Plaintiff appeals the order granting costs to defendants in
Superior Court, Wake County after plaintiff voluntarily dismissed
the underlying action. The dispositive question before this court
is whether the trial court abused its discretion in taxing certain
costs against the plaintiff pursuant to N.C. Gen. Stat. § 7A-
305(d). For the following reasons, we affirm in part and reverse
On or about 30 January 2004 defendant Kathleen Marie
Dombrowski (Mrs. Dombrowski) was driving defendant David John
Dombrowski's 1997 Ford automobile with his permission. Mrs.
Dombrowski attempted to make a left-hand turn from Military
Cutoff Road onto Wrightsville Avenue when she collided with
plaintiff's vehicle on Military Cutoff Road. Defendants admitted
in their unverified answer that the accident was caused by Mrs.
Dombrowski's negligence. Plaintiff now alleges that as a result
of the collision he has painful and permanent injury which
prevents him from transacting business and has resulted in a
substantial reduction in his earning capacity. Plaintiff alsoclaims he has incurred medical and hospitalization expenses in
excess of $29,200.
On 14 February 2005 defendants made an offer of judgment for
$45,500, which plaintiff did not accept. On 9 December 2005
defendants subpoenaed Dr. Kevin Scully (Dr. Scully) and
provided notice to plaintiff they would be deposing Dr. Scully on
20 December 2005. On 16 May 2006 defendants' filed a motion for
summary judgment. On 19 May 2006 plaintiff filed a motion for
continuance. On 22 May 2006 plaintiff took a voluntary dismissal
without prejudice pursuant to Rule 41(a)(1) of the North Carolina
Rules of Civil Procedure.
On 14 June 2006 defendants filed a motion for costs
accompanied by an affidavit of defendants' attorney, Daniel M.
Gaylord, and several invoices and receipts. On 27 June 2006
plaintiff filed a response to defendants' motion. Plaintiff's
response argued only that defendants' motion was premature and
that if the trial court determined defendants' motion was timely
made, only the mediation fees were permissible costs to be taxed
pursuant to North Carolina case law.
(See footnote 1)
Plaintiff presented no
objection to the amounts, reasonableness or necessity of
defendants' costs as alleged in their motion. On 22 October 2005
the trial court granted defendants' motion for costs.
The trial court required plaintiff to pay costs for: (1)
mediation cost for the first mediation in the amount of $250.00,(2) mediation costs for the mediation that was reconvened in
February of 2006 in the amount of $125.00, and (3) travel
costs/mileage for mediation in February 2006 in the amount of
$26.52. The court also found several others costs to be taxable
costs which are to be paid only if plaintiff later refiles; those
costs included: (4) cost for plaintiff's deposition transcript
in the amount of $464.45, (5) deposition traveling cost/mileage
for plaintiff's deposition in the amount of $111.94, (6) cost for
Dr. Scully's deposition transcript in the amount of $298.15, (7)
deposition fee to Dr. Scully in the amount of $500.00, (8)
deposition traveling cost/mileage for the deposition of Dr.
Scully in the amount of $111.78, (9) cost for Dr. David
Esposito's (Dr. Esposito) deposition transcript in the amount
of $47.25, (10) videotape deposition cost of Dr. Esposito in the
amount of $26.75, and (11) deposition traveling cost/mileage for
the deposition of Dr. Esposito in the amount of $101.46. In
summary, Judge Allen ordered plaintiff to pay defendants $401.52
within 30 days of the order and the other costs totaling
$1,661.78, within 30 days of refiling the action. The order
also stated that plaintiff's failure to comply would result in
dismissal of the refiled action with prejudice. Plaintiff
II. Appellate Rules
 Defendants argue this appeal should be dismissed as
plaintiff's brief failed to state a standard of review for the
first argument in his brief. Defendants correctly note thatpursuant to North Carolina Rule of Appellate Procedure 28(b)(6)
argument[s] shall contain a concise statement of the applicable
standard(s) of review . . . . N.C.R. App. P. 28(b)(6).
Defendants' brief argues that this appeal should therefore be
dismissed because plaintiff has failed to follow a rule of
appellate procedure. See Viar v. North Carolina Dep't of
, 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005).
However, in Smithers v. Tru-Pak Moving Sys., Inc.
requested this Court to dismiss an appeal in its brief. 121 N.C.
App. 542, 545, 468 S.E.2d 410, 412, disc. rev. denied
, 343 N.C.
514, 472 S.E.2d 20 (1996). This Court concluded that
[d]efendant's motion to dismiss plaintiff's appeal is not
properly before us. A motion to dismiss an appeal must be filed
in accord with Appellate Rule 37, not raised for the first time
in the brief as defendant has done here. Id
; see also Horton v.
New South Ins. Co.
