Appeal by defendants from judgment entered 15 September 2003
and an order entered 23 January 2004 by Judge Catherine C. Eagles
in Guilford County Superior Court. Heard in the Court of Appeals
13 April 2005.
Wyatt Early Harris Wheeler, L.L.P., by Stanley F. Hammer, for
Gregory A. Wendling for defendant-appellants.
Margaret Talley Wooten (Wooten) and Steven Edward Wooten
(Steven) (collectively defendants) appeal from a judgment
entered 15 September 2003 consistent with a jury verdict finding
defendants negligent, and from an order entered 23 January 2004
awarding costs and attorneys' fees. For the reasons stated within,
we reverse the trial court's award of attorneys' fees and costs to
plaintiffs pursuant to Rule 37 and award of certain costs pursuant
to N.C. Gen. Stat. . 6-20, and affirm as to all other issues. The evidence presented tended to show that on 6 November 1999,
Ray Allen Oakes (Oakes) was descending the exit ramp from
Interstate 85 (I-85) to South Main Street in Graham, North
Carolina. Oakes entered the intersection on a green light,
attempting to turn north. Wooten, traveling south on South Main
Street, failed to stop for the red light at the I-85/Main Street
intersection and collided with Oakes's vehicle. Wooten stated that
she had looked down and did not realize the light was red until
shortly before she reached the intersection.
Oakes was injured in the collision and was taken to Alamance
Regional Medical Center for treatment. He underwent various
treatments for back injuries over the next year, culminating in
Oakes brought a negligence action against Wooten and her
husband, the owner of the car, in January 2002. Oakes's wife,
Wendy Oakes (Wendy) (collectively plaintiffs), also joined as
a plaintiff in an action for loss of consortium. The jury found
defendants negligent and awarded Oakes $119,000.00 in damages, but
did not award consortium damages to Wendy. Defendants' motion for
a new trial was denied, and plaintiffs were awarded costs and
attorneys' fees pursuant to N.C. Gen. Stat. §§ 7A-314, 6-20, and
1A-1, Rules 36 and 37(c). Defendants appeal.
Defendants contend the trial court erred in failing to
instruct the jury as to Oakes's contributory negligence, and in a
related assignment of error, contend the trial court erred in granting a motion for directed verdict as to Oakes's contributory
negligence and denying defendants' motion for judgment
notwithstanding the verdict on the trial court's prior directed
verdict. We disagree.
 We first address defendants' contentions as to the trial
court's failure to instruct the jury as to contributory negligence.
In determining the sufficiency of the evidence to justify the
submission of an issue of contributory negligence to the jury, the
court 'must consider the evidence in the light most favorable to
the defendant and disregard that which is favorable to the
plaintiff.' Kummer v. Lowry
, 165 N.C. App. 261, 263, 598 S.E.2d
223, 225 (2004) (citation omitted). 'If different inferences may
be drawn from the evidence on the issue of contributory negligence,
some favorable to the plaintiff and others to the defendant, it is
a case for the jury to determine.' Id
. at 263-64, 598 S.E.2d at
225 (citations omitted).
Our Supreme Court has addressed the issue of a driver's duty
when approaching a traffic signal.
The duty of a driver at a street intersection
to maintain a lookout and to exercise
reasonable care under the circumstances is not
relieved by the presence of electrically
controlled traffic signals, which are intended
to facilitate traffic and to render crossing
less dangerous. He cannot go forward blindly
even in reliance on traffic signals.
Bass v. Lee
, 255 N.C. 73, 78-79, 120 S.E.2d 570, 573 (1961)
(quoting Hyder v. Battery Co., Inc.
