### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE Se pte m be r 14, 200 5 S es sio n
KENNY VAUGHN, ET AL 

### . v. NOTI E L. CUNNINGH AM, ET AL


### .

Appeal f romthe Circ uit Court for Ham ilton Coun ty No. 97C2650 Sam uel H. Payne, Judge

No. E2004-03001-COA- R3-CV - F ILED JANUARY 4, 2006

Kenny Vaug hn and B arba

ra V aug hn (“Plaintiffs” or “Mr. Va

ug hn” and “ Mrs. Vaug hn” as appropriate) sue d Notie L . Cunningha m and J ohn Doe c oncerning an au t o mobile acc ident that

occur red in Hamilton County

. The case was tried before a jury and the Trial Court entere d judgme nt on the jury ’s ver dict. The jury found J ohn Doe 100% at fault for the ac cident, but awa

rded Plaintiffs no damag es. Plaintiffs appea l to this Court claiming that the j ury verdic t is contrary

to the evidenc e beca use the amount of damag es is not withi n the ra ng e of r easona bleness, and tha t the Trial Court

err ed by not gr anting a new trial and by awa rding court c osts aga i n s t P l ai ntiffs. We aff irm as modified.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed as Modif

ied; Case Re m anded

D. M I CH A EL S WI NEY , J ., delivere d the opinion of the court, in which H ER SCH EL P. F RAN KS , P.J ., and S HAR ON G. LEE , J ., joined.

J . Tay lor Walker and T homas H. O’N eal, Chattanoog a, Te nnessee for the A ppealla n t s , Kenny Vaug hn and wife , Ba

rbar a Vaug hn.

A n g e l a C i r i n a K o p e ta n d C h r i s t i n e M

. V a n a s s e , C h a t t a n o o g a , T e n n e s s e e f o r t h e A p p e l l e e , N o t i e L. Cun nin g ha m.

Scott M. S haw, Chattanoog a, Te nnessee for the A ppellee, John Doe.-2- OP IN ION

Bac kgr ound

Du e to the na tur e of

the iss ue s r a ise d o n a

pp e a l, w e dis c us s th e fa c ts o f thi s c a se in some detail. The a ccide nt (“the A ccide nt”) oc curr ed on De cembe r 20, 1996, on Rossville Bouleva rd in Hamilton Count y . Plaintiffs filed sui t in Dec ember of 1997, and the case was tried be fore a jury in October

of 2004.

Mr. Vaug hn testified at trial a bout the Acc ident. He testified that h e was sitti ng at a red light on Rossvil le Boulevard behind sever al ot her ve hicles with his foot on the brake when “ I he ardtir e s sq ue a lin g wh e re - - y ou kn ow , wh e re the y loc ke d up the ir br a ke s, wh a t I

fi g ur e d. ... We ll, I was hit befor e I

could do anything. I didn’t - - y ou know, I didn’t have time to re ally do anything.” Mr. Vaug hn testified that the 1994 For d F- 250 truck he was driving was knoc ked six or seve n fee t fo rw arda ndstate d: “ Wel l, I wa s si tti ng ri g ht u p a g a in the on e that wa s in fr on t of me

. I tho ug ht I

wa s g o in g to s la

p it
, to o , b u t I d id n ’ t. ” M r

. V a u g h n te s ti f ie d th a t h e s a t in h is vehicle f or a f ew

s e c o n d s b e f

o r e g e t t i n g o u t , a n d t h e n t h e l i g h tc h a n g e d a n d t h e v e h i c l e s a h e a d o f h i m p u l l e d a w a y. He te sti fi e d th a t Ms . Cu nn ing ha m, w ho se c ar h a d h it h im, c a me up to h im an d ask e d whe re the wh ite

c ar w e nt.

Ms. Cunningham a lso testified about the Ac cident. Ms. Cunni n gh am t est ified she was driving a 1989 Pontiac L eMans hatch- back and that she c ame to a c omplete stop at the re d light behind Mr. Vaug hn’s vehicle. She testified that there was a pproxi mately

three or four

fee t betwee n he r ve hic le a nd Mr . V a ug hn ’s truc k a ft e r the y bo th s top pe d a t th e re d li g ht p ri or to the Ac c ide nt. Ms. Cunningha m testified she hea rd a c ar, looke d in her re ar- view mirr o r, an d saw a white ca r. She
tes ti f ie d th a t th e w h it e c ar h it h e r a n d p u s h e d h e r c ar f o r w ar d in to M r

. V a u g h n ’ s v e h ic le. She de sc ri be d th e imp a c t a s “ [j]ust e no ug h to pu sh me int o th e ba c k [ of Mr. Vau gh n’ s tr uc k].” Ms. Cunningha m testified that she had a Coke next t o her and that afte r impact, she re ache d to turn the Coke uprig ht, and then turne d her ve hicle off and g ot out. Ms. C unningha m testified that afte r she g ot out of her c ar, she looked for the white car , but did not se e it. She testified that she approa ched Mr. Vaug hn who by

then was out of his ve hicle and a sked him where the white ca r we nt.

Ms. Cunningham testified tha t she was not injured in the acc ident. She testified that
t h e c o v ero v ert h e b l i n k er l i gh to n t h e d ri v er ’s s i d e o f h ercar w as b ro k en , b u tt h er e w as n o d am age to the front of he r bumper. She tes t i fi ed she looked a nd saw a “strea k of white pa int on the back bumper ...” of her

vehicle tha t had not been the re prior to the Acc ident. Ms. Cunningham testified that she re paire d the damage to her c ar by purcha sing a

blinker lig ht cover

at a junk y ard f

or approximately

$4. She described the dama g e to M r. Va u gh n’s vehicle stating the “bumper was completely

turned unde r.” She a lso testified that “it wasn’t a bad ac cident.”

Of fi c e r M ic ha e l T . Sh ort, w ho wa s e mpl oy e d by the Chattano og a Pol ic e De pa rt me nt, investigated the ac cident. Of fice r Short testified that no injuries wer e re ported a t the scene of the-3-

Acc ident and that and none of the ve hicles involved nee ded to be towe d. Offic er Short further testified that he sa w a white ma rk on the re ar bumpe r of Ms. Cunning ham’s ca r.

Marc us Way ne B lack witnesse d the Acc ident and testified. Mr. B lack testified tha t he wa s moving furniture for his employ er a nd was outside in front of a buil d i n g an d wa s fac ing Ros sv ill e B ou le va

rdwh e n th e Ac c ide nt o c c ur re d. He te sti fi e d:

I hear d tires scre eching and looked up and ther e wa s two vehicles stopped at the red lig h t a n d a th ir d s li d in to th e r e ar v e h ic le

. A n d th e n h e b a c k e d u p to the rig ht and made a rig ht at the re d light and pr ocee ded on. He never stopped afte r he hit the car

.

M r

. B la c k te s ti f

ie d th a t th e w h it e c ar “ h it p r e tt y h ar d

. H e b u s te d h is r a d iato r a n d th e r e w a s a n ti f r e e ze pouring out of it when he ba cked up a n d l ef t

. ” M r. Bl ack testified that there was a couple of

fee t distance be tween Ms. Cunning ham’s ca r and Mr. Vaug hn’s t ruck a s they wer e stopped a t the light befor e the a ccide nt. When asked about the wea ther conditions at the time of the Ac cident, Mr. B lack

s t a t e d : “ I b e l i e v e t h e s u n w a s s h i n i n g

. I d o n ’ t b e l i e v e i t h a d b e e n r a i n i n g

. I b e l i e v e i t w a s a c o o l d a y, but pretty nice. I t wa s in Dece mber.” When asked why he did not g o to the assistance of any one involved in the Acc ident, Mr. B lack s t at ed : “I didn’t fig ure the re w as nobody seriously injured. I mean, it wasn’ t that bad of a wre ck.”

