Appeal by defendants from judgment entered 1 March 2007 and
order entered 1 May 2007 by Judge Gary E. Trawick in Guilford
County Superior Court. Heard in the Court of Appeals 3 March 2008.
Comerford & Britt, LLP, by Kevin J. Williams, for plaintiff-
appellee.
Wilson & Coffey, L.L.P., by G. Gray Wilson and J. Chad Bomar,
for defendants-appellants.
GEER, Judge.
This opinion addresses two appeals arising from the same
wrongful death action brought by plaintiff Paul Swink individually
and as administrator of the estate of his wife, Margaret Swink.
Defendants Dr. Richard A. Weintraub and the Southeastern Heart and
Vascular Center, P.A. ("Southeastern") appeal from (1) the trial
court's judgment based on the jury's verdict finding them negligent
in the death of Mrs. Swink (COA07-1088), and (2) the trial court's
order taxing costs against defendants (COA07-960). The two appealswere previously consolidated for hearing and now are consolidated
for decision.
Defendants' principal contention as to the trial is that the
trial court erred in admitting opinion testimony from plaintiff's
medical experts as to whether defendants exercised reasonable care
and diligence and used their best judgment without requiring the
experts to testify, as to those opinions, regarding the "same or
similar community" standard of care set out in N.C. Gen. Stat. §
90-21.12 (2007). The Supreme Court has already determined in Wall
v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984), that § 90-21.12 does
not apply to the duty of reasonable care and diligence and the duty
of best judgment. Only the Supreme Court may revisit Wall. Since
we are unpersuaded by defendants' remaining arguments as to the
trial, we hold that defendants received a trial free of prejudicial
error.
With respect to the order taxing costs, however, we hold that
the trial court lacked subject matter jurisdiction to enter the
order as defendants had already appealed from the underlying
judgment. We must, therefore, vacate that order and remand for
entry of a new order.
Facts
On 9 June 2003, Mrs. Swink and her husband went to Dr.
Weintraub, who was employed by Southeastern, to discuss replacement
of her pacemaker that was approaching the end of its life span.
During the visit, Dr. Weintraub informed the Swinks that one of thepacemaker's electrical leads was defective and also needed to be
replaced.
Mrs. Swink had previously undergone surgery in 1994 for
maintenance of her pacemaker. Dr. Weintraub performed the 1994
surgery, doing a procedure known as "lead extraction." During the
surgery, Mrs. Swink suffered complications that required giving her
cardiopulmonary resuscitation. As a result of the 1994 surgery,
Mrs. Swink was scared about undergoing another lead extraction
surgery in 2003.
In the 9 June 2003 consultation, Mr. Swink reminded Dr.
Weintraub of the complications during the 1994 surgery and asked
that the non-functioning lead be left in place if possible. Dr.
Weintraub's notes of the office visit stated that his plan was to
extract the lead "if this can be done easily." Mr. Swink testified
that, based on the office visit, he understood that there was no
alternative to lead extraction, even though, in actuality,
nonfunctioning leads can be left in place. Mr. Swink also
testified that Dr. Weintraub did not discuss with them the risks of
lead extraction. Mrs. Swink ultimately executed a form consenting
to a procedure to receive a "permanent transvenous pacemaker," but
did not sign any form expressly consenting to a lead extraction
procedure.
The pacemaker replacement surgery was originally scheduled for
16 June 2003. On 11 June 2003, however, Mrs. Swink arrived at the
hospital with total lead electrode failure and was taken to the
cath lab for the permanent transvenous pacemaker procedure. Whileattempting to perform the lead extraction, Dr. Weintraub
encountered considerable scar tissue surrounding the non-
functioning ventricular lead. At approximately the same time that
Dr. Weintraub discovered the scar tissue, Mrs. Swink's heart
stopped beating, and she ceased breathing. Dr. Weintraub called a
"code."
Mrs. Swink was suffering from pericardial bleeding, which is
treated by inserting a syringe into the chest to withdraw the
accumulating blood, a procedure known as "pericardioscentesis." An
expert witness testified that pericardioscentesis needs to be
performed quickly because brain death begins to occur in as little
as four to six minutes. According to the operating room's event
log, Dr. Weintraub did not perform the pericardioscentesis until
17:24 _ approximately 19 minutes after the code was announced at
17:05. Mr. Swink presented evidence at trial that, prior to the
code, a pericardioscentesis kit was not in the room.
Several calls were made to obtain a surgeon, but a surgeon
(Dr. Gerhardt) did not arrive until 18:03, almost an hour after the
code. Mr. Swink presented evidence that Dr. Gerhardt and his
partners were, however, "right down the hall." Although the
surgeon was able to stabilize Mrs. Swink, she was already brain
dead. She died on 13 June 2003 after her family decided to remove
her from life support.
On 8 June 2005, Mr. Swink filed a wrongful death action
against Dr. Weintraub, Southeastern, Moses H. Cone Memorial
Hospital, Moses H. Cone Memorial Hospital Operating Corporation,and Moses Cone Medical Services, Inc., asserting claims of medical
malpractice. Following a trial on the claims against Dr. Weintraub
and Southeastern,
(See footnote 1)
the jury returned a verdict in Mr. Swink's
favor, finding defendants Dr. Weintraub and Southeastern negligent
and awarding damages in the amount of $1,047,732.20. The trial
court entered judgment in accordance with the verdict on 1 March
2007. Defendants filed notice of appeal from that judgment on 20
March 2007.
On 22 March 2007, plaintiff moved to tax certain costs against
defendants, requesting a total of $119,075.33. In an order entered
1 May 2007, the trial court granted plaintiff's motion, taxing
defendants $72,709.97 in costs. Defendants appealed from that
order on 29 May 2007.
I
Defendants first argue that the trial court erred in admitting
certain opinion testimony from Mr. Swink's expert witnesses without
requiring them to testify, as to those opinions, regarding the
"same or similar community" standard of care. We first observe
that defendants have not, in their brief, specifically cited or
quoted the testimony that they claim was erroneously admitted.
Moreover, defendants have not attached the pertinent testimony in
an appendix to the brief. The only place where defendants have
identified which testimony is at issue is in the assignments of
error contained in the record on appeal. This approach is notadequate under the Rules of Appellate Procedure and renders more
difficult the Court's review of the issue raised by defendants.
