NICOLAS VICENCIO, Appellee, v. LINCOLN-WAY BUILDERS, INC., et al. (Lincoln-Way Builders, Inc., Appellant).
No. 93687
Supreme Court of Illinois
April 17, 2003
204 Ill. 2d 295
Katherine A. Cardenas, of Lucas & Cardenas, of Chicago, for appellee.
JUSTICE GARMAN delivered the opinion of the court:
Plaintiff, Nicolas Vicencio, prevailed in the underlying personal injury action against defendant, Lincoln-Way Builders, Inc., and was awarded damages by the circuit court of Will County in excess of $100,000. He thereafter successfully sought reimbursement of costs totaling $5,341.80, pursuant to section 5-108 of the
BACKGROUND
Defendant agreed that it was responsible for $283.80 of plaintiff‘s costs, including the filing fee, the service of summons fee, and trial subpoena fees paid to two of plaintiff‘s witnesses, but disputed the suggestion that it was obligated to pay the trial subpoena fee of a third witness, who failed to appear at trial and whose evidence deposition was subsequently read to the jury. In addition,
“In the exercise of its discretion and having found that the contested costs were necessary and integral to the presentation of the plaintiff‘s case to the jury[, i]t is ordered that the costs awarded to plaintiff in this cause are $5,381.80[,] which is the total of the uncontested costs of [$]283.00 and the contested costs of [$]5,058.80.”
The appellate court found that the trial court had not abused its discretion by taxing as costs the fee charged by Dr. Wolin. 328 Ill. App. 3d at 443. According to the appellate court, this expense was “necessarily incurred by plaintiff in asserting his rights in court,” as opposed to an “ordinary expense[] of litigation,” and was therefore properly taxed as a cost. 328 Ill. App. 3d at 442. The appellate court also affirmed the trial court‘s awarding as costs the fees of the court reporter and videographer because “the deposition itself was ‘necessarily used at trial.‘” 328 Ill. App. 3d at 443. As to the interpreter‘s fee and the subpoena fee paid to the plaintiff‘s witness who failed to appear, the appellate court reversed, finding these items unauthorized by any rule or statute. 328 Ill. App. 3d at 444.
ANALYSIS
As appellant, defendant formulates the question for
Defendant suggests that this issue should be reviewed de novo, because it is a question of law. Plaintiff responds that the award of costs is within the sound discretion of the trial court and should not be reversed on appeal absent an abuse of that discretion. Although the cases cited by plaintiff provide a definition of the abuse of discretion standard, they do not support the assertion that the trial court indeed has the discretion to award such costs.
We will review the underlying issue—whether the trial court has the authority to award such costs—de novo, because it is a question of law. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 100 (2002). Because we conclude that the trial court does not have such authority, we find it unnecessary to consider whether the trial court abused its discretion.
At common law, a losing litigant was not responsible for paying the costs and expenses of his prevailing adversary. Patterson v. Northern Trust Co., 286 Ill. 564, 568 (1919). Since 1845, however, the prevailing plaintiff‘s recovery of costs has been authorized by statute in Illinois. See Ill. Rev. Stat. 1845, ch. 33, par. 4; Ill. Rev. Stat. 1874, ch. 33, par. 7; Ill. Rev. Stat. 1981, ch. 33, par. 7. Since 1983, the cost-recovery provision has read:
“If any person sues in any court of this state in any action for damages personal to the plaintiff, and recovers in such action, then judgment shall be entered in favor of the plaintiff to recover costs against the defendant, to be taxed, and the same shall be recovered and enforced as other judgments for the payment of money, except in the cases hereinafter provided.” (Emphasis added.)
735 ILCS 5/5-108 (West 2000) .
The statutes allowing recovery of costs are in derogation of the common law. Thus, it has long been said that they must be narrowly construed (Department of Revenue v. Appellate Court, 67 Ill. 2d 392, 396 (1977)), and that only those costs specifically designated by statute may be taxed as costs (Ryerson v. Apland, 378 Ill. 472, 477 (1941)). See, e.g., Patterson, 286 Ill. at 568 (“Any party claiming a judgment for his costs against his adversary must bring himself within the operation of some statutory provision, and courts have no power to adjudge costs against anyone on merely equitable grounds“).
Although the “power to impose costs must ultimately be found in some statute,” the legislature may nevertheless grant the power to the courts to make rules under which costs may be taxed. Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 162 (1982), citing Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95, 108 (1935). However, the delegation of rulemaking authority must be explicit: “the courts cannot make such rules or orders and impose costs thereunder unless the power so to do is expressly given them by statute or ratified by legislative enactment.” Wintersteen, 361 Ill. at 108.
