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Lemer v. Campbell12/1/1999
Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Robert W. Holte, Judge.
AFFIRMED.
Opinion of the Court by Neumann, Justice.
[ ] Loren Leroy Campbell appeals from a judgment against him for $12,269.88 for costs and disbursements in favor of Marla Lemer in Lemer's negligence action against Campbell. Lemer cross-appeals from the jury verdict and judgment. We conclude the trial court did not abuse its discretion in awarding costs and disbursements against Campbell, and Lemer failed to establish any basis for reversing the judgment. We affirm.
I.
[ ] While westbound on Main Avenue in Bismarck on February 28, 1992, Lemer stopped her vehicle to make a left turn into a restaurant parking lot. Lemer's vehicle was struck from behind by a westbound vehicle operated by Campbell. Alleging she suffered disabling injuries, medical and rehabilitative expenses, pain and suffering, and loss of productive time and avocation, Lemer sued Campbell for damages. The jury returned a special verdict finding Campbell was negligent in the operation of his vehicle, and his negligence was a proximate cause of Lemer's injuries. The jury awarded Lemer damages of $3,000 for past medical expenses, and awarded no other damages.
[ ] Campbell moved for an order 1) "off-setting and removing the past medical expense award"; 2) for judgment in his favor; and 3) awarding him taxable costs and disbursements. The trial court found "since Plaintiff Lemer's no-fault insurer had already paid approximately $25,000 of her past medical expenses, any amount up to $25,000 awarded to plaintiff by the jury should be off-set and deducted from a final judgment to be entered against defendant." The court ruled Lemer was the prevailing party for awarding costs and disbursements. The judgment awarded Lemer no damages and awarded her costs and disbursements of $12,269.88 under N.D.C.C. §§ 28-26-02 and 28-26-06.
II.
[ ] Campbell contends the trial court erred in concluding Lemer was the prevailing party and, therefore, entitled to recover costs and disbursements. Alternatively, Campbell contends the trial court should have determined both Lemer and Campbell were prevailing parties, and neither was entitled to recover costs and disbursements.
[ ] Under N.D.R.Civ.P. 54(e), costs and disbursements must be allowed as provided by statute. Section 28-26-02, N.D.C.C., provides for the recovery of certain costs. Section 28-26-06, N.D.C.C., provides "the clerk shall tax as a part of the judgment in favor of the prevailing party his necessary disbursements" for legal fees for publication, witnesses, referees, and other officers, for transcripts, for necessary expenses of taking depositions and procuring evidence, for the reasonable fees of expert witnesses, and for the actual expenses of expert witnesses.
[ ] A trial court's decision on fees and costs under N.D.C.C. § 28-26-06 will not be overturned on appeal unless an abuse of discretion is shown. Patterson v. Hutchens, 529 N.W.2d 561, 567 (N.D. 1995). A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Lacher v. Anderson, 526 N.W.2d 108, 112 (N.D. 1994).
[ ] "Costs ordinarily are assessed in favor of winners and against losers." State ex rel. Holloway v. First Am. Bank & Trust Co., 248 N.W.2d 859, 862 (N.D. 1977). If opposing litigants each prevail on some issues, there may not be a single prevailing party against whom disbursements may be taxed. Earthworks, Inc. v. Sehn, 553 N.W.2d 490, 496 (N.D. 1996); Liebelt v. Saby, 279 N.W.2d 881, 888 (N.D. 1979).
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