Sealey v. Grine

• Decision Date: 21 June 1994
• Docket Number: No. 9311SC855,9311SC855
• Citation: 115 N.C.App. 343,444 S.E.2d 632
• Court: North Carolina Court of Appeals
• Parties: Barbara J. SEALEY, Plaintiff, v. William B. GRINE, M.D.; Adel Mohamed, M.D.; Adel Mohamed, M.D., P.A.; and Mohamed & Lippitt Urology Center, P.A., Defendants.

Page 632

444 S.E.2d 632

115 N.C.App. 343

Barbara J. SEALEY, Plaintiff, v. William B. GRINE, M.D.; Adel Mohamed, M.D.; Adel Mohamed M.D., P.A.; and Mohamed & Lippitt Urology Center P.A., Defendants.

No. 9311SC855.

Court of Appeals of North Carolina.

June 21, 1994.

Barrow, Redwine and Davis by Paul D. Davis and Kenneth C. Haywood, Raleigh, for plaintiff-appellant.

Walker, Young & Barwick by Robert D. Walker, Jr. and Sarah E. Edwards, Goldsboro, for defendants-appellees.

GREENE, Judge.

Barbara J. Sealey (plaintiff) appeals from an order entered in open court on 28 June 1993 and signed 30 June 1993, granting William B. Grine, M.D., Adel Mohamed, M.D., Adel Mohamed, M.D., P.A., and Mohamed & Lippitt Urology Center, P.A.'s (defendants) motion to tax plaintiff with the costs incurred by defendants in the defense of the action bearing file number 90 CvS 0635.

In an action with the file number 90 CvS 0635, plaintiff filed a complaint signed 10 April 1990 against William B. Grine, M.D. (Dr. Grine), Adel Mohamed, M.D. (Dr. Mohamed), and Carolina Lithotripsy, a limited partnership (Carolina), containing seven causes of action alleging that in treating plaintiff's kidney stone with lithotripsy, (1) Dr. Grine was grossly negligent; (2) Dr. Grine's negligence is imputed to Carolina; (3) Dr. Mohamed was grossly negligent; (4) Dr. Grine and Carolina breached a contract with her; (5) Dr. Grine, Carolina, and Dr. Mohamed's actions caused plaintiff intentional infliction of emotional distress; (6) Carolina's actions constituted unfair and deceptive trade practices; and (7) Dr. Grine, Carolina, and Dr. Mohamed committed actual and constructive fraud on plaintiff.

The trial court allowed plaintiff to amend her complaint on 12 April 1990 to join Adel Mohamed, M.D., P.A. (Mohamed, P.A.) as an additional named party defendant. Dr. Grine, Dr. Mohamed, and Mohamed, P.A. responded to plaintiff's amended complaint by moving to dismiss pursuant to Rule 12(b)(6), by moving to strike plaintiff's fifth, sixth, and seventh causes of action pursuant to Rule 12(f), by denying any negligence on their part, and by requesting the action be dismissed and costs be taxed against plaintiff. Carolina filed a separate answer and motion to dismiss.

On 5 February 1992, plaintiff took a voluntary dismissal of her fourth, fifth, sixth, and seventh causes of action. On 10 February 1992, upon motion by Carolina, the trial court granted summary judgment in Carolina's favor. Also on 10 February 1992, the trial court granted Dr. Grine, Dr. Mohamed, and Mohamed, P.A.'s motion "for partial summary judgment on the issue of 'Informed Consent' " and dismissed plaintiff's action "with respect to any claim based upon a lack of informed consent."

On 14 February 1992, plaintiff filed a notice of dismissal pursuant to Rule 41 of the North Carolina Rules of Civil Procedure for the remaining causes of action against defendants. On 25 February 1992, Dr. Grine, Dr. Mohamed, and Mohamed, P.A. moved the court "for an order taxing the costs of this action" (No. 90 CvS 0635). This motion, however, was never calendared for hearing.

On 10 February 1993, plaintiff filed a complaint, in an action with the file number 93 CvS 283, against defendants for negligence in the lithotripsy treatment of plaintiff for a kidney stone. On 23 February 1993, defendants refiled a motion to tax costs pursuant to Rule 41 because in action 90 CvS 0635, plaintiff "sought money damages from all defendants based upon allegations arising from the same series of transactions and occurrences set forth and described in the claim for relief" in this action, 93 CvS 283, plaintiff filed a voluntary dismissal as to four of her seven causes of action in 90 CvS 0635, she took a dismissal as to the remaining causes of action in 90 CvS 0635, defendants filed a motion to tax costs on 25 February 1992, and plaintiff has not made any attempt to pay such costs. The trial court, in an order signed 30 June 1993, made the following findings of fact:

3. .... defendants undertook the de bene esse deposition of Dr. James L. Lingeman, a nationally known expert in the field of lithotripsy, whose testimony was vital to the defense of this action by the defendants.

....

6. The Court finds as a further fact that the action initially filed by the plaintiff ... bearing File Number 90 CvS 0635, was not filed in forma pauperis.

....

9. The Court, in its discretion, finds as a fact that the costs enumerated and set forth in Exhibit A of this order, which is incorporated herein by reference, are reasonable and necessary costs, and should be taxed against the plaintiff in the amounts indicated thereon.

Exhibit A, which consisted of expenses totaling $11,526.98, specifically listed $615.00 in expenses "for copies of x-ray films" and $164.25 "for copies made of records" and also included expenses for taking depositions, court reporting services for depositions, traveling for Dr. Lingeman's deposition, videotaping depositions, obtaining copies of depositions from a reporting service, and subpoena service fees. The court then concluded it had the authority and jurisdiction to tax costs and ordered plaintiff to pay costs of $11,526.98 incurred by defendants "in the defense of the case bearing File Number 90 CvS 0635."

The issues presented are whether (I) a trial court, in one action, can, under N.C.Gen.Stat. § 1A-1, Rule 41(d), tax costs incurred in an earlier action that was voluntarily dismissed; and (II) a trial court can tax costs for deposition expenses.

I

N.C.Gen.Stat. § 1A-1, Rule 41, which governs dismissal of actions, provides in pertinent part:

(d) Costs.--A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant shall make an order for the payment of such costs by the plaintiff within 30 days and shall stay the proceedings in the action until the plaintiff has complied with the order. If the plaintiff does not comply with the order, the court shall dismiss the action.

N.C.G.S. § 1A-1, Rule 41(d) (1990). This language "constitutes a mandatory directive to the trial court," and "payment of costs taxed in the first action is a mandatory condition precedent to the bringing of a second action on the same claim." Sims v. Trailer Sales Corp., 18 N.C.App. 726, 728, 730, 198 S.E.2d 73, 75-76, cert. denied, 283 N.C. 754, 198 S.E.2d 723 (1973); Sanford v. Starlite Disco, 66 N.C.App. 470, 471-72, 311 S.E.2d 67, 68 (1984) (1979 amendment only added 30-day grace period within which to pay costs assessed).

Plaintiff contends that "there is no provision upon the refiling of a once voluntary dismissed claim to go back into the previous action and revive jurisdiction in order to make a determination as to whether an item in the old action was a reasonable and necessary cost." We reject this argument because "the filing of notice of dismissal, while it may terminate adversary proceedings in the case, does not terminate the court's authority to enter orders apportioning and taxing costs" pursuant to Rule 41, and "where the parties chose to reinstitute the suit and the reinstituted suit was still pending ... the courts ... [are] able to order payment of costs." Ward v....