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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
HAROLD WALDEN and wife, BARBARA WALDEN, Plaintiffs, v. JOHN P.
MORGAN, TROY ALLEN TAYLOR, PACE OIL CO., INC., BIESECKER ROAD
COMMERCIAL, LLC, and MOHEY M. BASYOONI, Defendants
PAULINE GRAY, Plaintiff, v. JOHN P. MORGAN, TROY ALLEN TAYLOR,
PACE OIL CO., INC., BIESECKER ROAD COMMERCIAL, LLC, and MOHEY M.
Filed: 17 October 2006
1. Appeal and Error_appealability--partial summary judgments_remaining
defendants with same factual issues--substantial right
Interlocutory appeals of summary judgments for some but not all of the defendants in a
negligence and nuisance case were heard where many of the factual issues would apply to the
remaining defendants, with the possibility of separate trials resulting in inconcsistent verdicts.
2. Appeal and Error--preservation of issues_consideration of evidence_no ruling on
Plaintiffs did not obtain a ruling on their objection and so did not preserve their
assignment of error to the consideration of certain affidavits on summary judgment.
3. Negligence_per se violation of service station zoning ordinance_not applicable to
There was no negligence per se in the operation of a service station in violation of a
zoning ordinance where the ordinance referred to proximity to an existing school, playground,
church, library, or community center, which did not include plaintiffs.
4. Negligence_exploding service station gasoline tank_no duty of care to surrounding
There was no duty of care between plaintiffs who owned homes near a convenience store
with a gasoline tank that exploded and burned and the defendant (Basyooni) who operated the
convenience store. Baysooni's relationship with the people who were transferring the gasoline
when the explosion occurred was that of bailor and bailee, not employer and independent
contractor as plaintiffs contend.
5. Landlord and Tenant_land leased for convenience store_gas tank explosion_no
liability in lessor
Summary judgment was correctly granted against nearby homeowners and for a
landowner who leased land to a convenience store with a gasoline tank that exploded and burned.
Plaintiffs did not present evidence that defendant was aware that the transfer of gasoline had been
scheduled for that day, that there was the potential for a problem, or that an inherently dangerous
activity was occurring.
6. Landlord and Tenant_leased land_exploding gas tank_nuisance clause_overbroad
A lease agreement which provided that premises would not be used to create a nuisance
was too broad and indefinite to create liability for negligence for failure to exercise control over
premises on which a convenience store's gasoline tank exploded.
7. Landlord and Tenant_lease_nuisance prohibited_above-ground gasoline storage
tank not covered
The mere ownership and presence of an above-ground storage tank by the defendants here
is not a nuisance. Plaintiffs' allegations, labeled nuisance, are actually negligence claims, and the
trial court correctly granted summary judgment for defendants.
8. Costs_deposition_within discretion of court
The trial court erred by ruling that deposition costs are not authorized pursuant to
N.C.G.S. § 6-20. The award of deposition costs in the judge's discretion has been repeatedly
Appeals by plaintiffs from orders entered 3 August 2005 and 5
August 2005 by Judge Mark E. Klass and cross-appeal by defendant
Biesecker Road Commerical, LLC from orders entered 31 August 2005
by Judge Michael E. Beale in Davidson County Superior Court. Heard
in the Court of Appeals 12 September 2006.
Biesecker, Tripp, Sink & Fritts, L.L.P., by Joe E. Biesecker
and Christopher A. Raines, for plaintiffs-appellants/cross
No brief filed for defendants-appellees John P. Morgan, Troy
Allen Taylor, Pace Oil Co., Inc.
Adam R. Smart and H. Brent Helms, for defendant-appellee/cross
appellant Biesecker Road Commercial, LLC.
Teague, Rotenstreich & Stanaland, LLP, by Paul A. Daniels, for
defendant-appellee Mohey M. Basyooni.
Harold and Barbara Walden and Pauline Gray (collectively,
plaintiffs) appeal from orders entered granting Biesecker Road
Commercial, LLC's (BRC) and Mohey M. Basyooni's (Basyooni) motions for summary judgment. BRC cross-appeals from orders
entered denying, in part, its motion to tax deposition expenses to
plaintiffs as costs. We affirm in part, reverse in part and
In 1998, BRC acquired property located at 305 Biesecker Road
in Lexington, North Carolina. The property contained a commercial
building and an above-ground tank used to store gasoline. On 15
April, 2002 BRC leased the property to Basyooni. Basyooni operated
a convenience store which marketed gasoline pumped from the tank
located on the property.
