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Behrens v. Behrens6/22/2005
at Behrens have not pointed to any particular information in the binder that could have affected the jury's decision. Behrens only point to one non-admitted exhibit that jurors "may" have seen. This is significant because the trial court invited counsel to voir dire the jury on this issue, but Behrens declined. Having failed to establish a record on this issue, we cannot say whether the jury actually reviewed any improper exhibit or if the binders caused prejudice. Moreover, the trial court specifically noted that it did not observe jurors looking at exhibits that were not in evidence. Therefore, no error or prejudice has been shown.
7. Whether Wedmore was entitled to certain disbursements as a prevailing party.
[ .] Pursuant to SDCL 15-17-37, the trial court awarded Wedmore $12,416.62 in disbursements. This amount was $248.34 less than Wedmore requested. "We review an award of disbursements under an abuse of discretion standard." Michlitsch v. Meyer, 1999 SD 69, , 594 NW2d 731, 733 (citations omitted). "Only those expenses specifically authorized by statute may be taxed as disbursements, and although the trial court has some discretion, it must use cautious restraint within the statutory specifications." Lewis v. Aslesen, 2001 SD 131, , 635 NW2d 744, 747 (citation omitted).
[ .] Behrens first argue that this Court should "cut Wedmore's photocopy expenses to bring them in line with the photocopy expenses incurred by Plaintiffs." Behrens point out that Wedmore made ten times as many photocopies as they did. However, the statute does not require expenditures to be comparable, and Behrens have cited no authority requiring a rule of strict comparison. Rather, the statutory test is simply whether the expenditures were "necessarily incurred in gathering and procuring evidence or bringing the matter to trial." SDCL 15-17-37.
[ .] In this case, Wedmore's file alone was approximately five thousand pages in length. In preparing for trial, Wedmore was required to duplicate portions of his file for his own use as well as for a number of experts involved in the litigation. "The trial court was [obviously] satisfied that the photocopy expenses wwere 'necessarily incurred in gathering and procuring evidence or bringing the matter to trial,'" Zahn v. Musick, 2000 SD 26, , 605 NW2d 823, 833, and we see no abuse of discretion in this award.
[ .] The second disputed disbursement is a $356 bill paid to the law firm of Behrens' local bankruptcy counsel. These costs were incurred by Wedmore to obtain bankruptcy documents he needed for his defense. The bill was for attorney David Nadolski's time spent "responding" to Wedmore's request for access to the bankruptcy file. Wedmore had to pay this bill to receive the bankruptcy documents from Nadolski.
[ .] Behrens assert that reimbursing Wedmore for those costs is the same as reimbursing Wedmore for "expert witness fees incurred in preparing for a deposition." Behrens point out that such expert witness fees are not generally recoverable under SDCL 15-17-37. While this Court has stated that expert witness fees are generally not recoverable, Nadolski's time retrieving the bankruptcy documents was not an expert witness fee. Rather, it was an expense required to procure documents for the defense of the action. Ultimately, " he trial court was in the best position to determine the reasonableness of these disbursements and no abuse of discretion is shown." Zahn, 2000 SD 26, , 605 NW2d at 833.
[ .] Considering our disposition of these issues, we need not reach the issue raised by the notice of review.
[ .] Affirmed.
[ .] GILBERTSON, Chief Justice, and SABERS, and MEIERHENRY, Ju
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