IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 166
OCTOBER TERM, A.D. 2014
December 22, 2014
TODD GRAUS and HOLLY GRAUS,
husband and wife, individually, and as
parents of next friends of SG, a minor
child, RG, a minor child, and GG, a minor
child,
Appellants
(Plaintiffs),
v. S-14-0061
OK INVESTMENTS, INC., a Wyoming
corporation, d/b/a OK RENTALS &
REAL ESTATE, JOSEPH GIOVANINI,
GIOVANINI PROPERTIES, LORI
KYLE, and MARY OBRINGER,
Appellees
(Defendants).
Appeal from the District Court of Teton County
The Honorable Marvin L. Tyler, Judge
Representing Appellants:
Gerard R. Bosch and M. Allison Floyd, Wilson, WY.
Representing Appellees:
Katherine L. Mead of Mead & Mead, Jackson, WY.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] Todd and Holly Graus (Plaintiffs), individually and on behalf of their children,
filed a complaint against OK Investments, Inc. and others (Defendants) alleging injury
resulting from Plaintiffs’ rental of a house containing black mold. Defendants made a
W.R.C.P. 68 offer of settlement, which Plaintiffs did not accept. Following Plaintiffs’
voluntary dismissal of certain claims and the district court’s entry of judgment as a matter
of law in favor of Defendants on the remaining claims, Defendants filed a certificate of
costs through which Defendants sought an award of costs pursuant to W.R.C.P. 68 and
W.R.C.P. 54(d). The district court awarded costs pursuant to both rules, and Plaintiffs
appeal, contending that W.R.C.P. 68 did not authorize an award of costs and that the
costs awarded exceeded those allowed under U.R.D.C. 501.
[¶2] We hold that W.R.C.P. 68 did not authorize an award of costs under these
circumstances, and we affirm in part and reverse in part the district court’s award of costs
pursuant to W.R.C.P. 54(d) and U.R.D.C. 501.
ISSUES
[¶3] Plaintiffs state the issue on appeal as follows:
1. Did the District Court abuse its discretion in
awarding costs for expert fees solely under W.R.C.P. Rule
68?
2. Did the District Court abuse its discretion in
awarding costs for expert fees under W.R.C.P. Rule 68 and
W.S. § 1-14-102(b)?
3. Did the District Court abuse its discretion in
awarding costs under the Uniform Rules of District Court
Rule 501 and Wyoming Statutes § 1-14-102 for a witness that
did not testify?
4. Did the District Court abuse its discretion in
awarding costs for depositions under Rule 68?
FACTS
[¶4] In December 2010, Plaintiffs filed an amended complaint against Defendants
alleging negligence, breach of contract, violation of the Wyoming Consumer Protection
Act, fraud, and negligent misrepresentation. Plaintiffs’ claims stemmed from their rental
of a house that contained black mold. On July 11, 2011, Defendants served on Plaintiffs
an Offer of Settlement Pursuant to Rule 68 W.R.C.P., by which Defendants offered to
have judgment entered against them in the amount of $25,000.00. Plaintiffs did not
accept the offer.
1
[¶5] Plaintiffs’ claims were tried to a jury on September 23-25 and 27, 2013. At the
close of Plaintiffs’ case on September 27, 2013, Plaintiffs moved pursuant to W.R.C.P.
41 to voluntarily dismiss with prejudice their claim under the Wyoming Consumer
Protection Act, their fraudulent misrepresentation claim, and their claim for punitive
damages. The district court granted the motion and dismissed the claims with prejudice,
subject to the condition that Defendants were the prevailing party on those claims. Also
at the close of Plaintiffs’ case, Defendants moved for judgment as a matter of law on
Plaintiffs’ remaining claims. On November 22, 2013, the district court granted
Defendants’ motion.
[¶6] On December 9, 2013, Defendants filed a certificate of costs by which they
requested an order awarding costs of $2,874.56 “pursuant to W.S. § 1-14-102 et seq.,
Wyoming Rules of Civil Procedure Rule 54(d)(1), Rule 68 and Rule 501 of the Uniform
Rules of District Court.” Specifically, Defendants stated, in relevant part:
1. The case was tried to a twelve-person jury from
September 23-September 30, 2013. The court entered a
directed verdict order in favor [of] the Defendants on
November 19, 2013.
2. On July 11, 2011, Defendants presented
Plaintiffs with an offer of settlement pursuant to Rule 68.
Plaintiffs did not respond and the offer, pursuant to the terms
of Rule 68, was deemed withdrawn. * * * Defendants are
entitled to their costs incurred after July 11, 2011.
