Morgan v. Steiner

• Decision Date: 04 October 2005
• Docket Number: No. COA04-1187.,COA04-1187.
• Citation: 619 S.E.2d 516
• Parties: Jerry L. MORGAN, Executor of the Estate of John W. Morgan, Plaintiff, v. R. Clayton STEINER, M.D., and Moore Surgical Center, P.A., Defendants.
• Court: North Carolina Supreme Court

Page 516

619 S.E.2d 516

Jerry L. MORGAN, Executor of the Estate of John W. Morgan, Plaintiff, v. R. Clayton STEINER, M.D., and Moore Surgical Center, P.A., Defendants.

No. COA04-1187.

Court of Appeals of North Carolina.

October 4, 2005.

Appeal by plaintiff from judgment entered 23 May 2004 by Judge Mark E. Klass in

Richmond County Superior Court. Heard in the Court of Appeals 22 April 2005.

Maxwell, Freeman & Bowman, P.A., by James B. Maxwell, Durham, for plaintiff-appellant.

Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Mark E. Anderson and Tobias S. Hampson, Raleigh, for defendants-appellees.

TIMMONS-GOODSON, Judge.

Plaintiff appeals a judgment of the trial court ordering plaintiff to pay the cost of defendants' trial expenses. For the reasons stated herein, we affirm the trial court's order in part and reverse in part.

The factual and procedural history of this case is as follows: On 23 November 1999, John Morgan ("decedent") died as a result of internal injuries sustained in a farm equipment accident. Jerry Morgan ("plaintiff"), decedent's brother and executor of his estate, filed a complaint for negligence on 20 November 2001, naming the following parties as defendants: FirstHealth of the Carolinas; Dr. Paula Adkins and her practice, Sandhills Emergency Physicians, P.A.; and R. Clayton Steiner, M.D. and his practice, Moore Surgical Center, P.A. On 17 December 2002, all parties participated in a mediated settlement conference. Although a settlement was not reached at the time, plaintiff later negotiated a settlement with FirstHealth, Dr. Adkins and Sandhills Emergency Physicians. Plaintiff voluntarily dismissed his complaint against these parties. Remaining for trial were plaintiff's negligence claims against Dr. Steiner and his practice, Moore Surgical Center (collectively, "defendants").

On 2 February 2004, defendants extended an offer of judgment to plaintiff pursuant to Rule 68 of the North Carolina Rules of Civil Procedure. Plaintiff did not accept the offer of judgment and the matter was tried before a jury beginning 16 February 2004. At the close of the evidence, the jury returned a verdict in favor of defendants, which judgment was entered by the trial court on 2 March 2004. Defendants subsequently filed a motion for costs, seeking reimbursement for all trial costs in the amount of $43,781.11. The trial court granted defendants' motion in part and concluded as a matter of law that plaintiff should pay defendants $31,082.87. It is from this order that plaintiff appeals.

The sole issue raised on appeal is whether the trial court erred by ordering plaintiff to reimburse defendants' trial expenses. Specifically, plaintiff argues that defendants' trial expenses "are neither statutorily mandated nor judicially approved by the Supreme Court of North Carolina." We address each enumerated cost.

Where an appeal presents a question of statutory interpretation, this Court conducts a de novo review of the trial court's conclusions of law. Coffman v. Roberson, 153 N.C.App. 618, 623, 571 S.E.2d 255, 258 (2002). In the instant case, the trial court concluded as a matter of law that defendants were entitled to reimbursement in the amount of $31,082.87 "pursuant to Rule 68 of the North Carolina Rules of Civil Procedure," as well as "Chapters 6 and 7A of the North Carolina General Statutes". Thus, we review the trial court's order de novo.

Rule 68 of the North Carolina Rules of Civil Procedure provides that where a defendant makes an offer of judgment at least ten days before trial, the plaintiff rejects the offer of judgment, and the judgment finally obtained by the plaintiff is less favorable than the offer of judgment, the plaintiff must pay the costs incurred by defendant after the offer was rejected. N.C.R. Civ. P. Rule 68(a) (2004).

N.C. Gen.Stat. §§ 6-18 and 6-19 (2003) delineate the types of actions in which costs shall be awarded to the prevailing party in civil actions. N.C. Gen.Stat. § 6-20 (2003) provides that "[i]n other actions [not listed in §§ 6-18 and 6-19], costs may be allowed or not, in the discretion of the court, unless otherwise provided by law." N.C. Gen.Stat. § 6-1 (2003) provides: "To the party for whom judgment is given, costs shall be allowed as provided in Chapter 7A and this chapter."

