James v. South Carolina Dep't of Transp.

• Decision Date: 01 June 2011
• Docket Number: No. 4835.,4835.
• Citation: 711 S.E.2d 919,393 S.C. 440
• Parties: Marcus Adrien JAMES and Leon P. James, Appellants,v.SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, a body politic, and the City of Marion, a body politic, Defendants,Of whom South Carolina Department of Transportation is Respondent.
• Court: South Carolina Court of Appeals

393 S.C. 440

711 S.E.2d 919

Marcus Adrien JAMES and Leon P. James, Appellants,

v.SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, a body politic, and the City of Marion, a body politic, Defendants,Of whom South Carolina Department of Transportation is Respondent.

No. 4835.

Court of Appeals of South Carolina.

Submitted March 1, 2011.Decided June 1, 2011.

Lisa Poe Davis, of Surfside Beach, for Appellants.Douglas Charles Baxter, of Myrtle Beach, and Jerome Scott Kozacki, of Florence, for Respondent.CURETON, A.J.

After their expert witness traveled from Ohio to South Carolina for his deposition, Appellants moved to compel the South Carolina Department of Transportation (the Department) to pay the expert's bill for $6,021.10. The circuit court ordered the Department to pay only $2,125. On appeal, Appellants argue the circuit court's decision ignores the mandates of Rules 26(b)(4)(C) and 30(b)(7) of the South Carolina Rules of Civil Procedure and constitutes an impermissible judicial correction of the Department's mistake. We reverse ¹ and remand for a determination of a reasonable fee for the expert's travel time and travel expenses.

FACTS

Following an automobile accident involving a pothole, Marcus James and Leon James (collectively “Appellants”) filed an action against the Department and the City of Marion (City) for negligence. Appellants retained James Scherocman of Cincinnati, Ohio, as an expert witness. During discovery, the Department contacted Appellants to schedule Scherocman's telephonic deposition. Scherocman refused to appear telephonically.² Subsequently, the Department served a notice of deposition for Scherocman indicating his deposition would proceed at the office of Appellants' counsel. In view of Scherocman's refusal to appear by telephone, Appellants advised the Department that it and the City would be responsible for all fees and costs associated with producing Scherocman in South Carolina. Scherocman appeared and testified for six hours.

A week later, Scherocman provided Appellants with an invoice totaling $6,021.10 for his deposition. The invoice included itemized travel expenses of $631.10 and hourly charges totaling $5,390.³ When Appellants received Scherocman's bill for his deposition, they transmitted it to the Department and to the City with a request that each pay one-half the amount of the invoice. The Department declined to pay.⁴

Appellants filed a motion to compel the Department to pay Scherocman's bill. Following a hearing, the circuit court ordered the Department to pay $2,125 toward the bill. This figure included $2,100 for the six hours of Scherocman's time that were spent in the deposition at a rate of $350 per hour, plus the $25 witness fee provided in Rule 30(a)(2), SCRCP. The circuit court specifically found Scherocman's refusal to be deposed by telephone caused him to incur the additional fees and costs and Appellants failed to demonstrate good cause why they should recover any additional fees or costs. Accordingly, the circuit court concluded that $2,125 was a “reasonable” amount and that requiring the Department to pay any additional fees or costs “would not be fair, just, reasonable, or equitable.” After additional arguments, the circuit court denied Appellants' motion to reconsider. This appeal followed.

STANDARD OF REVIEW

An issue regarding statutory interpretation is a question of law. S.C. Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control, 390 S.C. 418, 425, 702 S.E.2d 246, 250 (2010). “When reviewing an action at law, on appeal of a case tried without a jury, the appellate court's jurisdiction is limited to correction of errors of law.” Epworth Children's Home v. Beasley, 365 S.C. 157, 164, 616 S.E.2d 710, 714 (2005). The award of costs and fees relating to testimony by an expert witness is a matter within the discretion of the circuit court. Black v. Roche Biomed. Labs., 315 S.C. 223, 230, 433 S.E.2d 21, 25 (Ct.App.1993).

LAW/ANALYSIS

Appellants argue the circuit court erred in (1) finding Scherocman's travel expenses were not reasonable when Rule 26(b)(4)(C), SCRCP, requires an expert witness to be produced for deposition within South Carolina; (2) ignoring the provision of Rule 30(b)(7), SCRCP, that a deposition may proceed by telephone only if the parties so stipulate or if the court orders it; and (3) impermissibly correcting the Department's contention that Scherocman was entitled to only the $25 per diem witness fee provided in Rule 30, SCRCP. We address these issues together and reverse.

