An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-1575


Filed: 18 January 2005

CELISHA DANIELS, Individually and
As Administratrix for the Estate of

         v.                        Forsyth County
                                No. 01 CVS 5744
and ELIZABETH VIA, in their
individual and official capacities
as agents of the WINSTON-SALEM/


    Appeal by plaintiffs from order taxing costs against them entered 15 July 2003 by Judge Clarence E. Horton, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 3 January 2005.

    Raymond M. Marshall, for plaintiff-appellants.

    Horton and Gsteiger, P.L.L.C., by Urs. R. Gsteiger, for defendant-appellees.

    CALABRIA, Judge.

    On 25 June 2001, Celisha Daniels (“Daniels”) filed a complaint on behalf of her minor son Demarcus Daniels (“Demarcus Daniels”) against the Winston-Salem/Forsyth County Board of Education andseveral employees at the Children's Center, a school for children with special needs. The complaint alleged that Demarcus Daniels suffered a fractured right arm while in the custody and care of the Children's Center. Daniels alleged negligence, gross negligence, and breach of fiduciary duty by various employees of the school system in their individual and official capacities. While the litigation was pending, Demarcus Daniels died of unrelated causes and an amended complaint was filed, adding Daniels in her capacity as administratrix of Demarcus Daniels' estate.
    In April of 2003, plaintiffs took a voluntary dismissal without prejudice of the case. The next month, defendants filed a motion for costs accrued to date. Defendants petitioned the trial court to tax plaintiffs with deposition costs totaling $2,058.75. Bills attached to the motion showed costs associated with taking depositions, including stenography fees, videography fees, and other related costs. By order entered 15 July 2003, the trial court granted the motion. The trial court found that plaintiffs “[did] not dispute the amounts of the stenographic fees incurred by defendants” and that the fees are “reasonable and necessary expenditures.” From this order, plaintiffs appeal.
    At the outset, we note that a review of plaintiffs' brief to this Court reveals violations of the Rules of Appellate Procedure. Plaintiffs have failed to make “clear and specific record or transcript references” to support any of their assignments of error pursuant to N.C. R. App. P. 10(c)(1) (2004). Furthermore, plaintiffs' brief fails to refer to any assignments of error asrequired by N.C. R. App. P. 28(b)(6) (2004) and fails to state the grounds for appellate review as required by N.C.R. App. P. 28(b)(4) (2004). Notwithstanding these violations of the rules, we exercise our discretion under N.C. R. App. P. 2 (2004) and consider the merits of this appeal.
    The main issue on appeal is whether the trial court erred by allowing defendants' motion to tax costs against plaintiffs. "In North Carolina costs are taxed on the basis of statutory authority." Estate of Smith v. Underwood, 127 N.C. App. 1, 12, 487 S.E.2d 807, 815, rev. denied, 347 N.C. 398, 494 S.E.2d 410 (1997). In the case sub judice, plaintiffs voluntarily dismissed their claim without prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(a), which governs voluntary dismissals by plaintiffs. Costs are discussed under subsection (d) of Rule 41, which provides:
        (d) Costs. -- A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant, shall make an order for the payment of such costs by the plaintiff within 30 days and shall stay the proceedings in the action until the plaintiff has complied with the order. If the plaintiff does not comply with the order, the court shall dismiss the action.

N.C. Gen. Stat. § 1A-1, Rule 41(d) (2003).

    “The 'costs' to be taxed under N.C. Gen. Stat. § 1A-1, Rule 41(d) against a plaintiff who dismisses an action under Section1A-1, Rule 41(a), means the costs are recoverable in civil actions as delineated in N.C. Gen. Stat. § 7A-305(d) (1989).” See Sealey v. Grine, 115 N.C. App. 343, 347, 444 S.E.2d 632, 635 (1994). “This Court has nonetheless held that 'costs' also include "deposition expenses," unless the depositions were unnecessary, even though an award of deposition expenses is not expressly allowed by statute.” Id.
    Expenses for taking depositions, videotaping depositions, obtaining copies of depositions from a reporting service, and court reporting services for taking depositions are included within the scope of "deposition expenses." Furthermore, because plaintiffs did not assign error to the trial court's finding of fact that the “fees of $2,058.75 incurred by the defendants and itemized above, are reasonable and necessary expenditures," those costs are deemed to be necessary. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (asserting that if a party fails to except to findings of fact, findings are presumed to be supported by competent evidence and are binding on appeal). Accordingly, the trial court properly taxed plaintiffs with deposition expenses.
    We have carefully considered plaintiffs' remaining arguments and find them to be without merit.
    Judge TIMMONS-GOODSON concurs.
    Judge LEVINSON concurs in the result with a separate opinion.
    Report per Rule 30(e).