Mr. Vaug hn testified that he did not fee l hurt at the Acc ident site and that later tha t day , he lef

t for a pr eviously

schedule d hunting trip. He testified that his neck started g etting sor e

sever al hours af

ter the A ccide nt. Mr. Vaug hn testi fi ed t h at h e d id not ge t to hunt that weekend beca use he w as too sore. H e testified that the ne x t week “ I was sore . Real sore .” He s t ated: “I fig ured it wa s just sore ness, y ou know. I fig ured it would probably take car e of itself, g o awa y , but it kept ge tting wor se and worse.” Mr. Vaug hn testified that over the course of a w eek a nd a half or two wee ks, the pain kept g etting w orse, so h e ca l l ed Dr

. Dy er, a n orthopedic sur g eon, and g ot an appointment. Mr. Vaug hn testified that he ha d to wait a couple of we eks to see D r. Dy er. Mr

. Vaug hn saw Dr . Dy er on F ebrua ry 5, 1997, 46 day s after

the Acc ident.

Mr. Vaug hn, who was 58 y ear s old at the time of trial, testified that he owns Vaug hn Eq uip me nt a ndthat he re pa ir s a ll ty pe s of mid -s ize e qu ipm e nt inc lud ing su c h thi ng s a s f arm tr a c tor s, dozers, and bac khoes. When asked to describe hi s work, Mr. Vaug hn stated: “Well, y ou pretty much ha ve to be a lmo st lik e a n a c ro ba t, y ou kn ow

. Yo u ha ve g ot to g e t to e ve ry po int of the ma c hin e to work on i t , take bolts out and put them bac k and re pair whatever is wrong with them when it’s apart.” Mr. Vaug hn opened V aug hn Equipment in 1991 or 1 9 9 2
, af t er he quit his job at Swope Equipment due to a lower ba ck proble m that Mr. Vaug hn testified made him unable to do the work

a t Sw op e Eq uip me nt.

Mr . V a ug hn te sti fi e d that he hu rt his ba c k in 19 89 in a wo rk -r e late d in

jury (“ wo rk e rs ’

c omp inj ury ” ). Mr . V a ug hn a dmi tte d th a t he ne ve r c omp le te ly re c ov e re d f

ro m th e wo rk e rs ’ c omp injury and that he still was taking medication for it, but st ated he was not missing work be cause of that injury . He testified tha t the last time h e s aw a doctor for the w orker s’ comp injury was-4-

approximately

one y ear befor e the Ac cident. He further test i fi ed t h at the worke rs’ c omp injury involved “hurting rig ht in under my shoulder blade and in my mid back, but not nothing a ny highe r.” I n this suit , Mr. Vaug hn claims damag es for injury to his neck.

Mr. Vaug hn testified that he ha s seen Dr

. Dy er al m ost every month since the Acc ident. He stated that Dr. Dy er “ g ive me some diff ere nt medicine, for

one thing , and then - - ... - - h e sta rt e d d oin g so me sh ots a ndoth e r s tuf f tha t - - a nd

it d idn ’t he lp. He pr e sc ri be d me a ha rn e ss for my head tha t I

use. And sometimes it helps and sometimes it don’t.” Mr. Vaug hn explained that the harness is a traction unit that he wears for an hour, or an hour and a half at a time while sitti ng at home. Mr. Vaug hn also testified that he does some exercises at home for 30 or 40 minutes every evening . Mr. Vaug hn testified that Dr. D y er a lso prescribed phy sical thera py . Howe v er, Mr. Vaug hn testified that he only went to phy sical thera

py two or three times because his neck w ould ge t too so re fr om the the ra

py . M r. Vaug hn fu rthe r t e sti fi e d th a t he ha d tw o e pid ur a l sh ots “ in the joi nts in y our neck.” He testified that the epidural shots helped for t wo or three day s and then would stop working or we ar of

f.

Reg arding his work, M r. Vaug hn testified: “Well, there is day s that I can g o in and I c a n d o f a ir . A ndthe n the re is da y s I g o in, I c a n’ t do ne ar a s mu c h. An d th e re is d a y s th a t I g o in I do n’ t do a nythi ng . I

sit aro un d. ” He state d:

Well, any thing that y ou lift that’s, say , 30, 40 pound or m ore, it puts strain on it and it makes it g et s ore. And, of course , that’s proba bly the re ason some day s I ’m a lot worse tha n others, bec ause it ag g ravates it....W ell, y ou take if y ou have g ot a wre nch that y ou have g ot to break a bolt loose, y ou are putting so much stra in on it li ke, of

c ou rs e , it a g g ra va te s it . A ndthe re is a lot of da y s th a t, i f I ’m

do ing a job , I ha ve to take pa in pills and g o on and g et it done.

Mr. Vaug hn testified that when his ne ck bother s him a t w ork, all he can do is take pain medica tion.

Mr . V a ug hn te stifie d th a t be fo re the Ac c ide nt, he wa s ta kin g ho me app ro xima te ly $5 00 pe r w e e k a ndstate d: “ Wel l, i f y ou wa nt t o b e ho ne st abo ut i t, I los e a lot mor e tha n th a t, beca use I was making 40 dollars an hour .” Mr. Va ug hn claimed he lost that amount of money for fo urte e n w e e ks . H e te sti fi e d th a t hi s w if e , w ho is the bo ok

ke e pe r f or his bu sin e ss, pr e pare d a lis t of the time he lost from wor k. Mr. Vaughn testified that he los t 14 weeks of work fr om March of 1997, throug h November of 1 9 9 7
, at $ 5 0 0 per w eek f or an a pproxi mate total of $7,000. Mr. Vaug hn further

testified that when he g oes to the doctor, he is away from wor k and stated: “ Any

body that ever went to a doctor, they know they are g one any wher e from two to f our hours. Most of

mine

aver ag e ar ound three .” Mr. Vaughn testified he has turned down jobs beca use he say s he ca n’t do them and stated: “ Well, when y ou g et down into where y ou’re almost upside down, why , y ou know, it ge ts to a point y ou can’ t do it, why , y ou just can’t do it.” Mr. Va ug hn admitted that he had two employ ees w orking for him at the time of the Acc ident and that these employ ees quit sometime af ter the Acc ident. Mr. Vaug hn testified that he tried to r eplac e these e mploy ees, but wa s unable to do-5-

so. Mr. Vaug hn then admitted that without suitable employ ees his shop hasn’t been able to make money the way it used to.

I n the ca se at ha nd, Mr. Vaug hn claimed bills for medi ca l care a nd trea tment including the harne ss, phy sical thera py char g es, an MRI

d o n e b y Dr. Dy er, a nd presc ription

me dic a tio ns . Wh e n a sk e d if his ne c k h a s g ott e n a ny

be tte r, Mr . V a ug hn state d: “ No . It’ s sl ow ly g etting w orse.” When he was a sked how his nec k fee ls curre ntly , Mr. Vaug hn stated: “It’ s sore.” Mr . V a ug hn te sti fi e d th a t hi s doc tor tol d him how to mod if y a c re e pe r tha t he u se s to g e t un de rn e a th

ma c hin e ry

a t w or k. He state d:

We put a heavie r, like a pillow on it, b u t i t d i d n ’t d o that much g ood. Most of the

wo rky o u d o i n s o m et h i n g l i k e t h at , y o u ca n ’t k ee p y o u r h ea d d o wn o n s o m et h i n g. You know, y ou have to r eac h up and stretc h out and every thing. I couldn’t - - I

c ou ldn ’t ke e p my he a d o n a

c re e pe r t o s up po rt

it.

