Debra L. Jarrell and John Jarrell (Plaintiffs) appeal from order granting Defendants' motion for costs and awarding costs in the amount of $11,605.40, specifically disputing that portion totaling $5,715.40 in costs associated with out-of-state expert witnesses. Because Plaintiffs lack standing to challenge the validity of these subpoenas served on the non-party expert witnesses, we affirm the trial court's award of costs in its entirety, including the amount subject to this appeal.
This matter arises out of a medical negligence action brought by Plaintiffs on 8 September 2006. Following trial in Mecklenburg County Superior Court, the jury returned a verdict in favor of Defendants. The trial court entered judgment for Defendants on 24 March 2009, reserving the issue of costs for later determination. Defendants filed a motion on 13 April 2009 seeking $30,204.10 in costs pursuant to N.C. Gen.Stat. §§ 6-20 and 7A-305 but, at the hearing, withdrew their request for certain costs outside the scope of N.C. Gen. Stat. § 7A-305 and amended the amount sought to $16,105.40. In an order entered 8 July 2009, the trial court granted Defendants' motion in part and ordered Plaintiffs to pay $11,605.40 in costs. Plaintiffs argue on appeal that the trial court lacked authority to award, and Defendants were accordingly not entitled to, the following: (1) $5,000 for the trial testimony of out-of-state expert witness Raul J. Rosenthal, M.D.; (2) $267.70 in travel expenses for Dr. Rosenthal's airfare from Ft. Lauderdale, Florida to Charlotte, North Carolina; and (3) $447.70 in travel expenses for out-of-state defense expert J. Stephen Scott, M.D.'s airfare from St. Louis, Missouri to Charlotte. We disagree.
Plaintiffs' sole argument is that the trial court erred in awarding travel and trial testimony costs for out-of-state expert witnesses whose appearances at trial were not subject to subpoena because the subpoenas served upon them were ineffective to compel their attendance. While "[a] trial court's taxing of costs is reviewed under an abuse of discretion standard," Bennett v. Equity Residential, 192 N.C. App. 512, 514, 665 S.E.2d 514, 516 (2008), Plaintiffs raise questions of statutory interpretation that would require "this Court [to] conduct a de novo review of the trial court's conclusions of law." Morgan v. Steiner, 173 N.C. App. 577, 579, 619 S.E.2d 516, 518 (2005). Before reaching Plaintiffs' statutory construction arguments, however, we must first determine whether they have standing to present them. Standing is also a question of law that we review de novo, Musi v. Town of Shallotte, ___ N.C.App. ___, ___, 684 S.E.2d 892, 895 (2009), and "issues pertaining to standing may be raised for the first time on appeal," Aubin v. Susi, 149 N.C. App. 320, 324, 560 S.E.2d 875, 879 (2002).
At the outset, we address Defendants' initial argument that the Discovery Scheduling Order (DSO) in this case expressly waived the statutory requirement that expert
Because the instant case is governed by revised legislation not yet addressed by this Court, we begin with a brief introduction to the trial court's authority to award expert witness fees as costs. Previously, expert fees were not specifically provided for under N.C. Gen.Stat. § 7A-305(d), but "`this Court [had] recognized that expert witness fees could be taxed as costs when a witness has been subpoenaed.'" Bennett, 192 N.C.App. at 516, 665 S.E.2d at 517 (quoting Vaden v. Dombrowski, 187 N.C. App. 433, 440, 653 S.E.2d 543, 547 (2007)). Vaden reasoned, "[p]ursuant to N.C. Gen.Stat. § 7A-305(d)(1) witness fees are assessable as costs as provided by law. This refers to the provisions of N.C. Gen.Stat. § 7A-314 which provides for witness fees where the witness is under subpoena." 187 N.C.App. at 440, 653 S.E.2d at 547 (citation omitted). However, in response to a lack of uniformity as to the propriety of taxing certain costs, "the General Assembly addressed the inconsistencies within our case law by providing that N.C. Gen.Stat. § 7A-305 [(d)] is a `complete and exclusive . . . limit on the trial court's discretion to tax costs pursuant to G.S. 6-20,'" effective 1 August 2007. Id. at 438 n. 3, 653 S.E.2d at 546 n. 3. The amended statute supplements the witness fees allowed under subsection (1) "as provided by law" by adding a specific provision for expert fees. Section 7A-305(d)(11) grants the trial court explicit statutory authority to award as discretionary costs "[r]easonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings." N.C. Gen.Stat. § 7A-305(d)(11) (2009).
