 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Starling v. Union Pacific Railroad Company6/27/2000
Appeal From: Circuit Court of Jackson County, Hon. Lee E. Wells
Opinion Vote: AFFIRMED. Breckenridge, CJ., Lowenstein and Ulrich, JJ., concur.
Opinion:
Per Curiam
Everett L. Starling appeals the trial court's judgment assessing $17,760.28 in costs against him after he voluntarily dismissed his personal injury lawsuit against Union Pacific Railroad Company. Starling contends that, because the trial court waited almost three months after he had dismissed his case to enter its judgment assessing costs, it had no jurisdiction to enter the judgment. We reverse the trial court's judgment.
Starling dismissed his lawsuit on February 16, 1999. On March 3, 1999, Union Pacific filed its motion for attorney fees and expenses. On March 12, 1999, Union Pacific filed its motion to tax costs against Starling. Starling did not file any opposing pleadings to Union Pacific's motion. The trial court convened a hearing on May 12, 1999, to consider Union Pacific's motions. Starling challenged the trial court's jurisdiction at that hearing. On the next day, the trial court denied Union Pacific's motion for attorney fees and expenses and sustained its motion for taxing costs.
Rule 67.02(a) allows a plaintiff to dismiss a lawsuit voluntarily without a court order at any time before introduction of evidence at trial. Even if motions are pending, the trial court loses jurisdiction to take any further action to rule on those motions as of the date that the plaintiff dismisses the lawsuit. Givens v. Warren, 905 S.W.2d 130, 132 (Mo. App. 1995). In section 514.170, RSMo 1994, however, the General Assembly has mandated an exception: "Upon the plaintiff dismissing his suit, . . . the defendant shall recover against the plaintiff his costs; and in all other cases it shall be in the discretion of the court to award costs or not, except in those cases in which a different provision is made by law."
This means that the trial court retains jurisdiction to issue an order as an administrative act to tax costs against the plaintiff under section 514.170. Garrison v. Jones, 557 S.W.2d 247, 249 (Mo. banc 1977); Givens, 905 S.W.2d at 132. Section 514.170, however, does not afford any discretion to the trial court in taxing these costs. "It is well-established that where costs are definite and fixed by statute, the court clerk is required pursuant to section 514.260[, RSMo 1994, ] to tax the costs, as a ministerial duty." Quality Business Accessories, Inc. v. National Business Products, Inc., 880 S.W.2d 333, 335 (Mo. App. 1994). The trial court, therefore, may enter an order assessing costs or reviewing the court clerk's action, but it can assess only costs that do not require judicial investigation and determination. Id.
The costs submitted by Union Pacific and taxed against Starling were costs and expenses related to depositions and hearings. Some of the depositions were video taped, and the others, we assume, were transcribed. In Gore v. St. Anthony's Medical Center, 866 S.W.2d 871, 873 (Mo. App. 1993), this court's Eastern District held that, pursuant to section 514.170, the trial court's award of deposition costs to the defendant after the plaintiff voluntarily dismissed his lawsuit was not discretionary. See also Givens, 905 S.W.2d at 133. Rule 57.03(c)(6), however, provides, "Unless otherwise stipulated to by the parties, the expense of video taping [a deposition] is to be borne by the party utilizing it and shall not be taxed as costs." We find no stipulation between the parties concerning the costs of video taped depositions. Thus, in assessing the costs of video taped depositions without a stipulation between the parties, the trial court was
Page 1 2 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|