{ "id": 2183363, "name": "NICHOLAS VICENCIO, Plaintiff-Appellee, v. LINCOLN-WAY BUILDERS, INC., Defendant-Appellant and Third-Party Plaintiff (Weidner's Depot of Mokena, Ltd., d/b/a Gorman Drywall, et al., Third-Party Defendants)", "name_abbreviation": "Vicencio v. Lincoln-Way Builders, Inc.", "decision_date": "2002-03-14", "docket_number": "No. 3\u201401\u20140338", "first_page": "439", "last_page": "444", "citations": [ { "type": "official", "cite": "328 Ill. App. 3d 439" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "572 N.E.2d 1119", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1122" } ], "opinion_index": 0 }, { "cite": "213 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2606819 ], "year": 1991, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/213/0591-01" ] }, { "cite": "478 N.E.2d 1132", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "1138" } ], "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 348", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3528231 ], "year": 1985, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0348-01" ] }, { "cite": "720 N.E.2d 1131", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "1134" }, { "page": "1135" } ], "opinion_index": 0 }, { "cite": "308 Ill. App. 3d 1076", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261335 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "1080" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/1076-01" ] }, { "cite": "721 N.E.2d 614", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "308 Ill. App. 3d 789", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261416 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0789-01" ] }, { "cite": "750 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "1250" }, { "page": "1250" } ], "opinion_index": 0 }, { "cite": "322 Ill. App. 3d 861", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126410 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "866" }, { "page": "866" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0861-01" ] }, { "cite": "748 N.E.2d 327", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "329" }, { "page": "333" }, { "page": "331" } ], "opinion_index": 0 }, { "cite": "321 Ill. App. 3d 440", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132483 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "442" }, { "page": "445" }, { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0440-01" ] }, { "cite": "597 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 1011", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5202927 ], "year": 1992, "pin_cites": [ { "page": "1013" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/1011-01" ] }, { "cite": "441 N.E.2d 318", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "320" }, { "page": "322" }, { "page": "320" } ], "opinion_index": 0 }, { "cite": "92 Ill. 2d 157", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3097891 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "162" }, { "page": "165-66" }, { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0157-01" ] } ], "analysis": { "cardinality": 545, "char_count": 10736, "ocr_confidence": 0.768, "pagerank": { "raw": 6.209811994104169e-08, "percentile": 0.38439596285343275 }, "sha256": "c43d89e64170dc71f392c8cc80f0d01d9d045ebc825594553e83df8778858df9", "simhash": "1:a26d969cdf460452", "word_count": 1740 }, "last_updated": "2023-07-14T17:11:21.532369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NICHOLAS VICENCIO, Plaintiff-Appellee, v. LINCOLN-WAY BUILDERS, INC., Defendant-Appellant and Third-Party Plaintiff (Weidner\u2019s Depot of Mokena, Ltd., d/b/a Gorman Drywall, et al., Third-Party Defendants)." ], "opinions": [ { "text": "PRESIDING JUSTICE LYTTON\ndelivered the opinion of the court:\nDefendant, Lincoln-Way Builders, appeals the trial court\u2019s award of various trial fees to plaintiff, Nicholas Vicencio. We affirm in part and reverse in part.\nPlaintiff sued defendant for injuries sustained through defendant\u2019s negligence. During trial, plaintiff presented the testimony of his treating physician, Dr. Preston Wolin, by videotaped evidence deposition because Wolin was not available to testify at trial due to his professional schedule. Plaintiff also required the services of a Spanish interpreter during his own testimony because he does not speak English. Finally, Melvin Weidner, one of plaintiffs witnesses, failed to show up at trial. Defendant subsequently took Weidner\u2019s evidence deposition and presented it during its case in chief.\nAfter a jury verdict in bis favor, plaintiff filed a motion for costs. Defendant agreed to all costs except:\nDr. Preston Wolin (trial testimony) $2,400.00\nCourt Reporter (Wolin\u2019s deposition transcript) 921.06\nVideographer (record) 766.50\nVideographer (playback) 630.00\nSpanish Interpreter 428.80\nMelvin Weidner (trial subpoena fee) 22.80.\nAfter a hearing, the trial court found that the \u201ccontested costs were necessary and integral to the presentation of Plaintiffs case to the jury\u201d and ordered defendant to reimburse plaintiff.