Opinion
No. M2008-00414-COA-R3-CV.
January 7, 2009 Session.
Filed March 27, 2009.
Appeal from the Chancery Court for Rutherford County; No. 04-9789CV; Robert E. Corlew, Chancellor.
Judgment of the Chancery Court Affirmed in Part, Modified in Part and Vacated in Part.
Frank M. Fly, James Bryan Moseley, and Luke A. Evans, Murfreesboro, Tennessee, for the appellants, Stephen B. Austin and Barbara Austin.
W. Stanley Bennett and Dinah J. Michael, Murfreesboro, Tennessee, for the appellees, Steve Allen and Pam Allen.
Richard H. Dinkins, J., delivered the opinion of the court, in which Patricia J. Cottrell, P.J., M.S. and Frank G. Clement, Jr., J. joined.
OPINION
Plaintiffs' complaint raised several causes of action relating to the removal of Defendants' fence and the enforcement of a drainage easement. The jury found that the Plaintiffs were not entitled to relief under any cause of action. The trial court entered judgment in accordance with the jury's verdict and awarded discretionary costs to the Defendants. On appeal, the Plaintiffs challenge the verdict form and jury instructions as improper; the lack of material evidence in support of the verdict; the trial court's abuse of its role as thirteenth juror; the trial court's reliance on an affidavit containing false statements in denying Plaintiffs' motion for partial summary judgment; the trial court's abuse of its discretion in making evidentiary and argument decisions; and the award of costs as improper. Finding that the award of costs under Rule 68 was an abuse of discretion, we vacate the award; we modify the award of costs under Rule 54. The decision of the trial court in all other respects is affirmed.
I. Procedural History
On December 8, 2004, Barbara and Steven Austin filed a complaint against Steve and Pam Allen, adjoining property owners, principally seeking injunctive relief for the removal of a fence and enforcement of a drainage easement. Specifically, the causes of action listed in the complaint included: intentional, reckless, and negligent interference with property rights; breach of fiduciary duty; breach of contract/violation of restrictive covenants; and nuisance. The Allens filed an Answer on January 12, 2005. On December 22, 2005, the Austins filed a Motion for Partial Summary Judgment, asking the trial court to find that the Allens' fence was constructed within a drainage easement in violation of the parties' residential covenants and restrictions. The court denied the motion on March 24, 2006.
A jury trial was held from November 27 to November 29, 2007, in the Rutherford County Chancery Court. The jury returned a verdict in favor of the Allens, finding that the Austins were not entitled to relief. The trial court entered judgment on December 17, 2007. On January 4, 2008, the Austins filed a motion for new trial, which the trial court denied. On January 14, 2008, the Allens filed a motion for discretionary costs and the trial court awarded most of the requested expenses. On January 24, 2008, the Austins filed a motion to alter or amend the denial of the motion for a new trial, which the trial court denied. The Austins filed a Notice of Appeal on February 21, 2008.
II. Factual Background
In 1996, the Austins and the Allens purchased adjacent lots in a subdivision called Garrison Cove, located in Murfreesboro, TN. The subdivision is subject to a Declaration of Covenants and Restrictions ("Declaration") filed with the Register of Deeds. There are three provisions of the Declaration pertinent to this matter. The first provision discusses a utility easement included on each lot:
A perpetual easement is reserved on each lot 5 feet in width, contiguous and parallel to each side and rear lot line for the construction and maintenance of utilities, such as drainage, electricity, gas or water main, sewage, etc., and no structure of any kind shall be erected or maintained upon or over said easement.
The next provision addresses the process for making improvements to a lot:
No building, fence, wall, clothesline or other structure shall be commenced, erected or maintained upon the Properties, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials and location of the same shall have been submitted to and absolutely approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Association, or by an Architectural Committee composed of three (3) or more representatives appointed by the Board.
The last provision discusses the authority of the Architectural Committee ("Committee"):
Construction plans and specifications for any improvements to be erected on any lot must be submitted to the Committee for its approval. No . . . improvements of any nature shall be commence or constructed prior to receiving approval by said Committee in writing.
