                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-3597
                                  ___________

Sammie Sappington; Evelyn                *
Sappington; Justin Sappington,           *
                                         *
             Plaintiffs - Appellants,    *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the Western
Skyjack, Inc., a division of Linmar      * District of Missouri.
Corp., a Canadian Corporation,           *
                                         * [UNPUBLISHED]
             Defendant,                  *
                                         *
Rental Services Corporation, Inc.,       *
                                         *
             Defendant - Appellee.       *
                                    ___________

                            Submitted: June 9, 2009
                               Filed: July 15, 2009
                                ___________

Before BYE, HANSEN, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

      Sammie Sappington, Evelyn Sappington, and Justin Sappington (the
Sappingtons) are the heirs of Doyle Sappington, who died in a construction accident
when a scissors lift he was operating tipped. The Sappingtons sued Rental Services
Corporation (RSC), the company from whom the lift was leased, and the manufacturer
of the lift, Skyjack, Inc. The Sappingtons appeal from the district court's1 order
awarding $6,282.77 in costs in favor of RSC after it was dismissed from the suit under
Missouri's innocent seller statute. Mo. Rev. Stat. § 537.762. We affirm.

                                           I

       This action arises out of the death of Doyle Sappington, a carpenter employed
by a general contractor performing work on a construction project in Kansas City,
Missouri. On the day of the accident, Sappington was operating a scissors lift,2 Model
SJII 4626 (SJII), manufactured by Skyjack. The lift was owned by RSC and had been
leased to a subcontractor on the construction project. The accident occurred when
Sappington drove the lift in reverse and the rear wheels dropped into a hole. When
the rear wheels dropped into the hole, the lift became unstable, pitched backwards,
and tipped over.

        The Sappingtons brought claims for general negligence, negligent failure to
warn, and strict products liability against RSC and Skyjack. After completing
discovery, the Sappingtons voluntarily dismissed all but their claim for strict products
liability against the defendants. The defendants then moved to exclude the
Sappingtons' expert and for summary judgment, arguing that without an expert they
could not prove their strict liability claim. Alternatively, RSC moved for dismissal
under Missouri's innocent seller statute. The district court excluded the expert and
granted summary judgment. It did not consider the motion to dismiss. On appeal, this


      1
        The Honorable Fernando J. Gaitan, Jr., Chief Judge of the United States
District Court for the Western District of Missouri.
      2
       A scissors lift is a mobile work platform commonly used on construction sites
as an alternative to stationary scaffolding. It takes its name from the operating
mechanism used to elevate the work platform which resembles and operates like
scissors.

                                          -2-
court reversed and remanded. Sappington v. Skyjack, Inc., 512 F.3d 440 (8th Cir.
2008).

       On remand, the district court considered RSC's motion to dismiss based on the
innocent seller statute and granted the motion, leaving only the strict liability claim
against Skyjack. Thereafter, RSC filed a Bill of Costs seeking $6,389.77 in deposition
costs, $474.51 in printing costs, and $101.50 in copying costs, for a total of $6,965.78.
The Sappingtons objected to the Bill of Costs, arguing the innocent seller statute
shifted RSC's liability to Skyjack and made Skyjack responsible for RSC's costs.

        Before the district court could rule on the objections, the Sappingtons settled
with Skyjack and dismissed the balance of the suit. After approving the settlement
with Skyjack, the court took up the costs dispute between RSC and the Sappingtons.
The district court held RSC was a prevailing party under Federal Rule of Civil
Procedure 54(d), making it eligible to recover costs. The court agreed the innocent
seller statute shifted RSC's liability under the strict liability claim to Skyjack, but held
it did not shift responsibility for RSC's costs to Skyjack. Thus, the Sappingtons
remained responsible for the costs RSC incurred defending against the claims.
Additionally, the district court held the deposition costs were reasonably incurred by
RSC in defending against the independent negligence claims, which were unaffected
by the innocent seller statute. After deducting the copying and printing costs claimed
by RSC, the district court awarded $6,282.77. On appeal, the Sappingtons argue the
district court erred when it concluded Missouri's innocent seller statute did not shift
responsibility for RSC's liability and costs to Skyjack.

                                             II

       We review de novo "both the determination of whether a litigant is a prevailing
party, and the legal issues related to the award of attorney fees." Advantage Media,
L.L.C. v. City of Hopkins, 511 F.3d 833, 836 (8th Cir. 2008) (internal quotation marks

                                            -3-
and citations omitted). The actual award of costs is reviewed for an abuse of
discretion. Thompson v. Wal-Mart Stores, Inc., 472 F.3d 515, 516 (8th Cir. 2006).
Federal Rule of Civil Procedure 54(d) codifies the "presumption" that costs will be
awarded to prevailing parties, Bathke v. Casey's General Stores, Inc., 64 F.3d 340, 347
(8th Cir. 1995), but the district court has broad discretion in making such an award,
Zotos v. Lindbergh School District, 121 F.3d 356, 363 (8th Cir. 1997).

        The Sappingtons concede RSC is a prevailing party, but argue the district court
erred when it held the Missouri innocent seller statute did not shift responsibility to
Skyjack for RSC's liability and for the costs incurred in defending against the strict
products liability claim. Missouri's innocent seller statute provides that in products
liability actions, a defendant whose liability is based solely on its status as a seller in
the stream of commerce may be dismissed from an action if the manufacturer of the
product is properly before the court and is financially able to fully compensate the
plaintiff. Mo. Rev. Stat. § 537.762. The statute has been held to shift liability from
a downstream seller to the manufacturer. See Gramex Corp. v. Green Supply, Inc.,
89 S.W.3d 432, 445 (Mo. 2002). According to the Sappingtons, a downstream seller
invoking the protections of the statute "prevails" against the manufacturer, making the
manufacturer responsible for costs the downstream seller incurred in defending the
action. The district court, however, concluded the statute only shifted liability from
the downstream seller to the manufacturer, but did not shift responsibility for the costs
incurred.

      Additionally, the district court held the costs were also reasonably incurred in
defense of the negligence claims asserted against RSC, which were voluntarily
dismissed by the Sappingtons.

      The problem with the . . . plaintiffs' arguments regarding deposition costs
      is that defendant RSC was unable to file its motion to dismiss under the
      Innocent Seller Statute until plaintiffs had dismissed their independent
      negligence claims. Plaintiffs did not dismiss their independent

                                           -4-
      negligence claims until . . . nearly a year and a half after the lawsuit was
      filed. During the pendency of this action, defendant RSC not only filed
      a motion to dismiss pursuant to the innocent seller statute, but also filed
      motions in limine regarding various witnesses and issues, engaged its
      own experts, prepared deposition designations for use at trial, and
      otherwise engaged in a vigorous defense of this action.

...

      Here, the Court finds the depositions referenced in defendant RSC's Bill
      of Costs to have been necessarily obtained for use in this case.

Sappington v. Skyjack, Inc., No. 04-5076, 2008 WL 4450300, at *2 (W.D. Mo. Sept.
30, 2008).

       Because the district court found the deposition costs were reasonably incurred
in defending against claims which were unaffected by the innocent seller statute, we
need not decide whether the statute shifts the downstream seller's liability and costs
to the manufacturer. We conclude the district court correctly found RSC prevailed
against the Sappingtons, and its award of costs to RSC was not an abuse of discretion.

                                          III

      The judgment of the district court is affirmed.3
                     ______________________________




      3
      RSC's motion for damages under Rule 38 of Federal Rules of Appellate
Procedure has been considered and is denied.

                                          -5-
