Patsy Freeman, Individually and as Administratrix of the Estate of John R. Freeman v. CSX Transportation, Inc., a Florida Corporation

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 25, 2010 Session

PATSY FREEMAN, INDIVIDUALLY AND AS ADMINISTRATRIX OF

THE ESTATE OF JOHN R. FREEMAN, DECEASED v. CSX

TRANSPORTATION, INC., A FLORIDA CORPORATION ET AL.

Appeal from the Circuit Court for Rutherford County

No. 49982 J. Mark Rogers, Judge

No. M2009-02403-COA-R3-CV - Filed November 3, 2010

The issues in this case are whether Tennessee’s “common county rule” deprived the

Rutherford County Circuit Court of subject matter jurisdiction and whether the court erred

in assessing discretionary costs. This wrongful death action arises from a fatal vehicular

accident in Normandy, Bedford County, Tennessee, in which the decedent’s vehicle was

stuck by a train owned by CSX Transportation, Inc. The mother of the decedent, in her

individual capacity and as the personal representative of the decedent’s estate, timely filed

this action in the Circuit Court for Rutherford County against CSX and the conductor of the

train. Over the next five years the parties conducted extensive discovery. On the first day of

trial, the plaintiff voluntarily dismissed the case without prejudice. On the motion of the

defendants, the Rutherford County Circuit Court assessed $34,098.27 in discretionary costs

against plaintiff. In this appeal, plaintiff contends the Rutherford County Circuit Court lacked

subject matter jurisdiction as a consequence of the common county rule, and that it erred in

awarding discretionary costs. We have determined that the common county rule does not

apply, the Rutherford County Circuit Court had subject matter jurisdiction, and that the court

did not abuse its discretion in assessing discretionary costs of $34,098.27 against plaintiff

after she voluntarily dismissed this action. Accordingly, we affirm the award of discretionary

costs.

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

F RANK G. C LEMENT, JR., J., delivered the opinion of the Court, in which R ICHARD H.

D INKINS, J., joined. P ATRICIA J. C OTTRELL, P.J., M.S., filed a dissenting opinion.

John W. Chandler, Jr., and Pamela R. O’Dwyer, Chattanooga, Tennessee, for the appellant,

Patsy Freeman, Individually and as Administratrix of the Estate of John R. Freeman,

Deceased.

John W. Baker, Jr., and Emily L. Herman-Thompson, Knoxville, Tennessee, for the

appellees, CSX Transportation, Inc., a Florida corporation, and Mike E. Martin.

OPINION

On the morning of April 22, 2003, the decedent, John R. Freeman, was driving on

Front Street in Normandy, Bedford County, Tennessee, which crosses a railroad track owned

and operated by CSX Transportation, Inc. As Mr. Freeman’s vehicle approached the track,

a CSX train conducted by Mike E. Martin was also approaching the intersection. Although

Mr. Martin activated the train’s warning lights and bells as it neared the crossing, Mr.

Freeman proceeded onto the tracks and was struck broadside by the CSX train. He sustained

very serious injuries as a result of the collision and later died as a result of these injuries.

Thereafter, his mother, Patsy Freeman, was appointed administratrix of his estate.

On April 12, 2004, acting in her individual capacity and as administratrix of her son’s

estate, Patsy Freeman, (“Plaintiff”) commenced this action in the Circuit Court of Rutherford

County, Tennessee against two defendants, CSX and Mr. Martin (“Defendants”). The

complaint alleged that the defendants acted negligently and violated various railroad safety

statutes, and that these acts and violations resulted in the wrongful death of her son.

Defendants denied all liability.

At all times relevant to this action, Plaintiff and defendant CSX, resided in Coffee

County, Tennessee; while the other defendant, Martin, resided in Rutherford County,

Tennessee.

Over the next five years, the parties vigorously litigated the case in the Rutherford

County Circuit Court. Numerous depositions were taken, including those of several expert

witnesses. On March 30, 2009, the trial court granted partial summary judgment to defendant

CSX on several of Plaintiff’s claims. At this same hearing, Plaintiff announced she intended

to voluntarily dismiss all claims against defendant Martin. As Tenn. R. Civ. Pro. 41.04

requires, an order dismissing Martin was entered on April 6, 2009.