, 242 N.C. 553, 557, 89 S.E.2d
124, 128 (1955)). A green or 'go' signal is not a command to go,but a qualified permission to proceed lawfully and carefully in the
direction indicated. Bass
, 255 N.C. at 79, 120 S.E.2d at 573. In
Cicogna v. Holder
, 345 N.C. 488, 489, 480 S.E.2d 636, 637 (1997),
the Supreme Court considered the quantum of evidence necessary to
submit contributory negligence to the jury when the plaintiff's
vehicle is struck by another vehicle while the plaintiff is
proceeding through an intersection pursuant to a green light. Id
held that as no evidence was presented of anything that
would have put the plaintiff on notice that the defendant would not
obey the traffic light, contributory negligence should not have
been submitted to the jury, as the plaintiff was not required to
anticipate the defendant's negligence. Id
. at 489-90, 480 S.E.2d
Here, Oakes's testimony showed that he had the green light
when entering the intersection, that he surveyed the intersection
before entering, and that he did not see defendant's car. Oakes's
brother, Lynn Oakes (Lynn), a passenger in the vehicle, also
testified that the light was green when Oakes entered the
intersection. Lynn stated that he saw Wooten's vehicle on his
blind side after they had entered the intersection, and began to
call out a warning to [w]atch out[,] but was unable to complete
the warning because Wooten had already struck Oakes. Wooten
testified that she was driving at approximately twenty-five miles
per hour, that her attention was drawn away from the road and that
when she looked again at the light, it was red. Wooten further
testified that prior to the collision, no part of her vehiclecrossed the stop line, and that only the front end of her car
crossed the stop line into the intersection when she came into
contact with Oakes's vehicle.
When taken in the light most favorable to defendants, the
evidence fails to show that anything would have put Oakes on notice
that Wooten would not obey the traffic light in time to avoid the
collision. As in Cignoga
, Oakes testified that he surveyed the
intersection and did not see Wooten. Wooten testified that she was
not traveling at a high rate of speed and did not cross the stop
line until Oakes had already turned in front of her. Lynn
testified that he attempted to shout a warning but was unable to
complete it before the impact. Even when viewed in the light most
favorable to defendants, there is no evidence that Oakes failed to
keep a proper lookout and exercise reasonable care in entering the
intersection. Therefore, the trial court did not err in refusing
the jury instructions.
We next address defendants' related contention that the trial
court erred in granting a directed verdict as to contributory
negligence. The standard of review of directed verdict is whether
the evidence, taken in the light most favorable to the non-moving
party, is sufficient as a matter of law to be submitted to the
jury. Di Frega v. Pugliese
, 164 N.C. App. 499, 505, 596 S.E.2d
456, 461 (2004). The test for determining whether a motion for a
directed verdict is supported by the evidence is the same as that
for ruling on a motion for judgment notwithstanding the verdict.
Stilwell v. General Ry. Servs., Inc.
, 167 N.C. App. 291, 294, 605S.E.2d 500, 502 (2004). Thus, where a defendant pleads an
affirmative defense such as contributory negligence, 'a motion for
directed verdict is properly granted against the defendant where
the defendant fails to present more than a scintilla of evidence in
support of each element of his defense.' Whisnant v. Herrera
N.C. App. 719, 722, 603 S.E.2d 847, 850 (2004) (citation omitted).
Our Supreme Court has previously stated that 'two elements,
at least, are necessary to constitute contributory negligence[.]'
, 166 N.C. App. at 722, 603 S.E.2d at 850 (quoting
Construction Co. v. R.R.
, 184 N.C. 179, 180, 113 S.E. 672, 673
(1922)). The defendant must demonstrate: (1) a want of due care
on the part of the plaintiff; and (2) a proximate connection
between the plaintiff's negligence and the injury. Id
. at 722,
603 S.E.2d at 850.
As discussed supra
, even when viewed in the light most
favorable to defendant, the evidence fails to show a want of due
care on the part of plaintiff. See Cicogna
, 345 N.C. at 489-90,
480 S.E.2d at 637. Therefore, the trial court did not err in
granting the directed verdict finding no contributory negligence,
or in denying defendants' motion for judgment notwithstanding the
 Defendants next contend the trial court erred in giving a
peremptory instruction to the jury as to Wooten's negligence in
failing to stop for the red light. We disagree. In Williams v. Davis
, 157 N.C. App. 696, 580 S.E.2d 85 (2003),
the defendants contended the plaintiff had violated N.C. Gen. Stat.
