Opinion
No. 557299
June 13, 2006
MEMORANDUM OF DECISION RE COSTS
In the present case, the plaintiffs initially filed a complaint praying for declaratory judgments as to various actions taken by the defendants in exercising the power of eminent domain over the plaintiffs' real property. In addition, the plaintiffs prayed for temporary and injunctive relief against the defendants to prevent any further actions to acquire or condemn the plaintiffs' real property. The plaintiffs further prayed for attorneys fees and court costs pursuant to General Statutes § 48-17a and 42 U.S.C. § 1988.
The defendants ultimately prevailed in this case, and now request court costs pursuant to General Statutes § 52-257. The plaintiffs object to the following enumerated items listed in the defendants' bill of costs: (1) indemnity fees; (2) examination of land records; (5) maps, plans, photographs; and (6) witness fees.
On March 17, 2006, the clerk of the court, pursuant to General Statutes § 52-257(e) and the memorandum of decision filed by the court, Corradino, J., on March 13, 2002, (wherein no court costs were discussed), declined to tax any costs for the defendants in this matter. The defendants now move for review of the taxation of costs.
"General Statutes § 52-257 and Practice Book § [18-5] establish the general procedure for the taxation of costs in cases in which money damages have been awarded. The taxation of costs in civil cases begins with action by the court clerk and either party may appeal from such taxation to the court. The clerk in essence acts as an agent of the court, and the clerk's action becomes part of the trial court's judgment in the matter when there has been no resulting appeal. This general procedure applies in any civil action in which there is a prevailing party in whose favor a decision or verdict is rendered, money damages awarded and a judgment rendered. Where equitable relief is demanded, the taxing of costs is solely within the discretion of the trial court. See General Statutes § 52-257(e) and Practice Book § [18-15]." Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 67 n. 11, 689 A.2d 1097 (1997).
The plaintiffs argue that § 52-257(c) is the appropriate subsection to be applied in this case because there was no request for money damages and, therefore, the matter in demand is less than fifteen thousand dollars and the court should administer the costs as set forth in § 52-257(c).
As to the issue of the land records, the plaintiffs argue that their challenge did not require the examination of land records and titles. The plaintiffs contend that the examination of land records and/or titles was most likely necessary in the defendants' action for eminent domain against the plaintiff, and not necessary in the present case. For similar reasons, the plaintiffs object to the defendants' costs for maps, plans and photographs. They contend items were relevant to the city's action against the plaintiffs, but are not relevant in the present case.
Finally, as to the witness fees, the plaintiffs argue that they should only pay for the costs of the witness attending court and the mileage incurred by the witness for travel, as set forth in § 52-257(b).
In response, the defendants argue that the court has not previously decided the issue of court costs and, consequently, the court has discretion to award court costs in this equitable matter. There has been no dispute as to the equitable nature of the plaintiffs' requested relief.
At oral argument, the plaintiffs conceded that the defendants are entitled the following costs:
(1) appellate costs $600.00; (2) in-state deposition fee $100.00; and (3) copies of record $100.00.
Court Costs
"The fundamental principle is that every litigant must bear his own expenses of litigation except as otherwise provided by statute. Nesbit v. Rose-Hurst Farms, Inc., 8 Conn.Sup. 480, 482; see Peterson v. Norwalk, 152 Conn. 77, 80. Costs are the creature of statute, and unless the statute clearly provides for them courts cannot tax them. Bissing v. Turkington, 113 Conn. 737, 739; Waterbury v. Macken, 100 Conn. 407, 413; Drive-In Shop, Inc. v. Redevelopment Agency, 24 Conn.Sup. 390, 391; Granger v. Cezseus, 9 Conn.Sup. 458, 459.
