Taxation of Costs - Michigan MCR 2.625

February 9, 2022 - Categories: Legal Articles, Michigan

If you are the prevailing party (or the non-prevailing party) in a court action, and a taxation of costs is submitted to the court under MCR 2.625 generally allows certain costs to be paid back to the prevailing party:
 
"In General. Costs will be allowed to the prevailing party in an action, unless prohibited by statute or by these rules or unless the court directs otherwise, for reasons stated in writing and filed in the action."
 
However, despite that general rule, the power to tax costs is purely statutory, and the prevailing party cannot recover such expenses absent statutory authority. Elia v. Hazen, 242 Mich.App. 374, 379, 619 N.W.2d 1 (2000).

Per Beach v State Farm Mut Auto Ins Co, 216 Mich App 612, 550 NW2d 580 (1996), "[C]osts shall be allowed as a matter of course to the prevailing party. This does not mean, of course, that every expense incurred by the prevailing party in connection with the proceeding may be recovered against the opposing party. The term `costs' as used [in] MCR 2.625(A) takes its content from the statutory provisions defining what items are taxable as costs." [Beach, supra at 622, 550 N.W.2d 580, quoting 3 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed.), pp. 720-721 (emphasis added).]

Court cases are holding that unless a statute specifically states that a particular cost is taxable, then it is not taxable. There must be statutory authority for each cost.

The primary statute used for defining taxable costs is MCL 600.2405 Costs; items taxable.
Sec. 2405.

The following items may be taxed and awarded as costs unless otherwise directed:
(1) Any of the fees of officers, witnesses, or other persons mentioned in this chapter or in chapter 25, unless a contrary intention is stated.
(2) Matters specially made taxable elsewhere in the statutes or rules.
(3) The legal fees for any newspaper publication required by law.
(4) The reasonable expense of printing any required brief and appendix in the supreme court, including any brief on motion for leave to appeal.
(5) The reasonable costs of any bond required by law, including any stay of proceeding or appeal bond.
(6) Any attorney fees authorized by statute or by court rule.

Another statute that allows for costs (there are others), such as land surveys and other costs, is:

600.2421b Definitions.
Sec. 2421b.

(1) "Costs and fees" means the normal costs incurred in being a party in a civil action after an action has been filed with the court, those provided by law or court rule, and include all of the following:
(a) The reasonable and necessary expenses of expert witnesses as determined by the court.
(b) The reasonable cost of any study, analysis, engineering report, test, or project which is determined by the court to have been necessary for the preparation of a party's case.
(c) Reasonable and necessary attorney fees including those for purposes of appeal.

However, if the costs do not have a statute supporting them, then they should be rejected.

In Geurrero v Smith, 761 N.W.2d 723 (2008) 280 Mich. App. 647, the prevailing submitted 12 several items as taxable costs which were appealed. 7 of them were denied, including:

1) Investigator costs
2) expert witness costs if not qualified as a witness at trial
3) costs to enlarge exhibits
4) mileage for attorneys to and from trial
5) general "copying charges."
6) case evaluation fees
7) copying of surveillance video

The rationale for each denied cost was:

"Because no statute or court rule authorizes the taxation of general copying expenses, the trial court abused its discretion by awarding copying charges in the amount of $300 as an element of the costs taxed in this case."

The only accepted costs were:

1. Motion fees
2. Transcripts and video-taping costs related to depositions
3. Statutory attorney fees
4. Subpoena fees for witnesses
5. Expert witness fees who were qualified as witnesses at trial.

These all fall within MCL 600.2405 and other statutes that reference taxable costs.

The black-letter rule in these cases is that, for a cost to be allowed as a taxable cost, there must be a statute or court rule that specifically allows that cost. As mentioned above, there are no statutes authorizing as taxable costs the expenses of the below, and thus these costs were denied.

1) Investigator costs
2) expert witness costs if not qualified as a witness at trial
3) costs to enlarge exhibits
4) mileage for attorneys to and from trial
5) general "copying charges."
6) case evaluation fees
7) copying of surveillance video

Again, in the words of Geurrero v Smith court, when evaluating each individual cost appealed, it reasoned in each and every case, quote, ""Because no statute or court rule authorizes the taxation of [blank], the trial court abused its discretion by awarding these charges in the amount of $____as an element of the costs taxed in this case."

Therefore, in your case, there must be a specific statute authorizing as a taxable cost the expense of a each submitted cost.