\nI. Dr. Wolin\u2019s Fee\nDefendant contends that the fees paid by plaintiff to his treating physician for the time spent giving his evidence deposition so that the physician would not be required to appear at trial was an ordinary expense of litigation and not reimbursable under Rule 208 (134 Ill. 2d R. 208). Plaintiff responds that because Dr. Wolin was his treating physician, and the only person who could testify regarding plaintiffs injuries and treatment, his testimony was indispensable at trial. We agree.\nAny costs charged to the losing party in a lawsuit must be authorized specifically by statute. Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 162, 441 N.E.2d 318, 320 (1982). However, \u201cthe General Assembly may grant the power in general terms to the courts, which may in turn make rules or orders under which costs may be taxed and imposed.\u201d Gebelein v. Blumfield, 231 Ill. App. 3d 1011, 1013, 597 N.E.2d 265, 267 (1992).\nSection 5 \u2014 108 of the Code of Civil Procedure (735 ILCS 5/5\u2014 108 (West 2000)) allows for costs to be taxed against defendants, but does not specifically identify which expenses are allowed to be taxed as costs. Woolverton v. McCracken, 321 Ill. App. 3d 440, 442, 748 N.E.2d 327, 329 (2001). However, Supreme Court Rule 208 provides that deposition costs \u201cmay in the discretion of the trial court be taxed as costs.\u201d 134 Ill. 2d R. 208(d).\nIn Galowich, our supreme court further defined the costs covered by Rule 208, stating:\n\u201c[N]either the Illinois costs statute nor the supreme court rules provide a specific definition of costs. However, the term has acquired a fixed and technical meaning in the law. Costs are allowances in the nature of incidental damages awarded by law to reimburse the prevailing party, to some extent at least, for the expenses necessarily incurred in the assertion of his rights in court. [Citations.] We therefore interpret Rule 208(d) as authorizing the trial court to tax as costs, in its discretion; the expenses only of those depositions necessarily used at trial.\u201d Galowich, 92 Ill. 2d at 165-66, 441 N.E.2d at 322.\nSince Galowich, the Second and Fifth Districts have addressed the trial court\u2019s authority to tax as costs the expenses of a treating physician\u2019s evidence deposition used at trial in lieu of live testimony with differing results.\nIn Irwin v. McMillan, 322 Ill. App. 3d 861, 750 N.E.2d 1246 (2001), the Second District reasoned that the plaintiffs treating physician was not \u201cindispensable\u201d because he was not \u201cunavailable\u201d by reason of death or disappearance. Irwin, 322 Ill. App. 3d at 866, 750 N.E.2d at 1250. Therefore, his evidence deposition was not \u201cnecessarily used at trial\u201d under Supreme Court Rule 208. Irwin, 322 Ill. App. 3d at 866, 750 N.E.2d at 1250; see also Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 721 N.E.2d 614 (2nd Dist. 1999).\nThe Fifth District, in Perkins v. Harris, 308 Ill. App. 3d 1076, 720 N.E.2d 1131 (1999), and Woolverton v. McCracken, 321 Ill. App. 3d 440, 748 N.E.2d 327 (2001), found that whether an evidence deposition was \u201cnecessarily used at trial\u201d is a matter within the discretion of the trial court. The court reasoned that the treating physicians were the only witnesses able to testify regarding the plaintiffs\u2019 injuries and treatments. The evidence depositions were necessarily incurred by plaintiffs in asserting their rights in court and were not the ordinary expenses of litigation. The court concluded that because the physicians\u2019 demanding schedules did not allow them to testify, the depositions were \u201cnecessarily used at trial\u201d under Rule 208. Perkins, 308 Ill. App. 3d at 1080, 720 N.E.2d at 1134; Woolverton, 321 Ill. App. 3d at 445, 748 N.E.2d at 333.\nWe recognize that the Irwin court was concerned with the possibility of abuse of Rule 208 by a plaintiff attempting to shift deposition costs to a defendant by merely alleging that the witness is unavailable to testify due to a demanding work schedule. While we share this concern, we find the Second District\u2019s interpretation of Rule 208 too rigid and its results too harsh. Therefore, we agree with the Fifth District that Rule 208 grants the trial court the discretion to tax costs to a defendant based on the individual circumstances of each case. We trust that trial courts will exercise their discretion under Rule 208 wisely.\nA trial court\u2019s award of costs and fees is a discretionary matter and will not be disturbed on review absent a clear abuse of discretion. Perlman v. Time, Inc., 133 Ill. App. 3d 348, 355, 478 N.E.2d 1132, 1138 (1985). An abuse of discretion is found if the trial court \u201c \u2018acted arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted.\u2019 [Citation.]