Allowable costs in civil actions are itemized in § 52-257 of the General Statutes. Costs in equitable actions are discretionary. Vilella v. McGrath, 136 Conn. 645, 653-54; see General Statutes § 52-257 (which expressly reserves such discretion)." Hartford v. Public Utilities Commission, 30 Conn.Sup. 244, 251, 309 A.2d 844 (1973). See also Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 67 n. 11, 689 A.2d 1097 (1997) ("Where equitable relief is demanded, the taxing of costs is solely within the discretion of the trial court."); R. Bollier S. Busby, Stephenson's Connecticut Civil Procedure (3d Ed. 2002) § 180, p. 347 (in equitable actions, the court "[i]n theory . . . may award costs to the successful party, deny costs to both, apportion costs between them or even award costs to the defeated party"). Moreover, "[i]t is our law, however, that ordinarily [costs in equitable actions] are awarded upon the same basis as in actions at law." Danbury v. Dana Investment Corp., 249 Conn. 1, 26, 730 A.2d 1128 (1999). The present controversy deals with claims for equitable relief as evidenced by the pleading, claim for relief and decision the trial court. Therefore, in the context of the present case, where equitable relief is demanded, any awarding of costs is solely within the discretion of the trial court. Rizzo Pool Co. v. Del Grosso, supra, 240 Conn. 58, 67 n. 11, § 12-257(e).
I AWARDING COSTS Indemnity Fees
Because the awarding of costs is solely within the discretion of the trial court, the court may award appropriate costs to the defendant. See Conn. Gen. Stat. § 52-257(e). In the present case, the demand for relief was equitable in nature and, therefore, the amount in demand was less than fifteen thousand dollars. Section 52-257(c) provides: "In all civil actions in which the matter in demand is less than fifteen thousand dollars, the prevailing party shall receive, by way of indemnity, the following sums: (1) For all proceedings before trial, ten dollars; and (2) for the trial of an issue of fact or law, fifteen dollars, but, if more than one issue of fact or law is tried at one time, only one trial fee shall be allowed."
However, § 52-257(a)(3) does provide for a further allowance not to exceed two hundred dollars in difficult and extraordinary cases.
Even though § 52-257(a) applies to civil actions that exceed fifteen thousand dollars, the court is not restrained by statute in awarding costs in equitable matters and may consider the circumstances of the present case in awarding costs where the court's sound discretion is invoked. See Marquardt v. Riverbend Executive Center, Inc., 74 Conn.App. 412, 429, 812 A.2d 175 (2003) (where the court defined "sound discretion" as meaning "discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances . . .") See also Cross v. Midtown Club, Inc., 33 Conn.Sup. 150, 365 A.2d 1227 (1976) (in an action for both equitable relief and money damages, the court, pursuant to § 52-257, awarded the plaintiff usual costs, which included an allowance of $200 based on the difficulty and novelty of the issues presented in the case). The matters before the trial court in the present matter were both extraordinary and difficult.
Therefore, the court awards indemnity fees based upon its discretion, in the amount of $200.00.
Land Records
Section 52-257(b)(4) provides: "in any civil action affecting the title to real property situated in this state, or affecting any mortgage or lien thereon, the actual expense, not exceeding the sum of one hundred fifty dollars, of an examination of the land records concerning the title to the real property in question and such amount as the court or judge determines to be reasonable for the services of an expert on the value of the land when such value is in dispute . . ."
In the present case, the plaintiffs sought equitable relief to forestall the defendants from exercising the power of eminent domain. Condemnation of real property affects the title to that real property. Hunt v. Burns, Superior Court, judicial district of Tolland, Docket No. 41831 (January 28, 1991, Bieluch, S.T.R.). Therefore, the present case involves an action affecting the title to real property. Section 52-257(b)(4) provides for costs not to exceed $150.00 for the examination of land records and a reasonable allowance for expert services. The plaintiffs argue, however, that the defendants' examination of the land records were not relevant in this case. Specifically, the plaintiffs contend that there has been no showing that the examination of land records was conducted subsequent to the commencement of this case. The plaintiffs' contention at oral argument was that the title search and examination of land records may have been conducted for the defendants' municipal development plan or for the principal and separate eminent domain proceedings initiated by the defendants. At oral argument, counsel for the defendant city had no knowledge of whether the examination of land records was conducted before or after the commencement of the present action.
