Sonjia WEINSTEIN and Trey Warren, Appellants (Defendants), v. Gary BEACH and Susan Beach, husband and wife, Appellees (Plaintiffs).
No. S-14-0070.
Supreme Court of Wyoming.
Dec. 22, 2014.
2014 WY 167 | 340 P.3d 1013
appropriate for application in the administrative context. Tenorio v. State ex rel. Wyo. Workers’ Comp. Div., 931 P.2d 234, 238 (Wyo.1997). Tarver, ¶¶ 10-11, 327 P.3d at 80.
[¶34] We decline to address whether or not the doctrine of collateral estoppel bars Price‘s second application for a private road. Given our discussion regarding substantial evidence, this Court‘s decision on appeal is determinative that County Road 58 qualifies as a public road. Therefore, whether or not collateral estoppel applies is moot.
CONCLUSION
[¶35] We affirm the Crook County Board of Commissioners’ decision to deny Price‘s application for a private road. We conclude that substantial evidence exists such that the application is properly denied, and that the actions of the Board were not arbitrary or capricious. Furthermore, the record does not establish the high level of inconvenience required to establish necessity.
[¶36] This Court further affirms the district court‘s decision denying Price‘s request that the final result be set aside because of the malfunctioning audio equipment. We also conclude that the Hearing Officer did not act with impropriety.
erred in applying
ISSUE
[¶2] Defendants state the issue on appeal as follows:
I. Whether the district court abused its discretion by denying the majority of the costs requested by [Defendants] pursuant to
Wyo. R. Civ. P. 68 ?
FACTS
[¶3] On August 11, 2011, Plaintiffs filed a complaint against Defendants alleging injuries from carbon monoxide poisoning caused by a gas stove on a property Plaintiffs were renting from Defendants. On August 8, 2012, Defendants made a $5,000 offer of settlement to Plaintiffs pursuant to
[¶4] The matter was tried to a jury on August 19-23, 2013, and the jury returned a verdict in favor of Defendants. On September 17, 2013, the district court issued a Judgment Upon Jury Verdict. In addition to entering judgment in favor of Defendants, the court ordered that “Defendants are entitled to costs pursuant to
[¶5] On September 23, 2013, Defendants filed a motion and statement for costs pursuant to
[¶6] On December 17, 2013, the district court entered an order awarding Defendants costs in the amount of $1,326.05. The court agreed that Plaintiffs’ objection had accurately identified the only allowable costs, which were costs for three depositions and a por-
Representing Appellees: David B. Hooper of Hooper Law Offices, P.C., Riverton, WY.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
HILL, Justice.
[¶1] Gary and Susan Beach (Plaintiffs) filed a complaint against Sonjia Weinstein and Trey Warren (Defendants) alleging injuries from carbon monoxide poisoning caused by Defendants’ failure to maintain a property they rented to Plaintiffs. Defendants made a
Pursuant to Rule 68 of the Wyoming Rules of Civil Procedure, the defendants are entitled to recover their costs subsequent to their offer as the jury found in defendants’ favor. Rule 501 of the Uniform Rules for the District Court sets forth allowable costs. Without belaboring the point, the vast majority of the items detailed in the defendants’ $45,410.62 claim are simply not allowable costs. A significant number are not costs at all, as that term is generally understood and utilized in Rule 501, but are personal expenses of counsel which are in no sense “costs” related to this litigation.
[¶7] On January 10, 2014, Defendants filed their notice of appeal from the district court‘s order awarding fees.
STANDARD OF REVIEW
[¶8] An award of costs is reviewed for an abuse of discretion. Beckwith v. Weber, 2012 WY 62, ¶ 32, 277 P.3d 713, 721 (Wyo.2012) (citing Wilson v. Tyrrell, 2011 WY 7, ¶ 58, 246 P.3d 265, 281 (Wyo.2011); Meyer v. Hatto, 2008 WY 153, ¶ 25, 198 P.3d 552, 557 (Wyo.2008)). “Abuse of discretion occurs when a court exceeds the bounds of reason or commits an error of law.” Beckwith, ¶ 54, 277 P.3d at 725 (quoting Combs v. Sherry-Combs, 865 P.2d 50, 55 (Wyo.1993)). “The burden is placed upon the party who is attacking the trial court‘s ruling to establish an abuse of discretion, and the ultimate issue is whether the court could reasonably conclude as it did.” Jones v. Artery, 2012 WY 63, ¶ 8, 275 P.3d 1244, 1247 (Wyo.2012) (quoting Nish v. Schaefer, 2006 WY 85, ¶ 16, 138 P.3d 1134, 1137 (Wyo.2006)).
[¶9] While the award of costs itself is reviewed for an abuse of discretion, the question of whether a particular cost provision applies requires construction of a court rule, which is a question of law that we review de novo. Stewart Title Guar. Co. v. Tilden, 2008 WY 46, ¶ 7, 181 P.3d 94, 98 (Wyo.2008); see also Marx v. General Revenue Corp., 668 F.3d 1174, 1178 (10th Cir. 2011) (citations omitted) (“We review an award of costs for an abuse of discretion. Whether costs provisions even apply is a legal question reviewed de novo.“).
