### IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE September 6, 2016 Session

DAVID H. McCORD v. HCA HEALTH SERVICES OF TENNESSEE, INC.

Appeal from the Circuit Court for Davidson County
No. 13C291 Kelvin D. Jones, Judge

___________________________________

No. M2016

- 00240

- COA

- R3

- CV

– Filed September 27, 2016

___________________________________

S urgeon brought suit against a hospital alleging multiple c auses of action, two of which were dismissed upon the hospital‟s motion for dismissal for failure to state a claim for relief

. Purs uant to Tenn. Code Ann. § 20

- 12

- 119 (c)

, the hospital filed a motion seeking recovery of

costs and attorneys ‟ fees relat ed to the dismissal of the two claims ; th e trial court granted the
motion

. Plaintiff appeals

. W e find no error in the award and

, accordingly

, affirm the judgment

.

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

R ICHARD H. D INKINS
, J ., delivered the opinion of the court, in which F RANK G. C LEMENT
, J R

. , P.J., M.S., and W. N EAL M C B RAYER , J., joined.

C. Bennett Harrison, Jr., and John D. Kitch, Nashville, Tennessee, for the appellant, David H. McCord, M. D.

C. J. Gideon, Jr., and Kaycee Weeter , Nashville, Tennessee, for the appellee, HCA Health Services of Tennessee, Inc. d/b/a Centennial Medical Center.

OPINION

This case comes before us a second time ; t he procedural history and salient facts are
set forth in McCord v. HCA Health Servs. of Tennessee, Inc. , No. M2014

- 00142

- COA

- R3

- CV, 2015 WL 1914634 (Tenn. Ct. App. Apr. 27, 2015), appeal denied (Oct. 15, 2015))

. Dr.
David McCord filed suit against HCA Health Services of Tennessee

, doing business as Centennial Medical Center (“HCA”), asserting causes of action for breach of contract, defamation, common law and statutory disparagement, and intentional interference with existing and prospective business relationships, all arising out of the revocation of his2

surgical privileges

. The trial court dismissed the causes of action predicated on breach of contract pursuant to Tenn. R. Civ. P. 12.02 (6) (counts I and II of the Complaint) and dismissed the remaining causes of action for lack of subject matter jurisdiction pursuant to Rule 12.02(1). In the first appeal, we affirmed the dismissal of the breach of contract c auses of action and reversed t he court‟s dismissal of the tort c auses of action for lack of subject matter jurisdiction; we proceeded to grant summary judgment as to the tort causes of action

a nd dismissed the case. The Tennessee Supreme Court denied Dr. McCord‟s application for permi ssion to appeal.

While the first appeal was pending, HCA moved for an award of attorney‟s fees and

costs pursuant to Tenn. Code Ann. § 20

- 12

- 119(c)

. When the case was remand ed, Dr.
McCord filed an oppos ition to the motion, and a hearing was held. The t rial court granted
the motion and awarded HCA fees and costs in the amount of $10,000

. Dr. McCord appeals

.

Our standard of review was aptly set forth in Snyder v. First Tennessee Bank, N.A. :

We generally review an award of discretionary costs accor ding to an abuse of
discretion standard. See Tenn. Code Ann. § 20

- 12

- 119(a)

– (b); Placencia v. Placencia, 3 S.W.3d 497, 503 (Tenn. Ct. App. 1999) (“Absent a clear abuse of discretion, appellate courts genera lly will not alter a trial court‟ s ruling with respect to costs.”). Under Tennessee Code Annotated § 20

- 12

- 119(c), this Court continues to review the trial court‟s factual determination of whether litigation costs, including attorney‟s fees, are reasonable under an abuse of
discretion st andard. See Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011). . . . However, apart from these specific factual determinations, the standard of review for the award of litigation costs pursuant to Tennessee Code Annotated § 20

- 12

- 119(c) is a matter of law due to the mandatory language of the statute. . . . [W]e review matters of law de novo with no presumption of correctness. See Cunningham [v. Williamson Cnty. Hosp. Dist.], 405 S.W.3d [41,] at 43 [Tenn. 2013].

No. E2015

- 00530

- COA

- R3

- CV, 2 016 WL 423806, at *8 (Tenn. Ct. App. Feb. 3, 2016).

