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Hornbarger v. TMS Design Services7/26/2005
in instructing the jury that Hornbarger, in order to recover, was required to prove that Murray was TMS' agent. The instruction given was both a correct statement of the law and warranted by the evidence. This assignment of error is without merit.
Costs
Hornbarger also argues that the court erred in ordering him to pay TMS costs of $2,661.55. The evidence shows that a hearing was held on TMS' motion for costs under § 25-1710, which states, "Costs shall be allowed of course to any defendant upon a judgment in his favor in the actions mentioned in section 25-1708." Neb. Rev. Stat. § 25-1708 (Reissue 1995) states, "Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property."
At the hearing, TMS sought costs in the total amount of $4,311.55. These costs included deposition fees in the amount of $2,661.55 and expert witness fees in the amount of $1,650. In its order, the trial court granted TMS the deposition fees of $2,661.55, but stated that TMS could not recover the expert witness fees.
In Bunnell v. Burlington Northern RR. Co., 247 Neb. 743, 530 N.W.2d 230 (1995), the appellee likewise sought to recover deposition costs. In addressing whether it had the authority to award such costs under § 25-1710, the Nebraska Supreme Court cited Tobas v. Mutual Building and Loan Association, 147 Neb. 676, 24 N.W.2d 870 (1946), and stated, "As no reason appears why the general rule should not be followed, the costs of the deposition will be taxed to the appellant." Bunnell, 247 Neb. at 746, 530 N.W.2d at 232. The standard of review for an award of costs is whether an abuse of discretion occurred. See Malicky v. Heyen, 251 Neb. 891, 560 N.W.2d 773 (1997). In the instant case, we find no reason to conclude that the trial court abused its discretion in ordering Hornbarger to pay $2,661.55 of TMS' costs, relating to depositions.
Because TMS contends that we should address its assignments of error in its cross-appeal only if we find in favor of Hornbarger, we need not address TMS' assignments of error. See Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994) (appellate court is not obligated to engage in analysis which is not necessary to adjudicate case and controversy before it).
CONCLUSION
After reviewing the record, we conclude that the trial court did not err in instructing the jury that in order for Hornbarger to recover against TMS, the jury had to find that Murray was an agent of TMS, or in awarding TMS costs in the amount of $2,661.55. The order of the district court entering judgment in favor of TMS and awarding TMS costs is affirmed in its entirety.
Affirmed.
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