Because of the uncertainty between the parties as to when the examination of the land records actually occurred and for what purpose, it would be inequitable to permit costs where the examination of the land records might have been conducted prior to the commencement of the present action, and not in preparation for the underlying litigation. Therefore, costs for the examination of the land records shall not be awarded to the defendants upon the basis of these uncertain circumstances.
Maps, Plans and Photographs The plaintiffs argue that costs should not be awarded for maps, plans or photographs because they are not relevant to the instant matter. The defendants contend the maps, plans or photographs were needed for exhibits that were actually produced and used at trial. Only maps, plans or photographs used at trial as either exhibits formally offered into evidence, marked for identification, used by counsel for opening or closing arguments, or used by counsel for trial demonstrations, may be taxable as costs. Alswanger v. Smego, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X05 CV 92 0125294 (October 12, 2001, Tierney, J.) (citing § 52-257(b)(5)) ( 30 Conn. L. Rptr. 529). In the present case, the defendants assert that the maps, plans and/or photographs were actually used at trial as exhibits, costs may be taxed. There has been no showing that these exhibits were produced or constructed prior to the commencement of the present case. Defendants' counsel asserted at oral argument that these documents were actually used in the underlying trial. The court, in its discretion, awards costs to the defendants in the amount of $800.02.Witness Fees
The defendants seek costs for witness fees in the amount of $3,853.17. These costs include time spent by the witness reviewing and correcting his deposition; reviewing a map prepared by others; telephone conversations with attorneys; reviewing reports and data for court testimony; travel time to meet with attorneys for review of materials; travel time to court and court testimony; miles traveled by the witness from New Hampshire to New London, Connecticut, at a rate of $0.36 per mile; lodging; and two meals.
The plaintiffs contend that they should only have to pay for the witness attending court and the mileage incurred therefrom, as set forth in § 52-257(b)(1). As such, the plaintiffs request that the court only award the defendants witness costs in the amount of $1329.60.
Because the court is bound by its sound discretion, it may consider the circumstances from which a reasonable award of costs for witness fees may be administered. In the context of General Statutes § 52-260(f) — the statute governing witness fees in general — there has been a split of authority in the Connecticut Superior Court as to whether expert preparation time should be included in the costs awarded in a civil action. See Flores v. Jenison, Superior Court, judicial district of New Haven, Docket No. CV 01 0278648 (June 23, 2004, Frazzini, J.) ( 37 Conn. L. Rptr. 328, 331 n. 2).
In Flores, the court explained the basis for the split of authority. The court noted that a line of cases had been established wherein various trial courts interpreting the Supreme Court decision in M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 674 A.2d 845 (1996), denied compensation for time an expert witness spends preparing to testify. Flores v. Jenison, supra, 37 Conn. L. Rptr. 331 n. 2, citing Maulucci v. St. Francis Hospital, Superior Court, judicial district of Hartford, Docket No. CV 97 0573645 (May 21, 2001, Schuman, J.) ( 29 Conn. L. Rptr. 604); Alswanger v. Smego, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 125294 (October 12, 2001, Tierney, J.).
Additionally, the Flores court listed cases wherein trial courts have reasoned that DeMatteo does not apply to the time an expert spends preparing to testify. Flores v. Jenison, supra, 37 Conn. L. Rptr. 331 n. 2, citing Leveille v. Fishman, Superior Court, judicial district of Hartford, Docket No. 540229 (November 19, 1998, Lavine, J.) ( 23 Conn. L. Rptr. 425); Holland v. Wucik, Superior Court, judicial district of New London, Docket No. 558827 (May 30, 2003, Hurley, J.T.R.) ( 34 Conn. L. Rptr. 686).
A reasonable witness fee is approved which includes time spent in court testifying ($1,200.00), testimony preparation time in the amount of $500.00 and mileage incurred to and from court ($129.60) as taxable costs in he amount of $1,829.60.
ORDER
For the reasons stated above, the court hereby awards reasonable costs in favor of the defendants as follows: $200.00 for the indemnity fee; $0.00 for the examination of land records; $800.02 for maps, plans and photos; and $2,829.60 for witness fees; appellate costs $600.00; in-state deposition fee $100.00; and copies of record $100.00 in the aggregate total of $3,629.62.