How to access the above link?
Costs--trial expenses-deposition costs--costs for obtaining medical records--mediation costs- -expert witness fees_-trial exhibit fees
The trial court's order in a negligence case ordering plaintiff to reimburse defendants for
trial expenses in the amount of $31,082.87 was proper in part and erroneous in part, and the case
is remanded with instructions to modify the award of costs, because: (1) the award of deposition
costs of $4,685.23 was proper since they are within the category of common law costs
permissible under N.C.G.S. § 6-20 prior to 1983; (2) the award of costs for obtaining medical
records in the amount of $2,153.31 was erroneous since medical records are not among the costs
enumerated in N.C.G.S. § 7A-305(d) and our courts have not heretofore recognized the cost of
obtaining medical records as an expense taxable to a party under N.C.G.S. § 6-20; (3) the award
of mediation costs for the fee of the mediator was proper since it was authorized under N.C.G.S.
§ 7A-305(d)(7), although ordering plaintiff to pay the cost of the lunch defendants voluntarily
provided during the conference totaling $100.97 was improper; (4) the award of costs for three
expert witnesses who were brought in to testify on the same issue, although one did not testify,
was erroneous in part when N.C.G.S. § 7A-314(e) prohibits the award of costs for a third expert
witness subpoenaed to prove a single material fact, and thus, $6,762.50 for the third witness's
expenses in this case is reversed; (5) the award of expert witness fees in the amount of $1,350 for
an economist who attended the trial pursuant to subpoena and served as a consultant but never
testified was improper, as well as costs for another expert in the amount of $2,250 for reviewing
records and consulting with defense counsel, since there is no statutory authority for awarding
costs for case review, research, estimation of discounted present values, revision of report, and
consultation; and (6) the award of costs in the amount of $1,835.03 for trial exhibit fees was
erroneous since it is not enumerated in N.C.G.S. § 7A-305(d) and there was no common law
authority for the assessment of costs for these fees prior to 1983.
Maxwell, Freeman & Bowman, P.A., by James B. Maxwell, for
Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Mark E. Anderson and Tobias S. Hampson, for defendants-appellees.
Plaintiff appeals a judgment of the trial court ordering plaintiff to pay the cost of defendants' trial expenses. For the reasons stated herein, we affirm the trial court's order in part and reverse in part.
The factual and procedural history of this case is as follows: On 23 November 1999, John Morgan (decedent) died as a result of internal injuries sustained in a farm equipment accident. Jerry Morgan (plaintiff), decedent's brother and executor of his estate, filed a complaint for negligence on 20 November 2001, naming the following parties as defendants: FirstHealth of the Carolinas; Dr. Paula Adkins and her practice, Sandhills Emergency Physicians, P.A.; and R. Clayton Steiner, M.D. and his practice, Moore Surgical Center, P.A. On 17 December 2002, all parties participated in a mediated settlement conference. Although a settlement was not reached at the time, plaintiff later negotiated a settlement with FirstHealth, Dr. Adkins and Sandhills Emergency Physicians. Plaintiff voluntarily dismissed his complaint against these parties. Remaining for trial were plaintiff's negligence claims against Dr. Steiner and his practice, Moore Surgical Center (collectively, defendants).
On 2 February 2004, defendants extended an offer of judgment to plaintiff pursuant to Rule 68 of the North Carolina Rules of Civil Procedure. Plaintiff did not accept the offer of judgment and the matter was tried before a jury beginning 16 February 2004. At the close of the evidence, the jury returned a verdict in favor of defendants, which judgment was entered by the trial court on 2March 2004. Defendants subsequently filed a motion for costs, seeking reimbursement for all trial costs in the amount of $43,781.11. The trial court granted defendants' motion in part and concluded as a matter of law that plaintiff should pay defendants $31,082.87. It is from this order that plaintiff appeals.
The sole issue raised on appeal is whether the trial court
erred by ordering plaintiff to reimburse defendants' trial
expenses. Specifically, plaintiff argues that defendants' trial
expenses are neither statutorily mandated nor judicially approved
by the Supreme Court of North Carolina. We address each
Where an appeal presents a question of statutory interpretation, this Court conducts a de novo review of the trial court's conclusions of law. Coffman v. Roberson, 153 N.C. App. 618, 623, 571 S.E.2d 255, 258 (2002). In the instant case, the trial court concluded as a matter of law that defendants were entitled to reimbursement in the amount of $31,082.87 pursuant to Rule 68 of the North Carolina Rules of Civil Procedure, as well as Chapters 6 and 7A of the North Carolina General Statutes. Thus, we review the trial court's order de novo.
Rule 68 of the North Carolina Rules of Civil Procedure provides that where a defendant makes an offer of judgment at least ten days before trial, the plaintiff rejects the offer of judgment, and the judgment finally obtained by the plaintiff is less favorable than the offer of judgment, the plaintiff must pay the costs incurred by defendant after the offer was rejected. N.C.R. Civ. P. Rule 68(a) (2004).
