{ "id": 8527186, "name": "BRANDENBURG LAND COMPANY, a Corporation, Plaintiff v. CHAMPION INTERNATIONAL CORPORATION, a Corporation, Defendant", "name_abbreviation": "Brandenburg Land Co. v. Champion International Corp.", "decision_date": "1992-07-21", "docket_number": "No. 914SC727", "first_page": "102", "last_page": "105", "citations": [ { "type": "official", "cite": "107 N.C. App. 102" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "27 S.E. 30", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 5, "year": 1897, "pin_cites": [ { "page": "30" }, { "parenthetical": "emphasis added" }, { "page": "30", "parenthetical": "citation omitted" }, { "page": "30" } ], "opinion_index": 0 }, { "cite": "120 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657632 ], "weight": 2, "year": 1897, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nc/120/0339-01" ] }, { "cite": "390 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "751", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524650 ], "year": 1990, "pin_cites": [ { "page": "390", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0389-01" ] }, { "cite": "330 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "citing State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972)" } ], "opinion_index": 0 }, { "cite": "313 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722697, 4725936, 4721340, 4722525, 4724158 ], "year": 1985, "pin_cites": [ { "parenthetical": "citing State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0612-03", "/nc/313/0612-05", "/nc/313/0612-01", "/nc/313/0612-02", "/nc/313/0612-04" ] }, { "cite": "325 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "271", "parenthetical": "citing State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972)" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526819 ], "year": 1985, "pin_cites": [ { "page": "384", "parenthetical": "citing State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0372-01" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "287 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "56 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519938 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/56/0151-01" ] }, { "cite": "151 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563822 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0554-01" ] }, { "cite": "191 S.E.2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1972, "pin_cites": [ { "page": "658", "parenthetical": "citing McNeely" }, { "page": "659" }, { "page": "659", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "282 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562551 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "27", "parenthetical": "citing McNeely" }, { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0001-01" ] }, { "cite": "190 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1972, "pin_cites": [ { "page": "185", "parenthetical": "citation omitted" }, { "page": "186", "parenthetical": "citation omitted" }, { "page": "185", "parenthetical": "citation omitted" }, { "page": "187", "parenthetical": "\"expert witness fees can be taxed against an adverse party only when the testimony of the witness examined (or tendered) was (or would have been) material and competent\"" } ], "opinion_index": 0 }, { "cite": "281 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576360 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "691", "parenthetical": "citation omitted" }, { "page": "692" }, { "page": "694", "parenthetical": "\"expert witness fees can be taxed against an adverse party only when the testimony of the witness examined (or tendered) was (or would have been) material and competent\"" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0684-01" ] } ], "analysis": { "cardinality": 529, "char_count": 9182, "ocr_confidence": 0.78, "pagerank": { "raw": 2.318402655908561e-07, "percentile": 0.789715153277276 }, "sha256": "bfbbc739b58c2ecf11d27b49be28d1211ee67ca64a6eb479e4b8fa959f829ac9", "simhash": "1:a369d46a01371d57", "word_count": 1488 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wynn and Walker concur." ], "parties": [ "BRANDENBURG LAND COMPANY, a Corporation, Plaintiff v. CHAMPION INTERNATIONAL CORPORATION, a Corporation, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nThe issue in this case is whether an expert\u2019s fee for the preparation of documents used to support defendant\u2019s motion for summary judgment can be taxed as a cost to a plaintiff who takes a voluntary dismissal after the motion for summary judgment has been filed, but before calendaring.