The remaining claims against CSX went to trial on April 27, 2009, at which time a

jury was empaneled to try the case. The next morning, before the trial began, Plaintiff filed

a Notice of Voluntary Non-Suit as to the remaining claims against defendant CSX. Shortly

thereafter, on May 6, 2009, defendants Martin and CSX filed a motion to recover

discretionary costs of $52,088.08 pursuant to Tenn. R. Civ. P. 41.04 and 54.04(2). Plaintiff

filed a timely objection to Defendants’ motion for discretionary costs.

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On July 24, 2009, the trial court entered the order of voluntary dismissal of Plaintiff’s

remaining claims. In a separate order entered on the same day, the trial court granted a

portion of the discretionary costs requested by Defendants. The award was reduced based on

the court’s findings that $17,989.81 of the $52,058.08 Defendants requested was not

recoverable, including $11,662.00 in court reporter fees for pretrial hearings, $1,512.50 in

videographer expenses for taping depositions, $636.50 in travel expenses for court reporters,

and $4,178.81 in travel expenses for expert witnesses.1 The judgment for discretionary costs

was assessed against Patsy Freeman in her capacity as an individual plaintiff and in her

capacity as administratrix of her son’s estate.2

One month later, on August 19, 2009, the action was re-filed by Patsy Freeman in her

capacity as personal representative, but not in her individual capacity, in the Circuit Court

of Davidson County against the original defendants, CSX and Mr. Martin. Defendants then

filed a motion to dismiss, asserting for the first time that Tennessee’s “common county

rule,”3 codified at Tenn. Code Ann. § 20-4-101(b), localized venue and restricted subject

matter jurisdiction to two counties, Coffee County, where Plaintiff and CSX both reside, or

Bedford County, where the accident occurred. Plaintiff agreed with Defendants’ venue and

jurisdiction argument; as a result, the Davidson County Circuit Court action was dismissed

without prejudice on March 25, 2010.

Soon after the dismissal of the Davidson County action, Patsy Freeman re-filed the

action against both defendants in the Bedford County Circuit Court, the third county in which

this action had been filed. In Bedford County, as in Davidson County, there was only one

plaintiff: Patsy Freeman as the personal representative of the decedent’s estate.4

In the interim, on August 21, 2009, Plaintiff filed a motion in the Rutherford County

Circuit Court seeking to alter or amend the order granting discretionary costs pursuant to

Tenn. R. Civ. P. 52.02 and 59.04.5 Ms. Freeman asserted that costs should not have been

1

Defendants did not appeal the trial court’s decision to deny these costs.

2

At that time, neither party challenged the jurisdiction of the Rutherford County Court.

3

“If . . . the plaintiff and defendant both reside in the same county in this state, then the action shall

be brought either in the county where the cause of action arose or in the county of their residence.” Tenn.

Code Ann. § 20-4-101(b).

4

When this appeal came on for oral argument, counsel for the parties advised that the Bedford

County action was still pending.

5

The motion to amend was timely filed within thirty days of the entry of the July 24, 2009 Rutherford

(continued...)

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assessed against her in her individual capacity because, she contends, she was never a real

party in interest. She also asserted that the court erred in awarding discretionary costs

because when the costs were assessed, she had re-filed the action and may ultimately prevail

on the merits. The Rutherford County Circuit Court denied the motion to alter or amend, and

a final order assessing discretionary costs in the amount of $34,098.27 against Patsy Freeman

in her individual capacity and as personal representative of the decedent’s estate was entered.

This appeal followed.

ANALYSIS

I.

Whether the Rutherford County Circuit Court had subject matter jurisdiction to assess

discretionary costs was never at issue before the trial court in Rutherford County.6 Plaintiff

did not raise this issue in the trial court, and a party who fails to bring an issue to the attention

of the trial court will generally not be permitted to raise the issue for the first time on appeal.

See Barnhill v. Barnhill, 826 S.W.2d 443, 458 (Tenn. Ct. App. 1991); Pearman v. Pearman,

781 S.W.2d 585, 587-88 (Tenn. Ct. App. 1989). Subject matter jurisdiction, however, is an

exception to the general rule and “the issue of subject-matter jurisdiction can be raised in any

court at any time.” Scales v. Winston, 760 S.W.2d 952, 953 (Tenn. Ct. App. 1988); see also

Tenn. R. App. P. 13(b). Thus, the issue of subject matter jurisdiction need not be raised in

the trial court to be considered on appeal. First American Trust Co. v. Franklin-Murray Dev.

Co., 59 S.W.3d 135, 140-41 (Tenn. Ct. App. 2001).

