{
  "id": 8552893,
  "name": "JESSE THIGPEN v. DR. JAMES W. PIVER",
  "name_abbreviation": "Thigpen v. Piver",
  "decision_date": "1978-08-01",
  "docket_number": "No. 774SC842",
  "first_page": "382",
  "last_page": "388",
  "citations": [
    {
      "type": "official",
      "cite": "37 N.C. App. 382"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
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    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "193 S.E. 2d 362",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
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    {
      "cite": "17 N.C. App. 74",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8553260
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      "year": 1972,
      "opinion_index": 0,
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        "/nc-app/17/0074-01"
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  "last_updated": "2023-07-14T22:58:37.287571+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Morris and Arnold concur."
    ],
    "parties": [
      "JESSE THIGPEN v. DR. JAMES W. PIVER"
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nPlaintiff\u2019s Appeal\nBy his first assignment of error, plaintiff contends the trial court erred in finding as a fact that plaintiff\u2019s counsel knew that the cost of taking plaintiff\u2019s deposition in the previous action would be an item of costs in that action. Plaintiff argues that this finding is not supported by competent evidence. We find no merit in this assignment.\nIt is clear that findings of fact may be based on competent evidence presented and on reasonable inferences arising therefrom. The evidence that plaintiff\u2019s counsel, (a licensed attorney with many years\u2019 experience in the practice of law), attended and participated in the taking of plaintiff\u2019s deposition; that soon after plaintiff, through said counsel, took a voluntary dismissal, at the request of defendant\u2019s counsel, the $103 disbursement for the deposition was entered as an item of costs in the record; and that thereafter, before instituting the new action, plaintiff\u2019s counsel discussed the item with the assistant clerk of the superior court was more than sufficient to raise a reasonable inference that counsel knew that the item would be in-eluded as a part of the costs and to support a finding of fact to that effect.\nBy his second and third assignments of error, plaintiff contends the trial court erred in finding that the $103 item for the deposition was properly assessed or taxed by the clerk of the superior court and included in the bill of costs for the previous action. We find no merit in these assignments.\nPlaintiff argues that under G.S. 6-21(6) costs for taking depositions may be taxed against either party, or apportioned among the parties, in the discretion of the court; and that the assistant clerk of the superior court had no authority to tax the $103 item against plaintiff.\nWe think G.S. 6-21(6) must be considered in pari materia with at least two other statutes, G.S. 1-7 and G.S. 1A-1, Rule 41(d).\nG.S. 1-7 provides:\nWhen court means clerk. \u2014 In the following sections which confer jurisdiction or power, or impose duties, where the words \u201csuperior court,\u201d or \u201ccourt,\u201d in reference to a superior court are used, they mean the clerk of the superior court, unless otherwise specially stated, or unless reference is made to a regular session of the court, in which cases the judge of the court alone is meant.\nG.S. 1A-1, Rule 41(d), on the date of the order in question, provided:\n(d) Costs. \u2014A 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 dismiss the action.\nG.S. 6-7 vests the clerk of the superior court with the authority and responsibility to \u201center in the case file, after judgment, the costs allowed by law\u201d. Certainly in this case, which evidently never reached the trial calendar and in which the judge was not involved in its disposition, the clerk, through his deputy or assistant, was the proper official to tax or assess costs. Of course, plaintiff could have appealed to the judge from any item that he considered improper.\nTo adopt plaintiff\u2019s argument would mean that costs in all matters enumerated in G.S. 6-21 would have to be taxed by the judge. These include all costs and expenses incurred in special proceedings for the division or sale of either real estate or personal property under the partition statutes. We cannot perceive that to be the law.\nFurthermore, Rule 41(d), provides that a plaintiff who voluntarily dismisses his claim or action shall be taxed with the costs of the action unless it was brought in forma pauperis.