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For good cause shown, the Architectural Review Committee shall have the authority to waive all or any part of the hereinafter set forth restrictive covenants as to minimum square footage where the proposed improvement, because of unusual or extraordinary shape or design, does not meet said minimums, but such improvement will in the sole discretion of said . . . Committee be a complementary asset to the Development.
Shortly after moving into their home, the Austins began having drainage problems under their house and in the yard. The problems arose from poorly draining soil, considerable rock formations close to the surface of the ground, and a very mild grade in the slope of the yard. The Allens were experiencing similar problems and had the subdivision builder install a drain along the parties' property line, which exited out to a main subdivision drain. The builder would not do the same for the Austins and they were forced to sue the builder. The Austins prevailed and received a judgment for costs to perform remedial work on the problem.
The Austins hired PSI, a professional engineering firm, which provided two solutions to the drainage problems. The first option was the installation of sump pumps under the Austins' home. The Austins hired Americare Services to install the pumps, which were connected to the city sewage system in violation of city codes.
The other solution offered by PSI was a French drain system around the perimeter of the Austins' home, which would drain water from the southeast corner of the residence to the southeast corner of the property. The Austins installed most of the drains, however, they failed to install a recommended drain which was to direct the flow of water to the rear of the Austins' property into a 10 foot plotted drainage easement which exists at the rear of both parties' property.
As adopted, both of PSI's recommendations reduced the drainage problems, but did not resolve them. The Austins, however, did nothing further between 2000 and 2003 to rectify the remaining drainage problems.
In 2003, the Allens sought permission to build a fence on their property. Mr. Allen served as a member of the Committee at that time, so instead of submitting the request to the Committee, the Allens sought written permission from Ghertner Property Management ("Ghertner"), the firm which manages the Garrison Cove subdivision. The Allens' proposal specifically stated that the fence would be constructed along the property line, described the style of fence, and listed the type of wood to be used. A computerized sketch of the location of the fence was included in the proposal. Ghertner submitted the proposal to the Board of Directors, and it was ultimately approved. The Allens constructed the fence located on or near the property line between the parties' lots. The fence had close fitting boards, running all the way to the ground.
In 2004, the Austins noticed that water was backing up against the fence and was pooling in their yard. As a result, the sump pumps were coming on more frequently and staying on for longer periods of time. Water was also seeping into the crawl space on the side of the Austins' house closest to the Allens' property.
At this point, the Austins filed the present suit, seeking to rectify the problems which they asserted were caused by the Allens' fence and to have the fence temporarily removed to bring in equipment needed to dig out the rock in their backyard which prevented them from installing the remaining drain line needed in the French drain system.
In 2007, the Austins hired an engineer, Larry McClanahan, to examine their property and testify at trial regarding the effect of the fence on the drainage problems. During a deposition, Mr. McClanahan stated that the fence did affect the drainage issues because it was built completely to the ground without a way for water to escape under the fence. Mr. McClanahan testified that cutting approximately 12 inches from the bottom of the last 6-8 feet of the fence would solve the problem. Upon reading the transcript of the deposition, the Allens removed the bottom 12 inches from the last 8 feet of their fence. Mr. Coons, the Allens' engineer, testified at trial that the fence had very little impact on the drainage issues, which were caused primarily by rock formations under the ground and the slope of the property.
III. Statement of the Issues
On appeal, the Austins raise the following issues:
1. Whether the verdict form and the jury instructions were improper.
2. Whether the jury's verdict is supported by material evidence.
3. Whether the trial court abused its role as thirteenth juror in failing to set aside the jury's verdict and order a new trial.
4. Whether the Austins' motion for partial summary judgment should have been granted in light of an affidavit filed by Mr. Allen which allegedly contained false statements and was filed in bad faith.
5. Whether the trial court erred in failing to permit the Austins to introduce evidence of Mr. Allen's removal from the Committee.
6. Whether the trial court erred in permitting the Allens' expert to testify beyond his actual knowledge or regarding scientific data or facts.
7. Whether the trial court erred in permitting the Allens to argue the affirmative defenses of comparative fault and waiver because neither was pled in the Answer.