Subject matter jurisdiction addresses a court’s authority to adjudicate a dispute

brought before it. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). It is

dependent upon the nature of the controversy as well as the relief sought. Id. Judgments or

orders entered by a court without subject matter jurisdiction are “void and bind no one.”

Riden v. Snider, 832 S.W.2d 341, 343 (Tenn. Ct. App. 1991) (citing Brown v. Brown, 281

S.W.2d 492, 501 (Tenn. 1955)). Additionally, the lack of subject matter jurisdiction “is so

fundamental that it requires dismissal whenever it is raised and demonstrated” even if raised

for the first time on appeal. First American Trust Co., 59 S.W.3d at 141.

5

(...continued)

County order granting discretionary costs against Plaintiff.

6

The parties stipulated that the Rutherford County Circuit Court lacked subject matter jurisdiction

because Tennessee’s common county rule limited venue and jurisdiction to Coffee County, where Plaintiff

and Defendant CSX reside, or Bedford County, where the cause of action arose. We disagree as this opinion

explains.

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Venue, on the other hand, does not affect the court’s authority to rule on matters

before it; instead it relates “to the appropriateness of the location of the action.” Meighan v.

U.S. Sprint Commc’n. Co., 924 S.W.2d 632, 639 (Tenn. 1996). Objections to venue are

waived if they are not raised in the answer to the complaint or before, Tenn. R. Civ. Pro.

12.02 & 12.08, and will not affect the subject matter jurisdiction of a court. See Meighan,

924 S.W.2d at 639.

Transitory actions are personal in nature and jurisdiction is usually proper in any

county where a material defendant can be found. Pack v. Ross, 288 S.W.3d 870, 872 (Tenn.

Ct. App. 2008) (citing State ex rel. Logan v. Graper, 4 S.W.2d 955, 956 (Tenn. 1927)).

Venue in transitory actions ordinarily lies in “the county where the cause of action arose or

in the county where the defendant resides or is found.” Tenn. Code Ann. § 20-4-101(a).

However, Tennessee’s common county rule limits venue in transitory actions if “the plaintiff

and defendant both reside in the same county in this state.” Tenn. Code Ann. § 20-4-101(b).

If that is the case, then “the action shall be brought either in the county where the cause of

action arose or in the county of their residence.” 7 Id.

The statutory common county rule, however, does not apply in transitory actions

involving multiple defendants where not all of the material defendants reside in the same

county as the plaintiff and none of the material defendants reside in the county where the

cause of action arose. This is due to the fact that “Tenn. Code Ann. § 20-4-101(b) does not

by its terms apply to multiple parties, . . .” Winters v. Healthtrust, Inc., 836 S.W.2d 584, 585

(Tenn. Ct. App. 1992). As noted in Winters, this is apparent from a literal reading of the

statute, which reads in pertinent part: “the plaintiff and defendant both reside in the same

county in this state.” Id. (quoting Tenn. Code Ann. § 20-4-101(b)). “Although Tenn. Code

Ann. § 20-4-101(b) does not by its terms apply to multiple parties, our Supreme Court has

applied it in cases where the plaintiff and one of several defendants reside in the same county

and the cause of action arose there.” Id. (citing Tims v. Carter, 241 S.W.2d 501, 503 (Tenn.

1951)). Therefore, the rule does apply in cases involving multiple defendants if the plaintiff

and at least one material defendant reside in the same county and that county is where the

cause of action accrued. Tims, 241 S.W.2d at 503; Ward v. National Healthcare Corporation,

No. M2007-00231-COA-R9-CV, 2007 WL 3446340, at *2 (Tenn. Ct. App. Nov. 15, 2007);

Winters, 836 S.W.2d at 585.

7

The Tennessee Supreme Court has determined that this statute transforms otherwise transitory

actions into “local actions,” which must be brought “in the county of the subject-matter.” Pack, 288 S.W.3d

at 872. In other words, the localization of venue “creates subject matter jurisdiction restrictions on our

courts.” Id.; see also Curtis v. Garrison, 364 S.W.2d 933, 936 (Tenn. 1963) (Tennessee courts “have no

jurisdiction of local actions brought in the wrong county and consent cannot give jurisdiction.”).

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A thorough and historical review of the common county rule is stated in Tims v.

Carter. 241 S.W. at 502-03. In that action, the minor son of the plaintiffs died as a result of

a vehicular accident that occurred in Madison County, Tennessee. Id. at 501. The plaintiffs,

who resided in Madison County, filed suit in the Circuit Court of Davidson County against

three defendants, none of whom resided in Davidson County. Id. at 501-02. One of the

material defendants was a resident of Gibson County; the other two material defendants were

residents of Madison County, the county where the cause of action arose and where the

plaintiffs resided. Id. at 502.

