Day on Torts

Discretionary costs award to defendants affirmed.

Where the jury returned a verdict for defendants and the trial court awarded defendants certain discretionary costs, the judgment was affirmed because plaintiff had not properly raised several of his arguments in the trial court and “the trial court did not abuse its discretion on the remaining issues.”

In Murphy v. Sarta, No. E2020-00445-COA-R3-CV (Tenn. Ct. App. July 26, 2021), plaintiff filed a personal injury action against defendants, and the jury returned a verdict for defendants. Defendants filed a motion for discretionary costs under Rules 54.04 and 68 of the Tennessee Rules of Civil Procedure, seeking $8,346.06. Plaintiff responded in opposition to the motion, but the trial court ultimately awarded defendants $3,449.81 in discretionary costs, and the Court of Appeals affirmed.

Plaintiff raised four issues on appeal. First, he argued that “court reporter costs for pre-trial hearings are not authorized under Rule 54.04(2).” After citing a Tennessee Supreme Court case which stated that Rule 54.04(2) “does not necessarily provide for expenses incurred for pretrial hearings,” the Court wrote that it “might be inclined to agree with [plaintiff] on the law.” Whether plaintiff had correctly interpreted the Rule did not matter in this case, however, because plaintiff had waived this argument by not raising it prior to the appeal. “It is well-settled that issues may not be raised for the first time on appeal.” (internal citation omitted). Because plaintiff “raised no argument that court reporter fees incurred at pre-trial hearings were not allowable costs under Rule 54.04(2) until this appeal,” the argument was waived.

       Likewise, plaintiff also waived his argument that “no court reporter fees from his March 29, 2018 deposition should be awarded because the deposition took over five hours and was not in good faith.” Not only did plaintiff fail to cite any legal support for this argument, he also argued against allowing costs for this deposition for the first time in his motion to alter or amend the award of discretionary costs (although the argument was notably vague). “Generally, when a party raises an argument for the first time in a motion to alter or amend, we will deem the argument waived, as motions to alter or amend are not vehicles for raising new, previously untried or unasserted theories or legal arguments.” This argument was therefore also deemed waived. (internal citation and quotation omitted).

Plaintiff’s third argument was that “the trial court did not expressly state that the costs it awarded were reasonable and necessary.” While the Court of Appeals “agree[d] that the trial court’s order lack[ed] this explicit finding,” it ruled that this was not reversible error. The Court explained that “trial court orders must be considered for both what they explicitly state and what is clearly implied.” (internal citation omitted). Here, the record showed that the trial court “undertook the proper analysis in determining whether to award discretionary costs in this case,” and thus no reversible error was found.

Finally, plaintiff asserted that “court reporter fees should not be awarded under Rule 68 of the Tennessee Rules of Civil Procedure.” While defendants’ motion cited Rule 68, it also relied on Rule 54.04(2) as a “separate and independent basis for the award of discretionary costs,” and that Rule “expressly authorized the award of costs associated with court reporter expenses for depositions and trials.” The judgment was therefore affirmed.

NOTE: This opinion was released six days after oral arguments in this case.

Tennessee Supreme Court Agrees to Review Comparative Fault Issue in Negligent Misrepresentation Case

The Tennessee Supreme Court has agreed to accept review of a comparative fault issue concerning the tort of negligent misrepresentation.   The issue:

Whether the affirmative defense of comparative fault is applicable to a negligent misrepresentation cause of action in which the conduct of the plaintiff constituting the basis for that defense also pertains to the justifiable reliance element of the negligent misrepresentation cause of action?

The case is Pryority Partnership v. AMT Properties, LLC, No. 2020-00511-SC-R11-CV.  Here is a copy of the court of appeals opinion in the case, decided on March 10, 2021.

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