When Basyooni leased the property, he also purchased the prior
leasee's inventory. Basyooni also continued the prior leasee's
consignment relationship with Pace Oil Co., Inc. (Pace Oil).
Basyooni orally agreed to market gasoline owned and provided by
Pace Oil to his customers. Pace Oil agreed to pay Basyooni one-
cent for each gallon of gasoline sold. Pace Oil was solely
responsible for servicing the gasoline pumps, the delivery
apparatus, and supplying the gasoline.
On 31 May 2002, Roger Page, president of Pace Oil, decided to
exchange winter gasoline stored in the tank with summer gasoline.
John Morgan (Morgan) and Troy Taylor (Taylor), employees of
Pace Oil Co., traveled to the property and began transferring
gasoline from and to the storage tank. The gasoline transfer was
conducted solely by Morgan and Taylor with a pump owned by Pace
Oil. Two hours after the transfer began, the gasoline ignited anda fire occurred. The exact cause of the fire is unknown. Taylor
stated he saw gasoline spraying from the area near the pump when
the fire began. Morgan also gave a similar statement. Roger Page
stated the fire may have ignited from gasoline spraying from a
small hole in the hose transferring the gasoline. After Taylor and
Morgan unsuccessfully attempted to extinguish the fire, a
significant explosion occurred.
Plaintiffs each own homes located adjacent to BRC's property.
The fire and explosion damaged plaintiffs' lands, homes, and
personal property. Plaintiffs alleged gasoline, oil, and other
hazardous chemicals entered and contaminated their lands and
groundwater as a result of the fire and explosion. Plaintiffs also
alleged the fire and explosion burned trees, vegetation, and
discolored and stained exterior siding on their buildings.
Plaintiffs filed suit against Morgan, Allen, Pace Oil, BRC,
and Basyooni on 18 March 2004. Morgan, Allen, and Pace Oil are not
parties to this appeal. Plaintiff's claims against these
defendants remain pending before the trial court.
Plaintiffs asserted claims of negligence and nuisance against
BRC and Basyooni. On 15 July 2005 both BRC and Basyooni moved for
summary judgment on both of plaintiffs' claims. In support of both
motions for summary judgment, BRC and Basyooni submitted affidavits
from Graham Bunce (Bunce), a member of BRC, and Tony Beasley
(Beasley), Chief Zoning Code Enforcement Officer. On 22 July
2005, plaintiffs objected to and moved to strike Beasley's
affidavit and certain portions of Bunce's affidavit. On 3 August 2005, BRC and Basyooni's motions for summary
judgment were granted. BRC then moved to tax costs against
plaintiffs. The court taxed one-half of the mediation fee as costs
incurred by BRC pursuant to N.C. Gen. Stat. § 6-20. The trial
court denied BRC's motion to tax BRC's deposition expenses to
plaintiffs as costs.
Plaintiffs appeal from the trial court's consideration of
Bunce's and Beasley's affidavits and the trial courts granting of
BRC's and Basyooni's motions for summary judgment. BRC
conditionally cross-appeals the trial court's denial, in part, of
its motion to tax deposition expenses to plaintiffs as costs.
II. Interlocutory Appeal
 We must initially decide whether this case is properly
before us. The trial court granted summary judgment for less than
all the defendants. Plaintiffs assert grounds for appellate review
pursuant to N.C. Gen. Stat. § 1-277(a) and N.C. Gen. Stat. § 7A-
In In re Estate of Redding v. Welborn, this Court stated:
An appeal from a trial court's order of
summary judgment for less than all the
defendants in a case is ordinarily
interlocutory, and therefore untimely.
However, an order is immediately appealable
when it affects a substantial right. A
substantial right is affected when (1) the
same factual issues would be present in both
trials and (2) the possibility of inconsistent
verdicts on those issues exists.
170 N.C. App. 324, 328-29, 612 S.E.2d 664, 667-68 (2005) (internal
citations and quotations omitted). Whether or not a substantial
right will be prejudiced by delaying an interlocutory appeal mustbe decided on a case-by-case basis. Hoots v. Pryor, 106 N.C. App.
397, 401, 417 S.E.2d 269, 272, disc. rev. denied, 332 N.C. 345, 421
S.E.2d 148 (1992).
The trial court granted BRC's and Basyooni's motions for
summary judgment and disposed of all of plaintiffs claims against
both BRC and Basyooni. Plaintiffs alleged BRC and Basyooni are
joint tortfeasors with Pace Oil and its agents Morgan and Allen.