Rule 28(d)(1) specifies that "the appellant
must reproduce as
appendixes to its brief . . . those portions of the transcript of
proceedings which must be reproduced verbatim in order to
understand any question presented in the brief . . . ." (Emphasis
added.) On the other hand, an appellant "is not required to
reproduce an appendix to its brief with respect to an assignment of
error . . . whenever the portion of the transcript necessary to
understand a question presented in the brief is reproduced verbatim
in the body of the brief . . . ." N.C.R. App. P. 28(d)(2).
This Court cannot review defendants' argument regarding the
admissibility of certain portions of the expert testimony without
specifically reviewing those portions of the transcript.
Defendants were, therefore, required to either quote the testimony
in the body of their brief or attach the pertinent testimony in an
appendix to the brief. Not only have defendants neglected to
comply with Rule 28(d), they have also failed to address in this
section of their brief any specifically identified testimony at
all.
In any event, defendants do not dispute that Mr. Swink's
expert witnesses were competent to testify as to the standards of
care that existed in Greensboro, North Carolina in June 2003 with
respect to lead extraction procedures. Defendants instead complain
that questions regarding whether Dr. Weintraub "used his best
judgment or exercised reasonable care and diligence . . . wereasked outside the context of a community standard and were opinions
based on speculation as to the state of mind of Doctor Weintraub."
Defendants' argument hinges on their contention that
Hunt v.
Bradshaw, 242 N.C. 517, 522, 88 S.E.2d 762, 765 (1955), was
superseded or altered by N.C. Gen. Stat. § 90-21.12. In
Hunt, the
Supreme Court set out the scope of a doctor's duty to his or her
patient, stating:
A physician or surgeon who undertakes to
render professional services must meet these
requirements: (1) He must possess the degree
of professional learning, skill and ability
which others similarly situated ordinarily
possess; (2) he must exercise reasonable care
and diligence in the application of his
knowledge and skill to the patient's case; and
(3) he must use his best judgment in the
treatment and care of his patient. If the
physician or surgeon lives up to the foregoing
requirements he is not civilly liable for the
consequences. If he fails in any one
particular, and such failure is the proximate
cause of injury and damage, he is liable.
242 N.C. at 521-22, 88 S.E.2d at 765 (internal citations omitted).
In 1976, the General Assembly enacted N.C. Gen. Stat. §
90-21.12, which provides:
In any action for damages for personal
injury or death arising out of the furnishing
or the failure to furnish professional
services in the performance of medical,
dental, or other health care, the defendant
shall not be liable for the payment of damages
unless the trier of the facts is satisfied by
the greater weight of the evidence that the
care of such health care provider was not in
accordance with the standards of practice
among members of the same health care
profession with similar training and
experience situated in the same or similar
communities at the time of the alleged act
giving rise to the cause of action.
Defendants assert that "this statute effectively supplanted the
common law because it stated that all actions alleging medical
malpractice in this state are governed by the statutory community
standard of care codified in G.S. 90-21.12." This contention is,
however, contrary to controlling Supreme Court authority.
In
Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984), the
Supreme Court addressed a similar argument that N.C. Gen. Stat. §
90-21.12 supplanted the common law standards of care set out in
Hunt. Like defendants in this case, the plaintiffs in
Wall argued
that "the common law standards of care enunciated in [the Supreme
Court's] prior cases are no longer relevant in a medical
malpractice action" and "that all other standards and requirements
defining a physician's duty to a patient . . . are subsumed" within
§ 90-21.12.
Wall, 310 N.C.
at 191, 311 S.E.2d at 576. The Supreme
Court, however, held "that the adoption of the statute was not
intended to accomplish the radical result contended by
plaintiff[s]."
Id. at 192, 311 S.E.2d at 576. The Court explained
that it "simply [could not] conceive that by passing this
legislation, the General Assembly intended to eliminate the
previously existing common law obligations of a physician to his
patient."
Id. The Court, therefore, "conclude[d] that the
intended purpose of G.S. 90-21.12 was merely to conform the statute
more closely to the existing case law applying a 'same or similar
community' standard of care."
Wall, 310 N.C. at 191, 311 S.E.2d at
576. Describing this purpose as a "limited" one, the Court then
stressed that it "further disagree[d] with plaintiffs that it would
be sufficient to instruct the jury that the sole issue relating to
a physician's alleged negligence is whether he complied with this
statutory standard of care. Our case law makes clear that this is
not the extent of the physician's duty to his patient."
Id. The
Court then quoted the three duties set out in
Hunt,
id. at 192-93,
311 S.E.2d at 576-77, specifically noting that the first duty _
that a doctor "'must possess the degree of professional learning,
skill and ability which others similarly situated ordinarily
possess'",
id. at 192, 311 S.E.2d at 577 (quoting
Hunt, 242 N.C. at
521, 88 S.E.2d at 765) _ had been "further refined by language in
our later cases defining the 'same or similar communities' standard
and by G.S. 90-21.12."
Wall, 310 N.C. at 192 n.1, 311 S.E.2d at
577 n.1. The Court concluded by holding: "The applicable standard,
then, is completely unitary in nature, combining in
one test the
exercise of 'best judgment,' 'reasonable care and diligence'
and
compliance with the 'standards of practice among members of the
same health care profession with similar training and experience
situated in the same or similar communities.'"
Id. at 193, 311
S.E.2d at 577 (emphasis original). The Court summarized its
holding as "[h]aving determined that G.S. 90-21.12 did not abrogate
the common law standards of care required of a physician and that
an instruction combining elements of both the statute and
phraseology from our earlier cases is necessary to fully explainthe doctor's duty . . . ."
Wall, 310 N.C. at 193, 311 S.E.2d at
577.
The Court then proceeded to analyze the jury instructions
given in that case. The Court specifically approved the trial
court's decision to instruct the jury first that the defendant
physician was required to render health care in "'accordance with
the standards of practice exercised by like specialists with
similar training and experience who are situated in the same or
similar communities at the time the health care service was
rendered'" followed by the additional instruction that it was "the
duty of the defendant, [physician], to exercise reasonable and
ordinary care and diligence in the use of his skill and in the
application of his knowledge to the plaintiff's condition and to
exert his best judgment in the treatment and care of the
plaintiff."
Id. at 194, 311 S.E.2d at 577-78 (holding that "[t]his
was a complete and accurate summation of the defendant physician's
responsibilities to plaintiff").
If, at that point in the opinion, any question remained
whether N.C. Gen. Stat. § 90-21.12 related to the duty to exercise
reasonable care and diligence and the duty to use best judgment,
the Court definitively answered that question in addressing the
portion of the jury instructions discussing the community standard
of care:
We wish to emphasize again, however, that
compliance with the "same or similar
community" standard of care does not
necessarily exonerate defendant from liability
for medical negligence. The doctor must also
use his "best judgment" and must exercise"reasonable care and diligence" in the
treatment of his patient.