3. The attached Certificate of Costs (Exhibit "A")
includes costs that are allowable pursuant to Rule 54(d)(1) of
the Wyoming Rules of Civil Procedure, W.S. § 1-14-102(b)
and Rule 501 of the Uniform Rules of District Court and
which were reasonably necessary in the preparation and
defense of Defendants’ case from the time the Offer of
Settlement was deemed denied.
[¶7] On December 26, 2013, Plaintiffs filed objections to Defendants’ certificate of
costs. Plaintiffs asserted that the requested award of costs was not authorized because: 1)
Rule 68 does not apply if the opponent of a claim makes an offer of judgment that is not
accepted and then the offeror wins the case; and 2) Defendants failed to meet their burden
of proving that the costs requested were reasonably necessary for the preparation of the
case for trial.
[¶8] On January 8, 2014, the district court entered an order awarding costs in the
amount of $2,607.88. The court ordered:
2
The Defendants, * * *, having moved pursuant to W.S.
§ 1-14-102 et. seq., Wyoming Rules of Civil Procedure Rule
54(d)(1), Rule 68 and Rule 501 of the Uniform Rules of
District Court for costs in the above captioned matter in the
total amount of $2,607.88, and the Court being otherwise
fully advised in the premises;
IT IS HEREBY ORDERED that costs are so awarded
to the Defendants in the amount of $2,607.88.
[¶9] On February 6, 2014, Plaintiffs filed their Notice of Appeal to this Court.
STANDARD OF REVIEW
[¶10] 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, ¶ 6, 138
P.3d 1134, 1137 (Wyo. 2006)).
[¶11] While the award of costs itself is reviewed for an abuse of discretion, the question
whether a particular costs 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
[¶12] On appeal, Plaintiffs present essentially two arguments. First, Plaintiffs argue that
the district court committed an error of law in awarding costs pursuant to W.R.C.P. 68
because Rule 68 does not apply when the party making the settlement offer is declared
the prevailing party. Second, Plaintiffs argue that the court abused its discretion in
awarding the requested costs because they were not costs authorized by U.R.D.C. 501 or
Wyo. Stat. Ann. § 1-14-102(b). We will separately address each argument.
3
A. Applicability of W.R.C.P. 68
[¶13] In arguing that W.R.C.P. 68 does not allow an award of costs in this case,
Plaintiffs urge this Court to adopt the ruling in Delta Air Lines, Inc. v. August, 450 U.S.
346, 352, 101 S. Ct. 1146, 1150 (1981), wherein the United States Supreme Court held
that federal Rule 68 is not a basis for an award of costs to a prevailing party. We agree
that the Delta holding should apply to Wyoming’s Rule 68, and we therefore hold that it
is W.R.C.P. 54(d), not W.R.C.P. 68, that governs an award of costs to a prevailing party.
[¶14] In determining which rule of civil procedure governs an award of costs in a case
where a Rule 68 offer is made, we are concerned with the interplay between Rule 54(d)
and Rule 68. “Because of the similarities between federal and Wyoming rules of civil
procedure, we look to federal authority interpreting a particular rule as an aid in applying
the comparable Wyoming rule.” Bratton v. Blenkinsop (In re Guardianship of Bratton),
2014 WY 87, ¶ 24, 330 P.3d 248, 253, n.6 (Wyo. 2014); see also Lamar Outdoor Adver.
v. Farmers Co-Op Oil Co., 2009 WY 112, ¶ 12, 215 P.3d 296, 301 (Wyo. 2009)
(“Because the Wyoming Rules of Civil Procedure are patterned after the Federal Rules of
Civil Procedure, federal court interpretations of their rules are highly persuasive in our
interpretation of the corresponding Wyoming rules.”). We therefore begin our
consideration with a comparison of Wyoming’s Rules 54 and 68 with their federal
counterparts.
[¶15] Wyoming’s Rule 54(d)(1) specifies that “[e]xcept when express provision therefor
is made either in a statute or in these rules, costs other than attorney’s fees shall be
allowed as of course to the prevailing party unless the court otherwise directs.” W.R.C.P.
54(d)(1) (LexisNexis 2014). Wyoming’s Rule 68 reads:
At any time more than 60 days after service of the
complaint and more than 30 days before the trial begins, any
party may serve upon the adverse party an offer, denominated
as an offer under this rule, to settle a claim for the money or
property or to the effect specified in the offer, with costs then
accrued. * * * If the judgment finally obtained by the offeree
is not more favorable than the offer, the offeree must pay
the costs incurred after the making of the offer. As used
herein, “costs” does not include attorney’s fees. * * *
W.R.C.P. 68 (LexisNexis 2014) (emphasis added).
