                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 August 25, 2010 Session

  PATSY FREEMAN, INDIVIDUALLY AND AS ADMINISTRATRIX OF
      THE ESTATE OF JOHN R. FREEMAN, DECEASED v. CSX
    TRANSPORTATION, INC., A FLORIDA CORPORATION ET AL.

                 Appeal from the Circuit Court for Rutherford County
                         No. 49982    J. Mark Rogers, Judge


               No. M2009-02403-COA-R3-CV - Filed November 3, 2010


The issues in this case are whether Tennessee’s “common county rule” deprived the
Rutherford County Circuit Court of subject matter jurisdiction and whether the court erred
in assessing discretionary costs. This wrongful death action arises from a fatal vehicular
accident in Normandy, Bedford County, Tennessee, in which the decedent’s vehicle was
stuck by a train owned by CSX Transportation, Inc. The mother of the decedent, in her
individual capacity and as the personal representative of the decedent’s estate, timely filed
this action in the Circuit Court for Rutherford County against CSX and the conductor of the
train. Over the next five years the parties conducted extensive discovery. On the first day of
trial, the plaintiff voluntarily dismissed the case without prejudice. On the motion of the
defendants, the Rutherford County Circuit Court assessed $34,098.27 in discretionary costs
against plaintiff. In this appeal, plaintiff contends the Rutherford County Circuit Court lacked
subject matter jurisdiction as a consequence of the common county rule, and that it erred in
awarding discretionary costs. We have determined that the common county rule does not
apply, the Rutherford County Circuit Court had subject matter jurisdiction, and that the court
did not abuse its discretion in assessing discretionary costs of $34,098.27 against plaintiff
after she voluntarily dismissed this action. Accordingly, we affirm the award of discretionary
costs.

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

F RANK G. C LEMENT, JR., J., delivered the opinion of the Court, in which R ICHARD H.
D INKINS, J., joined. P ATRICIA J. C OTTRELL, P.J., M.S., filed a dissenting opinion.

John W. Chandler, Jr., and Pamela R. O’Dwyer, Chattanooga, Tennessee, for the appellant,
Patsy Freeman, Individually and as Administratrix of the Estate of John R. Freeman,
Deceased.
John W. Baker, Jr., and Emily L. Herman-Thompson, Knoxville, Tennessee, for the
appellees, CSX Transportation, Inc., a Florida corporation, and Mike E. Martin.

                                          OPINION

       On the morning of April 22, 2003, the decedent, John R. Freeman, was driving on
Front Street in Normandy, Bedford County, Tennessee, which crosses a railroad track owned
and operated by CSX Transportation, Inc. As Mr. Freeman’s vehicle approached the track,
a CSX train conducted by Mike E. Martin was also approaching the intersection. Although
Mr. Martin activated the train’s warning lights and bells as it neared the crossing, Mr.
Freeman proceeded onto the tracks and was struck broadside by the CSX train. He sustained
very serious injuries as a result of the collision and later died as a result of these injuries.
Thereafter, his mother, Patsy Freeman, was appointed administratrix of his estate.

        On April 12, 2004, acting in her individual capacity and as administratrix of her son’s
estate, Patsy Freeman, (“Plaintiff”) commenced this action in the Circuit Court of Rutherford
County, Tennessee against two defendants, CSX and Mr. Martin (“Defendants”). The
complaint alleged that the defendants acted negligently and violated various railroad safety
statutes, and that these acts and violations resulted in the wrongful death of her son.
Defendants denied all liability.

      At all times relevant to this action, Plaintiff and defendant CSX, resided in Coffee
County, Tennessee; while the other defendant, Martin, resided in Rutherford County,
Tennessee.

       Over the next five years, the parties vigorously litigated the case in the Rutherford
County Circuit Court. Numerous depositions were taken, including those of several expert
witnesses. On March 30, 2009, the trial court granted partial summary judgment to defendant
CSX on several of Plaintiff’s claims. At this same hearing, Plaintiff announced she intended
to voluntarily dismiss all claims against defendant Martin. As Tenn. R. Civ. Pro. 41.04
requires, an order dismissing Martin was entered on April 6, 2009.

        The remaining claims against CSX went to trial on April 27, 2009, at which time a
jury was empaneled to try the case. The next morning, before the trial began, Plaintiff filed
a Notice of Voluntary Non-Suit as to the remaining claims against defendant CSX. Shortly
thereafter, on May 6, 2009, defendants Martin and CSX filed a motion to recover
discretionary costs of $52,088.08 pursuant to Tenn. R. Civ. P. 41.04 and 54.04(2). Plaintiff
filed a timely objection to Defendants’ motion for discretionary costs.