When the defendants challenged venue and the jurisdiction of the Davidson County

court, the Circuit Court of Davidson County dismissed the suit upon a finding that it did not

have venue due to the residences of the parties. Id. On appeal, the Supreme Court analyzed

the effect of Code Sections 8640, 8641 and 8751(4), the predecessors to Tenn. Code Ann.

§ 20-4-101 that were in force at that time. Id. Code Section 8640 provided that: “‘In all

transitory actions, the right of action follows the person of the defendant, unless otherwise

expressly provided.’” Id. Code Section 8641 stated: “‘If the plaintiff and defendant both

reside in the same county, such action shall be brought in the county of their residence.’” Id.

Code Section 8751(4) provided: “‘Actions may be abated by plea of the defendant in the

following cases: Where the plaintiff and defendant both reside, at the time suit is brought,

in the same county, and the action is instituted in another county.’” Id.

After noting the respective residences of the parties, the Court found that:

[Section 8641] provides that if the plaintiff and the defendant live in the same

county the action must be in the county of their residence. It is thus evidence

that the intention of the Legislature was to provide that when both parties,

plaintiff and defendant, lived in the same county that the action should be

brought in that county for obvious and often expressed reasons.

Id. (emphasis added). The Court then explained that the common law rule grew into the

statutory scheme found in Code Sections 8640 and 8641, because: “‘These provisions evince

a legislative purpose to localize transitory actions. If both parties reside in the county the

action must be brought there and tried in courts convenient to litigants and witnesses.

Otherwise the action follows the defendant.’” Id. (quoting Haynes v. Woods, 268 S.W. 632,

633 (Tenn. 1925)) (emphasis added). We note with emphasis, however, that the above

citations focus on the fact there are two parties, one plaintiff and one defendant, and both

parties resided in the same county.

In the case at bar, we do not have one material defendant, we have two, which fact

distinguishes our case from the statutory scheme and historical references cited in Tims.

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Moreover, what we find most significant in Tims is that, after considering the history of the

rule, the Court reasoned that “where the plaintiff and a material defendant or defendants

reside in the same county, this county being the county where the cause of action accrued,

then the county of the residences of these parties should be the county of action for venue

purposes.” Id. at 503 (emphasis added). We fully agree with the Tims holding based on the

facts of that case; our facts, however, are materially different because none of the parties

reside in the county where the cause of action arose.

After considering the reasoning in Tims, and the fact that “Tenn. Code Ann. §

20-4-101(b) does not by its terms apply to multiple parties,” Winters, 836 S.W.2d at 585, we

have determined that the common county rule codified in Tenn. Code Ann. § 20-4-101(b)

does not localize this transitory action. While Plaintiff and one of the defendants reside in the

same county, there are two material defendants, each of whom resides in a different county,

and none of the parties reside in the county where the cause of action arose. Thus, this action

would not be localized under any reading of the statute or the case law. Because this action

was not localized, the Rutherford County Circuit Court was not deprived of subject matter

jurisdiction. See Meighan, 924 S.W.2d at 639 (holding that venue does not affect the court’s

authority to rule on matters before it).

An objection on the ground of venue could have been asserted by either defendant in

Rutherford County; however, neither defendant raised the issue in that court. Thus, it was

waived. See Tenn. R. Civ. P. 12.08 & 12.02.

For the reasons stated above, we have determined that the Circuit Court for Rutherford

County had subject matter jurisdiction over this action.

II.

After Plaintiff filed her Notice of Voluntary Non-Suit as to all remaining claims in

Rutherford County, Defendants filed a motion pursuant to Tenn. R. Civ. P. 41.04 8 and

54.04(2)9 to recover discretionary costs of $52,088.08. Plaintiff filed a timely objection.

8

Tenn. R. Civ. Pro. 41.04 provides:

If a plaintiff who has once dismissed an action in any court commences an action based

upon or including the same claim against the same defendant, the Court may make such

order for the payment of costs of the action previously dismissed as it may deem proper and

may stay the proceedings in the new action until the plaintiff has complied with the order.

9

Tenn. R. Civ. Pro. 54.04(2) provides in relevant part:

(continued...)

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Thereafter, the Rutherford County Circuit Court awarded $34,098.27 in discretionary costs

against Plaintiff in her individual capacity and as the personal representative of the estate.