8. Whether the trial court awarded excessive or impermissible discretionary costs.
IV. Analysis
A. Verdict Form and Jury Instructions
The Austins assert that the verdict form and jury instructions were improper because they did not allow the jury to consider all issues, were confusing, and incorrectly allowed the jury to consider mixed questions of law and fact.
The verdict form was submitted to the jury pursuant to Rule 49, Tenn. R. Civ. P. The Tennessee Supreme Court in Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901 (Tenn. 1999) addressed the applicability of Rule 49:
Tenn. R. Civ. P. 49.01 states:
The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answers or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instructions concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue.
Tenn. R. Civ. P. 49.01 permits trial courts to require the use of a special verdict form comprised of detailed factual questions for the jury. Special verdicts elicit specific findings from the jury that cover every factual issue raised by the pleadings and evidence, including responses to each element of the common law claims plead. These responses enable the trial court to articulate a judgment as a matter of law. More common than special verdicts, general verdicts accompanied by special interrogatories are permitted by Tenn. R. Civ. P. 49.02. General verdicts and interrogatories, which are usually more concise than special verdicts, call upon the jury to render a general finding of liability and also require the jury to answer certain key questions that clarify the basis for the finding of liability and that are "necessary to a verdict." The purpose of the interrogatories is to test the validity and consistency of the general verdict.
Concrete Spaces, Inc., 2 S.W.3d at 910 n. 14. 1. Jury's Consideration of All Issues
The Austins assert that Question 1 on the verdict form was improper because it prevented the jury from considering all issues presented to them since "[t]he jury responded to the verdict form by answering only the first of seventeen questions . . . in the negative requiring it to end any further deliberations and leave the remaining questions on the form unanswered."
Question 1 on the verdict form stated:
1. Do you find that the Plaintiffs are entitled to relief from the Defendants?
___ Yes ___ No
If your answer to Question 1 was "Yes" please proceed to answer Question 2. If your answer to Question 1 was "No" please proceed to conclude your deliberations.
During deliberations, the jury submitted a question which asked the trial court to "[d]escribe the definition of, quote, relief, close quote, in question one." After a discussion with the parties' counsel, the trial court settled on the following language with which to respond to the question:
THE COURT: . . . The additional language that I've penned then is:
If you find that the answer to any question on the verdict form should be answered, quote, yes, close quote, such that the Plaintiffs are entitled to a money judgment or a court order for removal of the fence, comma, you have found that the Plaintiffs are entitled to, quote, relief, close quote.
Is that fair?
[Austins' Counsel]: That's fair.
THE COURT: Defense, is that fair?
[Allens' Counsel]: Yes, Your Honor.
After receiving the trial court's definition, the jury continued deliberating and eventually found that the answer to Question 1 was "no"; the jury then concluded its deliberations and informed the court of its decision. The court's Judgment Order stated that "[t]he jury, after having heard all evidence and argument presented by both parties, determined that Plaintiffs are not entitled to any relief from Defendants. Each individual juror was polled and stated his or her agreement with the verdict."
Following the proceedings, an affidavit of the jury foreman submitted in response to the Austins' motion for a new trial stated, in part:
4. The jury empaneled in this matter considered very carefully all evidence and theories of the case presented to us by both parties.
5. The questions we asked the Court during our deliberations were not asked out of confusion. Rather, the questions were asked in an effort to accommodate a single juror after eleven members of the jury had decided in favor of the defendants.
6. The jury considered each and every question on the jury form during deliberation before reaching a verdict.
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10. We understood our decision clearly and competently, and we were not confused by the jury form, or the instructions given to us by the court, or by any of the issues we were asked to decide.
"A new trial is . . . warranted when verdict forms are composed in such a faulty fashion that they do not address each of the plaintiffs' theories of recovery and do not allow the jury to adequately respond to each claim." Concrete Spaces, Inc., 2 S.W.3d at 911. "Well-settled law requires courts to construe the terms of a verdict in a manner that upholds the jury's findings, if it is able to do so." Id. (citing Briscoe v. Allison, 290 S.W.2d 864, 868 (Tenn. 1956)). "Even if a verdict is defective in form, it is to be enforced if it sufficiently defines an issue in such a way as to enable the court to intelligently articulate a judgment." Id. (citing Arcata Graphics Co. v. Heidelberg Harris, Inc., 874 S.W.2d 15, 22, 27 (Tenn.Ct.App. 1993)).