[¶16] The federal counterparts to both rules are similar. F.R.C.P. 54(d)(1) specifies that
“[u]nless a federal statute, these rules, or a court order provides otherwise, costs--other
than attorney’s fees--should be allowed to the prevailing party.” F.R.C.P. 68 reads:
4
(a) Making an Offer; Judgment on an Accepted Offer. At
least 14 days before the date set for trial, a party defending
against a claim may serve on an opposing party an offer to
allow judgment on specified terms, with the costs then
accrued. * * *
****
(d) Paying Costs After an Unaccepted Offer. If the
judgment that the offeree finally obtains is not more favorable
than the unaccepted offer, the offeree must pay the costs
incurred after the offer was made.
[¶17] In Delta, the Supreme Court held that a defendant that makes a Rule 68 settlement
offer is not entitled to an award of costs if that defendant is the prevailing party, but the
defendant would be entitled to an award of costs if the plaintiff prevails but obtains a
judgment that is less than the defendant’s offer. Delta, 450 U.S. at 352, 101 S.Ct. at
1150. The federal rule’s operation and the Supreme Court’s reasoning in Delta have
been explained as follows:
Unless the plaintiff accepts a Rule 68 offer within
fourteen days, it is deemed rejected and plaintiff will suffer
the adverse consequences prescribed by the rule unless it
obtains a more favorable judgment. The rule is entirely
inapplicable, however, if the defendant, rather than the
plaintiff, obtains judgment. In Delta Air Lines, Inc. v. August,
the Supreme Court held that after defendant won at trial the
district court had discretion to deny it costs even though
defendant had made a Rule 68 offer before trial that was more
favorable in that it did offer plaintiff some relief. Defendant
argued that the mandatory terms of Rule 68 should nullify
that discretion, but the Court reasoned that the rule’s words
“judgment … obtained by the offeree” “would not normally
be read by a lawyer to describe a judgment in favor of the
other party.” It further reasoned that defendant’s
interpretation would not promote the rule’s purposes because
it would not prompt defendants to make reasonable offers,
and that the history of the rule suggested that it was not
intended to visit adverse consequences on a plaintiff unless
the plaintiff rejected an offer that would be reasonable
assuming plaintiff prevailed. Applying Rule 68 to cases in
which defendant prevailed would, contrary to the rule’s
purposes, give defendants an incentive to make “utterly
5
frivolous” offers of judgment that no reasonable plaintiff
would accept. Thus, even though it might be said to be
anomalous that a defendant who loses is “better off”
regarding recovery of costs than one who prevails, it is
established that where defendant prevails Rule 68 has no role
to play.
12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and
Procedure § 3006 (3d ed. 2014) (footnotes omitted).1
[¶18] As Wright and Miller suggests, the Delta holding may seem counterintuitive
because it arguably results in a losing defendant faring better than a prevailing defendant.
Indeed, some states have, for this reason, rejected application of the Delta holding to their
state offer of judgment rules. See Darragh Poultry & Livestock Equip. Co. v. Piney
Creek Sales, Inc., 743 S.W.2d 804, 806 (Ark. 1988) (rejecting Delta as leading to an
absurd result where defendant who loses can recover costs under Rule 68, but one who
wins cannot); Beattie v. Thomas, 668 P.2d 268, 274 (Nev. 1983) (footnote omitted) (“We
decline to follow the Delta Air Lines reasoning, not only because of the differences
between NRCP 68 and FRCP 68, but because such reasoning leads to an anomalous
result.”). We disagree with this rejection of the Delta holding because we find that it fails
to recognize the interplay between Rules 54(d) and Rule 68 that motivated the Supreme
Court’s Delta decision.
[¶19] In Delta, the Supreme Court held that Rule 54(d), not Rule 68, governs the award
of costs to a prevailing party. Delta, 450 U.S. at 352, 101 S.Ct. at 1150. The Court held
that where a Rule 68 offer has been made to a prevailing party, Rule 68 will operate to
limit any Rule 54(d) award of costs if the judgment obtained by the prevailing party is
less favorable than an offer made to that party pursuant to Rule 68. Id. The Court
explained:
Our interpretation of the Rule is consistent with its
purpose. The purpose of Rule 68 is to encourage the
1
As is apparent from the text of the two rules, Wyoming’s Rule 68 and the federal Rule 68 differ in who
may make an offer under the rule. W.R.C.P. 68 provides that “any party may serve upon the adverse
party an offer," whereas, F.R.C.P. 68 specifies that "a party defending against a claim may serve on an
opposing party an offer.” It has thus been explained that under F.R.C.P. 68 “[o]nly defending parties can
make Rule 68 offers of judgment. A plaintiff may not make a Rule 68 offer on the claim he asserts, but
could make a Rule 68 offer on a counterclaim.” 1 Steven S. Gensler, Federal Rules of Civil Procedure,
Rules and Commentary Rule 68 (March 2014). We point out this distinction only to clarify that although
federal precedents and commentary may generally refer to a defendant as the party making a Rule 68
offer, our Wyoming rule allows any party to make such an offer. In relying on federal precedent and
commentary, we do not intend to limit our holding based on a prevailing party’s status as plaintiff or
defendant. Rather, the important distinction for our purposes is whether a prevailing party is a Rule 68
offeror or offeree.
