ERVIN, Justice.
In this case we are required to determine whether defendants North Carolina Baptist Hospitals, Incorporated a/k/a North Carolina Baptist Hospital and Wake Forest University Health Sciences (collectively, "defendants NCBH and WFUHS"), and defendants Terry Daniel, M.D. and Dayspring Family Medicine Associates, PLLC (collectively, "defendants Daniel and Dayspring") were required to obtain the issuance of subpoenas directed to certain individuals who had been identified as planning to provide expert testimony on behalf of plaintiff Keen Lassiter, as guardian ad litem for Jakari Baize, as a prerequisite for being awarded the fees that defendants paid for the "actual time [that the expert witnesses] spent providing [deposition] testimony" as costs. N.C.G.S. § 7A-305(d)(11) (2013). On 5 August 2014, a unanimous panel of the Court of Appeals filed an opinion concluding that the trial court had erred by awarding the relevant expert witness fees as costs because defendants were statutorily required to subpoena the expert witnesses in question as a prerequisite for obtaining such relief. Lassiter ex rel. Baize v. N.C. Baptist Hosps., Inc., ___ N.C.App. ___, ___, 761 S.E.2d 720, 724 (2014) (citing Stark v. Ford Motor Co., 226 N.C. App. 80, 84, 739 S.E.2d 172, 176 (citing Jarrell v. Charlotte-Mecklenburg Hosp. Auth., 206 N.C. App. 559, 563, 698 S.E.2d 190, 193 (2010) (concluding that N.C.G.S § 7A-314 "limits the trial court's broader discretionary power under [N.C.G.S.] § 7A-305(d)(11) to award expert fees as costs only when the expert is under subpoena")), disc. rev. denied, 367 N.C. 240, 748 S.E.2d 321 (2013)). After reviewing the relevant statutory provisions, we conclude that the General Assembly eliminated the traditional subpoena requirement associated with the taxing of certain expert witness fees as costs in civil actions by adding subdivision (11) to N.C.G.S. § 7A-305(d) (stating that "[r]easonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings" are "assessable or recoverable" as costs) in 2007, see Act of July 3, 2007, ch. 212, sec. 3, 2007 N.C. Sess. Laws (Reg. Sess. 2007) 339, 339-40, and that the Court of Appeals' decision should be reversed.
On 8 December 2010, Chinatha Clark, as guardian ad litem for her son, Jakari Baize,
On 13 February 2012, a hearing was held before Judge Marvin K. Blount, III to address a number of issues, including the entry of a discovery scheduling order. Two days later, counsel for defendants Daniel and Dayspring sent a draft discovery scheduling order to the trial court coordinator for the Superior Court, Johnston County, for consideration by Judge Blount. On 25 April 2012, the trial court coordinator contacted counsel for the parties to inform them that, while Judge Blount had not yet entered a discovery scheduling order, he would do so as soon as possible.
According to the draft discovery scheduling order transmitted to Judge Blount by counsel for defendants Daniel and Dayspring, plaintiff was required to designate all expert witnesses whom he intended to call at trial on or before 1 May 2012 and to "make [his] expert witnesses available for deposition upon request by any party on or before August 15, 2012." Although Judge Blount had not, by that point, entered a discovery scheduling order, plaintiff identified ten expert witnesses whom he expected to call at trial during May 2012 before plaintiff withdrew one of those expert witnesses on 6 July 2012.
On 15 October 2012, Judge Blount entered a discovery scheduling order that, among other things, extended the date by which plaintiff's designated expert witnesses must be made available for deposition from 15 August 2012 to 15 November 2012. In addition, the discovery scheduling order provided that (1) "[e]xperts not designated and made available for deposition in accordance with this [o]rder shall not be permitted to testify at trial"; (2) "[a]ll designated expert witnesses shall reasonably be made available for a discovery deposition upon request by any party"; (3) "[a] party desiring to depose another party's expert witness shall pay the expert a reasonable hourly rate for the expert's actual time testifying at the deposition"; and (4), if a dispute concerning the amount of compensation to be paid to an expert witness for deposition-related testimony arises, "the deposition shall be taken, and thereafter the [c]ourt, upon motion filed by any party, shall establish a reasonable hourly rate for the expert's actual time testifying at the deposition." Moreover, the discovery scheduling order required that all discovery be completed by 3 October 2013, that the mandatory mediation conference be held by 17 October 2013, and that the case be set for trial on or after 20 January 2014. Finally, the discovery scheduling order permitted modification of the "schedule and deadline dates set forth [t]herein ... only by the written consent of counsel for all parties with the [c]ourt's consent or by order of the [c]ourt for good cause shown."
