Ashby v. Harris

1996 OK 70, 918 P.2d 744, 1996 Okla. LEXIS 81, 1996 WL 297412
CourtSupreme Court of Oklahoma
DecidedJune 4, 1996
Docket75370, 75754
StatusPublished
Cited by33 cases

This text of 1996 OK 70 (Ashby v. Harris) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ashby v. Harris, 1996 OK 70, 918 P.2d 744, 1996 Okla. LEXIS 81, 1996 WL 297412 (Okla. 1996).

Opinions

ALMA WILSON, Chief Justice:

Although the appellants raise several issues as error in this case, one issue raised in the counter appeal of the appellees is disposi-tive, and that is whether 12 O.S.1991, § 1001 permits multiple refilings of an action. We hold that it does not. Given this result, we also address the issue of costs.

These facts are uneontested. A medical malpractice action was filed by James and Georgia Ashby on January 31, 1984, against the appellees. On September 10,1984, Georgia died and James dismissed the suit without prejudice on October 28, 1986, after the statute of limitations had run. Relying on § 100, the action was refiled on December 24, 1986, in the United States District Court for the Western District of Oklahoma. The federal court action was dismissed on May 28, 1987 for lack of diversity jurisdiction. On June 29, 1987, within one year of the voluntary dismissal in the state court action, the appellants refiled their claims in the district court of Oklahoma County.

The district court dismissed the action finding that § 100 did not permit the refiling. But the court granted a motion to reconsider, and vacated its order of dismissal. After certain defendants were dismissed the case proceeded to jury trial. During the trial a demurrer to the evidence was sustained in favor of Dr. Harris. A jury verdict found for the remaining defendant, Dr. Metcalf. The appellees were awarded costs, including travel expenses incurred by the defense counsel in deposing one of the plaintiffs’ witnesses, the expense of preparing copies of transcribed depositions, the expense of overnight mailing of deposition transcripts, and the expense of expedited preparation of deposition transcripts.

On appeal, the appellants raised issues regarding trial court rulings related to evidence, jury instruction and expert witnesses. The appellees counter-appealed from the order denying their motion to dismiss. In a separate appeal, No. 75,754, which was subsequently consolidated with No. 75,370, the appellants appealed the costs awarded to ap-pellees. The Court of Appeals held that the appellants’ action was barred because § 100 permits only one refiling. The court cited United States Fire Ins. Co. v. Swyden, 175 Okla. 475, 478, 53 P.2d 284, 288 (1936). The court affirmed the trial court’s award of costs to the appellees. This Court has previously granted certiorari.

In Grider v. USX Corp., 847 P.2d 779, 782 (Okla.1993), this Court cited Swyden in support of the rule that § 100 affords one and only one refiling if a case is dismissed after limitations has run. In Hull v. Rich, 854 [747]*747P.2d 903, 904 (Okla.1993), we held that the rule applies even where the first refiling was involuntarily dismissed.

Section 100 afforded the appellants the opportunity to refile their action one time after it had failed otherwise than upon the merits and after the statute of limitations had rim. The second refiling could not be saved by § 100 and was therefore time barred.

Concerning costs, a prevailing party may recover only those litigation expenses covered by statute because the right does not exist at common law. Rout v. Crescent Public Works, 878 P.2d 1045, 1049 (Okla.1994). The appellees, as the prevailing party, can only recover those litigation expenses designated as taxable by statute.

On three separate occasions the appellees’ attorneys traveled by air to California to depose the expert witness of the appellants. The appellees argue that the expert witness did not allow adequate time for the first two depositions, and that therefore the appellees should be allowed the expenses of the second and third trips as costs. They cite as statutory authority for their claim 12 O.S.1991, § 927 which provides: “Unless otherwise provided by statute, the costs of motions, continuances, amendments and the like, shall be taxed and paid as the court, in its discretion, may direct.” Appellees argue that the phrase “and the like” includes attorneys’ travel expenses, and that, therefore, it was within the discretion of the trial court to tax the expenses as costs. We do not agree.

The language of § 927 does not permit the broad interpretation that the appel-lees give the phrase “and the like.” The words “motions, continuances, amendments,” are matters related to pleadings and court proceedings. Only expenses related to the filing of pleadings and the costs of court proceedings are placed within the court’s discretion by § 927. If this Court were to follow the appellees’ broad construction of the locution, “and the like,” then any and all litigation expenses could potentially fall within the discretion of a court as taxable costs. Such a construction would render nugatory other provisions of the same act governing the taxing of costs and would reduce to mere surplusage legislation passed after the enactment of § 927, and this Court will not interpret statutes in a way that concludes that the legislature has done a vain and useless act. TRW/Reda Pump v. Brewington, 829 P.2d 15, 20 (Okla.1992). Because no statute authorizes taxing the travel expenses of the appellees’ counsel, the trial court erred in awarding such items as costs.

The appellees also seek as costs the expense of preparing copies of the transcribed deposition, the expense of overnight mailing of deposition transcripts, and the cost of expedited preparation of deposition transcripts. The appellees in their amended motion to tax costs set this amount as $3,045.50. The appellants argue that only the cost of the original transcript is taxable, which they assert is $863.42. The relevant statute taxing deposition costs is 12 O.S.1991, § 3230(J), which provides:

“J. TAXING OF COSTS OF DEPOSITIONS. The cost of transcription of a deposition, as verified by the statement of the certified court reporter, the fees of the sheriff for serving the notice to take depositions and fees of witnesses shall each constitute an item of costs to be taxed in the ease in the manner provided by law. The court may upon motion of a party retax the costs if the court finds the deposition was unauthorized by statute or unnecessary for protection of the interest of the party taking the deposition.” [Emphasis added].

The question before us, therefore, is whether the expenses sought by the appellees come within the scope of the statutory language, “[t]he cost of transcription of a deposition.” As a result, we must attempt to discern legislative intent expressed by the phrase in question.

The appellees draw our attention to 12 O.S.1991, § 3230(G)(2) arguing that it provides a “definition” of “the cost of transcription of a deposition” as contained in § 3230(J). ’ We do not agree that § 3230(G)(2) is a definition of any term or terms. However, we do believe that an analysis of its language, as well as that of related statutes, can guide our inquiry into legisla[748]*748tive intent expressed in § 3230(J). In order to ascertain the intention of the legislature, “all the various portions of the legislative enactments on the particular subject, including subsequent enactments, should be construed together and given effect as a whole.” Ind. School Dist. v. Old. City Fed. of Tchrs., 612 P.2d 719, 721 (Okla.1980). Section 3230(G)(2) provides in its entirety:

“2.

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Ashby v. Harris
1996 OK 70 (Supreme Court of Oklahoma, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
1996 OK 70, 918 P.2d 744, 1996 Okla. LEXIS 81, 1996 WL 297412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashby-v-harris-okla-1996.