§ 20-158(b)(1), as the statute required the plaintiff to stop and
yield to oncoming traffic, and therefore, was contributorily
negligent. The trial court granted defendants' motion based on
contributory negligence as argued by defendants. A violation of
N.C.G.S. § 20-158(b)(1) is not negligence or contributory
negligence per se
; however, it 'may be considered with the other
facts in the case in determining whether a party was guilty of
negligence or contributory negligence.' Williams v. Davis
N.C. App. at 701, 580 S.E.2d at 88-89 (quoting N.C. Gen. Stat. §
20-158(d) (2001)). Thus, a violation of N.C.G.S. § 20-158(b)(1)
is 'evidence of negligence; and when the proximate cause of injury,
is sufficient to support a verdict[.]' Williams
, 157 N.C. App. at
701, 580 S.E.2d at 89 (citations omitted). When all the evidence
offered suffices, if true, to establish the controverted fact, the
Court may give a peremptory instruction -- that is, if the jury
finds the facts to be as all the evidence tends to show, it will
answer the inquiry in an indicated manner. Dobson v. Honeycutt
78 N.C. App. 709, 712, 338 S.E.2d 605, 607 (1986).
Here, the evidence was uncontested that Wooten entered the
intersection while the light was red. The trial court instructed
the jury that:
The Motor Vehicle Law provides that when
a stoplight at an intersection is emitting a
steady red light, that is, it's red, the
operator of the vehicle facing the red light
shall not enter the intersection. All theevidence is that Ms. Wooten did enter the
intersection when the light was red, and if
you find that she did enter the intersection
when the light was red, as all the evidence
shows, then it would be your duty to find that
she was negligent.
The trial court then further instructed the jury that they
must find that such negligence was the proximate cause of Oakes's
injuries in order to find defendants liable. See Lutz Industries,
Inc. v. Dixie Home Stores
, 242 N.C. 332, 341, 88 S.E.2d 333, 339
(1955) (stating that to make out a case of actionable negligence,
both a showing of statutory violation and the additional essential
element of proximate cause are required). As the evidence here was
undisputed as to Wooten's violation of the statute, the trial court
did not err in giving a peremptory instruction to the jury as to
Wooten's negligence in failing to stop for the red light when the
trial court further instructed the jury that they must find such
negligence was the proximate cause of plaintiff's injury.
 Defendants next contend the trial court erred in denying
a jury instruction on the issue of mitigation of damages. We
'The rule in North Carolina is that an injured plaintiff,
whether his case be tort or contract, must exercise reasonable care
and diligence to avoid or lessen the consequences of the
defendant's wrong. If he fails to do so, for any part of the loss
incident to such failure, no recovery can be had.' United
Laboratories, Inc. v. Kuykendall
, 102 N.C. App. 484, 489, 403S.E.2d 104, 108 (1991) (citations omitted). 'This rule is known
as the doctrine of avoidable consequences or the duty to minimize
damages. Failure to minimize damages does not bar the remedy; it
goes only to the amount of damages recoverable.' Radford v.
, 63 N.C. App. 501, 502, 305 S.E.2d 64, 65 (1983) (citations
omitted). When a defendant submits a request for specific
instructions which are correct and are supported by the evidence,
the trial court commits reversible error in failing to submit the
substance of those instructions to the jury. Alston v. Monk
N.C. App. 59, 66, 373 S.E.2d 463, 468 (1988).
Here, the evidence does not support the requested instruction
of mitigation of damages. Defendants contend that Oakes failed to
mitigate damages in not seeking any type of employment while out
recovering from his back injury and subsequent surgery. However,
Oakes's physician testified that he did not want Oakes working
while rehabilitating after the surgery. Therefore, defendants
present no evidence that Oakes failed to mitigate damages by not
seeking employment due to his doctor's instruction during his
rehabilitation. Defendants further contend Oakes failed to
mitigate damages by continuing chiropractic care, although it
resulted in increased pain and potentially resulted in a need for
surgery. However, evidence presented at trial showed only that
Oakes continued in chiropractic care at his treating physician's
instruction, and that the chiropractic care resulted in no physical
change to Oakes's herniation. As defendants failed to meet their
burden of proof that Oakes did not act reasonably in minimizing hisloss, the trial court properly did not instruct the jury as to
mitigation of damages.
