James Sprouse, Individually and as Father and Guardian of Christopher Sprouse and Gabriel Sprouse v. Judean M. Leroy, Aprn

• Court: Court of Appeals of Kentucky
• Decided: January 25, 2024
• Docket: 2023 CA 000573
• Status: Unknown

Opinion

RENDERED: JANUARY 26, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0573-MR

JAMES SPROUSE, INDIVIDUALLY, AND AS FATHER AND GUARDIAN OF CHRISTOPHER SPROUSE AND GABRIEL SPROUSE; AND PETER WAYNE IV, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JESSICA A. SPROUSE APPELLANTS

APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE GEORGE DAVIS, JUDGE ACTION NO. 18-CI-00047

JUDEAN M. LEROY, APRN; AND EMERGENCY PROFESSIONALS OF OHIO, INC. APPELLEES

OPINION AFFIRMING IN PART AND REVERSING IN PART

** ** ** ** **

BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.

CETRULO, JUDGE: This is an appeal from a judgment of the Boyd Circuit Court

permitting the prevailing parties, Judean Leroy, APRN, and Emergency

Professionals of Ohio, Inc. (“Defendants below”), to recover costs of $6,021.35 from the appellants, James Sprouse, individually and as father and guardian of

Christopher Sprouse and Gabriel Sprouse, and Peter Wayne IV, as special

administrator of the Estate of Jessica A. Sprouse (“Plaintiffs below”). While this

action arose out of a wrongful death and medical negligence claim, the sole issue

on appeal concerns a bill of costs Defendants below sought after a jury verdict in

their favor. Correspondingly, our review and analysis are limited to that sole issue

and governed by Kentucky Rule of Civil Procedure (“CR”) 54.04.

CR 54.04 provides as follows:

(1) Costs shall be allowed as of course to the prevailing party unless the court otherwise directs; . . . In the event of a partial judgment or a judgment in which neither party prevails entirely against the other, costs shall be borne as directed by the trial court.

(2) A party entitled to recover costs shall prepare and serve upon the party liable therefor a bill itemizing the costs incurred by him in the action, including filing fees, fees incident to service of process and summoning of witnesses, jury fees, warning order attorney, and guardian ad litem fees, costs of the originals of any depositions (whether taken stenographically or by other than stenographic means), fees for extraordinary services ordered to be paid by the court, and such other costs as are ordinarily recoverable by the successful party. If within five days after such service no exceptions to the bill are served on the prevailing party, the clerk shall endorse on the face of the judgment the total amount of costs recoverable as a part of the judgment. Exceptions shall be heard and resolved by the trial court in the form of a supplemental judgment.

-2- In accordance with that rule, Defendants below filed their bill of costs

on March 23, 2023, following the jury verdict and entry of a judgment in their

favor; then, Plaintiffs below filed exceptions to the bill of costs within five days.

Plaintiffs below argued, as here, that the invoices provided by Defendants below

included charges beyond the original depositions. Specifically, the videographer

included fees for hyperlinking exhibits, a web conference fee on one deposition,

and a charge for both the videography and the transcript on another. In short,

Plaintiffs below alleged $1,004 in “unrecoverable” costs pursuant to CR 54.04.

Secondarily, Plaintiffs below asserted that the estate of Jessica Sprouse simply did

not have the financial resources to pay these costs, and the trial court should

consider that fact in denying costs to the prevailing party.

Defendants below responded to the exceptions, stating that these were

expenses “associated” with obtaining one original deposition and were not copies

of depositions or costs otherwise barred by CR 54. Regarding the financial

resources of the estate, Defendants below pointed out that the lawsuit did initially

name another co-defendant and that the estate had settled with that co-defendant,

although for a confidential amount.

In its order, the trial court simply ruled:

The Court having reviewed the Plaintiff’s exceptions to the Defendant’s Bill of Costs finds no reason to deviate from the costs demanded by the Defendant.

-3- On May 10, 2023, pursuant to CR 60.02, Plaintiffs below filed a

motion for clarification to be heard on May 19, 2023. However, the following day,

Plaintiffs below filed their timely Notice of Appeal to this Court from the Order

granting costs. Accordingly, the Boyd Circuit Court entered a second Order,

stating only “that the motion was being passed pending a ruling by the Court of

Appeals.”

