                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   January 31, 2001 Session

     KATRINKA A. STALSWORTH, ET AL. v. ROBERT A. GRUMMON

                       Appeal from the Circuit Court for Sumner County
                         No. 20194-C     Arthur E. McClellan, Judge



                      No. M2000-02352-COA-R3-CV - Filed May 15, 2001


This appeal involves the dismissal of a patient’s medical malpractice complaint pursuant to Tenn.
R. Civ. P. 41.02. After the patient voluntarily dismissed her first complaint following opening
arguments, the Circuit Court for Sumner County ordered her to pay her surgeon $3,023.85 in
discretionary costs. The patient did not pay the discretionary costs she had previously been ordered
to pay. After the patient refiled her complaint, the trial court stayed the proceedings on the surgeon’s
motion and later dismissed the patient’s complaint for failure to prosecute and for failure to comply
with the court’s order directing her to pay the surgeon’s discretionary costs. On this appeal, the
patient asserts that the trial court erred by dismissing her renewed complaint. We affirm the trial
court because the patient had ample warning that her claim was subject to dismissal and had been
afforded a reasonable opportunity to comply with the trial court’s order directing her to pay the
surgeon’s discretionary costs.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and PATRICIA J. COTTRELL , J., joined.

Douglas Berry and R. Stephen Doughty, Nashville, Tennessee, for the appellants, Katrinka A.
Stalsworth and Jim Stalsworth.

Phillip North, Tom Shumate, and Michael F. Jameson, Nashville, Tennessee, for the appellee, Robert
A. Grummon.

                                              OPINION

       In November 1995, Katrinka Stalsworth sought treatment for stress incontinence from Dr.
Robert Grummon. Dr. Grummon recommended surgery to correct the problem and performed the
procedure on Ms. Stalsworth on August 29, 1996, at the Sumner Regional Medical Center. Ms.
Stalsworth returned to Dr. Grummon on two occasions following the surgery complaining of pain.
Ms. Stalsworth’s pain continued for several months, and she eventually learned that she had
developed a serious bone infection in the area where Dr. Grummon had performed the procedure.
Thereafter, on March 10, 1997, Ms. Stalsworth underwent a second procedure to remove the infected
portion of her symphysis pubis.1

       On August 25, 1997, Ms. Stalsworth and her husband filed a medical malpractice action
against Dr. Grummon in the Circuit Court for Sumner County. 2 When the trial commenced on
January 11, 1999, the attorneys representing Dr. Grummon provided the Stalsworths’ attorneys with
information that the Stalsworths’ only medical expert had lost his medical privileges and was himself
defending numerous medical malpractice actions. Realizing that this information would effectively
discredit their only medical expert, the Stalsworths’ attorneys moved in limine to exclude the
derogatory information. When the trial court denied their motion, the Stalsworths voluntarily
dismissed their suit.

         Dr. Grummon filed a timely Tenn. R. Civ. P. 54.04(2) motion for $3,023.85 in discretionary
costs, including $2,000 for the fees of two expert witnesses who had made themselves available to
testify for Dr. Grummon at trial. The trial court entered an order on March 19, 1999, granting Dr.
Grummon’s motion and directing the Stalsworths to pay him $3,023.85. On the same day, the
Stalsworths filed a notice of appeal challenging only the portion of the March 19, 1999 order
directing them to pay the $2,000 witness fees for Dr. Grummon’s two experts who never actually
testified.

         On January 7, 2000, the Stalsworths refiled their medical malpractice complaint against Dr.
Grummon. Thereafter, on April 3, 2000, Dr. Grummon requested the trial court to stay the
proceedings in accordance with Tenn. R. Civ. P. 41.04 until the Stalsworths paid the discretionary
costs they had been ordered to pay in the trial court’s March 19, 1999 order. In response, the
Stalsworths did not contest $1,023.85 of these costs but rather asserted that the $2,000 for non-
testifying expert witnesses was improper. Following a hearing on April 28, 2000, the trial court
granted Dr. Grummon’s motion for stay and directed the Stalsworths to pay “the discretionary costs
from their prior action that have not been appealed” within thirty days. The order also stated that
“[i]f those discretionary costs are not paid in full by that date, Plaintiffs’ case will be stayed pursuant
to Tenn. R. Civ. P. 41.04 until such time as the those discretionary costs are paid in full.”

