Opinion
No. 07-633.
Filed March 18, 2008.
Mecklenburg County No. 02CVS23006.
Appeal by plaintiffs from order entered 5 February 2007 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 11 December 2007.
Klein Freeman, PLLC, by Katherine Freeman and Paul I. Klein, for plaintiffs. Joseph Greenwalt and Laake, P.A., by Dov Apfel, for plaintiffs. Smith, Anderson, Blount, Dorsett, Mitchell Jernigan, L.L.P., by Samuel G. Thompson and Michael R. Gordon, for defendants.
Heather DeVos, individually and as guardian ad litem for her minor son, Bryson DeVos (plaintiff Bryson), and Christopher DeVos (collectively, plaintiffs) appeal an order entered 5 February 2007 granting a motion by Providence Obstetrics and Gynecology Associates, P.A. (Providence), and Megan M. Loffredo, M.D. (together, defendants), for costs in the amount of $166,872.29. Plaintiffs sued Providence and Loffredo, along with The Presbyterian Hospital and Peter R. Muller, M.D., who are not parties to this appeal, for medical malpractice during Heather's delivery of Bryson on 9 February 2000. Plaintiffs dismissed their case against Muller on or about 5 October 2004 and reached a confidential settlement with The Presbyterian Hospital on 5 July 2005. Plaintiffs' case went to a jury trial on 5 July 2005. During the course of the trial, but before the close of plaintiffs' evidence, Heather and Christopher DeVos voluntarily dismissed their claims, with prejudice, against defendants. The trial continued on Bryson's claims only, and the jury returned a verdict for the defense on 4 August 2005. Defendants filed a motion for costs seeking $263,356.64. The motion itself was five pages long, but defendants attached approximately 450 pages of exhibits justifying their requests. These requests included expenses for depositions, court reporting, travel, video conferencing, expert witness fees, mediation and trial, and photocopies. The trial judge heard the motion on 29 August 2006 and entered an order on 5 February 2007 granting defendants' motion in the amount of $166,872.29.
Plaintiffs first argue that the order was in error and should be reversed because it "does not reveal its statutory basis" and "it cannot be inferred that the trial court granted costs pursuant to any statutory authority other than that of . . . Rule 41(d)" because the trial court did not specify the statute under which it ordered costs. Plaintiffs argue that defendants did not give plaintiffs, specifically plaintiff Bryson, notice that they were filing their motion pursuant to N.C. Gen. Stat. § 6-20 as well as Rule 41(d). Plaintiffs posit that "[d]efendants waived the right to bring their motion pursuant to N.C.Gen. Stat. [sic] § 6-20 (2006), or any other costs statute or authority, because they chose not to name that statute in their motion. . . ." They argue that the trial court "made its order pursuant to N.C.Gen. Stat. [sic] § 1A-1, Rule 41(d) and no other costs statute. . . ." We disagree. Rule 41 states, in relevant part:
(a) Voluntary dismissal; effect thereof. —
(1) By Plaintiff. . . . — Subject to the provisions of Rule 23(c) and of any statute of this State, an action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case. . . . Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice. . . .
* * *
(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.
N.C. Gen. Stat. § 1A-1, Rule 41 (2007). Section 6-20 states:
In actions where allowance of costs is not otherwise provided by the General Statutes, costs may be allowed in the discretion of the court. Costs awarded by the court are subject to the limitations on assessable or recoverable costs set forth in G.S. 7A-305(d), unless specifically provided for otherwise in the General Statutes.
N.C. Gen. Stat. § 6-20 (2007) (emphasis added). Defendants gave plaintiff Bryson sufficient notice that their motion was made pursuant to both Rule 41(d) and section 6-20. Defendants did cite section 6-20 in their motion. It is cited on the second page in support of their claim for deposition expenses. Defendants also cited numerous cases in support of their requests for costs. Nine of these cases discuss the application of section 6-20 to an award of costs. Plaintiffs claim in their brief that defendants' motion cites "only to Rule 41(d)" and "thus did not fully inform the Plaintiffs of the relief sought and the reasons therefor." Plaintiffs explained that they "reasonably relied on Rule 41(d) as the only authority and basis for the motion. As a result, the Defendants waived any right to move for costs under any other authority." We find this assertion odd in light of the many Court of Appeals cases cited as authority in defendants' motion. Whether plaintiffs' counsel read these cases is unknown and irrelevant; by citing these cases, defendants provided ample authority showing that the grounds for their motion included N.C. Gen. Stat. § 6-20 and was not limited to Rule 41(d).
