                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   May 23, 2012 Session

           RAY PASCHALL, ET AL. v. PATRICK SREBNICK, ET AL.

                Appeal from the Chancery Court for Williamson County
                      No. 35392    Jeffrey S. Bivins, Chancellor


                  No. M2011-02059-COA-R3-CV - Filed June 7, 2012


Plaintiffs, who voluntarily dismissed their lawsuit, appeal the trial court’s award of
discretionary costs to the defendants. Finding no error, we affirm the judgment.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., J., and B EN H. C ANTRELL, S P. J., joined.

Shawn Patrick Sirgo, Nashville, Tennessee, for the Appellants, Ray Lamar Paschall and
Naomi Paschall.

William Bryan Jakes, III, Nashville, Tennessee, for the Appellees, Patrick Srebnick, Melinda
Srebnick, Residential Engineering, and BJK Inspections, Inc.

                                          OPINION

       This appeal arises out of a lawsuit filed by Ray and Naomi Paschall (“Plaintiffs”).
The case was tried on May 18, 2011; in the course of the trial Plaintiffs moved for a
voluntary dismissal of the action in accordance with Tenn. R. Civ. P. 41. On June 9, the trial
court entered an order dismissing the case without prejudice. Defendants filed a motion
under Tenn. R. Civ. P. 54.04(2) to recover costs incurred for depositions of the parties and
witnesses, the court reporter’s per diem for the day of trial, and attorney fees incurred in the
defense of the matter. Plaintiffs filed a response opposing the motion.

       At a hearing on the motion on June 27, the court orally granted Defendants their
discretionary costs and declined to award attorneys fees. Following the hearing but prior to
the entry of the order reflecting the oral ruling, Plaintiffs filed a Notice of Objection to
Defendant’s Proposed Order Granting Discretionary Cost. Plaintiffs contended that the
“arguments and evidence” presented at the hearing were limited to whether attorney fees
should be awarded, that Defendants had not presented evidence that they were entitled to an
award of discretionary costs, that costs were awarded without the court finding that they were
reasonable and necessary, and that the court failed to make findings to reflect its reasoning
in awarding the costs.

      On July 12, 2011, the trial court entered an order memorializing its ruling on the
motion. With regard to the objection filed by Plaintiffs, the order recited:

       The Court has considered the objections to this award filed by the Plaintiffs.
       The Court finds that the Plaintiffs are raising these objections for the first time
       in its filing of July 1, 2011. The Plaintiffs had their opportunity to raise the
       objections at the hearing but chose not to do so. Therefore, the Plaintiffs have
       waived these objections.

Plaintiffs filed a motion to alter or amend the judgment on July 29, which the court denied.
Plaintiffs appeal, stating the following issues for review:

       1. The trial court erred when it awarded discretionary costs to the Defendants.

       2. The trial court erred when it entered its Order of July 12, 2011 denying the
       Plaintiffs’ Motion to Alter or Amend the Judgment and ruling that the Plaintiffs
       had waived their objections to the discretionary costs.

Defendants separately raise the issues of whether Plaintiffs’ notice of appeal was filed timely
and whether this appeal is frivolous.

                                        DISCUSSION

I. Timeliness of Appeal

        Defendants contend that this appeal was not timely initiated by Plaintiffs, inasmuch as
the Notice of Appeal was filed ninety-two days after the order dismissing the case and fifty-
nine days after the order granting the costs were filed. Defendants correctly note that,
pursuant to Tenn. R. App. P. 4(b), the time for filing a notice of appeal runs from the time that
the trial court rules on a timely filed Tenn. R. Civ. P. 59.04 motion to alter or amend; they
contend that the substance of Plaintiff’s motion was “an attempt by plaintiffs to have the court
reconsider its ruling on defendant’s motion for discretionary costs,” rather than to alter or
amend the judgment and, accordingly, did not extend the time to file the notice of appeal. We
do not agree.

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       Plaintiffs filed their motion “pursuant to Rules 59.04, 60.02 and all other applicable
Tennessee Rules of Civil Procedure”; they asked the court “to reverse/amend the award of
discretionary cost [sic] to the Defendant; denying the award of discretionary cost in toto” and
to “amend the Order to state that the award of attorneys fees is DENIED for lack of proof that
the Defendant’s fees were exclusively incurred as a result of claims based on the Tennessee
Consumer Protection Act.” While Plaintiff’s motion attempted to some degree to reargue the
merits of Defendants’ motion for costs, it also sought to redress the manner in which
Defendants’ motion was presented to and considered by the court and to have the court make
specific findings relative to both costs and attorneys fees; these are appropriate matters for
presentation pursuant to Tenn. R. Civ. P. 54.04. Plaintiffs’ motion to alter or amend, in form
and substance, was within those motions contemplated by Tenn. R. Civ. P. 59.01, thereby
extending the time to file the notice of appeal until the court disposed of the motion.1

II. Award of Costs

       Plaintiffs’ argument against the court’s award of costs to Defendants is two-fold: that
the claimed costs were not properly documented and that the court erred when it stated that
Plaintiffs had waived any objection to the award of discretionary costs.