Many of the same factual issues would apply to plaintiffs' claims
against BRC and Basyooni and the remaining defendants. Separate
trials could result in inconsistent verdicts. Plaintiffs asserted
a substantial right to immediate review. Their appeals are
properly before this Court. In re Estate of Redding, 170 N.C. App.
at 328-29, 612 S.E.2d at 668.
Plaintiffs assign error to the trial court's: (1)
consideration of certain portions of Bunce's and Beasley's
affidavits; 2) granting BRC's motion for summary judgment regarding
plaintiffs' negligence and nuisance claims; and 3) granting
Basyooni's motion for summary judgment regarding plaintiffs'
negligence and nuisance claims.
BRC conditionally cross-appeals and assigns error to the trial
court's partial denial of BRC's motion to tax its deposition
expenses to plaintiffs as costs.
A. Plaintiffs' Assignments of Error1. Affidavits
 Plaintiffs argue the trial court's consideration of
Beasley's affidavit and parts of Bunce's affidavit in granting
summary judgment for BRC and Basyooni is error. BRC and Basyooni
submitted these affidavits in support of their motions for summary
Plaintiffs objected and moved to strike the affidavits
contending they failed to comply with Rule 56 and that the
statements contained in the affidavits were legal conclusions and
not statements based on personal knowledge. N.C. Gen. Stat. § 1A-
1, Rule 56 (2005). The record does not disclose whether the trial
court ruled on plaintiffs' objections and motions to strike the
In order to preserve a question for appellate review, the
complaining party [must] obtain a ruling upon the party's request,
objection or motion. N.C.R. App. P. 10(b)(1) (2006). Plaintiffs
never obtained a ruling on their objection and motion to strike the
affidavits. In the absence of any ruling by the trial court in the
record on appeal, this issue is not properly before us and must be
dismissed. 'The North Carolina Rules of Appellate Procedure are
mandatory and failure to follow these rules will subject an appeal
to dismissal.' Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401,
610 S.E.2d 360 (2005) (quoting Steingress v. Steingress, 350 N.C.
64, 65, 511 S.E.2d 298, 299 (1999)). Plaintiffs' assignment of
error was not preserved and is dismissed. See Finley Forest Condo.Ass'n v. Perry, 163 N.C. App. 735, 738, 594 S.E.2d 227, 229-30
(2004) (This Court is unable to review the issue . . . since there
is nothing before this Court indicating the trial court's ruling on
2. Standard of Review
Plaintiffs' remaining assignments of error challenge the trial
court's grant of BRC's and Basyooni's motions for summary judgment.
Summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and that
any party is entitled to a judgment as a
matter of law. The party moving for summary
judgment ultimately has the burden of
establishing the lack of any triable issue of
A defendant may show entitlement to summary
judgment by (1) proving that an essential
element of the plaintiff's case is
non-existent, or (2) showing through discovery
that the plaintiff cannot produce evidence to
support an essential element of his or her
claim, or (3) showing that the plaintiff
cannot surmount an affirmative defense.
Summary judgment is not appropriate where
matters of credibility and determining the
weight of the evidence exist.
Once the party seeking summary judgment makes
the required showing, the burden shifts to the
nonmoving party to produce a forecast of
evidence demonstrating specific facts, as
opposed to allegations, showing that he can at
least establish a prima facie case at trial.
To hold otherwise . . . would be to allow
plaintiffs to rest on their pleadings,
effectively neutralizing the useful and
efficient procedural tool of summary judgment.
Draughon v. Harnett Cty Bd. of Educ., 158 N.C. App. 208, 212, 580
S.E.2d 732, 735 (internal citations and quotations omitted), aff'd,
358 N.C. 137, 591 S.E.2d 520 (2004). 'Summary judgment may be
granted in a negligence action where there are no genuine issues of
material fact and the plaintiff fails to show one of the elements
of negligence.' Willis v. City of New Bern, 137 N.C. App. 762,
764, 529 S.E.2d 691, 692 (2000) (quoting Lavelle v. Schultz, 120
N.C. App. 857, 859, 463 S.E.2d 567, 569 (1995), disc. rev. denied,
342 N.C. 656, 467 S.E.2d 715 (1996)).
No evidence in the record shows any response by plaintiffs to
BRC's and Basyooni's motions for summary judgment other than their
objection and motion to strike consideration of certain affidavits
discussed above. [R]eview is solely upon the record on appeal and
the verbatim transcript of proceedings, if one is designated,
constituted in accordance with this Rule. N.C.R. App. P. 9
A trial judge in ruling on a summary judgment motion is
confined to the sworn or verified testimony in the record as may be
evidenced through pleadings, affidavits, or depositions.
