Khomyak v. Meek

• Decision Date: 02 August 2011
• Docket Number: No. COA10–1597.,COA10–1597.
• Citation: 715 S.E.2d 218
• Parties: Andrew S. KHOMYAK, by and through his Guardian ad Litem, Carolyn J. Khomyak, and Carolyn J. Khomyak, individually, Plaintiffs,v.James M. MEEK, M.D.; Novant Medical Group, Inc. d/b/a Carmel Obstetrics and Gynecology, Defendants.
• Court: North Carolina Court of Appeals

715 S.E.2d 218

Andrew S. KHOMYAK, by and through his Guardian ad Litem, Carolyn J. Khomyak, and Carolyn J. Khomyak, individually, Plaintiffs,

v.James M. MEEK, M.D.; Novant Medical Group, Inc. d/b/a Carmel Obstetrics and Gynecology, Defendants.

No. COA10–1597.

Court of Appeals of North Carolina.

Aug. 2, 2011.

Appeal by defendants from order entered 27 September 2010 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 May 2011.

Price, Smith, Hargett, Petho & Anderson, Charlotte, by Wm. Benjamin Smith, for plaintiff appellees.

Shumaker, Loop & Kendrick, LLP, Charlotte, by Scott M. Stevenson, Stacy H. Stevenson, and Christian H. Staples, for defendant appellants.

McCULLOUGH, Judge.

James M. Meek, M.D., and Novant Medical Group, Inc., d/b/a Carmel Obstetrics and Gynecology (collectively, “defendants”), appeal from an order granting their motion for costs in the amount of $1,000.00. Defendants contend the trial court abused its discretion in not awarding defendants the full amount of their costs following a jury verdict in their favor at trial. After a careful and thorough review, we must reverse and remand for reconsideration.

I. Background

On 8 August 2006, at approximately 10:00 p.m., plaintiff Carolyn Khomyak (“plaintiff”) was admitted to Carolinas Medical Center in Pineville, North Carolina, with the onset of labor for the birth of her son, plaintiff Andrew Khomyak (“Andrew”). Plaintiff's labor and delivery was managed by her obstetrician, defendant James M. Meek, M.D. (“Dr. Meek”). During the course of delivery, Andrew experienced shoulder dystocia, an obstetrical emergency that occurs when the infant's shoulder becomes stuck behind the mother's pelvic bone, thereby preventing a spontaneous vaginal delivery. As a result, Andrew suffered nerve damage in his upper body and right arm.

Plaintiff, both individually and as guardian ad litem for Andrew, filed a complaint against Dr. Meek and his medical practice, Novant Medical Group, Inc., d/b/a Carmel Obstetrics and Gynecology on 23 May 2008. Plaintiff alleged that defendants' actions and/or omissions during delivery in light of Andrew's shoulder dystocia fell below the applicable standard of care, causing injury and damages to both plaintiff and Andrew as a result. Defendants filed an answer denying the negligence allegations on 1 August 2008. The case was tried before a jury for approximately two weeks, beginning on 28 June 2010 and concluding on 8 July 2010. At the close of trial, the jury returned a verdict in favor of defendants finding no negligence, and judgment was entered accordingly on 20 July 2010.

On 21 July 2010, following entry of judgment in their favor, defendants filed a motion for costs pursuant to N.C. Gen.Stat. §§ 6–20 and 7A–305(d) (2009), seeking to recover costs in the total amount of $15,598.96. In support of their motion for costs, defendants submitted a bill of costs, as well as copies of the billing statements reflecting those costs. The bill of costs included mediation fees in the amount of $82.00, expert witness fees in the total amount of $8,000, and deposition expenses in the total amount of $7,516.96. The trial court heard arguments on defendants' motion for costs on 9 August 2010. Following the hearing, the trial court, “in its discretion and pursuant to N.C.G.S. § 6–20 and N.C.G.S. § 7A–305,” granted defendants' motion for costs in the amount of $1,000.00. The trial court entered its order reflecting its ruling on 27 September 2010. Defendants appeal, seeking to recover an award of costs in the full amount of $15,598.96.

II. Standard of Review

The sole issue on appeal concerns the taxing of costs pursuant to N.C. Gen.Stat. §§ 6–20 and 7A–305(d). We first note this Court's earlier observation that “[p]rior decisions by this [C]ourt have been inconsistent as to the proper standard of review for appeals concerning taxing costs.” Vaden v. Dombrowski, 187 N.C.App. 433, 437, 653 S.E.2d 543, 545 (2007). Many panels of this Court have reviewed a trial court's decision to grant or deny costs to the prevailing party under an abuse of discretion standard as a result of the language of N.C. Gen.Stat. § 6–20, which leaves the taxing of costs in the discretion of the trial court. See Priest v. Safety–Kleen Sys., Inc., 191 N.C.App. 341, 343, 663 S.E.2d 351, 352 (2008); Vaden, 187 N.C.App. at 437, 653 S.E.2d at 545; Overton v. Purvis, 162 N.C.App. 241, 249, 591 S.E.2d 18, 24 (2004). Other panels have reviewed a trial court's order taxing costs under a de novo standard of review, finding that a trial court's interpretation of the statutory framework applicable to the taxation of costs is a question of law. See Morgan v. Steiner, 173 N.C.App. 577, 579, 619 S.E.2d 516, 518 (2005); Cosentino v. Weeks, 160 N.C.App. 511, 513, 586 S.E.2d 787, 788 (2003).

