Today, April 15th, is of course tax day. This prompted thoughts about an experience I had when an opposing counsel moved to tax costs after a single Court of Appeals’ judge denied my motion to dismiss an appeal.
What? I planned to pursue the motion to dismiss with the full panel. What happened if I ultimately won? Would that wipe out an award of costs?
A little research confirmed that the motion was premature, and that Rule 222, SCACR, sandwiches strict time limits on motions to tax costs.
The motion is premature until the appeal is over.
Rule 222(a) provides when the motion can first be made. Costs are taxed when “the appeal is dismissed,” the “judgment is affirmed,” the “judgment is reversed,” “an appeal is affirmed or reversed in part,” or when the an appeal “is vacated.” These terms require finality before costs are taxed.
The subsection on the motion’s timing bolsters this view. Under Rule 222(d) and (e), the motion shall be filed and served within 15 days of the remittitur, with the cost award added to the remittitur. These provisions show that the remittitur must precede the motion to tax costs, and it does not exist until the appeal is over. Rule 221(b), SCACR.
Older case law similarly holds that costs should not be taxed on a case’s first appeal until after the case’s second appeal fully resolved the case. Black v. B.B. Kirkland Seed Co., 163 S.C. 222, 161 S.E.2d 489 (1931).
After I pointed this out to my opposing counsel, he agreed that his motion was premature and withdrew the motion until the appeal was over.
The motion is untimely if not made within 15 days of remittitur.
Again, Rule 222(d), SCACR, requires that a motion to tax costs shall be made within 15 days of the Court issuing the remittitur. The Court will likely deny the motion summarily if untimely.
What is taxable? How to Request?
Rule 222(d) requires a formal motion to tax costs, and that the motion attach a form attesting to the costs incurred. The form helpfully lays out the various items of taxable costs, including filing fees, copy and printing costs, and an attorneys fee set at $1000. Under “other” on the form, you should consider adding the costs of any supersedeas bonds. Other items are likely not taxable.
Does anyone have any war stories about taxing costs? Though ordinarily automatic, I have had some requests for costs denied without explanation. Anything similar happen to you? Please leave a reply or reach me at www.attorneyroberthill.com.