IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 14, 2005 Session

KENNY VAUGHN, ET AL. v. NOTIE L. CUNNINGHAM, ET AL.

Appeal from the Circuit Court for Hamilton County

No. 97C2650 Samuel H. Payne, Judge

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

Kenny Vaughn and Barbara Vaughn (“Plaintiffs” or “Mr. Vaughn” and “Mrs. Vaughn” as

appropriate) sued Notie L. Cunningham and John Doe concerning an automobile accident that

occurred in Hamilton County. The case was tried before a jury and the Trial Court entered judgment

on the jury’s verdict. The jury found John Doe 100% at fault for the accident, but awarded Plaintiffs

no damages. Plaintiffs appeal to this Court claiming that the jury verdict is contrary to the evidence

because the amount of damages is not within the range of reasonableness, and that the Trial Court

erred by not granting a new trial and by awarding court costs against Plaintiffs. We affirm as

modified. 

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

Affirmed as Modified; Case Remanded

D.MICHAEL SWINEY,J., delivered the opinion of the court, in which HERSCHEL P.FRANKS,P.J., and

SHARON G. LEE, J., joined.

J. Taylor Walker and Thomas H. O’Neal, Chattanooga, Tennessee for the Appeallants, Kenny

Vaughn and wife, Barbara Vaughn.

Angela Cirina Kopet and Christine M. Vanasse, Chattanooga, Tennessee for the Appellee, Notie L.

Cunningham.

Scott M. Shaw, Chattanooga, Tennessee for the Appellee, John Doe.
-2-

OPINION

Background

Due to the nature of the issues raised on appeal, we discuss the facts of this case in

some detail. The accident (“the Accident”) occurred on December 20, 1996, on Rossville Boulevard

in Hamilton County. Plaintiffs filed suit in December of 1997, and the case was tried before a jury

in October of 2004.

Mr. Vaughn testified at trial about the Accident. He testified that he was sitting at

a red light on Rossville Boulevard behind several other vehicles with his foot on the brake when “I

heard tires squealing where - - you know, where they locked up their brakes, what I figured.... Well,

I was hit before I could do anything. I didn’t - - you know, I didn’t have time to really do anything.”

Mr. Vaughn testified that the 1994 Ford F-250 truck he was driving was knocked six or seven feet

forward and stated: “Well, I was sitting right up again the one that was in front of me. I thought I

was going to slap it, too, but I didn’t.” Mr. Vaughn testified that he sat in his vehicle for a few

seconds before getting out, and then the light changed and the vehicles ahead of him pulled away.

He testified that Ms. Cunningham, whose car had hit him, came up to him and asked where the white

car went.

Ms. Cunningham also testified about the Accident. Ms. Cunningham testified she

was driving a 1989 Pontiac LeMans hatch-back and that she came to a complete stop at the red light

behind Mr. Vaughn’s vehicle. She testified that there was approximately three or four feet between

her vehicle and Mr. Vaughn’s truck after they both stopped at the red light prior to the Accident. Ms.

Cunningham testified she heard a car, looked in her rear-view mirror, and saw a white car. She

testified that the white car hit her and pushed her car forward into Mr. Vaughn’s vehicle. She

described the impact as “[j]ust enough to push me into the back [of Mr. Vaughn’s truck].” Ms.

Cunningham testified that she had a Coke next to her and that after impact, she reached to turn the

Coke upright, and then turned her vehicle off and got out. Ms. Cunningham testified that after she

got out of her car, she looked for the white car, but did not see it. She testified that she approached

Mr. Vaughn who by then was out of his vehicle and asked him where the white car went. 

Ms. Cunningham testified that she was not injured in the accident. She testified that

the cover over the blinker light on the driver’s side of her car was broken, but there was no damage

to the front of her bumper. She testified she looked and saw a “streak of white paint on the back

bumper ...” of her vehicle that had not been there prior to the Accident. Ms. Cunningham testified

that she repaired the damage to her car by purchasing a blinker light cover at a junk yard for

approximately $4. She described the damage to Mr. Vaughn’s vehicle stating the “bumper was

completely turned under.” She also testified that “it wasn’t a bad accident.” 

Officer Michael T. Short, who was employed bytheChattanooga Police Department,

investigated the accident. Officer Short testified that no injuries were reported at the scene of the
-3-

Accident and that and none of the vehicles involved needed to be towed. Officer Short further

testified that he saw a white mark on the rear bumper of Ms. Cunningham’s car. 

Marcus Wayne Black witnessed the Accident and testified. Mr. Black testified that

he was moving furniture for his employer and was outside in front of a building and was facing

Rossville Boulevard when the Accident occurred. He testified: 

I heard tires screeching and looked up and there was two vehicles stopped at the red

light and a third slid into the rear vehicle. And then he backed up to the right and

made a right at the red light and proceeded on. He neverstopped after he hit the car.

Mr. Black testified that the white car “hit pretty hard. He busted hisradiator and there was antifreeze

pouring out of it when he backed up and left.” Mr. Black testified that there was a couple of feet

distance between Ms. Cunningham’s car and Mr. Vaughn’s truck as they were stopped at the light

before the accident. When asked about the weather conditions at the time of the Accident, Mr. Black

stated: “I believe the sun was shining. I don’t believe it had been raining. I believe it was a cool day,

but pretty nice. It was in December.” When asked why he did not go to the assistance of anyone

involved in the Accident, Mr. Black stated: “I didn’t figure there was nobody seriously injured. I

mean, it wasn’t that bad of a wreck.” 

