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Lewis v. Setty11/7/2000
Appeal by plaintiff from an order entered 25 June 1999 by Judge W. Douglas Albright in Forsyth County Superior Court. Heard in the Court of Appeals 23 August 2000.
Jackie E. Lewis ("plaintiff") appeals from an order taxing costs against him in the amount of $7,176.80. Plaintiff assigns as error the trial court's granting of Dr. Janaki Ram Setty's ("defendant's") motion to tax costs with regards to expert witness fees and trial exhibit preparation fees. Plaintiff claims that these costs allowed by the trial court (1) were not enumerated in N.C. Gen. Stat. § 7A-305(d), and (2) were not reasonable and necessary. We disagree, and therefore affirm the trial court.
Plaintiff, a quadriplegic, filed this action on 18 June 1997, alleging that defendant negligently broke his hip while transferring him from an EKG examination table to his wheelchair. Defendant filed a motion to dismiss on 3 July 1997. Forsyth County Superior Court Judge W. Osmond Smith, III, granted defendant's motion by order filed on 7 August 1997, finding plaintiff's failure to obtain a Rule 9(j) certification (that the medical care had been reviewed by a person reasonably expected to qualify as an expert witness) fatal. Plaintiff appealed. On appeal, this Court reversed the trial court and held that plaintiff's complaint alleged ordinary negligence, not medical malpractice, and thus did not require a Rule 9(j) certification. See Lewis v. Setty, 130 N.C. App. 606, 503 S.E.2d 673 (1998). The case was then remanded to the trial court for further proceedings.
On remand, the case was set peremptorily as the first case for trial for the week beginning Monday, 10 May 1999. On Friday, 7 May 1999, plaintiff filed and served via regular United States mail a notice of voluntary dismissal without prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(a). The notice was not received by defendant until the morning of 10 May 1999, just prior to commencement of the trial. On 24 May 1999, defendant filed a motion to tax costs to plaintiff in the amount of $9,423.60 pursuant to Rule 41(d) of the North Carolina Rules of Civil Procedure. The motion was heard by the Honorable W. Douglas Albright during the 21 June 1999 session of Forsyth County Superior Court. Judge Albright granted defendant's motion but reduced the amount requested, taxing plaintiff costs in the amount of $7,176.80. Judge Albright granted the motion to tax costs with regard to (1) costs of the prior appeal, (2) deposition fees for three depositions, (3) expert witness fees, and (4) costs of trial exhibits. However, Judge Albright denied the motion to tax costs with regard to (1) mediation fees, (2) an extra copy of a deposition transcript, and (3) fees charged by two of defendant's expert witnesses for appointments canceled in anticipation of their trial testimony. Plaintiff appeals from this order and challenges the trial court's awarding of the expert witness fees and costs of trial exhibits.
Plaintiff's two assignments of error are best combined into one for this appeal. Plaintiff assigns error to the trial court's granting of defendant's motion to tax costs against him, claiming that the costs of the expert witness fees and trial exhibits were not enumerated in N.C. Gen. Stat. § 7A-305(d) and were not reasonable and necessary. We disagree.
"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, review denied, 347 N.C. 398, 494 S.E.2d 410 (1997). Here, plaintiff voluntarily dismissed his 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
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