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Date: 12-17-2013
Case Style: Merlon Everett v. McBee Heating and Air Conditioning Company, Inc.
Case Number: CJ-2010-6608
Judge: Dana Kuehn
Court: District Court, Tulsa County, Oklahoma
Plaintiff's Attorney:
Defendant's Attorney: Thomas Edward Mullen
Description: Merlon Everett sued McBee Heating and Air Conditioning Company, Inc. on an auto negligence theory.
The Pre-Trial Order approved by the Court provided, in part:
* * *
On October 20, 2008, Brandon McBee hit the rear of an automobile in which Merlon Everett was a passenger. In the Answer, McBee Heating & Air Conditioning Company, Inc. has admitted liability, and admitted that Brandon McBee was within the course and scope of his employment at the time of the accident.
There will be conflicting evidence as to whether Merlon Everett was injured in the collision.
Plaintiff's claim was based on common law negligence.
Plaintiff claimed:
a. Past Medicals of $136,101.23
Defendant claimed that Merlon Everett was not injured in the accident on October 20, 2008.
Outcome: Judgment in favor of Plaintiff in the amount of $2,500.00.
Plaintiff filed a Motion to Tax Costs and Brief In Support claiming, in part, as follows:
The taxing of court costs, except otherwise provided by statute, rests largely in the sound discretion of the trial court, Walters v. Cowley, 1995 OK CR, 53, 902 P.2d 1109; Pierson v. Am. Nat. Bank of Shawnee, 1958 OK 11, 325 P.2d 426. The statutory recovery of costs applicable to this action provides as follows:
1. Any fees assessed by the court clerk or the clerk of the appellate court;
2. Reasonable expenses for the giving of notice, including expenses for service of summons and other judicial process and expenses for publication;
3. Statutory witness fees and reasonable expenses for service of subpoenas;
4. Costs of copying papers necessarily used at trial, limited to the amount authorized by law. If no amount is specified, costs of copying papers shall be limited to ten cents ($0.10) per page;
5. Transcripts of the trial or another proceeding that the coUrt determines are necessary to resolve the case;
6. Reasonable expenses for taking and transcribing deposition testimony, for furnishing copies to the witness and opposing counsel, and for recording deposition testimony on videotape, but not to exceed One Hundred Dollars ($100.00) per two-hour videotape, unless the court determines that a particular deposition was neither reasonable nor necessary; and
7. Any other expenses authorized by law to be collected as costs.
12 O.S. Sec 942. Taking the matters in turn, Plaintiff asserts as follows:
a. Fees of the Clerk (see Exhibit A, attached) $241.00
b. Service of Summons (see Exhibit A, attached) $65.00
c. Statutory witness fees and reasonable expenses
for service of subpoenas (see Exhibit B, attached) $2,550.24
Aaron Garrett, the only independent witness to Plaintifrs motor vehicle accident, was not a named party to the suit and therefore beyond the control of Plaintiff at the time of trial making it necessary for his appearance to be secured at trial through the use of a subpoena. Dr. Allan Fielding, the Plaintiff’s expert witness, was required to testify at trial and was paid a fee of $2,500.00 for his time.
Plaintiff submits that these expenses should be taxed as a statutory witness fee
and mileage re-imbursement accordingly
d. Costs of copying papers necessarily used at trial
(see Exhibit C, attached) $132.90
e. Transcripts of the trial $0.00
f. Reasonable expenses for taking and transcribing
deposition testimony (see Exhibit D, attached) $262.00
g. Any other expenses authorized by law to be collected
TOTAL: $3,251.14
Amount Involved and Results Obtained
Securing the judgment in favor of the Plaintiff in the amount of $2,500.00 demonstrates that complete relief was obtained.
Accordingly, there is no question that it would be appropriate for the Court to award the requested costs. Since Plaintiff has prevailed over Defendant in this action, Plaintiff is entitled to recover the monies expended on prosecuting her claims.
WHEREFORE, Plaintiff prays this Court award her costs as the prevailing party in this action, as well as interest related thereto pursuant to 12 O.S. Sec 942 and for any and all other relief the Court finds just and equitable.
WHEREFORE, premises considered, Merlon Everett prays that the Court award her Judgment consistent with her Motion, and that she receive such other and further relief as the Court deems appropriate under the circumstances.
Plaintiff's Experts:
Defendant's Experts:
Comments: