### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E May 5, 20 09 Ses si on

BERNARD HUGH ES v . DEMAR HUDGINS

Appeal f rom the Circ uit Court for Ham ilton Coun ty No. 07-C- 795 Ward Jeff rey Hollingsw orth, Judge

No. E2008-01385-COA- R3-CV- F ILED AUGU ST 17, 2009

The plaintiff c laimed that he suffe red neck and back injuries afte r the a utomobile in which he was riding was rea

r-e nded by the defe ndant’s automobile. The defe ndant admitted brea ch of the standard of car e, but the jury found that the plaintiff had suffe red no damag es as the result of the acc ident, and he wa s not awar ded any

rec overy . The trial court awarde d the defendant $645.95 in di scre tionary
costs to cover the court repor ter fee s he incurre d for depositions. The plaintiff argues on appea l that there was no materia l evidenc e to support the jury ’s verdic t. For his part, the defe ndant argues that the trial court err ed in declining to awa rd him all of the discretionar y costs he reque sted. We aff irm the jury verdic t, but we re mand the issue of the awa rd of discr etionary

costs.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed in Par t, Vac ated in Par t

P A T R I C I A J

. C O T T R E L L , P.J .,M.S., de livered the opinion of the court, in w hich A N D Y D. B E N N E T T , J ., joined. F R A N K G. C L E M E N T , J R ., concur ring in part and dissenting in part.

J ohn W. McClarty
, J eff

rey W. Rufolo, Chattanoog a, Tenne ssee, for the appellant, Be rnar d Hug hes.

Scott A. Rhodes, Bre ntwood, Tenne ssee, f or the a ppellee, D emar

Hudg ins.

OP INION

I. A N E G L I G E N C E C O M P L A I N T

The incident from which this case arose occur red on Fe bruar

y 18, 2007, when an automobile in which plaintiff Be rnar d Hug hes was riding as a passeng er was rear-ended at a Chattanoog a intersec tion by an automobile d ri v en b y defe ndant Demar Hudg ins. Mr. Hug hes claimed that he immediately felt pain in his ne ck and back. He called 911, and an ambulance arr ived on the scene and broug ht Mr. Hug hes to the eme rg ency room at Parkr idge Hospital.Mr. Hug hes was examined and x -ra y ed, g iven a presc ription for L ortab and discharg ed with instructions to rest, to use ice on the aff ecte d are a and to contac t his regular doctor afte r seven day s. He subseque ntly

went to his doctor and unde rwe nt a serie s of fac et injections and thre e months of phy sical thera

py befor e being rele ased f

rom trea tment.

On J uly 5, 2007, Mr. Hug hes filed a neg lige nce complaint ag ainst Mr. Hudg ins in the Circuit Court of Hamilt on County and requested a jury trial. He claimed t hat t he damag es h e incurre d as

a result of the acc ident included medical expenses of over $12,000 as well as mental and emotional distress. Mr. Hug hes asked for a total of $45,000 in compensa tory damag es. Mr. Hudg ins filed an

answer on Aug ust 3, 2007. He admitted he had been at fault for the accident, but asser ted t hat he had no knowledg e of the injuries claimed by the plaintiff. After taking the deposition of his trea ting phy sician, Mr. Hug hes ame nded his complaint to increa se his ad damnum to $100,000.

The jury trial was conducte d on April 30, 2008 and May 1, 2008. The only witnesses to testify aside from the parties them s el v es wer e Mr. Hug hes’ nephew
, Thomas Hall, who was the driver of the c ar in which Mr. Hug hes rode on the day of the acc ident, and Be rnade tte Hug hes, the mother of Be rnar d Hug hes. Mr. Hall testified t hat he was stopped at a red light wh en his car was hit from behind, and he descr ibed the i mpact of the collision as “.

. . a hard impact, very hard impact.” He acknow ledg ed that he himself was not injure d in the acc ident, but he testified that he could tell that his uncle wa s hurt, and that he notice d “like a little swelling around his nec k.”

