Vaden v. Dombrowski
| Decision Date | 04 December 2007 |
| Docket Number | No. COA07-51.,COA07-51. |
| Citation | 653 S.E.2d 543 |
| Parties | Kenneth Wayne VADEN, Plaintiff v. Kathleen Marie DOMBROWSKI and David John Dombrowski, Defendants. |
| Court | North Carolina Court of Appeals |
Culbreth Law Firm, L.L.P., by Stephen E. Culbreth and Ashley Culbreth Council, Wilmington, for plaintiff-appellant.
Hall, Rodgers, Gaylord, & Millikan, P.L.L.C., by Kathleen M. Millikan and Daniel M. Gaylord, Cary, for defendants-appellees.
Plaintiff appeals the order granting costs to defendants in Superior Court, Wake County after plaintiff voluntarily dismissed the underlying action. The dispositive question before this court is whether the trial court abused its discretion in taxing certain costs against the plaintiff pursuant to N.C. Gen. Stat. § 7A-305(d). For the following reasons, we affirm in part and reverse in part.
On or about 30 January 2004 defendant Kathleen Marie Dombrowski ("Mrs. Dombrowski") was driving defendant David John Dombrowski's 1997 Ford automobile with his permission. Mrs. Dombrowski attempted to make a left-hand turn from Military Cutoff Road onto Wrightsville Avenue when she collided with plaintiff's vehicle on Military Cutoff Road. Defendants admitted in their unverified answer that the accident was caused by Mrs. Dombrowski's negligence. Plaintiff now alleges that as a result of the collision he has painful and permanent injury which prevents him from transacting business and has resulted in a substantial reduction in his earning capacity. Plaintiff also claims he has incurred medical and hospitalization expenses in excess of $29,200.
On 14 February 2005 defendants made an offer of judgment for $45,500, which plaintiff did not accept. On 9 December 2005 defendants subpoenaed Dr. Kevin Scully ("Dr. Scully") and provided notice to plaintiff they would be deposing Dr. Scully on 20 December 2005. On 16 May 2006 defendants' filed a motion for summary judgment. On 19 May 2006 plaintiff filed a motion for continuance. On 22 May 2006 plaintiff took a voluntary dismissal without prejudice pursuant to Rule 41(a)(1) of the North Carolina Rules of Civil Procedure.
On 14 June 2006 defendants filed a motion for costs accompanied by an affidavit of defendants' attorney, Daniel M. Gaylord, and several invoices and receipts. On 27 June 2006 plaintiff filed a response to defendants' motion. Plaintiff's response argued only that defendants' motion was premature and that if the trial court determined defendants' motion was timely made, only the mediation fees were permissible costs to be taxed pursuant to North Carolina case law.1 Plaintiff presented no objection to the amounts, reasonableness or necessity of defendants' costs as alleged in their motion. On 22 October 2005 the trial court granted defendants' motion for costs.
The trial court required plaintiff to pay costs for: (1) mediation cost for the first mediation in the amount of $250.00, (2) mediation costs for the mediation that was reconvened in February of 2006 in the amount of $125.00, and (3) travel costs/mileage for mediation in February 2006 in the amount of $26.52. The court also found several others costs to be taxable costs which are to be paid only if plaintiff later refiles; those costs included: (4) cost for plaintiff's deposition transcript in the amount of $464.45, (5) deposition traveling cost/mileage for plaintiff's deposition in the amount of $111.94, (6) cost for Dr. Scully's deposition transcript in the amount of $298.15, (7) deposition fee to Dr. Scully in the amount of $500.00, (8) deposition traveling cost/mileage for the deposition of Dr. Scully in the amount of $111.78, (9) cost for Dr. David Esposito's ("Dr. Esposito") deposition transcript in the amount of $47.25, (10) videotape deposition cost of Dr. Esposito in the amount of $26.75, and (11) deposition traveling cost/mileage for the deposition of Dr. Esposito in the amount of $101.46. In summary, Judge Allen ordered plaintiff to pay defendants $401.52 within 30 days of the order and the other costs totaling $1,661.78, within 30 days of refiling the action. The order also stated that plaintiff's failure to comply would result in dismissal of the refiled action with prejudice. Plaintiff appeals.
