Edwards v. Sawyer Indus. Plastics, Inc.

790 So. 2d 29, 2000 La. App. LEXIS 2668, 2000 WL 1634328
CourtLouisiana Court of Appeal
DecidedNovember 1, 2000
Docket31,316-WCA
StatusPublished
Cited by5 cases

This text of 790 So. 2d 29 (Edwards v. Sawyer Indus. Plastics, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edwards v. Sawyer Indus. Plastics, Inc., 790 So. 2d 29, 2000 La. App. LEXIS 2668, 2000 WL 1634328 (La. Ct. App. 2000).

Opinion

790 So.2d 29 (2000)

Jack M. EDWARDS, Plaintiff-Appellee,
v.
SAWYER INDUSTRIAL PLASTICS, INC., et al., Defendant-Appellant.

No. 31,316-WCA.

Court of Appeal of Louisiana, Second Circuit.

November 1, 2000.
Writ Denied February 2, 2001.

*30 Timothy B. Burnham, Brian A. Homza, Shreveport, LA, Counsel for Appellant.

M. Terrance Hoychick, Counsel for Appellee.

Before NORRIS, BROWN, WILLIAMS, CARAWAY & PEATROSS, JJ.

PEATROSS, Judge, on remand from the supreme court.

This case originally came to this court on appeal of Defendant Sawyer Industrial Plastics, Inc. ("Sawyer") and its insurer, Aetna Casualty & Surety Company, from a judgment of the Workers' Compensation Judge ("WCJ") finding Claimant, Jack M. Edwards, to be permanently and totally disabled; awarding him compensation benefits for injuries he allegedly sustained while working for Sawyer; assessing penalties and attorney fees against Sawyer; and failing to give Sawyer credit for benefits received by Mr. Edwards. In a separate and subsequent appeal, Sawyer challenged the WCJ's fixing of expert witness fees on a rule to show cause filed by Mr. Edwards after rendition of the final judgment on the merits. On appeal, we reversed the WCJ on the issue of causation, or Mr. Edward's entitlement to benefits and, therefore, did not reach the issues of degree of disability, penalties and attorney fees, credit for benefits paid or expert witness fees. The supreme court granted writs and, ultimately, reversed the decision of this court regarding causation, but found that Mr. Edwards was entitled only to supplemental earnings benefits rather than total and permanent disability benefits. Penalties and attorney fees were denied by the supreme court and the matter was remanded to the trial court to fix the amount of supplemental earnings benefits and the amount of the credit for unemployment compensation benefits received by Mr. Edwards.

In a subsequent application for rehearing filed by Defendants, the propriety and amount of the WCJ's award of expert witness fees were raised. Accordingly, the supreme court granted the application, in part, remanding those issues to this court for consideration. For the reasons stated herein, we find that the WCJ erred in awarding expert witness fees subsequent to the signing of the final judgment; and, therefore, the award of expert witness fees is vacated and set aside.

PROCEDURAL BACKGROUND

Judgment was rendered against Sawyer on December 3, 1997, and was signed on January 7, 1998. The portion of that judgment relevant to our inquiry reads as follows:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that defendants, SAWYER INDUSTRIAL PLASTICS, INC. and AETNA INSURANCE COMPANY, pay all costs of these proceedings, together with legal interest on *31 these costs from the date of this judgment until paid.

There was no mention of expert witness fees in the January 7 judgment. On January 9, 1998, Mr. Edwards filed a Rule to Show Cause Why Expert Fees Should Not Be Taxed As Court Costs. The WCJ set the matter for argument, which was had on March 2, 1998; and, on March 10, 1998, the WCJ signed a judgment fixing expert witness fees. The relevant portion of the judgment on the rule to show cause reads as follows:

The court, after considering the evidence and arguments of counsel, finds the law to be in favor of [Mr. Edwards]. Particularly, the court signed the original Judgment on January 7, 1998, with the intent that a contradictory hearing be held thereafter to allow the court to determine a reasonable amount to assess for expert fees. This rule is herein made absolute and forms part of that final judgment signed on January 7, 1998.

The above judgment continues and fixes expert witness fees in the amount of $21,500 to Dr. Rick Irvin, $1,200 to Dr. Thomas Callender and $662.25 in court reporter fees for the taking of Dr. Callender's deposition.

DISCUSSION

Sawyer challenges the WCJ's judgment fixing expert fees arguing, first, that it was improper to fix an award of expert fees in a workers' compensation case after the rendition of the final judgment on the merits. Alternatively, Sawyer submits that the amount of expert fees awarded was unreasonable and should be reduced.

We begin our discussion noting the general rule that governs the taxing of costs. That rule is embodied in La. C.C.P. art.1920, which reads as follows:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

La. R.S. 13:3666 sets out the general rule regarding taxing expert fees as costs and reads, in pertinent part, as follows:

B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.

We also note that La. C.C.P. art.2088 specifies over which matters a trial court retains jurisdiction once a judgment has been rendered:

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only *32 over those matters not reviewable under the appeal, including the right to:
* * *
(10) Set and tax costs and expert witness fees.

Based on the above statutory framework, clearly, the general rule is that expert witness fees may be taxed as costs against the party cast in judgment; and the trial court retains jurisdiction to do so, by a rule to show cause filed by the prevailing party after rendition of the final judgment.

There exists, however, a more specific rule regarding the fixing of expert witness fees in the context of workers' compensation cases. La. R.S. 23:1317 provides, in pertinent part, as follows:

B. Costs may be awarded by the workers' compensation judge, in his discretion, and when so awarded the same may be allowed, taxed, and collected as in other civil proceedings. The fees of expert witnesses shall be reasonable and shall not be allowed unless fixed in the judgment. The judgment rendered shall have the same force and effect and may be satisfied as a judgment of a district court. The director shall fix the fees to be charged by experts in each field of expertise on an hourly basis for the taking of the expert's deposition and travel time if the deposition is taken away from the expert's regular place of business. (Emphasis ours.)

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Cite This Page — Counsel Stack

Bluebook (online)
790 So. 2d 29, 2000 La. App. LEXIS 2668, 2000 WL 1634328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-sawyer-indus-plastics-inc-lactapp-2000.