OPINION OF THE COURT
(July 20, 2011)
On August 28, 2009, a jury rendered a verdict in Melecia Terrell’s favor in a lawsuit against Coral World. Following the favorable verdict, Terrell sought costs for various litigation related expenses. The Superior Court awarded Terrell costs for some of her expenses but denied travel expenses, expert fees, and other miscellaneous expenses. Both Terrell and Coral World appealed the Superior Court’s award of costs. On appeal, Terrell argues that both the travel and expert witness expenses were recoverable under title 5, section 541 of the Virgin Islands Code and, therefore, the Superior Court abused its discretion by excluding these expenses, while Coral World argues that the Superior Court abused its discretion by awarding costs that are higher than the costs it approved in its Memorandum Opinion. Because travel expenses are not recoverable expenses under section 541, we will affirm the Superior Court’s denial of those expenses. But, because section 541 provides that witness fees are recoverable and does not require or authorize the court to consider non-statutory requirements for recovery, we will reverse the Superior Court’s denial of costs for expert witness fees. Lastly, because a significant portion of the Superior Court’s award of costs is not in accordance with findings in its Memorandum Opinion, we will reverse the Superior Court’s decision with respect to its total award of costs and remand the case to the court for a disposition on costs that is consistent with this opinion.
I. STATEMENT OF FACTS AND PROCEDURAL POSTURE
On April 9, 2005, Terrell and two minors, L.D. and M.T., visited Coral World, an underwater theme park on St. Thomas. While having lunch, the minors sustained injuries from a falling palm frond, and Terrell witnessed the events from the immediate vicinity.
Terrell filed the instant complaint with the Superior Court on August 25, 2005, on her own behalf and as next of friend for L.D. and M.T. (J.A.
On September 16, 2009, Terrell filed a motion for an award of costs pursuant to 5 V.I.C. § 541, seeking a total of $94,820.82 in costs. (J.A. 4, 42-48.) Coral World filed an opposition to Terrell’s motion and in response, Terrell filed a reply. (J.A. 3-4, 49-65.) In a June 23, 2010 Memorandum Opinion and Order, the Superior Court granted in part and denied in part Terrell’s motion for an award of costs. (J.A. 3, 33-41.) Both Terrell and Coral World separately appealed the June 23, 2010 Opinion and Order, respectively, on July 6,2010 and July 14, 2010. But while both appeals remained pending in this Court, Coral World filed a Motion for Reconsideration in the Superior Court on July 30, 2010. This Court consolidated those appeals in an October 26, 2010 Order. To date, Coral World’s Motion for Reconsideration remains pending in the Superior Court. (J.A. 3.)
II. DISCUSSION
A. Jurisdiction and Standard of Review
“The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees [and] final orders of the Superior Court. . . .” V.I. Code Ann. tit. 4 § 32(a). The Superior Court’s June 23, 2010 Order — subsequent to the court’s August 31, 2009 Judgment and Order disposing of the underlying case
B. Terrell’s Appeal
Title 5, sections 541 through 547 of the Virgin Islands Code govern the award of costs to a prevailing party in civil litigation. Section 541 provides that:
(a) Costs which may be allowed in a civil action include:
(1) Fees of officers, witnesses, and jurors;
(2) Necessary expenses of taking depositions which are reasonably necessary in the action;
(3) Expenses of publication of the summons or notices, and the postage when they are served by mail;
(4) Compensation of a master as provided in Rule 53 of the Federal Rules of Civil Procedure;
(5) Necessary expense of copying any public record, book, or document used as evidence on the trial; and
(6) Attorney’s fees as provided in subsection (b) of this section.2
(Emphasis added.) And, section 543 requires that a litigant file a bill of costs as well as an affidavit, “made by himself or by his duly authorized attorney or agent having knowledge of the facts, that [the items are] correct and ha[ve] been necessarily incurred in the case and that the services for which fees have been charged were actually and necessarily performed.” 5 V.I.C. § 543 (a)-(b).
Terrell contends that the Superior Court erred by denying travel expenses associated with attending the trial because those expenses are authorized by 5 V.I.C. § 541 and case law interpreting that statute. Coral World, on the other hand, primarily argues that travel expenses — except those necessary for depositions under special circumstances — are not recoverable under section 541(a)(2). We agree that the travel expenses Terrell seeks to recover as costs are not recoverable under section 541.
