In all civil actions or proceedings of any kind, the party prevailing shall recover his costs against the other party unless the court orders otherwise for good cause shown. In all cases triable in the supreme court in the first instance, or removed to the supreme court or court of appeals upon appeal or writ of error, the taxation of costs shall be in the discretion of the reviewing court except in those cases in which a different provision is made by law.
History: Kearny Code, Costs, § 1; C.L. 1865, ch. 45, § 1; C.L. 1884, § 2202; C.L. 1897, § 3148; Code 1915, § 4282; Laws 1917, ch. 45, § 1; C.S. 1929, § 105-1301; Laws 1933, ch. 16, § 1; 1953 Comp., § 21-10-27; Laws 1966, ch. 28, § 58.
ANNOTATIONSCross references. — For costs on appeal from probate or magistrate court, see 39-2-5 and 39-2-6 NMSA 1978.
For witness fees taxed as costs, see 39-2-9 NMSA 1978.
For taxing costs of additional witnesses, see 39-2-10 NMSA 1978.
For judgment costs, see Rule 1-054 NMRA.
Compiler's notes. — Laws 1966, ch. 28, § 58, recompiled this section. It had been omitted by the compilers of the 1941 Compilation as superseded by the Supreme Court Rules.
Rule 12-403 NMRA provides that the party prevailing shall recover his costs unless otherwise provided by rule or unless the court directs otherwise, and that costs may be apportioned. The allowable costs are specified. Absent objection or a court order to the contrary, the clerk is to tax the costs in question.
Discretion of court. — The assessment of costs is entrusted to the sound discretion of the court, and absent a showing of an abuse of discretion, a reviewing court will not interfere with such discretion. In re Adoption of Stailey, 1994-NMCA-015, 117 N.M. 199, 870 P.2d 161.
Reducing award of costs based on financial disparity between parties. — The district court abused its discretion when, without evidence, it reduced a cost award to defendant because of the financial disparity between the parties, plaintiff's perceived inability to pay all of defendant's costs, and the chilling effect that a large cost award would have on future litigation under the Motor Vehicle Dealers Franchising Act. Key v. Chrysler Motors Corp., 2000-NMSC-010, 128 N.M. 739, 998 P.2d 575.
Expenses not costs. — Expenses for photocopies, telephone, facsimile, courier, mileage, travel, and per diem, and a large expense paid for obtaining plaintiff's own medical records, were not properly recoverable as costs. Gillingham v. Reliable Chevrolet, 1998-NMCA-143, 126 N.M. 30, 966 P.2d 197, overruled on other grounds by Fernandez v. Espanola Pub. Sch. Dist., 2005-NMSC-026, 138 N.M. 283, 119 P.3d 163.
Computer-assisted legal research. — Computer-assisted legal research expenses are not allowable as costs. Key v. Chrysler Motors Corp., 2000-NMSC-010, 128 N.M. 739, 998 P.2d 575.
Costs allowed in case of fraudulent claim. — In an action to quiet title to property, where a claim was based upon a document expressly found to have been forged by defendant, the trial court's order denying an award of costs for plaintiff's expert witness and imposition of sanctions against defendant was reversed and remanded for reconsideration. Martinez v. Martinez, 1997-NMCA-096, 123 N.M. 816, 945 P.2d 1034.
Costs need not be awarded. — Where the district court imposed the sanction of dismissal against plaintiff for discovery violations, it did not abuse its discretion in viewing the assessment of costs as an additional sanction and, thus, grounds for refusing to award defendant its costs. Reed v. Furr's Supermarkets, Inc., 2000-NMCA-091, 129 N.M. 639, 11 P.3d 603, cert. denied, 129 N.M. 599, 11 P.3d 563.
Costs may be recovered against state. — The legislature, in this section, gives express authority, without exception, to the recovery of costs against any losing party, including the state. Kirby v. N.M. State Hwy. Dep't, 1982-NMCA-014, 97 N.M. 692, 643 P.2d 256, cert. denied, 98 N.M. 51, 644 P.2d 1040.
Decision to award costs on appeal is within discretion of supreme court and is final. Spingola v. Spingola, 1979-NMSC-079, 93 N.M. 598, 603 P.2d 708.
Physicians appearing as expert witnesses. — Fees paid to physicians who testified as expert witnesses at trial or served as consulting experts to plaintiff were properly awarded as costs against defendant. Gillingham v. Reliable Chevrolet, 1998-NMCA-143, 126 N.M. 30, 966 P.2d 197, overruled by Fernandez v. Espanola Pub. Sch. Dist., 2005-NMSC-026, 138 N.M. 283, 119 P.3d 163.
Expert witnesses not testifying because hearing rescheduled. — The prevailing party may not recover fees for expert witnesses who did not testify because the hearing was rescheduled through no fault of either party. Jimenez v. Found. Reserve Ins. Co., 1988-NMSC-052, 107 N.M. 322, 757 P.2d 792.
Action under Children's Code. — A specific Children's Code provision for assessing costs, former 32-1-41 NMSA 1978, controlled, in a child abuse and neglect proceeding, over this general statute. State ex rel. Human Servs. Dep't v. Judy H., 1987-NMCA-045, 105 N.M. 678, 735 P.2d 1184, cert. denied, 105 N.M. 644, 735 P.2d 1150.
Effect on finality of proceeding for costs — The pendency of a proceeding solely to determine the amount of costs does not render an otherwise final judgment nonfinal. Schleft v. Bd. of Educ., 1988-NMCA-010, 107 N.M. 56, 752 P.2d 248, cert. denied, 109 N.M 232, 784 P.2d 419.
Award against prevailing party. — The court cannot order a prevailing party to share, or shoulder, all or part of the costs of an unsuccessful litigant, unless the costs are intended to serve as a sanction and the court clearly expresses its reasons for imposing such sanction. Absent a finding of bad faith or misconduct by a prevailing party during litigation, neither Rule 1-054E NMRA nor this section authorizes a court to award costs against a prevailing party. In re Adoption of Stailey, 1994-NMCA-015, 117 N.M. 199, 870 P.2d 161.
Costs awarded to party supporting valuation determined by court. — Where central issue is valuation of plaintiff's interest in an LLC, and where trial court entered judgment for plaintiff on the amount defendant agreed was the value of plaintiff's interest rather than on higher amount claimed by plaintiff, defendant was the prevailing party for purpose of awarding costs to defendant. Mayeux v. Winder, 2006-NMCA-028, 139 N.M. 235, 131 P.3d 85.
Mediation costs not recoverable. — Where mediation is conducted pursuant to agreement of the parties, not by order of the court, the expense of the mediator's fee should not be a recoverable cost, absent an enforceable agreement permitting such award. Smith v. Village of Ruidoso, 1999-NMCA-151, 128 N.M. 470, 994 P.2d 50.
Law reviews. — For article, "Settlement Without Sacrifice: The Recovery of Expert Witness Fees as Costs Under New Mexico's Rule 1-068," see 38 N.M.L. Rev. 655 (2008).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 5 Am. Jur. 2d Appellate Review § 909 et seq.
Attorney's fees in products liability suits, 53 A.L.R.4th 414.
Attorney's personal liability for expenses incurred in relation to services for client, 66 A.L.R.4th 256.
Recoverability of cost of computerized legal research under 28 USCS § 1920 or Rule 54(d), Federal Rules of Civil Procedure, 80 A.L.R. Fed. 168.
20 C.J.S. Costs § 157 et seq.