We find that the wording of Question 1 was error to the extent that the phrasing of the question could have prevented the jury from "adequately respond[ing] to each claim." Concrete Spaces, Inc., supra. However, we find the error to be harmless because there is no evidence to conclude or infer that the wording of Question 1 actually prevented the jury from considering all issues on the verdict form before reaching its decision and, as attested to by the jury foreman's affidavit, the jury considered all issues before reaching a decision. The trial court's response to the jury's request for a definition of "relief," which response counsel for the Austins acknowledged to be fair, instructed the jury to consider each question on the verdict form and obligated the jury to answer "yes" to Question 1 only if the answer to any of the other questions was "yes" as well. On appeal, "[a] jury is presumed to have followed the instructions of the trial court." Johnson v. Tenn. Farmers Mut. Ins. Co., 205 S.W.3d 365, 374 (Tenn. 2006). By answering "no" to Question 1, it can be inferred that the jury answered "no" to all other questions. 2. Jury's Confusion with the Verdict Form
During deliberations, the jury posed two questions to the trial court, which asked for (1) the definition of "relief" in Question 1 and (2) the definition of a "property right" mentioned in a number of questions on the verdict form. The Austins allege that these "two questions submitted by the jury prior to the verdict . . . demonstrate that the jury was confused about how to apply the facts of the case to the legal principals involved." In addition, during a discussion regarding a proposed verdict form, the Austins requested that, in order to avoid confusion, the trial court break down "some of the elements [of the causes of action] on the verdict form . . . into separate questions" and they allege that the trial court's failure to do so "more likely than not [led] to confusion on the jury's part."
As stated earlier, each juror agreed with the verdict when they were polled. The jury foreman's affidavit stated that "[t]he questions we asked the Court during our deliberations were not asked out of confusion" and that they "understood [their] decision clearly and competently, and we were not confused by the jury form, or the instructions given to us by the court, or by any of the issues we were asked to decide." In the absence of evidence expressly showing the jury's confusion, we do not find that the trial court abused its discretion in submitting the verdict form it created to the jury. See Concrete Spaces, Inc. v. Sender, 1998 WL 430165 at *6 (Tenn Ct. App. July 31, 1998) (holding that "decisions regarding the use of the special verdict forms and the substance of these questions on the forms rests within the trial court's discretion").
3. Questions of Law and Fact
Question 2 on the verdict form asked the jury "[d]id the Defendants commit intentional interference with the Plaintiffs' property rights?" The Austins allege that this question required the jury to determine the legal question of whether an easement is a property right.
In the course of its deliberations, the jury asked the trial court to "[d]efine property right." Responding to the jury's question, the Austins requested that the court include in its definition a statement that an easement was a property right. The trial court did not include the Austins' requested instruction but responded to the jury's inquiry by stating that "[i]n this context, property right means the rights that one gains when he or she purchases real estate. It includes the opportunity to utilize one's land in all manners allowed by law." The Austins assert that, without the requested instruction, "it is more likely than not that the jury did not believe that a fence on one's own property was an interference with someone else's property rights despite the fact that there was an easement which gave property rights to the other party."
We cannot find, nor do the Austins cite, an objection made by the Austins to the use of the term "property right" on the verdict form prior its submission to the jury. The Austin raised an issue at trial regarding the use of the term "property right" only after the jury's request for its definition.
At the end of the trial, the jury heard from the trial court and each party's attorney regarding the Austins' claims for interference with their property rights. The trial court's instruction on the claim for interference with the Austins' property right included the following language:
With respect to the claim of intentional interference with property rights, the plaintiffs must prove, by clear and convincing evidence, that the plaintiffs have the right to use their property in some way, the way in which the plaintiffs had the right to use their property, that they were unable to use their property in some manner, the manner in which the plaintiffs were prevented from utilizing their property, that the defendants interfered with the plaintiffs in some manner, that the plaintiffs were unable to utilize their property because of the interference of the defendants. . .