Mr. Vaughn testified that he did not feel hurt at the Accident site and that later that

day, he left for a previously scheduled hunting trip. He testified that his neck started getting sore

several hours after the Accident. Mr. Vaughn testified that he did not get to hunt that weekend

because he was too sore. He testified that the next week “I was sore. Real sore.” He stated: “I

figured it was just soreness, you know. I figured it would probably take care of itself, go away, but

it kept getting worse and worse.” Mr. Vaughn testified that over the course of a week and a half or

two weeks, the pain kept getting worse, so he called Dr. Dyer, an orthopedic surgeon, and got an

appointment. Mr. Vaughn testified that he had to wait a couple of weeks to see Dr. Dyer. Mr.

Vaughn saw Dr. Dyer on February 5, 1997, 46 days after the Accident. 

Mr. Vaughn, who was 58 years old at the time of trial, testified that he owns Vaughn

Equipment and that he repairs all types ofmid-size equipment including such things as farm tractors,

dozers, and backhoes. When asked to describe his work, Mr. Vaughn stated: “Well, you pretty much

have to be almost like an acrobat, you know. You have got to get to every point of the machine to

work on it, take bolts out and put them back and repair whatever is wrong with them when it’s

apart.” Mr. Vaughn opened Vaughn Equipment in 1991 or 1992, after he quit his job at Swope

Equipment due to a lower back problem that Mr. Vaughn testified made him unable to do the work

at Swope Equipment.

Mr. Vaughn testified that he hurt his back in 1989 in a work-related injury (“workers’

comp injury”). Mr. Vaughn admitted that he never completely recovered from the workers’ comp

injury and that he still was taking medication for it, but stated he was not missing work because of

that injury. He testified that the last time he saw a doctor for the workers’ comp injury was
-4-

approximately one year before the Accident. He further testified that the workers’ comp injury

involved “hurting right in under my shoulder blade and in my mid back, but not nothing any higher.”

In this suit, Mr. Vaughn claims damages for injury to his neck.

Mr. Vaughn testified that he has seen Dr. Dyer almost every month since the

Accident. He stated that Dr. Dyer “give me some different medicine, for one thing, and then - - ... -

- he started doing some shots and other stuff that - - and it didn’t help. He prescribed me a harness

for my head that I use. And sometimes it helps and sometimes it don’t.” Mr. Vaughn explained that

the harness is a traction unit that he wears for an hour, or an hour and a half at a time while sitting

at home. Mr. Vaughn also testified that he does some exercises at home for 30 or 40 minutes every

evening. Mr. Vaughn testified that Dr. Dyer also prescribed physical therapy. However, Mr.

Vaughn testified that he only went to physical therapy two or three times because his neck would get

too sore from the therapy. Mr. Vaughn further testified that he had two epidural shots “in the joints

in your neck.” He testified that the epidural shots helped for two or three days and then would stop

working or wear off. 

Regarding his work, Mr. Vaughn testified: “Well, there is days that I can go in and

I can do fair. And then there is days I go in, I can’t do near as much. And there is days that I go in

I don’t do anything. I sit around.” He stated: 

Well, anything that you lift that’s, say, 30, 40 pound or more, it puts strain on it and

it makes it get sore. And, of course, that’s probably the reason some days I’m a lot

worse than others, because it aggravates it....Well, you take if you have got a wrench

that you have got to break a bolt loose, you are putting so much strain on it like, of

course, it aggravates it. And there is a lot of days that, if I’m doing a job, I have to

take pain pills and go on and get it done.

Mr. Vaughn testified that when his neck bothers him at work, all he can do is take pain medication.

Mr. Vaughn testified that before the Accident, he was taking home approximately

$500 per week and stated: “Well, if you want to be honest about it, I lose a lot more than that,

because I was making 40 dollars an hour.” Mr. Vaughn claimed he lost that amount of money for

fourteen weeks. He testified that his wife, who is the bookkeeper for his business, prepared a list

of the time he lost from work. Mr. Vaughn testified that he lost 14 weeks of work from March of

1997, through November of 1997, at $500 per week for an approximate total of $7,000. Mr.

Vaughn further testified that when he goes to the doctor, he is away from work and stated: “Anybody

that ever went to a doctor, they know they are gone anywhere from two to four hours. Most of mine

average around three.” Mr. Vaughn testified he has turned down jobs because he says he can’t do

them and stated: “Well, when you get down into where you’re almost upside down, why, you know,

it gets to a point you can’t do it, why, you just can’t do it.” Mr. Vaughn admitted that he had two

employees working for him at the time of the Accident and that these employees quit sometime after

the Accident. Mr. Vaughn testified that he tried to replace these employees, but was unable to do
-5-

so. Mr. Vaughn then admitted that without suitable employees his shop hasn’t been able to make

money the way it used to.

In the case at hand, Mr. Vaughn claimed bills for medical care and treatment

including the harness, physical therapy charges, an MRI done by Dr. Dyer, and prescription

medications. When asked if his neck has gotten any better, Mr. Vaughn stated: “No. It’s slowly

getting worse.” When he was asked how his neck feels currently, Mr. Vaughn stated: “It’s sore.”

