IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 167

OCTOBER TERM, A.D. 2014

December 22, 2014

SONJIA WEINSTEIN and TREY 

WARREN,

Appellants

(Defendants),

v.

GARY BEACH and SUSAN BEACH, 

husband and wife,

Appellees

(Plaintiffs).

S-14-0070

Appeal from the District Court of Fremont County

The Honorable Norman E. Young, Judge

Representing Appellants:

Jason A. Neville of Williams, Porter, Day & Neville, P.C., Casper, WY.

Representing Appellees:

David B. Hooper of Hooper Law Offices, P.C., Riverton, WY.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

HILL, Justice.

[¶1] Gary and Susan Beach (Plaintiffs) filed a complaint against Sonja Weinstein and 

Trey Warren (Defendants) alleging injuries from carbon monoxide poisoning caused by 

Defendants’ failure to maintain a property they rented to Plaintiffs. Defendants made a 

W.R.C.P. 68 offer of settlement, which Plaintiffs did not accept. Following a jury verdict 

in Defendants’ favor, Defendants filed a motion for costs in the amount of $45,410.62 

pursuant to W.R.C.P. 68, W.R.C.P. 54(d), and U.R.D.C. 501. Applying U.R.D.C. 501, 

the district court entered an order awarding Defendants costs in the amount of $1,326.05. 

Defendants appeal, contending that the court erred in applying U.R.D.C. 501 to an award 

of costs under W.R.C.P. 68. We affirm.

ISSUE

[¶2] Defendants state the issue on appeal as follows:

I. Whether the district court abused its discretion by 

denying the majority of the costs requested by 

[Defendants] pursuant to Wyo. R. Civ. P. 68?

FACTS

[¶3] On August 11, 2011, Plaintiffs filed a complaint against Defendants alleging 

injuries from carbon monoxide poisoning caused by a gas stove on a property Plaintiffs 

were renting from Defendants. On August 8, 2012, Defendants made a $5,000 offer of 

settlement to Plaintiffs pursuant to W.R.C.P. 68. Plaintiffs did not accept the offer.

[¶4] The matter was tried to a jury on August 19-23, 2013, and the jury returned a 

verdict in favor of Defendants. On September 17, 2013, the district court issued a 

Judgment Upon Jury Verdict. In addition to entering judgment in favor of Defendants, 

the court ordered that “Defendants are entitled to costs pursuant to W.R.C.P. Rule 54 and 

U.R.D.C. Rule 501 and that the parties shall comply with such rules if costs are sought by 

Defendants.”

[¶5] On September 23, 2013, Defendants filed a motion and statement for costs 

pursuant to W.R.C.P. 54, W.R.C.P. 68, and U.R.D.C. 501. Through that motion, 

Defendants sought an award of costs in the amount of $45,410.62, which Defendants 

asserted were the total costs incurred subsequent to their August 8, 2012 Rule 68 offer of 

settlement. On October 7, 2013, Plaintiffs filed their objection to Defendants’ statement 

of costs and contended that the allowable costs totaled only $1,326.05.

[¶6] On December 17, 2013, the district court entered an order awarding Defendants 

costs in the amount of $1,326.05. The court agreed that Plaintiffs’ objection had 
2

accurately identified the only allowable costs, which were costs for three depositions and 

a portion of the court reporter’s fees. The court explained, footnote omitted:

Pursuant to Rule 68 of the Wyoming Rules of Civil 

Procedure, the defendants are entitled to recover their costs 

subsequent to their offer as the jury found in defendants’

favor. Rule 501 of the Uniform Rules for the District Court 

sets forth allowable costs. Without belaboring the point, the 

vast majority of the items detailed in the defendants’

$45,410.62 claim are simply not allowable costs. A

significant number are not costs at all, as that term is 

generally understood and utilized in Rule 501, but are 

personal expenses of counsel which are in no sense “costs”

related to this litigation.

