Opinion
No. 52021-1-I.
Filed: May 24, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 01-2-10160-7. Judgment or order under review. Date filed: 02/14/2003. Judge signing: Hon. Richard J Thorpe.
Counsel for Appellant(s), Eric Cameron Hoort, Bernie Potter Associates, 1601 5th Ave Ste 1300, Seattle, WA 98101-3601.
Bernie Willard Potter, Attorney at Law, 1601 5th Ave Ste 1300, Seattle, WA 98101-3601.
Counsel for Respondent(s), Jeffrey Twersky, Attorney at Law, 1604 Hewitt Ave Ste 301, Everett, WA 98201-3536.
Duyen Van appeals a judgment entered in favor of Joseph Mannino arising from an arbitration following a car accident. She argues the trial court erred by (1) awarding statutory costs for an expert witness that were not authorized under RCW 4.84.010, (2) entering judgment when Mannino failed to submit a cost bill, (3) not granting her motion for reconsideration, thereby essentially denying her a hearing on the issue of retaxing costs under RCW 4.84.200 and CR 78(e), and (4) awarding Mannino attorney fees as the prevailing party. Van seeks attorney fees on appeal. We reverse in part and remand for recalculation of the award in a manner consistent with this opinion.
FACTS
On June 8, 2003, Duyen Van was involved in a car accident with Joseph Mannino. The parties participated in mandatory arbitration, and the arbitrator entered an award in favor of Mannino as to liability. But Mannino did not seek damages, so he received no monetary award. Van received a $500 award for Mannino's failure to appear at a deposition during arbitration. In January 2004, Mannino moved for entry of judgment. He also sought an award of $591 for costs under RCW 4.84.010, including $290 paid to an accident reconstruction expert, $175 for deposition fees, and $125 in attorney fees. He did not submit a cost bill to the court. In February 2004, Van moved for entry of judgment based on the $500 discovery sanctions, and she objected to the award of costs for the expert witness under RCW 4.84.010. The court entered judgment in favor of Mannino for $91 — $591 statutory costs less the $500 in sanctions. Van filed a motion for reconsideration under Snohomish County Local Civil Rule 59, asking the court to reconsider the award for deposition and expert witness fees (totaling $465) and enter a judgment in favor of Van for a total amount of $375 — $500 in sanctions less $125 in attorney fees. Mannino filed a response in which he conceded the court should reduce the expert witness fee to $25, which is the statutory maximum, but asked the court to reconsider its sanctions award, which he claims is outside of the arbitrator's authority. He asked the court to award him $325. The court took no action on the motion for reconsideration. Van appeals.
ANALYSIS I. Expert Witness Costs
Van argues that Mannino is not entitled to any expert witness compensation because it is not authorized by RCW 4.84.030. Mannino concedes in his response to Van's motion for reconsideration that he is not entitled to $290 in expert witness fees because the statutory maximum is $25. Both parties agree that neither RCW 4.84.010 nor RCW 4.84.030 allows an expert witness fee award. Mannino fails both in his response to the motion for reconsideration in the trial court and in his appellate brief to cite any statute under which he is entitled to $25. We therefore conclude the trial court erred by awarding him $290 in expert witness fees.
Shannon v. Pay 'N Save Corp., 104 Wn.2d 722, 709 P.2d 799 (1985) (comparing RCW 49.60.030(2) with RCW 4.84.030 and concluding that expert witness fees are not "costs" under either statute), implied overruling recognized by Pannell v. Food Servs. of Am., 61 Wn. App. 418, 810 P.2d 952, 815 P.2d 812 (1991) (concluding Blair v. Wash. State Univ., 108 Wn.2d 558, 740 P.2d 1379 (1987), overruled Shannon to the extent it concluded that RCW 49.60.030(2) excluded expert witness fees as "costs," but concluding that RCW 4.84.030 still does not allow for expert witness fees), review denied, 118 Wn.2d 1008 (1992).