Mr. Vaughn testified that his doctor told him how to modify a creeper that he uses to get underneath

machinery at work. He stated: 

We put a heavier, like a pillow on it, but it didn’t do that much good. Most of the

work you do in something like that, you can’t keep your head down on something.

You know, you have to reach up and stretch out and everything. I couldn’t - - I

couldn’t keep my head on a creeper to support it.

Mr. Vaughn testified that his neck injury affects his sleep and that he has had to

purchase a special mattress, but it has not helped much. He stated: “Well, I toss and turn. There is

a lot of nights I don’t hardly get any sleep at all.” Mr. Vaughn also testified he has not been able to

hunt like he used to because he cannot climb into a tree stand. He explained that now, he has to use

a hunting house on the ground. Mr. Vaughn testified that he did hunt and kill one deer last year, but

his son and friends had to carry the deer back to camp. Mr. Vaughn also testified that if he is really

sore he cannot ride in a four-wheeler because it bounces him too much. He testified that he now has

problems riding or driving in trucks or cars and stated: “After about 30, 45 mile, why, I start getting,

you know, irritation in my neck. I start hurting.” Mr. Vaughn also testified that he cannot fix his

leaking roof, or mow the yard, or use a weed-eater any longer. He further testified that he can get

down on the floor to play with his grandchildren, but not for long periods of time. Mr. Vaughn

testified that his neck is “slowly getting worse. It’s just a matter of time I’m going to have to quit

altogether. I hope I can retire before it happens.” 

When Mr. Vaughn was questioned regarding damage to histruck from the Accident,

he testified that his bumper was turned down in the Accident and that afterward he went to his shop,

put a jack under the bumper, and raised it up. Mr. Vaughn testified that he does not know how much

it cost to repair his truck after the Accident because he never saw the bill. When he was questioned

regarding the current value of his truck, Mr. Vaughn testified: 

Well, I gave $24,000 for it. That’s - - that was a straight-out buy. That’s what it

listed for. And today the vehicle is sitting in my garage at the house. The rotors are

rusted up so bad you can’t drive it because it hadn’t been used because it don’t drive

right.

* * * 
-6-

It’s almost impossible to [put a value on the truck]. I mean, the vehicle is a $24,000

vehicle. And today, if you can’t drive it and keep it from just jumping up and down

in the road, what can you say? I mean, it’s not worth anything to me. I’ve done

dropped the insurance and the tags on it.

On December 5, 1997, approximately one year after the Accident, Mr. Vaughn was

involved in another automobile accident (“the second accident”). Mr. Vaughn testified that he filed

a lawsuit regarding the second accident. However, he testified that there are a lot of clerical errors

in the complaint for the second accident. When asked if he remembers stating he was unable to go

to work for a few days after the second accident, Mr. Vaughn stated that he does not remember.

When asked if he remembers stating that when he returned to work after the second accident he was

unable to perform his job to some extent due to his injuries, Mr. Vaughn stated: “Again, I don’t

remember that. All that stuff there, I’ve not - - I have no refreshment of it. I don’t - - I can’t

remember it.” 

Mr. Vaughn admitted that the only damage he saw to the front of Ms. Cunningham’s

vehicle was a broken blinker cover and further admits that he did see a scratch on the rear bumper

of her vehicle. Mr. Vaughn testified that he cannot say that a John Doe driver was not involved in

the accident and stated: “I really couldn’t say, now. I’ve seen several accidents and stranger things

has happened.” He further admitted that Ms. Cunningham’s car has rubber-covered bumpers. Mr.

Vaughn also testified that he believes his truck has air bags, but that he is not certain and admitted

that if it does, they did not deploy during the Accident. Mr. Vaughn further admitted that he did not

go to the emergency room after the accident, and did not see a doctor until 46 days after the

Accident. 

Barbara Vaughn testified at trial. She and Mr. Vaughn have been married for 35

years. Mrs. Vaughn testified that she has a tenth grade education and that she does the secretarial

work for Vaughn Equipment, answering phones, preparing invoices, and paying bills. Mrs. Vaughn

testified that since the Accident, 

there’s days that [my husband] can’t work at all, and then there’s days that he’ll work

part of the day and then he can’t work anymore that day. He just - - most of the time

he’ll come in the office. We used to have a couch, and he’d lay down or sit down,

you know, just stay there.

Mrs. Vaughn testified that after the Accident, there were entire weeks when her husband would miss

work. Mrs. Vaughn testified that the workers’ comp injury did not stop her husband from working

and stated: “Well, I mean, it slowed him down, but he still worked.” However, when asked if her

husband could put in a full day’s work after the workers’ comp injury, Mrs. Vaughn admitted: “Well,

no, he didn’t work all the time, but he was there every day.” Mrs. Vaughn testified that her husband

is a salaried employee who gets paid as long as there is money coming through the door of the

company. When questioned about her husband’s claim for lost wages, Mrs. Vaughn testified: “All
-7-

the 1997 is related to a first wreck, so the 1998, I didn’t know how to do that, because there were two

accidents, so I just quit keeping records.” 