The proof showed that at the time of trial Mr. Hug hes has been on Social Security disability for at least fiftee n y ear s beca use of depre ssion and suicidal tendenc ies, and that he lived wi t h his mother. Be rnade tte Hug hes testified that the day afte r the acc ident her son stay ed in bed, that he walked “kind of stiff” afte rwa rds, and that she put ice on his neck as the doctor instructed. She also testified that befor e the acc ident Mr. Hug hes u sed to cut the g rass and do littl e repa irs around the house, but “he doesn’t do much of that now,” but mainly

stay s in his room.

Mr. Hug hes testified that he was holding his cell phone at the time of the acc ident, and that the impact made the phone fly out of his hands and into the b ack seat. He also testified that he immediately felt a g reat deal of pa in “on my neck on the left side and towards the back.” After he was discha

rg ed fr om the emer g ency room, his mother drove him home. Mr. H ug hes testified that he was able to sleep afte r taking his pain medication, but that he woke up in the middle of the night to take more , and that he w as sore the next day and in the day s that followed.

M r. Hug hes descr ibed his subsequent course of trea tment and acknow ledg ed that h i s condition has improved, but claimed that he still has a lot of problems with the left side of his neck, which aff ect his sleeping and preve nt him from doing a lot of things he would like. He also testified
to a long history of medical problems which prec eded the acc ident at issue and to trea tment for those problems. These included a lifting inj ury at work in th e 1 9 9 0 's
, being stabbed in the l ung , canc er surg ery on his neck, and phy sical thera py and injections for pain in his lower back, neck and shoulder in 2004 afte r an auto acc ident. Additional evidenc e as to the plaintiff’s prior medical history as well

-2-as his condition afte r the most rec ent acc ident came from the deposition testimony of two doctors.

We will dis cuss the deposition testimony in the next s ection of this opinion.

When Mr. Hudg ins took the stand, he testified that he w as g oing 15 to 20 miles a n hour as he approa ched the stop light at the intersec tion when a car suddenly turned in front of him, causing him to swerve into the adjoining lane and hit the car in which Mr. Hug hes was riding

. His
g irlfriend’ s one-y ear old daug hter was in the car with him. Mr. Hudg ins immediately chec ked to see if she was okay
, but he noticed “nothing differ ent from befor e the acc ident,” and that she did not cry

or g et upset. Photogra

phs taken afte r the acc ident and enter ed into evidenc e show t h at the car in which Mr. Hug hes rode had its trunk pushed in and that Mr. Hudg ins’ car had a dent on the left front side.

Mr. Hudg ins parke d his car and immediately went over to Mr. Hall’s car to ask if he neede d
to call the police and if ever y one was okay

. Mr. Hug hes had his phone in his hand and told him that he h ad al re ady called the police and that ever y thing was okay

. When the ambulance came , Mr. Hug hes g ot out of the car under his own power and was escor ted by a E.M.T. as he walked over to the ambulanc e and g ot onto a stretche r.

At the conclusion of proof a nd of closingarguments, the trial cour t delivere d the final jury instructions. Since the defe ndant admitted fault for the acc ident, the court told the jury that it would have two questions at most to answe r. These are shown in the J ury Ver dict For m repr oduced below:

JURY VERD ICT F ORM

Def endants have admitted liability

.

1. Do y ou find all or any of the injuries suffe red by Be rnar d Hug hes wer e leg ally

cause d by the ac cident which oc curr ed on F ebrua ry 18, 2007?

______________ __________________ YES NO

2. I f y our answe r to Question 1 was y es, what is t he amount of damag es

awa rded to B erna

rd Hug hes?

$________________

After deliberation, the jury conclude d that the answe r to Question 1 was “NO.” The verdic t

was rea d into the rec ord, and Mr . Hug hes’ attorney was a llowed to poll the individual jurors. The poll confirme d that the verdic t was unanimous. The court enter ed an o rd er o f j u d gm ent for the defe ndant in acc ordanc e with the verdic t. The jury form was att ached to the judgme nt, and court costs wer e taxed to the plaintiff.

