                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  MARCH 19, 2003 Session

      ESTATE OF JOHN E. ACUFF, SR., ET AL. v. BRENDA OLINGER

                 Direct Appeal from the Chancery Court for Marion County
                         No. 6064    Jeffrey F. Stewart, Chancellor



                  No. M2002-01629-COA-R3-CV - Filed September 16, 2003


This is an appeal from the granting of Appellee’s motion for discretionary costs. For the following
reasons, we find that the motion was not timely filed and reverse the court below.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Bob E. Lype, Chattanooga, TN, for Appellants

John W. Cleveland, Sweetwater, TN, for Appellee

                                            OPINION

                                  Facts and Procedural History

        In 1996, Appellants filed a complaint against Brenda O’linger (Ms. O’linger) to set aside two
deeds conveying property to her from John E. Acuff, Sr. After a trial on the matter held January 11 -
14, 1999, a verdict was entered for Appellants. Ms. O’linger appealed this decision and the verdict
was overturned by this Court in an opinion entered April 11, 2001. Appellants then petitioned the
Tennessee Supreme Court for review, but their petition was denied on October 1, 2001. This Court
then issued its mandate and returned a certified copy of its judgment and opinion to the trial court.
The mandate was issued on October 15, 2001 and filed in the trial court on October 17, 2001. Ms.
O’linger next apparently waited for the time period to run on any possible appeal by Appellants to
the United States Supreme Court. After that period Ms. O’linger filed a Motion for Discretionary
Costs in the Trial Court on February 7, 2002.
        A hearing was held on March 26, 2002. The trial court held that the motion had been timely
filed and awarded Ms. O’linger $15,188.75 in discretionary costs. Appellants timely filed an appeal
with this Court and present the following two issues for our review:

          I.    Did the Trial Court abuse its discretion and err in its award of discretionary costs to
                Defendant because Defendant’s motion for discretionary costs was not timely?

          II.   Did the Trial Court abuse its discretion and err in its award of discretionary costs to
                Ms. O’linger because some of the costs awarded are outside the scope of costs
                permitted by Tenn. R. Civ. P. Rule 54.04.

                                         Law and Analysis

Our Supreme Court has stated that:

       Adjudging costs is within the reasonable discretion of the trial court, Lock v. Nat'l
       Union Fire Ins. Co., 809 S.W.2d 483, 490 (Tenn.1991), and the trial judge may
       apportion the costs between the litigants as, in his opinion, the equities demand.
       Tenn.Code Ann. § 20-12-119. Accordingly, appellate courts are generally disinclined
       to interfere with a trial court's decision in assessing costs unless there is a clear abuse
       of discretion.
       Perdue v. Green Branch Min. Co., Inc., 837 S.W.2d 56, 60 (Tenn. 1992).

Appellants note that the time for filing a motion for discretionary costs is thirty days after entry
of judgment per Tennessee Rule of Civil Procedure 54.04(2) which states:

         2) 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, reasonable and necessary
         interpreter fees for depositions or trials, and guardian ad litem fees; travel
         expenses are not allowable discretionary costs. 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.
(emphasis added).

Appellants argue that Ms. O’linger’s motion was untimely because it was filed more than thirty days
after the judgment was entered. Appellants contend that the latest possible date for consideration
as to when the “thirty(30) days after entry of judgment” began to run is the date that our mandate was
filed in the trial court below. Ms. O’linger contends that our judgment became “effective” “[u]pon
denial of the Appellants’ application for permission to appeal and their forebearance from filing a
petition for certiorari to the U.S. Supreme Court for ninety days thereafter.” Apparently in the

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alternative, Ms. O’linger argues that the opinion and order as well as the mandate issued by this
Court called for “further proceedings” and that the thirty-day period should run from the judgment
entered after remand.

        We find that Tennessee Rule of Appellate Procedure 42 controls the resolution of the initial
portion of this dispute. First we will examine Ms. O’linger’s contention that our judgment did not
become effective until the ninety-day period allowed to file an appeal to the United States Supreme
Court expired. The portion of Tennessee Rule of Appellate Procedure 42 pertinent to this appeal
reads as follows:

       Issuance, Stay, and Recall of Mandates From the Appellate Court.
       ....
       (b) Stay When Review by Supreme Court Is Sought. – Unless otherwise ordered by
       the Supreme Court, Court of Appeals, Court of Criminal Appeals, or a judge thereof,
       the timely filing of an application for permission to appeal in the Supreme Court shall
       stay the issuance of the mandate of the Court of Appeals or Court of Criminal
       Appeals, which stay is effective until final disposition by the Supreme Court. Upon
       the filing of an order of the Supreme Court denying the application for permission
       to appeal, the mandate shall issue immediately.

       (c) Stay When Review May Be Sought in the Supreme Court of the United States.
       – In cases in which review by the Supreme Court of the United States may be sought,
       the appellate court whose decision is sought to be reviewed or a judge thereof, and
       in any event the Supreme Court of Tennessee or a judge thereof, may stay the
       mandate.

We note that section (b) above instructs that upon the denial of permission to appeal by our
Supreme Court, as occurred in the case at bar, the mandate of this Court “shall issue
immediately.” There is no time allowed for a discretionary appeal to the United States Supreme
Court, unless such time is granted under section (c) above.

         As for Ms. O’linger’s contention that the thirty-day period in which to file her motion
should have begun after a final judgment entered by the trial court after remand, we find no merit
in this argument. In Estate of Acuff v. O’Linger, 56 S.W.3d 527, 556 (Tenn. Ct. App. 2001), this
Court made the following decision:

       We have concluded that the plaintiffs have failed to carry their burden of proof
       and the judgment of the trial court is reversed and the case dismissed. Costs on
       appeal are assessed to the appellees and the case is remanded for such further
       proceedings as may be necessary.

The case was “dismissed.” We fail to see how Ms. O’linger could have been waiting for any other
judgment to issue. Once our mandate issued, the judgment of this Court was final and Ms. O’linger
had thirty days in which to file her motion for discretionary costs. She failed to do so and, therefore,


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her motion was untimely. Because her motion was untimely, we find that the trial court abused its
discretion in granting discretionary costs to Ms. O’linger and reverse the court below. Our
disposition of Appellants first issue renders all other issues moot.

                                            Conclusion

For the foregoing reasons, the trial court’s award of discretionary costs to Ms. O’linger is reversed.
Costs of this appeal are taxed to the Appellee, Brenda O’linger for which execution may issue if
necessary.



                                               ___________________________________
                                               ALAN E. HIGHERS, JUDGE




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