Klapmeier v. Cirrus Industries, Inc.

900 N.W.2d 386, 2017 WL 3496196

• Court: Supreme Court of Minnesota
• Decided: August 16, 2017
• Docket: A14-1725; A14-2217
• Status: Published

Opinions

OPINION

ANDERSON, Justice.

A jury awarded appellant Alan Klapmeier $10 million on his claim against i-espon-dent Cirrus Industries, Inc. The court of appeals reversed the jury’s verdict and granted in part Cirrus’s request to tax costs and disbursements for the appeal. Specifically, the court of appeals awarded $671,863.88 to Cirrus, most of which was for the interest that Cirrus incurred on a loan that it obtained to enable it to post a supersedeas bond, which was used to secure the judgment on the jury’s verdict during the appeal. Asserting that the interest is not taxable on appeal, Klapmeier sought review of the court of appeals’ taxation decision under either Minn. R. Civ. App. P. 117 or by granting a petition for a writ of prohibition under Minn. R. Civ. App. P. 120. We granted Klapmeier’s petition for review and agreed to hear the petition for a writ of prohibition, directing the parties to also address our authority to review a decision of the court of appeals that taxes costs and disbursements. We now hold that, although review of the court of appeals taxation decisions is not permitted under Rule 117, we retain the discretionary authority to grant a petition under Rule 120 for a writ of mandamus or prohibition to address such a decision. Further, we conclude that Minn. R. Civ. App. P. 139 does not permit the taxation of borrowing costs in the circumstances presented here. Thus, we grant the writ of prohibition, reverse the court of appeals’ decision to allow taxation of those costs, and direct the Clerk of the Appellate Courts to tax costs and disbursements as set forth below.

FACTS

Alan Klapmeier was one of the founders of Cirrus Industries, Inc., a Duluth-based aircraft manufacturer. Klapmeier was removed'from his position as Chief Executive Officer at Cirrus in 2008. In 2011, Klapmeier and Cirrus settled certain claims between them with an agreement that included a non-disparagement clause. In 2012, Klapmeier claimed that Cirrus breached the non-disparagement clause and in 2014 a jury agreed, awarding Klap-meier $10 million. Cirrus then moved for judgment as a matter of law, a new trial, and remittitur. Cirrus also moved to stay entry of judgment on the jury’s verdict while its posttrial motions were pending before the district court. In response, Klapmeier asked the district court to require Cirrus to post a bond for the full amount of the jury’s verdict, plus ten percent prejudgment interest, to ensure that Cirrus could pay the judgment if its appeal was unsuccessful. In March 2014, the district court ordered Cirrus to post a bond to secure the $10 million award.¹

Cirrus considered various options' for posting the security, ultimately deciding to secure a supersedeas bond through a loan and a letter of credit. Specifically, Aon Risk Insurance Services West, Inc. (Aon) agreed to provide Cirrus with a $12 million bond if Cirrus obtained a $12 million letter of credit as collateral and paid $96,000 in premiums per year. To obtain the letter of credit, Cirrus borrowed $12 million from Superior Aerospace Insurance Company (SAIC), Cirrus’s affiliated captive insurance company, under terms set out in a promissory note, including that Cirrus owed SAIC 4.25 percent interest. Cirrus deposited the $12 million with a Los Ange-les bank. In return, the bank gave Cirrus a $12 million certificate of deposit and issued an irrevocable letter of credit to Aon. Having obtained the letter of credit that it requested, Aon issued the $12 million su-persedeas bond to Cirrus, and Cirrus posted the bond.

The district court denied Cirrus’s post-trial motions and Cirrus appealed. In 2015, the court of appeals reversed, holding that the evidence was insufficient to support the jury’s finding as to the amount of damages awarded to Klapmeier. Klapmeier v. Cirrus Indus., Inc., Nos. A14-1725, A14-2217, 2015 WL 5194755, at *1 (Minn. App. Sept. 8, 2015). We denied review. Klapmeier, Nos. A14-1725, 14-2217, Order (Minn. filed Nov. 25, 2015).

After the court of appeals filed its decision, Cirrus filed a timély request to tax costs and disbursements for the appeal. As relevant here, Cirrus sought $192,000 in “bond costs,” representing the premiums paid for the supersedeas bond, and $743,750 in “borrowing costs,” representing the interest owed to SAIC on the loan that Cirrus used to obtain the letter of credit to secure the supersedeas bond.