Section 305 of Chapter 7A of the General Statutes sets forth a list of expenses that may be assessed in civil actions:

(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.

N.C. Gen.Stat. § 7A-305(d) (2003). "The costs set forth in [§ 7A-305(d)] are complete and exclusive, and in lieu of any other costs and fees." N.C. Gen.Stat. § 7A-320 (2003). However, the trial court may, in its discretion, award additional costs pursuant to N.C. Gen.Stat. § 6-20 if the costs were "established by case law prior to the enactment of N.C. Gen.Stat. § 7A-320 in 1983." Lord v. Customized Consulting Specialty, Inc., 164 N.C.App. 730, 734, 596 S.E.2d 891, 895 (2004) (citing Department of Transp. v. Charlotte Area Mfd. Housing, Inc., 160 N.C.App. 461, 586 S.E.2d 780 (2003)). Thus, the trial court's authority to award costs is strictly limited to "those items (1) specifically enumerated in the statutes, or (2) recognized by existing common law." Charlotte Area, 160 N.C.App. at 468, 586 S.E.2d at 784.

In Lord, this Court outlined a three-step analysis to guide the determination of whether costs may be properly assessed.

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 Charlotte Area. 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.

164 N.C.App. at 734, 596 S.E.2d at 895. We now examine each cost assessed by the trial court in the instant case.

Deposition Costs

The trial court ordered plaintiff to pay deposition costs in the amount of $4,685.23. The trial court did not err in ordering plaintiff to pay this cost.

Deposition costs are not among the costs enumerated in N.C. Gen.Stat. § 7A-305(d). Thus, we must determine whether deposition costs are common law costs recognized prior to the 1983 enactment of N.C. Gen.Stat. § 7A-305. In Dixon, Odom & Co. v. Sledge, 59 N.C.App. 280, 296 S.E.2d 512 (1982), this Court held that deposition expenses are recoverable costs when awarded in the trial court's discretion under § 6-20.

As a general rule, recoverable costs may include deposition expenses unless it appears that the depositions were unnecessary. 20 Am.Jur.2d Costs § 56 (1965). Even though deposition expenses do not appear expressly in the statutes they may be considered as part of "costs" and taxed in the trial court's discretion.

59 N.C.App. at 286, 296 S.E.2d at 516. See also Alsup v. Pitman, 98 N.C.App. 389, 391, 390 S.E.2d 750, 752 (1990).

Deposition costs are within the category of "common law costs" permissible under § 6-20 because they were recognized in 1982 (prior to the enactment of N.C. Gen.Stat. § 7A-320) as an appropriate cost to be taxed in the trial court's discretion. Dixon, 59 N.C.App. at 286, 296 S.E.2d at 516; Charlotte Area, 160 N.C.App. at 468, 586 S.E.2d at 784. This Court will not disturb a trial court award of expenses related to depositions absent an abuse of discretion. Lord, 164 N.C.App. at 736, 596 S.E.2d at 895. "Abuse of discretion is shown only when the challenged actions are manifestly unsupported by reason." Blankenship v. Town & Country Ford, Inc., 155 N.C.App. 161, 165, 574 S.E.2d 132, 134 (2002) (quotation and citation omitted). Plaintiff has failed to show that the trial court abused its discretion in awarding expenses associated with depositions. Consequently, we hold that the trial court did not err by ordering plaintiff to pay these costs.

Costs for Obtaining Medical Records

The trial court also ordered plaintiff to pay defendants' expenses for obtaining copies of decedent's medical records, x-rays and CT scans in the amount of $2,153.31. The trial court erred in ordering plaintiff to pay the expenses.

Medical records are not among the costs enumerated in § 7A-305(d). Furthermore, our review of the relevant case law indicates that our courts have not heretofore recognized the cost of obtaining medical records as an expense taxable to a party under § 6-20.¹ Because there is no statutory or common law basis for ordering plaintiff to pay defendants' expenses for obtaining medical records, we conclude that the trial court erred by ordering plaintiff to pay these costs.

Mediation Costs

The trial court also ordered plaintiff to pay mediation costs in the amount of $634.30. The amount includes $100.97 paid by defendants for lunch during the mediated settlement...