 Defendants next contend the trial court erred in denying
a request for jury instructions on the issue of nominal damages.
North Carolina Pattern Jury Instruction 106.00 states that if
an issue has been decided in favor of plaintiff,
the plaintiff is entitled to recover nominal
damages even without proof of actual damages.
Nominal damages consist of some trivial amount
such as one dollar in recognition of a
technical injury to the plaintiff.
The plaintiff may also be entitled to
recover actual damages. On this issue the
burden of proof is on the plaintiff. This
means that the plaintiff must prove, by the
greater weight of the evidence, the amount of
actual damages proximately caused by the
negligence of the defendant.
N.C.P.I.--Civ. 106.00 (motor veh. vol. 2004) (footnote omitted).
'The burden is on the appellant not only to show error but to
show that if the error had not occurred there is a reasonable
probability that the result of the trial would have been favorable
to him.' Gregory v. Lynch
, 271 N.C. 198, 203, 155 S.E.2d 488, 492
(1967) (citation omitted). Here, although the trial court did not
instruct the jury as to nominal damages, it properly instructed the
jury as to the burden of proof in awarding actual damages. The
jury awarded damages to Oakes in the amount of $119,000.00. As the
jury found by the greater weight of the evidence that Oakes
suffered actual damages, defendants show no harm in the trialcourt's failure to instruct on nominal damages. Therefore, there
was no prejudicial error in the trial court's failure to instruct.
 Defendants next contend the trial court erred in denying
a jury instruction on circumstantial evidence. We disagree.
It is the duty of the trial court to charge the law
applicable to the substantive features of the case arising on the
evidence, without special requests[.] Faeber v. E. C. T. Corp.
16 N.C. App. 429, 430, 192 S.E.2d 1, 2 (1972). Here, the trial
court noted that all the evidence in the case was from three
eyewitnesses and that there was no circumstantial evidence.
Defendants correctly cite authority that, [w]hen a party
appropriately tenders a written request for a special instruction
which is correct in itself and supported by the evidence, the
failure of the trial judge to give the instruction, at least in
substance, constitutes reversible error. Millis Construction Co.
v. Fairfield Sapphire Valley
, 86 N.C. App. 506, 509-10, 358 S.E.2d
566, 568 (1987). Here, however, defendants did not make a written
request for a special instruction and further make no argument as
to how the trial court's failure to offer an instruction as to
circumstantial evidence prejudiced defendants. The assignment of
error is without merit.
 Defendants next contend the trial court erred in
improperly charging the jury on peculiar susceptibility. Asdefendants failed to object to this instruction, this issue is not
properly before the Court for review.
A party may not assign as error any portion of the jury
charge or omission therefrom unless he objects thereto before the
jury retires to consider its verdict, stating distinctly that to
which he objects and the grounds of his objection[.] N.C.R. App.
Defendants here failed to object to the trial court's
instruction, which was substantially the same as the North Carolina
Pattern Jury Instruction for Peculiar Susceptibility. This issue
is therefore not properly preserved for appellate review.
 In related assignments of error, defendants next contend
the trial court erred in concluding that defendants have no
reasonable grounds for denial of admissions, and abused its
discretion in ordering defendants to pay plaintiffs' costs and
attorneys' fees pursuant to N.C. Gen. Stat. . 1A-1, Rule 37 (2003).