Mr . V a ug hn te sti fi e d th a t hi s n e c k in jury a ff e c ts h is s le e p a ndthat he ha s h a d to pu rc ha se a

sp e c ia l ma ttr e ss, bu t it ha s no t he lpe d muc h. He state d: “ Wel l, I tos s a ndturn. Th e re is

a lot of nig hts I do n’ t ha

rd ly g e t a ny sle e p a t a ll. ” Mr

. Vaug hn a lso te sti fi e d he ha s n ot b e e n a ble to hu nt l ike he us e d to be c a us e he c a nn ot c limb in to a tr e e sta nd . H e e xpla ine d th a t no w, he ha s to us e a hunting house on the g round. Mr. Vaug hn testified that he did hunt and kill one dee r last y ear , but his so n a nd frie nd s h a d to c arry the de e r b a c k to c a mp. Mr . V a ug hn a lso te sti fi e d th a t if he is r e a lly sore he cannot r ide in a four-whe eler beca use i t bounces him t oo much. He te stified that he now ha s p ro b l em s ri d i n g o r d ri v i n g i n t ru ck s o r c ar s an d s t at ed : “A ft er ab o u t 3 0
, 4 5 m i l e, wh y , I s t ar tget t i n g, y ou kn ow , ir

ri ta tio n in my

ne c k. I sta rt hu rt ing .” Mr . V a ug hn a lso testif ie d th a t he c a nn ot f

ix his leaking roof, or

mow the y ard, or use a wee d-eater any longe r. He further testified that he c an g et down on the floor to play with his gra ndchildren, but not for lon g p er i o d s of time. Mr. Vaug hn
te sti fi e d th a t hi s nec k is “slo wl y g e tti ng wo rs e . It’ s ju st a ma tte r o f t ime I ’m

g oin g to h a ve to q uit altog ether . I

hope I can r etire be fore it happens.”

Whe n M r. Vaug hn wa s q ue sti on e d r e g a rd ing da ma g e to his truc k fr om the Ac c ide nt, he testified that his bumpe r was turned down in the Acc ident and that afte rwa rd he we nt to his shop, put a jack unde r the bumper
, and raised i t up. Mr. Vaug hn testified that he doe s not know how much it cost to repa ir his truck af ter the A ccide nt because he ne ver sa w the bill. When he was que stioned

re g ard ing the c ur

re nt v a lue of

his truc k, Mr . V a ug hn te sti fi e d:

Wel l, I g a ve $2 4, 00 0 for it . Tha t’ s - - tha t w a s a str a ig ht- ou t bu y . T ha t’ s w ha t it listed for. And today

the vehicle is sitt ing in my g ara g e at the house . The rotor s are rusted up so bad y ou can’ t drive it beca use i t hadn’t been used beca use i t don’t drive ri g ht.

* * *-6-

I t’s almost imposs ible to [put a value on the truck]. I mean, the ve hicle is a $24,000 vehicle. A nd today , if y ou can’ t drive it and keep it from just jumping up and dow n in the road, w hat ca n y ou say ? I mean, it’s not worth any thing to me. I ’ve done dr op pe d th e ins ur a nc e a ndthe ta g s o n it

.

On Dec ember

5, 1997, approximately

one y ear afte r the Ac cident, Mr. Va ug hn was involved in a nother automobile acc ident (“the second acc ident”). Mr. Vaug hn testified that he f iled a lawsuit re g arding the sec ond acc ident. Howeve r, he testified t hat t here are a lot of cle rica l error s i n t h e c o m p l ai n tfo r t h e s ec o n d ac ci d en t

. W h en as k ed i f he re m em b er s s t at i n g h e w as u n ab l e t o go to work for a fe w day s after the sec ond acc ident, Mr. Vaug hn stated that he doe s not remember

. When asked if he reme mbers stating that when he returne d to w ork afte r the second acc ident he wa s

u n ab l e to per form his job to some ext ent due to his injuries, Mr. Vaug hn stated: “Ag ain, I don’t

reme mber tha t

. All that stuff there , I ’ve not - - I have no r efr eshment of it. I don’t - - I

can’ t

reme mber it.”

Mr. Vaug hn admitted that the only damag e he sa w to the front of Ms. Cunningham’s vehicle w as a broken bli nker cover and further admit s that he did see a scra tch on the re ar bumpe r of he r v e hic le . M r. Vaug hn te sti fi e d th a t he c a nn ot s a y that a John Do e drive r w a s n ot i nv olv e d in
t h e a cc i d en t an d s t at ed : “I r ea l l y co u l d n ’t s ay , n o w. I ’v e s ee n s ev er al ac ci d en t s an d s t ra n gert h i n gs has happe ned.” H e further a dmitted that Ms. Cunningha m’s car has rubbe r-c overe d bumpers. Mr. Vaug hn also testified that he be lieves his truck ha s air bag s, but that he is not certa in and admitted that if it does, they

did not deploy

during the Accident. Mr. Vaug hn further admitted that he did not g o to the emer g ency

room afte r the a ccide nt, and did not see a doctor until 46 day s after the Acc ident.

Ba

rbar a Vaug hn testified at trial. She a nd Mr. Vaug hn have b ee n m ar ri ed for 35 y ear s. Mrs. Vaug hn testified that she has a tenth g rade education and that she does the se cre tarial work for Vaug hn Equipment, answering phone s, prepa ring invoices, and pay ing bills. Mrs. Vaug hn testified that since the Acc ident,

there ’s day s that [m y

husband] c an’t work at all, and then the re’ s day s that he’ll work pa rt of the da y a ndthe n h e c a n’ t w or

k a ny mor e that day

. He jus t - - m os t of the tim e he’ll come in the office

. We used to have a couch, a nd he’d la y

down or sit down,
y ou know, just stay

there

.

Mr s. Vaug hn te sti fi e d th a t a ft e r the Ac c ide nt, the re we re e nti re we e ks wh e n h e r h us ba ndwo uldmis s work. Mrs. Va

ug hn testified t hat t he wor kers’ comp injury

did not stop her husband fr om working and stated: “ Well, Imean, it slowed him down, but he st ill worke d.” However , when a sked if her hu sb a ndc ou ld p ut in a

fu ll d a y ’s wo rk

a ft e r the wo rk e rs ’ c omp inj ury , M rs . V a ug hn a dmi tte d: “ Wel l, no, he didn’t work a ll the time, but he was there every day .” Mrs. Vaug hn testified that her husband is a salar ied employ ee w ho g ets paid as long as there is money co m i n g t h ro u gh t he door of the

c omp a ny

. Whe n q ue sti on e d a bo ut h e r h us ba nd ’s c la im f or los t w a g e s, Mr s. Vaug hn te sti fi e d: “ Al l-7-

the 1997 is relate d to a first wre ck, so the 1998, I didn’t know how to do that, bec ause the re w ere two

acc idents, so I

just quit keeping rec ords.”

Mrs. Vaug hn testified that her husband built the house they live in and that he use d to do most of the out side chore s and y ard work, but since the Acc ident, she has to mow and we ed-e at the y ard . Mrs . Va ug hn te sti fi e d tha t her hu sb a nd ne ve r ha d pro ble ms sle e pin g pr ior to the Ac c ide nt, but now does have problems sleeping . She stated: “Well, most nights he’s up unti l 1:00 o’clock, a nd the n h e g oe s to bed

. He tos se s and turns , an d, y ou kn ow , just a ll ove r the be d an d, y ou kn ow , ju st can’ t sleep or c an’t lay in one position.” Mrs. Vaug hn testified that her husband purc hased a

new mattress and tha t she moved i nto another bedroom so he could have the whole bed “so he can re lax better ....” Mrs. Vaug hn testified t hat s he has been slee ping in a separ ate be droom for f

our or f ive
y ear s now. Mrs. Vaug hn testified that she a nd her husband have not take n a vac ation since the Acc ident. She testified that prior to the Acc ident, they tried to take a

wee k-long vacation every y ear

.

