Michael Murphy v. Richard Sarta ( 2021 )

07/26/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 20, 2021 Session
MICHAEL MURPHY v. RICHARD SARTA ET AL.
Appeal from the Circuit Court for Hamblen County
No. 13CV127 Alex E. Pearson, Judge
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No. E2020-00445-COA-R3-CV
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Following a judgment in their favor in a personal injury action, the defendants were granted
an award of discretionary costs in the amount of $3,499.81. Appellant appeals, raising
several arguments in opposition to the costs awarded. Because many of Appellant’s
arguments were not properly raised in the trial court, and the trial court did not abuse its
discretion on the remaining issues, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C. J., and KRISTI M. DAVIS, J., joined.
Michael C. Murphy, Morristown, Tennessee, Pro se.
Kenneth W. Ward and Hannah S. Lowe, Knoxville, Tennessee, for the appellee, Richard
Sarta, Christina Sarta, and Rebecca Keck, D/B/A Ingenuity 101.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it
shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not
be cited or relied on for any reason in any unrelated case.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff/Appellant Michael Murphy (“Appellant”)2 filed a personal injury action
against Defendants/Appellees Rebecca Keck, D/B/A Ingenuity 101, Richard Sarta, and
Christina Sarta (together, “Appellees”). A jury trial occurred on June 6, 2019, which
resulted in a verdict in favor of Appellees. Appellant thereafter filed a motion for a new
trial, while Appellees filed a motion for discretionary costs under both Rule 54.04 and Rule
68 of the Tennessee Rules of Civil Procedure. The motion for discretionary costs was
supported by an affidavit of counsel detailing $8,346.06 in discretionary costs. Appellant
responded in opposition to the motion for discretionary costs, essentially arguing that
making him pay Appellees’ costs was unfair. Appellant also filed an amended motion for
new trial.
On November 8, 2019, the trial court entered a written “Order on Post-trial
Motions.” Therein, the trial court ruled that none of the eleven grounds asserted in
Appellant’s motion for a new trial had merit and denied his original and amended motions
for a new trial. As to Appellees’ motion for discretionary costs, the trial court’s ruling was
unclear. First, the trial court ruled that Appellees were entitled to $2,500.00 in discretionary
costs after excluding the costs associated with expert witness fees. This figure was
handwritten over a crossed-out figure of $3,587.81. The order later stated, however, that
Appellees were awarded a judgment against Appellant for discretionary costs in the amount
of $3,587.81.
On December 5, 2019, Appellant filed a motion to alter or amend the trial court’s
November 8 order. In his motion, Appellant noted the discrepancy in the amount of
discretionary costs awarded to Appellees and requested clarification. Appellant further
noted that he “never agreed that the court reporter expenses were reasonable and necessary,
particularly the ones for the April 2, 2018 lengthy, continuous five hour long deposition
solely of [Appellant] by [Appellees’] counsel.” On February 13, 2020, the trial court
entered a written order modifying the award of discretionary costs, resulting in an award
of $3,499.81. Appellant filed his notice of appeal to this Court on March 16, 2020.3
II. ISSUE PRESENTED
2
Appellant is self-represented in this appeal, but he is a licensed Tennessee attorney.
3
On September 15, 2020, the Court of Appeals issued an order ordering Appellant to show cause
as to why his appeal should not be dismissed as untimely filed. The Court of Appeals noted that Appellant
had not timely appealed the November 8, 2019 final order as to the substantive issues at trial, and that it
was “unable to determine from the notice of appeal whether [] [A]ppellant [was] attempting to appeal issues
with regard to his motion for new trial or whether he [was] attempting to appeal the award of discretionary
costs contained in the February 13, 2020 order.” Appellant responded that he wished to appeal both issues.
The Court of Appeals eventually ruled, however, that Appellant had only timely appealed the order granting
Appellees an award of discretionary costs.
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Appellant raises a single issue: whether the trial court erred in awarding
discretionary costs to Appellees.