Prior to the 15 November 2012 deadline, defendants deposed (1) Kitty Carter-Wicker, M.D. on 27 July 2012;
A hearing concerning the issues raised by these competing motions was held before Judge William R. Pittman at the 14 January 2013 term of the Superior Court, Johnston County. On the same date, Judge Pittman entered an order denying plaintiff's motion to amend and allowing defendants' motion to preclude certain of plaintiff's expert witnesses from testifying at trial. More specifically, Judge Pittman ordered that Drs. Lussky, Poindexter, and Neulicht be precluded from testifying at trial, allowed Dr. Shapiro to testify as a treating physician while precluding him from testifying as an expert witness, and stated that, if Dr. Johnson had not been made available for deposition by 1 March 2013, her trial testimony would be precluded as well.
On 4 February 2013, the trial court entered an amended discovery scheduling order, under which the 15 November 2012 deadline by which plaintiff was required to make his expert witnesses available for deposition remained in effect. On 21 February 2013, plaintiff filed a motion seeking to have the deadline by which Dr. Johnson had to be made available for deposition extended or, in the alternative, to have Dr. Johnson replaced with another expert witness. On 4 March 2013, defendants filed a motion to preclude Dr. Johnson from testifying at trial on grounds that plaintiff "has not offered any dates for Dr. Johnson's deposition and has not made her available for deposition by March 1, 2013." On 11 April 2013, Judge Pittman entered an order allowing defendants' motion.
On 22 July 2013, plaintiff voluntarily dismissed all claims against all defendants without prejudice pursuant to N.C.G.S. § 1A-1, Rule 41(a). On 2 August 2013, defendants Daniel and Dayspring filed a motion seeking the entry of an order taxing costs against plaintiff in the dismissed case pursuant to N.C.G.S. § 1A-1, Rule 41(d)
After conducting a hearing to consider the issues raised by defendants' motions on 26 August 2013, the trial court entered orders on 9 September 2013
"The sole issue on appeal [before the Court of Appeals was] whether the trial court erred by granting expert witness fees" for the actual time that the experts plaintiff had designated spent testifying during their respective depositions "as costs to defendants pursuant to section 7A-305 of the North Carolina General Statutes." Lassiter, ___ N.C.App. at ___, 761 S.E.2d at 722. In resolving this issue, the Court of Appeals began by discussing the interplay between N.C.G.S. §§ 6-20, 7A-305(d)(11), and 7A-314, and concluded that under existing law "before a trial court may assess expert witness testimony fees as costs, the testimony must be (1) reasonable, (2) necessary, and (3) given while under subpoena." Id. at ___, 761 S.E.2d at 723 (quoting Peters v. Pennington, 210 N.C. App. 1, 26, 707 S.E.2d 724, 741 (2011)).
After making this determination, the court addressed defendants' contention that the discovery scheduling orders "eliminated the need to subpoena [the] expert witnesses for deposition" as a precondition for taxing the expert witness fees incurred in the course of taking these depositions as costs. Id. at ___, 761 S.E.2d at 723. In plaintiff's view, since the discovery scheduling orders "did not modify or waive the [subpoena] requirement" and since "the parties [had] not [otherwise] waive[d] the subpoena requirement, the trial court erred by granting expert witness fees" at issue here given defendants' failure to subpoena these witnesses. Id. at ___, 761 S.E.2d at 723. Defendants, on the other hand, argued that the trial court had correctly concluded that the discovery scheduling orders had the effect of altering the traditional rule that a party is not entitled to recover costs associated with testimony given by a witness who had not been placed under subpoena.