Willi a m Ca

rl Dy e r, Jr., M. D. is an ortho pa e dic su rg e on wh o tr e a te d M r. Vaug hn bo th befor e the Ac cident and a fter it. Be fore the Acc ident, Dr. Dy er had trea ted Mr. Vaug hn for se vera l things including the 1989 worke rs’ comp injury

. Dr. Dy er testified about seve ral of Mr . Vaug hn’s visits prior to the Accident. F ive y ear s prior to the ac cident, Dr . Dy er g ave Mr. Va u gh n an impairment rating of “25 perc ent perma nent phy sical impairment and loss of phy sical func tion to the body as a w hole.” Dr . Dy er testified that when he trea ted Mr. Vaug hn on Dec ember 12, 1991, Mr. Vaug hn had a 50 pe rce nt rang e of motion in his ba ck. Dr . Dy er f urther te stified that in J anuary of 19 92 , M r. Vaug hn be g a n w e ari ng a ba c k b ra c e fo r b a c k p ro ble ms. Dr . D y e r t e sti fi e d th a t on his J anuary 9, 1992 visit, Mr. Vaug hn was having pain in the intersca pular a rea , betwee n the shoulder blades. Dr . Dy er a lso testified t h at o n M ay 12, 1992, “[Mr. Vaug hn] had marked stiffne ss in the neck, dor sal spine, lumbar spine, and moved slowly and very deliberately . He ha d difficulty g etting on the exam table bec ause of discomfort ....” O n J une 16, 1992, Dr . Dy er noted that Mr. Vaug hn had osteophytes about the dorsa l spine, “a pr ocess whic h usually occur s as a result of arthritis.” On J une 16, 1992, Dr . Dy er g ave Mr . Vaug hn a new impairment rating of

26 perc ent impairment due to fle x ion loss, 20 perce nt ext ension loss, 36 perce nt impairment to the fing

er a s a whole. A nd actua ly , I said that I fee l he has a pproxi mately 5 perc ent per manent p h y s i cal impairme nt and loss of phy sical func tion to the body

a s a w ho le a s a

re su lt o f p e rs ist e nt p a in, re stric te d r a ng e of mot ion , a ndI

fe e l th is i s mo st l ike ly d i r e c t l y a r e s u l to f h i s [ w o rk e r s ’ c o m p e n s a t i o n ] i n j u r y.
Dr. Dy er testified that on Aug ust 18, 1992, Mr. Vaug hn told Dr. Dy er tha t when he sits down at nig ht he bec omes so stiff that he c an hard l y m o v e. Dr

. Dy er f urther te stified that he believe s that Mr. Vaug hn’s worke rs’ c omp i n j ury completely

clea red up prior to the Acc ident beca use Mr. Va

ug hn told him t hat it had completely clea red up.

Dr. Dy er also testified that when Mr. Vaug hn came to se e him on Fe bruary 5, 1997, Mr. Vaug hn g ave a

history of being involved in an automobile ac cident on De cembe r 20, 1996, and ha vin g b e e n t r e a t e d i n t h e e m e r g e n c y r o o m a n d g i v e n N ap r o s y n , D ar v o c e t , a n d m u s c l e r e l a xan ts. Dr. Dy er te stified that his recor ds of that visit state:-8-

On examination t h e p at i ent not ed to have about 90-pe rce nt rang e of motion of the

c e rv ic a l sp ine

.... X- ray s, mul tip le vie ws of the c e rv ic a l sp ine re ve a l th e patie nt t o ha ve so me de g ener ati ve d isc dis e a se in thr e e int e rv e rt e br a l di sc s, na rr ow ing in osteophy te forma tion. Myimp re s s i o n at that time was c ervic al strain, ac ute and deg ener ative disc disease of the cervica l spine. Advised the patient at this point that he should take Rela fen, 500, two a day . He is to retur n in two to three we eks.

Dr . D y e r e xpla ine d th a t de g e ne rativ e dis c dis e a se me a ns “ that th e dis c be tw e e n th e ve rt e br a l bo die s, in the neck in this situation, were deter iorating ....” Dr. Dy er te stified that a finding of deg ener ative disc disease is interchang eable with a n arthritic c ondition and that Relafen is a n arthritis medicine.

Dr . D y e r’ s te sti mon y

wa s tha t he ha s tre a te d Mr. Vaug hn fo r his ne c k in jury in e xce ss of 10 0 ti me s si nc e the Ac c ide nt. Dr . D y e r s ta te d:

[Mr. Vaug hn] would continue to have problems and he would have what we called

exacer bations and re missions . He’ d g et a littl e bit be tter and we’ d trea t him and he ’d seem to take off, a nd then he’ d have a setbac k, and this was pre tty much the history of the wa y the se thi ng s g o, wi th exa c e rb a tio ns a nd re mis sio ns , an d rare ly do pe op le g e t c omp le te ly

we ll o nc e the y ’v e ha d a n in jury lik e thi s.
Dr. Dy er f

urther sta ted:

Well, it beca me evident as t ime prog resse d, and along with the fact that the natura l history of this disease pr ocess is not for it to eve r g et bac k to the normal state, th at he wa s c on tin uin g to h a ve pr ob le ms a ndit w a s p ro ba bly g oin g to fo llo w this . So it

wa s in to the tr e a tme nt tha t w e no tic e d th a t he wa s f oll ow ing the pa th tha t we wo uld ha ve e xpe c te d, po ss ib ly not in the de g re e of the se ve ri ty

or wh a te ve r, bu t he sti ll

c on tin ue d to ha ve sig nif

ic a nt p ro ble ms w ith e xac e rb a tio ns

.

Dr. Dy er te stified that on Aug ust 21, 2003, he assig ned Mr. Va ug hn a rating of

approximately

18 perc ent per manent phy sical im p airment a nd loss of phy sical function to the body

as a w hole .... He ha s restricte d rang e of m otion of about 50 perc ent of the c ervic al spine in all rang es. He’ s noted to have ma rked atrophy

of the pa ra sp ino us mus c le s. He ha s c hr on ic pa in i n th e ne c k. ... He liv e s w ith c hr on ic pa in

on a da y -t o- da y

ba sis . I fe lt h e ha d 4 pe rc e nt pe rm a ne nt ph y sic a l imp a ir me nt a ndlos s of phy sical func tion to the body as a whole,

... which seve rely hamper s the patient in his abilit y to pe rfor m or dinary occupational a ctivities a s a tra ctor mec hanic. I fee l the pa tie nt w ill ne ed a dd iti on a l c are . I fe e l it is q uit e po ssi ble that he ma y ne e d to have sur g ery

befor e all is said and done beca use of the chronicity of t he problem and protrac ted pain.-9-

When que s ti o n e d

r eg arding possible surg ery , Dr. Dy er state d that “some pe ople nee d to have c ervic al disc excision and cervica l fusion. Howeve r, that is not without som e proble m, and most people do not have to have the surg ery .”

Dr. Dy er te stified that his r ecor d of Mr. Vaug hn’s J anuary 6, 2004 visit aga in refe rs to a pe rm a ne nt i mpa ir me nt a s a re su lt o f the ne c k in

jury . D r. Dy e r the n te sti fi e d:

I t was 18 to 20 perc ent to the body as a whole as it re lated to the ce rvica l spine, and I did not add that 4 per cent pe rmane nt phy sical impairment loss of phy sical func tion
to the bo dy

a s a wh ole a s it

re la te d to c la ss I

pa in, wh ic h s ho uldbe a dd e d to that.