III. DISCUSSION
Discretionary costs may be awarded to prevailing parties under Rule 54.04(2) of the
Tennessee Rules of Civil Procedure in the trial court’s discretion. Compare Tenn. R. Civ.
P. 54.04(1) (involving “[c]osts included in the bill of costs prepared by the clerk,” which
“shall be allowed to the prevailing party”), with Tenn. R. Civ. P. 54.04(2) (involving certain
“costs not included in the bill of costs prepared by the clerk,” which are “allowable only in
the court’s discretion”). The rule specifically allows as authorized discretionary costs
“reasonable and necessary court reporter expenses for depositions or trials, reasonable and
necessary expert witness fees for depositions (or stipulated reports) and for trials,
reasonable and necessary interpreter fees not paid pursuant to Tennessee Supreme Court
Rule 42, and guardian ad litem fees[.]” Tenn. R. Civ. P. 54.04(2). As this Court has
explained,
When deciding whether to award discretionary costs under Tenn. R. Civ.
P. 54.04(2), the courts 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. The courts
should not, however, base their decisions to award costs under Tenn. R. Civ.
P. 54.04(2) on (1) a desire to punish the losing party, (2) whether the
prevailing party is the plaintiff or defendant, or (3) the weight given to a
particular witness’s testimony.
Massachusetts Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 35–36 (Tenn. Ct. App.
2002) (footnotes omitted). “Rule 54.04(2) discretionary costs expressly address themselves
to the sound discretion of the trial court. Thus, on appeal, the party taking issue with an
award of discretionary costs has the burden of showing the trial court abused its discretion.”
Barnett v. Tennessee Orthopaedic All., 391 S.W.3d 74, 83 (Tenn. Ct. App. 2012) (citation
omitted) (citing Freeman v. CSX Transp., Inc., 359 S.W.3d 171, 180 (Tenn. Ct. App.
2010); Jefferson, 104 S.W.3d at 36).
Here, Appellees requested a total of $8,346.06 in discretionary costs. The trial court
excluded the costs associated with expert fees and awarded Appellees the remaining costs
of $3,499.81.4 As we perceive it, Appellant takes issue with the costs awarded in four
4
Appellees do not challenge on appeal the trial court’s decision to exclude from the costs awarded
the fees associated with their experts.
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material respects: (1) the court reporter costs for pre-trial hearings are not authorized under
Rule 54.04(2); (2) the costs associated with his deposition should not be awarded because
Appellees acted in bad faith; (3) the trial court did not find that the costs were reasonable
and necessary; and (4) court reporter fees are not awardable under Rule 68.
We begin with the costs awarded for court reporter work at pretrial hearings. Of the
$8,346.00 in discretionary costs sought by Appellees, $2,269.01 reflected work performed
by court reporters at pre-trial hearings. On appeal, Appellant argues that these costs are not
proper discretionary costs under Rule 54.04(2), citing Duran v. Hyundai Motor Am., Inc.,
271 S.W.3d 178, 216 (Tenn. Ct. App. 2008) (“[C]ourt reporter fees for attending pretrial
hearings are not permitted by Tenn. R. Civ. P. 54.04(2).”); see also Austin v. Allen, No.
M2008-00414-COA-R3-CV, 2009 WL 837734, at *17 (Tenn. Ct. App. Mar. 27, 2009)
(citing Duran, 271 S.W.3d at 216) (“Rule 54, Tenn. R. Civ. P., states that, among other
things, the discretionary costs allowed are ‘court reporter expenses for depositions or
trials,’ and does not include the costs associated with pre-trial hearings.”). The Tennessee
Supreme Court has recognized this rule, but noted that it is not absolute:
With regard to discretionary costs, Rule 54.04(2) does not cover the expense
incurred for serving subpoenas and does not expressly authorize court
reporter expenses incurred at the hearing on the motion for a temporary
restraining order. The rule does, however, allow the recovery of “reasonable
and necessary court reporter expenses for depositions or trials,” but it does
not necessarily provide for expenses incurred for pretrial hearings. Tenn. R.
