                                                                                        06/25/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  May 29, 2018 Session

                JASON KEENAN v. JEFFERY L. HOLLIFIELD

                   Appeal from the Circuit Court for Knox County
                      No. 1-127-16     Kristi M. Davis, Judge


                             No. E2017-02047-COA-R3-CV


Jason Keenan sued Jeffrey L. Hollifield for damages arising out of a two-vehicle collision
on Interstate 40 in Knox County. By way of an order entered August 9, 2017, the plaintiff
took a voluntary nonsuit, pursuant to the provisions of Tenn. R. Civ. P. 41.01(1). On the
same date, the defendant filed a motion for discretionary costs. Following a hearing on
September 8, 2017, the trial court, in an order entered September 15, 2017, denied the
defendant’s motion. Defendant appeals, arguing that he is entitled to discretionary costs
of $814.66. We reverse the trial court’s judgment and award the defendant discretionary
costs of $814.66.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                             Reversed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and BRANDON O. GIBSON, J., joined.

Terrill L. Adkins, Knoxville, Tennessee, for the appellant, Jeffery L. Hollifield.

Ameesh A. Kherani, Knoxville, Tennessee, for the appellee, Jason Keenan.


                                        OPINION

                                             I.

       The relevant facts pertaining to the defendant’s motion for discretionary costs are
not in dispute. The issue is addressed in the trial court’s order of September 15, 2017,


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which was drafted by counsel for the defendant. In that order, the trial court states the
following:

              …the Defendant filed a timely and properly supported motion
              for discretionary costs demonstrating (1) that the defendant is
              the prevailing party under Tennessee law, (2) that the
              discretionary costs being sought are contemplated by and
              included in Tenn. R. Civ. P. 54.04(2), (3) that the costs were
              necessary and reasonable, and (4) that the Defendant has not
              engaged in conduct during the litigation that would justify
              depriving [him] of the costs the Defendant is requesting…

Following these finding by the trial court, the court added the following by typewritten
material: “…this Court, as a general matter, will not grant discretionary costs in response
to a plaintiff’s voluntary dismissal unless there are special circumstances that would
justify an award of discretionary costs.” In the margins of the order, the trial court penned
the following:

              Otherwise, this court views the taxing of discretionary costs
              following a routine voluntary dismissal as being punitive
              against the party who, after fully evaluating the case,
              concludes it is not prudent to continue the claim. In this case,
              for example, counsel for the plaintiff stated that the decision
              to voluntarily dismiss the case was made after completion of
              discovery depositions and a full opportunity to evaluate the
              claim. The court disagrees, in general, with the defendant’s
              argument that discretionary costs should always be granted to
              a prevailing party upon a showing of the reasonableness and
              necessity of the costs and compliance with the other factors
              identified in Massachusetts Mut. Life Ins. Co. v. Jefferson,
              104 S.W.3d 13, 35-36 (Tenn. Ct. App. 2002).

The trial court signed the order and initialed the addition of the penned material.

                                             II.

        The issue in this case brings into sharp focus Tenn. R. Civ. P. 54.04. Subsection
(2) of that rule, in pertinent part, provides as follows:

              Costs not included in the bill of costs prepared by the clerk
              are allowable only in the court's discretion. Discretionary
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              costs allowable are: reasonable and necessary court reporter
              expenses for depositions or trials, reasonable and necessary
              expert witness fees for depositions (or stipulated reports) and
              for trials, reasonable and necessary interpreter fees not paid
              pursuant to Tennessee Supreme Court Rule 42, and guardian
              ad litem fees; travel expenses are not allowable discretionary
              costs. Subject to Rule 41.04, a party requesting discretionary
              costs shall file and serve a motion within thirty (30) days after
              entry of judgment. The trial court retains jurisdiction over a
              motion for discretionary costs even though a party has filed a
              notice of appeal. The court may tax discretionary costs at the
              time of voluntary dismissal….

Tenn. R. Civ. P. 54.04(2) (emphasis added). The purpose of this provision is not to
punish the losing party, but rather to help make the prevailing party whole. Boggs v.
Rhea, 459 S.W.3d 539, 543 (Tenn. Ct. App. 2014) (citing Owens v. Owens, 241 S.W.3d
478, 497 (Tenn. Ct. App. 2007)). In Boggs, we acknowledged that our review, as an
appellate court, is to determine whether the trial court, in addressing the issue of Tenn. R.
Civ. P. 54.04(2) costs, abused its discretion. Boggs, 459 S.W.3d at 547. We noted that
“[t]he particular equities of the case may influence a trial court’s decision to award
discretionary costs.” Id. (citing Perdue v. Green Branch Min. Co., 837 S.W.2d 56, 60
(Tenn. 1992).

                                            III.

        In the case at bar, there is nothing in the record to suggest that the trial court
considered the equities in this case. On the contrary, the court appears to have created a
blanket rule, i.e. no discretionary costs awarded when a plaintiff takes a voluntary
nonsuit. We recognize the trial court’s caveat of “unless there are special circumstances;”
however, if this were to be a meaningful exception, the facts of this case would seem to
fit into this caveat – a timely-filed motion, a miniscule amount of reasonable expenses, a
prevailing party, and no fault on the party seeking the award.

       The trial court’s essentially blanket rule is not contemplated by the language of the
Tenn. R. Civ. P. 54.04(2). On the contrary, the rule expressly states “[t]he court may tax
discretionary costs at the time of voluntary dismissal.”

        In view of the trial court’s rule regarding nonsuited cases, we conclude that the
trial court did not engage itself in a meaningful discretionary analysis. We conclude that
the language of the pertinent rule, the facts of the case, and the equities of the case,
mandate that the defendant be awarded discretionary costs in the amount of $814.66.
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                                          IV.

       The judgment of the trial court is reversed and this case is remanded to the trial
court for the entry of a judgment awarding the appellant Jeffrey L. Hollifield
discretionary costs in the amount of $814.66. Costs of the appeal taxed to the appellee
Jason Keenan.


                                         ______________________________
                                         CHARLES D. SUSANO, JR., JUDGE




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