Klapmeier objected to the requested taxation on several grounds, arguing specifically with respect to the claimed borrowing costs that the taxation of interest payments is not authorized by Minnesota law. Klapmeier also argued that because Cirrus’s claim to borrowing costs was based on a loan that it obtained from an affiliated entity, Cirrus' was essentially borrowing money from itself and did not actually incur any expenses. Finally, Klap-meier requested discovery and an eviden-tiary hearing on Cirrus’s proposed taxation.

The court of appeals denied Klapmeier’s request for discovery and an evidentiary hearing because those procedures are not authorized by the appellate rules. Klapmeier, Nos. A14-1725, A14-2217, Order at 2 (Minn. App. filed Jan. 22, 2016). Then, the court of appeals allowed taxation of somé disbursements, including some of the bond premium payments, and reduced the amounts taxed for other disbursements. Id. at 3-5. Regarding the borrowing costs, the court of appeals found that some of Cirrus’s borrowing costs were incurred during proceedings in the district court, rather than the appeal, and therefore could, not be taxed by the court of appeals. Id. at 5-6. But the court allowed taxation of $542,583.33 in borrowing costs, concluding that Klapmeier did not establish that those costs were clearly excessive. Id.

Klapmeier petitioned for review of the court of appeals’ order and, in the alternative, for a writ of prohibition. We granted review and agreed to hear the petition for a writ of prohibition. We also directed the parties to address our authority to review a court of appeals award of costs and disbursements.

ANALYSIS

I.

We begin -with our authority to review an award of costs and disbursements made’ by the court, of appeals. We have the authority to review “any decision of the Court of Appeals.” Minn. R. Civ. App, P. 117, subd. 2. But our rules also state that “no appeal from the taxation of costs and. disbursements” is allowed. Minn. R. Civ. App. P. 139.04.

Klapmeier argues that the court of appeals’ taxation .decision “deviates from Minnesota law,” making it the type of case in which we should exercise our supervisory and discretionary, authority over the lower courts under Minn. R. Civ. App. P. 117, particularly when a decision on taxation “deviates from Minnesota law, creates new law, or denies due process of law.”² In the alternative, Klapmeier asserts that a writ of prohibition under Minn. R. Civ. App. P. 120 is appropriate because the only other remedy available to the party facing taxation—to assert objections to the requested taxation, Minn. .R. Civ, App. P. 139.04—has been exhausted by the time relief is sought by way of a writ.

Cirrus acknowledges that we have the authority to review any judicial action, but argues that we should decline to review the court of appeals taxation decisions based on the plain and unambiguous language of Rule 139.04. Further, as Cirrus notes, we have, declared that “decisions regarding costs,and disbursements are final” and not reviewable under Minn. R. Civ. App. P. 117. Kelly v. Ellefson, No. A04-0615, Order at 2 (Minn. Sept. 18, 2006); see also Dargi v. City of Golden Valley, No. A12-2293, Order at 4 (Minn. Jan. 31, 2013) (quoting Kelly and recognizing that Rule 139.04 prohibits, an appeal from an .award of costs and disbursements).

Cirrus next argues that a writ of prohibition is not an appropriate remedy because an extraordinary writ is available only when a lower court haS “clearly exceeded any arguable authority.” Arguing that the exercise of discretionary authority to tax certain allowable costs and disbursements does not exceed any arguable authority, Cirrus contends that reviewing these decisions through an extraordinary writ proceeding would render meaningless the plain language of Minn. R. Civ. App. P. 139.04 (stating that “[t]here shall be no appeal from the taxation of costs and disbursements”).

Interpretation of the Rules' of Civil Appellate Procedure is a question of law, which we review de novo. Madson v. Minn. Min. & Mfg. Co., 612 N.W.2d 168, 170 (Minn. 2000). We will follow the plain and unambiguous language of a procedural rule., Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 601 (Minn. 2014). We read a procedural rule “as a whole,” interpreting each rule in light of surrounding sections in order , to avoid rendering superfluous any other word, phrase, or sentence. State v. Dahlin, 753 N.W.2d 300, 305-06 (Minn. 2008).

