# FILED
October 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON
BECKY SAN DERS, ) ) Plaintiff/Appellee, ) Tipton Circuit No. 3954 ) VS. ) Appeal No . 02A01-9710-CV- 00268 ) GEORGE MOTT GRAY and ) JOHN CURTIS, ) ) Defendants/Appellants. )
APPEAL FROM

THE CIRCUI T COURT OF TIP TON COUNTY AT COVINGTON, TENNESSEE THE HONORABLE JOSEPH H. WALKER, III, JU DGE

DON G. OWENS, III Memphis, Tennessee WALKER TIPTON Covington, Tennessee Attorneys for Appellants

LARRY S. BANKS BANKS LAW F IRM , P. A. Brownsville, Tenness

ee Attorney for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . HOLLY KIRBY LI LLARD, J.2

Defendants George Mott Gray and John Curtis appeal the trial court’s order denyin g theirrespective motions for discretionary cos

ts against Plaintiff/Appellee Becky Sanders. Defendant Gray additionally appeals the trial court’s order to the extent that it assesses him with Sanders’ costs. For th e reasons hereinafter stated, we affirm the trial court’s judgment.
I. Factual and Procedural History

Sanders sued Gray and Curtis for injuries she received in a May 1992 automobile accident. Sanders’ complaint alleged that she was a passenger in an automobile dr iven byDefendant Curtis when it c ollided with a truck driv en by Defendant Gray at the inter sec tion of Highway 14 and Mt . Carmel Road in Tipton County. In her complaint, Sanders sought $200,000 for her injuri es, and atno time during these proceedings did she seek less than $100,000. Prior t o trial, Gray

offered Sanders $25,000 to settle her lawsuit, but Sanders rejected the offer and proc eeded to trial.

At trial, Curtis testi

fied that he was

driving down the highway toward the intersecti on when Gray’s green truck turned in front of Curtis’s automobile and caused the two vehicles to collide. Gray acknowledged that he was in the left turn lane preparing to make a left turn at the intersection, but he testified that he never saw Curtis’s automobile and that his truck was completely stopped just prior to the impact.

The jury apparently believed Curt is’s ver sion of events because, at the trial’s conclusion, the jury returned a verdict finding that Gray was one hundred percent (1 00%) at fault and that Curtis bore no r esponsibility for the acc iden t. The ju ry f ound Sanders’ damages to be $25,000, the same amount Gra y had offered to settle the lawsuit prior to trial.

After

the trial court entered a judgment on the jury v erdict, each of the parties file d motions for discretionary costs pursuant to rule 54.04( 2) of the Tennessee Rules of Civil3

Procedure. The trial court entered an order gra nting Plaintiff Sanders’ motion and assessing $3,501.15 in discretionary costs against Defendant Gray. The trial court denied Gray’s and Curtis’ s respective motions for di scretionary costs against Sanders.

On appeal, Gray contends that the trial court err

ed in granting

Sanders’ motion for discretionary costs and as sessing th ese costs ag ainst him. Additionally, Gray and Curtis contend that the trial court erred in denying theirrespective motions for di scretionary costs against Sanders.

II. Discussion of the Law
As pertinent, rule 54.04 of the Tenness ee Rules of Civil Proc

edure provides that: (1) Costs included in the bill of costs prepared by the clerk shall be allowed to the prevailing pa rty un less 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. . . . T.R.C.P. 54.04.
Pur suant t o rule 54.04, trial court s are vested with w

ide discretion in awa rding discretionary costs, and this court w ill not interfere with such an award exc ept upon an affirmat ive showing that the trial court abused i ts discretion. Perdue v. Green Branch Mining Co. , 837 S.W.2d 56, 60 (Tenn. 1992); In re McCoy , No. 03A01-9604- CH-00143, 1996 WL 599703, at *7 (Tenn. App. Oct. 21, 1996), perm. a pp. denied (Tenn. Apr. 7, 1997); Ashford v. Benjamin , No. 02A01-9311-CV-00243, 1994 WL 677607, at *2 (Tenn. App. Dec. 6, 1994); Faux v. Spears , No. 03A01-9312-CV-00433, 1994 WL 147830, at *2 (Tenn. App. Apr. 26, 1994). Generall y, trial c ourts award such costs to whichever party ultimately prevails in the law suit, providedthe prevailing part y has filed a timely, properly supported motion. Turner v. Turner , No. 01A01-9506-CV-00255, 1997 WL 136448, at *17 (Tenn. App. Mar. 27, 1997); Austin Powder Co. v. Thompson , No. 03A01-9607-CV-00229, 1996 WL 718291, at *2 (Tenn. A pp. Dec. 16, 1996); Dent v. Holt , No. 01A01-9302-CV-00072, 1994 WL 440916, at *3 (Tenn. App. Aug. 17, 1994), modified on4