The Austins' attorney's closing argument, discussing the claim for interference with property rights, stated:
. . . I want to make sure that there is the understanding of what is meant by "property rights." We can immediately say that the period of time that that fence went up and caused flooding events in the Austins' property was an interference with property rights. They had a right to enjoy their property without water being forced back upon them and not allowed to drain freely off the property. It's a property right. But the key part about this is the restrictive covenants. Those are property rights.
These were reported in the Register of Deeds' office, just like a warranty deed is . . . All deeds are necessary. This is a property right that they have. And how has that been violated? It's violated because Section 20 says there's a utility easement that you don't put any structures in. And what did Mr. and Mrs. Allen do? They put a structure in, in violation of the restrictive covenants and property rights that the Austins have.
The Allens' attorney's closing argument on the claim for interference with property rights stated:
Here we are, "Negligent interference with property rights." It requires that the plaintiffs were prevented from utilizing their property in some way. This is a long way to say it, but, you know, plaintiffs had a right to use their property. They have described the way they wanted to use it, that they were unable to use it that way, and how they were prevented from using their property. That's what they require, they were prevented from using their property in some way. And we submit to you that they were not. They had their whole yard. They want to use our property. They want to get into our five feet, what they're calling an easement, but they had their whole property to do whatever they wanted to do. And we did not, by putting up our fence, even if it's inches from the property line — and I submit to you that nobody proved where the property line was. Even if the fence is inches from it, they had their entire property to utilize as they pleased.
We understand the Austins' argument to be that, under the additional instruction given by the court, the jury was required to determine that an easement is a property right — a legal issue — in order for them answer Question 2 in the Austins' favor. We do not agree. The jury was given ample guidance on what is considered to be a property right and there is no indication from the question submitted by the jury of any confusion as to how they were to answer Question 2.
The Austins' assertion that the jury's result was "more likely than not" affected by the trial court's refusal to give their requested instruction — that an easement is a property right — implies that the trial court's denial of the requested instruction may have affected the result. The standard we consider in determining whether the trial court has committed reversible error in failing to give a requested instruction, however, is whether it appears that the court's failure did, in fact, affect the result. See Johnson, 205 S.W.3d at 372 (holding that "[r]eversal of a judgment is appropriate, however, only when the improper denial of a request for a special jury instruction has prejudiced the rights of the requesting party. . . .It is not sufficient that refusal to grant the requested instruction may have affected the result; `[i]t must affirmatively appear that it did in fact do so.'" (quoting Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992)). The Austins have failed to show that their rights were prejudiced by the failure of the trial court to give the instruction they requested and have failed to prove that the trial court's refusal to charge the jury with the Austins' requested instruction "affirmatively" affected the result in this matter.
Question 9 on the verdict form asked the jury "[d]id the Defendants commit a breach of fiduciary duty." The fiduciary duty at issue in this case arose as a result of Mr. Allen's status as a member of the Committee of the Garrison Cove Homeowners Association. The complaint alleged that Mr. Allen either failed to request proper approval for the improvements he made to his property or gave them without protecting the rights of other homeowners, in violation of his fiduciary member of the Committee.
The Austins allege that the wording of Question 9 improperly required the jury to determine "whether a duty exists, a legal question, and what actions were taken to breach that duty, a fact issue." We do not read the question so expansively. Rather, the record shows that the existence of the duty Mr. Allen owed the members of the homeowners association was never a contested issue and the jury was only asked to answer the factual question of whether the Allens had committed a breach of the duty Mr. Allen owed as a member of the Committee.
Our conclusion in this regard is supported by the closing arguments of counsel for both parties. The Austins' attorney addressed the breach of fiduciary duty issue by stating:
The next question you're asked is about fiduciary duties, and this gets into Mr. Allen's position. He was a fiduciary. His job, as the chairman of the [Committee], was to protect everybody in the neighborhood, not himself, not just his family, but everybody. And remember Section 23 of Article 7, the first gatekeeper in all this is the [Committee]. They are the ones charged with enforcing the restrictive covenants. They're the ones that have to do that; Mr. Allen, and that's it, because it was his fence. That's a self-deal. It's a breach of a fiduciary duty.
