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Vicencio v. Lincoln-Way Builders

April 17, 2003


The opinion of the court was delivered by: Justice Garman


Docket No. 93687-Agenda 12-January 2003.

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 Code of Civil Procedure (Code) (735 ILCS 5/5-108 (West 2000)), and Supreme Court Rule 208 (134 Ill. 2d R. 208). Defendant appealed (155 Ill. 2d R. 304(a)), and the appellate court affirmed in part and reversed in part (328 Ill. App. 3d 439). We granted defendant's petition for leave to appeal to resolve a split among the appellate districts on the question of whether a trial court may assess as costs the fee charged by a plaintiff's treating physician for his participation in an evidence deposition that was presented to the jury.


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, defendant denied that plaintiff was entitled to recover any costs associated with the videotaping of the evidence deposition of plaintiff's treating physician, Dr. Preston Wolin. The expenses included Dr. Wolin's fee and the fee charged by the videographer. Defendant also argued that the extra costs associated with the production of an expedited transcript of Dr. Wolin's deposition should not be imposed on it, because plaintiff's failure to take the evidence deposition in a timely manner necessitated the excess costs. Other challenged expenses included the fee paid to the technician who operated the video equipment at trial and the individual who interpreted for plaintiff during his testimony at trial. After a hearing on the matter, the trial court entered the following written order: "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 ligitation," 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.


As appellant, defendant formulates the question for this court as whether a trial court may assess as costs "the fee charged by an expert witness for his testimony at trial." We will address the narrower question actually presented by the facts of this case-whether the trial court may assess as costs the fee charged by a nonparty treating physician for attending an evidence deposition.

Defendant's petition for leave to appeal, which also serves as its brief, does not comply with our rule requiring the appellant to provide a concise statement of the applicable standard of review, with citation to authority. 188 Ill. 2d R. 341(e)(3). At oral argument, counsel suggested that the 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).

A similar provision mandates the award of costs to a prevailing defendant in a civil case (735 ILCS 5/5-109 (West 2000)), and the award of costs to the prevailing party when judgment is granted upon motion (735 ILCS 5/5-110 (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, of Illinois, First District, 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. 735 ILCS 5/5-108 (West 2000). The provision is mandatory, but as noted above, the mandate must be narrowly construed. The term "costs" is not ...

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