Appeal by plaintiff from an order entered 6 July 2006 by Judge
William C. Gore, Jr. in Johnston County Superior Court. Heard in
the Court of Appeals 9 May 2007.
Hardison & Leone, L.L.P., by Kenneth L. Hardison; The Lederer
Law Firm, by William M. Lederer, for plaintiff-appellant.
Walker, Allen, Grice, Ammons & Foy, L.L.P., by Jerry A. Allen,
Jr. and O. Drew Grice, Jr., for defendant-appellees Prime
Internal Medicine, P.A., and Vandana Devalapalli, M.D.
Crawford & Crawford, LLP, by Renee B. Crawford and Robert O.
Crawford, III, for defendant-appellees Raleigh Emergency
Medicine Associates, Inc. and Brian S. Quigley, M.D.
HUNTER, Judge.
Norma L. Massey (“plaintiff”) appeals from an order granting
costs, including both expert witness fees and deposition costs, to
Prime Internal Medicine, P.A., Vandana Devalapalli, M.D., Raleigh
Emergency Medicine Associates Inc., and Brian S. Quigley, M.D.
(collectively, “defendants”). We reverse the order insofar as itgrants expert witness costs, but affirm it to the extent that it
grants deposition costs.
Plaintiff filed a medical malpractice suit against defendants
on 25 November 2003. Defendants filed responsive pleadings and
began discovery in connection with these claims. Plaintiff
completed her deposing of defendants on 7 February 2005 and
designated her expert witnesses on 8 April 2005. On 20 May 2005,
the trial court set the case for trial beginning the week of 5 June
2006.
On 28 February 2006, before defendants were required to
designate their own expert witnesses, plaintiff's attorney resigned
from the law firm representing plaintiff. The firm did not have
another attorney on staff able to represent plaintiff's medical
malpractice claim, and so associated with another attorney to
handle the trial. Feeling that he could not get up to speed on the
case in time, plaintiff's new attorney made a motion for a
continuance of the trial until October 2006. The trial court
denied this motion. Plaintiff therefore filed a voluntary
dismissal without prejudice on 22 May 2006.
On 24 and 31 May 2006, defendants made motions to tax
plaintiff with the costs they had incurred in preparing a defense
to this action. On 5 July 2006, the trial court ordered plaintiff
to pay $11,831.92 in costs to defendants Prime Internal Medicine
and Dr. Devalapalli: $5,114.15 for various deposition expenses;
$1,312.50 in expert witness fees; and $5,175.00 in expert review
fees. In the same order, the trial court ordered plaintiff to pay$12,442.62 in costs to defendants Dr. Quigley and Raleigh Emergency
Medicine Associates: $5,337.69 for various deposition expenses;
$5,825.00 in expert witness fees; and $1,279.93 in miscellaneous
expenses (photocopying, mileage, postage, and mediation fee).
(See footnote 1)
Plaintiff appeals.
I.
The trial court based its grant of costs on N.C. Gen. Stat. ..
7A-305(d) and 6-20 (2005), as well as Rule 41(d) of the North
Carolina Rules of Civil Procedure. Rule 41(d) states the general
rule that when a plaintiff takes a voluntary dismissal, he “shall
be taxed with the costs of the action unless the action was brought
in forma pauperis.” N.C. Gen. Stat. § 1A-1, Rule 41(d) (2005).
N.C. Gen. Stat. . 6-20 provides the court with a general power to
award costs: “Costs may be allowed or not, in the discretion of
the court, unless otherwise provided by law.”
Id. N.C. Gen. Stat.
. 7A-305(d)(1) then enumerates specific costs that may be awarded:
“The following expenses, when incurred, are also assessable or
recoverable, as the case may be: . . . [w]itness fees, as provided
by law.”
Id.
II.
We first address the awarding of deposition costs. Plaintiff
argues that this award was not authorized under sections 6-20 and
7A-305. We disagree. In
Morgan v. Steiner, 173 N.C. App. 577, 619 S.E.2d 516,
disc. review denied, 360 N.C. 648, 636 S.E.2d 808 (2005), we
allowed deposition costs, following the three-part test previously
enumerated in
Lord v. Customized Consulting Specialty, Inc., 164
N.C. App. 730, 596 S.E.2d 891 (2004):
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 [
Department of Transp.
v.]
Charlotte Area [
Mfd. Housing, Inc., 160
N.C. App. 461, 586 S.E.2d 780 (2003)]. Third,
as to “common law costs” we must determine if
the trial court abused its discretion in
awarding or denying these costs under N.C.
Gen. Stat. § 6-20.
Lord, 164 N.C. App. at 734, 596 S.E.2d at 895 (quoted in
Morgan,
173 N.C. App. at 581, 619 S.E.2d at 519). In applying these
factors in
Morgan, we noted that while deposition costs are not
specifically enumerated in section 7A-305, they were common law
costs awardable under section 6-20, and as such the question before
us was whether the trial court abused its discretion in awarding
them.
(See footnote 2)
Morgan, 173 N.C. App. at 581-82, 619 S.E.2d at 519-20. Plaintiff argues that the trial court did abuse its discretion
in awarding these costs for two reasons: First, plaintiff intends
to re-file her suit as soon as possible, and second, plaintiff was
forced to take the voluntary dismissal because her attorney
resigned within a few months of her trial and the court denied her
motion to continue the trial. We disagree.
