Bell v. Palmer, No. 64-4-02 Ancv (Reiss, J., May 9, 2005)


[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying data included in the Vermont trial court
opinion database is not guaranteed.]


                                  STATE OF VERMONT
                                 ADDISON COUNTY, SS.

                                                                        )
KENNETH AND PENNY BELL                      )               Addison Superior Court
                                            )
       v.                                   )               Docket No. 64-4-02 Ancv
                                            )
MICHAEL PALMER                              )


      OPINION AND ORDER REGARDING DEFENDANT’S BILL OF COSTS

       This matter comes to the court on Defendant Michael Palmer’s March 2, 2005 bill
of costs. Plaintiffs Kenneth and Penny Bell filed a private nuisance action against
Defendant. On January 25, 2005, the Court entered a decision and order denying
Plaintiffs relief, dismissing the action on the merits, and granting Defendant costs of the
action. Defendant served Plaintiffs with a Bill of Costs on March 2, 2005, and Plaintiffs
filed an objection to this bill on March 16, 2005.1 On April 8, 2005, Defendant
responded to Plaintiffs’ objection.
       Plaintiffs argue that Vermont law does not authorize most of the costs that
Defendant listed, including costs for photocopies, fax charges, the retrieval of 19th
century English common law cases from the University of Baltimore Law Library, travel
expenses, fees for a certified copy of a declaration of easements and restrictive covenants,
a videotape of the trial for purposes of preparing proposed findings of fact, and “Accurint
charges/address verification.”




       1
         In their objection, Plaintiffs argued, in part, that Defendant’s bill of costs was
premature, as the court had not issued a final judgment order. The court entered a judgment
order on April 6, 2005, and will therefore consider Defendant’s bill.
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       V.R.C.P. 54(d)(1) provides that the prevailing party’s costs “allowed as of course”
are defined by statute and by the Rules of Civil Procedure, “unless the court otherwise
specifically directs.” “Except for the provisions of Rule 54(f), (g), for trustee cases and
depositions, most items of costs are statutory.” Reporter’s Notes, V.R.C.P. 54 (citing 32
V.S.A. § 1471). Section 1471, in turn, provides that costs include “the entry fees, the
cost of service fees incurred and the total amount of the certificate of witness fee paid.”
32 V.S.A. § 1471.
       At common law in Vermont, this statutory provision was considered a mere
expansion of the cost recovery rights available under English statutes as of 1760 (the year
Vermont adopted English common law). See Comstock’s Admr. v. Jacobs, 89 Vt. 510,
512 (1915). For this reason, the Vermont Supreme Court has allowed costs not specified
in § 1471, such as transcript copying fees for an appeal, as such costs were generally
recoverable under English statutory law. Id. at 513.
        The statute as currently worded, however, demonstrates that the legislature
intended to supercede English statutory recovery rights entirely. As amended in 1978,
the statute provides that “[t]here shall be taxed in the bill of costs to the recovering party
in the supreme or superior court a fee equal to the entry fees, the cost of service fees
incurred and the total amount of the certificates of witness fees paid.” 32 V.S.A. § 1471
(emphasis supplied). If the court were to allow costs as of course outside of the specific
areas noted in the statute, it would ultimately tax a bill of costs exceeding the entry fees,
service fees, and certificates of witness fees paid. Therefore, the court must limit
Defendant’s recovery to the types of costs allowed in § 1471. Although the Vermont
Supreme Court has held that trial courts have broad discretion in awarding costs under
Rule 54, see Peterson v. Chichester, 157 Vt. 548, 553 (1991); In re Gadue, 149 Vt. 322,
327 (1987), Defendant has provided no justification for the court to exercise such
discretion and award costs above those specified by the statute. Accordingly, the costs
listed above are excluded.
       Plaintiffs also argue that Defendant has failed to make a motion demonstrating that
deposition expenses included in his bill of costs are “reasonably necessary” pursuant to
V.R.C.P. 54(g), and even if such expenses are reasonably necessary, Plaintiffs argue that
they should not include videotaping expenses.
       Costs related to taking depositions “shall be subject to the discretion of the court.
No costs shall be allowed unless the court finds that the taking of the deposition was
reasonably necessary, whether or not the deposition was actually used at trial.” V.R.C.P.
54(g); see also Ianelli v. Standish, 156 Vt. 386, 389–90 (1991) (“Because defendant
prevailed against plaintiffs, the court did not abuse its discretion in awarding defendant
her actual costs incurred in taking depositions in connection with her defense.”).



                                               2
       In his April 6, 2005 response, Defendant argues that depositions were necessary in
order to understand the specific nature and extent of the facts underlying Plaintiffs’
claims. The court agrees, and finds that depositions in this case were reasonably
necessary.
      V.R.C.P. 54(g), however, does not mention videotaping costs, and Defendant has
provided no justification for such expenses in addition to the court reporter expenses.
Accordingly, the costs shall exclude the videotaping expenses.




        For the foregoing reasons, Plaintiffs are ORDERED to remit to Defendant costs
identified in the Bill of Costs, as modified by this opinion, to wit, $302.10.
      SO ORDERED.

      Dated at Middlebury, Vermont, May 9th, 2005.



                                               _________/s/_______________
                                         Hon. Christina Reiss
                                               Presiding Judge




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