\nOn 12 April 1979, plaintiff filed suit against defendant to remove a cloud upon its title to four tracts of land claimed by both parties. For nearly twelve years, negotiations continued in an attempt to settle out of court. During this period, there were illnesses, deaths, and changes of counsel on both sides. In January 1991, negotiations broke down and defendant soon afterward filed a motion for summary judgment. In support of its motion for summary judgment, defendant filed a voluminous affidavit prepared by an expert witness. The affidavit and accompanying text documented defendant\u2019s chain of title to its twenty-five tracts of land which are alleged to overlap the four tracts in question.\nIn this affidavit, defendant\u2019s expert, an attorney experienced in the examination and certification of real property titles, concluded that defendant or its predecessors-in-title acquired an estate, as defined by the North Carolina Real Property Marketable Title Act in each of the twenty-five tracts, more than thirty years prior to the date the action was filed. The expert\u2019s fee was $3000.00. Plaintiff took a voluntary dismissal without prejudice on 25 March 1991, before the case was calendared for trial. Defendant filed a motion for costs on 28 March 1991. On 18 April 1991, the trial court granted defendant\u2019s motion and taxed plaintiff with the expert\u2019s fee as part of the costs. Plaintiff appeals.\nA plaintiff may take a voluntary dismissal at any time prior to resting his or her case. N.C.R. Civ. P. Rule 41(a)(1) (1990). \u201cA 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.\u201d N.C.R. Civ. P. Rule 41(d) (1990) (emphasis added). \u201cAt common law neither party recovered costs in a civil action and each party paid his own witnesses.\u201d City of Charlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179, 185 (1972) (citation omitted). \u201cThe court\u2019s power to tax costs is entirely dependent upon statutory authorization.\u201d State v. Johnson, 282 N.C. 1, 27, 191 S.E.2d 641, 658 (1972) (citing McNeely). \u201cSince the right to tax costs did not exist at common law and costs are considered penal in their nature, \u2018[statutes relating to costs are strictly construed.\u2019\u201d McNeely, 281 N.C. at 692, 190 S.E.2d at 186 (citation omitted) (emphasis added). Costs are not granted upon \u201c \u2018mere equitable or moral grounds.\u2019 \u201d Id., at 691, 190 S.E.2d at 185 (citation omitted).\nThe statutes governing the imposition of costs are N.C.G.S. \u00a7\u00a7 6-20 and 7A-314. When not otherwise provided for by law, costs may be imposed in the discretion of the court. N.C.G.S. \u00a7 6-20 (1986). The decision to tax costs is not reviewable absent an abuse of discretion. Chriscoe v. Chriscoe, 268 N.C. 554, 151 S.E.2d 33 (1966). The statute specifically provides for witness fees:\n(a) A witness under subpoena, bound over, or recognized, . . ., shall be entitled to receive five dollars ($5.00) per day, or fraction thereof, during his attendance, which, . . ., must be certified to the clerk of superior court.\n(d) An expert witness, . . ., shall receive such compensation and allowances as the court, or the Judicial Standards Commission, in its discretion, may authorize. . . .\n(e) If more than two witnesses are subpoenaed, bound over, or recognized, to prove a single material fact, the expense of the additional witnesses shall be borne by the party issuing or requesting the subpoena.\nN.C.G.S. \u00a7 7A-314 (1989) (emphases added).\nSection (a)\u2019s language \u201csubpoenaed, bound over or recognized\u201d is not read in the alternative. Craven v. Chambers, 56 N.C. App. 151, 287 S.E.2d 905 (1982), overruled on other grounds, Johnson v. Ruark Obstetrics and Gynecology Assoc., 327 N.C. 283, 395 S.E.2d 85 (1990). Only witnesses who have been subpoenaed may be compensated. State v. Johnson, 282 N.C. 1, 27, 191 S.E.2d 641, 659 (1972). \u201cSections (a) and (d) must be considered together.\u201d Id. \u201cSection (d) modifies Section (a) by permitting the court, in its discretion, to increase [expert witness\u2019] compensation and allowances. The modification relates only to the amount of an expert witness\u2019 fee; it does not abrogate the requirement that all witnesses must be subpoenaed before they are entitled to compensation.\u201dId. at 27-28, 191 S.E.2d at 659 (emphasis added). Expert witness fees are \u201cnot generally recognized as costs\u201d unless the expert has been subpoenaed. Wade v. Wade, 72 N.C. App. 372, 384, 325 S.E.2d 260, 271, disc. rev. denied, 313 N.C. 612, 330 S.E.2d 616 (1985) (citing State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972)) (the Wade court vacated the trial court\u2019s award of costs of appraisals incurred to prove the value of assets in an equitable distribution action because the witnesses had not been subpoenaed).