Hunt v. Bradshaw,
242 N.C. 517, 521-22, 88 S.E. 2d [sic] 762,
765 (1955).
If, however, the plaintiff proves a
violation of the statutory standard of care
which proximately caused her injury, this is
sufficient to establish liability on the part
of the attending health care professional for
medical negligence. It would similarly be
sufficient to establish liability if the
plaintiff were able to show that the defendant
did not exercise his "best judgment" in the
treatment of the patient
or if the defendant
failed to use "reasonable care and diligence"
in his efforts to render medical assistance.
These three elements here described relate to
the doctor's
duty to his patient, which is not
necessarily synonymous with the plaintiff's
burden of proof in a medical malpractice case.
"If [the defendant] fails in any
one
particular [to fulfill his duty to the
patient], and such failure is the proximate
cause of injury or damage, he is liable."
Id.
at 522, 88 S.E. 2d [sic] at 765. (Emphasis
added.)
Id. at 199 n.2, 311 S.E.2d at 580 n.2.
In short, our Supreme Court in
Wall specifically rejected the
argument made by defendants in this case. The three duties set out
in
Hunt survived the enactment of N.C. Gen. Stat. § 90-21.12, with
only the first duty implicating that statute. Neither the duty to
exercise reasonable care and diligence nor the duty to use the
doctor's best judgment are restricted by the "similar community"
standard of care. This holding of
Wall has since been reiterated
by the Supreme Court and this Court.
See Jackson v. Bumgardner
318 N.C. 172, 175, 347 S.E.2d 743, 745 (1986) ((holding that "[t]he
scope of a physician's duty to his patient" is set forth in
Hunt,
and only "[t]he first requirement is further refined by the 'sameor similar communities' standard and N.C.G.S. § 90-21.12");
O'Mara
v. Wake Forest Univ. Health Scis., 184 N.C. App. 428, 435, 646
S.E.2d 400, 404 ("[
Hunt's] first requirement is defined in N.C.
Gen. Stat. § 90-21.12 (2005)[.]"),
disc. review granted in part,
disc. review denied in part, 362 N.C. 85, 659 S.E.2d 1 (2007) and
362 N.C. 468, ___ S.E.2d ___, 2008 N.C. LEXIS 641 (2008).
Defendants, however, cite
Bailey v. Jones, 112 N.C. App. 380,
435 S.E.2d 787 (1993), in support of their contention.
Bailey
could not, however, overrule
Wall. Nor is it apparent, when the
entire opinion is considered, that this Court's holding in
Bailey
provides support for defendants' position. After pointing out that
N.C. Gen. Stat. § 90-21.12 did not abrogate the common law duties
set out in
Hunt, but rather "provided a basis by which compliance
with these duties could be determined,"
Bailey, 112 N.C. App. at
386, 435 S.E.2d at 791, this Court used the language relied upon by
defendants in this case:
Thus, the physician is required to (1) possess
the degree of professional learning, skill,
and ability possessed by others with similar
training and experience situated in the same
or similar communities at the time of the
alleged negligent act; (2)
exercise reasonable
care and diligence, in accordance with the
standards of practice among members of the
same health care profession with similar
training and experience situated in the same
or similar communities at the time of the
alleged negligent act, in the application of
his knowledge and skill to the patient's case;
and (3) use his best judgment in the treatment
and care of his patient. Failure to comply
with any one of these duties is negligence.
Id., 435 S.E.2d at 791-92 (emphasis added). Defendants contend
that this recitation of a physician's duties indicates thattestimony regarding the exercise of reasonable care and diligence
must be in accordance with N.C. Gen. Stat. § 90-21.12. Of course,
this language does not support defendants' assertion that opinions
regarding "best judgment" are limited by the standard of care set
out in § 90-21.12.
Even, however, as to the "reasonable care and diligence" prong
of
Hunt,
Bailey ultimately follows
Wall. After determining that
the plaintiff had presented expert testimony that the defendant
doctor violated that duty, the Court held that the trial court
erred in not instructing on that duty:
The instructions given in this case are
insufficient. Our Supreme Court in
specifically addressing this issue held that
it was insufficient for the trial court to
instruct the jury "that the sole issue
relating to a physician's alleged negligence
is whether he complied with [N.C.G.S. §
90-21.12]."
Wall, 310 N.C. at 192, 311 S.E.2d
at 576. In this instance the jury was
instructed that Dr. Jones would be negligent
if he "did not act in accordance with" "the
standards of practice . . . among family
practice physicians with similar training and
experience, and who were situated in the same
or similar communities at the time Dr. Jones
examined the plaintiff in 1988." The use of
only the precise language of N.C. Gen. Stat. §
90-21.12 was expressly prohibited by
Wall, and
therefore, the instruction was error requiring
a new trial.
112 N.C. App. at 388, 435 S.E.2d at 792-93. Thus, this Court
ultimately held in
Bailey that compliance with the duty of
reasonable care and diligence was separate from the standard of
care set out in § 90-21.12.
Accordingly, we are bound by
Wall and must hold that the
community standard of care does not apply to the second and thirdprongs of
Hunt. Defendants' concerns regarding the consequences of
such a holding are immaterial here since only the Supreme Court may
revisit its holding in
Wall.
(See footnote 2)
II
Defendants next argue that the trial court erred by failing to
exclude portions of the testimony of two of Mr. Swink's expert
witnesses, Dr. Ferdinand Venditti and Dr. Richard Friedman, as a
sanction under Rule 26(e) and (f1) of the Rules of Civil Procedure,
because those portions of the experts' opinions were not,
defendants argue, disclosed during discovery. We review a trial
court's decision regarding whether to impose discovery sanctions
for abuse of discretion.
Willoughby v. Wilkins, 65 N.C. App. 626,
642, 310 S.E.2d 90, 100 (1983),
disc. review denied, 310 N.C. 631,
315 S.E.2d 697-98 (1984).
(See footnote 3)
In order to warrant a new trial,
defendants must, however, demonstrate that they were prejudiced by
the admission of the testimony.
Coffman v. Roberson, 153 N.C. App.
618, 626, 571 S.E.2d 255, 260 (2002),
disc. review denied, 356 N.C.
668, 577 S.E.2d 111 (2003). Defendants primarily object to the fact that although Dr.