[¶7] On January 10, 2014, Defendants filed their notice of appeal from the district 

court’s order awarding fees.

STANDARD OF REVIEW

[¶8] An award of costs is reviewed for an abuse of discretion. Beckwith v. Weber, 2012 

WY 62, ¶ 32, 277 P.3d 713, 721 (Wyo. 2012) (citing Wilson v. Tyrrell, 2011 WY 7, ¶ 58, 

246 P.3d 265, 281 (Wyo. 2011); Meyer v. Hatto, 2008 WY 153, ¶ 25, 198 P.3d 552, 557 

(Wyo. 2008)). “Abuse of discretion occurs when a court exceeds the bounds of reason or 

commits an error of law.” Beckwith, ¶ 54, 277 P.3d at 725 (quoting Combs v. SherryCombs, 865 P.2d 50, 55 (Wyo. 1993)). “The burden is placed upon the party who is 

attacking the trial court’s ruling to establish an abuse of discretion, and the ultimate issue 

is whether the court could reasonably conclude as it did.” Jones v. Artery, 2012 WY 63, 

¶ 8, 275 P.3d 1244, 1247 (Wyo. 2012) (quoting Nish v. Schaefer, 2006 WY 85, ¶ 6, 138 

P.3d 1134, 1137 (Wyo. 2006)).

[¶9] While the award of costs itself is reviewed for an abuse of discretion, the question 

of whether a particular cost provision applies requires construction of a court rule, which 

is a question of law that we review de novo. Stewart Title Guar. Co. v. Tilden, 2008 WY 

46, ¶ 7, 181 P.3d 94, 98 (Wyo. 2008); see also Marx v. General Revenue Corp., 668 F.3d 

1174, 1178 (10th Cir. 2011) (citations omitted) (“We review an award of costs for an 

abuse of discretion. Whether costs provisions even apply is a legal question reviewed de 

novo.”).

DISCUSSION

[¶10] Defendants challenge the district court’s award of costs on two grounds. First, 

Defendants contend that U.R.D.C. 501 does not apply to a Rule 68 award of costs and the 
3

court therefore erred in limiting Defendants’ costs to those allowed by Rule 501. Second, 

Defendants argue that if U.R.D.C. 501 does apply to a Rule 68 award of costs, the court 

abused its discretion in the manner in which it limited the award of costs to Defendants.

[¶11] In our recent decision in Graus v. OK Investments, 2014 WY 166, ___ P.3d ___ 

(Wyo. 2014), this Court held that where a party who makes an offer pursuant to W.R.C.P. 

68 prevails on that claim, that party is not entitled to costs pursuant to Rule 68 and costs 

are instead governed by W.R.C.P. 54(d). That holding resolves Defendants’ first

argument because Defendants’ costs should have been awarded pursuant to W.R.C.P. 

54(d), rather than pursuant to W.R.C.P. 68. Nonetheless, because the question of the 

applicability of U.R.D.C. 501 to a W.R.C.P. 68 award of costs is a question directly 

presented by this appeal and one that is likely to recur, we choose to address the issue 

before turning to a review of the district court’s exercise of discretion pursuant to 

U.R.D.C. 501. See State v. Mares, 2014 WY 126, ¶ 30, 355 P.3d 487, 499 (Wyo. 2014).

A. Applicability of U.R.D.C. 501 to W.R.C.P. 68 Award of Costs

[¶12] Defendants contend that when costs are awarded pursuant to W.R.C.P. 68, that 

award of costs is mandatory and U.R.D.C. 501 therefore does not apply. We find no 

support for this argument in the plain language of W.R.C.P. 68, in F.R.C.P. 68 precedent, 

or in our own Rule 68 precedent.

[¶13] W.R.C.P 68 provides in relevant part that “[i]f the judgment finally obtained by 

the offeree is not more favorable than the offer, the offeree must pay the costs incurred 

after the making of the offer. As used herein, ‘costs’ does not include attorney’s fees.” 

