Fernandez v. Espanola Public School District

1 Petitioners-Appellants Eric E. Fernandez and Veronica R. Fernandez, personal representatives for the estate of Leon A. Fernandez, entered into a settlement agreement with Respondents-Appellees Espanola Public School District and the Board of Education for the Espanola Public School District for a wrongful death action. Appellants filed a cost bill with the district court that included expert witness fees. The trial court denied these fees, finding that it did not have the discretion to award expert witness fees as costs because none of the expert witnesses testified by deposition or at trial. Appellants appealed to the Court of Appeals, and the Court of Appeals, by unanimous opinion, affirmed the trial court. Fernandez v. Espanola Pub. Sch. Dist., 2004-NMCA-068, 135 N.M. 677, 92 P.3d 689. This Court granted certiorari. We conclude that NMSA 1978, § 38-6-4(B) (1983) does not authorize the trial court to award expert witness fees as costs when the expert witness does not testify by deposition or at trial. Thus, we affirm the Court of Appeals and the trial court.