-3-Mr. Hug hes filed a motion for new trial on May 19, 2008. Shortly there afte r, Mr. Hudg ins

filed a moti on for discretionary costs, listi ng court reporter expenses at t rial and at deposit ion and other expenses rela ted to the deposition of Dr. Lundy
, for a t o t al o f $10,911.45. The trial court denied the plaintiff’s motion for new trial, and partially g rante d t h e d ef en dant’s motion for discretionar

y costs, awa

rding him $645.95 for court repor ter ex penses related to the deposit ion of Dr. Parha m and the deposition of Mr. Hug hes. This appe al followed.

II. T H E J U R Y V E R D I C T

A. P H Y S I C A L I N J U R Y

Be cause this case was tried to a jury
, Mr. Hug hes fac es a heavy burden on appea l. Finding s of fac t by a jury in civil actions shall be set aside “only if there is no materia l evidenc e to support the verdic t.” Tenn. R. App. P. 13(d). Our Supreme Court descr ibed in g reater detail the standard to be used whe n revie wing a jury verdic t on appea l:

The appellate court is require d to take the strong est leg itimat e v i ew o f all the evidenc e in favor of the verdic t, to assume the truth of all that tends to support it, allowing all rea sonable i n fe re n ces to sustain the verdic t, and to discard all to the
contra ry

. Having thus examined the rec ord, if there be any materia l evidenc e to support t h e v er d i ct , it must be aff irmed; if it wer e otherwise, the parties would be deprive d of their c onstitut ional rig ht to trial by jury

.

Forrester v. Stockstill
, 869 S.W .2d 328, 329 (Tenn. 1994) (citing Crabtree Masonry Co. v. C & R. Construction C o. , 575 S.W .2d 4, 5 (Tenn. 1978) ).

I n his appellate br ief, Mr. H ug hes ar g ues that the jury verdic t was the result of “ passion or

unacc ountable capr ice,” beca use Mr. Hudg ins a dmitted f ault and there was a considera ble amount of evidenc e to indicate that Mr. Hug hes had been injured in the acc ident of Fe bruar y 18, 2007. Mr. Hug hes cited his own testimony and that of his nephew and his m o t h er , an d h e also relied on the deposition testimony

of his primary car e doctor, Dr. Be rnar d L

. Parham, who trea ted him after the

acc ident.

Dr. P arha m’s videotaped deposition was play ed for the j ury

. The doctor, who operates an urg ent ca re c linic, te stified that when Mr. Hug hes came to se e him one wee k afte r the a ccide nt, he

was as “stiff as a board.” Dr. Parham immediatel y beg an a course of injections to the patient’s

cer vical, thoracic and lumbar spi nes i n order to decr ease inflammation and promote mobility

. He also ref err ed him to a phy sical thera pist for further trea tment. He testified that all the trea tment he administered to Mr. Hug hes was rea sonable and nece ssary , and that as a result of the trea tment Mr. Hug hes’ c ondition has improved, but that “he still has tender ness.”

-4-Dr. Parham was questioned about the emer g ency room repor t on Mr. Hug hes. I t rec ited that Mr. Hug hes had been broug ht in afte r a motor ve hicle ac cident with complaints of pain. His vital signs wer e repor

ted as normal. X-ra

y s of his left shoulder, cer

vical spine and lumbar spine wer e also normal. He was repor

ted to be aler

t and not to b e i n ac u t e d i stress. His pain was listed as mild. Although he appea

red at the ER in a cer

vical collar, the phy sician rec ord repor ted his neck to be “non-te nder.” Howeve r, in the nursing rec ord, the box for tender ness was chec ked, and the notation “nea r shoulder” was inked in. No other neg ative finding s wer e repor ted. The nursing notes stated that Mr. Hug hes was joking with the staff as he left the ER and that he decl i n ed the use of a whee lchair. Dr. Parham stated that in his opinion the ER rec ords wer e not reliable
, and that “it looks like sloppy

work to me.”