6
settlement of litigation. In all litigation, the adverse
consequences of potential defeat provide both parties with an
incentive to settle in advance of trial. Rule 68 provides an
additional inducement to settle in those cases in which there
is a strong probability that the plaintiff will obtain a judgment
but the amount of recovery is uncertain. Because prevailing
plaintiffs presumptively will obtain costs under Rule 54(d),
Rule 68 imposes a special burden on the plaintiff to whom a
formal settlement offer is made. If a plaintiff rejects a Rule 68
settlement offer, he will lose some of the benefits of victory if
his recovery is less than the offer. Because costs are usually
assessed against the losing party, liability for costs is a normal
incident of defeat. Therefore, a nonsettling plaintiff does not
run the risk of suffering additional burdens that do not
ordinarily attend a defeat, and Rule 68 would provide little, if
any, additional incentive if it were applied when the plaintiff
loses.
Delta, 450 U.S. at 352, 101 S.Ct. at 1150.
[¶20] Another commentator summarized the interplay between Rules 54(d) and 68:
Cost-shifting is the heart of Rule 68. Under Rule 54(d)(1),
winning plaintiffs presumptively get to tax their costs to the
losing defendant. Rule 68 reverses that result as to costs the
parties incur after the offer. Despite having won the lawsuit,
the plaintiff must bear his own post-offer costs and must pay
the losing defendant’s post-offer costs.
****
* * * Rule 68 only applies if the plaintiff wins but wins less
than the defendant’s offer. It does not apply if the plaintiff
loses. This should not be seen as a windfall for the losing
plaintiff. A losing plaintiff ordinarily will have to pay all of
the defendant’s costs, whereas a plaintiff subject to Rule 68
can still recover pre-offer costs and only pays the defendant’s
post-offer costs.
1 Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary Rule 68
(March 2014).
7
[¶21] Defendants suggest that the Delta holding should not apply to Wyoming's Rule 68
because the federal rule allows only a party defending a claim to make a Rule 68 offer,
whereas W.R.C.P. 68 allows “any party” to make a Rule 68 offer. We do not see this as a
relevant distinction between the rules. The Delta holding did not depend on the status of
the prevailing party who made the offer as either plaintiff or defendant, but was instead a
result of the Supreme Court’s interpretation of F.R.C.P. 68’s use of the terms “judgment
obtained by the offeree.” The Court explained:
But inasmuch as the words “judgment . . . obtained by the
offeree”—rather than words like “any judgment”—would not
normally be read by a lawyer to describe a judgment in favor
of the other party, the plain language of Rule 68 confines its
effect to the second type of case—one in which the plaintiff
has obtained a judgment for an amount less favorable than the
defendant’s settlement offer.
Delta, 450 U.S. at 351, 101 S.Ct. at 1149-50.
[¶22] W.R.C.P. 68 requires an offeree to pay costs incurred after the offer “[i]f the
judgment finally obtained by the offeree is not more favorable than the offer.” Similarly,
F.R.C.P. 68(d) requires the offeree to pay the costs incurred after the offer “[i]f the
judgment that the offeree finally obtains is not more favorable than the unaccepted offer.”
Thus, with respect to the Rule 68 language on which the Supreme Court based its
reasoning in Delta, W.R.C.P. 68 is nearly identical to the federal rule.
[¶23] Wyoming’s Rules 54(d) and 68 are comparable in all relevant aspects to their
federal counterparts. Consistent with our longstanding approach of looking to federal
precedent in interpreting our comparable rules, we conclude that the Supreme Court’s
holding in Delta applies to W.R.C.P. 68. In so holding, we join other state jurisdictions
that have concluded likewise, including the Colorado Court of Appeals, which reasoned:
The plain meaning is supported by an analysis of the
purpose of the rule in conjunction with that of Fed.R.Civ.P.