Friedman and Dr. Venditti discussed in their depositions various
criticisms of Dr. Weintraub and breaches of the standard of care,
they did not testify specifically in terms of a failure to use best
judgment or exercise reasonable care and diligence as they did at
trial. A comparison of the deposition and trial testimony reveals
that the expert witnesses' critique of defendants' care did not
substantially vary from the deposition to the trial. The
deposition testimony _ even without the phrasing "best judgment"
and "reasonable care and diligence" _ provided defendants
sufficient notice of the witnesses' criticisms of defendants to
prepare for trial.
(See footnote 4)
In addition, Mr. Swink's written discovery
responses gave defendants notice that Mr. Swink was contending that
these criticisms violated all three
Hunt duties.
In any event, defendants have not explained why their
knowledge of the expert witnesses' criticisms of defendants and the
contentions regarding breaches of the standard of care was
inadequate for them to effectively prepare for trial in the absence
of explicit disclosure from the witnesses that they would testify
that these failures also constituted a failure to use best judgment
or exercise reasonable diligence and care. We do not believe that
the witnesses' failure to couch their criticisms in terms of "best
judgment" and "reasonable care and diligence" renders the trial
court's decision not to exclude the testimony manifestlyunreasonable.
See State v. Thibodeaux, 352 N.C. 570, 579, 532
S.E.2d 797, 804 (2000) ("Abuse of the trial court's discretion will
be found only where the ruling is manifestly unsupported by reason
or is so arbitrary it could not have been the result of a reasoned
decision." (internal quotation marks omitted)),
cert. denied, 531
U.S. 1155, 148 L. Ed. 2d 976, 121 S. Ct. 1106 (2001).
Defendants also argue that Dr. Friedman and Dr. Venditti
testified at trial to previously undisclosed opinions regarding
causation and other subjects. Mr. Swink has, however, accurately
pointed to the portions of their depositions in which similar
testimony appeared or identified testimony from other witnesses,
including Mr. Swink's third expert witness, that paralleled the
challenged testimony. Defendants have not, in light of the
deposition testimony and the trial testimony of other witnesses,
demonstrated in what way the trial court abused its discretion or
specifically how they were prejudiced at trial by the admission of
the testimony.
See Suarez v. Wotring, 155 N.C. App. 20, 31, 573
S.E.2d 746, 753 (2002) (holding that any error in trial court's
admission of expert opinion not disclosed in discovery was harmless
when opinion was substantially similar to testimony given by
another expert, and appellant did not show how introduction of
challenged opinion influenced jury's verdict),
disc. review denied
and cert. denied, 357 N.C. 66, 579 S.E.2d 107 (2003).
Although defendants analogize this case to
Green v. Maness, 69
N.C. App. 292, 300, 316 S.E.2d 917, 922,
disc. review denied, 312
N.C. 622, 323 S.E.2d 922 (1984), the defendant in
Green hadnotified the plaintiffs just nine days prior to trial that the
defendant intended to call a new expert witness who would testify
regarding an entirely new medical theory of causation for the minor
plaintiff's injury. This case does not, however, involve the
presentation of new witnesses or new medical theories. Notably,
even in
Green, this Court concluded that no sanctions were
warranted.
Id. at 299, 316 S.E.2d at 922. Instead, the Court
ordered a new trial based on the denial of plaintiffs' motion for
a continuance.
Id., 316 S.E.2d at 921.
In contrast to the plaintiffs in
Green, defendants have
provided only a boilerplate statement that they were prejudiced
"because they had no opportunity to prepare for cross-examination
or rebuttal of testimony regarding the new opinions." Given the
fact that defendants have not pointed to any entirely new medical
theory presented at trial or specifically explained how they could
not prepare for the testimony ultimately presented at trial, we
cannot conclude that the trial court abused its discretion in
declining to exclude the testimony.
III
Defendants contend that the trial court also erred in
admitting Dr. Venditti's testimony regarding his personal
preferences and practices in conducting informed consent
discussions with his patients. Specifically, defendants point to
the following testimony:
Q. Would you discuss the types of
things you would discuss in an informed
consent discussion[?]
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
A. Again, the first thing I would do is
explain to the patient what the problem is.
Something like your pacemaker is not
functioning properly, its battery is running
down. I then explain to them the procedure to
deal with that. So we need to explant the old
pacemaker generator, put a new one in. It's
an incision under your collar bone to get into
the pocket.
I then would talk about the risks
and benefits of that. The risks being
bleeding, infection, those sorts of things.
If we don't do it, the battery is going to run
down completely and it's going to stop pacing
your heart and you're going to have problems
from that perspective.
I would then talk about
alternatives. Again, if we do nothing then we
would have difficulty with the pacing system
becoming non-functional. And then I would say
do you have any questions, do you want to ask
me anything about this, what I'm proposing
that we do.
Defendants assert that the testimony should have been excluded as
irrelevant under Rules 401 and 402 of the Rules of Evidence.
We first note that defendants did not object when Dr. Venditti
was asked about "your practice regarding the performance of lead
extractions." Dr. Venditti then proceeded to testify at length,
without objection, as to his personal practice when performing a
lead extraction. It is questionable, therefore, whether defendants
preserved this issue for appellate review.
See State v. Tarlton,
146 N.C. App. 417, 421, 553 S.E.2d 50, 53 (2001) ("It is well
settled that a defendant waives objection to the admission oftestimony when testimony of the same import is admitted without
objection.").
In any event, the test for relevancy of evidence is whether it
has "any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." N.C.R. Evid.
401. Although a trial court's rulings on relevancy "are given
great deference on appeal," such rulings are "technically . . . not
discretionary and therefore are not reviewed under the abuse of
discretion standard . . . ."
State v. Wallace, 104 N.C. App. 498,
502, 410 S.E.2d 226, 228 (1991),
appeal dismissed and disc. review
denied, 331 N.C. 290, 416 S.E.2d 398,
cert. denied, 506 U.S. 915,
121 L. Ed. 2d 241, 113 S. Ct. 321 (1992).
Defendants, in support of this assignment of error, rely
exclusively upon
Rorrer v. Cooke, 313 N.C. 338, 329 S.E.2d 355
(1985).
Rorrer did not, however, address the admissibility of
evidence of an expert witness' personal practices under Rules 401
and 402, but rather held that the personal opinion of an expert
witness as to what a professional should have done is not
sufficient to establish a breach of the standard of care: "The mere
fact that one [expert witness] testifies that he would have acted
contrarily to or differently from the action taken by defendant is
not sufficient to establish a prima facie case of defendant's
negligence."