Civ. P. 54.04(2) (emphasis added); see also Duran v. Hyundai Motor Am.,
Inc., 271 S.W.3d 178, 216 (Tenn. Ct. App. 2008). During the hearing on the
motion for a restraining order on July 18, 2007, while not a trial on the merits
in the traditional sense, the Plaintiff presented conclusive evidence resulting
in (1) a finding by the trial court that the Defendants violated the City
Charter, and (2) the entry of an order restricting “any further action . . . until
there has been compliance with the City Charter.” A full and final hearing on
that issue could not have resulted in a more favorable or more conclusive
determination. Under these circumstances, we believe that the Plaintiff may
recover discretionary costs related to this hearing. See Wills & Wills, L.P. v.
Gill, 54 S.W.3d 283, 287 (Tenn. Ct. App. 2001) (affirming discretionary
costs where the trial court also granted injunctive relief).
Fannon v. City of LaFollette, 329 S.W.3d 418, 434 (Tenn. 2010) (footnotes omitted).
While we might be inclined to agree with Appellant on the law, there is a fatal flaw
with his argument: he did not raise it prior to this appeal. Here, Appellant filed a response
in opposition to the motion for discretionary costs and a motion to amend the trial court’s
discretionary costs rulings. He raised no argument in either of these filings that court
reporter fees for pre-trial hearings were not allowable or authorized by the language of
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Rule 54.04(2). Rather, in his first response, Appellant argued that Rule 54.04(2) did not
mandate that the trial court award any discretionary costs to Appellees and that such an
award would be inequitable under the circumstances. In his later motion to alter or amend
the award, the only specific costs that Appellant took issue with were the court reporter
fees from his own deposition. Thus, at no time prior to this appeal did Appellant raise the
argument he now relies upon in this appeal.
The Court considered a similar situation in Fichtel v. Fichtel, No. M2018-01634-
COA-R3-CV, 2019 WL 3027010 (Tenn. Ct. App. July 10, 2019). In that case, the mother
argued on appeal that certain discretionary costs awarded by the trial court were not
“allowable under [R]ule 54.04(2).” Id. at *27. But the father pointed out that the mother
had not raised this argument in the trial court. Instead, the mother had only filed her own
motion for discretionary costs, which she asserted “constituted an objection to all the
moneys Father requested.” Id.
We rejected the mother’s argument. As we explained,
It is well-settled that issues may not be raised for the first time on
appeal. See In re M.L.P., 281 S.W.3d 387, 394 (Tenn. 2009). This Court has
previously held that objections to discretionary costs may be waived in
similar circumstances. See Paschall v. Srebnick, No. M2011-02059-COA-
R3-CV, 2012 WL 2054339, at *2 (Tenn. Ct. App. June 7, 2012) (“One
purpose of a response to a motion seeking relief of any sort is to advise the
movant of the extent to which the motion is opposed. Having failed to put
the costs sought by Defendants at issue in their initial response by
specifically objecting to either the nature of the costs sought or the manner
in which the application was made, Plaintiffs waived any objection to the
award.”). Given that Mother raised no specific objection to the costs included
in Father’s request for discretionary costs, we conclude that an argument to
that effect on appeal is waived.
Fichtel, 2019 WL 3027010, at *28.
The same is true here. Although Appellant objected generally to the award of
discretionary costs, he raised no argument that court reporter fees incurred at pre-trial
hearings were not allowable costs under Rule 54.04(2) until this appeal. As a result, this
argument is waived.
Appellant next asserts 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. As an initial matter, Appellant cites no legal support for this argument. See
Tenn. R. App. P. 27(a)(7) (requiring the brief of the appellant to contain an argument
supported by citations to authority); cf. Sneed v. Bd. of Prof’l Responsibility of Supreme
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Court, 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial or appellate,
to research or construct a litigant’s case or arguments for him or her, and where a party
fails to develop an argument in support of his or her contention or merely constructs a
skeletal argument, the issue is waived.”).