Tenn. Code Ann. § 20

- 12

- 11 9, subsection (c) reads in pertinent part :

(1) Notwithstanding subsection (a) or (b), in a civil proceeding, where a trial court grants a motion to dismiss pursuant to Rule 12 of the Tennessee Rules of Civil Procedure for failure to state a claim upon which relief may be granted, the court shall award the party or parties against whom the dismissed claims were pending at the time the successful motion to dismiss was granted the
costs and re asonable and necessary attorney’ s fees incurred in the proceedings as a consequence of the dismissed claims by that party or parties.3

The awarded costs and fees shall be paid by the party or parties whose claim or
claims were dismissed as a res ult of the granted motion to dismiss.

(2) Costs shall include all reasonable and necessary litigation costs actually incurred due to the proceedings that resulted from the filing of the dismissed claims, including, but not limited to:

(A) Court costs; (B) Attorneys ‟ fees; (C) Court reporter fees; (D) Interpreter fees; and (E) Guardian ad litem fees.

(3) An award of costs pursuant to this subsection (c) shall be made only after all appeals of the issue of the granting of the motion to dismiss have
been exhausted and if the final outcome is the granting of the motion to
dismiss. The award of costs and attorneys ‟ fees pursuant to this section shall be stayed until a final decision which is not subject to appeal is
rendered.

(4) Notwithstanding any other provision of this section, the court shall not require a party to pay costs under this section in excess of a combined total of ten thousand dollars ($10,000) in any single lawsuit.

. . . Nothing in this
section shall be construed to limit the award of co sts as provided for in
other sections of the code or at common law.

. . .

(Emphasis added)

.

Tenn. Code Ann. § 20

- 12

- 119(c)(1) mandates that the court award the party “against whom the dismissed claims were pending at the time the successful motion to dismiss was granted” costs and reasonable attorney‟s fees. Dr. McCord contends that the statute “should be construed as requiring that the whole case be dismissed under 12.02(6) in order to implicate this fee shifting arrangement.”

When construing statutes, we “presume[] that the legislature intended every word be given full effect”; “[t]herefore, if the „language is not ambiguous . . . the plain and ordinary meaning of the statute must be given effect.‟” Graham v. Caples , 325 S.W.3d 578, 582 (Tenn . 2010) (ellipsis in original) (citing Lanier v. Rains, 229 S.W.3d 656, 661 (Tenn. 2007) and quoting In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007)). Accordingly, we do not construe “claims,” as that term is used in Tenn. Code Ann. § 20

- 12

- 119 (c)(1) in the fashion urged by Dr. McCord; rather, “claims” and the phrase “claim or claims” in subsection 119(c)(1) means a specific cause of action or application for relief within a lawsuit.4

“Claim” or “claims” is commonly used to describe such an ap plication for relief, and a party is permitted to “state as many separate claims or defenses as he or she has” in his or her pleading. Tenn. R. Civ. P. 8.05(2). 1 Presuming that “every word in a statute has meaning and purpose,” In re C.K.G. , 173 S.W.3d 7 14, 722 (Tenn. 2005), and observing that the Legislature chose to use the words “lawsuit” and “action” rather than “claim” or “claims” elsewhere in the same statute, 2 leads us to this construction. Thus, we interpret Tenn. Code Ann. § 20

- 12

- 118(c)(1) to p ermit recovery of costs and reasonable attorneys‟ fees when one or more claims within a lawsuit are dismissed pursuant to Rule 12.02(6).

Dr. McCord relies on the following language from Snyder to assert that “the entire
action is to be dismisse d for failure to state a claim upon which relief can be granted before costs can be awarded under the statute”:

[Tenn. Code Ann.] Subsection 119(c) provides for a defendant to recover up to $10,000 in “reasonable and necessary litigation costs,” including court reporter's and attorney's fees, from a plaintiff when the plaintiff's action is dismissed for failure to state a claim upon which relief can be granted.

2016 WL 423806, at *5

. Th is holding is not inconsistent with our construction of the statute.
The complaint in Snyder only asserted a cause of action for breach of contract, thus in that instance the word “claim” would be sy nonymous with the word “action.” In this case, however, multiple claims for relief were asserted, two of which were dismissed pursuant to Rule 12.02(6), and a proper construction of the statute leads to the holding we reach.

