Session May 29, 2018
from the Circuit Court for Knox County No. 1-127-16 Kristi M.
Keenan sued Jeffrey L. Hollifield for damages arising out of
a two-vehicle collision on Interstate 40 in Knox County. By
way of an order entered August 9, 2017, the plaintiff took a
voluntary nonsuit, pursuant to the provisions of Tenn. R.
Civ. P. 41.01(1). On the same date, the defendant filed a
motion for discretionary costs. Following a hearing on
September 8, 2017, the trial court, in an order entered
September 15, 2017, denied the defendant's motion.
Defendant appeals, arguing that he is entitled to
discretionary costs of $814.66. We reverse the trial
court's judgment and award the defendant discretionary
costs of $814.66.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed; Case Remanded
Terrill L. Adkins, Knoxville, Tennessee, for the appellant,
Jeffery L. Hollifield. Ameesh A. Kherani, Knoxville,
Tennessee, for the appellee, Jason Keenan.
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and Brandon O.
Gibson, J., joined.
CHARLES D. SUSANO, JR., JUDGE
relevant facts pertaining to the defendant's motion for
discretionary costs are not in dispute. The issue is
addressed in the trial court's order of September 15,
2017, which was drafted by counsel for the defendant. In that
order, the trial court states the following:
…the Defendant filed a timely and properly supported
motion for discretionary costs demonstrating (1) that the
defendant is the prevailing party under Tennessee law, (2)
that the discretionary costs being sought are contemplated by
and included in Tenn. R. Civ. P. 54.04(2), (3) that
the costs were necessary and reasonable, and (4) that the
Defendant has not engaged in conduct during the litigation
that would justify depriving [him] of the costs the Defendant
these finding by the trial court, the court added the
following by typewritten material: "…this Court,
as a general matter, will not grant discretionary costs in
response to a plaintiff's voluntary dismissal unless
there are special circumstances that would justify an award
of discretionary costs." In the margins of the order,
the trial court penned the following:
Otherwise, this court views the taxing of discretionary costs
following a routine voluntary dismissal as being punitive
against the party who, after fully evaluating the case,
concludes it is not prudent to continue the claim. In this
case, for example, counsel for the plaintiff stated that the
decision to voluntarily dismiss the case was made after
completion of discovery depositions and a full opportunity to
evaluate the claim. The court disagrees, in general, with the
defendant's argument that discretionary costs should
always be granted to a prevailing party upon a showing of the
reasonableness and necessity of ...