The scope of our discretionary authority to review decisions of the court of appeals is broad; we have the authority to review “any decision” of that court. Minn. R. Civ. App. P. 117, subd. 2; see Hyatt v. Anoka Police Dept., 691 N.W.2d 824, 826 (Minn. 2005) (stating that “[t]he word ‘any' is given broad application in statutes”). But this broad review authority is constrained by the more specific provision in Rule 139.04, which prohibits an appeal from a specific decision, namely, “the taxation of costs and disbursements.” Typically, a specific provision prevails over a more general provision. See, e.g., Minn. Stat. § 645.26, subd. 1 (2016) (explaining that the “special provision shall prevail and shall be construed as an exception to the general provision”); Mumm v. Mornson, 708 N.W.2d 475, 492 (Minn. 2006) (‘Widely-accepted rules of construction dictate that specific provisions control over general provisions.”). Moreover, we have relied on the particular exception stated in Rule 139.04 in declining to exercise our discretionary review authority under Minn; R. Civ. App. R. 117, See Kelly, No. A04-0615, Order at 2 (stating that “decisions regarding costs and disbursements are final” and dismissing a petition for review of a court of appeals decision on taxation).

We did, however, grant review in Lund v. Commissioner of Public Safety, 783 N.W.2d 142 (Minn. 2010), but we conclude that Lund is not applicable 'here. There", the Commissioner of Public Safety sought review of the State’s liability for taxed cost's and disbursements iñ a nontort civil case.³ Id. at 143. Thus, the taxability of certain incurred expenses was not at issue; rather, the issue we addressed was‘“the general rule ..'. that the taxation 'of costs and disbursements' is not permitted against the State when it acts in its sovereign capacity.” Id. As Lund did not discuss the relationship between Rules 117 and 139.04, and the issue addressed in Lund was of a broader, more general nature— the application of sovereign immunity as opposed to the taxability of specific costs and disbursements—we do not find Lund applicable here)

.When we consider our discretionary authority to review “any” decision of the court of appeals in light of the unambiguous language , of the specific provision in Rule 139.04, as we must, see Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) (explaining that we construe statutes “in light' of the surrounding sections”), we conclude that a petition filed under Minn. R. Civ. App. P. 117 that seeks our review of a court of appeals decision that taxes costs and disbursements is not permitted.

But this does not end our inquiry because Klapmeier also petitioned for a writ of prohibition under Minn. R. Civ. App. P. 120, and we granted that petition. A writ of prohibition provides a separate avenue for relief when an adequate, alternative appeal remedy is not available. See Griggs, Cooper & Co. v. Lauer’s, Inc., 264 Minn. 338, 119 N.W.2d 850, 852-53 (1962) (explaining that a writ of prohibition is available “in extreme cases where the law provides no other adequate remedy”). Having concluded that the remedy of a petition for review is not available to Klap-meier, we must consider whether a writ of prohibition is available to obtain review of a decision by the court of appeals that taxes costs and disbursements.

We find Dargi v. City of Golden Valley, No. A12-2293, Order (Minn. filed Jan. 31, 2013), instructive. In Dargi, the petitioner sought a writ of mandamus to compel the court of appeals to tax certain costs and disbursements. Id. at 1. We recognized that Rule 139.04 and Kelly prohibited an appeal from the taxation of costs and disbursements through a petition for review, but we held that “a petition for a writ of mandamus is the proper route to challenge a failure to grant such an award.” Id. at 4. Thus, we have relied on the remedy provided by an extraordinary writ to address a decision of the court of appeals in a setting in which the usual appeal remedy—a petition for review—is not available. See 3 Eric J. Magnuson, et al., Minnesota Practice—Appellate Rules Ann. § 120.4 (2016 ed.) (explaining that extraordinary writs are issued “in instances in which appellate review ... at the conclusion of proceedings would either be unavailable or ineffectual”).

