Department of Transp. v. Charlotte Area Manufactured Housing, Inc.

• Decision Date: 07 October 2003
• Docket Number: No. COA02-1305.,COA02-1305.
• Citation: 160 NC App. 461,586 S.E.2d 780
• Court: North Carolina Court of Appeals
• Parties: DEPARTMENT OF TRANSPORTATION, Plaintiff, v. CHARLOTTE AREA MANUFACTURED HOUSING, INC., Defendant.

586 S.E.2d 780

160 NC App. 461

DEPARTMENT OF TRANSPORTATION, Plaintiff, v. CHARLOTTE AREA MANUFACTURED HOUSING, INC., Defendant.

No. COA02-1305.

Court of Appeals of North Carolina.

October 7, 2003.

Attorney General Roy Cooper, by Assistant Attorney Generals James M. Stanley, Jr. and Douglas W. Corkhill, for the State.

Peter E. McArdle and Raymond A. Warren, Charlotte, for defendant-appellant.

LEVINSON, Judge.

Defendant appeals from an order partially denying its motion to tax costs against the Department of Transportation (DOT) following a highway condemnation case. We affirm.

I.

On 2 November 1998, DOT brought these two condemnation actions for the acquisition of a new highway right of way over two parcels of the defendant's land and posted bonds pursuant to N.C.G.S. § 136-103 (2001). On 3 November 1999, the defendant answered and asserted that the bonds posted by DOT were not fair compensation. The cases were consolidated for trial, and on 5 November 2001, a jury awarded substantially higher values for both parcels than DOT had deposited with the clerk of court pursuant to N.C.G.S. § 136-103. On 14 December 2001, the trial court entered judgment and ordered DOT to pay the costs of the action. The defendant sought to have its expenses associated with mediation, expert witness fees, expert appraisal fees, maps, and trial exhibits included in the costs taxed against DOT. The trial court granted defendant's motion with respect to mediation expenses and reasonable and necessary expert witness fees; the trial court denied defendant's motion with respect to appraisal fees, maps, and trial exhibits. The trial court made the following findings of fact:

2. At the trial of this matter, defendant tendered three witnesses as experts in the area of property appraisal. Mr. Thomas B. Harris and Mr. Edward M. Wright, both of the firm of T.B. Harris, Jr. & Associates, testified as to the fair market value of the tracts of property in question immediately before and after the taking by the plaintiff; Mr. John McPherson also testified to the same subject matter.

....

4. The charges submitted by T.B. Harris, Jr. & Associates include charges for both appraisal fees and fees for preparation and testifying in court at the trial of this matter. Although some of the charges are not completely specific, after careful examination it appears to the court that the sums of $3,500.00 ..., $625.00 ..., and $2,500.00..., totaling $6,625.00, clearly represent appraisal costs.

5. The remainder of the amount invoiced by T.B. Harris, Jr. & Associates, to wit: $16,998.76, includes charges by both Thomas B. Harris and Edward M. Wright. The total sum includes charges for pre-trial discussions with counsel for defendant, pre-trial preparation time reviewing materials, actual trial testimony time (including time spent traveling to and from the courthouse)....

....

7. Mr. John P. McPherson also was subpoenaed and testified as an expert witness for defendant. His invoice to the defendant was in the total sum of $12,531.25, $10,000.00 of which represented appraisal costs....

8. Mr. Roger D. Shoaf of Shoaf Grading Company, and Mr. Tommy Abernathy, of Hal Abernathy, Inc., submitted invoices in the amount of $500.00 each for estimates on grading the subject property.... Further, Accuracy Sitework Estimators, Inc., submitted a bill to Mr. Shoaf in the sum of $650.00 for cut and fill estimates for the subject property. The court finds that the amount of $1,650.00 for invoices submitted by Mr. Shoaf, Mr. Abernathy, and Accuracy Sitework Estimators, Inc., are a part of the appraisal costs incurred by defendant in this matter.

9. Defendant has requested reimbursement for charges for maps, photographs, enlargement and mounting of exhibits, all in the total amount of $4,310.00....