Mrs. Vaughn testified that her husband built the house they live in and that he used

to do most of the outside chores and yard work, butsince the Accident, she has to mow and weed-eat

the yard. Mrs. Vaughn testified that her husband never had problems sleeping prior to the Accident,

but now does have problems sleeping. She stated: “Well, most nights he’s up until 1:00 o’clock, and

then he goes to bed. He tosses and turns, and, you know, just all over the bed and, you know, just

can’t sleep or can’t lay in one position.” Mrs. Vaughn testified that her husband purchased a new

mattress and that she moved into another bedroom so he could have the whole bed “so he can relax

better ....” Mrs. Vaughn testified that she has been sleeping in a separate bedroom for four or five

years now. Mrs. Vaughn testified that she and her husband have not taken a vacation since the

Accident. She testified that prior to the Accident, they tried to take a week-long vacation every year.

William Carl Dyer,Jr., M.D. is an orthopaedic surgeon who treated Mr. Vaughn both

before the Accident and after it. Before the Accident, Dr. Dyer had treated Mr. Vaughn for several

things including the 1989 workers’ comp injury. Dr. Dyer testified about several of Mr. Vaughn’s

visits prior to the Accident. Five years prior to the accident, Dr. Dyer gave Mr. Vaughn an

impairment rating of “25 percent permanent physical impairment and loss of physical function to the

body as a whole.” Dr. Dyer testified that when he treated Mr. Vaughn on December 12, 1991, Mr.

Vaughn had a 50 percent range of motion in his back. Dr. Dyer further testified that in January of

1992, Mr. Vaughn began wearing a back brace for back problems. Dr. Dyer testified that on his

January 9, 1992 visit, Mr. Vaughn was having pain in the interscapular area, between the shoulder

blades. Dr. Dyer also testified that on May 12, 1992, “[Mr. Vaughn] had marked stiffness in the

neck, dorsal spine, lumbar spine, and moved slowly and very deliberately. He had difficulty getting

on the exam table because of discomfort ....” On June 16, 1992, Dr. Dyer noted that Mr. Vaughn

had osteophytes about the dorsal spine, “a process which usually occurs as a result of arthritis.” On

June 16, 1992, Dr. Dyer gave Mr. Vaughn a new impairment rating of 

26 percent impairment due to flexion loss, 20 percent extension loss, 36 percent

impairment to the finger as a whole. And actualy, I said that I feel he has approximately 5 percent permanent physical impairment and loss of physical function to the body

as a whole as a result of persistent pain, restricted range of motion, and I feel this is most likely

directly a result of his [workers’ compensation] injury.

Dr. Dyer testified that on August 18, 1992, Mr. Vaughn told Dr. Dyer that when he sits down at night

he becomes so stiff that he can hardly move. Dr. Dyer further testified that he believes that Mr.

Vaughn’s workers’ comp injury completely cleared up prior to the Accident because Mr. Vaughn

told him that it had completely cleared up. 

Dr. Dyer also testified that when Mr. Vaughn came to see him on February 5, 1997,

Mr. Vaughn gave a history of being involved in an automobile accident on December 20, 1996, and

having been treated in the emergency room and given Naprosyn, Darvocet, and muscle relaxants.

Dr. Dyer testified that his records of that visit state:
-8-

On examination the patient noted to have about 90-percent range of motion of the

cervical spine....X-rays, multiple views of the cervical spine reveal the patient to

have some degenerative disc disease in three intervertebral discs, narrowing in

osteophyte formation. My impression at that time was cervical strain, acute and

degenerative disc disease of the cervical spine. Advised the patient at this point that

he should take Relafen, 500, two a day. He is to return in two to three weeks. 

Dr. Dyer explained that degenerative disc disease means “that the disc between the vertebral bodies,

in the neck in this situation, were deteriorating ....” Dr. Dyer testified that a finding of degenerative

disc disease is interchangeable with an arthritic condition and that Relafen is an arthritis medicine.

Dr. Dyer’s testimony was that he has treated Mr. Vaughn for his neck injury in excess

of 100 times since the Accident. Dr. Dyer stated: 

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

exacerbations and remissions. He’d get a little bit better and we’d treat him and he’d

seem to take off, and then he’d have a setback, and this was pretty much the history

of the way these things go, with exacerbations and remissions, and rarely do people

get completely well once they’ve had an injury like this.

Dr. Dyer further stated:

Well, it became evident as time progressed, and along with the fact that the natural

history of this disease process is not for it to ever get back to the normal state, that

he was continuing to have problems and it was probably going to follow this. So it

was into the treatment that we noticed that he was following the path that we would

have expected, possibly not in the degree of the severity or whatever, but he still

continued to have significant problems with exacerbations.

Dr. Dyer testified that on August 21, 2003, he assigned Mr. Vaughn a rating of 

approximately 18 percent permanent physical impairment and loss of physical

function to the body as a whole .... He has restricted range of motion of about 50

percent of the cervical spine in all ranges. He’s noted to have marked atrophy of the

paraspinous muscles. He has chronic pain in the neck. ... He lives with chronic pain

on a day-to-day basis. I felt he had 4 percent permanent physical impairment and loss

of physical function to the body as a whole, ... which severely hampers the patient

in his ability to perform ordinary occupational activities as a tractor mechanic. I feel

the patient will need additional care. I feel it is quite possible that he may need to

have surgery before all is said and done because of the chronicity of the problem and

protracted pain.
-9-

When questioned regarding possible surgery, Dr. Dyer stated that “some people need to have cervical

disc excision and cervical fusion. However, that is not without some problem, and most people do

not have to have the surgery.” 