A writ of prohibition will issue when the court exercises, or is about to exercise, judicial power, the exercise of such power is unauthorized by law, and the result will be an injury for which there is no other adequate remedy. In re Leslie v. Emerson, 889 N.W.2d 13, 14 (Minn. 2017). These extraordinary writs—mandamus and prohibition—serve as important tools to oversee the actions of lower courts in the rare instances in which a court refuses to exercise judicial power that is clearly required, or exercises judicial power that is unauthorized by law. See State v. Hart, 723 N.W.2d 254 at 257. Because we have already held that an extraordinary writ— mandamus—may be properly sought to address an exercise of judicial power regarding an award of costs and disbursements, we likewise conclude that a writ of prohibition may be sought in proper circumstances to challenge a decision of the court of appeals awarding costs and disbursements.⁴

Accordingly, we now consider the merits of Klapmeier’s challenge to the court of appeals’ decision to tax Cirrus’s borrowing costs.

II.

Having determined that a petition for a writ of prohibition is the proper means in this case to seek review of an order allowing the taxation of costs and disbursements, we must next decide whether the writ should issue. A writ of prohibition issues only when (1) a district court exercises, or is about to exercise, judicial or quasi-judicial power; (2) the exercise of such power is unauthorized by law; and (3) the exercise of such power will result in injury for which there is no adequate remedy. Leslie, 889 N.W.2d at 14. The first requirement is satisfied, here because directing the entry of judgment based on a determination that costs and disbursements should be taxed: is an exercise of judicial power. See Bellows v. Ericson, 233 Minn. 320, 46 N.W.2d 654, 658 (1951) (issuing a writ of prohibition to prevent a court from enforcing its order). In addition, the third requirement is satisfied because, as discussed above, the order allowing the taxation of costs and disbursements cannot be reviewed through a petition for review and, thus, there is no other adequate remedy. Dargi, No. A12-2293, Order at 4. Therefore, the only issue here is whether taxation of the “borrowing costs” Cirrus incurred to secure the super-sedeas bond is authorized by law.⁵

Minnesota Rule of Civil Appellate Procedure 139.02 states: “Unless otherwise ordered by the appellate court, the prevailing party shall be allowed that party’s disbursements necessarily paid or incurred.” “Supersedeas bonds are considered costs of appeal.” Servin v. Servin, 345 N.W.2d 754, 759 (Minn. 1984). We have never decided, however, whether the phrase “disbursements necessarily paid or incurred” includes the interest incurred by obtaining a loan used to secure a superse-deas bond.

Cirrus recognizes that the language of Rule 139.02 does not expressly allow borrowing costs to be taxed. Nevertheless, it argues that we should allow this expense to be taxed because other disbursements that are typically taxed—such as filing fees, transcript costs, and briefing expenses—are also not expressly mentioned in the rule. Furthermore, the only disbursement that is expressly disallowed is “the cost of preparing informal briefs or submissions designated in Rule 128.01, subd. 2.” Minn. R. Civ. App. P. 139.02. Cirrus argues that this express prohibition of only one category of disbursements suggests that all other disbursements are taxable. We disagree.

By suggesting that all disbursements are taxable except those that are expressly excluded—informal brief expenses—Cirrus reads the phrase “necessarily paid or incurred” too broadly. We have required more for taxation than mere proof that an expense was paid or incurred in connection with an appeal. See, e.g., Muirhead v. Johnson, 232 Minn. 408, 46 N.W.2d 502, 507 (1951) (declining to tax a portion of the expenses incurred, for briefs and the record where “considerable material ... was wholly unnecessary and irrelevant” to the issues on appeal); see also Webster’s Third New International Dictionary 1510 (2002) (defining “necessarily” as “in such a way that it cannot be otherwise: of necessity: inevitably, unavoidably”).

Unlike the borrowing costs at issue here, filing fees, transcript costs, and briefing expenses are paid or incurred because they are necessary—unavoidable—-if the appeal is to advance. For example, a fee is necessary to file an appeal.⁶ Minn. R. Civ. App. P. 103.01; see In re Conservatorship of Riebel, 625 N.W.2d 480, 480 (Minn. 2001) (explaining that an appeal was dismissed in part “for failure to pay the required filing fee”). Similarly, a'transcript is necessary to preserve certain issues for appeal. See Godbout v. Norton, 262 N.W.2d 374, 376 (Minn. 1977) (explaining that the court “cannot consider a sufficiency-of-evidence issue unless provided with a trial transcript” on appeal). Likewise, a party must file a brief or face the possibility of dismissal. Minn. R. Civ. App. P. 142.02; see State v. Barrett, 694 N.W.2d 783, 787 (Minn. 2005) (explaining that the State’s pretrial appeal may be dismissed if the State “fails to timely file and serve its brief’). Even bond premiums may be necessary to an appeal when a district court requires a party to post a supersedeas bond as a condition of staying the entry of judgment during an appeal.⁷ Minn. R. Civ. App. 108.02, subd. 3; see Henderson v. Nw. Airlines, Inc., 231 Minn. 503,43 N.W.2d 786, 792 (1950) (finding “no error” in taxing “the premium [for] the appeal bond”).⁸

