Vicencio v. Lincoln-Way Builders, Inc.

No. 3--01--0338,
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D. , 2002
NICHOLAS VICENCIO, ) Appeal from the Circuit Court
Petitioner-Appellee, ) of the Twelfth Judicial Circuit
v. ) Will County, Illinois
LINCOLN-WAY BUILDERS, INC., )
an Illinois corporation, )
Defendant-Appellant and )
Third Party Plaintiff, and ) No. 98-L-123
WEIDNER'S DEPOT OF MOKENA, LTD.,)
d/b/a GORMAN DRYWALL, K & A )
BUILDERS, INC., an Illinois )
corporation, and HICKORY CREEK ) Honorable
CONSTRUCTION, INC., an Illinois ) Amy Bertani-Tomczak, and
corporation, ) William G. McMenamin,
Third Party Defendants. ) Judges Presiding
PRESIDING JUSTICE LYTTON delivered the opinion of the court:
Defendant, Lincoln-Way Builders, appeals the trial court's award of
various trial fees to plaintiff, Nicholas Vicencio. We affirm in part and
reverse in part.
Plaintiff sued defendant for injuries sustained through defendant's
negligence. During trial, plaintiff presented the testimony of his
treating physician, Dr. Preston Wolin, by videotaped evidence deposition
because Wolin was not available to testify at trial due to his professional
schedule. Plaintiff also required the services of a Spanish interpreter
during his own testimony because he does not speak English. Finally,
Melvin Weidner, one of plaintiff's witnesses, failed to show up at trial.
Defendant subsequently took Weidner's evidence deposition and
presented it during its case-in-chief.
After a jury verdict in his favor, plaintiff filed a motion for
costs. Defendant agreed to all costs except:
Dr. Preston Wolin (trial testimony) $2,400.00
Court Reporter (Wolin's deposition transcript) 921.06
Videographer (record) 766.50
Videographer (playback) 630.00
Spanish Interpreter 428.80
Melvin Weidner (trial subpoena fee) 22.80
After a hearing, the trial court found that the "contested costs were
necessary and integral to the presentation of Plaintiff's case to the jury"
and ordered defendant to reimburse plaintiff.
I. Dr. Wolin's Fee
Defendant contends that the fees paid by plaintiff to his treating
physician for the time spent giving his evidence deposition so that the
physician would not be required to appear at trial was an ordinary expense
of litigation and not reimbursable under Rule 208. Plaintiff responds that
because Dr. Wolin was his treating physician, and the only person who could
testify regarding plaintiff's injuries and treatment, his testimony was
indispensable at trial. We agree.
Any costs charged to the losing party in a lawsuit must be authorized
specifically by statute. Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157,
162, 441 N.E.2d 318, 320 (1982). However, "the General Assembly may grant
the power in general terms to the courts, which may in turn make rules or
orders under which costs may be taxed and imposed." Gebelein v. Blumfield,
231 Ill. App. 3d 1011, 1013, 597 N.E.2d 265, 267 (1992).
Section 5-108 of the Code of Civil Procedure (735 ILCS 5/5-108 (West
2000)) allows for costs to be taxed against defendants, but does not
specifically identify which expenses are allowed to be taxed as costs.
Woolverton v. McCracken, 321 Ill. App. 3d 440, 442, 748 N.E.2d 327, 329
(2001). However, Supreme Court Rule 208 provides that deposition costs
"may in the discretion of the trial court be taxed as costs." 134 Ill. 2d
R. 208(d).
In Galowich, our supreme court further defined the costs covered by
Rule 208, stating,
"[N]either the Illinois costs statute nor the supreme court rules
provide a specific definition of costs. However, the term has
acquired a fixed and technical meaning in the law. 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.
[Citations.] We therefore interpret Rule 208(d) as authorizing the
trial court to tax as costs, in its discretion, the expenses only of
those depositions necessarily used at trial." Galowich, 92 Ill. 2d at
165-66, 441 N.E.2d at 322.
Since Galowich, the Second and Fifth Districts have addressed the trial
court's authority to tax as costs the expenses of a treating physician's
evidence deposition used at trial in lieu of live testimony with differing
results.
In Irwin v. McMillan, 322 Ill. App. 3d 861, 750 N.E.2d 1246 (2001),
the Second District reasoned that the plaintiff's treating physician was
not "indispensable" because he was not "unavailable" by reason of death or
disappearance. Irwin, 322 Ill. App. 3d at 866, 750 N.E.2d at 1250.
Therefore, his evidence deposition was not "necessarily used at trial"
under Supreme Court Rule 208. Irwin, 322 Ill. App. 3d at 866, 750 N.E.2d
at 1250; see also Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill.
App. 3d 789, 721 N.E.2d 614 (2nd Dist. 1999).