Dr . D y e r a lso te sti fi e d that the tot a l pe rm a ne nt imp a ir me nt tha t Mr . V a ug hn ha s a s a re su lt o f this

acc ident should be 29 perc ent, 25 per cent plus 4 for the pain and opine d that this is a perm an ent rating . Dr. Dy er e x plained that the pe rce ntag e of impairme nt he has a ssign ed t o Mr. Vaug hn has dif fe re d o ve r t ime be c a us e “ [h]is i mpa ir me nt i s as a re su lt o f e xac e rb a tio n o f the se pr ob le ms w ith tim e a ndwi th a c tiv ity .” Dr . D y e r t e sti fi e d:

Wel l, [Mr

. Vaug hn ] h a s be e n u na ble to p e rf

or m hi s o rd ina

ry oc c up a tio na l a c tiv iti e s. His abilityto - - the spe ed w i t h whi ch he c an per form ce rtain ac tiviti es has be en de c re a se d. Th e tot a l vo lum e of wo rk that he c a n a c c omp lis h h a s bee n ma rk e dly decr ease d, acc ording to what he ha s to say , as a r esult of the pain a nd discomfort that he has, a s well as the stiffne ss. So he’s rea lly been sig nificantly

impaired.

Dr. Dy er a dmitted:

I have only to acc ept the his tory that [Mr. Vaug hn] g ives me, and I have to a ct on that his tory . I ha ve no re a so n to qu e sti on the accur acy of the his tory , a ndwi th tha t in mind, I had no re ason to disbelieve that the mecha nism of his injury was a ny other than what I

testified.

When asked if it is important for a patient to give an acc urate history , Dr. Dy er state d: “I t’s important that he g ive me a history , which I have to a cce pt as being acc urate .” Dr. Dy er testified that as fa r as he knew , Mr. Vaug hn was ha ving no pr oblems perf orm ing his wor

k-re lated func tions prior to the second a ccide nt. Howeve r, Dr. D y er te stified that Mr. Vaug hn’s injuries rec eived in the Ac cident “dec rea sed his ability ” to work be cause “[h] e wa s limi ted by pain.”

Mr. Vaughn admitted that he went to the C hattanoog a Outpatient Center on F ebrua ry 27, 1991, prior to the Ac cident. At the Chattanoog a Outpatient Center, Mr. Vaug hn filled out and signe d some pape rwork inc luding one sheet upon which he handwr ote: “Chief complaint, back a nd neck pa in running out in left shoulder.” H oweve r, Mr. Va u g hn testified at trial that, de spite what he had w ritten at the time, the pa in he was e x perie ncing at that time was re ally not in his neck. Mr. Vaug hn stated: “I

could have made a n err or.” In addition, Dr. Dy er’ s rec ords show that Mr. Vaug hn visited Dr. Dy er ’s o ff

i ce on May

12, 1992, for tre atment, but Mr. Vaug hn denied this visit. Dr.-10-

Dy er’ s rec ords of the Ma y 12, 1992 visit st ated that Mr. V aug hn complained of neck pa i n

. Mr. Vaug hn testified that he doesn’t reme mber anything about neck pain and that he ca nnot remembe r

a n yt h i n g ab o u tt h a td a y.

After trial, the jury

rea ched its ver dict and the Trial Court enter ed judgme nt on October 13, 2004, on the verdic t. The jury found John Doe 100% at fault for the ac cident, but found that Mr. Vaug hn rec eived no pe rsonal injuries in this acc ident. T h e j u ry awa rded Plaintiffs zero da ma g e s f

or pe rs on a l inju ri e s and zer o da ma g e s for los s o f c on so rt ium . T he Tr ia l Co urt ta xed c os ts ag ainst J ohn Doe up to September 16, 2003, the date John Doe filed his Off er o f J u d gm ent. The

rema ining c osts were taxed ag ainst Plainti ffs.

Pla int if fs fi le d a Mo tio n f or Sug g e sti on of Ad ditur or in the Al te rn a tiv e Ne w T ri a l, which the Trial Court denied by order enter ed Nove mber 16, 2004. I n the Novembe r 16, 2004 orde r, the Trial Court spec ifically found “tha t the jury ’s ver dict in the above- sty led ac tion was within the rang e of r easona

bleness and w as supported by the evidenc e adduc ed at tria l ....”

On No ve mbe r 4 , 2 00 4, Ms. Cun nin g ha m f ile d a motio n for dis c re tio na ry c os ts. Ms. Cunningha m ha d made an offe r of judgme nt on October 16, 2003. By order enter ed De cembe r 2, 2004, the Trial Court orde red Plaintiffs to pay Ms. Cunningham’s discr etionary costs “in the amuont of $565.15, this amount repres enti ng those costs incurr ed by Ms. Cunningham a fter she made a n offe r of judg ment on October 16, 2003 ....”

J ohn Doe f

iled a motion for discre tionary costs on Dec ember 1 0
, 2 0 0 4

. By order

e nte re d Jan ua

ry 4, 20 05
, the Tr ia l Co urt or de re d Pl a int if fs to p a y John Do e ’s dis c re tio na

ry c os ts “ in the amount of $666.91, the s ame being costs incurre d subsequent to J ohn Doe’ s Offe r of J udg ment wh ic h w a s ma de on Se pte mbe r 1 6, 20 03

.... ” Pla int if fs app e a l to thi s Co urt.

Discussion

Although not stated exactly as such, Plaintiffs raise five i ssues on appea l: 1) whether there was mate rial evide nce to support the jury ’s award of zer o damag es to Plaintiffs; 2) whether the Trial Court er

red in fa iling to g rant a n additur, or in the alternative, a new trial; 3) whe ther the Trial Court erre d in ordering Plaintiffs to pay court c osts accr

ued af ter September 16, 2003; 4) whethe r the Trial Court er

red in orde ring Plaintiffs to pay Ms. Cunningham’s d i s cr etionary costs; and, 5) whether the Trial Court er

red in orde ring Plaintiffs to pay J ohn Doe’ s discretionary costs.

“F indings of f

act by a jury in civil actions shall be se t aside only if there is no material evidenc e to support the ver dict.” Te nn. R. App. P. 13(d). As our Supreme Court has explained:

I t is the tim e honore d rule in this Sta t e that in reviewing a judg ment based upon a jury verdic t the appellate courts are not at l iberty to weig h the evidence or to decide wher e the pr epo n dera nce lies, but a re limited to determining whether there is material-11-

evidenc e to support the ver dict; and in deter mining whet h er there is material

e vid e nc e to s up po rt

the ve rd ic t, the app e lla te c ou rt is re qu ir e d to take the str on g e st le g iti ma te vie w o f a ll the e vid e nc e in f a vo r o f the ve rd ic t, t o a ssu me the truth of a ll that tends to support it, allowing a ll reasona ble infer ence s to sustain the ve rdict, and to discard a ll to the contrary . Having th u s ex am i n ed the r ecor d, if there be any materia l e vidence to support the verdic t, it must be aff irmed; if it were otherwise, the parties would be deprive d of their c onstitut ional rig ht to trial by jury

. Crabtree Masonry Co., Inc . v. C & R Constr., Inc. , 575 S.W .2d 4, 5 (Tenn. 1978)

.