Under cross-e x aminati o n , Dr

. Parham acknow ledg ed that Mr. Hug hes had suffe red from

numerous medical problems prior to the acc ident, including neck and shoulder pain, but the doctor claimed that the acc ident “exace rbate d it tremendously .” Dr. Parham also testified that even befor e the acc ident he had injected pain medica tion into Mr. Hug hes’ cer vical, thorac ic and lumbar spine

a total of seven or eig ht times, most rec ently in September of 2006. Dr. Parham was also questioned ab o u t a C T s ca n and x -ra y s perf ormed on Mr. Hug hes on Marc h 15, 2007, which showed the exis tence of mild deg ener ative dis c dis ease at C 5 and 6, and he stated t hat Mr. Hug hes “w ill have problems for life .”

As the above acc ount indicates, the jury hear d testimony from which it could have conclude d that Mr. Hug hes suffe red injuries for which Mr. Hudg i n s was leg ally responsible. Howeve r, it

rea ched the opposite conclusion. We note that “[i] f there is materia l evidenc e to support the verdic t, the verdic t and judgme nt must be aff irmed, even if there is testimony or ev i d en ce supporting the appellant’ s position.” Dixon v. Cobb
, M2006-00850-COA- R3-CV, 2007 WL 2089748 at *4 (Tenn. Ct. App. J uly 12, 2007) (no Tenn. R. App. P. 11 application filed) (citing C i t y o f C hattanooga v. Ballew, 354 S.W .2d 806, 809 (Tenn. Ct. App. 1961)). I n this case , evidenc e supporting the verdic t

was furnished by the deposition testimony of Dr. McKinley Lundy
, which was rea d into the rec ord.

Dr. L undy
, a phy sician cer tified in the evalua tion of disability and impairment, was reta ined by the defe ndant to perf

orm a phy sical examination of the plaintiff and to revie w his medical rec ords. I n his deposition, which was rea d to the jury
, he testified that he perf ormed a thoroug h phy sical examination of Mr. Hug hes on April 7, 2008, which included questioning about his medical history prior to and a fter the acc ident of F ebrua ry 18, 2007. He a lso ex amined the voluminous rec ords of ei ghteen health car e providers who had trea ted Mr. Hug hes betwee n 1997 and 2007, includ i n g doctors, clinics, a

nd thera pists, and he re viewed the same emer g ency room repor t that Dr. Parham was que stioned about.

Dr. Lundy noted that the emer g ency room repor t documented subjective complaints of pain by Mr. Hug hes. He observe d, howeve r, that medical scienc e has no instruments to measure or detec t pain, and that in the absenc e of objective phy sical finding s, repor ts of pai n by themselves did not

nece ssarily indicate injury or damag e to the person. Dr. Lundy testified that all the phy sical finding s in the ER repor

t wer e normal except for the n u rs e’ s notation of m uscle tenderness around t he left

-5-shoulder, and that it was unclea r whether that n o t at i o n re ferred to an objective finding or to a subjective c omplaint.

The medical rec ords s howed that Mr. Hughes has a long hi story of neck and back pain
, as well as heada che. Other previously repor ted medical conditions inc lu d e d li g h th e a d e d n e s s , d iz ziness, acid ref lux
, ankle pain, and burning and itching in both ear s. I n 2005, a tumor was diag nosed on his left parotid g land, which was surg ically remove d. During phy sical examination, Mr. Hug hes
repor ted to D r. L undy that he continued to ha ve pain in his neck, uppe r bac k and shoulder, as well as i ntermittent migr aine headac hes. Dr. L undy found t hat M r. Hughe s had a g ood rang e of spinal motion, with no spasm or muscle tightness in the cer vical are a, and no muscle atrophy on either shoulder. The patient’s blood pre ssure, pulse a nd respiration were normal.