As to the first, the rule allowing a plaintiff to file a
voluntary dismissal without prejudice -- Rule 41(a) of the North
Carolina Rules of Civil Procedure -- exists so that plaintiffs
unprepared for trial may withdraw the action and renew it when they
are so prepared. That rule states that, unless otherwise stated,
“the dismissal is without prejudice.” N.C. Gen. Stat. § 1A-1, Rule
41(a). The same rule -- Rule 41(d) -- mandates the award of costs
in any case of voluntary dismissal: “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.” N.C. Gen. Stat. § 1A-1, Rule 41(d) (emphasis added);
see also Lincoln v. Bueche, 166 N.C. App. 150, 153, 601 S.E.2d 237,
241 (2004). The rule does not distinguish between types ofvoluntary dismissal, nor does it state that this rule is suspended
where plaintiff intends to reinstate the suit. Plaintiff cites to
no case law that supports such an interpretation of the Rule, and
neither the plain language nor the construction of the Rule support
it. This argument is therefore without merit.
Plaintiff's second argument regarding the withdrawal of her
attorney is also without merit. On 20 May 2005, the trial court
set the case for trial starting the week of 5 June 2006, more than
twelve months later. Plaintiff's counsel withdrew on 28 February
2006. Thus, for nine months, plaintiff's counsel was presumably
preparing for trial. Plaintiff also notes that defendants failed
to identify their expert witnesses, but per the record, all expert
witnesses -- plaintiff's and defendants' -- were identified before
the end of March 2006. While the trial court would have been
within its rights to consider the circumstances of which plaintiff
complains as mitigating factors in awarding costs, we cannot say
that the trial court's failure to do so was manifestly unsupported
by reason, and therefore constitutes abuse of discretion. We
therefore overrule this assignment of error.
Because it does not appear on the record before us that the
trial court abused its discretion in making this award, we affirm
the court's order insofar as it concerns the awarding of deposition
costs.
III.
Finally, plaintiff argues that the trial court erroneously
awarded costs to defendants for expert witness fees. We agree. Witness fees are one of the enumerated costs allowed by N.C.
Gen. Stat. § 7A-305(d), which authorizes the awarding of “[w]itness
fees, as provided by law.”
Id. N.C. Gen. Stat. § 7A-314(a) (2005)
is the law providing for such awards, but includes only
“witness[es] under subpoena, bound over, or recognized[.]”
Id.
This Court applies the statute to reverse such awards where no
subpoena existed. “Unless an expert witness is subpoenaed, . . .
the witness' fees are not generally recognized as costs.”
Wade v.
Wade, 72 N.C. App. 372, 384, 325 S.E.2d 260, 271,
disc. review
denied, 313 N.C. 612, 330 S.E.2d 616 (1985);
see also Lord, 164
N.C. App. at 735, 596 S.E.2d at 895 (“[t]he trial court was
empowered to award witness fees only where the witness was under
subpoena”).
Defendants argue that the awarding of these costs was valid
under the trial court's general discretionary power to award costs
per N.C. Gen. Stat. § 6-20. This argument is without merit.
“'When a more generally applicable statute conflicts with a more
specific, special statute, the “special statute is viewed as an
exception to the provisions of the general statute[.]”'”
Taylor v.
Robinson, 131 N.C. App. 337, 338, 508 S.E.2d 289, 291 (1998)
(quoting
Domestic Electric Service, Inc. v. City of Rocky Mount, 20
N.C. App. 347, 350, 201 S.E.2d 508, 510 (1974)). As mentioned
above, N.C. Gen. Stat. § 7A-314(a) specifically authorizes the
court to order the payment of expert witness fees, but includes
only “witness[es] under subpoena, bound over, or recognized[.]”
Id. This more specific statute is controlling and, therefore,limits the trial court's general discretionary power under N.C.
Gen. Stat. § 6-20 to award costs in this situation.
As plaintiff correctly notes and defendants do not dispute,
the record before us contains no evidence that subpoenas were ever
issued to the expert witnesses in question. Thus, we find that the
court was in error in awarding witness fees where no subpoena was
issued.
The record provides us with the data to separate out those
witness fees. The list of costs submitted to the court by
defendants Prime Internal Medicine and Dr. Devalapalli identifies
certain costs totaling $1,312.50 as “expert fees” and identifies
certain others totaling $5,175.00 as “expert review” fees. The
costs submitted by defendants Raleigh Emergency Medicine Associates
and Dr. Quigley has costs totaling $5,825.00 labeled “expert
witness fees.” In
Lord, this Court considered both “expert fees”
and “expert review fees” to be part of the general term “experts'
fees,” and found that the trial court had incorrectly awarded them
when no subpoena had been issued to the experts in question.
Lord,
164 N.C. App. at 735, 596 S.E.2d at 895 (“[t]he fees sought to be
taxed as costs were for the review and analysis of the case, and
the preparation of a report”).
Therefore, we reverse the order of the trial court insofar as
it orders the payment of witness fees in the amount of $6,487.50 to
defendants Prime Internal Medicine and Dr. Devalapalli and
$5,825.00 to defendants Raleigh Emergency Medicine Associates and
Dr. Quigley.
IV.
Because we find that deposition costs were properly awarded
pursuant to sections 6-20 and 7A-305, we affirm the trial court's
order as to those costs. However, because we find that the witness
fees were improperly awarded where no subpoenas were issued, we
reverse the trial court's order as to those costs.
Affirmed in part, reversed in part.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
Footnote: 1