Three sections of the Code arguably provide authority for a trial court to tax as costs the fees of the treating doctor in the present case: sections 5-108, 1-104, and 1-105.
Section 5-108
Section 5-108 provides that judgment “shall be entered” in favor of the prevailing plaintiff to recover costs against the defendant.
The cardinal rule of statutory construction is that the court must ascertain and give effect to the intent of the legislature. Paris v. Feder, 179 Ill. 2d 173, 177 (1997). When construing a statute, the court should look first to the language of the statute, giving the terms their plain and ordinary meaning. Paris, 179 Ill. 2d at 177. The plain and ordinary meaning of the term “costs,” however, does not enlighten us. See Merriam-Webster‘s Collegiate Dictionary 262 (10th ed. 2000) (defining the singular “cost” as “the amount or equivalent paid or charged for something,” and the plural “costs” as “expenses incurred in litigation; esp: those given by the law or the court to the prevailing party against the losing party“).
In Galowich, 92 Ill. 2d at 165, this court stated that the term “costs” has acquired “a fixed and technical meaning in the law.” In effect, this court acknowledged that in this context, the word “costs” is a term of art. See Black‘s Law Dictionary 1483 (7th ed. 1999) (defining a term of art as a word‘s “specific, precise meaning in a given specialty, apart from its general meaning in ordinary contexts“). The meaning ascribed to the term of art by the Galowich court was: “Costs are allowances in the nature of incidental damages awarded by law to reimburse the prevailing party, to some extent at least, for the expenses necessarily incurred in the assertion of his rights in court.” Galowich, 92 Ill. 2d at 165-66. This definition is descriptive, but it is not prescriptive. That is, it describes a characteristic shared by all categories of taxable costs (“necessarily incurred“), but it does not prescribe a rule that draws a line between those that must be taxed pursuant to section 5-108 and those that may be taxed pursuant to another statute or
Under its definition of “costs,” Black‘s Law Dictionary distinguishes between court costs, the “charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees,” and litigation costs, the “expenses of litigation, prosecution, or other legal transaction, esp[ecially] those allowed in favor of one party against the other.” Black‘s Law Dictionary 350 (7th ed. 1999). It is undisputed that section 5-108 mandates the taxing of costs commonly understood to be “court costs,” such as filing fees, subpoena fees, and statutory witness fees, to the losing party.
The fee of the treating physician that is at issue in the present case is a “litigation cost,” and as such, is not a cost the taxing of which is mandated by section 5-108. Thus, it may be taxed as a cost only if authorized by another statute or by supreme court rule. See, e.g., House of Vision, Inc. v. Hiyane, 42 Ill. 2d 45, 51-52 (1969) (noting that, apart from statute, the successful party may not recover “the ordinary expenses and burdens of litigation“).
Sections 1-104 and 1-105
Under section 1-104 of the Code and its precursors, this court has long had the authority to make rules of pleading, practice, and procedure. See Ill. Rev. Stat. 1933, ch. 110, par. 126. At present, section 1-104, entitled “Power of courts to make rules,” delegates to this court the “power to make rules of pleading, practice and
We note that the court‘s power to make rules regarding the assessment of costs is not inherent in the judicial power, but “finds its lodgment in the specific legislative grant whereby the court was authorized” to promulgate these rules. Wintersteen, 361 Ill. at 108. In Wintersteen, this court found express authority “to tax costs covering the reasonable expenses of procuring the testimony which the adverse party ought to admit” in a provision of the Civil Practice Act. Wintersteen, 361 Ill. at 108. This court made it clear, however, that absent such express authorization, the court had no authority to promulgate rules regarding taxation of costs. In addition, section 1-104 clearly prohibits the making of rules that would be inconsistent with section 5-108.
In 1955, the legislature delegated additional authority to this court to make rules “for the orderly and expeditious administration and enforcement” of the Code, including rules for the imposition of costs. Ill. Rev. Stat. 1955, ch. 110, par. 3, now codified at
The express grant of authority in section 1-105, liberally construed, gives this court broad discretion to formulate rules, including the assessment of costs, as a means of enforcing the provisions of the Code. This section does not, however, authorize this court to assess costs merely on the basis of doing equity or to “reimburse the prevailing party” (Galowich, 92 Ill. 2d at 165) for his necessary expenses. That rules promulgated under this section are to serve as enforcement mechanisms only is
“The Supreme Court may provide by rule for the orderly and expeditious administration and enforcement of this Act and of the rules, including the striking of pleadings, the dismissal of claims, the entry of defaults, the assessment of costs, the assessment against an offending party of the reasonable expenses, including attorney‘s fees, which any violation causes another party to incur, or other action that may be appropriate.”
