Frederking v. Frederking

No. 82,142

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LARRY FREDERKING and KAREN MEYER,

Appellants,

v.

RONALD D. FREDERKING a/k/a RONALD FREDERKING,

HELENE LEESA FREDERKING and RUSSELL FREDERKING,

Appellees.

SYLLABUS BY THE COURT

When depositions are utilized by a trial court in deciding a summary judgment motion, the stenographic charges for taking those depositions may be taxed as costs as being "used as evidence" pursuant to K.S.A. 1998 Supp. 60-2003(5).

Appeal from Lincoln District Court; THOMAS M. TUGGLE, judge. Opinion filed November 24, 1999. Affirmed.

Ron Svaty, of Svaty, Sherman & Hoffman, L.L.C., of Ellsworth, and Larry E. Keenan, of Keenan & Boeckman Law Firm, P.A., of Great Bend, for appellants.

Larry G. Michel, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, for appellees.

Before ELLIOTT, P.J., TOM MALONE, District Judge, and PATRICK D. McANANY, District Judge, assigned.

ELLIOTT, J.: Appellants appeal the award of costs following an award of summary judgment in favor of appellees.

We affirm.

Appellants first argue the award of costs is premature because the merits are currently on appeal to this court; they cite no case law nor supporting authority for this contention. A review of the statutes indicates the legislature contemplated an award of costs to occur directly following a final order of the trial court. See K.S.A. 60-2004 (indicating payment of costs does not constitute acquiescence in the judgment so as to prevent an appeal).

Appellants also argue the trial court erred in including the stenographic charges of depositions in the award of costs to appellees. Stenographic charges for the taking of depositions may be taxed as costs where the depositions were "used as evidence." K.S.A. 1998 Supp. 60-2003(5). Appellants claim the depositions were not used as evidence.

The trial court held the depositions were used as evidence in determining the motion for summary judgment and "served the same purpose as the deponents' testimony or deposition transcripts would have served at trial."

Appellants' reliance on Bridges v. Bentley, 244 Kan. 434, 445-46, 769 P.2d 635 (1989), and Wood v. Gautier, 201 Kan. 74, 78-79, 439 P.2d 73 (1968), is misplaced. Both of those cases involved the use of depositions at trial, but the depositions were not admitted into evidence. Those courts held the costs of those depositions could not be taxed as costs.

Here, the trial court did not abuse its discretion in distinguishing the present situation because the depositions were used as evidence by the trial court in deciding the summary judgment motion.

Affirmed.