As noted by Coral World, section 541 does not expressly state that travel expenses are allowable costs. Section 541 does, however, allow for “[n]ecessary expenses of taking depositions which are reasonably necessary in the action,” and travel expenses for depositions awarded under section 541 have been upheld on appeal. See, e.g., Heller Found., 847 F.2d at 89. But, the Third Circuit in Heller Foundation distinguished between travel expenses related to depositions and travel expenses that are not related to any reimbursable costs enumerated in section 541(a), the latter being deemed unrecoverable as a matter of law. See id. Terrell does not claim at any point in her appellate brief, and did not claim at any stage of the Superior Court proceedings, that the travel expenses or a portion thereof were related to depositions or any of the other costs specifically authorized by section 541(a). Rather, Terrell has consistently represented that the requested travel expenses relate solely to transporting multiple witnesses from St. Croix to testify at trial on St. Thomas.
2. Expert Witness Fees
Terrell also argues that the Superior Court abused its discretion by denying costs for expenses related to expert witnesses because such costs are recoverable under section 541. Coral World, however, contends that an award of costs under section 541 is discretionary, and that Terrell’s expert witness fees are not recoverable in this case because Virgin Islands courts have historically not awarded expert witness fees without prior court approval or evidence of the expert’s value and the fee’s reasonableness. Although we agree with Terrell that such costs are recoverable without the need for pre-approval or any special showing, we hold that the recovery under section 541
Based on the plain meaning of section 541(a)(1), however, there is no indication that the Legislature intended to impose additional or heightened requirements to recover expert witness fees. See In re Adoption of Sherman, 49 V.I. 452, 468 (V.I. 2008) (“ ‘In interpreting a statute, the court looks first to the statute’s plain meaning and, if statutory language is facially unambiguous, its inquiry comes to an end.’ ” (quoting Lowery v. Ala. Power, Co., 483 F.3d 1184, 1199 (11th Cir. 2007))). And, section 541(a)(1) does not provide that the court should or may consider pre-approval or value and reasonableness when determining whether to award costs for expert witness fees. Therefore, the Superior Court did not have an explicit statutory basis to deny costs for Terrell’s expert witness fees based on her failure to obtain pre-approval from the court or to show the value of her experts and the reasonableness of their fees;
Nevertheless, although section 541 allows a prevailing party to recover “fees” for lay and expert witnesses, see 5 V.I.C. § 541(a)(1), the term “fees” does not refer to the amount of compensation a witness has received or is entitled to receive. Rather, title 5, section 660 of the Virgin Islands Code, specifies the fees to which witnesses are entitled. Section 660 provides that:
[A] witness attending in the [Superior Court] of the Virgin Islands, or before a [Superior Court] commissioner, or before any person authorized to take his deposition pursuant to any rule or order of court, shall receive $4 for each day’s attendance and for the time necessarily occupied in going to and returning from the same, and shall be reimbursed for his necessary and reasonable expenses of travel in going from and returning to his place of residence.9
Section 660 further provides that a witness is entitled to an additional $8 per day for subsistence if the witness resides outside of the judicial division in which the trial is being held.
Because 5 V.I.C. § 541 and 5 V.I.C. § 660 were modeled after federal statutes, see Heller Found., 847 F.2d at 87, “judicial decisions interpreting the federal statute[s] shall assist this Court in interpreting the same clause found in our local statute.” People v. Pratt, 50 V.I. 318, 322 (V.I. 2008). Title 28, section 1920 of the United States Code provides that fees for witnesses, among other fees and expenses, may be taxed as costs. And another statute, 28 U.S.C. § 1821, specifies that witnesses are entitled to a $40 per day attendance fee. In analyzing the interplay between these statutes, the United States Supreme Court concluded that section 1821 defines the witness fee, which section 1920 includes as a category of
In turn, the Third Circuit has concluded that the United States Supreme Court’s statutory analysis in Crawford Fitting is equally applicable to the District Court of the Virgin Islands when it applies 5 V.I.C. § 541(a), and accordingly, held that 28 U.S.C. § 1821 defines the witness fee that section 541(a) allows the District Court to award as costs to a prevailing party for expert witness expenses. See Heller Found., 847 F.2d at 86-88. Likewise, we find that the same statutory analysis is applicable when the Superior Court awards expert witness fees as costs pursuant to section 541(a), given that witness fees are set at $4 per day by 5 V.I.C. § 660.
