Julian Emiliano Del Rosario v. Jing Hwa Wang
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Notice: This opin ion is subjec t to formal revision before publication in the Atlantic and Maryland Reporters . Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made b efore the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 01-CV-950 J ULIAN E MILIANO D EL R OSARIO , et al., A PPELLANTS, v. J ING H WA W ANG, et al., A PPELLEES. Appeal from the Superior Court of the District of C olumbia (CA-6719-97) (Hon. Ronna L. Beck, Trial Judge) (Hon. Steffen W. Graae, Motions Judge) (Argued May 23, 2002 Decided July 25, 2002) Peter L. Sissman, with whom Gwendolyn M. Hickman was on th e brief, for appellants. Jonathan Eric Agin , with whom Michael M. Hicks was on the brief, for appellee Jing Hwa Wang. Rocco C . Nunzio for appellee Maryland Automobile Insurance Fund. Before F ARRELL , R UIZ, and G LICKMAN, Associate Judges. F ARRELL , Associate Judge: This appeal stems only from the trial court s award of costs to appellees Jing Hwa Wang and the Maryland Automobile Insurance Fund ( MAIF ) related to their successful defense of a p ersonal injury cla im follow ing an auto mobile accident between W ang and appe llants (plaintiffs below). 1 The costs awarded consisted of 1 The original defendant was Jing Hwa Wang. The Maryland Automobile Insurance Fund (MAIF) was permitted to intervene as a defendant after Wang s insurer became insolvent. 2 the expenses of dep ositions, including related interpreter costs, and filing fe es. The court thereafter denied appellants motion under Super. Ct. Civ. R. 59 (e) to alter or amend the award. On app eal, appellan ts principally argu e that the trial court violated Super. Ct. Civ. R. 63 because the judge who signed both orders (Judge Graae) had replaced the trial judge (Judge Beck) without certifying familiarity with the record. We affirm. I. We begin by considering whether we have jurisdiction to hear this ap peal strictly from an award of costs. The issue is prompted by our statement in Panos v. Nefflen, 205 A.2d 600 (D.C. 1964), that it is generally held that no appeal lies from a judgment respecting costs only. Id. at 602 (footnote omitted). What the court meant in Panos becomes clear when we review the author ities it cited in the fo otnote w e have omitted , i.e., Wetzel v. O hio, 371 U.S. 62 (19 62), and the cases cited therein. It is settled, to begin with, that an appeal only from an award of costs does not permit the court to pass upon the merits of the u nderlying judgm ent. Wetzel, 371 U .S. at 64 ( Doug las, J., concurring) (quoting Heitmuller v. Stokes, 256 U.S. 359, 362 (1921)); see id. at 66 (C lark, J., dissenting). Beyond that, however, the reviewability of an award of costs depends practically upon the nature of the challenge. As the S upreme Court stated in Newton v. Consolidated Gas Co., 265 U.S. 78 (1924 ): There is no doubt that, as a general rule, an appeal does not lie from a decree solely for costs . . . . [T his rule] is easily deducible from the discretio n veste d in the tr ial court . . . . But the rule is not absolute and should not be enforced when the trial court assumes the power to assess . . . costs . . . not legally assessa ble as su ch. 3 Id. at 82-83 (quoted in Wetzel, 371 U.S. at 64 (D ouglas, J., concurring)). The issue is not one of jurisdiction or power to review but of the scope of review. Thus, an appeal challenging an award of costs committed by law to the trial court s discretion will rarely be disturbed, for as this court stated in Talley v. Varma, 689 A.2d 547 (D.C. 1997), a party appealing an award of costs bears the burden of convin cing this court on appeal that the trial court erred[,] . . . [and] the burden is even greater wh en the standard of review is abuse of discretion. Id. at 555 (quoting Robinso n v. How ard Un iv., 455 A.2d 1 363, 13 70 (D .C. 1983) ). On the other hand, a cha llenge to the trial court s statutory authority to award particular costs lies clearly within this court s power to review. See Harris v. Sears Roebuck & Co., 695 A.2d 108, 110 -11 (D.C . 