II. Failure to File a Cost Bill
Van argues that the trial court erred by entering judgment when Mannino never filed the cost bill required by RCW 4.84.090. She asks this court to strike all costs awarded to Mannino. Neither party's brief makes it clear whether Mannino ever filed a cost bill. It is not in the clerk's papers. If it was filed, we don't know whether it was filed within the 10-day statutory period. In any case, we decline to review this issue because Van raises it for the first time on appeal. Not only does she fail to indicate in her briefs whether or where she raised this issue to the trial court, it is also clear from the record that she did not raise the issue in either her motion for judgment or her motion for reconsideration. We do not consider issues raised for the first time on appeal.
RCW 4.84.090 states:
The prevailing party, in addition to allowance for costs, as provided in RCW 4.84.080, shall also be allowed for all necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the necessary expenses of taking depositions, by commission or otherwise, and the compensation of referees. . . . The disbursements shall be stated in detail and verified by affidavit, and shall be served on the opposite party or his attorney, and filed with the clerk of the court, within ten days after the judgment: Provided, The clerk of the court shall keep a record of all witnesses in attendance upon any civil action, for whom fees are to be claimed, with the number of days in attendance and their mileage, and no fees or mileage for any witness shall be taxed in the cost bill unless they shall have reported their attendance at the close of each day's session to the clerk in attendance at such trial.
(Emphasis added.)
Van states, "The court record shows that a cost bill was not filed. . . ." But she goes on to argue that Mannino's cost bill "should have been stricken." Mannino does not state whether he filed a cost bill at all.
Van claims she timely objected to the proposed cost bill because her attorney at trial, Eric Hoort, stated in his declaration that statutory costs were not recoverable under RCW 4.84.010. But the declaration neither raises any issue related to the cost bill nor alleges the trial court erred by entering judgment.
RAP 2.5(a).
III. Retaxing Costs Under CR 78(e)
Van argues that the trial court erred by denying her motion for reconsideration and thereby denying her a hearing on the issue of retaxing costs under RCW 4.84.200 and CR 78(e). Neither party provides a citation to the record indicating that the clerk taxed costs in this matter, and taxation by the clerk is a condition precedent to retaxation. In addition, neither party demonstrates that this issue was raised in the trial court. Van did not raise it in her motion to enter judgment or motion for reconsideration, and there is no motion to retax costs in the record. As with the previous issue, this will not be considered on appeal.
RCW 484.200 states:
Any party aggrieved by the taxation of costs by the clerk of the court may, upon application, have the same retaxed by the court in which the action or proceeding is had.
CR 78(e) states in part:
If no cost bill is filed by the party to whom costs are awarded within 10 days after the entry of the judgment or decree, the clerk shall proceed to tax the following costs and disbursements, namely:
(1) The statutory attorney fee;
(2) The clerk's fee;
. . . .
(4) Other disbursements. . . .
Miskel v. Stone, 1 Wash. Terr. 229 (1867).
RAP 2.5(a); Hatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957).
IV. Prevailing Party
Finally, Van argues that the trial court erred when it found Mannino was the prevailing party. She contends that because a judgment was entered in her favor, she is the prevailing party under RCW 4.84.010. In general, a prevailing party is one who receives an affirmative judgment in his or her favor. In this case, the arbitrator concluded that Mannino was the prevailing party on the only issue before him — liability. Van's theory is that a party who receives a judgment in his favor for $0 is no longer the prevailing party if he was required to pay sanctions. She cites no authority for this argument. The sanctions are separate from and independent of the ruling on the merits. Mannino prevailed on the merits.
Marassi v. Lau, 71 Wn. App. 912, 859 P.2d 605 (1993).
V. Costs on Appeal
Van asserts that Mannino's admission that he improperly received expert witness fees warrants imposition of attorney fees on appeal under RCW 4.84.010. Mannino also seeks attorney fees on appeal. Because Mannino admitted the error in his response to Van's motion for reconsideration and Van's remaining arguments fail, we decline to award attorney fees to either party. The trial court erred in refusing to consider Van's motion for reconsideration and Mannino's concession in his response. Had the court acted properly on the motion, this appeal would have been unnecessary.
We reverse in part and remand to the trial court to recalculate costs in a manner consistent with this opinion.
ELLINGTON and KENNEDY, JJ., concur.