Id. at 357, 329 S.E.2d at 367. The Supreme Court in
Rorrer upheld the trial court's granting of summary judgment
because the expert witness' affidavit "fail[ed] to state what thestandard of care to which [the defendant] was subject required him
to do" and "nowhere state[d] that [the defendant's] inaction
violated a standard of care required of similarly situated
attorneys."
Id. at 356-57, 329 S.E.2d at 367. Although the
Supreme Court thus held that the expert affidavit was insufficient
to prove a
prima facie case of professional negligence, it never
held that the testimony in the affidavit was inadmissible.
Defendants, however, argue that "[b]ecause personal
preferences and remarks concerning how experts might have treated
the decedent are not evidence of the standard of care, this
evidence should have been excluded pursuant to Rules 401 and 402 of
the North Carolina Rules of Evidence." This assertion overlooks
the fact that such testimony may be relevant for purposes other
than defining the standard of care.
See Wallbank v. Rothenberg, 74
P.3d 413, 416 (Colo. Ct. App. 2003) ("While [prior cases] make it
clear that a standard of care may not be established by the
testimony of the personal practices of expert witnesses, those
cases do not address whether this testimony may be relevant when
other evidence is presented concerning the applicable standard of
care."),
cert. allowed, 2003 Colo. LEXIS 579 (Colo. 2003),
cert.
denied, 2004 Colo. LEXIS 213 (Colo. 2004). For example, our
Supreme Court has found relevant testimony of personal practices
when used to explain the standard of care.
See Rouse v. Pitt
County Mem'l Hosp., Inc., 343 N.C. 186, 195-96, 470 S.E.2d 44, 49-
50 (1996) (in reversing grant of summary judgment, relying upon
testimony of doctor as to "what he normally does as an on-callattending physician" as explaining the standard of care);
see also
Wallbank, 74 P.3d at 417 ("[B]ecause each expert addressed the
applicable standard of care, testimony regarding their personal
practices was proper direct and cross-examination. Thus, the jury
could give whatever weight it determined was appropriate to the
testimony of those experts, including ignoring it completely.").
Other jurisdictions have held that "testimony regarding an expert's
personal practices may either bolster or impeach the credibility of
that expert's testimony concerning the standard of care."
Id.;
see
also Bergman v. Kelsey, 375 Ill. App. 3d 612, 634, 873 N.E.2d 486,
507 ("Our supreme court has determined that the personal practices
used by a testifying expert are not relevant and are insufficient
to establish the applicable medical standard of care. However, a
medical expert's personal practices may well be relevant to that
expert's credibility, particularly when those practices do not
entirely conform to the expert's opinion as to the standard of
care." (internal citations omitted)),
appeal denied, 226 Ill. 2d
579, 879 N.E.2d 929 (2007).
Defendants' contention in this case that evidence of an expert
witness' personal practices is never admissible is not supportable.
We need not, however, resolve the question whether in North
Carolina such evidence is always admissible. In this case, our
review of Dr. Venditti's testimony indicates that it was comparable
to the testimony relied upon in
Rouse and, therefore, the trial
court did not err in admitting the testimony. Defendants further argue, however, that even if the evidence
was admissible, the trial court erred by refusing to give their
requested limiting instruction regarding Dr. Venditti's personal
preferences and practices. "A trial court must give a requested
instruction that is a correct statement of the law and is supported
by the evidence."
State v. Conner, 345 N.C. 319, 328, 480 S.E.2d
626, 629,
cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134, 118 S. Ct.
196 (1997).
Defendants' proposed instruction reads:
[Special limiting instruction] Members of
the jury, you may have heard some testimony
regarding a particular expert witness'
personal preference in the practice of
medicine or how that particular expert would
have performed in a given situation.
Such
testimony is not offered to prove or disprove
the standard of care applicable to defendants
in this case. Rather, such testimony may be
considered by you only in the context of that
expert's entire testimony and the weight you
choose to give it.
(Emphasis added.) The emphasized language does not, however,
precisely state the applicable law. While
Rorrer establishes that
testimony of personal practices, standing alone, cannot prove the
standard of care, the proposed limiting instruction does not
parallel the holding in
Rorrer, but rather incorrectly suggests
that such testimony is completely irrelevant to the standard of
care even when other evidence of the standard exists.
Moreover, even if we assume,
arguendo, that the trial court
erred in not giving the instruction, defendants were required to
demonstrate prejudice.
See Outlaw v. Johnson, ___ N.C. App. ___,
___, 660 S.E.2d 550, 559 (2008) ("Failure to give a requested andappropriate jury instruction is reversible error if the requesting
party is prejudiced as a result of the omission."). For an
appellant to be prejudiced, the failure to give the instruction
must have "likely misled the jury."
Liborio v. King, 150 N.C. App.
531, 534, 564 S.E.2d 272, 274,
disc. review denied, 356 N.C. 304,
570 S.E.2d 726 (2002).
Defendants have made no attempt to explain in what way the
jury was misled by the omission of the limiting instruction. While
defendants argue generally that "[t]estimony regarding personal
preferences . . . creates a bogus standard of care by which
defendants should be judged," defendants have not pointed to any
aspect of Dr. Venditti's description of what he would do in an
informed consent discussion that varied from the applicable
standard of care.
(See footnote 5)
Accordingly, defendants have failed to
demonstrate that they are entitled to a new trial as a result of
the failure to give the requested limiting instruction.
IV
Defendants also contend that the trial court erroneously
admitted hearsay testimony, including (1) testimony by Mr. Swink
regarding statements of his wife, a cardiologist, and the surgeon
who ultimately operated on Mrs. Swink and (2) deposition testimony
of a lab technician, Holly Boswell, regarding statements by another
lab technician. Defendants further contend that the trial court
should not have admitted testimony of Ms. Boswell regarding whenDr. Weintraub realized that Mrs. Swink's heart had ceased to beat.
We address each piece of testimony in order.
First, defendants point to Mr. Swink's testimony regarding the
complications surrounding his wife's 1994 pacemaker surgery:
Q. Now, after the procedure was over,
describe what, if anything, you learned about
complications associated with the procedure[?]
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
A. After talking with Peggy, it was my
understanding that she experienced pulling in
her chest. She felt like that her heart was
moving in her chest when the leads were being
pulled on to be removed. She felt as she was
_ as if she was being lifted off the table.
She also recalled being resuscitated.
Mr. Swink contends that the statement falls within the present
sense impression exception to the hearsay rule set out in Rule
803(1) of the Rules of Evidence.
Rule 803(1) renders admissible "[a] statement describing or
explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter."