54(d). Under that rule, costs are generally awarded to the
prevailing party and, therefore, are a direct economic reward
of winning. The purpose of Fed.R.Civ.P. 68, however, “is to
encourage the settlement of litigation.” Thus, Fed.R.Civ.P. 68
operates to modify Fed.R.Civ.P. 54(d), insofar as the
prevailing plaintiff receives only those costs incurred before
the settlement offer was made and is thereby punished for
rejecting a reasonable offer. There is, furthermore, no reason
to extend the rule to apply to prevailing defendants because
they would generally recover costs under Fed.R.Civ.P. 54(d).
8
Delta Airlines, supra.
The Supreme Court concluded that the history of the
rule confirmed that it was intended to modify Fed.R.Civ.P.
54(d) so as to deny prevailing plaintiffs a portion of the costs
they could otherwise expect under Rule 54(d). It was not
intended to create an independent means of recovering costs.
The Advisory Committee notes state that the defendant’s
“offer will operate to save him the costs from the time of that
offer if the plaintiff ultimately obtains a judgment less than
the sum offered.” Advisory Committee Note of 1946 to
Amended Rule 68, quoted in Moore’s Federal Practice § 68–
01 (2d ed. 1988) (emphasis added). The rule was based on the
“general principle ... that a party may be denied costs when he
sues vexatiously after refusing an offer of settlement, and
recovers no more then he had been previously offered....” 12
C. Wright & A. Miller, Federal Practice & Procedure § 3001
at 56 (1973) (emphasis added).
Coldwell Banker Commercial Group, Inc. v. Hegge, 770 P.2d 1297, 1300 (Colo. Ct. App.
1988); see also Fiddle, Inc. v. Shannon, 834 So. 2d 39, 49 (Miss. 2003); Baghdady v.
Lubin & Meyer, P.C., 770 N.E.2d 513, 520 (Mass. App. Ct. 2002); Hercules, Inc. v. AIU
Ins. Co., 784 A.2d 481, 509-10 (Del. 2001); Ex Parte Waterjet Systems, Inc., 758 So. 2d
505, 508-09 (Ala. 1999); Black v. Roche Biomedical Lab., a Div. of Hoffman-LaRoche,
Inc., 433 S.E.2d 21, 23-24 (S.C. Ct. App. 1993); Jones v. Berezay, 815 P.2d 1072, 1074
(Idaho 1991); Crown Properties, Inc. v. Financial Sec. Life Ins. Co., Ltd., 712 P.2d 504,
509 n.8 (Haw. App. 1985).
[¶24] To recap, we hold that Rule 68 is not a basis for an award of costs to a prevailing
party. Instead, Rule 54(d) governs the award of costs to a prevailing party, and Rule 68
applies to limit that award if the judgment obtained by the prevailing party is less
favorable than an offer made to that party pursuant to Rule 68.
[¶25] Because Defendants were the prevailing parties below, Rule 68 does not govern
the award of costs in this matter. Because Defendants also requested costs pursuant to
Rule 54(d), and the district court ruled pursuant to both Rules 68 and 54(d), we next turn
to the question whether the court abused its discretion in awarding the costs pursuant
Rule 54(d), U.R.D.C. 501, and Wyo. Stat. Ann. § 1-14-102.
B. Court’s Exercise of Discretion in Awarding Costs
[¶26] Defendants applied for an award of costs for thirteen separate items, requesting a
total award of $2,874.56 in costs. Plaintiffs object to six items included in Defendants’
9
application for costs: 1) deposition costs for the deposition of Plaintiffs’ expert, Robert
Danielson; 2) deposition costs for the depositions of Plaintiffs Todd and Holly Graus; 3)
expert fee for the deposition of Plaintiffs’ expert, Robert Danielson; 4) expert Fee for
Defendants’ expert, Zia Yasrobi; 5) subpoena service fee for defense witness, Mark
Uptain; and 6) witness fees and mileage fees for defense witness, Mark Uptain. We will
address each of these in turn.2
1. Deposition Costs for Deposition of Plaintiffs' Expert Robert Danielson
[¶27] Defendants sought deposition costs in the amount of $552.88 for the deposition of
Plaintiffs' expert Robert Danielson. Plaintiffs argue that Defendants failed to carry their
burden of showing that these costs were reasonably necessary for the preparation of trial,
and the district court therefore abused its discretion in awarding the costs. We conclude
that the record is inadequate to allow this Court to find an abuse of discretion.
[¶28] U.R.D.C. 501 provides as follows concerning the award of deposition costs:
(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,
2
Defendants sought an award of costs that totaled $2,874.56, and the district court awarded $2,607.88.
