Appeal by Defendant from order entered 8 September 2005 by
Judge James M. Webb in Superior Court, Moore County. Heard in the
Court of Appeals 16 August 2006.
Staton, Doster, Post & Silverman, by Norman C. Post, Jr., for
Horton and Gsteiger, P.L.L.C., by Urs R. Gsteiger, for
Patricia Larios Aguilar (Plaintiff) filed a complaint against
Jeffrey Dean Frye (Defendant) seeking damages for personal injuries
resulting from an automobile collision that occurred on 9 January
2004. The jury returned a verdict in favor of Plaintiff and
awarded her $185,000.00 in damages. Plaintiff orally moved for an
order taxing certain costs to Defendant. The trial court granted
Plaintiff's motion in an order entered 8 September 2005 and taxed
Defendant with, inter alia, deposition expenses and expert witness
costs. Defendant appeals.
Our Supreme Court has held that costs "'are entirely creatures
of legislation, and without this they do not exist.'" City ofCharlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179, 185 (1972)
(quoting Clerk's Office v. Commissioners of Carteret County, 121
N.C. 29, 30, 27 S.E. 1003, 1003 (1897)). In Department of Transp.
v. Charlotte Area Mfd. Housing, Inc., 160 N.C. App. 461, 470, 586
S.E.2d 780, 785 (2003), this Court adopted the "explicitly
delineated" approach as the appropriate inquiry to determine what
costs a trial court may properly assess under our statutes. This
approach precludes the taxing of any costs not "(1) specifically
enumerated in the statutes, or (2) recognized by existing common
law." Id. at 468, 586 S.E.2d at 784. Thus, there are two distinct
categories of taxable costs: (1) those delineated in N.C. Gen.
Stat. § 7A-305(d), which lists recoverable expenses in a civil
action; and (2) common law costs. Lord v. Customized Consulting
Specialty, Inc., 164 N.C. App. 730, 734, 596 S.E.2d 891, 894
(2004). Common law costs are defined as "those costs established
by case law prior to the enactment of N.C. Gen. Stat. § 7A-320 in
1983." Id. at 734, 596 S.E.2d at 895. Pursuant to N.C. Gen. Stat.
§ 6-20, the trial court may award these costs, in its discretion.
Lord, 164 N.C. App. at 734, 596 S.E.2d at 895.
I. Expert Witness Fees
Defendant assigns error to the trial court's award of certain
expert witness fees as costs "because such costs cannot be awarded
under North Carolina law." Defendant contends that the award of
any costs which did not involve actual trial testimony "was error
under this [C]ourt's precedent and should be reversed."
N.C. Gen. Stat. § 7A-305(d)(1) (2005) authorizes expertwitness fees to be assessed as costs "as provided by law." This
provision refers to N.C. Gen. Stat. § 7A-314(d) (2005), which
permits expert witnesses to "receive such compensation and
allowances as the court . . . in its discretion, may authorize."
However, expert witness fees may only be awarded where the expert
witness is under subpoena. Lord
164 N.C. App. at 735, 596 S.E.2d
Initially, we note that Defendant failed to include a
Statement of the Grounds for Appellate Review in his brief in
violation of Rule 28(b)(4) of the North Carolina Rules of Appellate
Procedure. Further, Defendant also failed to include a "concise
statement of the applicable standard(s) of review for each question
presented" as required by Rule 28(b)(6) of the North Carolina Rules
of Appellate Procedure. N.C.R. App. P. 28(b)(6). As a result, we
are unable to discern whether Defendant is contending that the
trial court abused its discretion by awarding the expert witness
fees, or that the trial court improperly interpreted N.C.G.S. § 7A-
305(d). Defendant's cursory treatment of the case law regarding
the assessment of costs, coupled with an incomplete argument
regarding the appropriate standard of review precludes us from
reviewing this portion of the trial court's award. Accordingly, we
decline to address this argument.
II. Deposition Costs
Defendant also argues that the trial court's award of various
deposition expenses was improper. We disagree.
Pursuant to the "explicitly delineated" approach noted above,because N.C.G.S. § 7A-305(d) does not authorize the assessment of
deposition expenses, these expenses must qualify as common law
costs to be properly awarded. See Lord
, 164 N.C. App. at 734, 596
S.E.2d at 894.
This Court recognized deposition expenses as
taxable costs prior to the 1983 enactment of N.C. Gen. Stat. § 7A-
320, stating that "[a]s a general rule, recoverable costs may
include deposition expenses unless it appears that the depositions
were unnecessary." Dixon, Odom & Co. v. Sledge
, 59 N.C. App. 280,
286, 296 S.E.2d 512, 516 (1982). The decision to tax deposition
costs is therefore within the discretion of the trial court.
Morgan v. Steiner
, 173 N.C. App. 577, 581, 619 S.E.2d 516, 519-20
(2005). As such, "[t]his Court will not disturb a trial court
award of expenses related to depositions absent an abuse of
at 582, 619 S.E.2d at 520.
Defendant has set forth no argument that the trial court
abused its discretion by awarding these costs. Instead, Defendant
and simply states that "deposition and deposition
related costs cannot be taxed as costs under N.C.G.S. § 7A-305
In doing so, Defendant does not consider the trial court's ability
to award common law costs within its discretion pursuant to N.C.
Gen. Stat. § 6-20. See Lord
, 164 N.C. App. at 734, 596 S.E.2d at
895. Defendant has therefore failed to show that the trial court
abused its discretion. Thus, we affirm the decision of the trial
court to tax the deposition expenses as costs.
Judges BRYANT and ELMORE concur
Report per Rule 30(e).
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