735 ILCS 5/1-105 (West 2000) .
The provision contains a nonexclusive list of sanctions that may be employed for the purpose of enforcing the Code. Thus, under the authority delegated in section 1-105, this court may make rules regarding the assessment of costs only if such costs are in the nature of sanctions, not if they are “in the nature of incidental damages” (Galowich, 92 Ill. 2d at 165).
We now turn to the rules of this court, adopted pursuant to the authority granted in sections 1-104 and 1-105 of the Code, to determine whether the rules permit the trial court to tax as costs the fees of Dr. Wolin.
Rule 208
Plaintiff asserts that the source of the trial court‘s discretion to award the fees of Dr. Wolin as costs can be found in
Nevertheless, when this court last considered the scope of Rule 208, it implied that other expenses associated with depositions might be taxable under the rule. In Galowich, the plaintiffs moved for a voluntary dismissal (Ill. Rev. Stat. 1979, ch. 110, par. 52), with the intention of refiling the lawsuit. The defendants objected, asking the court to either dismiss the case with prejudice or to “impose costs beyond the usual items contained in the clerk‘s bill.” Galowich, 92 Ill. 2d at 160. The claimed costs included “filing fees, jury demand fees, witness fees, costs of depositions, costs of transcripts, experts costs and related expenses.” Galowich, 92 Ill. 2d at 160. Defendants estimated their deposition expenses at ap-
In Galowich, after noting that the term “costs” has acquired a fixed and technical meaning in the law (Galowich, 92 Ill. 2d at 165), we concluded that the “test for when the expense of a deposition is taxable as costs is its necessary use at trial.” Galowich, 92 Ill. 2d at 167. Although we noted that it might be possible for the use of a discovery deposition to become a necessity, such as when the deposed witness died or disappeared before trial, we concluded that, in general, the cost of taking a discovery deposition is one of the ordinary expenses of litigation and, therefore, not recoverable by the prevailing party. Galowich, 92 Ill. 2d at 166.
Galowich, however, does not resolve the present case for two reasons. First, in Galowich, this court did not interpret the term “costs” in section 5-108 or the phrase “aforesaid costs” in Rule 208 to determine which types of costs might be taxed. Rather, Galowich left this threshold question unanswered and formulated a rule to guide the trial court‘s discretion when taxing costs pursuant to Rule 208.
Second, because our test required necessary use of the deposition at trial, and because the matter in Galowich did not proceed to trial, but was resolved by the plaintiff‘s taking a voluntary dismissal, we concluded that the defendants were not entitled to recover any of the costs incurred in taking discovery depositions. Galowich, 92 Ill. 2d at 167. In effect, the determinative factor in Galowich was not “necessary use“; it was “at trial.” Although this court in Galowich may have implied
The present case requires us to address the question left open in Galowich and we have done so by limiting costs recoverable under
The trial court in the present case determined that Dr. Wolin‘s deposition was necessarily used at trial because his testimony was essential to the plaintiff‘s ability to prove his case. We hold that necessity requires more than mere significance of the deposition in terms of its evidentiary value. A deposition is necessarily used at trial only when it is relevant and material and when the deponent‘s testimony cannot be procured at trial as, for example, if the deponent has died, has disappeared before trial, or is otherwise unavailable to testify.
Since we cannot determine from the record before us whether Dr. Wolin‘s evidence deposition was used at trial as a matter of necessity or purely as a matter of convenience, this cause must be remanded to the trial court to determine whether the fees of the videographer and court reporter may be taxed as costs to defendant.
Rule 204
Plaintiff contends that
“Depositions of Physicians. The discovery depositions of nonparty physicians being deposed in their professional capacity may be taken only with the agreement of the parties and the subsequent consent of the deponent or under a subpoena issued upon order of court. A party shall pay a reasonable fee to a physician for the time he or she will spend testifying at any such deposition. Unless the physician was retained by a party for the purpose of rendering an opinion at trial, or unless otherwise ordered by the court, the fee shall be paid by the party at whose instance the deposition is taken.”