Dr. Dyer testified that his record of Mr. Vaughn’s January 6, 2004 visit again refers

to a permanent impairment as a result of the neck injury. Dr. Dyer then testified: 

It was 18 to 20 percent to the body as a whole as it related to the cervical spine, and

I did not add that 4 percent permanent physical impairment loss of physical function

to the body as a whole as it related to class I pain, which should be added to that.

Dr. Dyer also testified that the total permanent impairment that Mr. Vaughn has as a result of this

accident should be 29 percent, 25 percent plus 4 for the pain and opined that this is a permanent

rating. Dr. Dyer explained that the percentage of impairment he has assigned to Mr. Vaughn has

differed over time because “[h]is impairment is as a result of exacerbation of these problems with

time and with activity.” Dr. Dyer testified: 

Well, [Mr. Vaughn] has been unable to perform his ordinary occupational activities.

His ability to - - the speed with which he can perform certain activities has been

decreased. The total volume of work that he can accomplish has been markedly

decreased, according to what he has to say, as a result of the pain and discomfort that

he has, as well as the stiffness. So he’s really been significantly impaired.

Dr. Dyer admitted:

I have only to accept the history that [Mr. Vaughn] gives me, and I have to act on that

history. I have no reason to question the accuracy of the history, and with that in

mind, I had no reason to disbelieve that the mechanism of his injury was any other

than what I testified.

When asked if it is important for a patient to give an accurate history, Dr. Dyer stated: “It’s important

that he give me a history, which I have to accept as being accurate.” Dr. Dyer testified that as far as

he knew, Mr. Vaughn was having no problems performing his work-related functions prior to the

second accident. However, Dr. Dyer testified that Mr. Vaughn’s injuries received in the Accident

“decreased his ability” to work because “[h]e was limited by pain.” 

Mr. Vaughn admitted that he went to the Chattanooga Outpatient Center on February

27, 1991, prior to the Accident. At the Chattanooga Outpatient Center, Mr. Vaughn filled out and

signed some paperwork including one sheet upon which he handwrote: “Chief complaint, back and

neck pain running out in left shoulder.” However, Mr. Vaughn testified at trial that, despite what

he had written at the time, the pain he was experiencing at that time was really not in his neck. Mr.

Vaughn stated: “I could have made an error.” In addition, Dr. Dyer’s records show that Mr. Vaughn

visited Dr. Dyer’s office on May 12, 1992, for treatment, but Mr. Vaughn denied this visit. Dr.
-10-

Dyer’s records of the May 12, 1992 visit stated that Mr. Vaughn complained of neck pain. Mr.

Vaughn testified that he doesn’t remember anything about neck pain and that he cannot remember

anything about that day.

After trial, the jury reached its verdict and the Trial Court entered judgment on

October 13, 2004, on the verdict. The jury found John Doe 100% at fault for the accident, but found

that Mr. Vaughn received no personal injuries in this accident. The jury awarded Plaintiffs zero

damages for personal injuries and zero damages for loss of consortium. The Trial Court taxed costs

against John Doe up to September 16, 2003, the date John Doe filed his Offer of Judgment. The

remaining costs were taxed against Plaintiffs. 

Plaintiffs filed a Motion for Suggestion of Additur or in the Alternative New Trial,

which the Trial Court denied by order entered November 16, 2004. In the November 16, 2004 order,

the Trial Court specifically found “that the jury’s verdict in the above-styled action was within the

range of reasonableness and was supported by the evidence adduced at trial ....” 

On November 4, 2004, Ms. Cunningham filed a motion for discretionary costs. Ms.

Cunningham had made an offer of judgment on October 16, 2003. By order entered December 2,

2004, the Trial Court ordered Plaintiffs to pay Ms. Cunningham’s discretionary costs “in the amuont

of $565.15, this amount representing those costs incurred by Ms. Cunningham after she made an

offer of judgment on October 16, 2003 ....” 

John Doe filed a motion for discretionary costs on December 10, 2004. By order

entered January 4, 2005, the Trial Court ordered Plaintiffs to pay John Doe’s discretionary costs “in

the amount of $666.91, the same being costs incurred subsequent to John Doe’s Offer of Judgment

which was made on September 16, 2003 ....” Plaintiffs appeal to this Court.

Discussion

Although not stated exactly as such, Plaintiffs raise five issues on appeal: 1) whether

there was material evidence to support the jury’s award of zero damages to Plaintiffs; 2) whether the

Trial Court erred in failing to grant an additur, or in the alternative, a new trial; 3) whether the Trial

Court erred in ordering Plaintiffs to pay court costs accrued after September 16, 2003; 4) whether

the Trial Court erred in ordering Plaintiffs to pay Ms. Cunningham’s discretionary costs; and, 5)

whether the Trial Court erred in ordering Plaintiffs to pay John Doe’s discretionary costs. 

“Findings of fact by a jury in civil actions shall be set aside only if there is no material

evidence to support the verdict.” Tenn. R. App. P. 13(d). As our Supreme Court has explained:

It is the time honored rule in this State that in reviewing a judgment based upon a

jury verdict the appellate courts are not at liberty to weigh the evidence or to decide

where the preponderance lies, but are limited to determining whether there is material
-11-

evidence to support the verdict; and in determining whether there is material

evidence to support the verdict, the appellate court is required to take the strongest

legitimate view of all the evidence in favor of the verdict, to assume the truth of all

that tends to support it, allowing all reasonable inferences to sustain the verdict, and

to discard all to the contrary. Having thus examined the record, if there be any

material evidence to support the verdict, it must be affirmed; if it were otherwise, the

parties would be deprived of their constitutional right to trial by jury. 

