Robinson v. Howard University, 81-1450.

• Decision Date: 26 January 1983
• Docket Number: No. 81-1450.,81-1450.
• Citation: 455 A.2d 1363
• Parties: Dorothy ROBINSON, Personal Representative of the Estate of Rosa L. Walls, Appellant, v. HOWARD UNIVERSITY, Appellee.
• Court: D.C. Court of Appeals

455 A.2d 1363

Dorothy ROBINSON, Personal Representative of the Estate of Rosa L. Walls, Appellant, v. HOWARD UNIVERSITY, Appellee.

No. 81-1450.

District of Columbia Court of Appeals.

Submitted November 10, 1982.

Decided January 26, 1983.

COPYRIGHT MATERIAL OMITTED

Charles R. Claxton, Washington, D.C., for appellant.

Hugh E. Donovan, Silver Spring, Md., for appellee H.W. Williams.

John Jude O'Donnell, Washington, D.C., for appellee D.H. Pendergrast.

John F. Mahoney, Jr., Washington, D.C., for appellee Howard University.

Before NEWMAN, Chief Judge, and KERN and TERRY, Associate Judges.

KERN, Associate Judge:

Appellant Dorothy L. Robinson, personal representative for the estate of Rosa L. Walls, challenges the propriety of the trial court's assessment of certain costs against her following two and one-half days of trial which ended in a mistrial.

In April 1979, appellant filed this action in behalf of the Walls estate and was granted leave to proceed in forma pauperis by an order of the court waiving payment by her of "all court costs" and relieving her from "prepayment of witness fees." (Record at 25.) That order also stated that appellant would be required to pay "all taxable costs and appropriate witness fees" from the proceeds of any recovery. (Id.)

On November 24, 1980, after the pretrial conference had been held and only 11 days before trial commenced, appellant's attorney notified defense counsel of additional proposed testimony of appellant's expert witness — testimony which the trial court later found would have "changed profoundly" the scope of the trial. (Supp. Record at 5.) The following day, appellees moved to restrict the expert witness' testimony to matters previously disclosed pursuant to Super.Ct.Civ.R. 26. No ruling was made by the trial court on that motion until the second day of trial, December 8, 1980, when it was granted. (Record at 50.) The court noted the "intolerable risk to prejudice" to the appellees in not having adequate time to prepare to meet the new testimony; but also recognizing that the additional testimony would have been a significant part of appellant's case, the court suggested that a mistrial might be appropriate. (Supp. Record at 6-7.)

The next day, appellant requested and was granted a mistrial; however, the court conditioned the mistrial upon appellant's paying costs. Appellant did not object at that time to the imposition of costs. (Supp. Record at 9-11.)

Accordingly, on July 7, 1981, the trial court entered an order directing appellant to pay "per diem" costs of $250 to each defense counsel and to each individual defendant who prevailed on the merits. (Record at 15.) A new trial held in September 1981 resulted in a verdict for the appellees; and following that trial, costs were assessed against appellant in the amount of $3890, representing $140 in witness fees and $3750 awarded pursuant to the July 7 order as "per diem" costs.

Appellant makes two arguments here on appeal.¹ First, she contends that the trial court abused its discretion in taxing costs against her because she was proceeding in forma pauperis and was therefore relieved of any obligation to pay costs, absent a showing of bad faith or other misconduct, unless she recovered a judgment against appellees. Second, appellant maintains that, even if the award of costs against an unsuccessful in forma pauperis party were proper, the trial court abused its discretion in ordering payment of these "per diem" costs (1) because no statute, rule, or practice authorizes the award of unspecific "per diem" costs, and (2) because the "per diem" costs awarded to appellees' attorneys are actually attorney fees, and may not be awarded absent a showing of "unwarranted, oppressive, or vexatious conduct." Wisconsin Avenue Associates, Inc. v. 2720 Wisconsin Avenue Coop., D.C.App., 385 A.2d 20, 24 (1978).

I

Appellant's first assertion, that costs may not be awarded against an unsuccessful plaintiff in forma pauperis, is not well founded. The District of Columbia statute authorizing the courts to permit parties to proceed in forma pauperis refers only to the waiver of "pre-payment" of "fees and costs or security therefor."² D.C.Code 1981, § 15-712 (emphasis added). The applicable court rule only relieves a party of the obligation to pay costs in advance or as they accrue; it provides no mechanism for the eventual payment of costs by anyone other than the in forma pauperis litigant. Super. Ct.Civ.R. 54-11.

It is a long-established rule that leave to proceed in forma pauperis does not absolve a party from the ultimate responsibility of paying the costs of litigation:³

The effect of statutes permitting proceedings in forma pauperis ordinarily is not to relieve the pauper from eventual payment of costs but merely to postpone payment until final determination of the case. . . . [20 C.J.S., Costs § 146, at 385.]