                                              -2-
       On July 24, 2009, the trial court entered the order of voluntary dismissal of Plaintiff’s
remaining claims. In a separate order entered on the same day, the trial court granted a
portion of the discretionary costs requested by Defendants. The award was reduced based on
the court’s findings that $17,989.81 of the $52,058.08 Defendants requested was not
recoverable, including $11,662.00 in court reporter fees for pretrial hearings, $1,512.50 in
videographer expenses for taping depositions, $636.50 in travel expenses for court reporters,
and $4,178.81 in travel expenses for expert witnesses.1 The judgment for discretionary costs
was assessed against Patsy Freeman in her capacity as an individual plaintiff and in her
capacity as administratrix of her son’s estate.2

        One month later, on August 19, 2009, the action was re-filed by Patsy Freeman in her
capacity as personal representative, but not in her individual capacity, in the Circuit Court
of Davidson County against the original defendants, CSX and Mr. Martin. Defendants then
filed a motion to dismiss, asserting for the first time that Tennessee’s “common county
rule,”3 codified at Tenn. Code Ann. § 20-4-101(b), localized venue and restricted subject
matter jurisdiction to two counties, Coffee County, where Plaintiff and CSX both reside, or
Bedford County, where the accident occurred. Plaintiff agreed with Defendants’ venue and
jurisdiction argument; as a result, the Davidson County Circuit Court action was dismissed
without prejudice on March 25, 2010.

        Soon after the dismissal of the Davidson County action, Patsy Freeman re-filed the
action against both defendants in the Bedford County Circuit Court, the third county in which
this action had been filed. In Bedford County, as in Davidson County, there was only one
plaintiff: Patsy Freeman as the personal representative of the decedent’s estate.4

       In the interim, on August 21, 2009, Plaintiff filed a motion in the Rutherford County
Circuit Court seeking to alter or amend the order granting discretionary costs pursuant to
Tenn. R. Civ. P. 52.02 and 59.04.5 Ms. Freeman asserted that costs should not have been

        1
            Defendants did not appeal the trial court’s decision to deny these costs.
        2
            At that time, neither party challenged the jurisdiction of the Rutherford County Court.
        3
        “If . . . the plaintiff and defendant both reside in the same county in this state, then the action shall
be brought either in the county where the cause of action arose or in the county of their residence.” Tenn.
Code Ann. § 20-4-101(b).
        4
        When this appeal came on for oral argument, counsel for the parties advised that the Bedford
County action was still pending.
        5
            The motion to amend was timely filed within thirty days of the entry of the July 24, 2009 Rutherford
                                                                                                   (continued...)

                                                        -3-
assessed against her in her individual capacity because, she contends, she was never a real
party in interest. She also asserted that the court erred in awarding discretionary costs
because when the costs were assessed, she had re-filed the action and may ultimately prevail
on the merits. The Rutherford County Circuit Court denied the motion to alter or amend, and
a final order assessing discretionary costs in the amount of $34,098.27 against Patsy Freeman
in her individual capacity and as personal representative of the decedent’s estate was entered.
This appeal followed.

                                              ANALYSIS

                                                     I.

        Whether the Rutherford County Circuit Court had subject matter jurisdiction to assess
discretionary costs was never at issue before the trial court in Rutherford County.6 Plaintiff
did not raise this issue in the trial court, and a party who fails to bring an issue to the attention
of the trial court will generally not be permitted to raise the issue for the first time on appeal.
See Barnhill v. Barnhill, 826 S.W.2d 443, 458 (Tenn. Ct. App. 1991); Pearman v. Pearman,
781 S.W.2d 585, 587-88 (Tenn. Ct. App. 1989). Subject matter jurisdiction, however, is an
exception to the general rule and “the issue of subject-matter jurisdiction can be raised in any
court at any time.” Scales v. Winston, 760 S.W.2d 952, 953 (Tenn. Ct. App. 1988); see also
Tenn. R. App. P. 13(b). Thus, the issue of subject matter jurisdiction need not be raised in
the trial court to be considered on appeal. First American Trust Co. v. Franklin-Murray Dev.
Co., 59 S.W.3d 135, 140-41 (Tenn. Ct. App. 2001).