The trial court made the following conclusions of law:

A. There is no authority for the court to award any amount to defendant for its appraisal costs. Costs may be awarded by this court only pursuant to statutory authority, Charlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179, 185 (1972), and our statutes do not provide for allowance of appraisal fees in condemnation proceedings. See, in the context of a domestic case, the discussion of the Court of Appeals in Wade v. Wade, 72 N.C.App. 372, 384, 325 S.E.2d 260, 271, disc. rev. denied, 313 N.C. 612, 330 S.E.2d 616 (1985).... Further, G.S. [§ ] 136-119 specifically provides for certain limited situations when appraisal fees may be recovered by a landowner, but none of those statutory exceptions apply to this situation. If appraisal fees were recoverable in all condemnation matters, there would be no need for the statutory exceptions.

....

C. The court is not able to find any statutory authority pursuant to which it can reimburse defendant for its costs for maps and exhibits. Our Supreme Court has not spoken to this point, and our Court of Appeals has allowed such assessment of costs only in the limited situation where costs are sought pursuant to Rule 41(d), following a Rule 41(a) voluntary dismissal. See, for example, Lewis v. Setty, 140 N.C.App. 536, 537 S.E.2d 505 (2000).

Defendant appeals from the trial court's conclusions that it lacked the authority to tax DOT with the defendant's expenses associated with appraisal fees, maps, and trial exhibits. Defendant makes two arguments on appeal, namely, that the trial court had discretion under N.C.G.S. § 6-20 (2001) to tax as costs: (1) appraisal fees incurred by the defendant, and (2) sums expended by the defendant for maps and trial exhibits.

The defendant properly concedes that N.C.G.S. § 136-119 (2001) does not authorize the taxing of the appraisal costs incurred in the present matter. Accordingly, our analysis is confined to whether the trial court had discretion under N.C.G.S. § 6-20 to tax the sums in question.

II.

"`[W]here an appeal presents [a] question[ ] of statutory interpretation, full review is appropriate, and [we review] a trial court's conclusions of law ... de novo.'" Coffman v. Roberson, 153 N.C.App. 618, 571 S.E.2d 255 (2002)

(quoting Edwards v. Wall, 142 N.C.App. 111, 115, 542 S.E.2d 258, 262 (2001)), disc. review denied, 356 N.C. 668, 577 S.E.2d 111 (2003). Where a trial court erroneously concludes that it lacks discretion to award costs, the matter should be remanded to permit the trial court to exercise its discretion. Dixon, Odom & Co. v. Sledge, 59 N.C.App. 280, 286, 296 S.E.2d 512, 516 (1982).

Several statutes guide our resolution of the issues presented in this case. Article 28 of the General Statutes is titled "Uniform Costs and Fees in the Trial Divisions." In Article 28, N.C.G.S. § 7A-305 (d) and (e) (2001) provide:

(d) The following expenses, when incurred, are also assessable or recoverable, as the case may be:

(1) Witness fees, as provided by law.

(2) Jail fees, as provided by law.

(3) Counsel fees, as provided by law.

(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 the appeal.

(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.G.S. § 7A-320 (2001) provides that "[t]he costs set forth in this Article [28] are complete and exclusive, and in lieu of any other costs and fees."

Chapter 6 is titled "Liability for Court Costs." N.C.G.S. § 6-1 (2001) refers to the definition of costs provided in N.C.G.S. § 7A-305(d): "To the party for whom judgment is given, costs shall be allowed as provided in Chapter 7A and this Chapter." N.C.G.S. § 6-20 states that "[i]n other actions [not set forth in 6-18 and 19], costs may be allowed or not, in the discretion of the court, unless otherwise provided by law."

In an opinion written by former Justice (later Chief Justice) Susie Sharpe, the North Carolina Supreme Court clearly indicated that a court may only tax costs pursuant to enabling legislation:

In considering any question involving court costs the following principles are pertinent: At common law neither party recovered costs in a civil action and each party paid his own witnesses. Today in this State, "all costs are given in a court of law in virtue of some statute." The simple but definitive statement of the rule is: "[C]osts in this State, are entirely creatures of legislation, and without this they do not exist."

Since costs may be taxed solely on the basis of statutory authority, it follows a fortiori that courts have no power to adjudge costs "against anyone on mere equitable or moral grounds." Furthermore, even when allowed by statute, "[c]osts and expenses unnecessarily incurred by the prevailing party will not be taxed against the unsuccessful party."

City properly concedes that respondents, to whom judgement was given, are entitled to recover their actual costs reasonably incurred and specifically authorized by statutes. Clearly, however, such reimbursement is the limit of their entitlement.

City of Charlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179, 185 (1972) (quoting Costin v. Baxter, 29 N.C. 111, 112 (1846), Clerk's...