Draughon, 158 N.C. App. at 213, 580 S.E.2d at 736.
When a motion for summary judgment is made and
supported [with affidavits], an adverse party
may not rest upon the mere allegations or
denials of his pleading, but his response, by
affidavits or as otherwise provided in this
rule, must set forth specific facts showing
that there is a genuine issue for trial.
N.C. Gen. Stat. § 1A-1, Rule 56(e) (2005). No transcript of the
hearing is designated or included in the record on appeal.
Plaintiffs' complaints are not verified. Plaintiffs rest solely on
depositions in challenging the trial court's orders.
Plaintiffs contend BRC and Basyooni were negligent by
violating the zoning ordinance and BRC and Basyooni are subject
to negligence liability for failure to take necessary safety
precautions. Plaintiffs' arguments are without merit.
3. Violation of Ordinance as Negligence
 Plaintiffs argue both BRC's and Basyooni's conduct
constituted negligence per se. Plaintiffs assert they are able to
show that BRC and Basyooni were negligent by maintaining an above-
ground storage tank and thereby facilitating the operation of an
automotive service station in violation of the zoning ordinance.
Plaintiffs included only the following language of a zoning
provision in the record before us:
1. Automobile Service Stations shall be a
permitted use in the B-2 Districts provided
the following conditions are met:
(g) The Service Station shall have a minimum
lot area of ten thousand (10,000) square feet,
with frontage of not less than one hundred and
fifty feet. No service station shall be
located within two hundred (200) feet of any
pre-existing school, playground, church,
library or community center as measured from
any point on the property.
Plaintiffs argue BRC's property is located within 200 feet of a
church and BRC and Basyooni prima facially violated the ordinance
and committed negligence per se.
[W]hen a statute imposes a duty on a person for the
protection of others, it is a public safety statute and a violation
of such a statute is negligence per se. Gregory v. Kilbride, 150
N.C. App. 601, 610, 565 S.E.2d 685, 692 (2002) (citations omitted),
disc. rev. denied, 357 N.C. 164, 580 S.E.2d 365 (2003).
not every statute purporting to have generalized safety
implications may be interpreted to automatically result in tort
liability for its violation. Williams v. City of Durham, 123 N.C.
App. 595, 598, 473 S.E.2d 665, 667 (1996) (quotation omitted). The
party relying on an ordinance violation must show they are included
in the class of entities or individuals the ordinance was adopted
to protect. Hall v. Toreros, II, Inc., 176 N.C. App. 309, 318-19,
626 S.E.2d 861, 867-68 (2006). Plaintiffs are the landowners and
the occupants of private residences. The plain and express
language of the zoning ordinance shows plaintiffs are not a pre-
existing school, playground, church, library, or community center
and are not included in the class of persons or entities for whom
the ordinance was enacted to protect. This assignment of error is
4. Negligence Claim Against Basyooni
 Plaintiffs argue Basyooni was negligent by failing to take
necessary safety precautions. The dispositive issue is whetherBasyooni owed plaintiffs a duty of care under these facts. [I]f
it is shown the defendant had no duty of care to the plaintiff,
summary judgment is appropriate. Croker v. Yadkin, Inc., 130 N.C.
App. 64, 67, 502 S.E.2d 404, 406, disc. rev. denied, 349 N.C. 355,
525 S.E.2d 449 (1998). Plaintiffs argue Basyooni owed plaintiffs
a non-delegable duty to protect their property from harm because
Taylor and Morgan, while not employees of Basyooni, were
A person who employs an independent contractor to perform an
inherently dangerous activity may not delegate to the independent
contractor the duty to provide for the safety of others. Woodson
v. Rowland, 329 N.C. 330, 352, 407 S.E.2d 222, 235 (1991).
Basyooni sold gasoline belonging to Pace Oil on a consignment
basis. The relationship between Pace Oil, and its employees,
Morgan and Taylor, and Basyooni was bailor and bailee, not employer
and independent contractor as plaintiffs contend. See Wilson v.
Burch Farms, Inc., 176 N.C. App. 629, 641-42, 627 S.E.2d 249, 259
(2006) ([T]his Court has recognized that a consignment creates a
bailment between the parties.). Plaintiffs have failed to present
any evidence that Basyooni owed them a duty of care on their
negligence claims. The trial court properly granted Basyooni's
motion for summary judgment. This assignment of error is
5. Negligence Claim Against BRC
i. Inherently Dangerous
 Plaintiffs next contend BRC was negligent by failing to
take necessary safety precautions. The dispositive issue is
whether BRC owed plaintiffs a duty of care under these facts.