DISCUSSION
[¶10] Defendants challenge the district court‘s award of costs on two grounds. First, Defendants contend that
[¶11] In our recent decision in Graus v. OK Investments, 2014 WY 166, 342 P.3d 365 (Wyo.2014), this Court held that where a party who makes an offer pursuant to
A. Applicability of U.R.D.C. 501 to W.R.C.P. 68 Award of Costs
[¶12] Defendants contend that when costs are awarded pursuant to
[¶13]
[¶14] First,
[¶15] Additionally, while this Court has observed that Rule 68 “is mandatory in that it provides that the offeree ‘must’ pay costs incurred after making the offer,” we have at the same time recognized that a district court retains its discretion to decide which post-offer costs should be awarded. Duffy v. Brown, 708 P.2d 433, 440 (Wyo.1985). For example, in Duffy, we reviewed the district court‘s denial of an award of costs under Rule 68 and remanded for the court‘s determination of whether the deposition costs allowed were reasonably necessary for the preparation of the case for trial, noting that “uses of the deposition in connection with the trial proceedings such as motions for summary judgment might serve to persuade the district court that the depositions were reasonably necessary, but it would not be required to so conclude.” Duffy, 708 P.2d at 441. This Court in Duffy also rejected the cost of preparing enlarged exhibits for trial, explaining, “We have found no authority in this state, nor have we been cited to any, for the proposition that the expense of preparing enlarged exhibits for trial is a taxable cost.” Duffy, 708 P.2d at 441; see also Crawford v. Amadio, 982 P.2d 1288, 1294-95 (Wyo.1997) (reviewing Rule 68 award of costs for abuse of discretion under
[¶16] Our conclusion that
[¶17] In summary, Rule 68 does not authorize payment of all post-offer costs or expenses. Those costs are not allowable unless authorized by
B. District Court‘s Application of U.R.D.C. 501
[¶18] As we noted at the outset of our discussion, because Defendants were the prevailing party in this matter, Rule 54(d), rather than Rule 68, governs the award of their costs. We thus turn to the question of whether the district court abused its discretion under Rule 54(d) and
[¶19] Defendants argue that if
1. Depositions of Roberts, Warren, and Foley
[¶20] We address first Defendants’ contention that they were entitled to costs of the depositions of Trey Warren, Dr. Roberts, and Dr. Foley.
(D) Costs of depositions.
(i) Costs of depositions are taxable if reasonably necessary for the preparation of the case for trial. A deposition is deemed reasonably necessary if:
I. Read to the jury as provided in Rule 32(a)(3),
W.R.C.P. ;II. Used at trial for impeachment concerning a material line of testimony (impeachment on a collateral issue does not fall within the scope of this rule);
III. Necessarily, and not merely conveniently, used to refresh the recollection of a witness while on the stand; or,
IV. Was taken at the request of a nonprevailing party.
The foregoing are meant to provide guidelines, and are not exhaustive. The use of depositions for trial preparation alone does not justify the imposition of costs.
[¶21] A party seeking the award of discovery deposition costs carries the burden of showing that those costs were reasonably necessary for trial preparation, in that they met one of the guidelines of
[¶22] Because the vast majority of the costs claimed by Defendants were not properly taxable as costs under
[¶23] With respect to the costs of Dr. Roberts‘s deposition, Defendants cite
[¶24] In this case, the district court, when it entered judgment in favor of Defendants, ordered that Defendants were entitled to an award of costs, and it ordered Defendants to comply with
[¶25] With respect to the deposition of Trey Warren, Defendants argue that the Rule 501 criteria are satisfied because the deposition was used to impeach or refresh a witness’ recollection. In particular, Defendants cite to the following testimony of Mr. Warren on cross-examination by Plaintiffs’ counsel:
Q. Do you recall talking about the stove during your deposition?
A. I do.
[permission granted to approach witness]
Q. On Page 10, beginning at Line 10, I said, “What did you do in response to that red tag in Exhibit 3 being placed on the stove?” Do you want to read your response?
A. Line 12. “Specifically, we took the stove to the dump and threw it out. And then I don‘t think it was much longer after that when Gary moved out and the place just sat idle for some time.
[¶26] In their motion for costs, Defendants again provided no explanation to the district court as to how Trey Warren‘s deposition was reasonably necessary for the preparation of the case for trial. For this reason alone, we find no abuse of discretion in the court‘s denial of costs related to Mr. Warren‘s deposition. Moreover, we are not persuaded, based on Defendants’ reference to the above-quoted passage, that the cost of the deposition would have qualified as an allowable cost pursuant to
2. Counsel‘s Travel Expenses for Depositions of Foley and Upton
[¶28] Defendants contend the district court abused its discretion in denying counsel‘s travel expenses for taking the depositions of Dr. Foley and Dr. Upton because both depositions were taken as trial depositions. This argument ignores one of the mandatory provisions of
3. Costs of Filing Fees and Obtaining Records
[¶29] Defendants do not cite to the precise costs that they contend should have been awarded as filing fees and “obtaining necessary records.” Their motion for costs, however, identifies two fax filing fees of $2.00 each and two items apparently relating to obtaining copies of documents, one for $100.05, and the other for $50.00. With respect to the $4.00 in filing fees, these were again arguably allowable costs, but given Defendants’ failure to identify the costs for the district court along with a Rule 501 basis for their award, we find no abuse of discretion in the court‘s denial of the costs. Defendants’ application for costs relating to obtaining records suffers the same defect. Moreover, Defendants have not explained how the costs relating to those records are allowable under Rule 501, which limits duplicating costs to those “necessarily incurred for documents admitted into evidence” and bars duplication costs “for documents for counsel‘s own use.”
CONCLUSION
[¶30] We hold that an award of costs pursuant to
Affirmed.
Gregory BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. S-14-0100.
Supreme Court of Wyoming.
Jan. 7, 2015.
2015 WY 4
Notes
The provisions ofGore v. Sherard, 2002 WY 114, ¶ 23, 50 P.3d 705, 712 (Wyo.2002).W.U.R.D.C. 501(a)(3)(D)(ii) do not contain a qualifying clause and are mandatory. The rule is specific in its provisions concerning the fees for depositions: “Reporters’ travel, per diem expenses and appearance fees will not be taxed as costs.” (Emphasis added.)