While Mr. Swink's testimony could be read as indicating that the
statements were made just after the 1994 procedure and, therefore,
would fall within the exception, we need not resolve that question
since defendants have made no showing as to how they were
prejudiced by testimony regarding a procedure that was not the
basis for the lawsuit.
See Scott v. Scott, 157 N.C. App. 382, 389,
579 S.E.2d 431, 436 (2003) (holding that appellant must show that
incompetent evidence caused some prejudice). This testimony simplyexplained why the Swinks were concerned about another lead
extraction and duplicated other testimony not challenged on appeal.
Defendants next challenge Mr. Swink's testimony reporting what
he remembered Dr. Alfred B. Little saying in his deposition:
I recall that Doctor Little stated that he
asked for a surgeon to be called. None came.
He asked again for a surgeon to be called and
after some time none had arrived. He said he
personally went to a phone and called Doctor
Gerhardt's service and got in touch with him
and had him come to the cath lab.
Dr. Little was an employee of defendant Southeastern at the time of
his deposition. Because his statements in the deposition related
to matters within the scope of his employment, those statements
constituted admissions of a party-opponent under Rule 801(d) of the
Rules of Evidence and were admissible.
The last of Mr. Swink's testimony challenged as inadmissible
hearsay relates to whether Dr. Gerhardt had asked him if he had
considered having an autopsy performed:
Q. Did you have a conversation with
somebody about an autopsy?
A. Yes, I did. I had a conversation
with Doctor Gerhardt.
Q. What was discussed?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
A. As I was leaving Peggy the last
time, walking out of the room, Doctor Gerhardt
was outside the door at a standing desk doing
paperwork. And he stopped me and asked me if
I had considered an autopsy and I told him
that I had not. And he _
[DEFENSE COUNSEL]: Object to the hearsay,
Your Honor.
THE COURT: Sustained.
Q. After you had this conversation,
what did you decide to do with respect to
getting an autopsy?
A. I decided to have an autopsy
performed.
While defendants' initial objection was overruled, the trial court
sustained defendants' renewed objection regarding the precise
testimony at issue, and, thus, there is no issue to be reviewed on
appeal.
Defendants next turn to the testimony of Hollie Boswell, a lab
technician present during Mrs. Swink's surgery whose deposition was
videotaped and played for the jury at trial. Defendants argue that
Ms. Boswell's reports of what another lab technician said or
observed during the procedure constituted hearsay. The trial
court, however, correctly concluded that those statements were
admissible to show why Ms. Boswell undertook the actions that she
did. As our Supreme Court has explained, "[o]ut-of-court
statements that are offered for purposes other than to prove the
truth of the matter asserted are not considered hearsay.
Specifically, statements are not hearsay if they are made to
explain the subsequent conduct of the person to whom the statement
was directed."
State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463,
473 (internal citation omitted),
cert. denied, 537 U.S. 896, 154 L.
Ed. 2d 165, 123 S. Ct. 182 (2002). Finally, defendants contend that the trial court erred under
Rule 701 of the Rules of Evidence in admitting the following
testimony:
Q. . . . . When did Doctor Weintraub
instruct you all to wake Peggy up in relation
to his request that the code be called?
A. My recollection, Marcus [Brown] was
inquiring about the [oxygen] sat[uration]. I
went to check on the sat. At that point,
while I'm checking the sat probe, he begins to
say, wake her up. I then tried to arouse her
and he realized, I assumed at that point, that
her heart had ceased to beat. So that point
was when he asked for us to call a code.
Defendants argue that Ms. Boswell's assumption that Dr. Weintraub
had realized that Mrs. Swink's heart had ceased to beat prior to
calling the code was not the proper subject of lay testimony and
constituted speculation.
Even assuming, without deciding, that this testimony does not
fall within the scope of Rule 701 (governing testimony of lay
witnesses "in the form of opinions or inferences"), this testimony
was essentially identical to testimony of both Dr. Weintraub
himself and Dr. Jeffrey Goodman that Dr. Weintraub had observed
that the heart was not beating, that the technicians said Mrs.
Swink was not responding, and that Dr. Weintraub then called the
code. The admission of Ms. Boswell's testimony was thus harmless.
V
Defendants next challenge the testimony of Mr. Swink's
economist Dr. Gary Albrecht regarding damages. Rule 702(a)
provides that "[i]f scientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidenceor to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion." N.C.R. Evid. 702(a).
Defendants contend that Mr. Swink "failed to show that Dr. Albrecht
had sufficient skill, knowledge, or experience in or related to
subject matter [sic] to qualify as an expert and given [sic]
testimony on damages."
Mr. Swink tendered Dr. Albrecht as an expert in economics and
valuation of lost income without objection from defendants. At
trial, prior to being tendered as an expert, Dr. Albrecht testified
at length regarding his qualifications to testify, such as his
education; his employment history, including the fact that he
taught econometrics, economic forecasting, advanced microeconomics,
and introductory economics at Wake Forest University; his
publications and presentations in the area of forensic economics
and involving questions of valuation; and the fact he had
previously testified as an expert regarding present value of lost
income and services. Because defendants did not object to Dr.
Albrecht's qualifications at the time he was tendered as an expert
witness, defendants failed to preserve the issue for review on
appeal.
State v. White, 340 N.C. 264, 294, 457 S.E.2d 841, 858,
cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436, 116 S. Ct. 530
(1995).
To the extent that defendants are contending that Dr. Albrecht
was not qualified to render the opinions contained in his testimony
and report, that issue "is chiefly a question of fact, thedetermination of which is ordinarily within the exclusive province
of the trial court."
State v. Goodwin, 320 N.C. 147, 150-51, 357
S.E.2d 639, 641 (1987). Thus, "[w]hen reviewing whether the trial
court erred in permitting a witness to qualify as an expert, the
appellate court looks for an abuse of discretion."
State v.
Steelmon, 177 N.C. App. 127, 130, 627 S.E.2d 492, 494 (2006).
Although defendants assert in conclusory fashion that the trial
court abused its discretion in admitting Dr. Albrecht's damages
opinions and report, they have not explained in what way Dr.
Albrecht _ based on his knowledge, skill, experience, training, or
education _ was not qualified to testify regarding the valuation of
lost income or services. This assignment of error is, therefore,
overruled.
VI
Defendants next argue that the trial court erred by refusing
to give the jury their proposed instruction on informed consent.