Dr. L undy repor

ted that when he perf

ormed a light or superf

icial palpation of the left cer vical
para verte bral muscles on Mr. Hug hes’ back, Mr. Hug hes repor ted on a scale of one to ten, “incr ease d pain from a seven up to an eig ht or a nine or a ten.” Dr. Lundy testified that this was not an expected finding on light palpa tion one y ear afte r an a ccide nt. He we nt on to say that deep pa lpation might evoke such a pain response , but not superf icial palpation. Simi larly
, when Dr. Lundy perf ormed an “axial compre ssion test” by placing g entle pressure on the top of Mr. Hug hes’ head, that produce d

a complaint of left upper back pain an d l o we r b ack pain. Dr. Lundy descr ibed that rea ction as unusual and stated tha t there w as no phy siologica l or ana tomical rea son for that to occ ur.

Dr. L undy was also questioned about the fac et injections administered to Mr . Hug hes both befor e and afte r the acc ident, which Dr. Parham testified wer e “re asonable and nece ssary .” Dr. L undy testified that the medical g uidelines for trea tment of neck and upper back pain do not include fac et injections, and he stated that such injections are not rec ommended for complaints such as those
prese nted by

Mr. Hug hes.

At the conc lusion of his deposition, Dr. L undy acknow ledg ed that an a ccide nt like the one from which this case arose has the potential to exacer bate a pre- exis ting injury
, but that since Mr. Hug hes had suffe red from the same sy mptoms prior to the acc ident as afte rwa rds, there was no way to apportion those sy

mptoms betwee n the acc ident from which this case arose and ear lier incidents and medical conditions. Dr

. L undy also stated that he found many inconsistencies in the explanations Mr. Hug hes offe red about his prior medical history
, his use of pain medication, and his

curr ent sy mptoms, so t hat he ha d “a dif ficult time with his credibility .”

The testimony of Dr. L undy casts doubt on the testimony of Dr. Parham t h at M r. Hug hes suffe red a phy sical injury from the acc ident. I t also raises g enuine questions as to the intensity
, the duration, and even th e ex istence of the pain repor ted by Mr. Hug hes, on the rea sonablene ss and

nece ssity of the medical car e he rec eived afte r the acc ident, and whether any pain he did experience

was derive d from t h at ac cident, rathe r than from ear lier traumas. Consequently
, there is materia l evidenc e to suppor

t the jury ’s verdic t that Mr

. Hug hes did not suffe r any phy sical injury for which Mr. Hudg ins was leg ally

responsible a s a re sult of the acc ident of F ebrua ry 18, 2007.

-6-B. M E D I C A L E X P E N S E S

At oral argument, Mr. Hug hes’ attorney did not focus on the question of phy sical injury but rathe r on the question of medical expenses rela ted to his client’s visit to the emer g ency room. These 1 included a bill of $785 for ambulance service s and $1,229 for emer g ency room service s. He contende d that since Mr. Hudg ins admitted fault for the acc ident, and since Mr. Hug hes was broug ht by ambulance immediately afte r the acc ident to be chec ked out in the emer g ency room, Mr. Hug hes is at the very

least entitled to rec over those c osts as damag es.

Mr. Hug hes relies for this proposition upon two case s from the Western Section of this court. I n Newsom v. Marcus, 588 S.W .2d 883 (Tenn. Ct. Ap p

. 1 9 7 9 ), a woman filed suit for persona l injuries that she alleg edly suffe red as the result of a motor vehicle acc ident, and her husband added a claim for medical ex penses and loss of consortium rela ted t o the ac ci d en t

. T he court direc ted a verdic t for the pl ai n t i ff

s on the question of liability

. The proof showed that the impact of the collision was slight. The jury found that the wife did not suffe r any new injury nor any ag g ravation of her pre- exis ting back problems as a result of the collision and acc ording ly did not awa rd her any damag es. B ut it did award $950 to her husband, without expl anation.