On appeal, Plaintiff asserts this was an abuse of discretion.

Plaintiff presents a three-pronged challenge to the propriety of the award. First, she

argues the award was premature because, prior to the award of discretionary costs, Plaintiff

announced her intention to re-file the action and, as a consequence, could ultimately prevail.

In that case, Plaintiff would be entitled to recover discretionary costs instead of Defendants.

Second, she argues that some of the costs awarded were not “reasonable and necessary.”

Last, Patsy Freeman asserts that, as an individual, she was not a “real party in interest;”

therefore, the court erred in assessing the discretionary costs against her personally.

A “prevailing party” may request discretionary costs, such as “reasonable and

necessary court reporter expenses for depositions or trials, [and] reasonable and necessary

expert witness fees for depositions (or stipulated reports) and for trials.” Tenn. R. Civ. P.

54.02(2). The purpose of awarding discretionary costs is to help “make the prevailing party

whole,” not to punish the losing party. Owens v. Owens, 241 S.W.3d 478, 496-497 (Tenn.

Ct. App. 2007).

When deciding whether to award discretionary costs under Rule 54.04(2), the trial

court should:

(1) determine whether the party requesting the costs is the “prevailing party,”

(2) limit awards to the costs specifically identified in the rule,

(3) determine whether the requested costs are necessary and reasonable, and

(4) determine whether the prevailing party has engaged in conduct during the

litigation that warrants depriving it of the discretionary costs to which it might

otherwise be entitled.

9

(...continued)

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 (or stipulated reports) and for trials. . . . Subject to Rule 41.04, a party

requesting discretionary costs shall file and serve a motion within thirty (30) days after entry

of judgment. The trial court retains jurisdiction over a motion for discretionary costs even

though a party has filed a notice of appeal. The court may tax discretionary costs at the time

of voluntary dismissal. In the event an appeal results in the final disposition of the case,

under which there is a different prevailing party under the trial court’s judgment, the new

prevailing party may request discretionary costs by filing a motion in the trial court.

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Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 35-36 (Tenn. Ct. App. 2002) (citations

omitted). The burden is on the movant to convince the trial court that it is entitled to

discretionary costs, Carpenter v. Klepper, 205 S.W.3d 474, 490 (Tenn. Ct. App. 2006);

however, as a general matter, courts should “award discretionary costs to a prevailing party

if the costs are reasonable and necessary and if the prevailing party has filed a timely and

properly supported motion.” Mass. Mut., 104 S.W.3d at 35.

Rule 54.04(2) costs expressly address themselves to the sound discretion of the trial

court. Stalworth v. Grummins, 36 S.W.3d 832, 835 (Tenn. Ct. App. 2000). Accordingly, trial

courts are free to apportion the costs between the parties as “the equities of each case

demand.” Sanders v. Gray, 989 S.W.2d 343, 345 (Tenn. Ct. App. 1998). Therefore, on

appeal, this Court will not substitute our own discretion for that of the trial court. State ex rel.

Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). We will only overturn a

discretionary decision when the trial court has applied an incorrect legal standard, reached

an illogical decision, based its decision on a clearly erroneous assessment of the evidence,

or employed reasoning that causes an injustice to the complaining party. Mass. Mut., 104

S.W.3d at 35. The appellant bears the burden of demonstrating that the award constitutes an

abuse of discretion by the trial court. Sanders, 989 S.W.2d at 345.

The trial court found that Defendants were the prevailing parties because Plaintiff

voluntarily dismissed all of her claims against both defendants. Plaintiff asserts this was error

because she had announced her intent to re-file the action and later did re-file the action,

although in another county. As a consequence, Plaintiff asserts, she could ultimately become

the prevailing party, and to assess costs against her before the ultimate resolution of her

claims was premature. We find this argument without merit.

Tenn. R. Civ. P. 54.04(2) specifically states, “[t]he court may tax discretionary costs

at the time of voluntary dismissal” (emphasis added). The advisory comments also provide

that the 1993 Amendment to Rule 54 was specifically enacted so that discretionary costs

could be assessed before the plaintiff re-files her suit. Tenn. R. Civ. P. 54.04(2), advisory

cmt. to 1993 amendment.10 Further, Tennessee courts have held that a defendant is a

prevailing party when a plaintiff voluntarily dismisses her suit, see JPMorgan Chase Bank

10

The Advisory Comment to the 1993 Amendment provides in pertinent part:

If the plaintiff takes a voluntary nonsuit, Rule 41.04 gives the trial judge discretion to

require payment of costs upon recommencement of the action. Revised Rule 54.04 would

permit assessment of costs at an earlier date, assuming the defendant submits and the court

enters an order formally dismissing the case pursuant to plaintiff’s nonsuit. A motion for

discretionary costs in that instance must be made within thirty days of entry of the order.

