Martinez v. Nicholson

911 A.2d 30, 154 N.H. 397, 2006 N.H. LEXIS 174
CourtSupreme Court of New Hampshire
DecidedNovember 22, 2006
DocketNo. 2005-640
StatusPublished
Cited by3 cases

This text of 911 A.2d 30 (Martinez v. Nicholson) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martinez v. Nicholson, 911 A.2d 30, 154 N.H. 397, 2006 N.H. LEXIS 174 (N.H. 2006).

Opinion

BRODERICK, C.J.

The respondent, Laura Nicholson, appeals a superior court order granting a motion for taxation of costs filed by the petitioners, Carlos and Janet Martinez. We affirm.

The record supports the following. The petitioners (Martinez) and respondent Nicholson own adjacent properties in the Locke Lake subdivision in Center Barnstead. Martinez, claiming ownership by adverse [398]*398possession, petitioned to quiet title to a portion of property that allegedly encroached upon Nicholson’s land. After a hearing on the merits, the Superior Court {Perkins, J.) granted the petition; Nicholson appealed and we affirmed in an unpublished order. See Carlos L. Martinez & a. v. Laura Nicholson & a., No. 04-710 (N.H. July 14, 2005).

Pursuant to Superior Court Rule 87 (Rule 87), Martinez filed a motion for taxation of costs seeking $1,985.69, which included $1500 for Mark Sargent, a land surveyor with Richard D. Bartlett & Associates, who had provided expert testimony at trial. Martinez subsequently moved to amend his motion for taxation of costs to include an additional $1745 paid to Sargent that had been inadvertently omitted. The Superior Court {Smukler, J.) awarded the requested costs, and this appeal followed.

On appeal, Nicholson argues that the trial court erred in granting Martinez’ motion because: (1) Rule 87 does not apply to equity actions; (2) “direct knowledge of the proceeding is necessary to assess and determine the reasonableness of fees,” thus precluding a judge other than the presiding judge at trial from making such a ruling; (8) Rule 87 “only allows actual costs of expert witnesses if the costs were reasonably necessary to the litigation,” which these were not; and (4) the expert witness costs were not directly related to Sargent’s appearance in court. We address each argument in turn.

Nicholson first contends that the trial court erred because Rule 87 does not apply to equity actions. As with any other question of law, we review the trial court’s interpretation of the Superior Court Rules de novo. State v. Champagne, 152 N.H. 423, 428 (2005). Rule 87, entitled “Taxation of Costs in Civil Proceedings,” reads in pertinent part:

(a) Costs. Costs shall be allowed as of course to the prevailing party as provided by these rules, unless the Court otherwise directs.
(c) Allowable Costs. The following costs shall be allowed to the prevailing party: Fees of the clerk, fees for service of process, witness fees, expense of view, cost of transcripts, and such other costs as may be provided by law. The court, in its discretion, ... may allow other costs including, but not limited to, actual costs of expert witnesses, if the costs were reasonably necessary to the litigation.

While we agree that Rule 87 allows for taxation of costs in civil cases, Nicholson’s argument overlooks Superior Court Rule 116 (Rule 116), entitled “Rules for Regulating the Practice in Equity,” which provides: [399]*399“The foregoing law rules with necessary changes shall also regulate the practice in equity so far as applicable, and the rules relating to equity shall, where applicable, apply with necessary changes to actions at law.” We see no reason why Rule 87, in accord with Rule 116, should not apply to the underlying equity action in this case. See Flewelling v. Roby, 97 N.H. 97, 99 (1951) (plaintiff could maintain bill in equity to establish title by adverse possession). Indeed, “[w]here ... an equitable right has been demonstrated, the court is bound to grant every kind of remedy necessary to its complete establishment, protection, and enforcement according to its essential nature.” N.H. Donuts, Inc. v. Skipitaris, 129 N.H. 774,783 (1987) (quotation omitted). Accordingly, we reject Nicholson’s contention that Rule 87 did not apply to the underlying equity action.

Nicholson next argues that it was error for the judge who awarded costs to do so because he had not presided over the trial and had no direct knowledge of the case. Nicholson argues that as a matter of policy, motions for costs should be reviewed by the judge who heard the case because “direct knowledge of the proceeding is necessary to assess and determine the reasonableness of fees.” She further asserts that the trial court “should be directed to have the motions and objections ruled on by the original trial judge.”

While we might agree that the better practice would be for the judge who presides at trial to rule on any post-trial motions for costs, we cannot agree that the failure to do so necessarily constitutes error. Nicholson cites no authority for that proposition, and we know of none. Rule 87 neither contains such a mandate, nor prohibits a judge from adjudicating the taxation of costs in a case over which he or she did not preside at trial. Nicholson makes no contention that the judge who awarded costs was unable to review the record of the proceedings to the extent necessary before issuing a ruling. Accordingly, we conclude that Nicholson has failed to demonstrate any error. See LaMontagne Builders v. Brooks, 154 N.H. 252, 260-61 (2006) (superior court justice who did not preside over every hearing throughout course of litigation not precluded from awarding costs and attorney’s fees for proceedings conducted by a different superior court justice). We decline to exercise our supervisory authority to, in essence, amend Rule 87. Consideration of any such change is better left to the rulemaking process. See, e.g., State v. Abram, 153 N.H. 619, 627-28 (2006); Petition of WMUR Channel 9, 148 N.H. 644, 652 (2002) (Duggan, J., concurring specially); SUP. Ct. R. 51.

We now turn to Nicholson’s final contentions — that the trial court erred in taxing the costs for the surveyor because they were “not... reasonably [400]*400necessary ... to the litigation under ... Rule 87” and they did not directly relate to the surveyor’s appearance in court.

The award of costs lies within the sound discretion of the trial court. Cutter v. Town of Farmington, 126 N.H. 836, 843 (1985). Accordingly, we review the trial court’s award of costs for an unsustainable exercise of discretion. Taylor-Boren v. Isaac, 143 N.H. 261, 266 (1998); see State v. Lambert, 147 N.H. 295, 296 (2001) (explaining “unsustainable exercise of discretion” standard).

Carlos and Janet Martinez purchased their property in 1979. In 1993, Randy Orvis, a land surveyor, was hired to survey the abutting properties. Orvis relied upon the Locke Lake subdivision’s recorded plan to set his reference points. After Nicholson purchased her property in 2002, she hired Brian Bailey to survey her lot and set its boundary lines. Bailey’s survey suggested that a portion of Martinez’ shed, fences, and property extended approximately five feet onto the Nicholson property. The Orvis and Bailey field surveys were presented at trial by Martinez and Nicholson, respectively, in support of their proposals for locating the boundary line between their properties.

Martinez hired Sargent to review the work of both Orvis and Bailey, prepare a report, and testify at trial. Sargent offered the following testimony:

Q. In your opinion, would Mr. Bailey’s method be more accurate than Mr. Orvis’s method?
A. In my opinion, no. I think both methods are valid.

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911 A.2d 30, 154 N.H. 397, 2006 N.H. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-nicholson-nh-2006.