The couple appea led, contending that th e verdic t was both inconsistent and contra dictory

. This court deduc ed that the awa rd to the husband wa s for e merg ency room expenses, and, c iting a number of case s from other jurisdictions, it stated that “it has been held that a party i s enti tled to

rec over rea sonable medical expe n s es fo r ex amination, etc., in an eff ort to deter

mine if persona l injuries wer e sustained as a result of defe ndant’s neg lige nce, even though it develops that the party suffe red no persona l injury .” Newsom v. Marcus, 588 S.W .3d at 887. We acc ording ly aff irmed the verdic t.

I n the unpublished ca se of Litt les v. Laine , No. 02A01-9806-CV- 00148, 1999 WL 281311 (Tenn. Ct. App. May 7, 1999) (no Tenn. R. App. P. 11 application fi l ed ), this court extended the
scope of the rea soning of Newsom v. Marcus
, by apply ing it to a case in w hich the jury declined to

awa rd any rec overy t o o n e o f t h e plaintiffs. That case also involved a collision in which the defe ndant’s liability was established. Whil e the jury awa rded $760 to the driver of the car that was struck, it declined to awa

rd damag es to his passeng er, even though, on the day afte r the acc ident, he
soug ht trea tment at a clinic fo r n ec k
, back and wrist problems. We reve rsed as to the passeng er, holding that the pa sseng er was “entitled to the rea sonable medic al expenses re quired to dete rmine if injuries wer e sustained,” 1999 WL 281311 at *2, and we rema nded the case to the trial court for

a new trial on damag es only

.

Howeve r, in Gibson v. Francis
, No. E2003-02226-COA- R3-CV, 2004 WL 1488541, (Tenn. Ct. App. J une 30, 2004) (no Tenn. R. App. P. 11 application filed) the Easter n Section of this Court

was fac ed with a simil ar situation but rea ched a differ ent conclusion. I n that case , the jury returne d

T h e a t t o r n e y w h o p r e s e n t e d t h e p l a i n t i f f ’ s c a s e t o t h e j u r y , J o h n M c C l a r t y , d r a f t e d h i s a p p e l l a t e b r i e f

. A 1

d i f f e r e n t a t t o r n e y , J e f

f r e y W

. R u f

o l o , d e l i v e r e d t h e o r a l a r g u m e n t

.

-7-a $6,900 ver dict for da mag es to the plaintiff’s automobile, but de clined to awar d her a ny damag es for persona l injuries. The proof showed that the plaintiff did not g o to the emer g ency room afte r the

acc ident, but w ent to he r doctor later that day with a complaint of back pain. He ref err ed her to a

n orthopedist, who was unable to rea ch a medical diagno s i s t hat would corr oborate her subjective complaints of pain. T h i s co u rt affirmed the jury verdic t. Although we did not direc tly ref er to medical e x penses, we stated that,

I t w as the duty

and pre rog ative of the jury to a ssess the cre dibilit y of the witnesses, and the jury was at liberty to either believe or disbelieve the plaintiff' s subjective complaints. The jury appar ently chose not to beli ev e t h e plaintiff' s testimony
reg arding her pain, its o ri gi n , and/or its eff ect on her. I f the jury disbelieved the plaintiff - appar ently it did - then the plaintiff failed to e stablish he r persona l injury claim by a preponde ranc e of the evidenc e. As a conseque nce of this, there is materia l evidenc e to support the jury ' s verdict.

Gibson v. Francis , 2004 WL 1488541 at *5.

Rely ing on the Litt les case , Mr. Hug hes urg es us to a dopt a brig ht line rule that if a party is involved in an acc ident cause d by the fault of another and he g oes to the emer g ency room afte r the

acc ident, he should automatically be entitled to rec over the expenses incurre d to deter mine if he has been injured, even if no injury is diag nosed. Whil e a strong argument might be made for such a rule,

we believe there is an even strong er argument for letting the question rema in in the hands of the jury

.

