
      No. 3--01--0338,

      IN THE

      APPELLATE COURT OF ILLINOIS

      THIRD DISTRICT

                       A.D. , 2002

NICHOLAS VICENCIO,                  ) Appeal from the Circuit Court
      Petitioner-Appellee,     ) of the Twelfth Judicial Circuit
              v.                                     ) Will County, Illinois
LINCOLN-WAY BUILDERS, INC.,    )
an Illinois corporation,            )
      Defendant-Appellant and       )
      Third Party Plaintiff, and ) No. 98-L-123
WEIDNER'S DEPOT OF MOKENA, LTD.,)
d/b/a GORMAN DRYWALL, K & A    )
BUILDERS, INC., an Illinois    )
corporation, and HICKORY CREEK  ) Honorable
CONSTRUCTION, INC., an Illinois ) Amy Bertani-Tomczak, and
corporation,                        ) William G. McMenamin,
      Third Party Defendants.       ) Judges Presiding



      PRESIDING JUSTICE LYTTON delivered the opinion of the court:


      Defendant, Lincoln-Way Builders, appeals the trial  court's  award  of
various trial fees to plaintiff, Nicholas Vicencio.  We affirm in  part  and
reverse in part.
      Plaintiff sued defendant for injuries  sustained  through  defendant's
negligence.   During  trial,  plaintiff  presented  the  testimony  of   his
treating physician, Dr. Preston Wolin,  by  videotaped  evidence  deposition
because Wolin was not available to testify at trial due to his  professional
schedule.  Plaintiff also required the services  of  a  Spanish  interpreter
during his own testimony  because  he  does  not  speak  English.   Finally,
Melvin Weidner, one of plaintiff's witnesses, failed to show  up  at  trial.
Defendant subsequently took Weidner's evidence deposition and
presented it during its case-in-chief.
      After a jury verdict in  his  favor,  plaintiff  filed  a  motion  for
costs.  Defendant agreed to all costs except:
      Dr. Preston Wolin (trial testimony)                     $2,400.00
      Court Reporter (Wolin's deposition transcript)          921.06
      Videographer (record)                                   766.50
      Videographer (playback)                                 630.00
      Spanish Interpreter                                     428.80
      Melvin Weidner (trial subpoena fee)                     22.80
After a hearing, the trial court found that the "contested costs were
necessary and integral to the presentation of Plaintiff's case to the jury"
and ordered defendant to reimburse plaintiff.
                             I. Dr. Wolin's Fee
      Defendant contends that the fees paid by  plaintiff  to  his  treating
physician for the time spent giving his  evidence  deposition  so  that  the
physician would not be required to appear at trial was an  ordinary  expense
of litigation and not reimbursable under Rule 208.  Plaintiff responds  that
because Dr. Wolin was his treating physician, and the only person who  could
testify regarding plaintiff's injuries  and  treatment,  his  testimony  was
indispensable at trial.  We agree.
      Any costs charged to the losing party in a lawsuit must be  authorized
specifically by statute.  Galowich v. Beech Aircraft Corp., 92 Ill. 2d  157,
162, 441 N.E.2d 318, 320 (1982).  However, "the General Assembly  may  grant
the power in general terms to the courts, which may in turn  make  rules  or
orders under which costs may be taxed and imposed."  Gebelein v.  Blumfield,
231 Ill. App. 3d 1011, 1013, 597 N.E.2d 265, 267 (1992).
      Section 5-108 of the Code of Civil Procedure (735 ILCS  5/5-108  (West
2000)) allows for costs  to  be  taxed  against  defendants,  but  does  not
specifically identify which expenses are  allowed  to  be  taxed  as  costs.
Woolverton v. McCracken, 321 Ill. App. 3d 440,  442,  748  N.E.2d  327,  329
(2001).  However, Supreme Court Rule  208  provides  that  deposition  costs
"may in the discretion of the trial court be taxed as costs."  134  Ill.  2d
R. 208(d).
      In Galowich, our supreme court further defined the  costs  covered  by
Rule 208, stating,