In contrast, borrowing costs do not have the same direct relationship to an appeal because they are not necessarily paid or incurred to allow an appeal to proceed. Rather, borrowing costs are paid or incurred based on circumstances unique to, .'and decisions made by, the borrower that are unrelated to the appeal, such as interest rates, loan terms, other financing options, ongoing business activities, and asset/liability calculations. Thus, although a court may require a party to post a bond, the party decides how to obtain the money to enable it-to do so in light of the-party’s individual financial circumstances. In other words, the appeal does not render the borrowing costs “necessary.” The appeal proceeds whether or not the bond is financed, as was the bond here, through funds borrowed to obtain a letter of credit. In these circumstances, borrowing costs are “necessary” only because the party has determined that a loan, and its required expenses, is the best financial option for reasons that may have nothing to do .with the appeal.⁹

The plain language of Rule 139.04 cannot be stretched to cover a party’s decision, independent of the appeal, to finance the expenses associated with procuring an appeal bond. In addition, there is a substantial risk of complicating the taxation of disbursements by including party-driven financial decisions in the determination of “necessarily paid or incurred” expenses. In an era of interlocking corporations, wholly owned subsidiaries, and complicated financing vehicles, it may well prove difficult to trace why an interest expense was incurred, how the interest expense was incurred, what the interest expense actually was, or even whether the expense was actually incurred in the first place. See Rossa v. D.L. Falk Constr., Inc., 53 Cal.4th 387, 135 Cal.Rptr.3d 329, 266 P.3d 1022, 1029 (2012) (explaining that “interest charges and related fees for a loan may vary greatly, depending on the creditworthiness of the judgment debtor, current interest rates, and other terms of the loan, rendering such charges unpredictable and potentially many times greater in amount than other costs”).

The majority of courts that have considered this issue agree that borrowing costs are not necessary to the appeal and therefore are not taxable in the circumstances presented here.¹⁰ For example, the United States Court of Appeals for the Second Circuit has held that the “borrowing expense” incurred in collateralizing a bond cannot be taxed “in addition to the premium on a supersedeas bond.” Lerman v. Flynt Distrib. Co., 789 F.2d 164, 166 (2d Cir. 1986). Similarly, the Seventh Circuit has allowed the taxation of borrowing costs because the costs were “in lieu of a premium for a supersedeas bond.” Republic Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 450 (7th Cir. 2007). The First Circuit has upheld the taxation of the cost of a letter of credit to secure a bond because “there [was] no suggestion that the charge for a letter of credit was either unreasonable or resulted in any greater total cost than a supersedeas bond without supporting collateral.” Bose Corp. v. Consumers Union of U.S., Inc., 806 F.2d 304, 305 (1st Cir. 1986). Relying on these decisions, the Ninth Circuit held that "borrowing costs associated with obtaining a letter of credit to secure a supersedeas bond could not be taxed “where there was no agreement by the parties and where the costs paid for the letter of credit were in addition to the cost of the premiums paid for the superse-deas bonds.” Johnson v. Pac. Lighting Land Co., 878 F.2d 297, 298 (9th Cir. 1989) (explaining that the cost for a letter of credit “has been treated as the equivalent of premiums paid for the cost of a superse-deas bond”). Finally, the California Supreme Court denied taxation “for interest expenses and fees incurred to borrow funds to deposit as security for a letter of credit that was procured to secure an appeal bond,” despite a court rule¹¹ that allowed a prevailing party to recover “the cost to procure a surety bond, including the premium and the cost to obtain a letter of credit as collateral.” Rossa, 135 Cal.Rptr.3d 329,266 P.3d at 1023, 1026, 1030.¹²

We therefore conclude that interest incurred on a loan used to obtain a supersedeas bond is not a taxable appeal expense.¹³ Because we conclude that the taxation of borrowing costs is unauthorized by law, all three requirements for the issu-anee of a writ of prohibition are met and the writ shall issue. The decision of the court of appeals to allow taxation of Cirrus Industries’ borrowing costs is reversed. The Clerk of the Appellate Courts is directed to tax costs and disbursements consistent with this opinion.