The Allens' attorney responded to the claim by stating:
Fiduciary duty is when you have a special duty . . . I think what they're saying here is that by being on the [Committee] Mr. Allen had a special duty to the Austins and that he somehow breached it. How did he breach it? I don't know. He gave his request [to build the fence] to Ghertner . . . Sending [the request] to the managing company and getting permission from the board is not a breach of the fiduciary duty.
As shown, the Allens did not contend that Mr. Allen owed no fiduciary duty or that such duty was lacking; rather, they contested that a breach of that duty occurred. This was properly a question for the jury and the wording of Question 9 was proper.
B. Thirteenth Juror
The Austins assert that the trial court abused its role as thirteenth juror in not setting aside the verdict or ordering a new trial.
As a preliminary matter, the Austins, as the appellants, had the burden to make citations in their brief to appropriate authorities and reference the record to support their argument on appeal. Tenn. R. App. P. 27(a) ; Tenn. R. App. P. 27(g) ; State v. Weaver, No. M2001-00873-CCA-R3-CD, 2003 WL 1877107, *16 (Tenn.Crim.App. Apr. 15, 2003) (citing Tenn. R. App. 27(a)(4), (7)); see also Vineyard v. Betty, No. M2001-00642-COA-R3-CV, 2002 WL 772870, *3 (Tenn.Ct.App. Apr. 30, 2002); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn.Ct.App. 1989). The section of the Austins' brief addressing the thirteenth juror issue does not contain references to the record to support their assertions.
Rule 27(a)(7), Tenn. R. App. P., provides in relevant part:
(7) An argument, which may be preceded by a summary of argument, setting forth the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record (which may be quoted verbatim) relied on. . . .
Rule 27(g), Tenn. R. App. P., provides in relevant part:
. . . reference in the briefs to the record shall be to the pages of the record involved. . . . If reference is made to evidence, the admissibility of which is in controversy, reference shall be made to the pages in the record at which the evidence was identified, offered, and received or rejected.
In the case of Lykins v. Key Bank USA, N.A., No. E2005-01572-COA-R3-CV, 2006 WL 2482963 (Tenn.Ct.App. Aug. 29, 2006), we were presented with an appellant's brief that contained no citations to the record. Lykins, 2006 WL 2482963 at *4. After discussing the appellant's failure to comply with the Tenn. R. App. P. 27(a)(6), we discussed Rule 6(b) of the Rules of the Court of Appeals which provides that:
[n]o complaint of or reliance upon action by the trial court will be considered on appeal unless the argument contains a specific reference to the page or pages of the record where such action is recorded. No assertion of fact will be considered on appeal unless the argument contains a reference to the page or pages of the record where evidence of such fact is recorded.
Id. At *4-5 (quoting Tenn. R. Ct. App. 6(b)) (emphasis added).
A similar situation arose in Bean v. Bean, 40 S.W.3d 52 (Tenn.Ct.App. 2000), where the brief failed to comply with Tenn. R. App. P. 27 and Rule 6 of the Rules of the Court of Appeals. In Bean, the deficiencies resulted in a dismissal of the appeal. There, we held:
Courts have routinely held that the failure to make appropriate references to the record and to cite relevant authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a waiver of the issue. . . . Because of the numerous deficiencies in Appellant's brief, we decline to address the issues raised. As noted in England v. Burns Stone Co., Inc., 874 S.W.2d 32, 35 (Tenn.Ct.App. 1993), parties cannot expect this court to do its work for them. This Court is under no duty to verify unsupported allegations in a party's brief, or for that matter consider issues raised but not argued in the brief.
Bean, 40 S.W.3d at 55-56 (citations omitted).
Rule 1 of the Rules of the Court of Appeals permits this Court to review a party's issues on appeal despite apparent citation deficiencies in order to expedite a decision upon the matter. While, as stated in Bean, we are under no duty to verify unsupported allegations in the Austins' brief or to consider an issue raised but not properly argued in their brief, Bean, 40 S.W.3d at 55-56 (citing Duchow v. Whalen, 872 S.W.2d 692, 693 (Tenn.Ct.App. 1993); Airline Constr., Inc. v. Barr, 807 S.W.2d 247 (Tenn.Ct.App. 1990)), we will nevertheless review the thirteenth juror issue in order to address the issues presented.