\nBy his fifth and final assignment of error plaintiff contends the trial court erred in entering the order dismissing his action. We find no merit in this assignment.\nAs of the date of the entry of the order from which defendant appeals, G.S. 1A-1, Rule 41(d), was unequivocal in its requirement that the court, upon motion of the defendant, \u201cshall\u201d dismiss the action of a plaintiff who took a voluntary dismissal in a prior action not brought in forma pauperis and thereafter instituted a new action against the same defendant on the same claim without paying the costs of the first action.\nWe are aware of the changes in Rule 41(d) made by Chapter 290 of the 1977 Session Laws which provides as follows:\nSection 1. G.S. 1A-1, Rule 41(d), as it appears in the 1969 Replacement of Volume 1A, is amended by rewriting the second sentence and by adding another sentence to read as follows:\n\u201cIf 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.\u201d\nHowever, \u00a7 2 of said Chapter 290 provides that the act \u201cshall become effective on January 1, 1978.\u201d\nSince the order in question was entered on 2 September 1977, we must construe Rule 41 (d) as it read as of that date. We hold that the trial court properly dismissed plaintiffs action. Cheshire v. Aircraft Corp., 17 N.C. App. 74, 193 S.E. 2d 362 (1972).\nDefendant\u2019s Appeal\nInasmuch as we are affirming the order dismissing plaintiff\u2019s action and from which plaintiff appeals, we find it unnecessary to pass upon the question raised by defendant in his appeal from the order allowing plaintiff to amend his complaint.\n* * *\nFor the reasons stated, the order dismissing plaintiff\u2019s action is\nAffirmed.\nJudges Morris and Arnold concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Turner and Harrison, by Fred W. Harrison, for plaintiff appe llant-appe lie e.",
      "Marshall, Williams, Gorham & Brawley, by Daniel Lee Brawley and Ronald H. Woodruff, for defendant appellant-appellee."
    ],
    "corrections": "",
    "head_matter": "JESSE THIGPEN v. DR. JAMES W. PIVER\nNo. 774SC842\n(Filed 1 August 1978)\n1. Rules of Civil Procedure \u00a7 41\u2014 cost of deposition \u2014 counsel\u2019s knowledge of items of costs\nThe evidence was sufficient to support the trial court\u2019s finding that plaintiff\u2019s counsel knew that the cost of taking plaintiff\u2019s deposition in a prior action would be an item of costs in that action where it showed that plaintiffs counsel attended and participated in the taking of plaintiff\u2019s deposition; plaintiff, through counsel, thereafter took a voluntary dismissal of the action; at the request of defendant\u2019s counsel, the $103 disbursement for the deposition was entered as an item of costs in the record; and before instituting a new action, plaintiff\u2019s counsel discussed the item with the assistant clerk of court who entered the cost of the deposition as an item of the costs of the action.\n2. Costs \u00a7 3; Clerks of Court \u00a7 11\u2014 voluntary dismissal \u2014 authority of assistant clerk to tax costs\nAn assistant clerk of superior court had authority to assess the cost of taking plaintiff\u2019s deposition as an item of costs taxed against plaintiff in an action in which plaintiff took a voluntary dismissal before the case reached the trial calendar. G.S. 1-7; G.S. 6-7; G.S. 6-21(6); and G.S. 1A-1, Rule 41(d).\n3. Rules of Civil Procedure \u00a7 41.2\u2014 voluntary dismissal \u2014 failure to pay costs \u2014 dismissal of new action\nThe trial court properly dismissed plaintiff\u2019s action because of plaintiff\u2019s failure to pay the costs of a prior action against defendant based on the same claim, not brought in forma pauperis, and voluntarily dismissed by plaintiff, since at the time of the entry of the court\u2019s order dismissing the action, G.S. 1A-1, Rule 41(d) was unequivocal in its requirement that the court, upon the motion of the defendant, \u201cshall\u201d dismiss the action under such circumstances.\nAPPEAL by plaintiff and defendant from Small, Judge. Orders entered 2 September 1977 in Superior Court, ONSLOW County. Heard in the Court of Appeals 29 June 1978.\nPlaintiff instituted this action on 13 April 1977 seeking $500,000 damages for alleged malpractice on the part of defendant physician. On 12 May 1977 defendant filed an answer and motions asking, among other things, that the action be dismissed on the following grounds:\n(1) Pursuant to Rules 41(b) and 8(a)(2) of the Rules of Civil Procedure for the reason that the complaint contains a monetary demand for relief expressly prohibited by Rule 8(a)(2); and\n(2) Pursuant to Rule 41(d) because of plaintiff\u2019s failure to pay the costs of a previous action filed by him against defendant which action was not brought in forma pauperis and in which plaintiff submitted to a voluntary dismissal.