Dr. McCord next contends t hat the “final outcome was not the granting of the motion to dismiss but, rather, the granting of Centennial‟s motion for summary judgment.” This argument references the motion he filed to revise the order dismissing the breach of contract
causes of actio n; he attached as exhibits to the motion his unsworn declaration and his counsel‟s affidavit. He states in his brief that “[t]hese were matters outside the pleadings and were not excluded by the trial court. . . the trial court clarified its order based u pon this
motion and presumably considered this proof” (emphasis added).

1 Various rules illustrate this construction of the word “claim” by referring to claim(s) as a part of a complaint or pleading and not constituting the pleading itself. See Tenn. R. Civ. P. 8.01 (“a pleading . . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief”); Tenn. R. Civ. P. 10.02 (“[e]ach claim founded upon a separate transaction or occurrence . . . shall be st ated in a separate count . . . whenever a separation facilitates the clear presentation of matters set forth”). See also Tenn. R. Civ. P. 12.02; 13.01, 13.05, 13.09; 18.01 and 18.02.

2 See Tenn. Code Ann. § 20

- 12

- 119(c)(4), limiting recovery to $10,00 0 “in any single lawsuit” and § 20

- 12

- 119(c)(5)(A) and (D), pertaining to “actions” by or against the state or by pro se litigants, respectively.5

In support of this argument Dr. McCord cites to the order disposing of his motion to
revise wherein the court states:

[T]his Court DENIES Plaintiff‟s Motion to Revise the judgment o f its June 27, 2013 Order, which dismissed Counts I and II of the Plaintiff‟s Complaint, pursuant to Tenn. R. Civ. P. 12.02(6). However, this Court revises its June 27, 2013 Order to provide additional clarification of the reasons for dismissing
Counts I and II.

The order proceeded to discuss in greater detail the provisions of the bylaws upon which the original Rule 12 dismissal was based ; this discussion is explanatory in nature

, and there is nothing in the discussion to indicate that the court considered the affidavit or declaration. Dr.
McCord does not otherwise cite to any evidence from which we could reach such a
determination

, and we cannot presume that the trial court did s o in the absence of the same.
We see no basis in the record to conclude that the court considered the matters in the affidavit or the declaration in disposing of the motion to revis e ; accordingly, the motion to
dismiss was not converted into one for summa ry judgment.

We n ext address whether the court abused its discretion in awarding $10,000 in fees
and costs to HCA

. Dr. McCord asserts that the affidavit of opposing counsel “does not differentiate between the time expended on issues unrelated to the granting of the original motion to dismiss.” Our review of the affidavit leads us to a different conclusion.

In addition to the itemization of time and services rendered, HCA‟s c ounsel included in the affidavit the following explanation :

The fees and c osts for which an amount is reflected were reasonable and necessary to defend the claims in Counts I and II of the Complaint. Work that included time and effort addressing Counts I and II of the Complaint, but [as to which] no allocation could be made, is shown with a “NC” entry in the [amount] column.

We have examined the affidavit and conclude that it is sufficiently detailed as to both the work performed and the time spent on the tasks listed. The total of attorneys‟ fees for the
services reflected in the affidavit was in excess of $26,000 and more than $2,000 in costs. Citing Tenn. Code Ann. § 20

- 12

- 119(c), the trial court granted HCA judgment in the amount of $10,000. The decision was consistent with the proof and we discern no basis upon which

t o determine that the court abused its discretion in making the award. 3

3 Dr. McCord asserts that “all of the work performed beginning in November of 2013 had nothing to do with
the motion to dismiss that was granted.” HCA disagrees with his assertion. While Dr. McCord argues that the affidavit contains costs that do not relate to the initial motion to dismiss and does not properly show the6

For the foregoing reasons, we affirm the judgment of the trial court.

RICHARD H. DINKINS, JUDGE

division of labor, we conclude that the af fidavit demonstrates that even before Dr. McCord filed the motion to revise in November 2013, HCA had already incurred more than $10,000 in attorney‟s fees, the maximum amount of fees allowed by Tenn. Code Ann. § 20

- 12

- 119(c)(4). The evidence supports the court‟s decision to
award fees in this amount.