                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                       May 5, 2009 Session

                      BERNARD HUGHES v. DEMAR HUDGINS

                      Appeal from the Circuit Court for Hamilton County
                      No. 07-C-795   Ward Jeffrey Hollingsworth, Judge


                  No. E2008-01385-COA-R3-CV - FILED AUGUST 17, 2009



FRANK G. CLEMENT , JR., J., concurring in part and dissenting in part.

        I concur with the majority’s decision to affirm the jury verdict in favor of the defendant,
Demar Hudgins. I write separately, however, to respectfully dissent from the decision regarding
discretionary costs.

         The majority vacated the trial court’s decision, in part, because “the basis for the trial court’s
decision to award Mr. Hudgins some, but not all, of his discretionary costs is unclear from the
record.” As I understand the majority’s reasoning for remanding the issue of discretionary costs for
the trial court’s further review, the majority placed an emphasis on the fact the trial court “did not
explain its reasoning for limiting the award of costs in the way that it did.” I also understand the
majority found it significant that the defendant has not acted in a way “that would justify the court
in depriving him of the costs he incurred.” I, however, am of the belief the trial court’s decision
regarding the award of discretionary costs should be affirmed because the trial court was under no
obligation to explain its reasoning for awarding only a portion of the costs requested; trial courts are
vested with wide discretion in awarding discretionary costs pursuant to Tenn. R. Civ. P. 54.04(2);
this court does not interfere with a trial court’s decision to deny or award discretionary costs except
upon an affirmative showing that the trial court abused its discretion; and the defendant, Mr.
Hudgins, who bears the burden of persuasion as the party challenging the award of discretionary
costs, has failed to show that the trial court abused its discretion in awarding him only a portion of
the discretionary costs he incurred.

        Mr. Hudgins contends the trial court erred in awarding him only a portion of the costs he
incurred. His argument on appeal can be summarized briefly as follows: I am the prevailing party,
I incurred $10,911.45 in discretionary costs, the trial court decided I was entitled to recover
discretionary costs, but I was only awarded some of my costs. Therefore, the trial court erred in not
awarding all of my discretionary costs. I submit Mr. Hudgins’ argument is not sufficient for several
reasons.
        First, trial courts are vested with wide discretion in awarding discretionary costs pursuant to
Tenn. R. Civ. P. 54.04(2) and, on appeal, this court “will not interfere with such an award except
upon an affirmative showing that the trial court abused its discretion.” Chaffin v. Ellis, 211 S.W.3d
264, 292 (Tenn. Ct. App. 2006) (quoting Sanders v. Gray, 989 S.W.2d 343, 345 (Tenn. Ct. App.
1998)). Second, although trial courts generally award discretionary costs to the prevailing party,
provided the prevailing party filed a timely, properly supported motion, the prevailing party is not
automatically entitled to recover all of its discretionary costs. See Sanders, 989 S.W.2d at 345;
Benson v. Tennessee Valley Elec. Co-op., 868 S.W.2d 630, 644 (Tenn. Ct. App. 1993). Instead, the
trial court is “free to apportion costs between the litigants as the equities of each case demand.”
Sanders, 989 S.W.2d at 345. Thus, there is nothing inappropriate about the trial court’s decision to
award Mr. Hudgins some but not all of his discretionary costs. Third, as the party challenging the
trial court’s award of discretionary costs, Mr. Hudgins bears the burden of showing that the trial
court abused its discretion in the assessment of costs, Chaffin, 211 S.W.3d at 292 (citing Sanders,
989 S.W.2d at 345), and Mr. Hudgins has failed to establish that the trial court abused its discretion.

         As for the amount of discretionary costs awarded, the trial court determined, without stating
its reasons, that $645.95 was the appropriate amount of discretionary costs to award Mr. Hudgins.
The trial court was entitled to consider the equities of the case and was under no obligation to state
its reasons for awarding less than the amount requested. Our courts have often stated that if any
equitable basis appears in the record which will support the trial court’s apportionment of costs, this
court must affirm. See Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 61 (Tenn. 1992);
Sanders, 989 S.W.2d at 345; Benson, 868 S.W.2d at 644. I submit that the record reveals several
equitable reasons to limit the award of discretionary costs. The trial court was free to apportion costs
as the equities of this case demanded, Perdue, 837 S.W.2d at 60, and I submit the record supports
the trial court’s apportionment of costs in this case upon equitable grounds and, just as significant,
Mr. Hudgins failed to make an affirmative showing that the trial court abused its discretion in the
assessment of costs. Therefore, I would affirm that decision.



                                                               ______________________________
                                                               FRANK G. CLEMENT, JR., JUDGE




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