A person proceeding in forma pauperis is ordinarily not relieved of the eventual payment of costs in the event of an adverse determination of the case against him. [20 Am.Jur.2d, Costs § 47, at 38.]

In arguing that costs may not properly be assessed against a party proceeding in forma pauperis, appellant relies upon Harris v. Harris, 137 U.S.App.D.C. 318, 424 F.2d 806, cert. denied, 400 U.S. 826, 91 S.Ct. 50, 27 L.Ed.2d 55 (1970), in which the court held that the intent of the District of Columbia in forma pauperis statute is "to make available to the indigent, in common with his fellow citizen, the full range of civil remedies contrived by court or legislature . . ." Id. 137 U.S.App.D.C. at 322-23, 424 F.2d at 810-11. However, the rule that an indigent is not relieved entirely of the responsibility for the costs of litigation is not inconsistent with Harris: it ensures that an indigent party, like any other litigant, will have access to the courts for the resolution of disputes, but will weigh the costs of litigation against the likelihood of success before proceeding in court.⁴

Finally, appellant contends that, because the District of Columbia in forma pauperis statute contains no provisions expressly permitting the courts to assess costs against an in forma pauperis party at the conclusion of the suit, the trial court had no authority to do so here. Appellant points to the fact that the federal statute, by contrast, explicitly states that "[j]udgment may be rendered for costs at the conclusion of the suit or action as in other cases. . . ." 28 U.S.C. § 1915(e). However, the failure of the District of Columbia statute to include such a provision is not significant in light of the established practice of the courts in assessing costs against indigent plaintiffs proceeding in forma pauperis.⁵ Moreover, the federal statute does not provide any new authority to the federal courts to assess costs. It states only that costs may be assessed "as in other cases," e.g., pursuant to Fed.R.Civ.P. 54(d).⁶ Maldonado v. Parasole, 66 F.R.D. 388, 390 (E.D.N.Y. 1975); see Marks v. Calendine, supra, 80 F.R.D. at 28.

Some opinions have contained language suggesting that costs were assessed against in forma pauperis parties because they were proceeding in a malicious or frivolous manner. E.g., Duhart v. Carlson, 469 F.2d 471, 478 (10th Cir.1972), cert. denied, 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 692 (1973); Perkins v. Cingliano, 296 F.2d 567, 569 (4th Cir.1961); Holsey v. Bass, 519 F.Supp. 395, 406 (D.Md.1981). However, we conclude that the court is not required to make such a finding of malice or bad faith in order to assess costs against a party proceeding without prepayment of costs under D.C.Code 1981, § 15-712. Costs may be assessed against a party proceeding in forma pauperis at the conclusion of an unsuccessful suit as in any other case, according to the standards applicable to Super.Ct. Civ.R. 54(d) and in the exercise of the court's equitable discretion.⁷

II

The question then is whether the trial court abused its discretion in awarding costs to the appellees following the mistrial which was necessitated by appellant's eveof-trial request to expand the scope of her expert testimony.

The posture of this case at the time costs were initially taxed, following the grant of a mistrial, was very much like that in Paraskevas v. McKee Auto Service, Inc., D.C. App., 162 A.2d 488 (1960). In Paraskevas, this court held the assessment of costs against a plaintiff to be a proper condition to the dismissal of a lawsuit when the plaintiff sought the dismissal in order to proceed with a second suit he had instituted in another court (based on the same cause of action but for significantly greater damages). Because the trial courts in Paraskevas "could, and possibly should" have given the plaintiff the opportunity to elect as to which case would be prosecuted we affirmed the award of costs.⁸ 162 A.2d at 490.

In the case before us, the trial court could, and possibly should, have insisted that appellant proceed to trial with her evidence as limited by the pretrial statements and the pretrial order; and in permitting the appellant to take a mistrial the trial court probably gave her more than she had a right to ask.⁹

Appellant apparently did not object to the imposition of costs at the time this mistrial was granted. Nor is it clear from the record that appellant was unaware that costs might be awarded if a mistrial were granted. Further, appellant does not contend that appellees were not the "prevailing" parties within the meaning of Rule 54(d) at the time the costs in question were finally imposed, following the second trial. Under these circumstances, we conclude that there was no abuse of discretion in the conditioning of a mistrial upon appellant's paying the costs of the first trial, or in the assessment of those costs against appellant as a matter of course at the conclusion of the suit pursuant to Rule 54(d).

III

We turn, finally, to appellant's contention that, even if costs were properly assessed against her, ...