        Subject matter jurisdiction addresses a court’s authority to adjudicate a dispute
brought before it. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). It is
dependent upon the nature of the controversy as well as the relief sought. Id. Judgments or
orders entered by a court without subject matter jurisdiction are “void and bind no one.”
Riden v. Snider, 832 S.W.2d 341, 343 (Tenn. Ct. App. 1991) (citing Brown v. Brown, 281
S.W.2d 492, 501 (Tenn. 1955)). Additionally, the lack of subject matter jurisdiction “is so
fundamental that it requires dismissal whenever it is raised and demonstrated” even if raised
for the first time on appeal. First American Trust Co., 59 S.W.3d at 141.



        5
        (...continued)
County order granting discretionary costs against Plaintiff.
        6
         The parties stipulated that the Rutherford County Circuit Court lacked subject matter jurisdiction
because Tennessee’s common county rule limited venue and jurisdiction to Coffee County, where Plaintiff
and Defendant CSX reside, or Bedford County, where the cause of action arose. We disagree as this opinion
explains.

                                                    -4-
       Venue, on the other hand, does not affect the court’s authority to rule on matters
before it; instead it relates “to the appropriateness of the location of the action.” Meighan v.
U.S. Sprint Commc’n. Co., 924 S.W.2d 632, 639 (Tenn. 1996). Objections to venue are
waived if they are not raised in the answer to the complaint or before, Tenn. R. Civ. Pro.
12.02 & 12.08, and will not affect the subject matter jurisdiction of a court. See Meighan,
924 S.W.2d at 639.

        Transitory actions are personal in nature and jurisdiction is usually proper in any
county where a material defendant can be found. Pack v. Ross, 288 S.W.3d 870, 872 (Tenn.
Ct. App. 2008) (citing State ex rel. Logan v. Graper, 4 S.W.2d 955, 956 (Tenn. 1927)).
Venue in transitory actions ordinarily lies in “the county where the cause of action arose or
in the county where the defendant resides or is found.” Tenn. Code Ann. § 20-4-101(a).
However, Tennessee’s common county rule limits venue in transitory actions if “the plaintiff
and defendant both reside in the same county in this state.” Tenn. Code Ann. § 20-4-101(b).
If that is the case, then “the action shall be brought either in the county where the cause of
action arose or in the county of their residence.” 7 Id.

        The statutory common county rule, however, does not apply in transitory actions
involving multiple defendants where not all of the material defendants reside in the same
county as the plaintiff and none of the material defendants reside in the county where the
cause of action arose. This is due to the fact that “Tenn. Code Ann. § 20-4-101(b) does not
by its terms apply to multiple parties, . . .” Winters v. Healthtrust, Inc., 836 S.W.2d 584, 585
(Tenn. Ct. App. 1992). As noted in Winters, this is apparent from a literal reading of the
statute, which reads in pertinent part: “the plaintiff and defendant both reside in the same
county in this state.” Id. (quoting Tenn. Code Ann. § 20-4-101(b)). “Although Tenn. Code
Ann. § 20-4-101(b) does not by its terms apply to multiple parties, our Supreme Court has
applied it in cases where the plaintiff and one of several defendants reside in the same county
and the cause of action arose there.” Id. (citing Tims v. Carter, 241 S.W.2d 501, 503 (Tenn.
1951)). Therefore, the rule does apply in cases involving multiple defendants if the plaintiff
and at least one material defendant reside in the same county and that county is where the
cause of action accrued. Tims, 241 S.W.2d at 503; Ward v. National Healthcare Corporation,
No. M2007-00231-COA-R9-CV, 2007 WL 3446340, at *2 (Tenn. Ct. App. Nov. 15, 2007);
Winters, 836 S.W.2d at 585.



        7
          The Tennessee Supreme Court has determined that this statute transforms otherwise transitory
actions into “local actions,” which must be brought “in the county of the subject-matter.” Pack, 288 S.W.3d
at 872. In other words, the localization of venue “creates subject matter jurisdiction restrictions on our
courts.” Id.; see also Curtis v. Garrison, 364 S.W.2d 933, 936 (Tenn. 1963) (Tennessee courts “have no
jurisdiction of local actions brought in the wrong county and consent cannot give jurisdiction.”).

                                                   -5-
        A thorough and historical review of the common county rule is stated in Tims v.
Carter. 241 S.W. at 502-03. In that action, the minor son of the plaintiffs died as a result of
a vehicular accident that occurred in Madison County, Tennessee. Id. at 501. The plaintiffs,
who resided in Madison County, filed suit in the Circuit Court of Davidson County against
three defendants, none of whom resided in Davidson County. Id. at 501-02. One of the
material defendants was a resident of Gibson County; the other two material defendants were
residents of Madison County, the county where the cause of action arose and where the
plaintiffs resided. Id. at 502.