In reaching this decision, we note that Terrell’s bill of costs requested $40 — the witness attendance fee authorized by 28 U.S.C §1821 — as the deposition attendance fee for various witnesses and that the Superior Court approved the payment. (J.A. 20, 39.) This Court, however, can find no authority for applying the fee set forth in section 1821 instead of the fee established under local law. First, section 1821 expressly provides that it applies only to proceedings in “any court of the United States.” Although “both the [Superior] Court and the District Court derive their- power from the same sovereign, i.e., the U.S. Congress ... for administrative purposes, Congress has chosen to treat the Virgin Islands as a separate ‘sovereign,’ and thus ‘the [Superior] Court is treated as a state court.’ ” Admission of Alvis, 54 V.I. 408, 413-14 (V.I. 2010) (quoting Parrott v. Gov’t of the V.I., 230 F.3d 615, 621, 43 V.I. 277 (3d Cir. 2000) and Gov’t ex rel. Robinson v. Schneider, 893 F. Supp. 490, 495 (D.V.I. 1995)). Importantly, section 1821 expressly provides that
Likewise, although section 21(c) of the Revised Organic Act provides the Legislature and the courts with concurrent authority to establish procedural rules governing court proceedings, see Phillips v. People, 51 V.I. 258, 275 (V.I. 2009), this Court can find no authority for the Superior Court to increase the witness attendance fee beyond that set forth in section 660. Although Federal Rule of Civil Procedure 45, which governs subpoenas in federal courts, provides that, when serving a subpoena, one must also “tender[] the fees for 1 day’s attendance and the mileage allowed by law,” Fed. R. Crv. P. 45(b)(1), the rule itself does not expressly reference section 1821, even though that is the statute that would apply in a federal court. Moreover, even if Federal Rule of Civil Procedure 45 could be interpreted as implicitly incorporating section 1821, those provisions are inapplicable to Superior Court proceedings through Superior Court Rule 7 because (1) Superior Court Rule 11 governs subpoenas in the Superior Court, and thus application of Federal Rule of Civil Procedure 45 would render Rule 11 “wholly superfluous,” see Corraspe v. People, 53 V.I. 470, 482 (V.I. 2010);
Therefore, to the extent that Terrell’s expert witnesses were entitled to the $4 per day fee pursuant to section 660, these fees are recoverable under section 541(a)(1). Based on the record, however, it is unclear which witnesses were experts, how many experts were entitled to the $4 per day fee, and the total amount to which Terrell’s experts were
C. Coral World’s Cross-Appeal
In its cross-appeal, Coral World contends that the Superior Court erred by awarding Terrell $14,636.07 in costs when its Memorandum Opinion discusses and concludes that $5,871.70 in costs are reimbursable pursuant to section 541. Terrell does not address this argument in her appellate brief.
As correctly noted by Coral World, the Superior Court awarded Terrell costs associated with copying and postage, $728.51;
III. CONCLUSION
The Superior Court did not abuse its discretion by denying Terrell costs for travel expenses since there is no statutory authority allowing travel expenses for trial to be recovered under 5 V.I.C. § 541. But, because section 541 allows the court to award costs for witness fees which are defined by section 660, without distinguishing between lay or expert witnesses or requiring additional demonstrations for any particular type of witness fees, the Superior Court erred by denying an award of costs for expert witness fees based on Terrell’s failure to seek pre-approval for those fees and her failure to successfully show the experts’ value and the reasonableness of their fees. Finally, the Superior Court’s award of $14,636.07 in costs is inconsistent with the $5,871.70 in costs that it specifically approved in its Memorandum Opinion. Accordingly, we reverse the Superior Court’s Memorandum Opinion and Order and remand the case with instructions to assess costs for expert witness fees and adjust Terrell’s total award of costs in a manner consistent with this Opinion.
Since Coral World did not appeal the August 31,2009 Judgment, and a motion for costs is not among the motions that toll the time to file a notice of appeal of an otherwise final judgment, iee V.I.S.Ct.R. 5(a)(4) (“Amotion for attomey’sfees shall not affect the running of the time for appeal.”), any challenge to the correctness of the underlying jury verdict has been waived. See Bernhardt v. Bernhardt, 51 V.I. 341, 345-46 (V.I. 2009). However, an order granting or denying costs is itself an appealable final judgment See V.I. Gov’t Hosp. and Health Facilities Corp. v. Gov’t, 50 V.I. 276, 279 (V.I. 2008).
Pursuant to subsection (b), “the award of attorney’s fees in personal injury cases is prohibited unless the court finds that the complaint filed or the defense is frivolous.” 5 V.I.C. § 541(b).
The Superior Court’s Memorandum Opinion identifies deficiencies with Terrell’s affidavit. The court noted the following:
While the Affirmation of Attorney Green states, “The costs incurred in this case are as follows:” he does not represent that any item of expense was necessary. Plaintiff’s Reply does include allegations that certain expenses were necessary, but fails to make any of those assertions under oath, as contemplated in the statute. Moreover, most of the expenses listed in the Affirmation are presented with little or no explanation from which the court could conclude that they were necessarily incurred.