Defendants requested that the trial court use the informed consent
instruction set out in N.C.P.I.-Civil 809.45, which the trial court
agreed to do. The following colloquy occurred between the trial
court and defense counsel during the charge conference regarding
defendants' request for an additional special instruction regarding
informed consent based on N.C. Gen. Stat. § 90-21.13 (2007):
THE COURT: Anything further now from the
defendant?
. . . .
[DEFENSE COUNSEL]: Well, just that I did
state for the record the request for the
instruction that obtaining an executed writtenconsent form for a procedure created a
presumption under the law that informed
consent had been properly obtained.
THE COURT: Is there _ I [have] never seen
an instruction like that.
[DEFENSE COUNSEL]: We didn't either, Your
Honor. It's in the statute. And that's
really the basis for the request.
THE COURT: Have you got a copy of the
statute there?
[DEFENSE COUNSEL]: No, sir.
We have been unable to find any indication in the record or
transcript _ and defendants' brief and assignments of error contain
no such citation _ that defendants submitted this requested special
instruction to the trial court in writing.
N.C. Gen. Stat. § 1-181 (2007) and Rule 51(b) of the Rules of
Civil Procedure require that requests for special instructions _
i.e., non-pattern jury instructions _ must be submitted to the
trial court in writing prior to the charge conference.
See N.C.
Gen. Stat. § 1-181 (providing that special instructions must be in
writing, labeled as special instructions, signed by counsel, and
submitted to the trial court prior to the charge conference);
N.C.R. Civ. P. 51(b) (same). Requests for special instructions not
made in compliance with N.C. Gen. Stat. § 1-181 and Rule 51(b) may
be denied at the trial court's discretion.
See Beroth Oil Co. v.
Whiteheart, 173 N.C. App. 89, 98, 618 S.E.2d 739, 746 (2005)
("Because defendant did not comply with the requirements of Rule
51(b), the trial court acted properly within its discretion in
denying the request."),
appeal dismissed and disc. review denied,360 N.C. 531, 633 S.E.2d 674 (2006);
Byrd's Lawn & Landscaping,
Inc. v. Smith, 142 N.C. App. 371, 379, 542 S.E.2d 689, 694 (2001)
("Because defendant did not comply with the requirements of Rule
51(b), the trial court acted properly within its discretion in
denying the request."). We see no basis for concluding that the
trial court abused its discretion here when defendants did not
submit a written proposed instruction, and the evidence was, at
best, equivocal whether Mrs. Swink had signed a written consent
form that in fact covered the lead extraction.
VII
Defendants next argue that the trial court erred in its jury
instructions by repeating Mr. Swink's seven contentions of
negligence following its instruction on each of the three theories
of proving medical malpractice. We disagree.
When instructing the jury, the trial court first generally
explained a doctor's three duties to his or her patient:
Every health care provider is under a
duty to use his best judgment in the treatment
and care of his patient. To use reasonable
care and diligence in the application of his
knowledge and skill to his patients care. To
provide health care in accordance with the
standard of practice among members of the same
health care profession with similar training
and experience situated in the same or similar
communities at the time the health care is
rendered.
The trial court then instructed the jury regarding Mr. Swink's
contentions as to each of the duties:
The first contention is that the
defendant failed to use his best judgment in
the treatment and care of his patient in that
the defendant negligently failed to obtaininformed consent, negligently failed to stop
the lead extraction after encountering
excessive scar tissue, negligently failed to
consult with a surgeon prior to the lead
extraction, negligently failed to prepare
Margaret Swink for a pericardiocentesis [sic],
negligently failed to use an arterial line,
negligently failed to use echocardiographic
equipment and negligently failed to treat
pericardial tamponade in a timely fashion.
The second contention is that the
defendant failed to use reasonable care and
diligence in the application of his knowledge
and skill to his patient's care in that the
defendant negligently failed to obtain
informed consent, negligently failed to stop a
lead extraction after encountering excessive
scar tissue, negligently failed to consult
with a surgeon prior to the lead extraction,
negligently failed to prepare Margaret Swink
for pericardiocentesis [sic], negligently
failed to use an arterial line, negligently
failed to use electrocardiographic material
and negligently failed to treat pericardial
tamponade in a timely fashion.
The third contention is that the
defendant failed to provide health care in
accordance with the standards of practice
among members of the same health care
profession with similar training and
experience situated in the same or similar
communities at the time the health care was
rendered in that the defendant negligently
failed to obtain informed consent, negligently
failed to stop the lead extraction after
encountering excessive scar tissue,
negligently failed to consult with a surgeon
prior to lead extraction, negligently failed
to prepare Margaret Swink for
pericardiocentesis [sic], negligently failed
to use an arterial line, negligently failed to
use echocardiographic material and negligently
failed to treat pericardial tamponade in a
timely fashion.
These jury instructions track the template for medical
malpractice instructions set out in N.C.P.I. _ Civil 809.00. "This
Court has recognized that the preferred method of jury instructionis the use of the approved guidelines of the North Carolina Pattern
Jury Instructions."
Caudill v. Smith, 117 N.C. App. 64, 70, 450
S.E.2d 8, 13 (1994),
disc. review denied, 339 N.C. 610, 454 S.E.2d
247 (1995). Defendants do not challenge the instruction as a
misstatement of the law or as unsupported by the evidence, but
rather argue that "the trial judge's overt repetition of the
categories of negligence and plaintiff's specific contentions of
negligence was extremely prejudicial to defendants," citing
Stern
Fish Co. v. Snowden, 233 N.C. 269, 63 S.E.2d 557 (1951).
Stern
Fish did not, however, involve repetition, but rather an
instruction that was deemed "misleading, if not confusing."
Id. at
271, 63 S.E.2d at 558-59.
Our Supreme Court has, nonetheless, stressed that "jury
instructions should be as clear as practicable, without needless
repetition."
State v. Trull, 349 N.C. 428, 455-56, 509 S.E.2d 178,
196 (1998),
cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80, 120 S.
Ct. 95 (1999). On the other hand, the mere fact that a trial court
repeats "an otherwise proper instruction does not constitute
error."
State v. McDougald, 336 N.C. 451, 461, 444 S.E.2d 211, 217
(1994) (holding that trial court's repetition of an instruction on
flight after each of the three charged offenses did not constitute
improper expression of court's opinion).
The Supreme Court has awarded a new trial based on correct
instructions only when "the instructions in their totality were so
emphatically favorable to [the appellee] that [the appellants] are
entitled to a new trial."
Wall, 310 N.C. at 190, 311 S.E.2d at575. In
Wall, as in this case, the trial court had instructed the
jury in conformity with the pattern jury instructions, but our
Supreme Court determined that a new trial was warranted because of
"the exculpatory nature of the pattern jury instructions themselves
and to their selections and use by the trial judge."