In so ruling, the court did not identify which costs it denied or reduced. Because we do not know which
costs were disallowed, we will assume for purposes of our review that the costs to which Plaintiffs have
objected were awarded and will review the court’s exercise of discretion accordingly.
10
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.
U.R.D.C. 501(a)(3)(D).
[¶29] A party seeking an award of 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 U.R.D.C. 501(a)(3)(D), or an equivalent rationale. Garrison v. CC
Builders, Inc., 2008 WY 34, ¶ 45, 179 P.3d 867, 879 (Wyo. 2008); see also Wilson, ¶ 63,
246 P.3d at 282. “A verified bill of costs is prima facie evidence that the items listed
were necessarily expended and are properly taxable as costs.” Garrison, ¶ 45, 179 P.3d
at 879 (citing 20 Am.Jur.2d Costs § 91 (2005)).
[¶30] In their application for costs, Defendants identified the following as the basis for
awarding the Danielson deposition costs:
Costs of Depositions, or copies thereof read or displayed into
evidence at trial in lieu of appearance, for impeachment, to
refresh recollection or taken at request of non-prevailing
party; Rule 501(a)(3)(D). Rule 68; Cost of necessary
depositions. Duffy v. Brown, 708 P.2d 433 (Wyo. 1985).
[¶31] Plaintiffs argue that this statement was insufficient to meet Defendants’ burden of
proving that the deposition costs were reasonably necessary for the preparation of the
case for trial. In so arguing Plaintiffs cite to this Court's decision in Wilson, where we
stated:
In the instant case, the record does not reflect any justification
for an award of costs for this deposition beyond the bald
assertion in the certificate of costs that the deposition was
used at trial and the costs were actually and necessarily
incurred. Given this dearth of justification, we would be hard-
pressed to find that the district court acted reasonably in
awarding these costs. See Garrison v. CC Builders, Inc., 2008
WY 34, ¶ 49, 179 P.3d 867, 879–80 (Wyo. 2008).
Wilson, ¶ 63, 246 P.3d at 282.
11
[¶32] We generally agree with Plaintiffs that a party’s generic recitation of all the
grounds that could possibly support an award of deposition costs is not by itself sufficient
to satisfy that party's burden of proving that the depositions were reasonably necessary
for trial. A district court would act well within its discretion if it were to deny costs
under such circumstances. On appeal, though, the burden is on the party challenging the
award of costs to show that the district court abused its discretion in awarding the costs,
and this Court has recognized that when a party appeals an award of costs, it is that
party’s responsibility to designate a record that is sufficient to enable this Court’s review
of the district court’s exercise of discretion. Jones, ¶ 9, 275 P.3d at 1247 (citing Nish,
¶ 21, 138 P.3d at 1142). We have explained:
When this Court does not have a properly authenticated
transcript before it, it must accept the trial court’s findings of
fact upon which it bases any decisions regarding evidentiary
issues. Capshaw v. Schieck, 2002 WY 54, ¶ 21, 44 P.3d 47,
54 (Wyo. 2002). The failure to provide a transcript does not
necessarily require dismissal of an appeal, but our review is
restricted to those allegations of error not requiring inspection
of the transcript. Lacking a transcript, or a substitute for the
transcript, the regularity of the trial court’s judgment and the
competency of the evidence upon which that judgment is
based must be presumed. Stadtfeld v. Stadtfeld, 920 P.2d 662,
664 (Wyo. 1996); Combs v. Sherry–Combs, 865 P.2d 50, 55
(Wyo. 1993).
Jones, ¶ 9, 275 P.3d at 1247 (quoting Lykins v. Habitat for Humanity, The Heart of Wyo.,
Inc., 2010 WY 118, ¶ 11, 237 P.3d 405, 408 (Wyo. 2010)).
[¶33] What distinguishes the appeal in the present case from that in Wilson is that in
Wilson this Court had a trial transcript to review. It was the Court’s consideration of the
transcript that led to our conclusion that “the record does not reflect any justification for
an award of costs for this deposition beyond the bald assertion in the certificate of costs
that the deposition was used at trial and the costs were actually and necessarily incurred.”
