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Sterling v. Gil Soucy Trucking9/18/2001
erred in assigning all the costs of defendants Waldensian and Smith to plaintiffs rather than apportioning those costs to co-defendants and third-party defendants. We disagree.
Taxing of costs is governed by Article 6 of the North Carolina General Statutes. The relevant statutes are N.C.G.S. §§ 6-19 and 6-20 (1986). N.C.G.S § 6-19 provides:
6-19. When costs allowed as of course to defendant.
Costs shall be allowed as of course to the defendant, in the actions mentioned in the preceding section [6-18] unless the plaintiff be entitled to costs therein. In all actions where there are several defendants not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor or any of them. N.C.G.S. § 6-19(1986).
The awarding of costs to a defendant in a personal injury suit, like the one at bar, is not covered by N.C.G.S. § 6-19. Costs not allowed as a matter of course to a defendant under N.C.G.S. § 6-19 may be allowed in the court's discretion under N.C.G.S. § 6-20 (1986). The court's discretion under section 6-20 is not reviewable on appeal. See Minton v. Lowe's Food Stores, Inc., 121 N.C. App. 675, 468 S.E.2d 513, disc. review denied, 344 N.C. 438, 476 S.E.2d 119 (1996) (citing Chriscoe v. Chriscoe, 268 N.C. 554, 151 S.E.2d 33 (1966)).
Plaintiffs erroneously rely on Hughes v. Oliver, 228 N.C. 680, 47 S.E.2d 6 (1948), for the general proposition that costs should be shared equally between cross claimants. Hughes was tried on a narrow set of facts: two families were fighting over two disputed pieces of land; the two families filed lawsuits against each other--one for ejectment by heirs of the mortgagor and the other for foreclosure , in which the heirs were defendants; the two actions were consolidated for trial; and the plaintiffs in both cases won at least partial recovery. Based on those specific facts, the Court held that the costs in the two cases should be divided equally between the parties. Id. at 688, 47 S.E.2d at 12.
Taxation of costs has been held to be within the trial court's discretion where the reviewing court's decision was partly in favor of three parties and wholly in favor of two more, and all costs could be imposed upon one of the three parties who did not wholly prevail. Pee Dee Elec. Membership Corp. v. Carolina Power & Light Co., 256 N.C. 56, 122 S.E.2d 761 (1961).
In the case subjudice, a jury determined that Waldensian and its driver, Smith were not liable in this personal injury case. As stated above, N.C.G.S. § 6-19 does not allow costs as a matter of course to defendants in personal injury action. Therefore, Waldensian and Smith made a motion pursuant to N.C.G.S. § 6-20 to have the costs taxed to the plaintiffs. The trial court specifically stated that the costs of Waldensian and Smith were taxed against plaintiffs in the courts discretion. The trial court's exercise of discretion under N.C.G.S. § 6-20 is not reviewable on appeal. See Minton at 675, 468 S.E.2d at 513 and Chriscoe at 554, 151 S.E.2d at 33. II. Appeal by Soucy Trucking and Caron (COA00-886 and COA00-963)
Defendants Soucy Trucking and Caron appeal from the post-judgment settlement between the plaintiffs and third-party defendants Jennifer and Clayton Lowman in COA00-886, and from post-judgment settlement between plaintiffs and third-party defendant West in COA00-963. They raise two main assignments of error in each appeal: (A) that the trial court erred in concluding that the post-judgment settlements complied with the Contribution Statute, N.C.G.S., Chapter 1B; and (B) that if t
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