Appellants-plaintiffs Michael and Becky Missi ("the Missis") appeal the trial court's entry awarding $132.56 in costs to appellees-defendants Donald Gene Sprigler ("Sprigler"), CCC Custom Kitchens, Inc. d/b/a Cox Cabinet Company, and Stephen T. Cox, Inc. a/k/a Cox Cabinet Co., a/k/a Omega Cabinets (collectively, "Cox"). We affirm in part and reverse and remand in part.
The Missis raise two issues for review, which we restate as follows:
I. whether the trial court erred in awarding Cox and Sprigler certain litigation expenses as "costs" pursuant
II. whether the trial court erred in denying the Missis attorney fees pursuant to the Indiana Deceptive Sales Act.
Facts and Procedural History
In 1997, Sprigler sold the Missis kitchen and bath cabinets for a custom home they were building. On October 15, 1998, the Missis sued Cox and Sprigler, alleging breach of warranty, fraud, breach of contract, and deceptive acts relating to the sale of the cabinets. On September 10, 1999, pursuant to Indiana Trial Rule 68, the defendants tendered a $5,000 offer of judgment, which the Missis rejected. After a trial conducted from October 5, 1999, through October 8, 1999, a jury returned a $2,500 verdict in favor of the Missis as against Sprigler, but found in favor of Cox. On October 12, 1999, the Missis filed a motion for the award of attorney fees and out-of-pocket expenses pursuant to Indiana Code Section 24-5-0.5-4(a).
On October 25, 1999, Cox and Sprigler filed a motion for the award of costs pursuant to Indiana Trial Rules 54(D) and 68. On November 15, 1999, Cox and Sprigler filed an affidavit of attorney fees and an affidavit of costs and expenses, claiming they incurred $1,568.71 in such expenses after they tendered their offer of judgment.
3. Attorney fees are not considered as costs pursuant to Ind. [Trial Rule] 54(D) or Ind. [Trial Rule] 68. Deposition costs are not included.
Discussion and Decision
Standard of Review
Where, as here, the trial court enters findings and conclusions sua sponte, we apply the following standard of review:
Bronnenberg v. Estate of Bronnenberg, 709 N.E.2d 330, 333 (Ind.Ct.App.1999).
I. Award of Costs under Indiana Trial Rule 68
The Missis claim that the trial court erred in taxing litigation expenses as a recoverable cost under Indiana Trial Rule 68. We agree.
Indiana Trial Rule 68 governs offers of judgment and provides in pertinent part as follows:
(Emphasis added.) This court has held that the term "costs" has the same meaning in Indiana Trial Rule 68 as in Indiana Trial Rule 54(D):
Ingram v. Key, 594 N.E.2d 477, 479 (Ind. Ct.App.1992), aff'd, 600 N.E.2d 95 (Ind. 1992). Indiana Trial Rule 54(D) provides in relevant part, "Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs in accordance with any other provision of law...."
Federal Rule of Civil Procedure 68, which is practically identical to its Indiana counterpart, has been described as "among the most enigmatic of the Federal Rules of Civil Procedure because it offers imprecise guidance regarding which post-offer costs become the responsibility of the plaintiff." Thomas v. Caudill, 150 F.R.D. 147, 148 (N.D.Ind.1993) (citing Crossman v. Marcoccio, 806 F.2d 329, 331 (1st Cir.1986)). "`Rule 68 does not come with a definition of costs; rather, it incorporates the definition of costs that otherwise applies to the case.'" 150 F.R.D. at 149 (citing Marek v.