      "[N]either the Illinois costs statute  nor  the  supreme  court  rules
      provide a  specific  definition  of  costs.   However,  the  term  has
      acquired a  fixed  and  technical  meaning  in  the  law.   Costs  are
      allowances in the nature of  incidental  damages  awarded  by  law  to
      reimburse the prevailing party, to  some  extent  at  least,  for  the
      expenses necessarily incurred in the assertion of his rights in court.
      [Citations.] We therefore interpret Rule  208(d)  as  authorizing  the
      trial court to tax as costs, in its discretion, the expenses  only  of
      those depositions necessarily used at trial."  Galowich, 92 Ill. 2d at
      165-66, 441 N.E.2d at 322.
Since Galowich, the Second and Fifth  Districts  have  addressed  the  trial
court's authority to tax as costs the expenses  of  a  treating  physician's
evidence deposition used at trial in lieu of live testimony  with  differing
results.
      In Irwin v. McMillan, 322 Ill. App. 3d 861, 750  N.E.2d  1246  (2001),
the Second District reasoned that the  plaintiff's  treating  physician  was
not "indispensable" because he was not "unavailable" by reason of  death  or
disappearance.  Irwin, 322  Ill.  App.  3d  at  866,  750  N.E.2d  at  1250.
Therefore, his evidence deposition  was  not  "necessarily  used  at  trial"
under Supreme Court Rule 208.  Irwin, 322 Ill. App. 3d at  866,  750  N.E.2d
at 1250; see also Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308  Ill.
App. 3d 789, 721 N.E.2d 614 (2nd Dist. 1999).
      The Fifth District, in Perkins v. Harris, 308 Ill. App. 3d  1076,  720
N.E.2d 1131 (1999), and Woolverton v. McCracken, 321 Ill. App. 3d  440,  748
N.E.2d  327  (2001),  found  that  whether  an   evidence   deposition   was
"necessarily used at trial" is a matter within the discretion of  the  trial
court.  The court reasoned  that  the  treating  physicians  were  the  only
witnesses  able  to  testify  regarding   the   plaintiffs'   injuries   and
treatments.   The  evidence  depositions  were   necessarily   incurred   by
plaintiffs in asserting their rights in court  and  were  not  the  ordinary
expenses of litigation.  The court concluded that  because  the  physicians'
demanding schedules did not allow them  to  testify,  the  depositions  were
"necessarily used at trial" under Rule 208.  Perkins, 308 Ill.  App.  3d  at
1080, 720 N.E.2d at 1134; Woolverton, 321 Ill. App. 3d at  445,  748  N.E.2d
at 333.
      We recognize that the Irwin court was concerned with  the  possibility
of abuse of Rule 208 by a plaintiff attempting to shift deposition costs  to
a defendant by merely alleging that the witness is  unavailable  to  testify
due to a demanding work schedule.  While we share this concern, we find  the
Second District's interpretation of Rule 208 too rigid and its  results  too
harsh.  Therefore, we agree with the Fifth District  that  rule  208  grants
the trial court the discretion to tax costs to  a  defendant  based  on  the
individual circumstances of each case.  We  trust  that  trial  courts  will
exercise their discretion under Rule 208 wisely.
      A trial court's award of costs and fees is a discretionary matter  and
will not be  disturbed  on  review  absent  a  clear  abuse  of  discretion.
Perlman v. Time, Inc., 133 Ill. App. 3d 348,  355,  478  N.E.2d  1132,  1138
(1985).  An  abuse  of  discretion  is  found  if  the  trial  court  "acted
arbitrarily without the employment of conscientious judgment or, in view  of
all the circumstances, exceeded the bounds of reason and ignored  recognized
principles  of  law  so  that  substantial  prejudice   resulted."    Zurich
Insurance Co. v. Raymark Industries, Inc., 213 Ill. App. 3d  591,  595,  572
N.E.2d 1119, 1122  (1991).   The  role  of  a  reviewing  court  is  not  to
substitute its judgment for that of the trial court.  Woolverton,  321  Ill.
App. 3d at 444, 748 N.E.2d at 331.
      In the case before us, the trial court determined that  plaintiff  was
entitled to be reimbursed for the costs connected with  taking  Dr.  Wolin's
evidence deposition, which was used  at  the  trial.   These  expenses  were
necessarily incurred by plaintiff in asserting his rights in court and  were
not  the  ordinary  expenses  of  litigation.   Additionally,  Dr.   Wolin's
practice is located in Chicago.  Forcing him to testify at trial  would  not
only require absence from his practice for the time he  would  testify,  but
would also require substantial travel time.   Under  the  circumstances,  we
cannot say that the trial judge erred in awarding as costs the fees  charged
by plaintiff's treating physician for giving an evidence deposition used  at
trial.
                  II. Court Reporter and Videographer Fees
       Defendant  also  argues  that  the  trial  court  erred  by  awarding
plaintiff the costs of videotaping Dr. Wolin's deposition.   Citing  Supreme
Court Rule  206,  (134  Ill.  2d  R.  206(f)(5)),  defendant  contends  that
plaintiff is required  to  pay  the  costs  of  videotaping  the  deposition
because the deposition was videotaped at plaintiff's insistence.
      We find that the trial court did not abuse its  discretion  in  taxing
the costs of the court reporter  and  videographer  because  the  deposition
itself was "necessarily used at trial."  Rule 206 states that  "[t]he  party
at whose instance the videotaped deposition is taken shall pay  the  charges
of the videotape operator *** and *** charges for filing  the  videotape  of
an evidence deposition."  134 Ill. 2d R. 206.  However, the rule  is  silent
on whether that party may be reimbursed for those charges.
      As discussed above, Rule 208  authorizes  the  trial  court  to  award
costs to the prevailing party for depositions "necessarily used  at  trial."
The costs of videotaping, editing, and transcribing an  evidence  deposition
fall within Rule 208 "because Supreme  Court  Rule  208  provides  for  fees
associated with videotaping and transcription and,  as  a  result,  provides
for the trial court to tax both to defendant."  Perkins, 308  Ill.  App.  3d
at 1081, 720 N.E.2d at 1135.
      The trial court did not abuse its  discretion  in  awarding  costs  to
plaintiff for the fees associated with the court reporter and  videographer.
 The deposition was necessarily used at trial and  the  costs  of  recording
and  transcribing  of  the  deposition  are  allowed  to  be  taxed  to  the
prevailing party under Supreme Court Rule 208(d).
                  III. Interpreter and Trial Subpoena Fees
      Defendant's final contentions are that  the  trial  court  abused  its
discretion by awarding as costs the fee  for  the  services  of  plaintiff's
interpreter during trial and the trial  subpoena  fee  paid  to  plaintiff's
witness, Melvin Wiedner.  It argues that  the  court  lacked  the  statutory
authority required to assess those expenses as costs because  they  are  the
ordinary expenses of litigation.
      As noted above, the allowance of costs for ordinary expenses  and  the
burden of litigation is entirely  dependent  upon  statutory  authorization.
Galowich, 92 Ill. 2d at 162, 441 N.E.2d at 320.   While,  section  5-108  of
the Code of  Civil  Procedure  (735  ILCS  5/5-108  (West  2000))  does  not
specifically define the word costs, section 1-105 of the Code (735 ILCS 5/1-
105 (West 2000)) allows the supreme court to provide for the  assessment  of
costs by rule.  Plaintiff has cited no statute or rule that would  allow  us
to shift the costs of the interpreter or the  subpoena  fees  to  defendant.
Without such authority, the court was powerless to grant relief.  The  trial
court  abused  its  discretion  in  requiring  the   cost   of   plaintiff's
interpreter and Weidner's subpoena fee to be paid by the defendant.
      The judgment of the circuit court of Will County is affirmed  in  part
and reversed in part.
      Affirmed in part and reversed in part, cause remanded.
      BRESLIN and HOLDRIDGE, JJ., concur.