, 122 N.C. App. 265, 268, 468 S.E.2d 856, 858,
, 343 N.C. 511, 472 S.E.2d 8 (1996) (Motions to an
appellate court may not be made in a brief but must be made in
accordance with N.C.R. App. P. 37).
As defendants have failed to file such a motion we chose to
decide this appeal based upon its merits. See
N.C.R. App. P. 2;
Welch Contr'g, Inc. v. N.C. Dep't. of Transp.
, 175 N.C. App. 45,
49-50, 622 S.E.2d 691, 694 (2005) (exercising discretion to
decide case on the merits though there were appellate rule
III. Standard of Review
 Prior decisions by this court have been inconsistent as
to the proper standard of review for appeals concerning taxing
(See footnote 2)
We have reviewed the case law and the majority of cases
review a trial court's taxing of costs under an abuse of
discretion standard. See, e.g.
, Coffman v. Roberson
, 153 N.C.
App. 618, 629, 571 S.E.2d 255, 261 (2002), disc. rev. denied
N.C. 668, 577 S.E.2d 111 (2003); Alsup v. Pitman
, 98 N.C. App.
389, 391, 390 S.E.2d 750, 752 (1990). We find the reasoning of
the majority of cases pursuant to the language of N.C. Gen. Stat.
§ 6-20 to be sound, and we therefore review the trial court's
taxing of costs against the plaintiff under an abuse of
discretion standard. See Coffman
at 629, 571 S.E.2d at 261;
at 391, 390 S.E.2d at 752. An abuse of discretion is a
decision manifestly unsupported by reason or one so arbitrary
that it could not have been the result of a reasoned decision.
Briley v. Farabow
, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998).
IV. Awarding of Costs
 Plaintiff argues that costs not specifically enumerated
under N.C. Gen. Stat. § 7A-305(d) should not be awarded.
Specifically plaintiff argues that all costs awarded to
defendants were in error, except for the mediation fees. N.C.
Gen. Stat. § 7A-305(d) and (e) provides:
(d) The following expenses, when
incurred, are also assessable or recoverable,
as the case may be:
(1) Witness fees, as provided by
(2) Jail fees, as provided by law.
(3) Counsel fees, as provided by
(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
(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.
(e) Nothing in this section shall
affect the liability of the respective
parties for costs as provided by law.
N.C. Gen. Stat. § 7A-305(d), (e) (2003).
We are aware, as recognized in Dep't. of Transp. v.
Charlotte Area Mfd. Housing Inc.
, that there has been a lack of
uniformity in this Court's cases addressing whether certain costs
can or should be taxed against a party. 160 N.C. App. 461, 586
S.E.2d 780 (2003).
(See footnote 3)
In analyzing whether the trial court properly
[assessed] cost[s] we must undertake a
three-step analysis. Lord v. Customized
Consulting Specialty, Inc.
, 164 N.C. App.
730, 734, 596 S.E.2d 891, 895 (2004). First,
we must determine whether the cost sought is
one enumerated in N.C. Gen. Stat. §
7A-305(d); if so, the trial court is required
to assess the item as costs. Id.
where the cost is not an item listed under
N.C. Gen. Stat. § 7A-305(d), we must
determine if it is a common law cost under
the rationale of Charlotte Area. Id.
(defining 'common law' costs as being those
costs established by case law prior to the
enactment of N.C. Gen. Stat. § 7A-320 in
1983.) Third, if the cost sought to be
recovered is a common law cost, we must
determine whether the trial court abused its
discretion in awarding or denying the cost
under N.C. Gen. Stat. § 6-20. Id.
Miller v. Forsyth Mem'l Hosp., Inc.
, 173 N.C. App. 385, 391, 618
S.E.2d 838, 843, remanded in part
, 174 N.C. App. 619, 625 S.E.2d
A. Deposition-Related Expenses
Deposition-related expenses are not specifically enumerated
in N.C. Gen. Stat. § 7A-305(d) as it applies to this case.
(See footnote 4)
N.C. Gen. Stat. § 7A-305(d). However, these expenses have been
recognized by the common law. See, e.g.
, Dixon, Odom & Co. v.
, 59 N.C. App. 280, 286, 296 S.E.2d 512, 516 (1982)
(stating that recoverable costs may include deposition expenses
unless it appears that the depositions were unnecessary);
Cloutier v. State
, 57 N.C. App. 239, 248, 291 S.E.2d 362, 368,
, 306 N.C. 555, 294 S.E.2d 222 (1982) (determining
that travel expenses of an attorney to take a deposition should
be considered part of the deposition costs and taxed pursuant to
N.C. Gen. Stat. § 97-80 (addressing costs under the Worker's
As this is a common law cost we must now determine if the
trial court abused its discretion in awarding such costs. Miller
at 391, 618 S.E.2d at 843. The trial court awarded costs for:
(1) plaintiff's deposition transcript, (2) traveling costs for
plaintiff's deposition, (3) Dr. Scully's deposition transcript,
(4) traveling costs for Dr. Scully's deposition, (5) Dr.