N.C. Gen. Stat. §§ 6-18 and 6-19 (2003) delineate the types of actions in which costs shall be awarded to the prevailing party in civil actions. N.C. Gen. Stat. § 6-20 (2003) provides that [i]n other actions [not listed in §§ 6-18 and 6-19], costs may be allowed or not, in the discretion of the court, unless otherwise provided by law. N.C. Gen. Stat. § 6-1 (2003) provides: To the party for whom judgment is given, costs shall be allowed as provided in Chapter 7A and this chapter.
Section 305 of Chapter 7A of the General Statutes sets forth a list of expenses that may be assessed in civil actions:
(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. Fees for personal service by a private process server may be recoverable in an amount equal to the actual cost of such service or fifty dollars ($50.00), whichever is less, unless the court finds that due to difficulty of service a greater amount is appropriate.
(7) Fees of guardians ad litem, referees, receivers, commissioners, surveyors,arbitrators, appraisers, and other similar court appointees, as provided by law. The fee of such appointees shall include reasonable reimbursement for stenographic assistance, when necessary.
(8) Fees of interpreters, when authorized and approved by the court.
(9) Premiums for surety bonds for prosecution, as authorized by G.S. 1-109.
N.C. Gen. Stat. § 7A-305(d) (2003). The costs set forth in [§ 7A- 305(d)] are complete and exclusive, and in lieu of any other costs and fees. N.C. Gen. Stat. § 7A-320 (2003). However, the trial court may, in its discretion, award additional costs pursuant to N.C. Gen. Stat. § 6-20 if the costs were established by case law prior to the enactment of N.C. Gen. Stat. § 7A-320 in 1983. Lord v. Customized Consulting Specialty, Inc., 164 N.C. App. 730, 734, 596 S.E.2d 891, 895 (2004) (citing Department of Transp. v. Charlotte Area Mfd. Housing, Inc., 160 N.C. App. 461, 586 S.E.2d 780 (2003)). Thus, the trial court's authority to award costs is strictly limited to those items (1) specifically enumerated in the statutes, or (2) recognized by existing common law. Charlotte Area, 160 N.C. App. at 468, 586 S.E.2d at 784.
In Lord, this Court outlined a three-step analysis to guide the determination of whether costs may be properly assessed.
First, if the costs are items provided as costs under N.C. Gen. Stat. § 7A-305, then the trial court is required to assess these items as costs. Second, for items not costs under N.C. Gen. Stat. § 7A-305, it must be determined if they are common law costs under the rationale of Charlotte Area. Third, as to common law costs we must determine if the trial court abused its discretion inawarding or denying these costs under N.C. Gen. Stat. § 6-20.
164 N.C. App. at 734, 596 S.E.2d at 895. We now examine each cost assessed by the trial court in the instant case.
Trial Exhibit Fees
The trial court also ordered plaintiff to pay defendants' trial exhibit fees in the amount of $1,835.03. The trial court erred by ordering plaintiff to pay these costs.
Trial exhibit fees are not among the costs enumerated in § 7A- 305(d). Furthermore, there was no common law authority for the assessment of costs for trial exhibit fees prior to 1983. We recognize that since 1983, some cases from this Court have allowed the award of costs for trial exhibits. See Estate of Smith v. Underwood, 127 N.C. App. 1, 12-13, 487 S.E.2d 807, 814-15 (1997); Lewis v. Setty, 140 N.C. App. 536, 539-40, 537 S.E.2d 505, 507 (2000); Coffman v. Roberson, 153 N.C. App. 618, 629, 571 S.E.2d 255, 262 (2002). Other cases from this Court have not allowed theaward of costs for trial exhibits. See Charlotte Area, 160 N.C. App. at 472, 586 S.E.2d at 786.
In Charlotte Area, this Court declined to follow Smith, Lewis and Coffman because the decisions were deemed inconsistent with City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972). In McNeely, our Supreme Court stated, Costs in this state are entirely creatures of legislation, and without this they do not exist. 281 N.C. at 691, 190 S.E.2d at 185 (quotation and citation ommitted). We are bound to follow decisions of the Supreme Court until the Supreme Court rules otherwise. Heatherly v. Industrial Health Council, 130 N.C. App. 616, 621, 504 S.E.2d 102, 106 (1998).
Because there is neither a statutory basis for ordering plaintiff to pay trial exhibit fees nor a common law basis established prior to 1983 for ordering plaintiff to pay trial exhibit fees, we conclude that the trial court lacked discretion to tax plaintiff with the costs of defendants' trial exhibits.
We have reviewed all of plaintiff's assignments of error properly brought forward. For the reasons stated herein, we affirm the award of deposition costs and fees for the mediator to defendants. We affirm in part and reverse in part the award for expert witness fees. We reverse the award of costs for the lunch defendants provided during the mediated settlement conference, the cost of medical records and trial exhibit fees. We remand the matter to the trial court with instructions to modify the award of costs in accord with this opinion. AFFIRMED in part, REVERSED in part and REMANDED.
Judges McCULLOUGH and STEELMAN concur.
*** Converted from WordPerfect ***