the plaintiff, during the course of the proceeding, engaged in conduct which unduly and unreasonably protracted the final resolution of the action, or to the extent the court finds that the position of the defendant was substantially justified, or that special circumstances make an award of expenses unjust. In no event shall the amount of the expenses awarded pursuant to this subsection exceed the amount awarded as just compensation."

Section 2. This provision of this Act shall become effective for all

condemnation proceedings filed after August 1, 1994.