Wilson, ¶ 63, 246 P.3d at 282. In contrast, in the present appeal, we have Defendants’
verified statement of costs, the district court's award of the costs, and no trial transcript
against which to review that award. We must therefore presume the regularity of the
district court’s ruling and the competency of the evidence upon which that ruling was
based. See Jones, ¶ 9, 275 P.3d at 1247. As we explained in Wilson:
Finally, the Wilsons object to the award of costs to
Lucerne in the amount of $67.43 for “duplication and
preparation costs and expenses for documents and exhibits
admitted into evidence.” The controlling law is found in
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U.R.D.C. 501(a)(3)(E), which includes in allowable costs
“[d]uplicating costs necessarily incurred for documents
admitted into evidence....” While we are troubled somewhat
by the lack of specificity as to this category of costs, by the
fact that “duplication and preparation costs and expenses”
may or may not equal “duplicating costs,” and by the fact that
Lucerne apparently provided no further information to the
district court upon which it could exercise its discretion, the
certificate of costs was verified, and we have held that a
“verified bill of costs is prima facie evidence that the items
listed were necessarily expended and are properly taxable as
costs.” Garrison, 2008 WY 34, ¶ 45, 179 P.3d at 879.
Lucerne asserts in its appellate brief that these costs
“represent one copy of the exhibits introduced.” Even that
information supplied to the district court would have been
helpful. In the end, however, we conclude that the district
court did not abuse its discretion in awarding duplication
costs.
Wilson, ¶ 66, 246 P.3d at 282-83.
[¶34] Based on the record before us for this appeal, we are unable to find that the district
court abused its discretion in awarding costs of the Danielson deposition.
2. Deposition Costs for Depositions of Plaintiffs Todd and Holly Graus
[¶35] Defendants sought deposition costs in the amount of $633.20 for the depositions
of Todd and Holly Graus. Plaintiffs again argue that Defendants failed to carry their
burden of showing that these costs were reasonably necessary for the preparation of trial,
and the district court therefore abused its discretion in awarding the costs. With respect
to these deposition costs, we are presented with a record that does allow the Court to
review whether the costs were reasonably necessary for trial, and we agree with Plaintiffs
that these costs should not have been awarded.
[¶36] As we noted above, a party seeking an award of deposition costs carries the
burden of showing that those costs were reasonably necessary for trial preparation.
Garrison, ¶ 45, 179 P.3d at 879; see also Wilson, ¶ 63, 246 P.3d at 282. This burden is
not diminished by the fact that the depositions at issue were depositions of the party
opponent. As we explained in Wilson,
It is, perhaps, interesting that, under U.R.D.C.
501(a)(3)(D), the deposition of a party opponent is not
automatically considered reasonably necessary for the
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preparation of the case. Consequently, as with any deposition,
“the burden must be upon the party seeking the award of costs
to justify to the district court that those costs were reasonably
necessary for the preparation of the case for trial.” Cundy
Asphalt Paving Constr. v. Angelo Materials Co., 915 P.2d
1181, 1183 (Wyo. 1996) (quoting Weaver v. Mitchell, 715
P.2d 1361, 1373 (Wyo. 1986)).
Wilson, ¶ 63, 246 P.3d at 282.
[¶37] In their application for costs, Defendants requested the award of costs for the
Graus depositions using the same generic statement that they used to support the
Danielson deposition costs:
Costs of Depositions, or copies thereof read or displayed into
evidence at trial in lieu of appearance, for impeachment, to
refresh recollection or taken at request of non-prevailing
party; Rule 501(a)(3)(D). Rule 68; Cost of necessary
depositions. Duffy v. Brown, 708 P.2d 433 (Wyo. 1985).
[¶38] On appeal, however, Defendants clarified the basis on which they were claiming
the Graus deposition costs. In particular, Defendants contend that the Graus depositions
were used in Defendants’ motion for partial summary judgment on the question of
punitive damages. Because Defendants’ summary judgment motion and supporting brief
were included in the record on appeal, we have a record that is sufficient to allow the
Court to review whether the district court abused its discretion in awarding the Graus
deposition costs.
[¶39] Defendants are correct that the use of a deposition to support a summary judgment
motion may provide a basis to find the deposition costs allowable. This Court has
explained:
With respect to costs of discovery depositions, we espouse
the rule that if the discovery deposition is reasonably
necessary for the preparation of the case, then there is no
abuse of discretion on the part of the district judge in
awarding such costs. See for example, Bailey v. Meister
Brau, Inc., 535 F.2d 982 (7th Cir. 1976); Griffin v. Collins,
443 F. Supp. 1010 (S.D.Ga. 1978); George R. Hall, Inc. v.
Superior Trucking Co., Inc., 532 F. Supp. 985 (N.D.Ga.
1982); Kraeger v. University of Pittsburgh, 535 F. Supp. 233
(W.D.Pa. 1982); Wade v. Mississippi Cooperative Extension
Service, 64 F.R.D. 102 (N.D.Miss. 1974); Mastrapas v. New
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York Life Insurance Co., 93 F.R.D. 401 (E.D.Mich. 1982).