Initially, Terrell filed her complaint in the St. Croix Division of the Superior Court. However, after the Superior Court granted a motion to dismiss for improper venue, Terrell re-filed her complaint in the'St. Thomas and St. John Division.
As discussed more fully in the context of expert witness fees, title 5, section 660 of the Virgin Islands Code provides that witnesses attending trials or depositions shall, in addition to a $4 daily attendance fee, “be reimbursed for [their] necessary and reasonable expenses of travel in going from and returning to [their] place of residence.” However, although section
We note that some Virgin Islands courts have held that a trial court possesses the inherent power to tax costs, including assessing costs not specifically enumerated by statute. See, e.g., Morcher v. Nash, 32 F. Supp. 2d. 239, 243, 40 V.I. 256 (D.V.I. 1998); Ryan v. Ryan, 53 V.I. 140, 145 (V.I. Super. Ct. 2010). However, because Terrell sought an award of costs based solely on section 541, it is not necessary for this Court, as part of this appeal, to consider whether the Superior Court is authorized to assess costs other than those provided for in section 541.
We note that the Uniform Rules of Evidence that were in effect at the time of the underlying trial and the Federal Rules of Evidence that have been recently adopted by the Legislature to replace the Uniform Rules of Evidence, authorize a judge to appoint an expert witness in a civil case, and provide for the taxation of the appointed expert witness’s compensation as costs. See Chinnery v. People, S. Ct. Crim. No. 2009-0037, 2011 V.I. Supreme LEXIS 14 at *33 (V.I. May 27, 2011) (explaining that the Legislature repealed the Uniform Rules of Evidence and replaced it with the Federal Rules of Evidence on April 7, 2010) (citing Blyden v. People, 53 V.I. 637, 658 (V.I. 2010) and Act No. 7161, § 15); 5 V.I.C. § 914 (authorizing appointment of expert by judge); FED. R. EVID. 706(a) (same); 5 V.I.C. § 915 (providing that compensation of expert appointed by judge in a civil case will be “charged as costs in the case” unless a more specific statute establishes a different procedure); Fed. R. EVID. 706(b) (same). Because none of the expert witnesses in this case were appointed by the Superior Court, this Court’s holding that an award of costs is mandatory without prior court approval or showings of value or reasonableness is limited to costs that are awarded pursuant to section 541; therefore, we do not consider whether any additional showings may be warranted when
Apart from statutory bases for denying costs, the majority of the circuits recognize certain equitable considerations that are grounds — in a court’s discretion — to deny costs to a prevailing party even though the party’s expenses are recoverable based on statutory requirements. See, e.g., Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001) (within court’s discretion to deny costs because of misconduct of prevailing party, public importance of case, difficulty of issues, and limited financial resources of losing party). Assuming, without deciding, that any or all of the specific equitable considerations recognized by the circuits are grounds for denying an award of costs, they would not apply here because they were not the basis for the court’s decision, nor can the basis for the court’s decision be characterized as equitable in nature. The Superior Court denied Terrell’s expert witness fees based on her failure to seek pre-approval of her witness expenses, an insufficient showing that the experts were valuable and their fees reasonable, and an insufficiently detailed breakdown of expert witness costs.
Although section 660 refers to the district court instead of the Superior Court, we have held, in line with the Third Circuit, that the Legislature’s enactment of 4 V.I.C. § 76(a) simultaneously expanded the Superior Court’s jurisdiction to include all local civil matters while divesting the district court of jurisdiction over these matters, and thereby implicitly repealed references to the district court in Virgin Islands statutory provisions. See Murrell v. People, 54 V.I. 338, 353-54 (V.I. 2010) (citing Parrott v. Gov’t of the V.I., 230 F.3d 615, 620-21, 43 V.I. 277 (3d Cir. 2000)).
In order to obtain the additional $8 per day, the witness must not be a salaried Virgin Islands or federal government employee or be in custody. See 5 V.I.C. § 660.
We note that section 660 was last amended in 1957, and at that time — and for several years thereafter — Virgin Islands local courts lacked jurisdiction to hear jury trials, see Gov’t of the V.I. v. Russell, 477 F.2d 62, 63 (3d Cir. 1973), or civil cases in which the amount in controversy exceeded $10,000, see Ruan v. Shulterbrandt, 9 V.I. 191, 193 (V.I. Super. Ct. 1973). Accordingly, once section 1821 was amended to include the District Court, section 660 had relatively little applicability until the subsequent expansion of the Superior Court’s jurisdiction to include all civil cases in which the District Court did not have exclusive jurisdiction.