The trial court sanctioned defendants because of their failure
to admit under Rule 37(c), which provides:
If a party fails to admit the genuineness of
any document or the truth of any matter as
requested under Rule 36, and if the party
requesting the admissions thereafter proves
the genuineness of the document or the truth
of the matter, he may apply to the court for
an order requiring the other party to pay him
the reasonable expenses incurred in making
that proof, including reasonable attorney's
fees. The court shall make the order unless
it finds that (i) the request was heldobjectionable pursuant to Rule 36(a), or (ii)
the admissions sought was of no substantial
importance, or (iii) the party failing to
admit had reasonable ground to believe that he
might prevail on the matter, or (iv) there was
other good reason for the failure to admit.
N.C. Gen. Stat. . 1A-1, Rule 37(c). The Official Commentary to
this rule explains that this provision emphasizes that the true
test under Rule 37(c) is not whether a party prevailed at trial but
whether he acted reasonably in believing that he might prevail.
N.C. Gen. Stat. § 1A-1, Rule 37 official commentary. Rule 36
requires that an admission
shall specifically deny the matter or set
forth in detail the reasons why the answering
party cannot truthfully admit or deny the
matter. A denial shall fairly meet the
substance of the requested admission, and when
good faith requires that a party qualify his
answer or deny only a part of the matter of
which an admission is requested, he shall
specify so much of it as is true and qualify
or deny the remainder.
N.C. Gen. Stat. § 1A-1, Rule 36(a) (2003).
The choice of sanctions under Rule 37 is within the trial
court's discretion and will not be overturned on appeal absent a
showing of abuse of that discretion. Brooks v. Giesey
, 106 N.C.
App. 586, 592, 418 S.E.2d 236, 239 (1992). Rule 37 allowing the
trial court to impose sanctions is flexible, and a 'broad
discretion must be given to the trial judge with regard to
sanctions.' Telegraph Co. v. Griffin
, 39 N.C. App. 721, 727, 251
S.E.2d 885, 888 (1979) (citations omitted). The party wishing to
avoid court-imposed sanctions for non-compliance with discovery
requests bears the burden of showing the non-compliance wasjustified. Williams v. N.C. Dep't of Env't & Natural Res.,
N.C. App. 86, 92, 601 S.E.2d 231, 235 (2004).
, this Court held that the trial court had abused
its discretion in awarding attorney's fees and cost pursuant to
N.C. Gen. Stat. . 1A-1, Rule 37(c), because the agency had
reasonable grounds to believe they might prevail on the matters
they were requested to admit. Williams
, 166 N.C. App. at 93, 601
S.E.2d at 235-36. Williams
held that in determining whether
reasonable grounds existed, [u]nder Rule 37(c), the court's
inquiry must focus on what the [defendant] knew at the time they
answered the request for admissions. Id
. at 93, 601 S.E.2d at
Here, in the Rule 37 Order, the trial judge listed a number of
requests for admissions that defendants had denied and that
plaintiffs had proven during the trial. These included Wooten's
failure to admit her violation of N.C. Gen. Stat. § 20-158(b)(2),
failure to keep a proper lookout, failure to use due care, and
failure to maintain proper control. The Order also listed Wooten's
failure to admit full fault for the collision, lack of contributory
negligence, that Wooten was acting as an agent for her husband, and
that serious injury occurred to Oakes as a result of the accident.
The Order finally listed Wooten's denial that she was the sole
proximate cause of Oakes's herniated disc at L4-5 and neurological
symptoms, the exact amount of Oakes's medical bills, and that Oakes
had suffered a permanent diminution of wage-earning capacity.
Following the list of denied admissions, the Order contained adetailed list of the expenses incurred in establishing the matters
denied. The trial judge found no reasonable grounds for defendants
to deny the matters set forth in the Request for Admissions and
granted plaintiffs' motion for attorneys' fees and costs.