1997) (treating statutory challenge to award of expert witness fees). We decide such issues de novo. See 10 J AMES W. M OORE ET AL., M OORE S F EDERAL P RACTICE, § 54.100 [4][b], at 54-149 (Matthew Bender, 3d ed. 2002) ( Whether an item claimed in a bill of costs m ay be comp ensated is . . . an issue of statutory construction subject to de no vo review. ). In this case, however co nclusorily, appellants have challenged Judge Beck s authority to award particular items of costs, such as interpreter s fees. And they have raised a broader objection under Rule 63 to the manner by which the fees were awarded. Given the nature of these challenges, they are properly before us for review. II. Appellants first contend that the trial court exercised no discretion in this case because the costs were awarded by Judge Graae, who had replaced Judge Beck after she 4 became ill, and Judge Graae did not certify fam iliarity with the reco rd as require d by Rule 63 thus leaving him with no basis for the proper exercise of discretion.2 We do not accept the lead premise of this argument, wh ich is that Judge Graae a warded the costs. In denying appellants Rule 59 (e) motion to alter or amend, he stated just the co ntrary: Although he had been appointed by the presiding judge of the division to handle all of the Calendar 7 matters until Judge Beck s return, the appointmen t was made on ly after she [Judge B eck] review ed the bills of costs submitted by the parties in [the present] case and instructed her law clerk to prepare an order reflecting her ruling (emphasis added). The order was then forwarded to [Judge Graae] for signature. Accordingly, Judge Graae concluded, [t]he ruling on costs was based on an inform ed decision of the trial judg e with due co nsidera tion of th e record . Appellan ts offer no r eason w hy we shou ld reject Judg e Graae s determination that Judge Beck made the award of costs. 3 Nor have the y cited anything in law implying that, because Judge Graae signed the order awarding costs, that act effectively divested Judge Beck of authority to make the award and required Judge Graae to certify fam iliarity with 2 Super. Ct. Civ. R. 63 provides: If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be complete d withou t prejudice to the parties. In a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness. 3 Appellan ts bold assertio n that, even a ccording to Judge G raae, it was Judge Beck s law clerk who made the award of costs rather than the judge is refuted by Judge Graae s statement twice that the ruling was Judge Beck s. 5 the record under R ule 63. T he case is no dif ferent, i n our v iew, than if Judge Graae had signed Judge Beck s name to the order indicating (by an /s/ or other symbol) that he was signing it on her behalf. Absent any reason for us to doubt that Judge Beck in fact made the ruling on co sts, we reject a ppellants R ule 63-bas ed argum ent that the orig inal order was issued by a judge unfamiliar with the record. Appellan ts argue, nev ertheless, that Ju dge Gra ae violated Rule 63 when he denied their motion under Rule 59 (e) to alter or amend the award of costs. 4 Because Judge Graae, not Judge Beck, denied the motion to alter or amend, appellants present what at first blush is a meritoriou s claim that the y were denie d a fair ruling on their motion when Judge Graae denied it without ha ving certified his familiarity w ith the record. Decisions construing Fed. R. Civ. P. 63 h ave recog nized its application to p ost-trial m otions s uch as t his one . See, e.g., Canseco v. United States, 97 F.3d 1224, 1226 (9 th Cir. 1996) (citing cases) ( The plain language of [Rule 63] indicates that the certification of familiarity requirem ent applies to all cases in which a successor judge replaced another judge unable to proceed with a trial or hearing that has comme nced. (em phasis add ed)); Mergentime Corp. v. Washington Metro. Area Transit A uth., 334 U.S. App. D.C. 294, 299-301, 166 F.3d 1257, 1262-64 (1999) (discussing application of rule to post-trial motions under Rules 52 and 59). 5 And, as the District of Columbia Circuit has explained, substitution of one judge for another, together 4 Appellee s do not disp ute that such a motion was proper under Rule 59 (e) (i.e., that a ruling on costs constituted a judgment within the meaning of the rule), and we accept the case in that posture. 5 Since the comment following Rule 63-I indicates that Rule 63 is identical to Federal Rules of Civil Procedure 63, federal cases interpreting the rule properly guide our analysis. See Ingber v. R oss, 479 A.2d 1256, 1266 n.13 (D.C. 1984) (considering federal decisional authority to be persua sive whe n the district s co urt rule was substantive ly identical to the corresponding federal rule). 6 with the proper certification, serves an importan t purpose b ecause [ i]t would b e unfair to deny a litigant s right to try to persuade the court that it has erred simply [on the ground that] the judge who rendered the original dec ision is unavailab le and can not be called on to reconsider the matter. 