In support of their argument that the award of litigation expenses should be affirmed, Cox and Sprigler cite Thomas, wherein the district court held that the defendant whose offer of judgment had been rejected could recover for photocopy expenses, subpoena and mileage fees, and deposition fees. 150 F.R.D. at 150. The Thomas court relied in part upon Justice Brennan's dissent in Marek, in which he opined that "`costs' as that term is used in the Federal Rules should be interpreted uniformly in accordance with the definition of costs set forth in [28 U.S.C.] § 1920." 150 F.R.D. at 148 (citing Marek, 473 U.S. at 18, 105 S.Ct. 3012, (Brennan, J., dissenting)). 28 U.S.C. § 1920 enumerates among recoverable costs the "[f]ees and disbursements for printing and witnesses," and "[f]ees for exemplification and copies of papers necessarily obtained for use in the case."
"A court may award costs only when they are expressly authorized by statute." Board of County Com'rs of Vanderburgh County v. Farris, 168 Ind.App. 309, 312, 342 N.E.2d 642, 644 (1976). Courts have no inherent power to assess or award costs to a prevailing party. Linder v. Ticor Title Ins. Co. of California, 647 N.E.2d 37, 40 (Ind.Ct.App.1995). The right to recover costs is a matter left entirely to the legislature. Id. We have held in an eminent domain action that the term "costs" does not include expert witness fees, trial preparation expenses, mail, travel, telephone, and photographic fees, State v. Holder, 260 Ind. 336, 338, 295 N.E.2d 799, 801 (1973).
Here, the trial court determined the Missis' costs totaled $234.95, although their counsel characterized those costs in his attorney fees affidavit as "out-of-pocket expenses which are not recoverable costs." Likewise, the trial court awarded to Cox and Sprigler $367.51, which included "Westlaw charges," "[m]ountings [and] printing costs for exhibits," "[c]amera[,] film [and] developing costs for pictures," "[p]rinting costs for exhibits," "[c]opying expenses for trial," and a "[s]pecial [p]rocess [s]ervice for subpoenas." The court then subtracted the Missis' costs from Cox and Sprigler's costs, for a net award to Cox and Sprigler of $132.56. Given the foregoing analogous case law and the traditionally narrow interpretation of "costs" by Indiana state courts, we are unpersuaded by Cox and Sprigler's citation to Thomas v. Caudill, and we find the court's calculation to be in error. The costs awarded by the trial court to both parties are not the sort of costs contemplated by Trial Rule 54(D) or authorized by Indiana Code Section 34-52-1-1(a). We therefore reverse on this issue and remand to the trial court for further proceedings consistent with this opinion.
II. Denial of Attorney Fees under Indiana Code Section 24-5-0.5-4
The Missis also challenge the trial court's denial of attorney fees. In support of their contention, they cite to the Indiana Deceptive Sales Act,
(Emphasis added.) By the statute's plain language, the award or denial of attorney fees under Indiana Code Section 24-5-0.5-4 is discretionary. See, e.g., Haltom v. Bruner and Meis, Inc., 680 N.E.2d 6, 9 (Ind.Ct.App.1997) ("The term `may' in a statute ordinarily indicates a permissive condition and discretion.") The Missis have not cited to us, nor has our own research revealed, any authority to the contrary. "A trial court has discretion to grant or deny an attorney fee petition, and we cannot reverse the trial court's decision absent a showing that the fee award was an abuse of discretion." In re Guardianship of Shaffer, 711 N.E.2d 37, 41 (Ind.Ct. App.1999). The Missis have failed to demonstrate that the trial court abused its discretion in this case.
Affirmed in part, reversed in part, and remanded.
DARDEN, J., and MATTINGLY, J., concur.
(a) Westlaw charges $ 46.32 (b) Mountings/printing costs for exhibits from Budget Print $ 85.05 (c) Camera/film/developing costs for pictures $ 48.21 (d) Printing costs for exhibits from Kinko's $ 17.93 (e) Copying expenses for trial $ 65.00 (f) Special Process Service for subpoenas $ 105.00 (g) Deposition/court reporter $ 386.20 (h) Cabinet exhibit construction $ 500.00 (i) Delivery/pick up of cabinet $ 150.00 (j) Base cabinet leg exhibit $ 165.00 TOTAL $1,568.71