A review of the record shows that defendants made a number of
qualified responses to plaintiffs' Requests for Admissions on 14
May 2002, prior to any discovery or depositions by either party,
and before medical care providers and treating physicians were
identified by plaintiffs in this matter. A review of the qualified
responses in Wooten's Answer to Request for Admissions shows that
Wooten admitted that she was the wife of Steven, and that she was
driving a car registered to him with his permission. Wooten also
stated in response to the request regarding the seriousness of
Oakes's injury that Oakes had told her at the scene of the accident
that he was not seriously hurt. Wooten denied the question
regarding the specifics as to Oakes's medical conditions on the
grounds that she had no medical training. Finally, Wooten stated:
[A]s I approached the intersection and went
under the bridge and last checked the light it
was green and then I believe I looked down to
my radio although I am not certain for a few
seconds and when I looked back up near the
intersection, the light had turned red. I
applied my brakes as hard as possible and
attempted to stop prior to reaching the
crossing of the intersection although I was
unable to stop completely and I slid somewhat
out into the intersection and contact was made
with Mr. Oakes' vehicle.
At the time the responses were made, when discovery had not
yet begun, Wooten lacked knowledge to admit matters regardingOakes's medical condition and contributory negligence. Wooten's
qualified denial as to her actions in failing to stop for the light
was consistent with the evidence presented at trial and the trial
court's findings of proof as to defendant's negligence. As
, our statutes state that:
No failure to stop as required by the
provisions of [§ 20-158(d)] shall be
considered negligence or contributory
negligence per se in any action at law for
injury to person or property, but the facts
relating to such failure to stop may be
considered with the other facts in the case in
determining whether a party was guilty of
negligence or contributory negligence.
N.C. Gen. Stat. § 20-158(d) (2003). As a violation of the statute
is not negligence per se
, defendant had reasonable grounds to
believe she might prevail in the negligence actions, based on her
qualified denials. Defendants, therefore, met their burden of
proof in showing that at the time for request of admission,
reasonable grounds existed to believe that they might prevail on
some matters denied, and good reasons, i.e. defendants' lack of
knowledge, existed for the failure to admit other issues at that
time. Accordingly, we find the trial judge abused her discretion
in awarding plaintiffs' attorneys' fees and costs pursuant to N.C.
Gen. Stat. . 1A-1, Rule 37(c). We, therefore, do not address
defendants' related assignment of error that the trial court erred
in its findings as to expert witness testimony concerning causation
in awarding Rule 37 damages.
 In their next assignment of error, defendants contend that
the trial court committed reversible error in taxing certain costs
against defendants pursuant to N.C. Gen. Stat. .. 6-20 and 7A-305.
'Where an appeal presents [a] question of statutory
interpretation, full review is appropriate, and [we review] a trial
court's conclusions of law . . . de novo
.' Department of Transp.
v. Charlotte Area Mfd. Housing, Inc.
, 160 N.C. App. 461, 464, 586
S.E.2d 780, 782 (2003) (citations omitted). [C]osts may be
allowed or not, in the discretion of the court, unless otherwise
provided by law. N.C. Gen. Stat. . 6-20 (2003). In City of
Charlotte v. McNeely
, 281 N.C. 684, 190 S.E.2d 179 (1972), the
North Carolina Supreme Court indicated that costs are 'creatures
of legislation, and without this they do not exist.' Id
. at 691,
190 S.E.2d at 185 (citations omitted). Additionally, enumerated
costs and expenses unnecessarily incurred by the prevailing party
will not be taxed against the losing party. Id.
In Charlotte Area Mfd. Housing
, 160 N.C. App. at 469-70, 586
S.E.2d at 785, this Court held that costs, as used by the
legislature in N.C. Gen. Stat. . 6-20, are limited to those items
expressly enumerated in N.C. Gen. Stat. . 7A-305(d). Id
this Court held that 'reasonable and necessary'
expenses previously permitted under the common law were no longer
at 470, 586 S.E.2d at 785. In Handex of Carolinas
v. County of Haywood
, 168 N.C. App. 1, 13, 607 S.E.2d 25, 32
(2005), this Court held that the trial court lacked discretion toaward costs not otherwise enumerated in the list set out in N.C.
Gen. Stat. . 7A-305(d). Id
. N.C. Gen. Stat. . 7A-305 states:
(d) The following expenses, when
incurred, are also assessable or recoverable,
as the case may be:
(1) Witness fees, as provided by law.
(2) Jail fees, as provided by law.