We note that the Superior Court has recently applied Corraspe to hold that Federal Rule of Civil Procedure 45 is not inconsistent with Superior Court Rule 11 because the federal rule “supplements” the Superior Court rule by creating additional requirements that exceed the minimum provided for in the local rule. See Bertrand v. Cordiner Enters., Inc., 53 V.I. 280, 288 (Super. Ct. 2011). However, this Court has effectively rejected the argument that Superior Court Rule 7 can be invoked to have a federal rule “supplement” a local rule in such a manner. See Blyden v. People, 53 V.I. 637, 659 (V.I. 2010), aff’d by People v. Blyden, No. 10-3656, 437 Fed. Appx. 127, 2011 U.S.App. LEXIS 7969 (3d Cir. Apr. 19, 2011) (holding that Federal Rule of Evidence 901’s requirement that all pieces of evidence be authenticated cannot apply to Superior Court proceedings through Superior Court Rule 7 when local rule of evidence only required authentication of writings).
Importantly, although the Legislature has delegated the power to fix some fees to the Superior Court, this power does not extend to fees that have already been set by statute. See 4 V.I.C. § 514.
It is well-established that when a statute authorizes taxation of costs, “ ‘costs’ are not synonymous with expenses unless expressly made so by statute.” Benda v. Fana, 10 Ohio St. 2d 259, 227 N.E.2d 197, 201 (1967). As the Supreme Court of Ohio succinctly explained, limiting “costs” to what is specifically provided for in a fee-shifting statute is necessary in order to avoid “absurd situations” that the legislature could not have intended, such as placing a litigant “with the burden of paying exorbitant professional witness fees which may very well exceed the amount of the verdict itself.” Id. See also 20 C.J.S. Costs § 123 (2007) (“Fees for expert witnesses, beyond the ordinary fees authorized for witnesses..., are not taxable as costs unless there is a statute specifically allowing such an expense.”). In other words, to the extent the Legislature wishes for prevailing parties to recover the professional service fee paid to an expert witness, rather than only the expert witness’ s attendance fee, the Legislature must make its intent clear by expressly authorizing such a recovery in the pertinent statute. See, e.g., MISS. Code Ann. § 95-5-10(3) (Rev. 2004) (stating that in trespass-to-timber lawsuits, “[a]ll reasonable expert witness fees and attorney ’ s fees shall be assessed as court costs in the discretion of the court.”).
Moreover, we again emphasize that in this case, Terrell sought her costs award based solely on section 541, and thus has waived any argument that the Superior Court may possess discretion to make a cost award based on its inherent power or some other authority. Therefore, as noted earlier, this Court declines to consider, as part of this appeal, the correctness of Morcher v. Nash, 32 F. Supp. 2d. 239, 40 V.I. 256 (D.V.I. 1998), Ryan v. Ryan, 53 V.I. 140 (V.I. Super. Ct. 2010), and similar cases authorizing taxation of costs based on authorities other than section 541.
This Court takes judicial notice of the fact that, although section 660 establishes a $4 witness fee, members of the Virgin Islands Bar have made it a practice to provide witnesses with a $40 fee when serving subpoenas under Superior Court Rule 11. We emphasize that this Court’s discussion of section 660 is limited to the analysis of which costs may be awarded to a prevailing party pursuant to section 541. Accordingly, although for purposes of taxation of costs under section 541, a prevailing party may only recover the $4 fee authorized by section 660, this Court’s decision should not be construed as a general holding that also establishes the witness fee to be tendered with a Rule 11 subpoena.
In its Memorandum Opinion, the Superior Court stated that “Plaintiffs are entitled only to mailing costs evidencing service orpublication of summons ornotices.” (J.A. 39.) The court, however, did not indicate whether it disallowed certain mailing costs. Although Coral World notes this indirectly when it states that the Superior Court awarded Terrell costs associated with copying and postage (up to $728.51), Coral World nonetheless requests that this court reverse the Superior Court’s award of costs and revise Terrell’s award to $5871.70, including the $728.51 in copying and postage expenses. (Appellant’s Br. 11,18.)
Although it is not clear from the Memorandum Opinion whether the Superior Court applied a $4 or $40 witness fee when it awarded the $1,035.00 in costs attributed to lay witnesses, Coral World has not, as part of its cross-appeal, challenged the validity of the $1,035.00 cost award. Thus, although this Court was required to consider the witness fee