III. D I S C R E T I O N A R Y C O S T S

Mr. Hudg ins argues on appea l that the trial court err ed in failing to aw ar d h i m al l his discretionar

y costs. Under

Tenn. R. Civ. P. 54.04(2) such costs are “allowable only in the court’s discretion,” and they include “re asonable and nece ssary court repor ter expenses for depositions and trials, rea sonable and nece ssary expert witness fee s for depositions (or stipulated repor ts) and for trials, rea sonable and nece ssary interpre ter fee s for depositions or trials, and g uardia n ad litem fee s.”

After the ju ry v er d i ct and judgme nt wer e rende red, Mr. Hudg ins filed a Motion for discretionar

y costs, in the total amount of $10,911.45. The court awa rded him $645.95 for the court repor ter expenses incurre d for the deposition of Dr. Parham ($ 2 5 0

. 5 0) and the deposition of Mr. Hug hes ($395.45). The awa r d e xc lu d e d c o mp e n s ation for the independe nt medical evalua tion of Mr. Hug hes by Dr. L

undy ($6,265), expenses rela ted to the deposition of Dr. Lundy ($3,112.50), court repor ter expenses rela ted to the deposition of Dr. Lundy ($628) and the court repor ter’s per diem for trial ($260).

Our Supreme Court has ruled that the fee of a doctor who was reta ined as an expert to evalua te a worke rs’ compensa tion claimant was not rec overa ble as a discretionar

y cost under Tenn. R

. Civ. P. 54.04(2) beca

use such fee s are not mentioned in the rule. “The rule specific ally l i m i t s discretionar

y costs with reg ard to expert witnesses to their fee s for testify ing.” Miles v. Voss Health

-8-Care Center
, 896 S.W .2d 773, 776 (Te nn. 1995). See also Massachusetts Mutual Life Ins. v.

Jefferson
, 104 S.W .3d 13, 38 (Tenn. Ct. App. 2002). Mr. Hudg ins c oncede d at oral argument that he was not entitle d t o re i m b u rsement for Dr. Lundy ’s independe nt medical examination. He contends, howeve r, that the trial court err ed in not awa rding him his other discretionar y costs, which do fall within the ambit of rule 54.04( 2).

Rule 54.04(2) spe cifies that suc h costs are allowed “ only in the court’s discr etion” and the appellate courts have stated many times that they will not alter a trial court’s ruling on discretionar y costs absent a clea

r abuse of that discretion. Trini ty Industries v. McKinnon Bridge Co.
, 77 S.W .3d 159, 180 (Tenn. Ct. App. 2001). See also Perdue v. Gree n Branch Mining Co., 837 S.W .2d 56, 60 (Tenn. 1992) ; Lock v. National Union Fire Insurance

, 809 S.W .2d 483, 490 (Tenn. 1991)

.

I n deter mining whether an abuse of discretion has occur red, appellate courts must not mere ly substitut e their judgme nt for that of the trial court. Ove rstreet v. Shoney’ s Inc.
, 4 S.W .3d 694, 708 (Tenn. Ct. App. 1999). “Appe llate courts will set aside a discretionar y decision only when the trial
court has misconstrued or misapplied the controlling leg al principles or has acte d inconsistently with the substantial weig ht of the evidenc e.” W hite v. Vanderbilt Univ
., 21 S.W .3d 215, 223 (Tenn. Ct. App. 1999). Where a court has improperly construed or applied the appli ca b l e l ega l principles, appellate courts may

proper ly reve rse the tr ial court' s decision.

The awa rd of discretionar

y costs stems from a desire to make the preva iling party whole. Massachusetts Mutual Life Ins., 104 S.W .3d at 33; Scholz v. S.B. Int’l, Inc., 40 S.W .3d 78, 85 (Tenn. Ct. App. 2000). Mr. Hudg ins points to a series of case s which stand for the p ro p o s i t ion that
g ener ally the courts should awa rd discretionar

y costs to a preva iling party if the costs are rea sonable and nece ssary , so long as the preva iling party has filed a timely and proper ly supported motion and has not eng ag ed in conduct during the litigation that justifies depriving it of the costs it is reque sting. Massachusetts Mutual Life Ins. at 35-36. See also Trundle v. Park, 210 S.W .3d 575, 582 (T enn. Ct. App. 2006); W

aggoner Motors v. W

averly Church of Chris t , 159 S.W .3d 42, 65-66 (Te nn. Ct. App. 2004).