Plaintiffs argue BRC permitted an inherently dangerous activity to
occur on its property and owed plaintiffs a non-delegable duty to
take safety precautions to prevent the explosion, fire and release
This Court addressed a similar argument in Blevins v. Taylor,
103 N.C. App. 346, 407 S.E.2d 244, cert. denied, 330 N.C. 193, 412
S.E.2d 678 (1991).
[W]here the danger on land is not hidden but
arises out of the negligent or intentional act
of a third person, the owner or occupier will
not be held liable for negligence if he did
not know of the danger and it had not existed
long enough for him to have discovered it,
corrected it or warned against it.
Blevins, 103 N.C. App. at 349, 407 S.E.2d at 246 (citations
omitted). In Blevins, the plaintiff, citing Dockery v. World of
Mirth Shows, Inc., 264 N.C. 406, 411, 142 S.E.2d 29, 33 (1965),
sought to avoid application of this rule and argued a landowner
owes a non-delegable duty. Id. In rejecting the non-delegable
duty argument, we stated that, [a] landowner does not have a duty
to inspect or protect against harm where the injury is caused by a
danger collaterally created by the negligence of another.
Blevins, 103 N.C. App at 350, 407 S.E.2d at 246 (quotation and
citations omitted). We affirmed summary judgment in favor of the
landowner in Blevins because the landowner was not engaged in aninherently dangerous activity on the day of the plaintiff's injury.
103 N.C. App. at 351, 407 S.E.2d at 247.
Here, plaintiffs have presented no evidence BRC was on notice
that Pace Oil had scheduled the transfer of gasoline on the day the
fire and explosion occurred, was aware of the potential of any
problem, or that an inherently dangerous activity was occurring on
the property. Millions of people store and pump gasoline daily
without incident. Nothing in this activity is inherently
dangerous. This assignment of error is overruled.
 Plaintiffs next argue BRC owed them a duty of care because
it retained control over the property through the lease agreement
with Basyooni. Paragraph 3 of the lease states Basyooni will,
b. Not use the premises for any unlawful or
immoral purposes or occupy them in such a way
as to constitute a nuisance . . . .
Plaintiffs contend this lease provision
requires BRC to prevent or stop any nuisance
and to take precautions to protect plaintiffs
from harm. Plaintiffs cite Holcomb v.
Colonial Assocs., L.L.C., 358 N.C. 501, 508,
597 S.E.2d 710, 715 (2004) and argue a
landlord is potentially liable for injuries to
third persons if he has control of the leased
premises. The facts in Holcomb are easily
distinguished from those before us. In Holcomb, the lease specifically provided that the landlord
could require the tenant to remove any animal the landlord in his
sole discretion, deemed a nuisance, disturbance, or in the
landlord's opinion was undesirable, within forty-eight hours of
written notification. 358 N.C. at 508, 597 S.E.2d at 715. Based
on this language, our Supreme Court concluded the landlord and
tenant contractually agreed that landlord would retain control over
tenant's dogs. Id. In Holcomb, the Court held the lease granted
the landlord sufficient control in its sole discretion to remove
the danger posed and could create liability on the landlord for
negligence when the tenant's dog attacked a third party. 358 N.C.
at 508-09, 597 S.E.2d at 715.
Here, BRC's lease provision does not provide it control over
the premises. In Holcomb, the landlord could remove any pet within
forty-eight hours. 358 N.C. at 508-09, 597 S.E.2d at 715. Under
section 7 of its lease with Basyooni, BRC could only re-enter the
property upon sixty days prior notice of default for a non-monetary
lease provision. In Holcomb, the lease provision addressed the
issue of liability and a third party was injured. 358 N.C. at 508-
09, 597 S.E.2d at 715. The lease provision before us is too broad
and indefinite to create liability for negligence for BRC's failure
to exercise control over the premises. This lease governs the
business relationship between BRC and Basyooni, not BRC and Pace
Oil. Under the lease, Basyooni possessed the right to [u]se the
premises for purposes in keeping with the proper zoning.
Beasley's affidavit showed the convenience store was operating incompliance with applicable zoning regulations. This assignment of
error is overruled.