With respect to the exercise of discretion as to such costs,
however, the burden must be upon the party seeking the
award of costs to justify to the district court that those costs
were reasonably necessary for the preparation of the case for
trial. If the depositions are introduced at the trial, or are used
for purposes of impeachment or refreshing the recollection of
a witness at the trial that would ordinarily satisfy the burden
of demonstrating that they were reasonably necessary. Other
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 v. Brown, 708 P.2d 433, 440-41 (Wyo. 1985) (quoting State and G.M. Kinniburgh
v. Dieringer, 708 P.2d 1 (Wyo. 1985)) (emphasis added).
[¶40] Although the use of depositions in connection with a summary judgment motion
may provide a basis to find the depositions reasonably necessary for trial, the record does
not support such a finding in this case. We have reviewed Defendants' partial summary
judgment motion and supporting memorandum, and the depositions are not cited in the
motion or memorandum. We therefore find no basis in the summary judgment motion
for an award of these deposition costs, and this portion of the award is reversed.
3. Expert Fee for Danielson Deposition
[¶41] Defendants sought expert fees in the amount of $750.00 for their deposition of
Plaintiffs’ expert, Robert Danielson. This amount represented three hours of deposition
time at $250 per hour. Defendants cite W.R.C.P. 68 as their sole basis for this cost. As
discussed above, W.R.C.P. 68 does not provide a basis for costs in this case.
Additionally, U.R.D.C. 501(a)(3)(B) and Wyo. Stat. Ann. § 1-14-102(b) allow expert
fees of only $25.00 per day for trial testimony, or fees for actual trial testimony at such
higher rate as the court may determine. See also Snyder v. Lovercheck, 2001 WY 64,
¶ 13, 27 P.3d 695, 699-700 (Wyo. 2001); Coulthard v. Cossairt, 803 P.2d 86, 93 (Wyo.
1990). Neither U.R.D.C. 501 nor Wyo. Stat. Ann. § 1-14-102(b) allows for the awarding
of expert fees for depositions, and Defendants cite to no other authority for the awarding
of such fees. This portion of the award is therefore reversed.
4. Expert Fee for Zia Yasrobi
[¶42] Defendants sought an award of $150.00 for one hour of time their defense expert,
Zia Yasrobi, spent preparing for trial testimony. U.R.D.C. 501(a)(3)(B)(ii) provides that
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for an expert witness, “[t]ime charged in preparation for providing testimony and/or
standing by awaiting the call to give testimony is not allowable as costs, except at the rate
of $25.00 per day.” This award shall be reduced to $25.00.
5. Supoena Service Fee for Mark Uptain
[¶43] Defendants sought an award of $50.00 for the service fee for the subpoena served
on Mark Uptain. Plaintiffs object to this cost, contending that the cost a party incurs in
subpoenaing its own witness is not allowed under the rules. Plaintiffs cite no authority to
support their argument. U.R.D.C. 501(a)(3)(A) authorizes fees for the service of process.
The district court did not abuse its discretion in awarding this cost.
6. Witness Fees and Mileage for Mark Uptain
[¶44] Defendants sought $25.68 for witness fees and mileage costs for Mark Uptain to
attend the trial. Plaintiffs object on the ground that Mr. Uptain did not actually provide
trial testimony. Defendants respond that Mr. Uptain appeared in accordance with his
subpoena on the morning Defendants were to begin putting on their case and the only
reason Mr. Uptain did not testify was that the district court granted Defendants motion
for judgment as a matter of law.
[¶45] U.R.D.C. 501 provides as follows concerning witness fees:
Witness fees are allowed at the rate of $30.00 per day and
$15.00 per half day necessarily spent traveling to and from
the proceeding and in attendance at the proceeding. Mileage
is allowed at the rate of $.23 per mile, not to exceed the costs
of common carrier transportation rates.
U.R.D.C. 501(a)(3)(B)(i) (LexisNexis 2014).
[¶50] Rule 501 does not condition payment of witness fees and mileage on a
requirement that the witness actually testify, and Plaintiffs made no showing that Mr.
Uptain did not appear for his testimony. We find no abuse of discretion in the district
court's award of these costs.
CONCLUSION
[¶51] We hold that Rule 68 did not apply to the award of costs in this matter because
Defendants were the offeror under Rule 68 and were also the prevailing parties. Costs
were instead governed by Rule 54(d). We remand to the district court for entry of an
order awarding costs consistent with our ruling herein. Affirmed in part and reversed in
part.
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