Id. at 190-
91, 311 S.E.2d at 576.
The instructions in this case do not rise to the level present
in
Wall. Defendants identify nothing inherently wrong with the
trial court's reciting plaintiff's contentions regarding how
defendants had breached each of the
Hunt duties. It happened that
those contentions were the same for each duty. We do not believe
that the trial court's approach in this case can be meaningfully
distinguished from the repetition of the flight instruction after
each offense in
McDougald. When the charge is viewed in its
totality, we do not believe that the instructions were overly
favorable to plaintiff or that the pattern instructions can be
viewed as inherently inculpatory, as required by
Wall.
Defendants also argue that "[f]ollowing a jury question, the
court, on its own initiative and without giving counsel an
opportunity to object or to be heard, elected to instruct the jury
again on the issue of negligence, this time reiterating the three
methods of proving negligence and plaintiff's seven contentions."
The transcript indicates, however, that when the jury asked to have
a copy of the jury instructions, the trial court refused, stating
that it preferred to re-read the instructions to the jury. When
asked to comment on the trial court's decision to re-instruct thejury, defense counsel responded: "The defendants are content with
the Court's position." Defendants did not suggest to the trial
court that it omit the factual contentions. The trial court then
read the instructions to the jury a second time, although it only
listed once the seven contentions as to how defendants breached the
three duties. After the instructions were given, defendants then
renewed their objection to the trial court's reciting the seven
factual contentions.
We do not believe that defendants have adequately preserved
for appellate review the issue of re-instruction. In any event,
whether to repeat instructions in response to an inquiry by the
jury falls within the discretion of the trial court.
State v.
Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992).
Given the jury's inquiry, we cannot find the re-instruction to be
the "needless repetition" against which the Supreme Court has
warned.
Id. ("We do not find this instruction to be erroneous nor
do we find its repetition to be needless, in light of the fact that
it was specifically requested by the jury."). We believe the
charge, "when considered contextually as a whole, is fair, correct,
and adequate, and is free from prejudicial error."
Jones v. City
of Greensboro, 51 N.C. App. 571, 591, 277 S.E.2d 562, 575 (1981),
overruled on other grounds by Fowler v. Valencourt, 334 N.C. 345,
435 S.E.2d 530 (1993).
VIII
In the second appeal, defendants contend that the trial court
erred by taxing certain costs against them that are not expresslyauthorized by statute. We must, however, first determine whether
the trial court possessed subject matter jurisdiction to enter its
award of costs. "The issue of jurisdiction over the subject matter
of an action may be raised at any time during the proceedings,
including on appeal. This Court is required to dismiss an appeal
ex mero motu when it determines the lower court was without
jurisdiction to decide the issues."
McClure v. County of Jackson,
185 N.C. App. 462, 469, 648 S.E.2d 546, 550 (2007) (internal
citations omitted).
In
McClure, this Court held that a trial court lacked subject
matter jurisdiction under N.C. Gen. Stat. § 1-294 (2007) to enter
an order awarding attorneys' fees and costs after notice of appeal
had been filed as to the underlying judgment.
McClure, 185 N.C.
App. at 471, 648 S.E.2d at 552. As
McClure acknowledged, and prior
decisions of this Court had held, if an award of attorneys' fees is
the result of a party's prevailing as to the underlying judgment,
then the issue of attorneys' fees cannot be deemed a "matter
included in the action and not affected by the judgment appealed
from," N.C. Gen. Stat. § 1-294, and, therefore, the trial court
lacks jurisdiction to enter an order awarding attorneys' fees
following appeal of the judgment.
See McClure, 185 N.C. App. at
471, 648 S.E.2d at 551 ("When, as in the instant case, the award of
attorney's fees was based upon the plaintiff being the 'prevailing
party' in the proceedings, the exception set forth in N.C. Gen.
Stat. § 1-294 is not applicable.");
Gibbons v. Cole, 132 N.C. App.
777, 782, 513 S.E.2d 834, 837 (1999) ("Here, the trial court'sdecision to award attorneys fees was clearly affected by the
outcome of the judgment from which plaintiffs appealed.");
Brooks
v. Giesey, 106 N.C. App. 586, 590-91, 418 S.E.2d 236, 238 (holding
that when "a statute such as section 6-21.5, which contains a
'prevailing party' requirement," is the basis for award of
attorneys' fees, trial court "is divested of jurisdiction" over
request for attorneys' fees by appeal of judgment),
disc. review
allowed, disc. review on additional issues denied, 332 N.C. 664,
424 S.E.2d 904 (1992),
aff'd, 334 N.C. 303, 432 S.E.2d 339 (1993).
The basis for the award of costs in this case was N.C. Gen.
Stat. § 6-1 (2007), which provides: "To the party for whom judgment
is given, costs shall be allowed as provided in Chapter 7A and this
Chapter." Thus, an award of costs is directly dependent upon
whether the judgment is sustained on appeal. Accordingly, under
the controlling reasoning of
McClure,
Gibson, and
Brooks, a trial
court lacks jurisdiction to enter an award of costs under N.C. Gen.
Stat. § 6-1 once notice of appeal has been filed as to the
judgment.
Here, the judgment was entered on 1 March 2007. Defendants
filed notice of appeal from that judgment on 20 March 2007. The
trial court entered its order on costs on 1 May 2007. Since
defendants had already appealed from the judgment, the trial court
lacked jurisdiction under N.C. Gen. Stat. § 1-294 to enter the
order taxing costs. We note that the judgment stated that "[c]ourt
costs will be taxed pursuant to a separate order of this Court."
This Court in
McClure, however, held that such a "reservation" ofan issue was not sufficient to permit the trial court to
subsequently enter an order on the issue, because "[i]t is
fundamental that a court cannot create jurisdiction where none
exists." 185 N.C. App. at 471, 648 S.E.2d at 551.
Thus, even though we have, in this opinion, upheld the
judgment, we must, because it is a matter of jurisdiction, vacate
the order taxing costs and remand for entry of a new order. As
this Court suggested in
McClure, "the better practice is for the
trial court to defer entry of the written judgment until after a
ruling is made on the issue of attorney's fees [and costs], and
incorporate all of its rulings into a single, written judgment.
This will result in only one appeal, from one judgment,
incorporating all issues in the case."
Id., 648 S.E.2d at 551-52.
No error in part and vacated and remanded in part.
Chief Judge MARTIN and Judge STROUD concur.
Footnote: 1