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Perkins v. Harris

November 22, 1999

GENCIE M. PERKINS, PLAINTIFF-APPELLEE,
V.
FREDERICK T. HARRIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County. No. 97-L-596B Honorable John Goodwin and Honorable Michael J. O'Malley, Judges, presiding.

The opinion of the court was delivered by: Justice Hopkins

Defendant, Frederick T. Harris, appeals the trial court's order granting plaintiff's posttrial motion to tax costs. Plaintiff, Gencie M. Perkins, brought the underlying negligence action to recover for injuries plaintiff sustained in an automobile accident. The jury returned a verdict in favor of plaintiff, and the trial court entered judgment on the verdict. Plaintiff filed a posttrial motion to tax costs, including plaintiff's witness fee and the costs of videotaping and editing the deposition of plaintiff's treating physician. Over defendant's objection, the trial court granted plaintiff's posttrial motion.

In the instant appeal, defendant requests that we reverse the trial court's order granting plaintiff the cost of the witness fee and the cost of videotaping and editing the evidence deposition. We affirm.

I. FACTS

On July 11, 1997, plaintiff filed her complaint against defendant to recover for injuries plaintiff sustained in an automobile accident that occurred on January 29, 1996. At trial on September 24, 1998, plaintiff's treating physician, Jean-Claude Jacob, testified pursuant to a videotaped evidence deposition. The other witnesses at trial included plaintiff and defendant. The jury returned a verdict for plaintiff in the sum of $2,766.69. The trial court entered judgment on the verdict.

On September 28, 1998, plaintiff filed a posttrial motion to tax costs. Plaintiff requested that the court tax costs to defendant. These costs included $470 to Mudge Legal Video for videotaping and editing Dr. Jacob's evidence deposition, $190.45 to Kennedy M. Russell for transcribing Dr. Jacob's evidence deposition, and $375 to Dr. Jacob for testifying at the evidence deposition. The request, including other, undisputed costs, totaled $1,449.45. On September 30, 1998, defendant filed an objection to the portions of plaintiff's motion concerning the professional fee of Dr. Jacob for testifying at the evidence deposition and the charges of Mudge Legal Video for videotaping and editing the evidence deposition. After a hearing on October 27, 1998, the trial court granted plaintiff's motion to tax costs in the amount of $1,449.45, which included the amounts contested by defendant. Defendant filed his timely appeal.II. DISCUSSION Defendant asserts that the trial court erred in awarding the costs of Dr. Jacob's witness fee and of fees associated with videotaping and editing Dr. Jacob's evidence deposition because such costs are not provided for by statute. Plaintiff counters that the trial court did not abuse its discretion in awarding the costs associated with the evidence deposition because the award falls within statutory authority. We agree.

"At common law, a successful litigant was not entitled to recover from his opponent the costs and expenses of the litigation." Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 162 (1982). "The allowance and recovery of costs is therefore entirely dependent on statutory authorization." Galowich, 92 Ill. 2d at 162.

The legislature has provided as follows:

"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 ***." 735 ILCS 5/5-108 (West 1996).

"While the power to impose costs must ultimately be found in some statute, the legislature may grant the power in general terms to the courts, which in turn may make rules or orders under which costs may be taxed and imposed." Galowich, 92 Ill. 2d at 162.

Specifically, under section 1-105 of the Code of Civil Procedure, the legislature has established as follows:

"The Supreme Court may provide by rule for the orderly and expeditious administration and enforcement of this Act and of the rules, including *** the assessment of costs ***." 735 ILCS 5/1- 105 (West 1996).

The supreme court has provided for the assessment of costs to the prevailing party by stating the following in Supreme Court Rule 208:

"(a) Who Shall Pay. The party at whose instance the deposition is taken shall pay the fees of the witness and of the officer and the charges of the recorder or stenographer for attending. The party at whose request a deposition is transcribed and filed shall pay the charges for transcription and filing. The party at whose request a tape-recorded deposition is filed without having been transcribed shall pay the charges for filing, and if ...


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