We first addre ss whether there was mate rial evide nce to support the jury ’s awa rd of $ 0 d am age s t o P l ai n t i ff s

. P l ai n t i ff s ci t e s ev er al ca s es i n cl u d i n g De nt v . H olt and Lofti s v. Finch in which ver dicts were overturne d beca use there was no m at er i al evidence to support them. Dent v. Ho lt , No. 01-A- 01-9302-CV-00072, 1994 T enn. App. L EXI S 465 ( Tenn. Ct. App. A ug . 17, 1994) (vac ating the damag e aw ard w here the jury ignor ed proof of future medical e x penses a nd pain and suffe ring ), no appl. perm. appeal filed ; Lofti s v. Finch
, 4 9 1 S .W.2d 370 (Tenn. Ct. App. 1972) (re versing the ver dict as to the amount of damag es t hat were less than t he proven ac tual damag es). Plain t i ff s al s o ar gu e, in part, that the prese nt case is very simil ar to Tay lor

v . S mi th , in wh ic h th is Court v a c a te d th e ju d g me n t o f th e tria l c o u r t a f te r “ [f ]i n d in g n o mate r ia l e v id e n c e to suppor t an

awa rd less than the ‘ hard- core ’ medica l bills ....” Tay lor v . S mi th , No. E2002-01158- COA-R3-CV, 2003 Tenn. App. L

EXI S 450, at *10 (Tenn. Ct. App. June 24, 2003), no appl. perm. appeal filed

. There are some fac tual simil arities betwe en Taylor and the c ase at hand in that both case s involve automobile ac cidents that occ urre d while at lea st one party was stopped a t a re d light. Howe ver, while there was no materia l e vidence to support the verdic t in Dent
, Lof tis , or Taylor , we f

ind there is material evide nce to support the ve rdict in this case.

Th e e vid e nc e sh ow s th a t Ms . Cu nn ing ha m, w ho a lso wa s in vo lve d in the Ac c ide nt,

su ff e re d n o inju ri e s as a re su lt of the Ac c ide nt. Th e e vid e nc e fu rthe r sho ws that the da ma g e to M s. Cunningha m’s car

consisted of a

broken $4 blinker

light cover and a scra tch or streak of white paint

on he r c ar’ s r e ar b ump e r. B oth Ms. Cun nin g ha m a ndMr . B la c k, wh o w itn e sse d th e a c c ide nt, testified that it was not a ba d acc ident. Offic er Short testified that no injuries wer e re ported a t the

scene and none of t he vehicles involved nee ded to be towe d. The e vidence shows that Mr. Vaug hn’s
tr u c k w a s p u s h e d f

o r w ar d o n i m p a c t , b u tw a s n o tp u s h e d f ar e n o u g h f o r w ar d t o t o u c h t h e v e hic le in front of him. Mr. Vaug hn admitted that the bumper of his truc k was bent down as a r esult of the imp a c t be tw e e n h is t

ru c k a ndMs. Cun nin g ha m’ s veh icl e a ndte sti fi e d th a t he simply we nt t o h is shop, put a jack unde r the bumper, and ra ised it up. He testified that he does not know how much it cost to repair his truc k beca use he ne ver sa w a bill, and no bill ever was produc ed at tria l.

Th e jury he ardMr . V a ug hn a dmi t th a t he ha d n e ve r c omp le te ly re c ov e re d f

ro m hi s worke rs’ comp injury

and still was taking medication for that injury . I n addition, Mrs. Vaug hn admitted that afte r the wor kers’ comp injury , her husba nd “didn’t work all the t ime, but he was the re

every day .” Mr. Va

ug hn testified that cur

rently , “ther e is day s that I can go in and I can do f air. And
t h en t h er e is d ay s I go i n , I ca n ’t d o n ea r as m u ch

. An d t h er e is d ay s t h at I go i n I d o n ’t d o an y t h i n g.-12-

I sit around,” whic h is not very differ ent from what Mrs. Vaug hn testified to reg arding her husba nd’s ability to work af

ter the worke rs’ comp injury but before the Acc ident. Mr. Vaug hn admitted that he ha d two e mpl oy e e s who qu it some tim e a ft e r the Ac c ide nt, that he wa s una ble to re pla c e tho se

e mpl oy e e s, a ndthat hi s sh op wa s n ot m a kin g a s mu c h mo ne y wi tho ut e mpl oy e e s.

The e vidence s h o ws t h at Mr. Vaug hn was not treated in the emer g ency room afte r the Acc ident and did not see a doctor for

his complaints until 46 day s after the Acc ident. Howeve r, Dr. Dy er t estified that whe n Mr. Vaug hn came to see him on Fe bruary 5, 1997, Mr. Vaug hn g ave a history of being involved in an automobile ac cident on Decembe r 20, 1996, and ha ving be en trea ted in the emer g ency

room and given Naprosy n, Dar vocet, a nd muscle re laxants. This history g iven by Mr. Vaug hn to Dr. Dy er w as not true a s M r. Vaug hn neither ha d been tr eate d in the

emer g ency

room nor pre scribed those medications, a f act made clea

r to the jury

. Dr. Dy er t estified that five y ear s prior to the Ac cident, he a ssigne d Mr. Vaug hn an imp air ment ratin g of

“ 25 pe rc e nt permane nt

ph y sic a l im

pa ir me nt a ndlos s o f p hy sic a l f un c tio n to the b o d y a s a w h o le

. ” ( e mp h a s is a d d e d )

. D r

. D y e r te s ti f ie d th a t h e a s s ig n e d M r

. V a u g h n a 29 pe rc e nt i mpa ir me nt r a tin g , 2 5 p e rc e nt p lus 4 f or the pa in, a s a

re su lt o f the Ac c ide nt. Dr . D y e r a lso testified that Mr. Vaug hn beg an wea ring a back br ace for ba ck proble ms prior to the Acc ident. The evidenc e further shows that on Aug ust 18, 1992, long be fore the Acc ident, Mr. Vaug hn told Dr. Dy er that when he sits down at night he be comes so stiff that he can ha rdly move.
Dr. Dy er a dmitted that he could only “ac cept the history that [Mr. Vaug hn] gives me,

a ndI ha ve to a c t on that his tor y

. I ha ve no re a so n to qu e sti on the a c c ur a c y of the his tory , a ndwi th that in mind, Ihad no reason to disbelieve that the m echa nism of hi s injury was any other than what I testified.” I n addition, Dr. Dy er te stified that “[t] he total volume of work that [Mr. Vaug hn] can

acc omplish has been mar

kedly decr ease d, according to what he has to say
, as a result of the pa in and discomf o r t th a t h e h a s , a s w e ll a s th e s ti f f n e s s

. So h e ’ s r e a ll y

b e e n s ig n if

ic a n tl y impaire d.” (e mph a sis a dd e d) . D r. Dy e r t e sti fi e d th a t a s f ar a s he kn e w, Mr

. Vaug hn wa s no t ha vin g pr ob le ms perf orming his work-r elated functions afte r t he Accident but prior to the sec ond acc ident. Dr. Dy er further testified that he be lieves that Mr. Vaug hn’s worke rs’ c o m p i n j ury completely

clea red up befor e the Ac cident bec ause Mr . Vaug hn told him t hat it had completely clea red up.