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

We first address whether there was material evidence to support the jury’s award of

$0 damages to Plaintiffs. Plaintiffs cite several cases including Dent v. Holt and Loftis v. Finch in

which verdicts were overturned because there was no material evidence to support them. Dent v.

Holt, No. 01-A-01-9302-CV-00072, 1994 Tenn. App. LEXIS 465 (Tenn. Ct. App. Aug. 17, 1994)

(vacating the damage award where the jury ignored proof of future medical expenses and pain and

suffering), no appl. perm. appeal filed; Loftis v. Finch, 491 S.W.2d 370 (Tenn. Ct. App. 1972)

(reversing the verdict as to the amount of damages that were less than the proven actual damages).

Plaintiffs also argue, in part, that the present case is very similar to Taylor v. Smith, in which this

Court vacated the judgment of the trial court after “[f]inding no material evidence to support an

award less than the ‘hard-core’ medical bills ....” Taylor v. Smith, No. E2002-01158-COA-R3-CV,

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

There are some factual similarities between Taylor and the case at hand in that both cases involve

automobile accidents that occurred while at least one party was stopped at a red light. However,

while there was no material evidence to support the verdict in Dent, Loftis, or Taylor, we find there

is material evidence to support the verdict in this case.

The evidence shows that Ms. Cunningham, who also was involved in the Accident,

suffered no injuries as a result of the Accident. The evidence further shows that the damage to Ms.

Cunningham’s car consisted of a broken $4 blinker light cover and a scratch or streak of white paint

on her car’s rear bumper. Both Ms. Cunningham and Mr. Black, who witnessed the accident,

testified that it was not a bad accident. Officer Short testified that no injuries were reported at the

scene and none of the vehicles involved needed to be towed. The evidence shows that Mr. Vaughn’s

truck was pushed forward on impact, but was not pushed far enough forward to touch the vehicle

in front of him. Mr. Vaughn admitted that the bumper of his truck was bent down as a result of the

impact between his truck and Ms. Cunningham’s vehicle and testified that he simply went to his

shop, put a jack under the bumper, and raised it up. He testified that he does not know how much

it cost to repair his truck because he never saw a bill, and no bill ever was produced at trial. 

The jury heard Mr. Vaughn admit that he had never completely recovered from his

workers’ comp injury and still was taking medication for that injury. In addition, Mrs. Vaughn

admitted that after the workers’ comp injury, her husband “didn’t work all the time, but he was there

every day.” Mr. Vaughn testified that currently, “there is days that I can go in and I can do fair. And

then there is days I go in, I can’t do near as much. And there is days that I go in I don’t do anything.
-12-

I sit around,” which is not very different from what Mrs. Vaughn testified to regarding her husband’s

ability to work after the workers’ comp injury but before the Accident. Mr. Vaughn admitted that

he had two employees who quit some time after the Accident, that he was unable to replace those

employees, and that his shop was not making as much money without employees.

The evidence shows that Mr. Vaughn was not treated in the emergency room after

the Accident and did not see a doctor for his complaints until 46 days after the Accident. However,

Dr. Dyer testified that when Mr. Vaughn came to see him on February 5, 1997, Mr. Vaughn gave

a history of being involved in an automobile accident on December 20, 1996, and having been

treated in the emergency room and given Naprosyn, Darvocet, and muscle relaxants. This history

given by Mr. Vaughn to Dr. Dyer was not true as Mr. Vaughn neither had been treated in the

emergency room nor prescribed those medications, a fact made clear to the jury. 

Dr. Dyer testified that five years prior to the Accident, he assigned Mr. Vaughn an

impairment rating of “25 percent permanent physical impairment and loss of physical function to

the body as a whole.” (emphasis added). Dr. Dyer testified that he assigned Mr. Vaughn a 29

percent impairment rating, 25 percent plus 4 for the pain, as a result of the Accident. Dr. Dyer also

testified that Mr. Vaughn began wearing a back brace for back problems prior to the Accident. The

evidence further shows that on August 18, 1992, long before the Accident, Mr. Vaughn told Dr. Dyer

that when he sits down at night he becomes so stiff that he can hardly move. 

Dr. Dyer admitted that he could only “accept the history that [Mr. Vaughn] gives me,

and I have to act on that history. I have no reason to question the accuracy of the history, and with

that in mind, I had no reason to disbelieve that the mechanism of his injury was any other than what

I testified.” In addition, Dr. Dyer testified that “[t]he total volume of work that [Mr. Vaughn] can

accomplish has been markedly decreased, according to what he has to say, as a result of the pain and

discomfort that he has, as well as the stiffness. So he’s really been significantly impaired.”

(emphasis added). Dr. Dyer testified that as far as he knew, Mr. Vaughn was not having problems

performing his work-related functions after the Accident but prior to the second accident. Dr. Dyer

further testified that he believes that Mr. Vaughn’s workers’ comp injury completely cleared up

before the Accident because Mr. Vaughn told him that it had completely cleared up. 