        On May 5, 2000, this court filed an opinion affirming the trial court’s March 19, 1999 order
giving Dr. Grummon a $3,023.85 judgment against the Stalsworths for discretionary costs.
Stalsworth v. Grummons, 36 S.W.3d 832 (Tenn. Ct. App. 2000). Thereafter, on June 16, 2000, the
trial court stayed the proceedings against Dr. Grummon until all of the $3,023.85 in discretionary
costs had been paid.

         1
         The symphysis pub is is the joint where the pubic b ones mee t in front of the pelv is. Dorland’s Illustrated Med.
Dictionary 1626 (27th ed. 1988).

         2
          The Stalsworths also sued Sumner Regional Medical Center alleging that it had negligently granted Dr.
Grummon surgical privileges. The trial court eventually dismissed the Stalsworths’ claims against Sumner Regional
Medic al Center b y summary ju dgment, an d thus, Sumn er Region al Med ical Center is no t a party to this ap peal.

                                                           -2-
         On June 30, 2000, Dr. Grummon moved to dismiss the Stalsworths’ complaint for failure to
prosecute and failure to comply with the trial court’s orders for the payment of the discretionary
costs. The Stalsworths’ attorneys filed a memorandum in opposition to Dr. Grummon’s motion, but
neither the Stalsworths nor their attorneys appeared at the hearing on this motion. On July 21, 2000,
the trial court entered an order dismissing the Stalsworths’s complaint against Dr. Grummon with
prejudice pursuant to Tenn. R. Civ. P. 37.02 and 41.02. The Stalsworths moved to set the order of
dismissal aside. However, the trial court entered an order on August 18, 2000, reaffirming that it had
dismissed the Stalsworths’ complaint because of their failure to pay the outstanding discretionary
costs despite the court’s warning that continued nonpayment could result in the dismissal of their
complaint. In a final effort to give the Stalsworths a chance to get their case back on track, the trial
court also stated that it would entertain a motion to set aside its July 21, 2000 order dismissing their
case if they would pay the outstanding discretionary costs by August 25, 2000. Rather than paying
the discretionary costs, the Stalsworths decided to pursue this appeal.

                                                             I.

        On this appeal, the Stalsworths take issue with the trial court’s decision to dismiss their
complaint pursuant to Tenn. R. Civ. P. 37.02 and 41.02. While we concur that Tenn. R. Civ. P.
37.02 is inapposite,3 we have concluded that the Stalsworths’ seventeen-month failure to pay the
undisputed portion of the discretionary costs they were ordered to pay on March 19, 1999, provided
an adequate basis for the trial court, in the exercise of its discretion, to dismiss their complaint
against Dr. Grummon.

        Trial courts in Tennessee are empowered to dismiss a pending civil action if the plaintiff fails
to prosecute it or if the plaintiff fails to comply with the procedural rules or with any order of the
court. Tenn. R. Civ. P. 41.02(1); Thompson v. Dickerson, No. 02A01-9702-CV-00034, 1997 WL
437228, at * 2 (Tenn. Ct. App. Aug.1, 1997) (No Tenn. R. App. P. 11 application filed); Mills v.
Bank of Roane County, No. 176, 1991 WL 126553, at *2 (Tenn. Ct. App. July 15, 1991) (No Tenn.
R. App. P. 11 application filed). However, courts do not treat dismissals under Tenn. R. Civ. P.
41.02 lightly and recognize that the harsh sanction of dismissal is not favored when lesser sanctions
are available. Kotil v. Hydra Sports, Inc., No. 01A01-9305-CV- 00200, 1994 WL 535542, at *3
(Tenn. Ct. App. Oct.5, 1994) (No Tenn. R. App. P. 11 application filed). At the same time, courts
must have available a wide spectrum of sanctions, both for the purpose of penalizing uncooperative
parties and deterring others from acting similarly.