I. Law Concerning Interpretation of Procedural Rules

Courts interpreting the South Carolina Rules of Civil Procedure apply the same rules of construction used to interpret statutes. Maxwell v. Genez, 356 S.C. 617, 620, 591 S.E.2d 26, 27 (2003). “[C]ivil procedure and appellate rules should not be written or interpreted to create a trap for the unwary lawyer or party....” Elam v. S.C. Dep't of Transp., 361 S.C. 9, 25, 602 S.E.2d 772, 780 (2004). However, “[t]he language [of a statute] must also be read in a sense which harmonizes with its subject matter and accords with its general purpose.” Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992).

“Statutes in apparent conflict should be construed, if possible, to allow both to stand and give effect to each.” Adoptive Parents v. Biological Parents, 315 S.C. 535, 543, 446 S.E.2d 404, 409 (1994). Generally, when a general statute and a specific statute conflict, the specific statute prevails. Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors Div. of Unidynamics Corp., 319 S.C. 556, 558, 462 S.E.2d 858, 859 (1995).

II. Law Concerning Rules of Civil Procedure

Rule 26(b)(4) governs the discovery of the opinions of expert witnesses:

Upon the request of the party seeking discovery, unless the court determines otherwise for good cause shown, or the parties agree otherwise, a party retaining an expert who is subject to deposition shall produce such expert in this state for the purpose of taking his deposition, and the party seeking discovery shall pay the expert a reasonable fee for time and expenses spent in travel and in responding to discovery and upon motion the court may require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

Rule 26(b)(4)(C), SCRCP.

Rule 30 governs depositions generally and provides depositions conducted by telephone are permitted in South Carolina:

The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1), 37(b)(1) and 45(d), a deposition taken by telephone is taken at the same place where the deponent is to answer questions propounded to him. The notary before whom the deposition is taken shall be at the same place as the deponent during the taking of the deposition.

Rule 30(b)(7), SCRCP.

III. Analysis

We find the circuit court's award fails to give effect to both Rules 26(b)(4)(C) and 30(b)(7) and unduly burdens Appellants with costs the Department, under the facts of this case, should pay.⁵ Initially, we note Rule 26(b)(4)(C) provides two different scenarios, each with a unique payee, in which a deposing party may be required to pay an expert witness's fees. The first provision obligates the party initiating the deposition to pay the expert a reasonable fee for time and expenses spent in traveling and the taking of the deposition.⁶ The second vests the circuit court with discretion to find the initiating party liable to the producing party for “a fair portion of the fees and expenses reasonably incurred” by the producing party during its own communications with the expert witness.⁷ Id. Only the former provision, requiring payment to the expert of “reasonable fees and expenses,” is at issue here.

The circuit court based its decision to limit the Department's liability for Scherocman's fees and expenses solely upon the expert's refusal to give his deposition by telephone. What is “reasonable,” then, depends largely upon the expert's and the parties' obligations to one another. Rule 26(b)(4)(C) specifically governs the depositions of expert witnesses and mandates that an expert witness “shall” be produced in South Carolina. ⁸ Therefore, under Rule 26(b)(4)(C), Appellants were required to produce Scherocman in South Carolina. However, the occurrence of either of two events could override this mandate. Id. If the parties agree to an alternate arrangement, the expert witness need not be deposed in South Carolina. In this case, the parties were unable to reach such an agreement. Similarly, the circuit court may issue an order overriding the location requirement if either party moves for a deviation and demonstrates good cause for not deposing the witness in South Carolina. Id. Neither party so moved, and the circuit court issued no such order in this case. Because neither of these events occurred in the case at bar, the requirement that Scherocman appear in person in South Carolina remained intact.

The two rules at issue here do not conflict with regard to the fact that a telephonic deposition is an exception rather than the rule. Consequently, with respect to an in-person deposition versus a telephonic one, we may give effect to both rules without diminishing the coverage of either. See Adoptive Parents, 315 S.C. at 543, 446 S.E.2d at 409 (“Statutes in apparent conflict should be construed, if possible, to allow both to stand and give effect to each.”). Rule 30(b)(7) offered the parties the option of conducting Scherocman's deposition by telephone as an alternative to conducting it in person, but in no manner did it obligate Appellants to produce Scherocman by telephone without their agreement. Rule 26(b)(4)(C) required Appellants to produce Scherocman in South Carolina and further required that the...