However, most recently, in Peters v. Pennington, ––– N.C.App. ––––, 707 S.E.2d 724 (2011), we believe the panel properly clarified the standard of review applicable to the taxing of costs by applying a combination of the two standards: “Whether a trial court has properly interpreted the statutory framework applicable to costs is a question of law reviewed de novo on appeal. The reasonableness and necessity of costs is reviewed for abuse of discretion.” Id. at ––––, 707 S.E.2d at 741 (citing Jarrell v. Charlotte–Mecklenburg Hosp. Auth., ––– N.C.App. ––––, ––––, 698 S.E.2d 190, 191 (2010)). Accordingly, we review de novo any questions regarding the trial court's interpretation of the statutory framework applicable in each case. Where the applicable statutes afford the trial court discretion in awarding costs, we review the trial court's determinations for an abuse of discretion.

Here, the trial court correctly determined that §§ 6–20 and 7A–305(d) are the applicable statutes governing the taxing of costs in the present case. As discussed herein, because we believe the proper statutory interpretation of section 6–20 affords the trial court the discretion to award those costs specifically enumerated under section 7A–305(d) or elsewhere in our statutes, the trial court's award of costs in the present case, we believe, should be reviewed for an abuse of discretion. However, because of certain recent holdings that will be discussed herein, the trial court is afforded no discretion in determining whether or not to award those costs enumerated under section 7A–305(d), and therefore, the trial court must impose the costs requested by defendant in the present case.

III. Taxing of Costs

Defendants first contend that in granting or denying a motion for costs pursuant to N.C. Gen.Stat. § 6–20, a trial court is required to assess as costs those items specifically enumerated under N.C. Gen.Stat. § 7A–305(d). Defendants argue that, in determining an award of costs, a trial court only has discretionary authority to award costs where an allowance of costs is not otherwise mandated by the General Statutes. Defendants maintain that those costs listed under section 7A–305(d) are such mandatory costs, and therefore, the trial court has no discretion to deny those costs when all statutory requirements for an award of those costs are met. Defendants cite this Court's recent decision in Springs v. City of Charlotte, –––N.C.App. ––––, 704 S.E.2d 319 (2011), in support of their contention that such statutory interpretation is the proper one.

Defendants are correct that this Court's holding in Springs is controlling in the present case. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”). Nevertheless, our review of this issue has revealed troublingly divergent and irreconcilable interpretations of the statutes at issue in the present case. While we acknowledge that we are bound by the Springs decision, our review of the case law and statutory language at issue would lead us to a different result than that required by the holding in Springs, were we not bound by that decision. Therefore, we first examine this Court's prior holdings leading to the situation with which we are now confronted in this case.

A. Prior law

Prior to 2007, N.C. Gen.Stat. § 6–20 was construed to confer two separate kinds of discretion: (1) “the discretion to determine whether costs should be awarded in a particular civil action,” and (2) “the discretion to award non-statutory common law costs,” or those costs not specifically delineated in section 7A–305(d). Cosentino v. Weeks, 160 N.C.App. 511, 517, 586 S.E.2d 787, 790 (2003). Over the years, our case law took varied approaches in addressing issues concerning the second kind of discretion—the discretion to determine whether a particular type of expense may be taxed as a cost. See Department of Transp. v. Charlotte Area Mfd. Housing, Inc., 160 N.C.App. 461, 466–69, 586 S.E.2d 780, 783–85 (2003) (describing the varied approaches taken by this Court in addressing what expenses may be taxed as costs); see generally James Edwin Griffin, III, Murky Water: What Really is Taxed as Court Costs in North Carolina?, 32 Campbell L.Rev. 127 (2009) (explaining the split of authority from this Court on the issue of what may be taxed as costs—statutorily enumerated costs versus “common law” costs). Some opinions provided the trial court discretion to assess not only those “statutory” costs enumerated under section 7A–305(d), but also “common law” costs, or costs which were traditionally allowed at common law. See Lord v. Customized Consulting Specialty, Inc., 164 N.C.App. 730, 734, 596 S.E.2d 891, 894–95 (2004); Morgan v. Steiner, 173 N.C.App. 577, 581, 619 S.E.2d 516, 519 (2005). Other opinions provided that the trial court could only assess those costs enumerated by statute. See Charlotte Area, 160 N.C.App....