334 U.S. App. D.C. at 301, 166 F.3d at 1264 (citation omitted); see also United States Gypsum Co. v. Schiavo Bros., Inc., 668 F.2d 172, 177 (3d Cir. 1981) (not permitting a successor judge familiar with the record to consider a motion frustrates a party s right to move for reconside ration under the federal rules). As indicated, Judge Graae did not certify familiarity with the record before denying the motion to reconsider. We think Rule 63 required him to do so. Even as applied to the rather homely issue of costs of the litigation, compliance with that rule ensures both the actuality and the appearance that a judge who takes over the matter at any stage including on a motion to reconsider has sufficient familiarity with it to exercise genuine discretion in the aw ard. See Mergentime Corp ., 334 U.S. App. D.C. at 299, 166 F.3d at 1262 ( Rule 6 3 [b]a lanc[e s] effic iency and fairnes s . . [by] allow[ing] successor judges to avoid retrial, but only to the extent they insure that they can stand in the shoes of the predecessor by determining that the case may be completed without prejudice to the parties. ). Nevertheless, on review of the record we discern no prejudice to appellants from Judge Graae s h aving dec ided the post-award motion w ithout making the nec essary certification. See D.C. Code § 11-721 (e) (2001) ( On the hearing of any appeal in any case, the District of Columbia Court of Appeals shall give judgment after an examination of the record with out regard to errors or defects which do not affect the substantial rights of 7 the parties. ). For the most part, appellants motion to alter and amend judgment asserted the same violation of Rule 63 and due pro cess by Judge Graae that appellants now fe ature on appeal and the factual premise of which we have rejected. The remaining objections to costs stated in the motion to reconsider had all been raised in the opposition to costs filed with Judge Beck. Although Judge Beck did n ot expressly reject those objections, the care she devote d to the c osts issu e (redu cing, w ith an ex planatio n, MAIF s requested amount from $4,064.25 to $2,369.25) is inconsistent with any notion that she ignored or overlooked them. Moreover, none of the objections to the award are well taken as a matter of law. First, there is no reason why MAIF could not properly be awarded costs as a defendant intervenor who ha d prevailed . MAIF was not lim ited as appellants claim without authority to filin g a separate suit against the plaintiffs to recover its costs of defending.6 For the purpose of taxing costs, an intervening party stands in the same position as the original party. See Kleiman v. Aetna Cas. & S ur. Co ., 581 A.2d 1263, 1267-68 (D.C. 1990) (reversing for abuse of discretion when th e judge fa iled to allocate c osts against the plaintiff and interve ning plaintiff jointly); Smith v. Board of School Comm rs, 119 F.R.D. 440, 442 (S.D. Ala. 1988) (finding defendant-intervenors ought to stand in like case w ith defendants as prev ailing parties ). Second, the choice w hether to im pose an a ward of costs jointly or severally or to disaggreg ate costs and impos e them individ ually lies w ithin the trial cou rt s discre tion, see 6 The argument that defendant Wang, through his attorneys, lacked standing to seek costs w as and is unsub stantiate d by any leg al supp ort. 8 10 M OORE, § 54.104 [4], at 54-163 & n.37, and appellants offer no reason why disaggregation was compelled here. Third, appellants objection to costs for the second round of depositions and for interpreter costs fails initially because, as they concede in their brief (p. 3), they had previously agreed to those depositions without any objection to the use of an interpreter. And Rule 54-I (b) specifically provides for the recovery of deposition costs so long as the deposition was necessary for case preparation. Harris, 695 A.2d at 110 (quoting Kleiman, 581 A.2d at 1267). As to interpreter costs, Rule 43 (f) directs that any compensation for the use of an interpreter may be taxed ultimately as costs, in the discretion of the Court, notwithstanding that initially the party taking the deposition shall be ar the co st of the record of a d epositio n. See Rule 30 (b)(2) . See also 10 M OORE, § 54.10 2 [2][f ], at 54-1 70.1 ( The expense of an interpreter may be assessed or divided among the parties as the court directs, and may be taxed as costs against the losing party. ). All told, there is no reason on this record for us to conclude that a certification of familiarity with the record by Judge Graae would, or even might, have led him to a different decision in denying the motion to reconsider Judge Beck s ruling.7 Affirmed. 7 We have considered appellants remaining arguments against the award of costs, and reject them.
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