(3) Counsel fees, as provided by law.
(4) Expense of service of process by
certified mail and by publication.
(5) Costs on appeal to the superior
court, or to the appellate division,
as the case may be, of the original
transcript of testimony, if any,
insofar as essential to the appeal.
(6) Fees for personal service and civil
process and other sheriff's fees, as
provided by law. . . .
(7) Fees of guardians ad litem,
referees, receivers, commissioners,
surveyors, arbitrators, appraisers,
and other similar court appointees,
as provided by law. . . .
(8) Fees of interpreters, when
authorized and approved by the
(9) Premiums for surety bonds for
prosecution, as authorized by G.S.
N.C. Gen. Stat. . 7A-305(d) (2003).
This Court has upheld the awarding of witness fees for expert
witnesses under subpoena, mediation fees, and service of process
, 168 N.C. App. at 13, 607 S.E.2d at 32-33. However,
this Court has found that the trial court erred in granting arequest for deposition fees, because there was no statutory
authority for the award of deposition costs. Id.
at 13, 607 S.E.2d
at 33. Additionally, this Court has found error in an award of
costs for photocopies, telephone calls, photographs, trial diagrams
and exhibits, and medical reports and records, as those expenses
are not authorized as costs pursuant to N.C. Gen. Stat. .7A-305.
Overton v. Purvis
, 162 N.C. App. 241, 249-50, 591 S.E.2d 18, 24-25
Here, the trial court erred in awarding numerous costs not
authorized by N.C. Gen. Stat. . 7A-305 for medical reports,
deposition costs, filing fees, travel costs, trial exhibits, color
copies, and photocopies. We find statutory authority, however, for
the following awards: mediation fees pursuant to N.C. Gen. Stat.
. 7A-305(d)(7); expert witness fees pursuant to N.C. Gen. Stat.
.7A-305(d)(1); and service of process fees pursuant to N.C. Gen.
Stat. . 7A-305(d)(6).
 In their related assignment of error, defendants also
contend that the trial court abused its discretion in taxing
against defendants certain expert fees pursuant to N.C. Gen. Stat.
.. 6-20 and 7A-305. We disagree.
N.C. Gen. Stat. . 7A-305(d)(1) states that witness fees are
assessable as costs as provided by law. Id
. This refers to the
provisions of N.C. Gen. Stat. § 7A-314 which provides for witness
fees where the witness is under subpoena. Lord v. Customized
Consulting Specialty, Inc.,
164 N.C. App. 730, 735, 596 S.E.2d 891,
895 (2004). N.C. Gen. Stat. . 7A-314(d) (2003) provides that anexpert witness shall receive such compensation and allowances as
the court . . . , in its discretion, may authorize. Id.
Here, the trial court awarded $4,502.00 in expert witness fees
to Dr. Elsner for medical testimony with travel time, and $700.00
in expert witness fees to Dr. Meylor for preparation and testimony.
Both expert witnesses were subpoenaed to testify and provided
testimony on Oakes's condition. The trial court went on to find
that the testimony of both expert witnesses was clear, strong, and
convincing and reasonably necessary in this case[.] In light of
these facts, we find no abuse of discretion by the trial court in
awarding expert witness fees.
We conclude that the trial court did not err in instructing
the jury and that there was no prejudicial error in the trial
court's failure to give certain requested instructions. We also
find the trial court did not err in granting a motion for directed
verdict as to plaintiff's contributory negligence. We further
conclude the trial court did not err in awarding certain expert
witness fees pursuant to N.C. Gen. Stat. .. 6-20 and 7A-305.
However, as we find an abuse of discretion in the trial court's
award of attorneys' fees and costs under Rule 37, and a lack of
statutory authority for the award of certain costs pursuant to N.C.
Gen. Stat. . 6-20, we reverse those awards of attorneys' fees and
costs to plaintiffs, and remand for entry of a new order as to
costs consistent with this opinion.
Affirmed in part, reversed and remanded in part.
Judges McCULLOUGH and LEVINSON concur.
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