\u201d Zurich Insurance Co. v. Raymark Industries, Inc., 213 Ill. App. 3d 591, 595, 572 N.E.2d 1119, 1122 (1991). The role of a reviewing court is not to substitute its judgment for that of the trial court. Woolverton, 321 Ill. App. 3d at 445, 748 N.E.2d at 331.\nIn the case before us, the trial court determined that plaintiff was entitled to be reimbursed for the costs connected with taking Dr. Wolin\u2019s evidence deposition, which was used at the trial. These expenses were necessarily incurred by plaintiff in asserting his rights in court and were not the ordinary expenses of litigation. Additionally, Dr. Wolin\u2019s practice is located in Chicago. Forcing him to testify at trial would not only require absence from his practice for the time he would testify, but would also require substantial travel time. Under the circumstances, we cannot say that the trial judge erred in awarding as costs the fees charged by plaintiffs treating physician for giving an evidence deposition used at trial.\nII. Court Reporter and Videographer Fees\nDefendant also argues that the trial court erred by awarding plaintiff the costs of videotaping Dr. Wolin\u2019s deposition. Citing Supreme Court Rule 206 (134 Ill. 2d R. 206(f)(5)), defendant contends that plaintiff is required to pay the costs of videotaping the deposition because the deposition was videotaped at plaintiffs insistence.\nWe find that the trial court did not abuse its discretion in taxing the costs of the court reporter and videographer because the deposition itself was \u201cnecessarily used at trial.\u201d Rule 206 states that \u201c[t]he party at whose instance the videotaped deposition is taken shall pay the charges of the videotape operator *** and *** charges for filing the videotape of an evidence deposition.\u201d 134 Ill. 2d R. 206. However, the rule is silent on whether that party may be reimbursed for those charges.\nAs discussed above, Rule 208 authorizes the trial court to award costs to the prevailing party for depositions \u201cnecessarily used at trial.\u201d The costs of videotaping, editing, and transcribing an evidence deposition fall within Rule 208 \u201cbecause Supreme Court Rule 208 provides for fees associated with videotaping and transcription and, as a result, provides for the trial court to tax both to defendant.\u201d Perkins, 308 Ill. App. 3d at 1081, 720 N.E.2d at 1135.\nThe trial court did not abuse its discretion in awarding costs to plaintiff for the fees associated with the court reporter and videogra-pher. The deposition was necessarily used at trial and the costs of recording and transcribing of the deposition are allowed to be taxed to the prevailing party under Supreme Court Rule 208(d).\nIII. Interpreter and Trial Subpoena Fees\nDefendant\u2019s final contentions are that the trial court abused its discretion by awarding as costs the fee for the services of plaintiffs interpreter during trial and the trial subpoena fee paid to plaintiffs witness, Melvin Wiedner. It argues that the court lacked the statutory authority required to assess those expenses as costs because they are the ordinary expenses of litigation.\nAs noted above, the allowance of costs for ordinary expenses and the burden of litigation is entirely dependent upon statutory authorization. Galowich, 92 Ill. 2d at 162, 441 N.E.2d at 320. While section 5 \u2014 108 of the Code of Civil Procedure (735 ILCS 5/5 \u2014 108 (West 2000)) does not specifically define the word \u201ccosts,\u201d section 1 \u2014 105 of the Code (735 ILCS 5/1 \u2014 105 (West 2000)) allows the supreme court to provide for the assessment of costs by rule. Plaintiff has cited no statute or rule that would allow us to shift the costs of the interpreter or the subpoena fees to defendant. Without such authority, the court was powerless to grant relief. The trial court abused its discretion in requiring the cost of plaintiffs interpreter and Weidner\u2019s subpoena fee to be paid by the defendant.\nThe judgment of the circuit court of Will County is affirmed in part and reversed in part.\nAffirmed in part and reversed in part; cause remanded.\nBRESLIN and HOLDRIDGE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE LYTTON" } ], "attorneys": [ "Lloyd E. Dyer, Jr. (argued), of Mountcastle, Kelly & Dyer, of Wheaton, for appellant.", "David H. Lucas and Katherine E Purevich-Cardenas (argued), both of Law Offices of Lucas & Cardenas, of Chicago, for appellee." ], "corrections": "", "head_matter": "NICHOLAS VICENCIO, Plaintiff-Appellee, v. LINCOLN-WAY BUILDERS, INC., Defendant-Appellant and Third-Party Plaintiff (Weidner\u2019s Depot of Mokena, Ltd., d/b/a Gorman Drywall, et al., Third-Party Defendants).\nThird District\nNo. 3\u201401\u20140338\nOpinion filed March 14, 2002.\nLloyd E. Dyer, Jr. (argued), of Mountcastle, Kelly & Dyer, of Wheaton, for appellant.\nDavid H. Lucas and Katherine E Purevich-Cardenas (argued), both of Law Offices of Lucas & Cardenas, of Chicago, for appellee." }, "file_name": "0439-01", "first_page_order": 457, "last_page_order": 462 }