Mr. Vaughn also admitted that he went to the Chattanooga Outpatient Center on

February 27, 1991, again long before the Accident, and filled out paperwork stating: “Chief

complaint, back and neck pain running out in left shoulder.” However, Mr. Vaughn testified that

the pain he was experiencing at that time was not really in his neck and stated: “I could have made

an error.” In addition, Dr. Dyer’s records show that Mr. Vaughn visited Dr. Dyer’s office on May

12, 1992, for treatment, but Mr. Vaughn denied this visit. Dr. Dyer’s records of the May 12, 1992

visit stated that Mr. Vaughn complained of neck pain. Mr. Vaughn testified that he doesn’t

remember anything about neck pain and that he cannot remember anything about that day.

The jury was free to find, and clearly they did, that Mr Vaughn had suffered no

damages as a result of the Accident. Witness credibility determination is the responsibility of the
-13-

jury, and this Court will not substitute its judgment for that of the jury as to witnesses’ credibility.

Based upon all the evidence presented to the jury, the jury made its determination that Plaintiffs’

testimony was not credible. 

Taking the strongest legitimate view of all the evidence in favor of the verdict,

assuming the truth of all that tends to support it, allowing all reasonable inferences to sustain the

verdict, and discarding all to the contrary, as we must, we find that there was material evidence to

support an award of zero damages. We, therefore, affirm on this issue. 

We next consider whether the Trial Court erred in failing to grant an additur, or in

the alternative, a new trial. Acting as the thirteenth juror, a trial court is empowered to set aside a

jury verdict and order a new trial. If a trial court determines that the amount of the verdict is

excessive or inadequate, it may suggest a remittitur or an additur in lieu of granting a new trial.

Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 718 (Tenn. Ct. App. 1999). This procedure avoids the

expense and delay of conducting a new trial. Id. Here, the Trial Court approved the jury verdict.

However, when a trial court approves a jury verdict, appellate

courts may only review the record to determine whether it contains

material evidence to support the jury’s verdict. See Tenn. R. App. P.

13(d); Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823

(Tenn. 1994); Whitaker v. Harmon, 879 S.W.2d 865, 867 (Tenn. Ct.

App. 1994). Appellate courts do not reweigh the evidence and

consider where the preponderance lies. Instead, they determine

whether there is any material evidence to support the verdict, and, if

there is, they must affirm the judgment. See Reynolds v. Ozark Motor

Lines, Inc., 887 S.W.2d at 823; Pullen v. Textron, Inc., 845 S.W.2d

777, 780 (Tenn. Ct. App. 1992). 

The jury bears primary responsibility for awarding damages

in a personal injury action, followed closely by the trial court in its

role as thirteenth juror. See Coffey v. Fayette Tubular Products, 929

S.W.2d 326, 328 (Tenn. 1996); Sholodge Franchise Sys., Inc. v.

McKibbon Bros., Inc., 919 S.W.2d at 41..(sic) When a trial court

approves a verdict awarding damages in a personal injury action, our

review is subject to the rule that if there is any material evidence to

support the jury’s award, it should not be disturbed. See Hunter v.

Burke, 958 S.W.2d 751, 757 (Tenn. Ct. App. 1997).

Overstreet, 4 S.W.3d at 718. 

In its November 16, 2004 order, the Trial Court approved the jury’s verdict and

specifically found “that the jury’s verdict in the above-styled action was within the range of

reasonableness and was supported by the evidence adduced at trial ....” As fully discussed above,
-14-

there is material evidence to support the jury’s verdict and award. Therefore, we will not disturb the

verdict and find no error in the Trial Court’s refusal to grant an additur or a new trial. 

We next consider whether the Trial Court erred in ordering Plaintiffs to pay court

costs accrued after September 16, 2003. Rule 68 of the Tennessee Rules of Civil Procedure

provides, in pertinent part:

At any time more than 10 days before the trial begins, a party defending against a

claim may serve upon the adverse party an offer to allow judgment to be taken

against the defending party for the money or property, or to the effect specified in the

offer, with costs then accrued....If the judgment finally obtained by the offeree is not

more favorable than the offer, the offeree shall pay all costs accruing after the making

of the offer....

Tenn. R. Civ. P. 68.

John Doe filed an Offer of Judgment on September 16, 2003. The judgment obtained

by Plaintiffs of zero damages is not more favorable than John Doe’s offer. As such, under Tenn. R.

Civ. P. 68, Plaintiffs “shall pay all costs accruing after the making of the offer....” Tenn. R. Civ. P.

68. 

Plaintiffs argue, in part, that the award of court costs was inappropriate because the

jury’s verdict of zero damages was “totally inadequate and against the great weight of the evidence

...” and that the award should have been more favorable than the offer of judgment. As we have

already held that there was material evidence to support the jury’s verdict and have fully affirmed

the jury’s verdict, we will not belabor this point. We affirm the Trial Court’s order requiring

Plaintiffs to pay court costs accrued after September 16, 2003. 

We next consider whether the Trial Court erred in ordering Plaintiffs to pay Ms.

Cunningham’s discretionary costs. In pertinent part, Rule 54.04 of the Tennessee Rules of Civil

Procedure provides:

54.04. Costs. – (1) Costs included in the bill of costs prepared by clerk shall be

allowed to the prevailing party unless the court otherwise directs, ...

(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 ortrials, 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....
-15-

Tenn. R. Civ. P. 54.04. Thus, we review a Trial Court’s decision to award discretionary costs for

abuse of discretion. E.g., Massachusetts Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 32 (Tenn.Ct.

App. 2002). 

Our Supreme Court discussed the abuse of discretion standard in Eldridge v.

