MARC E. JOHNSON, Judge.
Defendants, DaMetry Store, L.L.C. and Nautilus Insurance Company, appeal the trial court's refusal to assess all costs of litigation to plaintiffs, Martha Carcamo and Juan Carcamo, after plaintiffs lost their case at the conclusion of a three-day jury trial. For the reasons that follow, we affirm the trial court's ruling.
In December 2008, plaintiffs filed suit against Raw Bar, Inc. d/b/a Acme Oyster House
The matter proceeded to trial in February 2011. After a three-day trial, the jury returned a verdict in favor of Acme. In answering the jury interrogatories, the jury specifically found plaintiffs failed to prove the condition at issue presented an unreasonable risk of harm, failed to prove the risk of harm was foreseeable, failed to prove Acme had actual or constructive notice of the alleged defect, and failed to prove Acme did not exercise reasonable care. Plaintiffs subsequently filed a motion for judgment notwithstanding the verdict and, alternatively, a motion for new trial, both of which were denied by the trial court in May 2011.
Thereafter, in December 2011, Acme filed a Rule to Show Cause seeking a judgment against plaintiffs for costs and expert fees in the amount of $14,509.45 under La. C.C.P. arts. 970 and 1920. In support of its position, Acme submitted various exhibits including an offer of judgment for $15,000, which it made to plaintiffs in July 2009. Acme alleged plaintiffs never responded to the offer of judgment. Acme also submitted a letter sent to plaintiffs dated November 2011, itemizing costs it deemed owed as a result of the judgment rendered in Acme's favor and the offer of judgment.
After a hearing on the Rule to Show Cause, the trial court denied Acme's request for the taxing of costs. The trial court explained:
Louisiana Code of Civil Procedure Article 970 provides for the payment of costs when an offer of judgment has been made and rejected. The purpose of Article 970 is to compensate the rejected offeror who was forced to incur greater trial litigation costs than he would have if the offeree had accepted his settlement offer. Hacienda Construction, Inc. v. Newman, 10-18 (La.App. 5 Cir. 6/29/10), 44 So.3d 333, 337. Article 970 is punitive in nature and, therefore, must be strictly construed. Id.
In reaching its decision, the Supreme Court explained that the purpose of Rule 68 is to encourage the settlement of litigation. It noted that while the adverse consequences of potential defeat provide both parties with an incentive to settle in advance of trial, Rule 68 provides an additional incentive to settle those cases in which the plaintiff has a strong probability of obtaining a judgment but the amount of recovery is uncertain. It explained that if the plaintiff rejects a Rule 68 settlement offer, he loses some benefits if his recovery is less than the offer. The Supreme Court noted that because costs are usually assessed against the losing party, Rule 68 would provide little additional incentive if it were applied when the plaintiff loses. August, 450 U.S. at 352, 101 S.Ct. at 1150.
In Cotton v. Delta Queen Steamboat Co., Inc., 09-736 (La.App. 4 Cir. 1/6/10), 36 So.3d 262, 272, the Fourth Circuit relied on August and determined that La. C.C.P. art. 970 likewise did not apply when a defendant-offeror prevails over a plaintiff-offeree. As such, the court upheld the trial court's denial of the defendant-offeror's motion for litigation costs subsequent to its offer of judgment made pursuant to Article 970, noting that the defendant had prevailed over the plaintiff.
The language of Article 970(C) clearly states that it applies only if a final judgment is obtained by the plaintiff against the defendant, regardless of who is the offeror or the offeree. In this case, the Carcamos never obtained a judgment against Acme, but rather Acme obtained a judgment against the Carcamos. Guided by the United States Supreme Court's ruling and rationale in August, and agreeing with our brethren of the Fourth Circuit in Cotton, we find Acme was not entitled to judgment ordering the Carcamos to pay costs after an offer of judgment under La. C.C.P. art. 970.
Acme also sought costs under La. C.C.P. art. 1920, which states, "[e]xcept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable." Special statutes enumerate the expenses that may be taxed as costs. See La. R.S. 13:4533 and 13:3666. While it is the general rule that the party cast in judgment should be taxed with costs, the trial court may assess costs in any equitable manner and against any party in any proportion it deems equitable, even against the party prevailing on the merits. Saunders v. Hollis, 44,490 (La. App. 2 Cir. 8/19/09), 17 So.3d 482, 485-86, writ denied, 09-2221 (La.12/18/09), 23 So.3d 945. The trial court has great discretion in awarding costs and a trial court's assessment of costs can be reversed only upon a showing of abuse of discretion. Hacienda Construction, Inc. v. Newman, 44 So.3d at 337.
The trial judge declined to assess costs against plaintiffs in this case. In doing so, the trial judge explained her reasons which we set forth above. While we recognize that generally the prevailing party is not assessed costs unless he incurred additional costs pointlessly or engaged in other conduct which justified an assessment of costs against him, the trial judge has great discretion in this regard.
For the foregoing reasons, we affirm the trial court's denial of DaMetry Store, L.L.C. and Nautilus Insurance Company's rule to show cause denying costs. Each party is to bear their own costs for this appeal.