Defendants first argue that because Rule 68 uses mandatory language, does not 

specifically define costs, and places only one limitation on costs—that they do not 

include attorney’s fees—all other post-Rule 68 offer costs must be paid. We disagree.

[¶14] First, W.R.C.P. 68 is not unique in not internally defining the term “costs.” 

W.R.C.P. 54(d) similarly does not define the term, providing only that “costs other than 

attorney’s fees shall be allowed as of course to the prevailing party unless the court 

otherwise directs.” Nonetheless, it is clear that U.R.D.C. 501 applies to a Rule 54(d) 

award of costs. See Jones, ¶ 10, 275 P.3d at 1247-48 (review of Rule 54(d) award of 

costs and noting that Rule 501(a) details taxable costs and requirements for certified bill 

of costs).

[¶15] Additionally, while this Court has observed that Rule 68 “is mandatory in that it 

provides that the offeree ‘must’ pay costs incurred after making the offer,” we have at the 

same time recognized that a district court retains its discretion to decide which post-offer 

costs should be awarded. Duffy v. Brown, 708 P.2d 433, 440 (Wyo. 1985). For example, 

in Duffy, we reviewed the district court’s denial of an award of costs under Rule 68 and 

remanded for the court’s determination of whether the deposition costs allowed were 
4

reasonably necessary for the preparation of the case for trial, noting that “uses of the 

deposition in connection with the trial proceedings such as motions for summary 

judgment might serve to persuade the district court that the depositions were reasonably 

necessary, but it would not be required to so conclude.” Duffy, 708 P.2d at 441. This 

Court also in Duffy rejected the cost of preparing enlarged exhibits for trial, explaining, 

“We have found no authority in this state, nor have we been cited to any, for the 

proposition that the expense of preparing enlarged exhibits for trial is a taxable cost.” 

Duffy, 708 P.2d at 441; see also Crawford v. Amadio, 932 P.2d 1288, 1294-95 (Wyo. 

1997) (reviewing Rule 68 award of costs for abuse of discretion under U.R.D.C. 501).

[¶16] Our conclusion that U.R.D.C. 501 applies to a Rule 68 award of costs is further 

supported by federal precedent. Wyoming’s Rule 68 is similar in all material respects to 

its federal counterpart, F.R.C.P. 68, and this Court has long held that we will look to 

federal authority interpreting a particular rule as an aid in applying the comparable 

Wyoming rule. Bratton v. Blenkinsop (In re Bratton), 2014 WY 87, ¶ 24, 330 P.3d 248, 

253, n.6 (Wyo. 2014); see also Lamar Outdoor Adver. v. Farmers Co-Op Oil Co., 2009 

WY 112, ¶ 12, 215 P.3d 296, 301 (Wyo. 2009). Federal precedent is clear that “[t]he 

costs included in Rule 68 are no more extensive than the costs authorized under Rule 

54(d), and in each instance the cost award should be based on 28 U.S.C.A. § 1920.” 12 

Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, Federal Practice and 

Procedure § 3006 n.15 (2d ed. supp. 2014); see also Marek v. Chesny, 473 U.S. 1, 9, 105 

S.Ct. 3012, 3016 (1985) (“[T]he term ‘costs’ in Rule 68 was intended to refer to all costs 

properly awardable under the relevant substantive statute or other authority.”); Wilson v. 