CONCLUSION

For the foregoing reasons, the writ of prohibition is issued and the decision of the court of appeals is reversed.

Writ of prohibition issued; reversed.

STRAS, J., took no part in the consideration or decision of this case.

1 . Although the district court originally ordered Cirrus to post a $10 million bond, it later amended the order, at Cirrus’s request, to allow Cirrus to choose whether to post a $12 million bond, a $12 million cashier’s check, or a $12 million certified check (the increased amount reflecting interest on the jury’s award during the appeal).

2 . Klapmeier also argues that the court of appeals violated his due process rights by not allowing discovery and an evidentiary hearing regarding the reasonableness of the costs and disbursements that Cirrus claimed, Klapmeier did not raise a. due process claim in the court of appeals, however, and in his petition for review and alternative petition for a writ of prohibition, he did .not challenge the court of appeals’ denial of his request for discovery arid an evidentiary hearing. Therefore, we will not-. 'address-Klapmeier’s due process arguments or the court of appeals' denial of discovery and an evidentiary hearing on Cirrus’s proposed taxation. See In re GlaxoSmithKline PLC, 699 N.W.2d 749, 757 (Minn. 2005) (“Generally, we do not address issues that were not raised in a petition for review.”).

3 . Notably, in the Commissioner’s petition for review in Lund, he suggested that we consider the petition as one for a writ of prohibition if we concluded that review under Rule 117 was . not proper in light of the exception stated in Minn. R. Civ. App. P. 139.04. Petition for Review, Lund v. Comm’r of Public Safety, No. A08-1408 (filed Oct. 1, 2009). This approach is largely similar to Klapmeier’s alternative filing.

4 . In recognizing that a petition for a writ of prohibition or mandamus may be used to challenge a taxation decision, we remind parties that, in general, taxation decisions are final, Minn. R. Civ. App. P. 139.04, and petitions for an extraordinary writ are rarely granted, see Wasmund v. Nunamaker, 277 Minn. 52, 151 N.W.2d 577, 579 (1967) (explaining that the writ of prohibition "issues only in extreme cases”); Nationwide Corp. v. Nw. Nat’l Life Ins. Co., 251 Minn. 255, 87 N.W.2d 671, 679-80 (1958) ("Mandamus is an extraordinary legal remedy.”). Disagreement with the decision to tax costs and disbursements, by itself, is unlikely to warrant an extraordinary writ. Thus, although we granted the petition for a writ of prohibition here, we will scrutinize future petitions carefully, with a particular focus on whether the petition presents an important issue of law that warrants an exception to the general rule that prohibits an "appeal from the taxation of costs and disbursements.” Minn. R. Civ. App. P. 139.04; see Minn. R. Civ. App. P. 102 (allowing this court to "suspend the requirements ... of these rules” for "good cause shown”).

5 . Klapmeier asks us to deny taxation of all of Cirrus’s costs and disbursements for "good cause” based on the arguments that Klapmeier makes for denying taxation of borrowing costs. Klapmeier did not raise this argument in his petition for review, and as Klapmeier acknowledges, the expenses Cirrus incurred apart from the borrowing costs are generally recognized as taxable. See Webb Golden Valley, LLC v. State, No. A13-2044, Amended Order at 3 (Minn. filed Aug. 20, 2015) (taxing appellate filing fee and brief expenses); State v. Red Owl Stores, Inc., 262 Minn. 31, 115 N.W.2d 643, 660 (1962) (taxing transcript costs); Henderson v. Nw. Airlines, Inc., 231 Minn. 503, 43 N.W.2d 786, 792 (1950) (taxing cost for bond premiums); see also Minn. R. Civ. App. P. 139.01 (permitting taxation of $300 in judgment costs). We therefore limit our review to the taxation of Cirrus’s borrowing costs, and the Clerk of the Appellate Courts shall tax costs, filing fees, transcript and brief expenses, and $128,000 in bond premiums.