Rule 1of the Rules of the Court of Appeals of Tennessee permits "for good cause, including the interest of expediting a decision upon any matter, this Court . . . [to] suspend the requirements or provisions of any of these rules in a particular case on motion of a party, or on its own motion, and may order proceedings in accordance with its discretion."
When acting as the thirteenth juror in considering a motion for a new trial, the trial court must independently weight the evidence; determine the issues presented; and decide whether the jury's verdict is supported by the evidence. See Overstreet v. Shoney's Inc., 4 S.W.3d 694, 717 (Tenn.Ct.App. 1999). If, after weighing the evidence, the trial court is satisfied with the jury's verdict, the court must approve the verdict. See Ridings v. Norfolk Southern Ry. Co., 894 S.W.2d 281, 288 (Tenn.Ct.App. 1994). If, on the other hand, the trial court is not satisfied with the verdict, it must grant a new trial. See id. "The trial court's performance of its function as thirteenth juror must be performed without regard to and without deference being shown to the result reached by the jury." See id. at 288-89. Where the trial court makes comments regarding the verdict on the record, this Court examines such comments in order to determine "whether the trial court properly reviewed the evidence, and was satisfied or dissatisfied with the verdict." Miller v. Doe, 873 S.W.2d 346, 347 (Tenn.Ct.App. 1993). This Court may reverse the lower court's judgment and order a new trial only when the record contains statements that the trial court was dissatisfied with or disapproved of the jury's verdict or when the trial court absolved itself of or misconstrued its function as the thirteenth juror. See id.
We find that the trial court did not abuse its role as thirteenth juror. "An appellate court presumes the trial court properly performed its duty as the thirteenth juror when the trial court approves the jury's verdict without comment." See Ridings, 894 S.W.2d at 289. Upon review of the record, we find that the trial court approved the jury's verdict without comment and the Austins have failed to cite any evidence to rebut the presumption that the trial court properly performed its duty as thirteenth juror.
C. Material Evidence in Support of the Verdict
The Austins assert that the jury's verdict was not supported by material evidence in the record. In their brief, the Austins do not make a separate argument for this issue, but rather adopt the arguments made in favor of the thirteenth juror issue. Thus, we are faced with the same citation deficiencies but will, nevertheless, address this issue as well.
"Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict." Tenn. R. App. P. 13(d). The Tennessee Supreme Court in Barnes v. Goodyear Tire Rubber Co., 48 S.W.3d 698 (Tenn. 2000) set out the standard for reviewing material evidence in support of a jury's verdict:
When addressing whether there is material evidence to support a verdict, an appellate court shall: (1) take the strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all evidence that supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard all [countervailing] evidence. Crabtree Masonry Co. v. C R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978); Black v. Quinn, 646 S.W.2d 437, 439-40 (Tenn.App. 1982). Appellate courts shall neither reweigh the evidence nor decide where the preponderance of the evidence lies. If the record contains "any material evidence to support the verdict, [the jury's findings] must be affirmed; if it were otherwise, the parties would be deprived of their constitutional right to trial by jury." Crabtree Masonry Co., 575 S.W.2d at 5.
Barnes, 48 S.W.3d at 704-05 (Tenn. 2000); Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn. 2006).
Our review of whether sufficient evidence exists to support the verdict requires that we "assume the truth of all evidence that supports the verdict" and "discard all [countervailing] evidence." Barnes, 48 S.W.3d at 704 (citing Crabtree Masonry Co., 575 S.W.2d at 5). Then, "[i]f the record contains `any material evidence to support the verdict, [the jury's findings] must be affirmed." Id. (quoting Crabtree Masonry Co., 575 S.W.2d at 5). Upon review of the facts cited in the Allens' brief, the facts outlined in Section II, supra., and the record, we find that material evidence exists in support of the verdict and, as such, we affirm the jury's decision.