Nomura Sec. Int’l, Inc., 361 F.3d 86, 89 (2nd Cir. 2004); Fegley v. Higgins, 19 F.3d 

1126, 1135 (6th Cir. 1994); Sea Coast Foods, Inc. v. Lu-Mar Lobster & Shrimp, Inc., 260 

F.3d 1054, 1060 (9th Cir. 2001) (“While Lu–Mar is of the opinion that ‘costs’ means 

anything it expended, the law is that Lu–Mar can only recover ‘costs’ properly awardable 

under the relevant substantive statute.”); Scottsdale Ins. Co. v. Tolliver, 636 F.3d 1273, 

1278 n.7 (10th Cir. 2011) (“Generally, ‘the costs which are subject to the cost-shifting 

provisions of Rule 68 are those enumerated in 28 U.S.C. § 1920, unless the substantive 

law applicable to the particular cause of action expands the general § 1920 definition.’”); 

Parkes v. Hall, 906 F.2d 658, 660 (11th Cir. 1990).

[¶17] In summary, Rule 68 does not authorize payment of all post-offer costs or 

expenses. Those costs are not allowable unless authorized by U.R.D.C. 501 or Wyo. 

Stat. Ann. § 1-14-102. The distinction between an award of costs under Rule 54(d) and 

Rule 68 is not in the district court’s discretion to determine which post-offer costs are 

proper and allowable pursuant to U.R.D.C. 501 and Wyo. Stat. Ann. § 1-14-102. The 

distinction is in the court’s discretion to deny costs altogether—the court has that 

authority under Rule 54(d), but it does not have that authority under Rule 68. Thus, 

while we recognize the mandatory nature of a Rule 68 award of costs, we hold that a 

district court nonetheless retains its discretion to determine which post-offer costs are 

proper pursuant to our governing rules and statutes.
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B. District Court’s Application of U.R.D.C. 501

[¶18] As we noted at the outset of our discussion, because Defendants were the 

prevailing party in this matter, Rule 54(d), rather than Rule 68, governs the award of their 

costs. We thus turn to the question of whether the district court abused its discretion 

under Rule 54(d) and U.R.D.C. 501 in entering its award of costs in this matter.

[¶19] Defendants argue that if U.R.D.C. 501 does govern allowable costs in this matter, 

the district court abused its discretion in denying certain of the costs requested by 

Defendants. In particular, Defendants contend that pursuant to U.R.D.C. 501, they 

should have been awarded costs for: the depositions of Trey Warren, Dr. Roberts, and Dr. 

Foley; counsel’s travel expenses for the depositions of Dr. Foley and Dr. Upton; and 

costs for filing fees and obtaining necessary records. Based on the record before this 

Court, we find no abuse of discretion in the district court’s denial of the identified costs.

1. Depositions of Roberts, Warren, and Foley

[¶20] We address first Defendants’ contention that they were entitled to costs of the 

depositions of Trey Warren, Dr. Roberts, and Dr. Foley. U.R.D.C. 501 provides as 

follows concerning the award of such costs:

(D) Costs of depositions.

(i) Costs of depositions are taxable if reasonably 

necessary for the preparation of the case for trial. A 

deposition is deemed reasonably necessary if:

I. Read to the jury as provided in Rule 32(a)(3), 

W.R.C.P.;

II. Used at trial for impeachment concerning a 

material line of testimony (impeachment on a 

collateral issue does not fall within the scope of 

this rule);

III. Necessarily, and not merely conveniently, 

used to refresh the recollection of a witness while 

on the stand; or,

IV. Was taken at the request of a nonprevailing 

party.

The foregoing are meant to provide guidelines, 

and are not exhaustive. The use of depositions for trial 
6

preparation alone does not justify the imposition of 

costs.

U.R.D.C. 501(a)(3)(D).

[¶21] A party seeking the award of discovery deposition costs carries the burden of 

showing that those costs were reasonably necessary for trial preparation, in that they met 

one of the guidelines of U.R.D.C. 501(a)(3)(D), or an equivalent rationale. Garrison v. 