       Decisions to dismiss a complaint pursuant to Tenn. R. Civ. P. 41.02 are discretionary.
Accordingly, dismissals under Tenn. R. Civ. P. 41.02 will be reviewed using the more relaxed
standard applicable to discretionary decisions. Johnson v. Wade, No. W1999-01651-COA-R3-CV,
2000 WL 1285331, at *2 (Tenn. Ct. App. Sept. 6, 2000) (No Tenn. R. App. P. 11 application filed);


         3
            Tenn. R. Civ. P. 3 7.02 relate s to the sanction s available to tria l courts when p arties fail to com ply with
discovery orders. There being no discovery orders involved in this case, Tenn. R. Civ. P. 37.02 provides no legal support
for the trial court’s order being challenged here.

                                                            -3-
Holt v. Webster, 638 S.W.2d 391, 394 (Tenn. Ct. App. 1982). On appeal, the reviewing court should
determine whether the trial court acted unreasonably, arbitrarily, or unconscionably by dismissing
the complaint. Reynolds v. Metropolitan Nashville/Davidson County, No. 01A01-9509-CV-00406,
1996 WL 76322, at *2 (Tenn. Ct. App. Feb. 23, 1996) (No Tenn. R. App. P. 11 application filed).

       On this appeal, the Stalsworths offer two justifications for their failure to comply with the
March 19, 1999 order directing them to pay Dr. Grummon $3,023.85 in discretionary costs. First,
they assert that they never received adequate notice that their complaint would be subject to
dismissal if they did not pay these costs. Second, they assert that they are unable to pay these costs.4
We do not find the Stalsworths’ arguments convincing.

        On March 19, 1999, the trial court ordered the Stalsworths to pay Dr. Grummon $3,023.85.
Their appeal to this court involved only $2,000 of the $3,023.85 and did not stay the order.
Accordingly, the Stalsworths have known since March 19, 1999 that they owed Dr. Grummon at
least $1,023.85. Despite this knowledge, the Stalsworths have made no effort to pay Dr. Grummon
any portion of the discretionary costs. By the time Dr. Grummon filed his motion for involuntary
dismissal on June 30, 2000, fifteen months had elapsed since the trial court’s March 19, 1999 order
and approximately two months had elapsed since this court had affirmed the trial court’s March 19,
1999 order in all respects.

         We have concluded that the Stalsworths and their attorneys had been aware of their
obligation to comply with at least a portion for the trial court’s March 19, 1999 order for
approximately seventeen months before the trial court involuntarily dismissed their case. They failed
to pay these costs in April 2000 when the trial judge gave them thirty days to do so. They again
failed to pay them after Dr. Grummon filed his motion for involuntary dismissal in June 2000. They
failed to pay them yet again after the trial court told them in August 2000 that it would consider
setting aside the involuntary dismissal if they paid the costs by August 25, 2000. In light of these
circumstances, we find that the Stalsworths had more than adequate notice of the consequences of
their failure to comply with the trial court’s March 19, 1999 order.

        We are not unmindful of the Stalsworths’ claimed financial predicament. However, we must
also be mindful that Dr. Grummon has been required to defend himself in this protracted medical
malpractice litigation since August 25, 1997. None of this delay can be attributed to Dr. Grummon,
and thus he is entitled to take full advantage of the avenues available to him to bring this litigation
to an end. Based upon our independent review of the record, we hold that the trial court exercised
its discretion properly when it dismissed the Stalsworths’ claims against Dr. Grummon with
prejudice in accordance with Tenn. R. Civ. P. 41.02.



         4
           The Stalsworths ra ised their inab ility to pay these co sts during the o ral argumen t before this co urt. This
argument, as best we can de termine, was n ot raised be low. Acco rdingly, no rec ord has b een created regarding the ir
ability or inability to pay these costs. We note, however, that throughout all their proceedings against Dr. Grummon,
the Stalsworth s have neve r undertake n to proce ed in forma pauperis.

                                                           -4-
                                                 II.

         We affirm the July 21, 2000 and August 18, 2000 orders dismissing the Stalsworths’ claims
against Dr. Grummon with prejudice in accordance with Tenn. R. Civ. P. 41.02 and remand the case
to the trial court for whatever further proceedings consistent with this opinion may be required. We
also tax the costs of this appeal, jointly and severally, to Katrinka A. Stalsworth and Jim Stalsworth
and their surety for which execution, if necessary, may issue.



                                                       _____________________________
                                                       WILLIAM C. KOCH , JR., JUDGE




                                                 -5-