6 . An appellate filing fee is not always required, but the rule identifies the circumstances where no filing fee is necessary. See Minn. R. Civ. App. P. 103.01, subd. 3. Those circumstances are not present here.

7 . Contrary to the dissent’s assertion, whether bond premiums are necessary does not de- ’ pend solely on the party's financial situation. According to our rules, the party must post security “in a form and amount that the trial court approves.” Minn. R. Civ. App. P. 108.02, subd. 2. Therefore, if the district court requires a supersedeas bond, then bond premiums would necessarily be incurred. In short, it is not the party’s financial situation, but rather the court's order, that makes bond premiums necessary.

8 . The dissent criticizes our distinction between bond premiums and borrowing costs because bond premiums can be avoided if a party allows judgment to be entered against it while the appeal is pending. As noted- above, the taxability of bond premiums is not at issue here. But we note that to the extent the dissent argues that bond premiums are not necessary for an appeal to proceed, that argument undermines the dissent’s conclusion that the borrowing costs incurred to obtain the supersedeas bond that results in those premiums are taxable as necessarily paid or incurred.

9 . A simple example illustrates - this point. Based on financial circumstances, some parties may conclude that it is preferable to obtain a loan or use a credit card to pay the filing fee, transcript costs, or briefing expenses" incurred in an appeal, Even though these fee, transcript, or brief expenses are necessarily incurred, we have never held that the borrowing costs incurred as a result of a party's decision to finance these expenses can be taxed.

10 . We recognize that some courts have reached the opposite conclusion. See, e.g., Creed v. Apog, 377 Mass. 522, 386 N.E.2d 1273, 1275 (1979) (allowing taxation of costs to obtain a letter of credit, and noting that without the collateral, "premiums paid on the bond might well have been higher”); N. Pointe Ins. Co. v. Steward, 265 Mich.App. 603, 697 N.W.2d 173, 178 (2005) (explaining that the costs for a letter of credit "are fully taxable as long as the total costs of the bond premiums and the letter of credit are ‘reasonable’ and are no greater than the total cost of a bond without collateral”). These cases simply illustrate the fact-based nature of a party’s borrowing decision. In this case, our rule does not plainly permit taxation of Cirrus’s borrowing costs and we cannot conclude that borrowing costs generally are "necessarily paid or incurred” in an appeal.

11 . The rule the California Supreme Court relied on in this decision has since been amended and now explicitly allows these expenses to be taxed. See Siry Invs., L.P. v. Saeed Farkhondehpour, 238 Cal.App.4th 725, 189 Cal.Rptr.3d 554, 556 (2015), as modified on denial of reh'g (Cal. App. July 9, 2015), rev. denied (Cal. Oct. 21, 2015).

12 . Relying on these same decisions, the dissent argues that our interpretation is "at odds” with federal precedent because some federal circuit courts have allowed the taxation of borrowing costs "as long as they meet certain criteria.” But, as explained above, the "certain criteria” that the federal circuit courts have imposed narrowly limit the circumstances in which borrowing costs are taxable. Thus, the general rule from the federal circuit courts is that borrowing costs are not taxable.

13 . We do not agree with the dissent’s speculation that this holding will discourage parties involved in high stakes litigation from pursuing meritorious appeals. Although an appeal may involve significant risk, it may present the opportunity for significant reward as well.

In addition, the dissent makes the unsupported assertion that fees for letters of credit are “routinely taxed” in Minnesota and the dissent worries that this decision will change this routine practice. This assertion might or might not be correct, but .we need not decide today whether fees for letters of credit are taxable.

And, finally, as to the dissent's various policy arguments, we note that the result sought by the dissent is simply not supported by the plain language of the rule at issue here. See Walsh, 851 N.W.2d at 601 (“When interpreting a [court] rule, we look first to the plain language of the rule and its purpose.... Where the language is plain and unambiguous, that plain language must be followed.” (citations omitted) (internal quotation marks omitted)). If a significant expansion of the costs taxable on appeal is desirable, the better route to follow is to amend the rule.