The Fifth District, in Perkins v. Harris, 308 Ill. App. 3d 1076, 720
N.E.2d 1131 (1999), and Woolverton v. McCracken, 321 Ill. App. 3d 440, 748
N.E.2d 327 (2001), found that whether an evidence deposition was
"necessarily used at trial" is a matter within the discretion of the trial
court. The court reasoned that the treating physicians were the only
witnesses able to testify regarding the plaintiffs' injuries and
treatments. The evidence depositions were necessarily incurred by
plaintiffs in asserting their rights in court and were not the ordinary
expenses of litigation. The court concluded that because the physicians'
demanding schedules did not allow them to testify, the depositions were
"necessarily used at trial" under Rule 208. Perkins, 308 Ill. App. 3d at
1080, 720 N.E.2d at 1134; Woolverton, 321 Ill. App. 3d at 445, 748 N.E.2d
at 333.
We recognize that the Irwin court was concerned with the possibility
of abuse of Rule 208 by a plaintiff attempting to shift deposition costs to
a defendant by merely alleging that the witness is unavailable to testify
due to a demanding work schedule. While we share this concern, we find the
Second District's interpretation of Rule 208 too rigid and its results too
harsh. Therefore, we agree with the Fifth District that rule 208 grants
the trial court the discretion to tax costs to a defendant based on the
individual circumstances of each case. We trust that trial courts will
exercise their discretion under Rule 208 wisely.
A trial court's award of costs and fees is a discretionary matter and
will not be disturbed on review absent a clear abuse of discretion.
Perlman v. Time, Inc., 133 Ill. App. 3d 348, 355, 478 N.E.2d 1132, 1138
(1985). An abuse of discretion is found if the trial court "acted
arbitrarily without the employment of conscientious judgment or, in view of
all the circumstances, exceeded the bounds of reason and ignored recognized
principles of law so that substantial prejudice resulted." Zurich
Insurance Co. v. Raymark Industries, Inc., 213 Ill. App. 3d 591, 595, 572
N.E.2d 1119, 1122 (1991). The role of a reviewing court is not to
substitute its judgment for that of the trial court. Woolverton, 321 Ill.
App. 3d at 444, 748 N.E.2d at 331.
In the case before us, the trial court determined that plaintiff was
entitled to be reimbursed for the costs connected with taking Dr. Wolin's
evidence deposition, which was used at the trial. These expenses were
necessarily incurred by plaintiff in asserting his rights in court and were
not the ordinary expenses of litigation. Additionally, Dr. Wolin's
practice is located in Chicago. Forcing him to testify at trial would not
only require absence from his practice for the time he would testify, but
would also require substantial travel time. Under the circumstances, we
cannot say that the trial judge erred in awarding as costs the fees charged
by plaintiff's treating physician for giving an evidence deposition used at
trial.
II. Court Reporter and Videographer Fees
Defendant also argues that the trial court erred by awarding
plaintiff the costs of videotaping Dr. Wolin's deposition. Citing Supreme
Court Rule 206, (134 Ill. 2d R. 206(f)(5)), defendant contends that
plaintiff is required to pay the costs of videotaping the deposition
because the deposition was videotaped at plaintiff's insistence.
We find that the trial court did not abuse its discretion in taxing
the costs of the court reporter and videographer because the deposition
itself was "necessarily used at trial." Rule 206 states that "[t]he party
at whose instance the videotaped deposition is taken shall pay the charges
of the videotape operator *** and *** charges for filing the videotape of
an evidence deposition." 134 Ill. 2d R. 206. However, the rule is silent
on whether that party may be reimbursed for those charges.
As discussed above, Rule 208 authorizes the trial court to award
costs to the prevailing party for depositions "necessarily used at trial."
The costs of videotaping, editing, and transcribing an evidence deposition
fall within Rule 208 "because Supreme Court Rule 208 provides for fees
associated with videotaping and transcription and, as a result, provides
for the trial court to tax both to defendant." Perkins, 308 Ill. App. 3d
at 1081, 720 N.E.2d at 1135.
The trial court did not abuse its discretion in awarding costs to
plaintiff for the fees associated with the court reporter and videographer.
The deposition was necessarily used at trial and the costs of recording
and transcribing of the deposition are allowed to be taxed to the
prevailing party under Supreme Court Rule 208(d).
III. Interpreter and Trial Subpoena Fees
Defendant's final contentions are that the trial court abused its
discretion by awarding as costs the fee for the services of plaintiff's
interpreter during trial and the trial subpoena fee paid to plaintiff's
witness, Melvin Wiedner. It argues that the court lacked the statutory
authority required to assess those expenses as costs because they are the
ordinary expenses of litigation.
As noted above, the allowance of costs for ordinary expenses and the
burden of litigation is entirely dependent upon statutory authorization.
Galowich, 92 Ill. 2d at 162, 441 N.E.2d at 320. While, section 5-108 of
the Code of Civil Procedure (735 ILCS 5/5-108 (West 2000)) does not
specifically define the word costs, section 1-105 of the Code (735 ILCS 5/1-
105 (West 2000)) allows the supreme court to provide for the assessment of
costs by rule. Plaintiff has cited no statute or rule that would allow us
to shift the costs of the interpreter or the subpoena fees to defendant.
Without such authority, the court was powerless to grant relief. The trial
court abused its discretion in requiring the cost of plaintiff's
interpreter and Weidner's subpoena fee to be paid by the defendant.
The judgment of the circuit court of Will County is affirmed in part
and reversed in part.
Affirmed in part and reversed in part, cause remanded.
BRESLIN and HOLDRIDGE, JJ., concur.