\nThere is no case on point. All of the decisions reported refer to awards of costs after the case had been calendared for and indeed had gone to trial. Defendant argues that Rule 41(d) which is designed to \u201c \u2018prevent vexatious suits made possible by the ease with which a plaintiff may dismiss [his suit],\u2019 \u201d Alsup v. Pitman, 98 N.C. App. 389, 390, 390 S.E.2d 750, 751 (1990) (citation omitted), combined with the discretionary nature with which a trial judge may award costs, N.C.G.S. \u00a7 6-20, provide a statutory basis for taxing costs where plaintiff takes a voluntary dismissal prior to trial. Defendant points also to precedent which permits the award of fees for experts who do not testify. City of Charlotte v. McNeely, 281 N.C. 684, 694, 190 S.E.2d 179, 187 (1972) (\u201cexpert witness fees can be taxed against an adverse party only when the testimony of the witness examined (or tendered) was (or would have been) material and competent\u201d).\nDefendant cites Henderson v. Williams, 120 N.C. 339, 27 S.E. 30 (1897) for the proposition that the cost of witnesses who are \u201cavailable and present and prepared to testify\u201d may be taxed as costs when their testimony is rendered unnecessary by the plaintiffs voluntary dismissal. When Henderson was decided the law provided that the costs of witnesses could be taxed against the losing party if the witnesses were subpoenaed and examined or tendered. In Henderson, the trial court called the case and plaintiff took a voluntary nonsuit in open court. The clerk of court taxed plaintiff with the costs of defendant\u2019s witnesses. Plaintiff appealed the clerk\u2019s entry of costs because defendant\u2019s witnesses had not been sworn, examined or tendered. Id. at 340, 27 S.E. at 30. The trial court agreed and ordered that \u201cno witnesses subpoenaed by the defendants [ ] be taxed against the plaintiff, except those who were sworn, examined or tendered.\u201d Id. (emphasis added). Our Supreme Court reversed because defendant \u201chad no opportunity to swear, examine or tender his witnesses by reason of the nonsuit.\u201d Id. at 340-41, 27 S.E. at 30 (citation omitted) (emphasis added).\nWe assume, though the opinion does not so reflect, that defendant\u2019s witnesses in Henderson had been subpoenaed as the trial court order specifically denies an award of costs of unsubpoenaed witnesses. Further, our Supreme Court indicated that defendant\u2019s witnesses were \u201cproperly . . . present.\u201d Henderson, 120 N.C. at 340, 27 S.E. at 30. As such, the Henderson Court decided the significance of the \u201cexamined or tendered\u201d requirement, not the issue at bar. It is clear that a good case exists here for the persuasive effects of the expert witness\u2019 affidavit. Considering that discovery procedures are increasingly important in legal proceedings, the Legislature may well reconsider the question. Query, would an expert subpoenaed for a deposition qualify under the circumstances of this case? Defendant\u2019s reliance upon Henderson is misplaced. We are bound by State v. Johnson.\nReversed.\nJudges Wynn and Walker concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Henderson, Baxter & Alford, by B. Hunt Baxter, Jr., for plaintiff-appellant.", "Ward and Smith, by Kenneth R. Wooten and Cheryl A. Marteney, for defendant-appellee." ], "corrections": "", "head_matter": "BRANDENBURG LAND COMPANY, a Corporation, Plaintiff v. CHAMPION INTERNATIONAL CORPORATION, a Corporation, Defendant\nNo. 914SC727\n(Filed 21 July 1992)\nCosts \u00a7 40 (NCI4th)\u2014 documents supporting summary judgment \u2014 voluntary dismissal before trial calendared \u2014expert witness fee\nAn expert\u2019s fee for the preparation of documents used to support defendant\u2019s motion for summary judgment may not be taxed as a cost to a plaintiff who takes a voluntary dismissal after the motion for summary judgment was filed but before the case was calendared for trial, since expert witness fees are not recognized as costs unless the expert has been subpoenaed. N.C.G.S. \u00a7 7A-314.\nAm Jur 2d, Costs \u00a7\u00a7 14 et seq., 65; Expert and Opinion Evidence \u00a7 25.\nAPPEAL by plaintiff from an order entered 18 April 1991 by Judge J. Herbert Small in JONES County Superior Court. Heard in the Court of Appeals 14 May 1992.\nHenderson, Baxter & Alford, by B. Hunt Baxter, Jr., for plaintiff-appellant.\nWard and Smith, by Kenneth R. Wooten and Cheryl A. Marteney, for defendant-appellee." }, "file_name": "0102-01", "first_page_order": 130, "last_page_order": 133 }