Esposito's deposition transcript, (6) costs of videotaping Dr.Esposito's deposition, and (7) traveling costs for Dr. Esposito's
deposition. We do not find the trial court abused its discretion
in awarding these costs by rendering a decision manifestly
unsupported by reason or one so arbitrary that it could not have
been the result of a reasoned decision. Briley at
S.E.2d at 656. The trial court's decision to award these costs
was supported by the common law, defendants' attorney's
affidavit, and numerous invoices and receipts. See, e.g.
Odom & Co.
at 286, 296 S.E.2d at 516; Cloutier
at 248, 291 S.E.2d
at 368. We also note that plaintiff did not raise any issue as
to the reasonableness or necessity of the costs. We affirm the
decision of the trial court to award deposition-related expenses.
B. Expert Witness Fee
 Expert witness fees are not specifically provided for in
N.C. Gen. Stat. § 7A-305(d). See
N.C. Gen. Stat. § 7A-305(d).
However, in State v. Johnson
, this Court recognized that expert
witness fees could be taxed as costs when a witness has been
subpoenaed. 282 N.C. 1, 28, 191 S.E.2d 641, 659 (1972).
Pursuant to N.C. Gen. Stat. §
7A-305(d)(1) witness fees are assessable as
costs as provided by law. This refers to the
provisions of N.C. Gen. Stat. § 7A-314 which
provides for witness fees where the witness
is under subpoena. The trial judge only has
the authority to award witness fees where the
witness was under subpoena.
at 392, 618 S.E.2d at 843 (internal citations and internal
quotations omitted). As expert witness fees are allowed to be
taxed as costs under the common law, we discern no abuse of
discretion in the trial court's order taxing the plaintiff$500.00 for Dr. Scully's deposition fee when Dr. Scully was under
a subpoena. See Miller
at 391-92, 618 S.E.2d at 843; Johnson
28, 191 S.E.2d at 659.
C. Travel Costs to Mediation
 Travel expenses are also not specifically enumerated in
N.C. Gen. Stat. § 7A-305(d). See
N.C. Gen. Stat. § 7A-305(d).
We also could find no case law before or during 1983 which
addresses costs for mediation; therefore it is not a common law
cost. See Miller
at 391, 618 S.E.2d at 843. As traveling to a
mediation is neither enumerated in N.C. Gen. Stat. § 7A-305(d)
nor provided for in the common law, we conclude that the trial
court did abuse its discretion in awarding this cost to
defendants. See Briley at
547, 501 S.E.2d at 656. We therefore
reverse the decision of the trial court to tax plaintiff $26.52
in mediation travel costs.
D. Reasonable and Necessary Costs
 Defendant also argues that the trial court abused its
discretion because it failed to make any findings of fact that
the costs taxed were reasonable and necessary. An abuse of
discretion is a decision manifestly unsupported by reason or one
so arbitrary that it could not have been the result of a reasoned
decision. Briley at 547, 501 S.E.2d at 656. Rule 52(a)(2) of
the North Carolina Rules of Civil Procedure provides that
[f]indings of fact and conclusions of law are necessary ondecisions of any motion or order ex mero moto only when requested
by a party and as provided by Rule 41(b). N.C. Gen. Stat. § 1A-
1, Rule 52 (2003) (emphasis added).
Pursuant to Rule 52 the trial court did not err in failing
to make findings of fact where they were not requested by a
party. See id. The trial court ordered the costs taxed based on
evidence which included an affidavit from defendants' attorney
and several invoices and receipts. In plaintiff's response to
defendant's motion for costs, no evidence was presented
countering defendants' affidavit, invoices or receipts.
Plaintiff has not argued either here or before the trial court
that defendants' costs were unreasonable or unnecessary, and the
record would support a finding that the costs were reasonable and
necessary. On this evidence the trial court did not abuse its
discretion. See Briley at 547, 501 S.E.2d at 656. Id.
We therefore conclude that the trial court did not abuse its
discretion in the costs taxed to the plaintiff except for the
costs for travel to mediation and that the trial court was not
required to make findings of fact stating that such costs were
reasonable and necessary given the absence of a request for
findings and the evidence presented. See id.; Briley at 547, 501
S.E.2d at 656.
In conclusion, we reverse the trial court's order mandating
plaintiff to pay $26.52 in travel costs to mediation and affirm
all other costs taxed. Affirmed in part, reversed in part.
Chief Judge MARTIN and Judge ARROWOOD concur.