In their briefs before the Court of Appeals, plaintiff and defendants relied upon Jarrell v. Charlotte-Mecklenburg Hospital Authority, in which the plaintiffs challenged an order awarding costs "associated with out-of-state expert witnesses" on the ground that the subpoenas sent to the expert witnesses in question were ineffective to compel their attendance. Jarrell, 206 N.C. App. 559, 560-61, 698 S.E.2d 190, 191 (2010). In response, the defendants in Jarrell asserted that the effectiveness of the subpoenas that had been served on these expert witnesses was irrelevant given that the discovery scheduling order governing the case provided that "`[a]ll parties agree that experts need not be issued a subpoena either for deposition or for trial and waive that requirement of the statute as it may affect the recovery of costs.'" Id. at 561, 698 S.E.2d at 192 (alteration in original). Although the Court in Jarrell agreed "that the express terms of the [discovery scheduling order] would render inapplicable the statutory provisions detailing recovery of expert witness costs," the Court of Appeals declined to decide the case on that basis because that argument had not been raised before the trial court. Id. at 561-62, 698 S.E.2d at 192. In addition, the Court of Appeals concluded that "[N.C.G.S.] § 7A-314 limits the trial court's broader discretionary power under [N.C.G.S.] § 7A-305(d)(11) to award expert fees as costs only when the expert is under subpoena." Id. at 563, 698 S.E.2d at 193. (citing Krauss v. Wayne Cty. Dep't of Soc. Servs., 347 N.C. 371, 378, 493 S.E.2d 428, 433 (1997)). Instead, after finding that the plaintiffs lacked standing to challenge the validity of the subpoenas served on the nonparty expert witnesses, the Court of Appeals upheld the taxing of the challenged expert witness fees to the plaintiffs as costs. Id. at 564-65, 698 S.E.2d at 194.
The Court of Appeals distinguished this case from Jarrell on the grounds that (1) subpoenas had been issued for the expert witnesses in Jarrell and (2) the discovery scheduling order in Jarrell explicitly waived the otherwise-applicable subpoena requirement. Lassiter, ___ N.C.App. at ___, 761 S.E.2d at 723-24. On the other hand, the expert witnesses at issue in this case were not placed under subpoena and the discovery
On 9 September 2014, defendants petitioned for discretionary review of the Court of Appeals' decision. On 9 April 2015, we allowed the petition. As was the case before the Court of Appeals, the sole issue before this Court is whether defendants' failure to subpoena the expert witnesses identified by plaintiff pursuant to the discovery scheduling orders precluded the trial court from taxing plaintiff with the costs of "[r]easonable and necessary fees of expert witnesses" incurred "solely for actual time spent providing testimony at ... deposition" pursuant to N.C.G.S. § 7A-305(d)(11).
In their briefs before this Court, defendants argue that their failure to subpoena the relevant expert witnesses did not preclude an award of costs in their favor because (1) the discovery scheduling orders waived or eliminated the subpoena requirement that the Court of Appeals has deemed applicable in civil actions by virtue of N.C.G.S. §§ 7A-314(a) and 7A-314(d) and (2) N.C.G.S. § 7A-305(d)(11) obviates the necessity for the issuance of a subpoena as a prerequisite for an award of expert witness fees as costs pursuant to that statute. On the other hand, plaintiff contends that the discovery scheduling orders in this case did not obviate the need for defendants to subpoena the expert witnesses at issue here because: (1) no language similar to that contained in the discovery scheduling orders before the Court of Appeals in Jarrell is present here and N.C.G.S. § 1A-1, Rule 26(f1) contains no indication that the General Assembly intended for the enactment of that provision to have the effect of eliminating the traditional subpoena requirement and (2) the enactment of N.C.G.S. § 7A-305(d)(11) did not, as Jarrell and its progeny indicate, have the effect of eliminating the traditional subpoena requirement either.
City of Charlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179, 185 (1972) (second alteration in original) (citations omitted). As a result of the fact that "[a]n award of costs is an exercise of [the] statutory authority[,] if the statute is misinterpreted, the judgment is erroneous." Id. at 691, 190 S.E.2d at 185 (quoting State ex rel. Morris v. Shinn, 262 N.C. 88, 89, 136 S.E.2d 244, 245 (1964)). In other words, when the validity of an award of costs hinges upon the extent to which the trial court properly interpreted the applicable statutory provisions, the issue before the appellate court is one of statutory construction, which is subject to de novo review. See In re D.S., 364 N.C. 184, 187, 694 S.E.2d 758, 760 (2010) (stating that "[q]uestions of statutory interpretation are questions of law and are reviewed de novo" (citing Brown v. Flowe, 349 N.C. 520, 523, 507 S.E.2d 894, 896 (1998))).