6. Plaintiffs' Claims for Nuisance
 Plaintiffs contend the trial court erred in granting BRC's
and Basyooni's motions for summary judgment regarding plaintiffs
nuisance claims. Plaintiffs argue BRC and Basyooni maintained a
nuisance by storing and permitting the storage and removal of
gasoline adjacent to [their] residences. Plaintiffs' allege BRC
and Basyooni permitted and committed a nuisance by failing to
remove the above-ground storage tank on the property that adjoined
the residential properties and this refusal created an
unreasonable risk of explosion. Plaintiffs further allege the
damages they incurred were a direct and proximate cause of BRC
and Basyooni's failure to remove the above-ground storage tank.
Plaintiffs allegations, labeled as nuisance, are actually
negligence claims. Butler v. Carolina Power & Light Co., 218 N.C.
116, 10 S.E.2d 603, 603 (1940); Boldridge v. Crowder Construction
Co., 250 N.C. 199, 108 S.E.2d 215 (1959). Our Supreme Court stated
in Butler, taking the evidence according to its reasonable
inferences, the nuisance, if it may be called such, was negligence-
born, and must, in the legal sense, make obeisance to its
parentage. 218 N.C. at 121, 10 S.E.2d at 606. In Boldridge, as
here, the damage the plaintiffs complained of arose out of single
physical injury, instead of an on-going injury. 250 N.C. at 201,
108 S.E.2d at 216. The mere ownership and presence of an above-ground storage
tank by BRC and Basyooni is not a nuisance. Plaintiffs'
allegations sound in tort. We have held the trial court properly
granted summary judgment on plaintiffs' negligence claims. The
trial courts' grant of BRC's and Basyooni's motions for summary
judgment on plaintiffs' nuisance claims are affirmed.
B. BRC's Assignment of Error
 BRC argues the trial court erred by denying, in part, its
motions to tax deposition expenses as costs against plaintiffs
pursuant to N.C. Gen. Stat. § 6-20. We agree.
The trial court found in its order that deposition costs are
not authorized pursuant to N.C. Gen. Stat. § 6-20 as a matter of
law. We review this issue de novo. [W]here an appeal presents
questions of statutory interpretation, full review is appropriate,
and 'the conclusions of law are reviewable de novo.' Mark IV
Beverage, Inc. v. Molson Breweries USA, 129 N.C. App. 476, 480, 500
S.E.2d 439, 442 (quoting N.C. Reinsurance Facility v. N.C.
Insurance Guaranty Assn., 67 N.C. App. 359, 362, 313 S.E.2d 253,
256 (1984)), disc. rev. denied, 349 N.C. 231, 515 S.E.2d 705
N.C. Gen. Stat. § 6-20 provides that, costs may be allowed or
not, in the discretion of the court, unless otherwise provided by
law. This Court has repeatedly affirmed the award of deposition
costs as appropriate in the judges discretion under N.C. Gen. Stat.
§ 6-20. See Lord v. Customized Consulting Specialty, Inc., 164N.C. App. 730, 736, 596 S.E.2d 891, 895 (2004) (Deposition costs
may be awarded in the discretion of the trial court.); Department
of Transp. v. Charlotte Area Mfd. Housing, Inc., 160 N.C. App. 461,
468, 586 S.E.2d 780, 784 (2003) (The trial court may award
deposition costs in its discretion under N.C. Gen. Stat. § 6-20
after the enactment of N.C. Gen. Stat. § 7A-320.); Alsup v. Pitman,
98 N.C. App. 389, 391, 390 S.E.2d 750, 751 (1990) ([T]he authority
of trial courts to tax deposition expenses as costs, pursuant to §
6-20, remains undisturbed.); Dixon, Odom & Co. v. Sledge, 59 N.C.
App. 280, 286, 296 S.E.2d 512, 516 (1982) ([R]ecoverable costs may
include deposition expenses unless it appears that the depositions
were unnecessary. Even though deposition expenses do not appear
expressly in the statutes they may be considered as part of 'costs'
and taxed in the trial court's discretion.).
Here, the trial court ruled, as a matter of law, deposition
costs are not authorized pursuant to N.C. Gen. Stat. § 6-20. The
trial court's orders are reversed in part and this issue is
remanded to permit the trial court to exercise its discretion under
The trial court's orders granting summary judgment for BRC and
Basyooni are affirmed. The trial court's orders denying BRC's
motion to tax deposition expenses as costs are reversed in part and
this matter is remanded to the trial court for further proceedings
consistent with this opinion. Affirmed in Part; Reversed in Part and Remanded.
Judges WYNN and HUDSON concur.
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