Eldridge, stating:

Under the abuse of discretion standard, a trial court’s ruling “will be upheld

so long as reasonable minds can disagree as to [the] propriety of the decision made.”

A trial court abuses its discretion only when it “applie[s] an incorrect legal standard,

or reache[s] a decision which is against logic or reasoning that cause[s] an injustice

to the party complaining.” The abuse of discretion standard does not permit the

appellate court to substitute its judgment for that of the trial court.

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

Appellate courts ordinarily permit discretionary decisions to stand when reasonable

judicial minds can differ concerning their soundness. Overstreet, 4 S.W.3d at 709. A trial court’s

discretionary decision must take into account applicable law and be consistent with the facts before

the court. Id. When reviewing a discretionary decision by the trial court, the “appellate courts

should begin with the presumption that the decision is correct and should review the evidence in the

light most favorable to the decision.” Id.

Plaintiffs argue, in part, that they were the prevailing party because Mr. Vaughn was

found to be 0% at fault for the Accident and, as such, it was improper for the Trial Court to award

discretionary costs against them. However, Ms. Cunningham also was found to be 0% at fault for

the Accident. As such, Ms. Cunningham successfully defended the suit against her and prevailed

against Plaintiffs. Ms. Cunningham was certainlya prevailing partyand was entitled to discretionary

costs. We find no abuse in the Trial Court’s award ordering Plaintiffs to pay Ms. Cunningham’s

discretionary costs.

Finally, we consider whether the Trial Court erred in ordering Plaintiffs to pay John

Doe’s discretionary costs. In pertinent part, Rule 54.04 of the Tennessee Rules of Civil procedure

provides that “ a party requesting discretionary costs shall file and serve a motion within thirty (30)

days after entry of judgment....” Tenn. R. Civ. P. 54.04. The phrase ‘entry of judgment’ is defined

in Tenn. R. Civ. P. 58 as:

Entry of a judgment or an order of final disposition is effective when a

judgment containing one of the following is marked on the face by the clerk as filed

for entry:

(1) the signatures of the judge and all parties or counsel, or
-16-

(2) the signatures of the judge and one party or counsel with a certificate of

counsel that a copy of the proposed order has been served on all other parties

or counsel, or

(3) the signature of the judge and a certificate of the clerk that a copy has

been served on all other parties or counsel.

When requested by counsel or pro se parties, the clerk shall mail or deliver a copy of

the entered judgment to all parties or counsel within five days after entry;

notwithstanding any rule of civil or appellate procedure to the contrary, time periods

for post-trial motions or a notice of appeal shall not begin to run until the date of such

requested mailing or delivery....

Tenn. R. Civ. P. 58. 

The judgment on the jury’s verdict was marked on the face by the clerk as filed for

entry and contained the signature of the trial judge and a certificate of the clerk that a copy had been

served upon all parties or counsel on October 13, 2004. John Doe filed a motion for discretionary

costs on December 10, 2004, well outside the thirty day period after the entry of judgment. 

We acknowledge that some case law exists suggesting that the filing of a motion for

a new trial tolls the time for the filing of a motion for discretionary costs. See The Alison Group,

Inc. v. Ericson, No. W2003-02973-COA-R3-CV, 2005 Tenn. App. LEXIS 327, at *13 n.6 (Tenn.

Ct. App. June 3, 2005) (finding that a motion for discretionary costs filed prior to “a final order on

Appellants’ [motion for new trial]” was timely filed.), appl. perm. appeal denied Oct. 24, 2005;

Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 Tenn. App. LEXIS 628, at *21 (Tenn. Ct.

App. Sept. 3, 2003) (stating: “Thus, in accordance with our decision in Ashford, we find Mother’s

motion [for discretionary costs] was timely filed.”), no appl. perm. appeal filed; Ashford v.

Benjamin, No. 02A01-9311-CV-00243, 1994 Tenn. App. LEXIS 706, at *4-5 (Tenn. Ct. App. Dec.

6, 1994) (stating: “Once a motion for new trial is filed, the judgment is suspended and prevented

from becoming final pending disposition of the motion. The trial court’s jurisdiction is preserved.

... As Ashford’s motion to assess costs was filed within thirty (30) days after [entry of the order

denying a new trial], we hold it timely pursuant to Rule 54.04(2) T.R.C.P.” (citations omitted)), no

appl. perm. appeal filed. 

With all due respect, we disagree with these cases because Rule 54.04 clearly states

that a motion for discretionary costs shall be filed “within thirty (30) days after entry of

judgment....” Tenn. R. Civ. P. 54.04 (emphasis added). Rule 58 clearly provides the definition of

what constitutes “entry of judgment,” and the judgment in this case was entered in accordance with

that rule on October 13, 2004. 

As John Doe did not file his motion for discretionary costs within thirty days of entry

of the judgment, we hold it was error to award John Doe discretionary costs. We vacate that portion

of the Trial Court’s order awarding John Doe discretionary costs. 
-17-

Conclusion

The judgment of the Trial Court is affirmed, as modified by vacating the award to

John Doe of discretionary costs, and this cause is remanded to the Trial Court for collection of the

costs below. Exercising our discretion, the costs on appeal are assessed one-half against the

Appellants, Kenny Vaughn and wife, Barbara Vaughn, and their surety, and one-half against the

Appellee, John Doe. 

___________________________________ 

D. MICHAEL SWINEY, JUDGE