Plaintiffs also argue that Rule 41(d) did not authorize the trial court to award costs against any of the plaintiffs. They argue that Rule 41(d) does not apply to plaintiffs who voluntarily dismiss their cases with prejudice or who take their cases to trial. We recognize that Rule 41(d) applies only to voluntary dismissals and thus does not apply to plaintiff Bryson, who tried his case to a verdict. The trial judge's authority to award costs against plaintiff Bryson originates in section 6-20. Plaintiffs provide no authority that narrows the language of Rule 41(d) to exclude plaintiffs who voluntarily dismiss their cases with prejudice. Rule 41(a)(1) clearly includes voluntary dismissals with prejudice within its language. N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (2007) (" Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice. . . .") (emphasis added). Because Rule 41(d) applies to any plaintiff who dismisses a claim under section (a), it applies to Heather and Christopher DeVos, who dismissed their case under Rule 41(a)(1).
Plaintiffs next argue that the trial court erred by "ordering unexplained costs to be paid by plaintiffs in an amount which by its size includes items not authorized by law." The court's order does not specify which costs were allowed and which were disallowed, but plaintiffs did not request findings of fact or conclusions of law, and thus the trial court was under no obligation to make such findings and conclusions. N.C. Gen. Stat. § 1A-1, Rule 52(a)(2) (2007) ("Findings of fact and conclusions of law are necessary on decisions of any motion or order ex mero motu only when requested by a party and as provided by Rule 41(b).").
Plaintiffs next contend that defendants' expert witness expenses should not have been allowed because the trial court did not determine which experts had testified under subpoena. As plaintiffs correctly note, "unless an expert witness is subpoenaed, witness fees are not recognized as costs, and the trial court is without authority to award such." McDaniel v. McBrayer, 164 N.C. App. 379, 383, 595 S.E.2d 784, 788 (2004) (citation omitted). However, we have held that when the record on appeal is silent as to whether an expert was subpoenaed, we are "not required to, and should not, assume error by the trial judge when none appears on the record before" us. Id. at 383-84, 595 S.E.2d at 788 (quotations and citations omitted). Here, the trial judge indicated that he had granted the order "after review of the documents submitted, consideration of the arguments made, and in light of applicable case law." Defendants represented in the motion and at the hearing that the witnesses were subpoenaed, and plaintiffs offered no contrary evidence then or now. Accordingly, we follow McDaniel and do not assume error by the trial judge.
Plaintiffs' final argument is that the trial court awarded costs that are unauthorized by law. Again, we disagree. As we have held above, the trial court was entitled to award costs under N.C. Gen. Stat. § 6-20. We review the trial court's award of costs for an abuse of discretion. Vaden v. Dombrowski, ___ N.C. App. ___, ___, 653 S.E.2d 543, 545 (2007). Defendants requested costs for expert witness fees, mediation, depositions, attorney travel, and trial exhibits. This Court has held, if inconsistently, that all of these requested expenses are taxable as costs. See Oakes v. Wooten, 173 N.C. App. 506, 520, 620 S.E.2d 39, 48-49 (2005) (holding that expert witness fees may be taxed as costs and that these fees include payment for time that an expert spends preparing, traveling, and testifying); Coffman v. Roberson, 153 N.C. App. 618, 629, 571 S.E.2d 255, 261-62 (2002) (recognizing that deposition fees, mediation costs, "trial exhibits, and travel expenses for hearings and trial" are taxable as costs under N.C. Gen. Stat. § 6-20). Accordingly, the trial court did not err by awarding costs to defendants.
We affirm the order of the trial court.
Affirmed.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).