\nThereafter plaintiff moved (1) to be allowed to amend his complaint with respect to the monetary demand and (2) that plaintiff\u2019s motion under Rule 41(d) be denied because plaintiff\u2019s attorney was unaware of the outstanding costs from the previous action at the time the present action was instituted.\nFollowing a hearing on the motions, the court entered an order allowing plaintiff to amend his complaint (1) by striking all of Paragraph 9 (which alleged plaintiff\u2019s damage to be $500,000) and inserting in lieu thereof a paragraph alleging \u201cdamages incurred in excess of Ten Thousand Dollars ($10,000.00)\u201d; and (2) by changing the prayer for relief to ask for such damages as plaintiff might show himself to be entitled to recover. Defendant appealed from this order.\nThe court entered a second order in which it found facts summarized in pertinent part as follows:\nOn 1 February 1973 plaintiff instituted an action against defendant and others which action was based upon and includes the same claim against defendant as is included in this action. The previous action was not brought in forma pauperis and at the time of filing same plaintiff advanced $25 costs. In said action plaintiff was represented by Fred W. Harrison and defendant was represented by Daniel Lee Brawley and John D. Warlick.\nIn connection with the previous action, on 3 June 1975, by consent of the parties, Nancy C. Poole, a notary public, took the deposition of plaintiff. Fred W. Harrison represented plaintiff at the taking of said deposition, and knew that the cost of taking the deposition would be an item of expense included in the costs of said action. Mr. Harrison is representing plaintiff in the present action.\nNancy C. Poole submitted a statement for $103 for taking said deposition and the statement was paid by defendant\u2019s attorneys.\nOn 13 December 1976, pursuant to Rule 41(a) of the Rules of Civil Procedure, plaintiff took a voluntary dismissal of his action then pending. Shortly thereafter, at the request of John D. Warlick, counsel for defendant, a Deputy Clerk of the Superior Court of Onslow County entered the $103 cost for the taking of said deposition on the civil costs bill in the action in which plaintiff had taken a voluntary dismissal.\nPrior to 24 March 1977 Fred Harrison, as counsel for plaintiff, requested Betty Gurganus, Assistant Clerk of the Superior Court of Onslow County, to prepare a cost bill in the previous action. At the time of said request the cost bill in said action improperly showed an item of $41.60 for the taking of a deposition but it also showed an item of $103 for the taking of plaintiff\u2019s deposition. Mr. Harrison advised Betty Gurganus that the $41.60 item was improper and should be placed in another file. In preparing the final cost bill in the previous action, which included the $103 item aforesaid, Betty Gurganus had one or more conversations with Mr. Harrison relative to the costs in said action.\nOn 24 March 1977 Mr. Harrison paid $9.00 to the Clerk of Superior Court of Onslow County as costs in the previous action but did not pay the $103 cost incurred in the taking of the deposition of plaintiff before Nancy C. Poole. On 13 April 1977 plaintiff, represented by Mr. Harrison, instituted the present action and paid $35 advanced costs.\nThe cost of taking the deposition of plaintiff in the previous action was properly assessed or taxed by the Clerk of Superior Court of Onslow County and remains unpaid by plaintiff.\nUpon said findings of fact, the court concluded that the present action instituted by plaintiff is based upon the same claim as the previous action against defendant; that plaintiff took a voluntary dismissal in the previous action pursuant to Rule 41(a); that plaintiff had not paid the costs of court properly taxed and assessed against him in the previous action at the time he instituted this action, and that he may not maintain this action without the payment of the cost in the original action.\nPursuant to said findings of fact and conclusions of law the court ordered the present action dismissed with prejudice. Plaintiff appealed from this order.\nTurner and Harrison, by Fred W. Harrison, for plaintiff appe llant-appe lie e.\nMarshall, Williams, Gorham & Brawley, by Daniel Lee Brawley and Ronald H. Woodruff, for defendant appellant-appellee."
  },
  "file_name": "0382-01",
  "first_page_order": 410,
  "last_page_order": 416
}