Civil Practice – Expenses – Expert Witness – Attorneys’ Fees – Disallowed

Listen to this article

Point Intrepid, LLC v. Farley (Lawyers Weekly No. 11-07-0843, 27 pp.) (Robert N. Hunter Jr., J.) Appealed from Cumberland County Superior Court. (Gregory A. Weeks, J.) N.C. App. Click here for the full-text opinion.

Holding: When a party refused to pay a court-appointed expert’s fee and the expert had to seek the help of the court to get his fee paid, the expert is not entitled to an award of the attorneys’ fees and other expenses he incurred in trying to get his fee paid.

We affirm the trial court’s order requiring plaintiffs to pay the balance of the expert’s invoice for court-ordered services. We reverse that part of the order requiring plaintiffs to pay the attorneys’ fees and additional expenses set out in the trial court’s Sept. 22, 2010 order.

Plaintiffs attempt to argue on appeal that part of the expert’s fee should be paid by defendant because of defendant’s allegedly improper communications with the expert. However, the parties’ settlement agreement does not address this fee-shifting argument; additionally, neither plaintiffs’ motion nor the trial court’s orders make any mention of a fee-shifting claim. Thus, plaintiffs did not preserve the fee-shifting argument because they did not obtain a ruling from the trial court on the issue.

Even though plaintiffs presented evidence that the expert’s fee should have been lower, the expert presented evidence of the reasonableness of his fee. The trial court’s rejection of plaintiffs’ position does not indicate that the court failed to consider their evidence.

Expert witnesses appointed by the court “are entitled to reasonable compensation in whatever sum the court may allow.” N.C. R. Evid. 706(b). When an expert is appointed for court-ordered work, reasonable compensation is limited to reimbursement for performance of that work only.

The trial court’s Sept. 22, 2010 order requires plaintiffs to pay “attorneys’ fees ($3,762.50) and expert fees ($2,375.00)” for a total of $6,137.50 in addition to the balance of the expert’s invoice. These additional fees are not “reasonable compensation” under Rule 706.

First, attorneys’ fees are not recoverable absent express statutory authority. Rule 706, the relevant statutory authority on reimbursement of expert witnesses, makes no mention of attorneys’ fees.

Furthermore, the expert’s additional expenses were incurred independent of his court-ordered services; thus, they are not recoverable. Since expert witnesses are only reimbursed for time actually spent in court under subpoena, G.S. § 7A-305, the expert cannot recover his travel expenses and costs associated with his efforts to recover the balance of the invoice.

Additionally, the expert’s appearance at an Aug. 30, 2010 hearing was voluntary, so he cannot recover for expenses associated with this hearing.

Consequently, the trial court abused its discretion by awarding the expert an additional $6,137.50 for attorneys’ fees and additional expenses.

Affirmed in part, reversed in part.