NO. COA03-1575


Filed: 18 January 2005

CELISHA DANIELS, Individually and
as Administratrix for the Estate of

v .                             Forsyth County
                                No. 01 CVS 5744
their individual and official
capacities as agents of the WINSTON-

    LEVINSON, Judge, concurring in the result.

    In a detailed discussion, a panel of this Court recently held that, pursuant to our Supreme Court's ruling in City of Charlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179, 185 (1972), costs may only be created by, and awarded under, the authority of an applicable legislative enactment. Department of Transp. v. Charlotte Area Mfd. Housing, Inc., 160 N.C. App. 461, 465, 586 S.E.2d 780, 782 (2003). As such, the costs which a trial court must award pursuant to N.C.G.S. § 1A-1, Rule 41(d) are those expenses listed in N.C.G.S. § 7A-305(d) (2003). Cosentino v. Weeks, 160 N.C. App. 511, 518, 586 S.E.2d 787, 790 (2003). Significantly, deposition expenses are not listed in G.S. § 7A-305(d). Therefore, in my view, the trial courts may not award this non-statutory, common-law “cost.”    I recognize, however, that a trial court's award of deposition expenses is supported by case-made law from this Court. See, e.g., Alsup v. Pitman, 98 N.C. App. 389, 390 S.E.2d 750 (1990). Indeed, even some cases following the “explicitly delineated approach” (fully discussed in Charlotte Area Manufactured Housing) have recognized an exception to the rule propounded in McNeely for deposition expenses. See, e.g., Sara Lee Corp. v. Carter, 129 N.C. App. 464, 474, 500 S.E.2d 732, 738 (1998), reversed on other grounds, 351 N.C. 27, 519 S.E.2d 308 (1999). However, I continue to adhere to the position, expressed by this Court in Charlotte Area Mfd. Housing, 160 N.C. App. at 470, 190 S.E.2d at 785, that McNeely is binding “paramount precedent,” such that we “cannot recognize the common law expenses previously permitted by this Court.”
    The appellee argues that the trial court did not abuse its discretion in awarding the non-statutory, common-law “costs” at issue in this case. For this argument, the appellee cites, inter alia, Cosentino. That case held only that a trial judge did not abuse its discretion in denying a motion to award expenses not made “costs” by operation of the general statutes. Cosentino, 160 N.C. App. at 519, 586 S.E.2d at 791. This result was entirely logical because a trial court cannot abuse its discretion by refusing to award an expense that it has no statutory authority to award as a cost. To read Cosentino as providing that a trial court has discretion to award court-created costs does violence to the letter and spirit of the opinion.    I concur with the result the majority reaches inasmuch as it upholds the trial court's award of deposition costs in the instant case. The record indicates that the plaintiffs' position before the trial court was that the court had the discretion to tax deposition expenses against the plaintiffs but should refrain from doing so because the plaintiffs were prosecuting the suit in good faith. It is elementary that, “where a theory argued on appeal was not raised before the trial court, 'the law does not permit parties to swap horses between courts in order to get a better mount' in the appellate courts.” State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5-6 (1996)). Because plaintiffs now advance a different legal theory than the one they proffered to the trial court, they have waived their argument on appeal.
    Our case law concerning costs remains in irreconcilable conflict. Until the General Assembly or Supreme Court address this issue further, there will remain a festering and troublesome uncertainty that will only result in unnecessary and expensive litigation.
    I respectfully concur in the result only.

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