       Tenn. R. Civ. P. 54.04 authorizes the trial court, in its discretion, to award certain costs
to the prevailing party, including “reasonable and necessary court reporter expenses for
depositions or trials” and “expert witness fees for depositions . . . and for trials.” The rule
expressly provides that the court “may tax discretionary costs at the time of voluntary
dismissal.” The rule does not direct that a particular form or manner be employed for the
submission of costs.

        We have reviewed the Plaintiffs’ response to Defendants’ motion for discretionary
costs and agree with the trial court that Plaintiffs made no specific objection to the award of
costs; the response was devoted to expounding upon the reason they took a voluntary nonsuit
of the matter and to opposing an award of counsel fees to Defendants. One purpose of a
response to a motion seeking relief of any sort is to advise the movant of the extent to which


        1
            Tenn. R. Civ. P. 59.01 states in pertinent part:

        Motions to which this rule is applicable are: (1) under Rule 50.02 for judgment in
        accordance with a motion for a directed verdict; (2) under Rule 52.02 to amend or make
        additional findings of fact, whether or not an alteration of the judgment would be required
        if the motion is granted; (3) under Rule 59.07 for a new trial; or (4) under Rule 59.04 to alter
        or amend the judgment. These motions are the only motions contemplated in these rules for
        extending the time for taking steps in the regular appellate process.


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the motion is opposed. Having failed to put the costs sought by Defendants at issue in their
initial response by specifically objecting to either the nature of the costs sought or the manner
in which the application was made, Plaintiffs waived any objection to the award.

        Awarding costs in accordance with Tenn. R. Civ. P. 54.04(2) is within the trial court's
reasonable discretion. Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 60 (Tenn. 1992).
Accordingly, we employ a deferential “abuse of discretion” standard when reviewing a trial
court's decision either to grant or to deny motions to assess discretionary costs. Massachusetts
Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 35 (Tenn. Ct. App. 2002); Scholz v. S.B. Int'l,
Inc., 40 S.W.3d 78, 84 (Tenn. Ct. App. 2000). A trial court's discretionary decision will be
upheld as long as it is not clearly unreasonable, and reasonable minds can disagree about its
correctness. Bogan v. Bogan, 60 S.W.3d 721, 733 (Tenn. 2001); Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001). We have reviewed the motion for costs and find no error in the
court’s allowance of the costs in accordance with Tenn. R. Civ. P. 54.04.

III. Relief for the Appeal

        Defendants contend that this appeal is frivolous and that, as a consequence, they are
entitled to the relief set forth in Tenn. Code Ann. § 27-1-122.2

      “A frivolous appeal is one that is ‘devoid of merit,’ or one in which there is little
prospect that it can ever succeed.” Indus. Dev. Bd. of City of Tullahoma v. Hancock, 901
S.W.2d 382, 385 (Tenn. Ct. App. 1995) (quoting Combustion Engineering, Inc. v. Kennedy,
562 S.W.2d 202 (Tenn. 1978)) (internal citations omitted). Tenn. Code Ann. § 27-1-122.
“must be interpreted and applied strictly so as not to discourage legitimate appeals. . . .”
Davis v. Gulf Ins. Group, 546 S.W.2d 583 at 586 (Tenn. 1997).

        In accordance with the express language of Tenn. Code Ann. § 27-1-122 and precedent
directing how the statute is to be applied, we do not find that this appeal was totally devoid
of merit such as to be declared frivolous. It was not unreasonable for Plaintiffs to seek review
of the trial court’s rulings relative to waiver and the manner in which the request for fees was
considered; both the appellate and trial court records show that Plaintiffs presented the issues


        2
            Tenn. Code Ann. § 27-1-122 states:

        When it appears to any reviewing court that the appeal from any court of record was
        frivolous or taken solely for delay, the court may, either upon motion of a party or of its own
        motion, award just damages against the appellant, which may include but need not be
        limited to, costs, interest on judgment and expenses incurred by the appellee as a result of
        the appeal.


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in a forthright manner. The fact that Plaintiffs have not prevailed on appeal does not, in and
of itself, make the appeal frivolous.

                                      CONCLUSION

       For the foregoing reasons, the judgment of the Chancery Court is AFFIRMED.




                                                   ___________________________________
                                                   RICHARD H. DINKINS, JUDGE




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