Mr. Vaug hn also admitted that he we nt to the Chattanoog a Outpatient Center on Fe bruary 27, 1991, ag ain long befor e the Ac cident, and f illed out paperw ork stating : “Chief complaint, back a nd neck pai n ru n ning out in lef t shoulder.” How ever , Mr. Vaug hn testified that the pain he was experiencing at t hat t ime was not really in his neck and state d: “I could have made

an err or.” I n addition, D r. Dy er’ s rec ords show that Mr. Vaug hn visited Dr. Dy er’ s office on May 12, 1992, for tre atment, but Mr. Vaug hn denied this visit. Dr. Dy er’ s rec ords of the Ma y 12, 1992 visit st ated that Mr. V aug hn complained of neck pa in. Mr. Vaug hn testified that he doesn’ t

r e m e m b e r

a n yt h i n g ab o u tn e c k

p a i n a n d t h a th e c a n n o tr e m e m b e r a n yt h i n g ab o u tt h a td a y.
The jury was fr ee to f

ind, and clea

rly they did, t h at M r Va u gh n had suff ere d no damag es as a

result of the A ccide nt. Wi tness cre di bilitydeter mination is t he re sponsibili ty of the-13-

j u r y, a n d t h i s C o u r t w i l l n o t s u b s t i t u t e i t s j u d g m e n tf o r t h a to f t h e j u r y a s t o w i t n e s s e s ’ c r e d i b i l i t y. B a se d u po n a ll the e vid e nc e pr e se nte d to the jury , th e jury ma de its de te rm inatio n th a t Pla int if fs ’ testimonywas not cr edible.

Ta kin g the str on g e st le g iti ma te vie w of a ll the e vid e nc e in fa vo r of th e ve rd ic t, assuming the truth of all that tends to support it, allowing a ll rea s o n ab l e i n fe rences to sustain the

ve rd ic t, a nddis c ard ing a ll t o th e c on tr ary , a s w e mus t, w e fi ndthat th e re wa s mate ri a l e vid e nc e to support an aw ard of

zero damag es. We, there fore , aff irm on this is sue.

We n ex t con side r w he the r the Tr ia l Co urt e rr e d in fa ili ng to g ra nt a n a dd itu r, or in the alter native, a ne w trial. Acting as the thirtee nth juror, a tria l court is empower ed to set aside a jury ve rd ic t a ndor de r a

ne w t ri a l. I f a tr ial cou rt det erm ines that th e a mou nt o f the ve rd ic t is

e xce ssi ve or

ina de qu a te , it

ma y su g g e st a remitt itu r o r a n a dd itu r i n li e u o f g ra nti ng a ne w t ri a l. Ove rstreet v. Shoney’s, I

nc. , 4 S.W .3d 694, 718 (Tenn. Ct. App. 1999). This proce dure a voids the expense and de lay

of conduc ting a

new tria l. Id . H e re , th e Tr ia l Co urt app ro ve d th e jury ve rd ic t.

Ho we ve r, wh e n a

tr ia l c ou rt

app ro ve s a jury

ve rd ic t, a pp e lla te courts m ay o n l y

revie w the re cord to de termine whe ther it contains materia l e vidence to support the jury ’s ver dict. See Te nn . R. A pp . P. 13(d); Rey nolds v. Ozark Motor Lines, Inc

. , 887 S.W .2d 822, 823 (T e nn . 1 99 4) ; W

hitaker v. H

armon , 87 9 S.W. 2d 86 5, 86 7 ( Te nn . Ct

. App. 1994). Appe llate courts do not reweigh t he evide nce a nd consider w here the pre pondera nce lies. Instead, they deter mine wh e the r the re is a ny

ma te ri a l evi de nc e to sup po rt the ve rd ic t, an d, if there is, they

must affirm the judg ment. See R eynolds v. Ozark Motor Lines, Inc., 887 S.W .2d at 823; Pullen v. Tex tron, Inc. , 845 S.W .2d 777, 780 (Tenn. Ct. App. 1992).

The jury bear s pri m ar y responsibilityfor a war ding da mag es in a pe rs on a l inj ury a c tio n, fo llo we d c los e ly by the tr ia l c ou rt in its role a s thirteenth juror. Se e Cof fey v

. Fa y e tte Tub ula r P ro du c ts , 929 S.W .2d 326, 328 (Tenn. 1996) ; Sholodge Franchise Sy s., Inc. v

. McKibbon Bros., Inc. , 919 S.W .2d at 41..(sic) When a trial court approve s a ver dict awa

rding damag es in a personal i njury action, our

re vie w i s su bject to the r

ule that if the re is a ny

ma te ri a l e vid e nc e to support the jury ’s awa

rd, it should not be disturbed. See H unter v. Burke , 958 S.W .2d 751, 757 (Tenn. Ct. App. 1997).

Ove rstreet , 4 S.W .3d at 718.

I n its November 16, 2004 or der, the Trial Court appr oved the jury ’s ver dict and specific ally

found “that t h e j u ry ’s verdict in the above- sty led ac tion was within the rang e of

rea sonablene ss and was supported by the evidenc e adduc ed at tria l ....” As fully discussed above
,-14-

there is material evidenc e to support the jury ’s verdic t and awa rd. Ther efor e, we will not dis turb the verdic t and find no er

ror in the Trial Court’s ref usal to g rant a n additur or a new tria l.

We next co n s i d er wh ether the Trial Court er

red in orde ring Plaintiffs to pay court costs acc rued a fter Septe mber 16, 2003. Rule 68 of the T en n es s ee Rules of Civil Procedur e pr ov ide s, in p e rt ine nt p art :

At a n y t i m e m o r e t h a n 1 0 d a y s b e f o r e t h e t r i a l b e g i n s , a p ar t y d e f e n d i ng a g a ins t a claim may

serve upon the adve rse pa rty an off er to a llow judgment to be ta k en ag ainst the defe nding party for the money or property , or to the ef fec t specified in the offe r, with costs then accrue d....I f t he judg ment finally obtained by

the offe ree is not more fa vorable than the offer, the offe ree shall pay all costs acc ruing afte r the making of the off er....

Tenn. R. Civ. P. 68.

J ohn Doe filed an Offer

of Judgment on September 16, 2003. The judg ment obtained by Pla int if fs of zer o d a ma g e s is no t mor e fa vo ra ble tha n John Do e ’s of

fe r. As su c h, un de r T e nn . R. Civ . P. 68 , Pl a int if

fs “ sh a ll p a y

a ll c os ts a c c ru ing a ft e r the makin g of the of fe r. ...” Te nn . R. Civ . P. 68.

Plaintiffs arg ue, in part, that the awa rd of court costs was inappropria te bec ause the jury ’s ver dict of zero dama g es wa s “totally inadequa te and a g ainst the g reat weig ht of the evide nce ...” and tha t the awa

rd should have be en more favor able than the offe r of judg ment. As we ha ve alre ady held t hat t here was material evidence to support the j ury ’s verdict and have fully aff irmed the jury ’s ver dict, we will not belabor this point . We affir m the Trial Court’s orde r re quiring Plaintiffs to pay

court c osts accr

ued af ter Septembe r 16, 2003.

We n e xt co ns ide r w he the r the Tr ia l Co urt erred in or de ri ng Pla int if fs to p a y Ms. Cun nin g ha m’ s disc re tio na ry c os ts. I n p e rt ine nt p art , Ru le 54 .0 4 o f the Te nn e sse e Rul e s o f C ivi l Pr oc e du re pr ov ide s:

54.04. Cos ts. – (1) Costs included in the bill of costs prepa red by cler k shall be allowed to the pr evailing party unless the court otherwise dire cts, ... (2 ) C os ts n ot inc lud e d in the bil l of c os ts pr e pa re d by the c le rk are a llo wa ble only in the court’s discr etion. Discre tionary costs allowable a

re: rea s o n ab le and

nece ssary court re porter e x penses for depositions or trials, rea sonable a nd nece ssary expert witness fee s for depositions or trials, rea sonable a nd nece ssary interpre ter fe es fo r d e po sit ion s o r tr ia ls, a nd g ua rd ia n ad lit e m fe e s; tra ve l e xpe ns e s a re no t a llo wa

ble dis c re tio na

ry c os ts. Sub

je c t to Rul e 41 .0 4, a

pa rt y re qu e s t i n g d i sc re tio na

ry c os ts s ha ll file and se rve a

motion withi n thirty

(30) da y s after

entry of judg ment....-15-

Tenn. R. Civ. P. 54.04. Thus, we review a Trial C ourt’s decision to awa rd di scre tionary costs for abuse of discretion. E.g., Massachusetts Mut. Life I ns. Co. v. Jefferson , 1 04 S.W. 3d13 , 3 2 ( Te nn .Ct

. App. 2002).

