Carper v. Watson

• Decision Date: 08 June 2010
• Docket Number: No. 34750.,34750.
• Citation: 697 S.E.2d 86,226 W.Va. 50
• Court: West Virginia Supreme Court
• Parties: Eric CARPER, Plaintiff Below, Appellantv.Chad WATSON and Burkharts, Inc., Defendants Below, Appellees.

226 W.Va. 50

697 S.E.2d 86

West Virginia.

Eric CARPER, Plaintiff Below, Appellantv.Chad WATSON and Burkharts, Inc., Defendants Below, Appellees.

No. 34750.

Supreme Court of Appeals of

Submitted March 9, 2010.

Decided June 8, 2010.

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Syllabus by the Court

1. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1 Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

2. “An interpretation of the West Virginia Rules of Civil Procedure presents a question of law subject to a de novo review.” Syl. Pt. 4 Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754 (1997).

3. “ ‘[T]he trial [court] ... is vested with a wide discretion in determining the amount of ... court costs and counsel fees, and the trial [court's] ... determination of such matters will not be disturbed upon appeal to this Court unless it clearly appears that [it] has abused [its] discretion.’ Syllabus point 3, [in part,] Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959). Syl. Pt. 2, [in part,] Cummings v. Cummings, 170 W.Va. 712, 296 S.E.2d 542 (1982) [ (per curiam) ]. Syllabus point 4, in part Ball v. Wills, 190 W.Va. 517, 438 S.E.2d 860 (1993). Syl. pt. [2] Daily Gazette Co., Inc. v. West Virginia Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999). Syllabus point 1, Hollen v. Hathaway Electric, Inc., 213 W.Va. 667, 584 S.E.2d 523 (2003) (per curiam).” Syl. Pt. 3, Shafer v. Kings Tire Serv., Inc., 215 W.Va. 169, 597 S.E.2d 302 (2004).

4. “Costs included under West Virginia Rule of Civil Procedure 68(a) include attorney's fees when any statute applicable to the case defines costs as including attorney's fees. However, costs under Rule 68(a) do not include attorney's fees if the statute creating the right to attorney's fees defines attorney's fees as being in addition to, or separate and distinct from, costs.” Syl. Pt. 4, Shafer v. Kings Tire Serv., Inc., 215 W.Va. 169, 597 S.E.2d 302 (2004).

5. “Costs” that may be assessed against a plaintiff under West Virginia Rule of Civil Procedure 68(c) include only those expenses defined as “costs” by statute. Typically, costs under Rule 68(c) will be limited to “court costs,” i.e., the costs taxable under West Virginia Rule of Civil Procedure 54(d). “Costs” under Rule 68(c) do not include attorney fees, expert witness fees, or any other expenses that are not traditionally taxed as “court costs,” unless (1) the statute applicable to the case expands the definition of “costs” to include such expenses, and (2) the statute does not limit the award of such costs to the “claimant” or “plaintiff.”

Christopher J. Prezioso, Esq., Luttrell & Prezioso, Martinsburg, WV, for Appellant.

Macel E. Rhodes, Esq., Zimmer Kunz, PLLC, Morgantown, WV, for Appellees.

WORKMAN, Justice:

This case is before this Court upon an appeal from a final order of the Circuit Court of Berkeley County, West Virginia, awarding costs pursuant to West Virginia Rule of Civil Procedure 68(c). Under Rule 68(c), if a defendant has made an offer of judgment and the plaintiff subsequently recovers a final judgment in an amount less than the defendant's offer, the court must award the costs incurred by the defendant following the offer of judgment to the defendant. In the instant case, the costs awarded by the circuit court included court costs, expert witness fees, and expenses associated with obtaining a deposition transcript. For the reasons set forth herein, the Court affirms, in part, and reverses, in part, the circuit court's final Order and holds that the costs that may be recovered by a defendant pursuant to Rule 68(c) are limited to those recoverable as “court costs” under West Virginia Rule of Civil Procedure 54(d), unless otherwise specifically allowed by statute.

I.FACTS AND PROCEDURAL HISTORY

While driving a car owned by his employer in September 2003, Appellant Eric Carper (“the Appellant”), was rear-ended by Appellee Chad Watson, who was driving a dump truck owned by Appellee Burkhart's, Inc. (jointly “the Appellees”). As a result of the collision, the Appellant suffered minor injuries, including a soft tissue injury to his back. Thereafter, he quit his job at a car dealership, but subsequently found employment at a different dealership approximately two months later. Several months after the accident, the Appellant began physical therapy for his injuries and, over time, additionally sought medical and chiropractic treatment. Two years after the accident, in September 2005, he filed a personal injury lawsuit against the Appellees in the Circuit Court of Berkeley County, West Virginia.