Like subsection (1), § 7A-305(d)(11) must be understood in light of § 7A-314. We have held that § 7A-305(d)(1) "is to be read in conjunction with § 7A-314, which governs fees for witnesses." Morgan, 173 N.C.App. at 583, 619 S.E.2d at 520. Specifically, § 7A-314(a) provides that "[a] witness under subpoena . . . to testify before the court . . . shall be entitled to receive five dollars ($5.00) per day, or fraction thereof," and subsection (d) grants the court discretion to increase an expert witness's compensation. N.C. Gen. Stat. §§ 7A-314(a), (d) (2009). Our Supreme Court has held that "[a]s to expert witnesses, Section (d) modifies Section (a)," which means "Sections (a) and (d) must be considered together." State v. Johnson, 282 N.C. 1, 27, 191 S.E.2d 641, 659 (1972). Thus, "[t]he modification relates only to the amount of an expert witness's fee; it does not abrogate the requirement that all witnesses must be subpoenaed before they are entitled to compensation." Id. at 28, 191 S.E.2d at 659.
This Court has applied § 7A-314 to reverse awards of expert fees as costs when no subpoena existed. See, e.g., Overton v. Purvis, 162 N.C. App. 241, 250, 591 S.E.2d 18, 25 (2004) (deeming award of expert fees improper where "only witnesses who have been subpoenaed may be compensated" and nothing in the record nor any findings indicated that the experts were subpoenaed); see also Greene v. Hoekstra, 189 N.C. App. 179, 181, 657 S.E.2d 415, 417 (2008) ("[T]he cost of an expert witness cannot be taxed unless the witness has been subpoenaed."); Wade v. Wade, 72 N.C. App. 372, 384, 325 S.E.2d 260, 271 (1985) ("Unless an expert witness is subpoenaed,. . . the witness' fees are generally not recognized as costs."). In this case, however, the record shows that Defendants served both expert witnesses in question, Drs. Rosenthal and Scott, with subpoenas to testify. To support their claim that the experts were subpoenaed for attendance at trial, Defendants attached to their motion for costs copies of the subpoenas and return receipts documenting delivery that prove, in pertinent part, Drs. Rosenthal and Scott were served with subpoenas to appear and testify by certified mail on 7 and 9 February 2009, respectively. Both expert witnesses appeared at trial and testified pursuant to the terms of the subpoena served upon them. Where Dr. Scott did not request compensation for his personal time, Defendants sought, and the trial court awarded, costs for the trial testimony time of only Dr. Rosenthal and travel expenses for both witnesses.
Plaintiffs acknowledge that Defendants issued subpoenas to Dr. Rosenthal in Florida and Dr. Scott in Missouri but maintain that the service thereof is insufficient to satisfy § 7A-314, where the subpoenas themselves were ineffective to compel the attendance of the non-resident expert witnesses at trial. See State v. Means, 175 N.C. 820, 822, 95 S.E. 912, 913 (1918) ("The attendance of a nonresident witness cannot be enforced, even though summoned. . . ."). Thus, Plaintiffs concede the existence of the subpoenas but contest only their validity. The challenge they attempt to assert, however, belongs not
Likewise, Plaintiffs cannot raise as a defense to the motion for costs the invalidity of these subpoenas by asserting the rights of non-party expert witnesses—namely, that the subpoenas were ineffectual to compel the appearance of Drs. Rosenthal and Scott at trial. Because Plaintiffs lack standing to seek adjudication of the precise issue on which their appeal is based, we do not reach their affiliated arguments regarding statutory interpretation. As such, where Drs. Rosenthal and Scott were undisputedly served with subpoenas to testify at trial and Plaintiffs are not entitled to argue that their appearance was voluntary in fact, Defendants have met not only the requirements of § 7A-305(d)(11) but have also overcome the hurdle imposed by § 7A-314 "that the cost of an expert witness cannot be taxed unless the witness has been subpoenaed." Greene, 189 N.C.App. at 181, 657 S.E.2d at 417. Accordingly, the statutory requirements for awarding expert witness fees as costs were satisfied with respect to Drs. Rosenthal and Scott. Thus, we affirm that related portion of the trial court's award of costs in the amount of $5,715.40, thereby affirming the total award of costs for Defendants in the amount of $11,605.40.
Chief Judge MARTIN and Judge JACKSON concur.