Defendants argue this appeal should be dismissed as plaintiff's brief failed to state a standard of review for the first argument in his brief. Defendants correctly note that pursuant to North Carolina Rule of Appellate Procedure 28(b)(6) "argument[s] shall contain a concise statement of the applicable standard(s) of review...." N.C.R.App. P. 28(b)(6). Defendants' brief argues that this appeal should therefore be dismissed because plaintiff has failed to follow a rule of appellate procedure. See Viar v. North Carolina Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005).
However, in Smithers v. Tru-Pak Moving Sys., Inc., defendant requested this Court to dismiss an appeal in its brief. 121 N.C.App. 542, 545, 468 S.E.2d 410, 412, disc. rev. denied, 343 N.C. 514, 472 S.E.2d 20 (1996). This Court concluded that Id.; see also Horton v. New South Ins. Co., 122 N.C.App. 265, 268, 468 S.E.2d 856, 858, cert. denied, 343 N.C. 511, 472 S.E.2d 8 (1996) ().
As defendants have failed to file such a motion we choose to decide this appeal based upon its merits. See N.C.R.App. P. 2; Welch Contr'g, Inc. v. N.C. Dep't. of Transp., 175 N.C.App. 45, 49-50, 622 S.E.2d 691, 694 (2005) ().
Prior decisions by this court have been inconsistent as to the proper standard of review for appeals concerning taxing costs.2 We have reviewed the case law and the majority of cases review a trial court's taxing of costs under an abuse of discretion standard. See, e.g., Coffman v. Roberson, 153 N.C.App. 618, 629, 571 S.E.2d 255, 261 (2002), disc. rev. denied, 356 N.C. 668, 577 S.E.2d 111 (2003); Alsup v. Pitman, 98 N.C.App. 389, 391, 390 S.E.2d 750, 752 (1990). We find the reasoning of the majority of cases pursuant to the language of N.C. Gen.Stat. § 6-20 to be sound, and we therefore review the trial court's taxing of costs against the plaintiff under an abuse of discretion standard. See Coffman at 629, 571 S.E.2d at 261; Alsup at 391, 390 S.E.2d at 752. "An abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision." Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998).
Plaintiff argues that costs not specifically enumerated under N.C. Gen.Stat. § 7A-305(d) should not be awarded. Specifically plaintiff argues that all costs awarded to defendants were in error, except for the mediation fees. N.C. Gen.Stat. § 7A-305(d) and (e) provides:
(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. Gen.Stat. § 7A-305(d), (e) (2003).
We are aware, as recognized in Dep't. of Transp. v. Charlotte Area Mfd. Housing Inc., that there has been a lack of uniformity in this Court's cases addressing whether certain costs can or should be taxed against a party. 160 N.C.App. 461, 586 S.E.2d 780 (2003).3
In analyzing whether the trial court properly [assessed] cost[s] we must undertake a three-step analysis. Lord v. Customized Consulting Specialty, Inc., 164 N.C.App. 730, 734, 596 S.E.2d 891, 895 (2004). First, we must determine whether the cost sought is one enumerated in N.C. Gen. Stat. § 7A-305(d); if so, the trial court is required to assess the item as costs. Id. Second, where the cost is not an item listed under N.C. Gen.Stat. § 7A-305(d), we must determine if it is a "common law cost" under the rationale of Charlotte Area. Id. () Third, if the cost sought to be recovered is a "common law cost," we must determine whether the trial court abused its discretion in awarding or denying the cost under N.C. Gen. Stat. § 6-20. Id.
Miller v. Forsyth Mem'l Hosp., Inc., 173 N.C.App. 385, 391, 618 S.E.2d 838, 843, remanded in part,...
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