### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JUNE 18, 2001 Ses sion BARBARA WHITE v. DR. JOHN ALBRITTON, ET AL 

### . Direct Appeal from the Circuit Court for Shelby County No. 62414 T.D.; The Honorable James F. Russell, Judge

No. W2000-03068-COA-R3-CV - Filed July 26, 2001

This appeal arises from a medical malpractice claim filed in the Circuit Court of Shelby County by the Appellant agai

nst the Appellees. On

the first day of trial, the Appellant announced her intention to voluntarily

nonsuit the case. The trial court entered an order of voluntary nonsuit. The Appellees filed a motion for discretionary costs. The trial court held that the motion was prematu re but would revisit the motion if the lawsuit was refiled. The Appellant refiled the lawsuit in the United States District Court for t he Western District of Tennessee. The Appellees refiled the motion for discretionary

costs in the Circuit Court of Shelby County. The circuit court granted the App

ellees’ motion for discretionary costs. The Appellant appeals from thegrant of the App ellees’ motion for

discretionary

costs by the Circuit Court of Shelby County. For the reasons stated her ein, we affirm

the trial court’s decision. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed A LAN E. H IGHERS , J., delivered the op inion of the court,

in which D AVID R. F ARMER , J., and H OLLY K IRBY L ILLARD , J., joined. Craig V. Morton, Memphis, TN, for Appellant J. Kim bro ugh J ohn son , Me mph is, TN, for App ell ees, Joh n Al bri tto n, M ..D ., M id- Sou th O b-G yn Group, P.C., and Thomas Greenwell, M.D. Michael E. Keeney, Memphis, TN, for Appellees, Herbert Tay lor, M.D., George H. Peeler, M.D., and Michael Marshall, M.D. James L. Kirby, Tabitha f. McNabb, Memphis, TN, for Appellee, Susan Murr mann, M.D.-2- OPINION I. Facts and Procedural History On June 15, 1994, the Appellant, Barb ar a White (“Ms. White”), filed a complaint for medical malpractice in the Circuit Court o f Shelby Count

y against t

h e Appell ees, Dr. John Albrit ton, Mid South Ob-Gyn Group, P.C., Dr. Thomas Greenwell, Dr. George H. Peeler, Dr. Herbert Taylor, Dr. Susa n Mu rrmann, and Dr. Michael Marshall (“Physicians”). The parties pr epared for trial and engaged in e xte nsi ve d isc ove ry. The case was set for trial on several occasions including November 16, 1998, March 15, 1999, and May 17, 1999. On one occasion, the trial court declare d a mistrial on the second day

of proceeding

s. On January 18, 2000, the trial commenced and, on the first

afternoon of the

trial, Ms. White announced

her intention to voluntarily nonsuit the case. Ms. White claims that the disappearance of the court clerk’s file, the disappearance of medical records, and the trial judge’s wife’s medical relationship

with some of the Physicians precipitated the voluntary nonsuit. On February 4, 2000, the trial cour t entere d an order of voluntary nonsuit. On February 10, 2000, Physicians filed a motion for discretiona

ry costs in the amount of $6,434.75. At the hearing of Physicians’ motion for discretionary

costs, the trial co

urt held that the mot

ion was premature

but that it w ould revis it the motion if the lawsuit was refiled. On August 28, 2000, Ms. White refiled the lawsuit in the United States District Court for the Western District o f

Tennessee. On September 11, 2000, Physicians refiled the motion for discretionary

costs in the Circ uit Court of Shelby Coun ty. The circ

uit court grante

d Physicians’ motion for discretionary costs in the amount of $6,434.75. This appeal followed. II. Standard of Review The standard of r

eview for a non-

jury case i

s de novo upon the record. See Wright v. City of Knoxville , 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the trial court’s factual findings, unless the preponderance of the evidence is otherwise. See T ENN . R. A PP . P. 13(d). For issue

s of law, the stand

ard of review is de novo , with no presumption of correctness. See Ridings v. Ralph M. Parsons Co. , 914 S.W.2d 79, 80 (Tenn. 1996). III. Law and Analysis The following two issues, as we perceive them, are presented for our review: 1) whether the trial court had jurisdiction to award discretionar y costs; and 2) if the trial court had jurisdiction, whether the trial court abused its discretionby grantin g Physicia

ns’ motion for discret

ionary cost

s. We will examine each of these issues in turn. The first issue prese

nted for our revi

ew is whether the trial court had jurisdiction to award discretionary

costs. Ms. White argues that the trial court erred by awarding discr

etionary c

osts-3-

because the trial court no longer had jurisdiction over the proceedings when the action was refiled in federal cour

t. Rule 54.04(2) of the Tennessee Rules of Civil Procedure provides that “[t]he court may tax discretionary costs at the time of voluntary dismissal.” T ENN . R. C IV . P. 54.04(2). The refiling of the lawsuit in federal court following an order of voluntary dismissal in the trial court does not divest the trial court of jur

isdiction to award

discretionary

costs. The trial c

ourt is c learly in

a better position to make an allowance or dis allowance of dis

cretionary costs for expenses

incurred while the ca se is pending in the trial court. Accordingly, we find that the trial cour t had jurisdict ion t o award discretio

nary costs. The second issue presented for our review is whether the trial court abused its discretion by granting Physicians’ motion for discretionary costs. Ms. White argue s that the trial court ab

used its discretion by granting Physicians’ motion for discretionary

costs because

she pursued the litigation in good faith and Physicians were not harmed by the voluntary nonsuit. Rule 54.04(2) of the Tennessee Rules of Civil Procedure authorizes the trial court to award discretionary

costs and provide

s, in pertinent par

t: Costs not included in the bill of costs prepared by the clerk are allowable only

in the court’s disc

retion. Discreti

onary costs allowable are: reasonable and necessary court reporter expenses for depositions or

trials, reasona

ble and necessa

ry expert wit

ness fees for depositions or trials, and guardian ad litem fees; travel expenses are not allowable discretionary costs. T ENN . R. C IV . P. 54.04(2). Trial courts are vested with wide discretion in awarding discretionary

costs, and this Court will not interfere with an award of discretionary costs except upon a clear showing that the trial court abused its discretion. See Placencia v. Placencia

, 3 S.W.3d 497, 503 (T enn. Ct. Ap p. 1999) (ci ting Perdue v. Gr een B ranch Mining Co. , 837 S.W.2d 56, 60 (Tenn. 1992)). In the case at bar, the trial court awarded the full amount of discretionary costs requested by Physicians, $6,434.75, which was the cost for court reporter expenses and expert witness fees. Applying the foreg oing standard, we find no evidence that the trial court abu sed its dis cret ion in a ward ing d isc ret ion ary co sts . Ac cord ingl y, we find that the trial court did not err by granting Phy sicians’ motion for discretionary costs.-4- IV. Conclusion For the foregoing

reasons, the decision of the trial court is affirmed. Costs of this appeal are tax ed ag ain st t he A ppe lla nt, Barb ara W hit e, fo r wh ich exe cut ion may i ssu e if nece ssa ry.

___________________________________ ALAN E. HIGHERS, JUDGE