        When the defendants challenged venue and the jurisdiction of the Davidson County
court, the Circuit Court of Davidson County dismissed the suit upon a finding that it did not
have venue due to the residences of the parties. Id. On appeal, the Supreme Court analyzed
the effect of Code Sections 8640, 8641 and 8751(4), the predecessors to Tenn. Code Ann.
§ 20-4-101 that were in force at that time. Id. Code Section 8640 provided that: “‘In all
transitory actions, the right of action follows the person of the defendant, unless otherwise
expressly provided.’” Id. Code Section 8641 stated: “‘If the plaintiff and defendant both
reside in the same county, such action shall be brought in the county of their residence.’” Id.
Code Section 8751(4) provided: “‘Actions may be abated by plea of the defendant in the
following cases: Where the plaintiff and defendant both reside, at the time suit is brought,
in the same county, and the action is instituted in another county.’” Id.

       After noting the respective residences of the parties, the Court found that:

       [Section 8641] provides that if the plaintiff and the defendant live in the same
       county the action must be in the county of their residence. It is thus evidence
       that the intention of the Legislature was to provide that when both parties,
       plaintiff and defendant, lived in the same county that the action should be
       brought in that county for obvious and often expressed reasons.

Id. (emphasis added). The Court then explained that the common law rule grew into the
statutory scheme found in Code Sections 8640 and 8641, because: “‘These provisions evince
a legislative purpose to localize transitory actions. If both parties reside in the county the
action must be brought there and tried in courts convenient to litigants and witnesses.
Otherwise the action follows the defendant.’” Id. (quoting Haynes v. Woods, 268 S.W. 632,
633 (Tenn. 1925)) (emphasis added). We note with emphasis, however, that the above
citations focus on the fact there are two parties, one plaintiff and one defendant, and both
parties resided in the same county.

       In the case at bar, we do not have one material defendant, we have two, which fact
distinguishes our case from the statutory scheme and historical references cited in Tims.

                                              -6-
Moreover, what we find most significant in Tims is that, after considering the history of the
rule, the Court reasoned that “where the plaintiff and a material defendant or defendants
reside in the same county, this county being the county where the cause of action accrued,
then the county of the residences of these parties should be the county of action for venue
purposes.” Id. at 503 (emphasis added). We fully agree with the Tims holding based on the
facts of that case; our facts, however, are materially different because none of the parties
reside in the county where the cause of action arose.

        After considering the reasoning in Tims, and the fact that “Tenn. Code Ann. §
20-4-101(b) does not by its terms apply to multiple parties,” Winters, 836 S.W.2d at 585, we
have determined that the common county rule codified in Tenn. Code Ann. § 20-4-101(b)
does not localize this transitory action. While Plaintiff and one of the defendants reside in the
same county, there are two material defendants, each of whom resides in a different county,
and none of the parties reside in the county where the cause of action arose. Thus, this action
would not be localized under any reading of the statute or the case law. Because this action
was not localized, the Rutherford County Circuit Court was not deprived of subject matter
jurisdiction. See Meighan, 924 S.W.2d at 639 (holding that venue does not affect the court’s
authority to rule on matters before it).

      An objection on the ground of venue could have been asserted by either defendant in
Rutherford County; however, neither defendant raised the issue in that court. Thus, it was
waived. See Tenn. R. Civ. P. 12.08 & 12.02.

      For the reasons stated above, we have determined that the Circuit Court for Rutherford
County had subject matter jurisdiction over this action.

                                                      II.

      After Plaintiff filed her Notice of Voluntary Non-Suit as to all remaining claims in
Rutherford County, Defendants filed a motion pursuant to Tenn. R. Civ. P. 41.04 8 and
54.04(2)9 to recover discretionary costs of $52,088.08. Plaintiff filed a timely objection.


       8
           Tenn. R. Civ. Pro. 41.04 provides:

       If a plaintiff who has once dismissed an action in any court commences an action based
       upon or including the same claim against the same defendant, the Court may make such
       order for the payment of costs of the action previously dismissed as it may deem proper and
       may stay the proceedings in the new action until the plaintiff has complied with the order.
       9
           Tenn. R. Civ. Pro. 54.04(2) provides in relevant part:
                                                                                            (continued...)