Our Supreme Court discussed the abuse of di scre tion standard in Eldridge v. Eldridge
, s t at i n g:

Un de r the abu se of

dis c re tio n s ta nd ard , a

tr ia l c ou rt ’s ru lin g “ wi ll b e up he ld so long a s rea sonable minds can disag ree as to [the] pr opriety of the de cision made.” A trial court abuses it s discretion only when it “a

pplie[s] an incor

rec t leg al standar d,

or re ache [s] a dec ision which is ag ainst logic or re asoning that cause [s] an injustice to the party co m p l ai n i ng .” The abuse of discretion standa

rd does not permit the

app e lla te c ou rt

to s ub sti tut e its jud g me nt f or that of the tr ia l c ou rt

. Eldridge v. Eldridge , 42 S.W .3d 82, 85 (Tenn. 2001) (citations omitted).

Ap pe lla te c ou rt s o rd ina

ri ly pe rm it d isc re tio na

ry de c isi on s to sta nd wh e n r e a so na ble judicial minds can differ conce rning their soundness. Ove rstreet , 4 S.W .3d at 709. A trial c ourt’s discretionary

decision must ta

ke into a ccount applicable law and be c onsistent with the facts bef ore the court. Id . Wh e n r e vie wi ng a dis c re tio na

ry de c isi on by

the tr ia l c ou rt , th e “ app e lla te c ou rt s should beg in with the presumption that the dec ision is correc t and should review the evidenc e in the light most favor able to the de cision.” Id

.

Plaintiffs arg ue, in part, that the y wer e the pr evailing party beca use Mr. Vaug hn was found to be 0% at fault for the Acc ident and, as such, it wa s improper for the T rial Court to awa rd discretionary

costs ag ainst them. Howeve r, Ms. Cunning ham also was found to be 0% at fa ult for the Acc ident. As such, Ms. Cunningha m succe ssfully defe nded the suit ag ainst her a nd preva iled ag ainst Plaintiffs. Ms. Cunning ham was certainly a preva iling party and was entitled to discretionary costs. We find no abuse in the Trial C o u rt ’s aw ar d o rdering Plaintiffs to pay Ms. Cunningham’s dis c re tio na

ry c os ts.

Finally , we c onsider whe ther the Trial Court err ed in ordering Plainti ffs to pay J ohn Doe’ s discretionary

costs. I n pertinent pa

rt, Rule 54.04 of the Te nnessee Rules of Civil procedure provides that “ a

party reque sting discretionary costs shall file and serve a motion withi n thirty (30) day s after entry

of judg ment....” Te nn. R. Civ. P . 54.04. The phra se ‘e ntry of judg ment’ is define d in T e nn . R. Civ . P. 58 a s:

Entry of a judg ment or an or der of final disp o sition i s eff

ective w hen a judgme nt containing one of the following is marked on the f ace by the cler k as filed f o r e n t r y: (1) the sig nature s of the judg e and a ll parties or c ounsel, or-16- (2) the sig nature s of the judg e and one party or counse l with a certificate of counsel that a

copy of the propose d order

has bee n serve d on all other pa rties

or counse l, or (3) the sig nature of the judg e an d a ce rt i fi cate of the c lerk that a copy has be e n s e rv e d o n a ll o the r p art ie s o r c ou ns e l.

When reque sted by

counsel or pr o se parties, the cler k shall mail or deliver a

copy of
t h e e n t e r e d j u d g m e n tt o a l l p ar t i e s o r c o u n s e l w i t h i n f

i v e d a ys a f

t e r e n t r y; notwithstanding a ny

rule of civil or appellate proc edure to the contra ry , time periods for post-tria l motions or a notice of appea l sha ll not beg in to r un until the date of such reque sted mailing or

delivery

....

Tenn. R. Civ. P. 58.

The judg ment on the jury ’s ver dict was mar ked on the f

ace by the cler k as filed f

or entry and contained t he si g nature of the trial judg e and a certificate of

the cler k that a copy

had bee n

serve d upon all parties or counsel on October 13, 2004. J ohn Doe filed a motion for discre tionary costs on Dec ember

10, 2004, well outside the thirty day period a fter the entry

of judg ment.

We acknowle dg e that some c ase la w exist s sugg esting that the filing of a motion for

a new trial tolls the time f or the filing of a motion for discretionary costs. See The A lison Group, Inc. v . Ericson , No. W2003-02973-COA-R3-CV, 2005 Te nn. App. LEXI S 327, at *13 n.6 (Tenn. Ct. App. J une 3, 2005) (finding that a motion for discretionary costs filed prior to “ a fina l order on Appellants’ [motion for new trial]” wa s timelyfiled.), appl. perm. appeal d en i ed Oct. 24, 2005 ; Du lin v . D uli n , N o. W20 01 -0 29 69 -C OA -R 3-C V, 20 03 Te nn . A pp . L EX I S 62 8, a t *2 1 ( Te nn . Ct

. App. Sept. 3, 2003) (stating : “ Thus, in a ccor dance with our decision in As hfo rd
, we find Mother’s motion [ for discr etionary costs] was timelyfiled.”)
, no appl. perm. appeal filed ; As hford v. Be nja mi n , No. 02A01-9311- CV-00243, 1994 Tenn. A pp. L EXI S 706, at *4- 5 (Tenn. Ct. App. De c. 6, 1994) (stating : “Once a motion for new t ri al i s fi led, the judg ment is suspended and pr evente d from bec oming f

inal pending dispositi on of the motion. The trial court’s jurisdiction i s prese rved. ... As Ashford’ s motion t o assess costs wa s filed within thirty(30) da y s after [ent ry of the orde r deny ing a new trial], we hold it t imely pursuant to Rule 54.04(2) T.R.C.P.” (c itations omi tted)), no appl. perm. appeal filed

.

Wit h all due respe ct, we disag ree with the se case s beca use Rule 54.04 clea

rly states t h at a m o tion for discre tionary costs shall be filed “ within thirty(30) da y s after e n tr y of judgme nt....” Tenn. R. Civ. P. 54.04 (e mphasis a dded). Rule 58 clea rly provides the def

inition of wh a t c on sti tut e s “ e ntry

of jud g me nt, ” a ndthe jud g me nt i n th is c a se wa s e nte re d in a c c or da nc e wi th that rule on Oc tober 13, 2004.

As J ohn Doe did not file his motion for discre tionary costs within thirty day s of entry of the judg ment, we hold it was e rror to awar d J ohn Doe discretionary costs. We vaca te that portion of the Tr ial Court’s order awa rding J ohn Doe discr etionary costs.-17- Conclusion

Th e jud g me nt o f the Tr ia l Co urt is a ff ir me d, a s mo dif

ie d b y va c a tin g the a wa

rdto J ohn Doe of

discretionary

costs, and this cause is remande d to the Trial C ourt for collection of the
costs below. Exercising our discre tion, the costs on appea l are assessed one -half a g ainst the Appellants, Ke nny

Vaug hn and wife , Ba

rbar a Vaug hn, and their sur ety , and one- half a g ainst the Appellee , J ohn Doe.

___________________________________ D. MI CHAEL

SW I NEY, JUDGE