                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   JUNE 18, 2001 Session

             BARBARA WHITE v. DR. JOHN ALBRITTON, ET AL.

                   Direct Appeal from the Circuit Court for Shelby County
                   No. 62414 T.D.; The Honorable James F. Russell, Judge



                     No. W2000-03068-COA-R3-CV - Filed July 26, 2001


This appeal arises from a medical malpractice claim filed in the Circuit Court of Shelby County by
the Appellant against the Appellees. On the first day of trial, the Appellant announced her intention
to voluntarily nonsuit the case. The trial court entered an order of voluntary nonsuit. The Appellees
filed a motion for discretionary costs. The trial court held that the motion was premature but would
revisit the motion if the lawsuit was refiled. The Appellant refiled the lawsuit in the United States
District Court for the Western District of Tennessee. The Appellees refiled the motion for
discretionary costs in the Circuit Court of Shelby County. The circuit court granted the Appellees’
motion for discretionary costs.

        The Appellant appeals from the grant of the Appellees’ motion for discretionary costs by the
Circuit Court of Shelby County. For the reasons stated herein, we affirm the trial court’s decision.


      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
KIRBY LILLARD, J., joined.

Craig V. Morton, Memphis, TN, for Appellant

J. Kimbrough Johnson, Memphis, TN, for Appellees, John Albritton, M..D., Mid-South Ob-Gyn
Group, P.C., and Thomas Greenwell, M.D.

Michael E. Keeney, Memphis, TN, for Appellees, Herbert Taylor, M.D., George H. Peeler, M.D.,
and Michael Marshall, M.D.

James L. Kirby, Tabitha f. McNabb, Memphis, TN, for Appellee, Susan Murrmann, M.D.
                                             OPINION

                                I. Facts and Procedural History

        On June 15, 1994, the Appellant, Barbara White (“Ms. White”), filed a complaint for medical
malpractice in the Circuit Court of Shelby County against the Appellees, Dr. John Albritton, Mid
South Ob-Gyn Group, P.C., Dr. Thomas Greenwell, Dr. George H. Peeler, Dr. Herbert Taylor, Dr.
Susan Murrmann, and Dr. Michael Marshall (“Physicians”). The parties prepared for trial and
engaged in extensive discovery. The case was set for trial on several occasions including November
16, 1998, March 15, 1999, and May 17, 1999. On one occasion, the trial court declared a mistrial
on the second day of proceedings.

        On January 18, 2000, the trial commenced and, on the first afternoon of the trial, Ms. White
announced her intention to voluntarily nonsuit the case. Ms. White claims that the disappearance
of the court clerk’s file, the disappearance of medical records, and the trial judge’s wife’s medical
relationship with some of the Physicians precipitated the voluntary nonsuit. On February 4, 2000,
the trial court entered an order of voluntary nonsuit. On February 10, 2000, Physicians filed a
motion for discretionary costs in the amount of $6,434.75. At the hearing of Physicians’ motion for
discretionary costs, the trial court held that the motion was premature but that it would revisit the
motion if the lawsuit was refiled.

        On August 28, 2000, Ms. White refiled the lawsuit in the United States District Court for the
Western District of Tennessee. On September 11, 2000, Physicians refiled the motion for
discretionary costs in the Circuit Court of Shelby County. The circuit court granted Physicians’
motion for discretionary costs in the amount of $6,434.75. This appeal followed.

                                     II. Standard of Review

         The standard of review for a non-jury case is de novo upon the record. See Wright v. City
of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the
trial court’s factual findings, unless the preponderance of the evidence is otherwise. See TENN. R.
APP . P. 13(d). For issues of law, the standard of review is de novo, with no presumption of
correctness. See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).

                                      III. Law and Analysis

        The following two issues, as we perceive them, are presented for our review: 1) whether the
trial court had jurisdiction to award discretionary costs; and 2) if the trial court had jurisdiction,
whether the trial court abused its discretion by granting Physicians’ motion for discretionary costs.
We will examine each of these issues in turn.

        The first issue presented for our review is whether the trial court had jurisdiction to award
discretionary costs. Ms. White argues that the trial court erred by awarding discretionary costs


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because the trial court no longer had jurisdiction over the proceedings when the action was refiled
in federal court.

        Rule 54.04(2) of the Tennessee Rules of Civil Procedure provides that “[t]he court may tax
discretionary costs at the time of voluntary dismissal.” TENN. R. CIV . P. 54.04(2). The refiling of
the lawsuit in federal court following an order of voluntary dismissal in the trial court does not divest
the trial court of jurisdiction to award discretionary costs. The trial court is clearly in a better
position to make an allowance or disallowance of discretionary costs for expenses incurred while
the case is pending in the trial court. Accordingly, we find that the trial court had jurisdiction to
award discretionary costs.

        The second issue presented for our review is whether the trial court abused its discretion by
granting Physicians’ motion for discretionary costs. Ms. White argues that the trial court abused its
discretion by granting Physicians’ motion for discretionary costs because she pursued the litigation
in good faith and Physicians were not harmed by the voluntary nonsuit.

        Rule 54.04(2) of the Tennessee Rules of Civil Procedure authorizes the trial court to award
discretionary costs and provides, in pertinent part:

                Costs not included in the bill of costs prepared by the clerk are
                allowable only in the court’s discretion. Discretionary costs
                allowable are: reasonable and necessary court reporter expenses
                for depositions or trials, reasonable and necessary expert witness
                fees for depositions or trials, and guardian ad litem fees; travel
                expenses are not allowable discretionary costs.

TENN. R. CIV . P. 54.04(2).

Trial courts are vested with wide discretion in awarding discretionary costs, and this Court will not
interfere with an award of discretionary costs except upon a clear showing that the trial court abused
its discretion. See Placencia v. Placencia, 3 S.W.3d 497, 503 (Tenn. Ct. App. 1999) (citing Perdue
v. Green Branch Mining Co., 837 S.W.2d 56, 60 (Tenn. 1992)). In the case at bar, the trial court
awarded the full amount of discretionary costs requested by Physicians, $6,434.75, which was the
cost for court reporter expenses and expert witness fees. Applying the foregoing standard, we find
no evidence that the trial court abused its discretion in awarding discretionary costs. Accordingly,
we find that the trial court did not err by granting Physicians’ motion for discretionary costs.




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                                          IV. Conclusion

       For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are
taxed against the Appellant, Barbara White, for which execution may issue if necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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