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Key v. Chrysler Motors Corporation12/29/1998
t court. See ) ("Arguments of counsel . . . are not evidence."). However, Chrysler never specifically argued to the trial court that it needed a factual record regarding the chilling effect of large cost awards under the Act. See ) (to preserve argument for appeal "it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court"). Moreover, we question whether the district court needed an evidentiary record to support its common-sense observation that extremely large cost awards may discourage car dealers from seeking relief under the Act. Cf. ) (upholding trial court's findings and Conclusions regarding chilling effect attorney fee cap would have on ability of workers to secure legal representation for workers' compensation cases). Under the circumstances, we do not believe the district court was compelled to either completely deny or completely award all of Chrysler's costs. In our view, the district court properly exercised its discretion when it decided to partially reduce the cost award in this case because of the financial disparity between the parties, Key's perceived inability to pay all of Chrylser's costs, and the chilling effect that a large cost award would have on future litigation under the Act.
II. Was the Fee of Chrysler's Expert Witness Reasonable and Necessary?
{14} In addition to asking for the total denial of Chrysler's cost bill, Key argues that this Court should substantially reduce the amount that the district court allowed for Chrysler's expert witness, Herb Walter, CPA, of Price Waterhouse. In particular, Key contends that the expert witness fee that was allowed is unreasonable because it was not limited to the time actually spent by the expert in preparing for trial, attending trial, and testifying at trial and deposition. See American Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 389 (Colo. 1994) (en banc) (cost of expert witness fees may be taxed for time actually spent in court and in preparing for trial). However, we do not believe the limitation urged by Key has support in the statute that authorizes the award of expert witness fees as costs.
{15} NMSA 1978, Section 38-6-4(B) (1983), provides that "a reasonable fee to compensate the witness for the time required in preparation or investigation prior to the giving of the witness's testimony" may be taxed as costs. In addition to the time Mr. Walter spent actually preparing for and testifying at trial, Chrysler presented testimony to show that Mr. Walter spent additional time analyzing and investigating the reports prepared by Key's expert witness on the issue of damages. The testimony submitted by Chrysler suggested that Mr. Walter's fee was reasonable and necessary because his work prior to trial was instrumental in rebutting Key's multi-million dollar claim for damages, and Chrysler credited Mr. Walter's work with limiting the judgment that Key obtained at trial to only $300,000. In light of this testimony, we cannot say that the district court abused its discretion in ruling that Mr. Walter's expert witness fee was reasonable and necessary. See ) (where expert's testimony was based largely on survey, expense of survey properly allowed as cost under Section 38-6-4(B) as time expended in preparation and investigation prior to trial).
{16} We recognize that Key also believes the amount of the fee was excessive, in part, because it exceeded the value of Key's entire business. However, as discussed above, the value of Mr. Walter's services appears more reasonable when viewed in light of the effect that his work may have had on the issue of damages. Thus, although Key questions the reasonableness of Mr. Walter's fee because it excee
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