CAJUN ELECTRIC POWER COOPERATIVE
v.
OWENS-CORNING FIBERGLASS CORPORATION.
Supreme Court of Louisiana.
Michael J. Furman and David M. Whitaker, Lemle & Kelleher, New Orleans, for applicant.
W. Paul Anderson and Stantopn E. Shuler, Jr., Leake & Anderson, New Orleans, for respondent.
MARCUS, Justice[*].
On December 18, 1980, Cajun Electric Power Cooperative, Inc. (Cajun) filed suit against Owens-Corning Fiberglass Corp. (Owens) for failure to provide Cajun with a properly functioning circulating water pipe at Cajun's power plant in New Roads, Louisiana. On September 4, 1981, Owens filed several third party demands including a third party demand against Bovay Engineers, Inc. (Bovay). Subsequently, Owens and Cajun settled the main demand. A judge trial was held on Owens' third party claims. On July 19, 1984, Owens' third party claim against Bovay was dismissed pursuant to La.Code Civ.P. art. 1672(B).[1]*646 The judgment of dismissal was silent as to costs. On November 15, 1988, Bovay filed a rule to tax costs for experts. On November 16, 1989, judgment was rendered in favor of Bovay fixing expert witness fees at $72,568.73. The court of appeal affirmed. Cajun Elec. Power Co-Op v. Owens-Corning Fiberglass Corp.,
The issues for our determination are whether interest can be awarded on a judgment for expert witness fees taxed as court costs and, if so, from what date.
Owens contends that awarding interest on a judgment for expert witness fees taxed as court costs is contrary to this court's decision in De Lizardi v. Hardaway,
A court has authority to render a "judgment for costs." La.Code Civ.P. art. 1920. Expert witness fees are taxed as costs and, once fixed, form a part of the final judgment. La.R.S. 13:3666. Clearly, under these provisions, an award of expert witness fees assessed as court costs against a judgment debtor is a money judgment in favor of the party who incurred the court costs. Bd. of Trustees v. All Taxpayers,
Next, we must determine the date on which interest begins to accrue on an award of expert witness fees assessed as court costs. Owens contends that the court of appeal erred in awarding interest from the date of judicial demand. We agree. "When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due...." La.Civ.Code art. 2000 (emphasis added). Thus, our inquiry is narrowed. We must determine when the money owed Bovay, the judgment creditor, became due. The judgment in favor of Bovay reimbursed Bovay for court costs incurred through its participation in litigation. Courts have great discretion in assessing court costs. "[T]he court may render judgment for costs, or any part thereof, against any party, as it may consider equitable." La.Code Civ.P. art. 1920. Hence, until rendition of a judgment, no sum is due to either party upon which to award interest. Once expert witness fees are fixed under La.R.S. 13:3666, a certain and liquidated sum is due the judgment creditor from the judgment debtor. Accordingly, we hold that interest accrues on an award of expert witness fees taxed as court costs from the date of judgment fixing such fees. This holding is in line with this court's prior decision of Hill v. Hill,
In sum, we hold that interest on expert witness fees assessed as court costs is recoverable and that it accrues from the date the judgment was rendered fixing the amount of expert witness fees as court costs.
DECREE
For the reasons assigned, the judgment of the court of appeal is amended to award interest from November 16, 1989, the date of the judgment fixing court costs; otherwise, the judgment of the court of appeal is affirmed. Each party is assessed the costs incurred by it in the present proceedings.
LEMMON, J., concurs and will assign reasons.
DENNIS, J., concurs in part and dissents in part and assigns reasons.
ORTIQUE, J., dissents and assigns reasons.
DENNIS, Justice, concurring in part and dissenting in part.
I respectfully concur in the majority's decision of the first issue but dissent from its decree and rationale in fixing the point at which interest shall begin to accrue as of the date of judgment, rather than as of the date of Bovay's judicial demand.
My colleagues fail to convincingly demonstrate that the judgment here is not one "sounding in damages, `ex delicto'", upon which legal interest attaches from the date of judicial demand. La.R.S. 13:4203. If the third party plaintiff had prevailed in its suit based on Bovay's alleged professional negligence in the design and installation of a circulating water line, its judgment would have "sounded" in tort, entitling it to interest from the date of judicial demand. It is difficult to see why the rule should be different when the shoe is on the other foot. Moreover, where one party injures another by filing a groundless suit and the court decides that reparation is due for the costs incurred in defense of the unworthy action, the debtor should recompense the creditor for wrongfully depriving him of the loss of use of that sum in accordance with the fundamental and equitable principle of La.Civ.C. art. 2315, whether the underlying lawsuit sounds in contract or tort. See, Comment, The Running of Legal Interest in Louisiana, 6 Tul.L.Rev. 614, 615-16 (1932).
If the majority is of the opinion that Bovay's judgment should be reduced because of its failure to mitigate its damage by promptly pursuing its claim for costs, that adjustment should be made in applying La.Civ.C. art. 2002 by analogy, rather *648 than by establishing the starting point for interest at the date of judgment for all future cases.
ORTIQUE, Justice, dissenting.
I respectfully dissent from the majority opinion. I am uneasy about directing our lower courts to award judicial interest on expert witness fees taxed as court costs from the date of judgment fixing such fees. I think that decisions like the majority opinion only contribute to the escalating costs associated with litigation, especially expenses associated with appellate litigation.
In my view, the proper approach is to not allow interest on the portion of a judgment representing costs. Heretofore, expert witness fees were taxed as costs, not damages, and interest was not recoverable on costs. See DeLizardi v. Hardaway,
For these policy considerations, I would continue to not allow interest on that portion of the judgment representing costs. The more equitable approach would be to allow the trial court judges to award judicial interest on expert witness fees as well as other costs as they in their sole discretion deem meet.
NOTES
Notes
[*] Pursuant to Rule IV, Part 2, § 3, Kimball, J. was not on the panel which heard and decided this case. See the footnote in State v. Barras,
[1] La.Code Civ.P. art. 1672(B) provides:
In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.
[2]
[3]