According to N.C.G.S. § 7A-305, which governs the recovery of costs in civil actions:
N.C.G.S. § 7A-305(d)(1), (11) (2013). Similarly, N.C.G.S. § 7A-314, which applies to all types of actions, provides, in pertinent part, that:
Id. § 7A-314(a), (b), (d) (2013). In defendants' view, the General Assembly's decision to add subdivision (11) to N.C.G.S. § 7A-305(d), effective 1 August 2007, without including the reference to "as provided by law" contained in N.C.G.S. § 7A-305(d)(1), decoupled N.C.G.S. § 7A-305(d)(11) from N.C.G.S. § 7A-314 so as to explicitly allow trial judges to tax "[r]easonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings" as costs regardless of whether the expert witness in question had been placed under subpoena. Plaintiff, on the other hand, contends that defendants' argument is contrary to decisions by the Court of Appeals, such as Jarrell, and that interpreting the relevant statutory provisions so as to eliminate any link between N.C.G.S. § 7A-305(d)(11) and N.C.G.S. § 7A-314 would "effectively nullif[y]" the provisions of N.C.G.S. § 7A-314 relating to expert witness fees discussed by this Court in State v. Johnson, 282 N.C. 1, 26-28, 191 S.E.2d 641, 658-59 (1972). We find defendants' argument to be the more persuasive of the two.
In Johnson, which arose from a condemnation proceeding initiated by the State and which was decided several decades before enactment of N.C.G.S. § 7A-305(d)(11), this Court considered, among other things, whether the trial court erred by taxing fees for four expert witnesses who had testified at trial without having been placed under subpoena as costs against the State. 282 N.C. at 26-28, 191 S.E.2d at 658-59. In reversing the trial court's award, we stated that N.C.G.S. § 7A-314(a) "makes a witness fee for any witness, except those specifically exempted therein, dependent upon his having been subpoenaed to testify in the case" and "fixes his fee at $5.00 per day"; that, with respect "to expert witnesses," N.C.G.S. § 7A-314(d) "modifies [N.C.G.S. § 7A-314(a)] by permitting the court, in its discretion, to increase ... compensation and allowances" for expert witnesses; and that this "modification relates only to the amount of an expert witness's fee" and accordingly, "does not abrogate the requirement that all witnesses must be subpoenaed before they are entitled to compensation" pursuant to N.C.G.S. § 7A-314. Id. at 27-28, 191 S.E.2d at 659 (citing N.C.G.S. § 7A-314 (Supp. 1971)).
Although the General Assembly certainly intended for the 2007 amendments to N.C.G.S. § 7A-305(d) to clarify the identity and amounts of taxable costs in civil actions, we believe that the enactment of N.C.G.S. § 7A-305(d)(11) served an additional purpose, which was to establish that "[r]easonable and necessary [expert witness] fees ... solely for actual time spent providing testimony at trial, deposition, or other proceedings" are taxable as costs in civil actions and that, given the omission of "as provided by law," such expert witness fees are taxable as costs even though the expert testimony is not compelled by a subpoena. See ch. 212, sec. 3, 2007 N.C. Sess. Laws (Reg. Sess. 2007) at 339-40 (captioned "An Act to Clarify the Court's Discretion to Allow Court Costs."). We do not believe, as plaintiff argues, that giving determinative effect to the omission from N.C.G.S. § 7A-305(d)(11) of any reference to "as provided by law" as contained in N.C.G.S. § 7A-305(d)(1) "effectively nullifie[s]" the expert witness provisions of N.C.G.S. § 7A-314.
Thus, we conclude that the enactment of N.C.G.S. § 7A-305(d)(11) in 2007 allows for the taxing of "[r]easonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings" without requiring the party seeking to obtain the taxing of such costs to demonstrate that the expert witnesses in question testified subject to a subpoena.
REVERSED.