166 Ill. 2d R. 204(c) .
The rule creates two exceptions to the general rule that the party at whose instance the deposition is taken will bear the cost. Plaintiff misconstrues the first exception, which applies only when a party deposes a physician retained by the opposing party for the purpose of offering opinion testimony at trial. In this circumstance, the party who retained the expert is responsible for his or her “professional fee, as well as other fees and expenses provided for in Rule 208.”
The second exception provides that the trial court may order “otherwise.” Clearly, there are some circum-
Rule 212
Evidence depositions by physicians, however, need not meet the conditions imposed on depositions by others to be admissible at trial. “The evidence deposition of a physician or surgeon may be introduced in evidence at trial on the motion of either party regardless of the availability of the deponent, without prejudice to the right of either party to subpoena or otherwise call the physician or surgeon for attendance at trial.”
Keeping in mind that defendant could not have been taxed to pay Dr. Wolin‘s professional fee if he had testified live at trial, we find no justification in Rule 212 for
Because the issue in this case may be resolved by construction of the applicable statutes and rules, we have not considered the various public policy arguments made by the parties in favor of or in opposition to the ability of a prevailing party to recover these costs. We suggest that such concerns be addressed to the legislature.
CONCLUSION
We, therefore, hold that a trial court is neither required by section 5-108 nor permitted by other statute or rule to tax as costs to the losing party the professional fee charged by a nonparty treating physician for attending an evidence deposition. We reverse that part of the appellate court‘s judgment affirming the trial court‘s taxing as costs the professional fee of Dr. Wolin and that part of the trial court‘s judgment awarding these costs.
In addition, because the fees of the videographer and court reporter are not taxable as costs under
Appellate court judgment
reversed in part;
circuit court judgment
reversed in part;
cause remanded.
JUSTICE RARICK, concurring in part and dissenting in part:
I cannot agree with the majority‘s refusal to permit plaintiff to recover as costs the professional fees charged
Whether a trial court may grant a prevailing plaintiff‘s motion to tax as costs the professional fees charged by the plaintiff‘s treating physician for testifying at an evidence deposition is not a question of first impression. It has been considered on numerous occasions by our appellate court. Although that court has not spoken with a single voice on the matter, the various districts have recognized, as the Third District recognized in the case before us today, that such fees may be recovered by plaintiff where the plaintiff can show that the evidence deposition was “necessarily used at trial.” See Irwin v. McMillan, 322 Ill. App. 3d 861, 865-67 (2d Dist. 2001); Boehm v. Ramey, 329 Ill. App. 3d 357, 366-67 (4th Dist. 2002); Woolverton v. McCracken, 321 Ill. App. 3d 440 (5th Dist. 2001); Perkins v. Harris, 308 Ill. App. 3d 1076 (5th Dist. 1999); see also Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 464 (1st Dist. 2000) (distinguishing circumstances in that case from Fifth District‘s opinion in Perkins v. Harris).
With the exception of a badly splintered disposition by the Fourth District in Myers v. Bash, 334 Ill. App. 3d 369 (2002), no court of review in Illinois has suggested that the professional fees charged by a treating physician to testify at an evidence deposition can never be taxed as costs against a losing defendant. To the extent that there is any disagreement among the various districts, that disagreement concerns when and under what circumstances an evidence deposition can be regarded as having been “necessarily used at trial.” The Second District has taken the view that the standard is only met where the plaintiff shows that the witness who was deposed has subsequently died or disappeared. See Irwin v. McMillan, 322 Ill. App. 3d at 866. The Third District in this case
In my view, the position taken by the Third and Fifth Districts is a sound one. Contrary to the majority‘s view, the case before us does not present a situation where the physician was deposed solely for his own convenience or the convenience of the parties. Considering the distance between the physician‘s practice in Chicago and the place of trial in Will County as well as the burdens of the doctor‘s workload, the circuit court could certainly have concluded that plaintiff would not have been able to obtain the doctor‘s testimony voluntarily absent the evidence deposition. Because the doctor was plaintiff‘s treating physician and the only person who could testify regarding plaintiff‘s injuries and treatment, there can be no serious question that his testimony was indispensable at trial.
For the foregoing reasons, I would hold that the circuit court did not err when it included in the costs taxed against defendant the professional fees charged by plaintiff‘s treating physician to appear at the evidence deposition. Consistent with that view, I would further hold that there is no need to set aside the award of fees for the videographer and court reporter who served at that deposition pending remand to determine whether the doctor‘s evidentiary deposition was necessarily used at trial. The judgment of the appellate court should be affirmed outright without further delay. Accordingly, I respectfully dissent.
JUSTICE KILBRIDE joins in this partial concurrence and partial dissent.