other grounds , 1994 WL 503891 (Tenn. App. Sept. 16, 1994); Harmon v. Shell , No. 01A01-9211-CH-00451, 19 94 WL 1 48663, at *7 (Tenn. App. Apr. 27, 1994) . The successful party is n ot, however, automatical ly entitled to an awar d of costs. See Benson v. Tennessee Valley Elec. Coop. , 868 S.W.2d 630, 644 (Tenn. App. 1993); Faux v. Spears , 1994 WL 147830, at *2; Webber v. Bolling , 1989 WL 151496, at *4 (Tenn. App. Dec. 13, 1989). Instead, trial c ourts are free to apportion cos ts between the litigants

as the equitiesof each case demand

. Perdue v. Green Branch M ining Co. , 837 S.W.2d at 60; In re McCoy , 1996 WL 599703, at *7; Christian v. Hardi ng , 1993 WL 156164, at *1 (Tenn. App. May 14, 1993). Accordingly, if any equitable basis appears in the record which will support the trial court’s apportionment of costs, this court must affirm. See, e.g. , Benson v. Tennessee Valley Elec. Coop. , 868 S.W.2d at 644 (holding that trial court did not abuse its discretion in failing to award costs to successful plaintiffs, in light of large amount of jury verdicts in plaintiffs’ favor). M oreover, on appea l , the appellant bears the burden o f showing that the trial court abused its discretion in its a ssessment of co sts. Faux v. Spears , 1994 WL 147830, at *2.
Applying the foregoing standard, w e conclude that thetrial court did not abuse its discretion in granting Sanders’ motion for discreti o nary costs against Gr ay and, co nversely, in denying Gray’s motion against Sanders. At the trial’s conclusi on, Sanders was awarded a significant judgment ag ainst Gray in the amount of $25,000.Inasmuch as Sanders was the prevailing party

in her lawsuit against Gr

ay, the trial court ac

ted within its

discretion in awarding Sanders her co sts incurred in this l itigation. See Turner v. Turner , 1 99 7 WL 136448, at *17; Austin Powder Co. v . Thompson , 1996 WL 718291, at *2.

On appeal, Gray insists that he actua lly was t he prevailing party because the amount of the ju dgment o btained by S an ders was much less than the $100,000 in damages she sought during these proceedings and, further, because the judgment was the same as the settlement amount offered by Gray prior to trial. We disagree. In many cases, plainti

ffs ultimately are awar

ded judgmentsin an amount significantly less than the amount of damages they seek in their compl aints or at trial. By it self, however, such an5

outcomedoes not negatethe plaintiff’s status as a prevailing party. Moreover, we note in this case that Gray’s settl ement offer was not a formal offer of judgment, which would have entitled him to an award of costs under rule 68 of the Tennessee Rules of Civil Proc edure. See T.R.C.P. 68 (requirin g plaint iff to pay all costs accrui ng after defendant’s offer of judgment if judgment finally obtai ned by p laintiff is not more favorable than offer). W hile we agree that Gray’s ar guments raise equitable considerations which may be relev

ant to a t rial cour

t’s assessment of costs in a given case, we do not think that the trial court abused its discretion in rejecting these argument s in this case.

We also affirm the trial court’ s decision t o d eny Curtis’s motion for discretionary costs against Sanders. We agree that, as betw een Sanders and Cur

tis, C urtis was the prevailingparty because the jury found no liabi lity on the part of Curtis for the subject accidentand, thus, Sanders was awarded no judgment against Curtis. Neverthel ess, we do not necessarily agr

ee that Curtis’s costs should have been assessed against Sanders. We reiterate that the trial court is given wide discretion to apportion cos ts as the equities of each case d emand. Under the circumstances of this case, we think that the equities favored an awar

d of cost s again st Defen dant Gra y, but n ot neces

sarily agains t Plain tiff Sanders, and we know of no procedur al impediment which wo uld have prevented the tr ial court from assessing Curtis’s costs against his codefendant.As all of the parties conceded below and on appeal, as a practical matter, Sanders w as required to sue both Gray and Curtis for her injuries, given this state’s then recen t adoption of comparative negligence principles. See McIntyre v. Balenti ne , 833 S.W.2d 52 ( Tenn. 1 992). Moreover, for purposes of awarding costs in this lawsuit, Gray clearly was th e “ losing party.” See Turner v. Turner , No. 01A01-9506-CV-00255, 1997 WL 136448, at *17 (Tenn. App. Mar. 27, 1997 ) (noting t hat trial courts ma y tax certain litigation costs ag ainst “losing party”); Bulla v. Bulla , No. 01A01-9004-CV-00133, 1990 WL 160291, at *5 (Tenn. App. Oct. 24, 1990) (notingthat, no rmally, “lo sing party” in case pays costs). Defendant Curtis, however, chose to limit his mo tion for discretionary costs by seeking such costs against Sanders only, and not against Gray. Giv en the procedural posture of this case and, specifi cally, Curtis’s failure to see k costs against the losi ng party, we cannot say that the6

trial cou rt abused its discretion in denying Curtis’s motion for discretionary costs against Sanders.

T he judgment of the trial court is hereby affirmed. Costs of this app eal are taxe d to the Ap pellant s, for whic h executio n may issue if neces sary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

LILLARD, J.