As this court has stated,

Gene rally
, trial courts awa rd such [di scre tionary ] costs to whicheve r party ultimately
preva ils in t h e lawsuit, provided the preva iling party has filed a timely
, proper ly supported motion. The succe ssful party is not, howeve r, automatically entitled to an

awa rd of costs. I nstead, trial courts are fre e to apportion costs betwee n the litigants

as the equities of ea ch case demand. Acc ording ly
, if any equitable basis appea rs in the rec ord which will support the trial court' s apportionment of costs, this court must aff irm. Moreove r, on appea l, the appellant bear s the burden of showing that the trial
court a bused its discretion in its assessment of costs.

-9-Sanders v. Gray
, 989 S.W .2d 343, 345 (Tenn. Ct. App. 1998) (citations omitted). See also Milliken

v. Crye-Leik

e Realtors
, No. M1999-00071-COA- R3-CV, 2001 WL 747638 at *11 (Tenn. Ct. App. J uly 5, 2001) (Rule 11 pe rm. app. de nied Dec . 10, 2001).

I n this case , Mr. Hudg ins was the preva iling party beca use the jury found th at he did not

cause Mr. Hug hes any injury for which Mr. Hudg ins was leg ally responsible. No evidenc e has been
prese nted, nor has any sug g estion been made, that M r. Hu dg ins has acte d in any way that would justify the court in depriving him of t he costs he incurred. I n fac t, by admitting fault at t he outs et he spare d Mr. Hug hes the costs that otherwise would have been require d to establish that element. Nonethele ss, the trial court awa rded Mr. Hudg ins only some of the discretionar y costs for which reimburse ment is available under Rule 54.04(2). The court did not explain its rea soning for limit ing the awa rd of costs in the way that it did. W e t h er ef o re must sear ch the rec ord to deter mine if it contains any equitable basis to support the trial court’s apportionment of costs. I f it does, this court must affirm. Sanders v. Gray

, 989 S.W .2d at 345.

Mr. Hug hes does not claim that the fee s in question wer e unrea sonable or wer e unnece ssary

. He simply argues that he has been disabled for s ev era l y ear s and that awa rding such costs could

cre ate a chilling eff

ect on future litigation. Any consideration of such fac ts and alleg ations must be balanc ed ag ainst the burdens imposed upon Mr. H udg ins by the dec ision Mr. Hug hes made to f ile suit and to ask for $100,000 in compensa tion for his alleg ed injuries. I t is clea r that Mr. Hudg ins had
to procur e the deposition testimony of a medical expert witness like Dr. Lundy in order to mount an eff ective response to the deposition testimony of Dr. Parham. As we noted above, Rule 54.04 authorizes the court to awa rd rea sonable and nece ssary expert witness fee s and co u rt repor ter expenses for de positions t o the pre vailing pa rty

.

The basis for the trial court’s decision to awa rd Mr. Hudg ins some, b u t n ot all, of his discretionar

y costs is unclea

r from the rec ord. Be cause of the discretion g iven to the trial court and its authority to apportion costs “as the equities demand,” we must reman d t h is matter to the trial court for considera

tion of the awa

rd of discr etionary

costs.

IV.

The judgme nt of the trial court is aff irmed in part and vacated in part. We rema nd this case to the Circuit Court of Hamilton County for any further proce eding s nece ssary , consistent with this opinion. Tax the costs on appe al to the appe llant, Be rnar d Hug hes.

____________________________________ PATRI CI A J . COTTREL L , P.J ., M.S.

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