State v. Everett Holder

295 N.E.2d 799, 260 Ind. 336, 1973 Ind. LEXIS 533

• Court: Indiana Supreme Court
• Decided: May 9, 1973
• Docket: 971S280 and 1071S295
• Status: Published

Opinions

DeBruler, J.

These cases have been consolidated on appeal since they raise substantially the same questions. They are both appeals by the State in eminent domain proceedngs from a portion of the final orders of the Warrick Circuit Court which awarded to the appellee-landowners, attorney, professional witness and trial preparation fees.

In July of 1969, the State of Indiana filed a complaint to condemn certain lands owned by appellee-Holder in order to make way for a highway. Appellee-Holder made no objections to this complaint and on August 14, 1969, the court appropriated the land and appointed appraisers. The appraisers found the appropriated land to be worth $8,335.90. The State then filed exceptions to that amount on September 11,1969, and demanded a jury trial on the amount of damages. The appellants did not file exceptions.

Trial was set for May 28, 1970. On May 27th, the State filed a Motion for Withdrawal of Plaintiff’s Exceptions which was granted over appellants’ objections. Shortly thereafter the court awarded appellants the amount of damages recommended by the appraisers and further ordered the State to pay $500.00 in attorney fees and $100.00 for professional witness and trial preparation fees to the appellants.

In the Rentchler case the State filed its complaint for the appropriation of land on August 14, 1969. On August 29, 1969, the trial court ordered the appropriation of the Rentchler land and appointed three appraisers who returned a report showing damages at $3,397.15. The State then filed its exceptions to the appraisers’ report on September 17, 1969. On November 2, 1970, the State withdrew its exceptions to the appraisers’ report and on that same day the court entered judgment on the amount shown in the original report. The court subsequently entered an additional order of an award of $500.00 to be paid by the State to appellees for their attorney fees. The State is appealing that part of these orders concerning the payment of the various fees for the appellees’ professional services.

It is generally agreed that since costs were unknown at common law the right of their recovery is statutory and thus may be awarded by a court only when there is statutory authorization to do so. Stayner v. Bruce (1953), 123 Ind. App. 467, 110 N. E. 2d 511. The Eminent Domain Act does contain such a section which also specifies how cost of a condemnation proceeding will be apportioned:

“The costs of the proceedings shall be paid by the plaintiff, except that in case of contest, the additional costs thereby caused shall be paid as the court shall adjudge.” IC 1971, 32-11-1-10, being Burns § 3-1709.

Appellant contends, however, that attorney, expert witness and trial preparation fees are not “costs” within the meaning of that term or this statute and hence the court’s orders to pay these fees is without statutory authorization and erroneous.

A reading of this statute reveals that only a general reference to costs is made and there is no special definition provided as to what a court may consider as costs. It has long been established in this State, however, that the bare term “costs” does not encompass attorney fees. Hutts v. Martin, (1893), 134 Ind. 587, 33 N. E. 676. The majority of jurisdictions have agreed with this construction and it is widely held that the use of the word “costs” in a statute is not intended to provide for the payment of attorney fees. 26 A. L. R. 2d 1295; 27 Am. Jur. 2d Eminent Domain §476. It is apparent, therefore, that the court’s awards of attorney fees to both defendants was without authorization by statute.

The State further objects to that part of the order in the Holder case which awards $100.00 to appellees for “preparing for trial and paying for professional witnesses.” The State again contends that this type of expense is not intended to be includable in the word “costs.” We agree. Although this is a question of first impression in this State we believe that the word “costs” in this statute was not intended by the Legislature to cover every conceivable expense incurred by the appellees in this type of action, but is used in its ordinary sense and concerns only those usual and ordinary expenses of a trial which are prescribed by statute to be paid to the court.

The decision to retain expert witnesses to testify for the defendant in an eminent domain proceeding concerning damages is a decision left solely to the discretion of the defendant and the amount of professional charges to be paid to defendant’s expert should be a matter between defendant and his witness. Likewise trial preparation expenses in a proceeding such as this (which might include mail, travel, telephone and photograph fees) are uniquely those of the individual party to the action and are not usually contemplated to be included in the statutory use of the word “costs.” Manchester Housing Authority v. Belcourt (N. H. 1971), 285 A. 2d 364; State by Commissioner of Transportation v. Mandis (1972), 119 N. J. Super. 59, 290 A. 2d 154; Frustuck v. Fairfax (1964), 230 Cal. App. 2d 412, 41 Cal. Rep. 56.

Appellee-Holder in this case attempts to assert error on the part of the trial court in allowing the State to withdraw its exceptions. The record here shows that the appelleeHolder did not file a motion to correct errors preserving those issues and consequently they cannot be considered on appeal. T.R. 59(G).

We therefore order the trial court to vacate that part of its final judgment in each case which required the State to pay appellees’ attorney, trial preparation and expert witness fees, and we affirm the remainder of the judgment.

Givan, J., concurs; Prentice, J., concurs with opinion; Arterburn, C.J., dissents with opinion in which Hunter, J., concurs.