Norfolk Redevelopment & Housing Authority v. Ignacio

By Judge Everett A. Martin, Jr. I have received letters regarding the assessment of the fees of the expert witness and stenographer as costs in this action. The allowance of costs is provided solely by statute. Scott v. Doughty, 130 Va. 523, 107 S.E. 729 (1921). Code of Virginia, § 25-46.32 provides in pertinent part, “Except as otherwise provided in this chapter, all costs of the proceeding in the trial court which are fixed by statute shall be taxed against the petitioner.” Neither letter made any reference to any other statute in Chapter 1.1 of Title 25 that would authorize the allowance of these fees as costs; therefore, I assume my only authority to assess them is found in Chapter 3 of Title 14. Under the last sentence of Code § 14.1-190, the compensation to be paid to an expert witness compelled to attend and testify shall be paid by the party in whose behalf he testifies. See also, VEPCO v. Harris, 10 Va. Cir. 489 (1971). This sentence was added to the statute in 1966, after the decision in Ryan v. Davis, 201 Va. 79, 109 S.E.2d 409 (1959). In the absence of statutory authority, the court may not assess the stenographer’s fee against the petitioner. Wilson v. Wiggin, 77 W. Va. 1, 87 S.E. 92 (1915). Two courts have held that Code § 14.1-198 gives the courts the discretion to allow a stenographer’s fee as costs. Herrick v. Quality Home Builders, Inc., 6 Va. Cir. 467 (1970); Tico, Inc. v. Zenz, 17 Va. Cir. 58 (1989). That section authorizes the court to assess as costs “every further sum which the court may deem reasonable and direct to be taxed ... [504] for any other matter.” However, as previously mentioned, Code § 25-46.32 includes the phrase “fixed by statute” not “allowed by statute.” The latter statute specifically governs this action and thus restricts whatever general authority the court has under Code § 14.1-198. The fees of a stenographer are not fixed by statute. The respondent’s motion for costs is denied.