The Appellees stipulated to liability and, in June 2007, made an offer of judgement to the Appellant pursuant to Rule 68 of the West Virginia Rules of Civil Procedure in the amount of $35,000.00. The Appellant, who was seeking over $300,000.00 in alleged lost wages, declined the offer of judgment. The case proceeded to trial in August 2007 on the issue of damages only. At trial, the Appellees vigorously contested the Appellant's lost wages claim ¹ as well as many of his medical expenses. The jury ultimately awarded the Appellant only $8,297.74, which consisted of $3,297.74 in past medical expenses and $5,000.00 for pain and suffering. In addition, he received $1,298.51 in prejudgment interest, bringing his total recovery to $9,596.25.

Given that the Appellant's final judgment was significantly less than the offer of judgment, the Appellees filed a motion for costs pursuant to Rule 68(c). At a hearing on January 7, 2008, the circuit court granted that motion and assessed a total of $7,012.07 in costs against the Appellant. Specifically, the circuit court awarded the Appellees $3,450.00 for expert witness fees, $326.00 for the costs of transcribing a videotaped deposition of the Appellant's treating physician, and $3,236.10 for “court costs” associated with the trial. The “court costs” included the circuit clerk fee ($145.00), witness fee ($20.00), court reporter costs ($200.00), and jury costs ($2,871.10). The circuit court denied, however, the Appellees' request for postage and travel costs, including meals and lodging for the attorneys, and the Appellees withdrew their request for copy costs, due to a lack of detail regarding the number of copies. The Appellees had incurred all of these costs after making their offer of judgment.

The Appellant now appeals the award of costs, arguing that the circuit court erred as a matter of law in assessing expert witness fees and deposition transcript costs, because neither cost is provided for by statute. The Appellant further contends that the circuit court abused its discretion in awarding any costs at all, given that the amount of costs taxed against him is nearly equal to his total recovery.

II.STANDARD OF REVIEW

This case presents the legal question of what “costs” can be assessed against a plaintiff pursuant to West Virginia Rule of Civil Procedure 68(c). In general, “[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1 Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Moreover, “[a]n interpretation of the West Virginia Rules of Civil Procedure presents a question of law subject to a de novo review.” Syl. Pt. 4, Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754 (1997).

With regard to the circuit court's specific assessment of court costs, however,

‘the trial [court] ... is vested with a wide discretion in determining the amount of ... court costs and counsel fees, and the trial [court's] ... determination of such matters will not be disturbed upon appeal to this Court unless it clearly appears that [it] has abused [its] discretion.’ Syllabus point 3, [in part,] Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959). Syl. Pt. 2, [in part,] Cummings v. Cummings, 170 W.Va. 712, 296 S.E.2d 542 (1982) [ (per curiam) ]. Syllabus point 4, in part, Ball v. Wills, 190 W.Va. 517, 438 S.E.2d 860 (1993). Syl. pt. [2], Daily Gazette Co., Inc. v. West Virginia Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999). Syllabus point 1, Hollen v. Hathaway Electric, Inc., 213 W.Va. 667, 584 S.E.2d 523 (2003) (per curiam).

Syl. Pt. 3, Shafer v. Kings Tire Serv., Inc., 215 W.Va. 169, 597 S.E.2d 302 (2004). Consequently, while this Court will determine, de novo, what types of costs may be assessed under Rule 68(c), the Court will review the amount of “court costs” assessed by the circuit court for abuse of discretion.

III.DISCUSSION

West Virginia Rule of Civil Procedure 68 provides, in relevant part,

(a) Offer of Judgment. At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the defending party's offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the court shall direct entry of the judgment by the clerk.

...

(c) Offer Not Accepted. An offer under subdivision (a) or (b) above not accepted in full satisfaction shall be deemed withdrawn, i.e., shall not be disclosed to the jury, and evidence thereof is not admissible except in a proceeding to determine costs. 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. The fact that an offer is made but not accepted, or accepted only as part payment, does not preclude a subsequent offer.

W. Va. R. Civ. P. 68(a) & (c) (2010) (emphasis added). Accordingly, under Rule 68, a defendant may...