Briefly addressing the motion for clarification, Plaintiffs below

asserted then, and now, that this Court should allocate any award of costs among

the four plaintiffs: James Sprouse, Christopher Sprouse, Gabriel Sprouse, and the

Estate of Jessica Sprouse. However, the trial court did not rule on that request and

indeed passed that motion in light of this appeal. We generally will not address a

matter that has not been both raised before and addressed by the trial court. Norton

Healthcare, Inc. v. Deng, 487 S.W.3d 846, 852 (Ky. 2016) (citations omitted).

This issue – to allocate costs between the plaintiffs – was not raised in the

exceptions to the bill of costs filed by Plaintiffs below, has not been decided by the

trial court, and is therefore not before us.

We need only determine whether the trial court abused its discretion

in awarding the costs sought. Miller v. McGinty, 234 S.W.3d 371, 373 (Ky. App.

2007) (citation omitted). Plaintiffs below recognize that a trial court abuses its

discretion only when its decision is arbitrary, unreasonable, unfair, or unsupported

-4- by sound legal principles. Having reviewed CR 54.04 and relevant precedent, we

find that certain specific expenses Plaintiffs below complained of do fall outside

the recoverable costs permitted by CR 54.04(2).

CR 54.04 permits recovery of the “costs of the originals of any

depositions.” Numerous cases have analyzed Rule 54 and concluded that its

wording is clear, and nothing in the rule permits recovery of copies or other

expenses not authorized by CR 54.04. See Brookshire v. Lavigne, 713 S.W.2d 481

(Ky. App. 1986). “Case expenses should be treated like attorney fees; that is,

statutory authority must be given in order to allocate such costs.” Shelter Mut. Ins.

Co. v. McCarthy, 896 S.W.2d 17, 19 (Ky. App. 1995). However, there is no such

applicable statutory authority here. Therefore, the costs allowable are limited to

those set forth in Rule 54. As precedent has noted, “[i]n this Commonwealth,

allowable costs are generally more circumscribed than that allowed in other

jurisdictions.” See Test v. Expressbill, LLC, No. 2008-CA-000088-MR, 2009 WL

3321009, *1, *5 (Ky. App. Oct. 16, 2009) (citation omitted); see also DAVID V.

KRAMER, 7 KY. PRAC. R. CIV. PROC. ANN. § 54.04 (2022 edition).

Defendants below do not explain why the cost of both a stenographic

transcript and a videotape of one deposition were included in their bill of costs.

Seemingly, they recognize that only one of those charges should have been

included, but they argue the trial court did not abuse its discretion. As to the other

-5- disputed expenses, Defendants below contend that the hyperlinking, e-litigation

packages, and web conference charges are a part of the original costs of the

deposition in our more electronic litigation world.

This Court addressed a similar argument in Helm Company, LLC v.

Humana Insurance Company of Kentucky, No. 2013-CA-001613-MR, 2014 WL

4802918 (Ky. App. Sep. 26, 2014). There, Humana was the prevailing party and

sought costs under CR 54.04. Humana contended that the purpose behind allowing

reimbursement for the costs of only the originals of any depositions is “outdated

and inapplicable in the modern litigation context.” Id. at *2. There, this Court

held, to the extent a party believes CR 54 is unfair or outdated, “it is the

prerogative of the Supreme Court of Kentucky, not this Court, to change it.” Id.

In Helm, we denied as a recoverable cost an “expedited rate” for one of the original

depositions. We find that charge analogous to the hyperlink, web conference fees,

and e-litigation expenses awarded here against Plaintiffs below.

Because CR 54.04 does not provide for recovery of those associated

expenses, we reverse the Boyd Circuit Court Order, but only to the extent it

included the fees outlined above. Per Plaintiffs below, the total of those

“unrecoverable” expenses was $1,004 and the trial court should enter a new order

removing those expenses. Otherwise, we emphasize that the trial court retains

great discretion in awarding costs. We do not find any abuse of that discretion

-6- based upon the Estate of Jessica Sprouse’s claimed lack of financial resources to

pay the original costs of the deposition, nor do we address allocation or

apportionment of the award as that was not decided by the trial court.

Accordingly, the April 13, 2023 order of the Boyd Circuit Court is affirmed in part

and reversed in part.

ALL CONCUR.

BRIEF FOR APPELLANTS: BRIEF FOR APPELLEES:

Tad Thomas Jeffrey A. Darling Lindsy Lopez Lexington, Kentucky Louisville, Kentucky

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