                                                      -7-
Thereafter, the Rutherford County Circuit Court awarded $34,098.27 in discretionary costs
against Plaintiff in her individual capacity and as the personal representative of the estate.
On appeal, Plaintiff asserts this was an abuse of discretion.

        Plaintiff presents a three-pronged challenge to the propriety of the award. First, she
argues the award was premature because, prior to the award of discretionary costs, Plaintiff
announced her intention to re-file the action and, as a consequence, could ultimately prevail.
In that case, Plaintiff would be entitled to recover discretionary costs instead of Defendants.
Second, she argues that some of the costs awarded were not “reasonable and necessary.”
Last, Patsy Freeman asserts that, as an individual, she was not a “real party in interest;”
therefore, the court erred in assessing the discretionary costs against her personally.

       A “prevailing party” may request discretionary costs, such as “reasonable and
necessary court reporter expenses for depositions or trials, [and] reasonable and necessary
expert witness fees for depositions (or stipulated reports) and for trials.” Tenn. R. Civ. P.
54.02(2). The purpose of awarding discretionary costs is to help “make the prevailing party
whole,” not to punish the losing party. Owens v. Owens, 241 S.W.3d 478, 496-497 (Tenn.
Ct. App. 2007).

       When deciding whether to award discretionary costs under Rule 54.04(2), the trial
court should:

       (1) determine whether the party requesting the costs is the “prevailing party,”
       (2) limit awards to the costs specifically identified in the rule,
       (3) determine whether the requested costs are necessary and reasonable, and
       (4) determine whether the prevailing party has engaged in conduct during the
       litigation that warrants depriving it of the discretionary costs to which it might
       otherwise be entitled.



       9
        (...continued)
       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 stipulated reports) and for trials. . . . 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. In the event an appeal results in the final disposition of the case,
       under which there is a different prevailing party under the trial court’s judgment, the new
       prevailing party may request discretionary costs by filing a motion in the trial court.

                                                     -8-
Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 35-36 (Tenn. Ct. App. 2002) (citations
omitted). The burden is on the movant to convince the trial court that it is entitled to
discretionary costs, Carpenter v. Klepper, 205 S.W.3d 474, 490 (Tenn. Ct. App. 2006);
however, as a general matter, courts should “award discretionary costs to a prevailing party
if the costs are reasonable and necessary and if the prevailing party has filed a timely and
properly supported motion.” Mass. Mut., 104 S.W.3d at 35.

        Rule 54.04(2) costs expressly address themselves to the sound discretion of the trial
court. Stalworth v. Grummins, 36 S.W.3d 832, 835 (Tenn. Ct. App. 2000). Accordingly, trial
courts are free to apportion the costs between the parties as “the equities of each case
demand.” Sanders v. Gray, 989 S.W.2d 343, 345 (Tenn. Ct. App. 1998). Therefore, on
appeal, this Court will not substitute our own discretion for that of the trial court. State ex rel.
Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). We will only overturn a
discretionary decision when the trial court has applied an incorrect legal standard, reached
an illogical decision, based its decision on a clearly erroneous assessment of the evidence,
or employed reasoning that causes an injustice to the complaining party. Mass. Mut., 104
S.W.3d at 35. The appellant bears the burden of demonstrating that the award constitutes an
abuse of discretion by the trial court. Sanders, 989 S.W.2d at 345.

       The trial court found that Defendants were the prevailing parties because Plaintiff
voluntarily dismissed all of her claims against both defendants. Plaintiff asserts this was error
because she had announced her intent to re-file the action and later did re-file the action,
although in another county. As a consequence, Plaintiff asserts, she could ultimately become
the prevailing party, and to assess costs against her before the ultimate resolution of her
claims was premature. We find this argument without merit.

        Tenn. R. Civ. P. 54.04(2) specifically states, “[t]he court may tax discretionary costs
at the time of voluntary dismissal” (emphasis added). The advisory comments also provide
that the 1993 Amendment to Rule 54 was specifically enacted so that discretionary costs
could be assessed before the plaintiff re-files her suit. Tenn. R. Civ. P. 54.04(2), advisory
cmt. to 1993 amendment.10 Further, Tennessee courts have held that a defendant is a
prevailing party when a plaintiff voluntarily dismisses her suit, see JPMorgan Chase Bank

       10
            The Advisory Comment to the 1993 Amendment provides in pertinent part:

       If the plaintiff takes a voluntary nonsuit, Rule 41.04 gives the trial judge discretion to
       require payment of costs upon recommencement of the action. Revised Rule 54.04 would
       permit assessment of costs at an earlier date, assuming the defendant submits and the court
       enters an order formally dismissing the case pursuant to plaintiff’s nonsuit. A motion for
       discretionary costs in that instance must be made within thirty days of entry of the order.
       (emphasis added).