CC Builders, Inc., 2008 WY 34, ¶ 45, 179 P.3d 867, 879 (Wyo. 2008); see also Wilson, 

¶ 63, 246 P.3d at 282. We have also said that “a verified bill of costs is prima facie

evidence that the items listed were necessarily expended and are properly taxable as 

costs.” Garrison, ¶ 45, 179 P.3d at 879 (citing 20 Am.Jur.2d Costs § 91 (2005)). A

verified bill of costs is not, however, treated as a prima facie evidence that items listed 

are properly taxable where the costs appear otherwise on their face. 20 Am.Jur.2d Costs

§ 91 (Cum. Supp. 2014).

[¶22] Because the vast majority of the costs claimed by Defendants were not properly 

taxable as costs under U.R.D.C. 501, as the district court found and Defendants have not 

disputed, we will not treat Defendants’ verified statement of costs as prima facie

evidence that the costs were properly taxable. Instead, Defendants must have made a 

record before the district court, and this Court, showing that the costs requested were 

reasonably necessary and proper pursuant to U.R.D.C. 501. In the absence of such a 

showing, we will find no abuse of discretion in the court’s denial of costs.

[¶23] With respect to the costs of Dr. Roberts’s deposition, Defendants cite to the trial 

transcript wherein excerpts from Dr. Roberts’s deposition were read into evidence and 

contend that the costs were allowable pursuant U.R.D.C. 501(a)(3)(D)(i)(I). Having 

reviewed the trial transcript, we find that excerpts from Dr. Roberts’s deposition were 

indeed read into evidence, and the deposition costs were thus arguably allowable. This 

Court has recognized, however, that Rule 501 “sets forth guidelines for awarding costs, 

but that those guidelines are not mandatory.” Jones v. Artery, 2012 WY 63, ¶ 10, 275 

P.3d 1244, 1248 (Wyo. 2012); Garrison, ¶ 42, 179 P.3d at 878; see also U.R.D.C. 

501(a)(4).

1

 For those provisions of Rule 501 that do not use mandatory language, “the 

 

1 We are also mindful, though, that certain provisions of Rule 501 are indeed mandatory as dictated by the 

language used in such provisions. We have explained:

The provisions of W.U.R.D.C. 501(a)(3)(D)(ii) do not contain a qualifying clause and are 

mandatory. The rule is specific in its provisions concerning the fees for depositions: 

“Reporters’ travel, per diem expenses and appearance fees will not be taxed as costs.” 

(Emphasis added.)

Gore v. Sherard, 2002 WY 114, ¶ 23, 50 P.3d 705, 712 (Wyo. 2002).
7

question whether and what costs to award is discretionary.” Jones, ¶ 10, 275 P.3d at 

1248.

[¶24] In this case, the district court, when it entered judgment in favor of Defendants, 

ordered that Defendants were entitled to an award of costs, and it ordered Defendants to 

comply with U.R.D.C. 501 in submitting any request for costs. In submitting their 

request for costs, however, Defendants made no attempt to identify the U.R.D.C. 501 

basis for their costs. Instead, Defendants submitted a page and a half chronological 

listing of the costs sought, along with approximately sixty-one pages of photocopied 

receipts and invoices. Under these circumstances, we can find no abuse of discretion in 

the district court’s denial of costs related to the deposition of Dr. Roberts.

[¶25] With respect to the deposition of Trey Warren, Defendants argue that the Rule 501 

criteria are satisfied because the deposition was used to impeach or refresh a witness’

recollection. In particular, Defendants cite to the following testimony of Mr. Warren on 

cross-examination by Plaintiffs’ counsel:

Q. Do you recall talking about the stove during 

your deposition?

A. I do.

[permission granted to approach witness]

Q. On Page 10, beginning at Line 10, I said, 

“What did you do in response to that red tag in Exhibit 3 

being placed on the stove?” Do you want to read your 

response?

A. Line 12. "Specifically, we took the stove to 

the dump and threw it out. And then I don't think it was 

much longer after that when Gary moved out and the place 

just sat idle for some time.

