Opinion
No. COA03-1575
Filed 18 January 2005 This case not for publication
Appeal by plaintiffs from order taxing costs against them entered 15 July 2003 by Judge Clarence E. Horton, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 3 January 2005.
Raymond M. Marshall, for plaintiff-appellants. Horton and Gsteiger, P.L.L.C., by Urs. R. Gsteiger, for defendant-appellees.
Forsyth County No. 01 CVS 5744.
On 25 June 2001, Celisha Daniels ("Daniels") filed a complaint on behalf of her minor son Demarcus Daniels ("Demarcus Daniels") against the Winston-Salem/Forsyth County Board of Education andseveral employees at the Children's Center, a school for children with special needs. The complaint alleged that Demarcus Daniels suffered a fractured right arm while in the custody and care of the Children's Center. Daniels alleged negligence, gross negligence, and breach of fiduciary duty by various employees of the school system in their individual and official capacities. While the litigation was pending, Demarcus Daniels died of unrelated causes and an amended complaint was filed, adding Daniels in her capacity as administratrix of Demarcus Daniels' estate.
In April of 2003, plaintiffs took a voluntary dismissal without prejudice of the case. The next month, defendants filed a motion for costs accrued to date. Defendants petitioned the trial court to tax plaintiffs with deposition costs totaling $2,058.75. Bills attached to the motion showed costs associated with taking depositions, including stenography fees, videography fees, and other related costs. By order entered 15 July 2003, the trial court granted the motion. The trial court found that plaintiffs "[did] not dispute the amounts of the stenographic fees incurred by defendants" and that the fees are "reasonable and necessary expenditures." From this order, plaintiffs appeal.
At the outset, we note that a review of plaintiffs' brief to this Court reveals violations of the Rules of Appellate Procedure. Plaintiffs have failed to make "clear and specific record or transcript references" to support any of their assignments of error pursuant to N.C.R. App. P. 10(c)(1) (2004). Furthermore, plaintiffs' brief fails to refer to any assignments of error asrequired by N.C.R. App. P. 28(b)(6) (2004) and fails to state the grounds for appellate review as required by N.C.R. App. P. 28(b)(4) (2004). Notwithstanding these violations of the rules, we exercise our discretion under N.C.R. App. P. 2 (2004) and consider the merits of this appeal.
The main issue on appeal is whether the trial court erred by allowing defendants' motion to tax costs against plaintiffs. "In North Carolina costs are taxed on the basis of statutory authority." Estate of Smith v. Underwood, 127 N.C. App. 1, 12, 487 S.E.2d 807, 815, rev. denied, 347 N.C. 398, 494 S.E.2d 410 (1997). In the case sub judice, plaintiffs voluntarily dismissed their claim without prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(a), which governs voluntary dismissals by plaintiffs. Costs are discussed under subsection (d) of Rule 41, which provides:
(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. Gen. Stat. § 1A-1, Rule 41(d) (2003).
"The `costs' to be taxed under N.C. Gen. Stat. § 1A-1, Rule 41(d) against a plaintiff who dismisses an action under Section 1A-1, Rule 41(a), means the costs are recoverable in civil actions as delineated in N.C. Gen. Stat. § 7A-305(d) (1989)." See Sealey v. Grine, 115 N.C. App. 343, 347, 444 S.E.2d 632, 635 (1994). "This Court has nonetheless held that `costs' also include "deposition expenses," unless the depositions were unnecessary, even though an award of deposition expenses is not expressly allowed by statute." Id.
Expenses for taking depositions, videotaping depositions, obtaining copies of depositions from a reporting service, and court reporting services for taking depositions are included within the scope of "deposition expenses." Furthermore, because plaintiffs did not assign error to the trial court's finding of fact that the "fees of $2,058.75 incurred by the defendants and itemized above, are reasonable and necessary expenditures," those costs are deemed to be necessary. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (asserting that if a party fails to except to findings of fact, findings are presumed to be supported by competent evidence and are binding on appeal). Accordingly, the trial court properly taxed plaintiffs with deposition expenses.
We have carefully considered plaintiffs' remaining arguments and find them to be without merit.
Affirmed.
Judge TIMMONS-GOODSON concurs.
Judge LEVINSON concurs in the result with a separate opinion.
Report per Rule 30(e).