This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Lisa Olson, et al.,
Mervin Leroy Kelley,
Filed May 16, 2006
Reversed and remanded
Hennepin County District Court
File No. PI 01-14591
Jeffrey R. Anderson, Kathleen O’Connor, Jeff Anderson & Associates, P.A., E-1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellants)
Thomas E. McEllistrem, Garth G. Gavenda, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondents First Church of the Nazarene, et al.)
Mervin Leroy Kelley,
Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.
Appellants challenge the district court’s order granting respondents’ costs and disbursements. Appellants allege that the district court abused its discretion by granting the bill of costs without conducting an evidentiary hearing, making reasonableness determinations, or issuing detailed findings. We reverse and remand.
Jay and Lisa Olson sued respondents
Respondents filed their bill of costs and disbursements, and appellants objected. Replying to appellants’ objections, respondents filed an amended bill of costs. Appellants objected to the amended bill of costs and filed a motion for a judgment notwithstanding the verdict or a new trial.
Respondents’ amended bill of costs sought, among other things, reimbursement for filing fees, meals and lodging for Samuel Pickenpaugh, lodging for William Colbeck, deposition and transcript costs, expert-witness fees, and costs associated with respondents’ attorneys’ representation. Appellants objected to the expert-witness fees, the meals and lodging of witnesses Samuel Pickenpaugh and William Colbeck, the deposition fees, and the fees associated with respondents’ attorneys’ representation.
Respondents contend that the district court heard arguments regarding their bill of costs at the hearing on appellants’ posttrial motion. The district court denied appellants’ posttrial motion and granted respondents’ bill of costs without specifying the amount of costs granted. Soon thereafter, the district court issued an amended order and memorandum, granting the full amount of respondents’ requested costs. While the district court stated that respondents’ “Amended Bill of Costs is allowed for a total of $16,711.88 plus interest,” the district court did not address the merits of the claim. This appeal follows.
and disbursements shall be allowed as provided by statute.”
Appellants allege that the district court abused its discretion by (1) failing to grant appellants an evidentiary hearing regarding their objections to respondents’ amended bill of costs; (2) awarding costs for respondents’ expert witness; (3) awarding costs for respondents’ witnesses’ lodging and meals during the trial; (4) awarding costs of depositions that respondents did not use at trial; and (5) awarding costs for respondents’ attorneys’ travel, mileage, and meals.
A. Evidentiary Hearing
that the district court abused its discretion by failing to take oral testimony
and by failing to make findings on the reasonableness and necessity of respondents’
costs and disbursements. Relying on Buller v. A.O. Smith Harvestore Prods., Inc.,
518 N.W.2d 537 (
While a hearing
may not be required, costs and disbursements must be reasonable and
necessary. Stinson v. Clark Equip. Co., 473 N.W.2d 333, 338 (Minn. App. 1991),
review denied (Minn. Sept. 13,
1991). When a party has challenged the
reasonableness or necessity of an award, and the district court has neither
conducted a hearing nor made findings, we have remanded to the district court
for appropriate findings on that issue. See Ill. Farmers Ins. Co. v. Brekke
Fireplace Shoppe, Inc., 495 N.W.2d 216, 222 (
Here, respondents contend that the district court heard argument on their bill of costs at the hearing on appellants’ posttrial motion. Appellants disagree. There is no transcript of that proceeding in the record. As a result, we have no way to determine whether the district court heard argument on the bill of costs and, if so, to what extent the parties were allowed to state their positions. Because there is no transcript of the hearing in the record and because the district court did not make findings regarding the reasonableness of respondents’ costs, we reverse and remand for a hearing on the disputed portions of respondents’ submitted costs.
B. Expert Witness
We will reverse an
award of expert-witness fees only when an abuse of discretion is apparent. Carpenter
v. Mattison, 300
On affidavit showing that a fee equalling or exceeding $300.00 per day has been billed, the court administrator may tax $300.00 per day for an expert witness fee as a disbursement in a civil case, subject to increase or decrease by a judge. The amount allowed shall be in such amount as is deemed reasonable for such services in the community where the trial occurred and in the field of endeavor in which the witness has qualified as an expert. No allowance shall be made for preparation . . . outside the courtroom by an expert.
Appellant asserts that the district court abused its discretion by awarding expert-witness fees that are in excess of the $300 per day limit, by awarding costs for the expert’s out-of-court preparation, and by not making a finding of what a reasonable fee would be within the field of psychology in the Minneapolis community.
rule does not provide “an inflexible $300 per day limit on expert fees,” Mohwinkel v. City of N. St. Paul, 357
N.W.2d 174, 176 (
fees for an expert’s out-of-court preparation time, this court has stated that
the rule does not “disallow compensation for all preparations outside the courtroom.” Mohwinkel,
357 N.W.2d at 177 (emphasis added). The
out-of-court preparation fee allowed is such that is necessary for the expert’s
C. Witnesses’ Lodging and Meals
[A] witness who is not a party to the action or an employee of a party . . . and who is required to give testimony . . . relating to knowledge, information, or facts obtained as a result of activities in such profession, business, or trade, is entitled to reasonable compensation for the time and expense involved in preparing for and giving such testimony.
are seeking compensation for two witnesses: Dr. Samuel Pickenpaugh and William
Colbeck. The compensation sought for Dr.
Pickenpaugh is $1,501.35 for meals and lodging. Dr. Pickenpaugh lives in
argue that this rule does not allow for reimbursement of trial witnesses’ meals
and lodging. In addition, appellants
assert that Dr. Pickenpaugh’s expenses should not be reimbursed under this rule
because he is or was an employee of respondent
Appellants cite to
the transcript and to a trial exhibit to support their argument that Dr.
Pickenpaugh was an employee of
With respect to the reimbursement claim for William Colbeck’s expenses, it is not clear from the record whether the lodging expense is reasonable, and the district court did not make a reasonableness determination. Due to the incomplete record on this issue and the lack of findings on the reasonableness of the claim, we ask the district court to address this issue on remand as well.
Appellants also challenge the district court’s award of respondents’ deposition costs on the grounds that the depositions were not used during trial and the award is cumulative and duplicative because it allows reimbursement for both regular and condensed copies.
The award of
deposition costs to the prevailing party is within the sound discretion of the
district court. Larson v. Hill’s Heating & Refrigeration of Bemidji, Inc., 400
N.W.2d 777, 783 (Minn. App. 1987), review
denied (Minn. Apr. 17, 1987).
Further, “[t]he fact that a deposition was not used at trial does not
bar deposition costs.” Johnson v. S. Minn. Mach. Sales, Inc.,
460 N.W.2d 68, 73 (
While the costs of the depositions and the copies may generally be included in the award of costs, the district court here did not issue findings regarding whether these particular depositions were necessary, whether respondents used the depositions effectively, and whether the costs were reasonable, particularly in light of the allegation that respondents are seeking to recover for multiple copies of the depositions. On remand, we ask the district court to address this issue.
E. Attorneys’ Travel, Mileage, and Meals
Appellants further challenge the award of respondents’ attorneys’
travel, mileage, and meals. The rule of
procedure governing costs and disbursements states that they “shall be allowed
as provided by statute.”
contend that the district court should have taken into account equitable
considerations, such as appellants’ ability to pay and the chilling effect that
requiring the losing party to pay costs may have on future plaintiffs in
sexual-battery claims. Appellants state
that there is no
Reversed and remanded.