(emphasis added).

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v. Franklin Nat’l Bank, No. M2005-02088-COA-R3CV, 2007 WL 2316450, at *8 (Tenn. Ct.

App. Aug. 13, 2007), regardless of whether the plaintiff has re-filed her suit, or intends to.

Estate of Burkes v. St. Peter Villa, Inc. No. W2006-02497-COA-R3-CV, 2007 WL 2634851,

at *7 (Tenn. Ct. App. July 17, 2007) (Requiring the trial court to determine whether the

plaintiff can or will re-file her claims is “patently unworkable and requires the trial judge to

either make decisions on issues not before the court or be clairvoyant.”). Rule 54 also

specifically states that if the party against whom the costs are originally assessed ultimately

becomes the prevailing party, they can seek to recover the discretionary costs they previously

paid. Tenn. R. Civ. Pro. 54.04(2).

Defendants sought to recover discretionary costs in the amount of $52,088.08; the

trial court limited the recovery to $34,098.27. Plaintiff asserts that some of these costs were

not “reasonable and necessary.” The discretionary costs awarded include $12,850.19 for

expert witness expenses and $21,248.08 for costs associated with court reporters and

deposition transcriptions.

The record reveals the trial court correctly limited the award to costs specifically

identified in Rule 54.04(2) and denied costs that were not, including $17,989.81 of costs in

videographer fees, travel expenses for expert witnesses, and travel expenses for court

reporters. Thus, the question is whether the costs awarded were reasonable and necessary;

Plaintiff insists some were not.

Defendants’ motion for discretionary costs was supported by detailed affidavits and

receipts listing the expenses incurred. The trial court’s order granting discretionary costs lists

the rich sources of argument it used to evaluate the reasonableness and necessity of the costs:

“Motion of Defendants, . . . Response of Plaintiff, . . . and Objection of Plaintiff, . . .

Affidavits, argument of counsel, . . . the entire record,” and found that the costs Plaintiff

specifically objected to were a legitimate part of the defense strategy.

With respect to the fourth factor in Massachusetts Mutual, whether the prevailing

party has engaged in conduct during the litigation that warrants depriving it of the

discretionary costs to which it might otherwise be entitled, Plaintiff do not contend that

Defendants engaged in any such conduct. Mass. Mut. Life Ins. Co., 104 S.W.3d at 35-36.

Patsy Freeman, in her individual capacity, presents one additional issue concerning

discretionary costs: the discretionary costs should not have been assessed against her in her

individual capacity because, she contends, she was not a “real party in interest.” We find her

argument is in direct conflict with our holding in Shofner v. Red Food Stores, 970 S.W.2d

468, 470 (Tenn. Ct. App. 1997). Like here, the action in Shofner was commenced and

maintained by a plaintiff who brought her claims in two capacities: as an individual and as

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the personal representative of the decedent’s estate. Id. When the trial court subsequently

assessed costs against her in both capacities, Ms. Shofner appealed, arguing the costs should

not have been assessed against her individually. On appeal, this court found the trial court

did not abuse its discretion in assessing costs against the plaintiff in her individual capacity

because she maintained the suit in her individual capacity. Shofner, 970 S.W.2d at 470.

Applying the same reasoning as in Shofner, we find the trial court did not abuse its discretion

in assessing the costs against Patsy Freeman individually and as the personal representative

of the decedent’s estate.11

In summary, we have determined the trial court’s decision to award discretionary costs

was the product of a reasoned and thorough examination of the costs requested under the

circumstances; therefore, we affirm the assessment of $34,098.27 in discretionary costs

against Patsy Freeman individually and as personal representative of the decedent’s estate.

CONCLUSION

The judgment of the Circuit Court for Rutherford County is affirmed in all respects

and costs of appeal are assessed against Patsy Freeman in her individual capacity and as

personal representative of the decedent’s estate.

______________________________

FRANK G. CLEMENT, JR., JUDGE

11

In the case at bar, we also note that the trial court emphasized the fact that the two plaintiff received

the benefit of four additional peremptory challenges, four for Patsy Freeman in her individual capacity and

four more in her capacity as the personal representative.

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