Moreover, the record indicates that the first time that Appellant even mentioned this
issue was in his motion to alter or amend the award of discretionary costs.5 But even
Appellant’s motion to alter or amend contained nothing more than a vague indictment of
the court reporter fees associated with this deposition; the motion to alter or amend
contained no express allegation that Appellees acted in bad faith. Appellant likewise made
no assertion of bad faith conduct during the hearing in which the motion for discretionary
costs was first considered. Even if we were to assume that Appellant’s motion to alter or
amend fairly raised this argument, it is still not proper. 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.” In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct.
App. 2005); see also In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005) (“A Rule
59 motion should not be used to raise or present new, previously untried or unasserted
theories or legal arguments.”). Thus, Appellant’s argument as to these costs is again
waived.
Appellant next asserts that the trial court did not expressly state that the costs it
awarded were reasonable and necessary. Although we agree that the trial court’s order
lacks this explicit finding, we cannot conclude that this constitutes reversible error. Under
Rule 36(b) of the Tennessee Rules of Appellate Procedure, “[a] final judgment from which
relief is available and otherwise appropriate shall not be set aside unless, considering the
whole record, error involving a substantial right more probably than not affected the
judgment or would result in prejudice to the judicial process.” Moreover, trial court orders
must be considered for both what they explicitly state and what is clearly implied. See
5
For example, nothing in the record indicates that Appellant ever filed a motion under Tennessee
Rule of Civil Procedure 30.04 asserting that the deposition was taken in bad faith. Rule 30.04 provides as
follows:
At any time during the taking of the deposition, on motion of a party or of the
deponent and upon a showing that the examination is being conducted in bad faith or in
such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the
court in which the action is pending may order the officer conducting the examination to
cease forthwith from taking the deposition, or may limit the scope and manner of the taking
of the deposition as provided in Rule 26.03. If the order made terminates the examination,
it shall be resumed thereafter only upon the order of the court in which the action is
pending. Upon demand of the objecting party or deponent, the taking of the deposition
shall be suspended for the time necessary to make a motion for an order. The provisions
of Rule 37.01(4) apply to the award of expenses incurred in relation to the motion.
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Morgan Keegan & Co. v. Smythe, 401 S.W.3d 595, 608 (Tenn. 2013) (“[W]hen construing
orders and judgments, effect must be given to that which is clearly implied, as well as to
that which is expressly stated.”). Here, the trial court clearly carefully considered the fees
requested by Appellees and it excluded all fees associated with experts, a significant
portion of the overall request. Moreover, at a hearing concerning the discretionary costs,
the trial court noted that it was not ruling that even the excluded expert fees were “not
reasonable and necessary for the defense,” but that it simply did not find them appropriate
to award as discretionary costs. Thus, it appears from the record that the trial court
undertook the proper analysis in determining whether to award discretionary costs in this
case. As such, while trial courts are encouraged to include specific findings as to the
reasonableness and necessity of fees in their orders, we conclude that no reversible error
has been shown in this case.
Finally, Appellant asserts that court reporter fees should not be awarded under Rule
68 of the Tennessee Rules of Civil Procedure. Rule 68 relates to offers of judgment.
Although Appellees cited Rule 68 as one basis for the award of discretionary costs,
Appellees’ motion also cited Rule 54.04(2) as a separate and independent basis for the
award of discretionary costs. As previously discussed, Rule 54.04 expressly authorizes the
award of costs associated with court reporter expenses for depositions and trials. The trial
court was therefore well within its discretion to award these costs regardless of what is
authorized under Rule 68.
IV. CONCLUSION
The judgment of the Hamblen County Circuit Court is affirmed. Costs of this appeal
are taxed to Appellant Michael Murphy, for which execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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