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Aga v. Hundahl8/31/1995
Per Curiam. This case arises from a medical malpractice jury trial in which appellee/cross-appellant, Scott Hundahl, M.D. (Appellee), was found negligent but his negligence was not the legal cause of Nancy Aga's (Nancy) death. Appellants/cross-appellees, Nancy's husband, Uria Howard Aga, and her four children (collectively Appellants), appealed the jury's verdict. This court affirmed the jury's verdict in Aga v. Hundahl, 78 Haw. 230, 891 P.2d 1022 (1995).
Appellee, as the prevailing party, now requests costs pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 39(c)(1) and (c)(4), in the amount of $6,873.13 for transcripts and photocopying. For the reasons set forth below, we grant Appellee's request in part and deny it in part.
I. Discussion
HRAP Rule 39(c) entitles a prevailing party on appeal to recover costs incurred as a result of an appeal. HRAP Rule 39(c)(1) defines "costs in the appellate courts" as "the cost of the original and one copy of the reporter's transcripts if necessary for the determination of the appeal[.]" (Emphasis added.)
Appellee's Verified Bill of Costs requests costs for transcripts and photocopying. Most of the transcript costs, however, were incurred during trial and before the filing of the notice of appeal. In addition, the costs incurred during trial were for expedited daily transcripts. Appellants object to Appellee's request for transcript costs, contending that Appellee has not shown why the particular transcripts were "necessary for the determination of the appeal." HRAP Rule 39(c)(1) Essentially, Appellants contend that the transcripts were: (1) not relevant to the issues raised in the appeal; and (2) not "necessary" insofar as Appellee had already obtained expedited daily transcripts during trial.
As to Appellants' first contention, Appellee asserts that the issues addressed in the opinion required this court to review the transcripts. We agree. On appeal, Appellants contended, inter alia, that: (1) the jury's verdict was not supported by the evidence; (2) the trial court erred in certain evidentiary rulings; and (3) the trial Judge displayed a personal bias against appellant's counsel. This court's determination of these issues clearly required a review of the transcripts. Accordingly, we hold that the transcripts were relevant to the issues addressed by this court.
As to Appellants' second contention, we agree in part and disagree in part. As previously stated, HRAP Rule 39(c)(1) defines "costs" in the appellate courts as the cost of the original and one copy of the reporter's transcripts, assuming, of course, that the costs were actually incurred. In this case, Appellants actually incurred the cost of the transcripts that were filed with this court, and Appellee, of course, cannot recover those costs. However, as the prevailing party on appeal, Appellee is also entitled to recover the cost for his own copy of the transcripts. There is no limiting language in HRAP 39(c)(1) precluding the prevailing party from recovering transcript costs that were incurred during trial, but were nevertheless necessary for the determination of the appeal. Because the transcripts in this case were necessary for the determination of the appeal, we hold that Appellee is entitled to recover the cost of one copy of the transcripts, regardless whether the costs were incurred before or after the filing of the notice of appeal.
Appellee in this case, however, seeks to recover costs for expedited daily transcripts. Because Appellee is only
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