                                                  -9-
v. Franklin Nat’l Bank, No. M2005-02088-COA-R3CV, 2007 WL 2316450, at *8 (Tenn. Ct.
App. Aug. 13, 2007), regardless of whether the plaintiff has re-filed her suit, or intends to.
Estate of Burkes v. St. Peter Villa, Inc. No. W2006-02497-COA-R3-CV, 2007 WL 2634851,
at *7 (Tenn. Ct. App. July 17, 2007) (Requiring the trial court to determine whether the
plaintiff can or will re-file her claims is “patently unworkable and requires the trial judge to
either make decisions on issues not before the court or be clairvoyant.”). Rule 54 also
specifically states that if the party against whom the costs are originally assessed ultimately
becomes the prevailing party, they can seek to recover the discretionary costs they previously
paid. Tenn. R. Civ. Pro. 54.04(2).

         Defendants sought to recover discretionary costs in the amount of $52,088.08; the
trial court limited the recovery to $34,098.27. Plaintiff asserts that some of these costs were
not “reasonable and necessary.” The discretionary costs awarded include $12,850.19 for
expert witness expenses and $21,248.08 for costs associated with court reporters and
deposition transcriptions.

        The record reveals the trial court correctly limited the award to costs specifically
identified in Rule 54.04(2) and denied costs that were not, including $17,989.81 of costs in
videographer fees, travel expenses for expert witnesses, and travel expenses for court
reporters. Thus, the question is whether the costs awarded were reasonable and necessary;
Plaintiff insists some were not.

        Defendants’ motion for discretionary costs was supported by detailed affidavits and
receipts listing the expenses incurred. The trial court’s order granting discretionary costs lists
the rich sources of argument it used to evaluate the reasonableness and necessity of the costs:
“Motion of Defendants, . . . Response of Plaintiff, . . . and Objection of Plaintiff, . . .
Affidavits, argument of counsel, . . . the entire record,” and found that the costs Plaintiff
specifically objected to were a legitimate part of the defense strategy.

       With respect to the fourth factor in Massachusetts Mutual, whether the prevailing
party has engaged in conduct during the litigation that warrants depriving it of the
discretionary costs to which it might otherwise be entitled, Plaintiff do not contend that
Defendants engaged in any such conduct. Mass. Mut. Life Ins. Co., 104 S.W.3d at 35-36.

       Patsy Freeman, in her individual capacity, presents one additional issue concerning
discretionary costs: the discretionary costs should not have been assessed against her in her
individual capacity because, she contends, she was not a “real party in interest.” We find her
argument is in direct conflict with our holding in Shofner v. Red Food Stores, 970 S.W.2d
468, 470 (Tenn. Ct. App. 1997). Like here, the action in Shofner was commenced and
maintained by a plaintiff who brought her claims in two capacities: as an individual and as

                                               -10-
the personal representative of the decedent’s estate. Id. When the trial court subsequently
assessed costs against her in both capacities, Ms. Shofner appealed, arguing the costs should
not have been assessed against her individually. On appeal, this court found the trial court
did not abuse its discretion in assessing costs against the plaintiff in her individual capacity
because she maintained the suit in her individual capacity. Shofner, 970 S.W.2d at 470.
Applying the same reasoning as in Shofner, we find the trial court did not abuse its discretion
in assessing the costs against Patsy Freeman individually and as the personal representative
of the decedent’s estate.11

       In summary, we have determined the trial court’s decision to award discretionary costs
was the product of a reasoned and thorough examination of the costs requested under the
circumstances; therefore, we affirm the assessment of $34,098.27 in discretionary costs
against Patsy Freeman individually and as personal representative of the decedent’s estate.

                                              CONCLUSION

      The judgment of the Circuit Court for Rutherford County is affirmed in all respects
and costs of appeal are assessed against Patsy Freeman in her individual capacity and as
personal representative of the decedent’s estate.




                                                                   ______________________________
                                                                   FRANK G. CLEMENT, JR., JUDGE




        11
          In the case at bar, we also note that the trial court emphasized the fact that the two plaintiff received
the benefit of four additional peremptory challenges, four for Patsy Freeman in her individual capacity and
four more in her capacity as the personal representative.

                                                       -11-