[¶26] In their motion for costs, Defendants again provided no explanation to the district 

court as to how Trey Warren’s deposition was reasonably necessary for the preparation of 

the case for trial. For this reason alone, we find no abuse of discretion in the court's 

denial of costs related to Mr. Warren’s deposition. Moreover, we are not persuaded, 

based on Defendants’ reference to the above-quoted passage, that the cost of the 

deposition would have qualified as an allowable cost pursuant to U.R.D.C. 

501(a)(3)(D)(i)(II) or (III). The rule requires more than that a deposition was used for

impeachment or to refresh a witness’ recollection. Rule 501(a)(3)(D)(i)(II) requires a 

showing that the deposition was used “for impeachment concerning a material line of 

testimony,” and (III) requires a showing that the deposition was “[n]ecessarily, and not 

merely conveniently, used to refresh the recollection of a witness.” In their argument on 

appeal, Defendants cite to the rule with no explanation as to how the quoted testimony,

which was elicited by Plaintiffs' counsel, not defense counsel, was a) impeachment 
8

testimony, b) concerned a material line of testimony, or c) was necessarily used to refresh 

a witness’ recollection. For this additional reason, we find no abuse of discretion in the 

district court’s denial of costs for this deposition.

[¶27] With respect to the deposition of Dr. Foley, Defendants argue the costs were 

allowable because although Dr. Foley ultimately was able to testify in person, his 

deposition was originally taken as a trial deposition. This again is a cost for which 

Defendants provided no basis to the district court for how the deposition was reasonably 

necessary for preparation of the case for trial. And again, for this reason alone, we find 

no abuse of discretion in the court’s denial of costs related to this deposition. Further, 

Defendants have cited no authority for the proposition that a deposition originally taken 

as a trial deposition but ultimately not used as a trial deposition meets the guidelines of 

U.R.D.C. 501 or is otherwise an allowable cost. For this additional reason, we find no 

abuse of discretion in the district court’s denial of costs for this deposition.

2. Counsel’s Travel Expenses for Depositions of Foley and Upton

[¶28] Defendants contend the district court abused its discretion in denying counsel’s

travel expenses for taking the depositions of Dr. Foley and Dr. Upton because both 

depositions were taken as trial depositions. This argument ignores one of the mandatory 

provisions of U.R.D.C. 501. Rule 501 specifies that “[f]ees and expenses of counsel for 

traveling to and attending depositions are not taxable as costs.” U.R.D.C. 

501(a)(3)(D)(iii); see also Gore, ¶ 23, 50 P.3d at 712 (explaining mandatory nature of 

Rule 501 provisions that do not contain qualifying language).

3. Costs of Filing Fees and Obtaining Records

[¶29] Defendants do not cite to the precise costs that they contend should have been 

awarded as filing fees and “obtaining necessary records.” Their motion for costs, 

however, identifies two fax filing fees of $2.00 each and two items apparently relating to 

obtaining copies of documents, one for $100.05, and the other for $50.00. With respect 

to the $4.00 in filing fees, these were again arguably allowable costs, but given 

Defendants’ failure to identify the costs for the district court along with a Rule 501 basis 

for their award, we find no abuse of discretion in the court’s denial of the costs. 

Defendants’ application for costs relating to obtaining records suffers the same defect. 

Moreover, Defendants have not explained how the costs relating to those records are 

allowable under Rule 501, which limits duplicating costs to those “necessarily incurred 

for documents admitted into evidence” and bars duplication costs “for documents for 

counsel’s own use.” U.R.D.C. 501(a)(3)(E). For this additional reason, we find no abuse 

of discretion in the court's denial of these costs.
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CONCLUSION

[¶30] We hold that an award of costs pursuant to W.R.C.P. 68 is governed by U.R.D.C. 

501 and Wyo. Stat. Ann. § 1-14-102. The district court did not abuse its exercise of 

discretion in its award of costs pursuant to Rule 54(d) and U.R.D.C. 501. Affirmed.