D. Summary Judgment Motion
The Austins assert that their motion for partial summary judgment, which sought a finding that the fence was constructed within a drainage easement in violation of the Declaration, should have been granted because an affidavit filed by Mr. Allen in opposition to the motion, which disputed issues of material fact, allegedly contained false statements in violation of Rule 56.08. The Austins argue that, had Mr. Allen not provided allegedly false statements, the trial court would have found there to be no genuine issue of material fact and would have ruled on the issue as a matter of law. The Austins seek a reversal of the judgment of the lower court and reconsideration of their motion for summary judgment prior to re-trial.
"When the trial court's denial of a motion for summary judgment is predicated upon the existence of a genuine issue as to a material fact, the overruling of that motion is not reviewable on appeal when subsequently there has been a judgment rendered after a trial on the merits." Hobson v. First State Bank, 777 S.W.2d 24, 32 (Tenn.Ct.App. 1989) (citing Mullins v. Precision Rubber Products, 671 S.W.2d 496, 498 (Tenn.Ct.App. 1984); Tate v. County of Monroe, 578 S.W.2d 642, 644 (Tenn.Ct.App. 1978)). Since the jury rendered a judgment on the merits in this matter, the issue of the trial court's denial of the Austins' summary judgment motion is moot.
E. Testimony and Argument at Trial
The Austins assert that the trial court erred (1) in excluding evidence of Mr. Allen's removal from the Committee, (2) in permitting the Allens' expert to testify beyond his knowledge and experience, and (3) in allowing the Allens to argue affirmative defenses not pled in their Answer.
The standard for reviewing a trial court's evidentiary decisions was set forth by this Court in White v. Vanderbilt Univ., 21 S.W.3d 215 (Tenn.Ct.App. 1999) as follows:
The admission or exclusion of evidence is within the trial court's discretion. See Seffernick v. Saint Thomas Hosp., 969 S.W.2d 391, 393 (Tenn. 1998); Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992). The discretionary nature of the decision does not shield it completely from appellate review but does result in subjecting it to less rigorous appellate scrutiny. See Tennessee Dep't of Health v. Frisbee, No. 01A01-9511-CH-00540, 1998 WL 4718, at *2 (Tenn.Ct.App. Jan. 9, 1998) (No Tenn. R. App. P. 11 application filed); BIF v. Service Constr. Co., No. 87-136-II, 1988 WL 72409, at *2 (Tenn.Ct.App. July 13, 1988) (No Tenn. R. App. P. 11 application filed). Because, by their very nature, discretionary decisions involve a choice among acceptable alternatives, reviewing courts will not second-guess a trial court's exercise of its discretion simply because the trial court chose an alternative that the appellate courts would not have chosen. See Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 708 (Tenn.Ct.App. 1999).
Discretionary decisions require conscientious judgment. See BIF v. Service Constr. Co., 1988 WL 72409, at *2. They must take the applicable law into account and must also be consistent with the facts before the court. See Overstreet v. Shoney's, Inc., 4 S.W.3d at 709. Appellate courts will set aside a discretionary decision only when the trial court has misconstrued or misapplied the controlling legal principles or has acted inconsistently with the substantial weight of the evidence. See Overstreet v. Shoney's, Inc., 4 S.W.3d at 709. Thus, a trial court's discretionary decision should be reviewed to determine: (1) whether the factual basis for the decision is supported by the evidence, (2) whether the trial court identified and applied the applicable legal principles, and (3) whether the trial court's decision is within the range of acceptable alternatives. See BIF v. Service Constr. Co., 1988 WL 72409, at *3. Appellate courts should permit a discretionary decision to stand if reasonable judicial minds can differ concerning its soundness. See Overstreet v. Shoney's, Inc., 4 S.W.3d at 709.
White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn.Ct.App. 1999).
The "abuse of discretion" standard of review calls for a less intense appellate review and, therefore, less likelihood that the trial court's decision will be reversed. State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn.Ct.App. 2000); White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn.Ct.App. 1999). Appellate courts do not have the latitude to substitute their discretion for that of the trial court. Myint v. Allstate Ins., Co., 970 S.W.2d 920, 927 (Tenn. 1998); State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn.Ct.App. 2000). Thus, a trial court's discretionary decision will be upheld as long as it is not clearly unreasonable, Bogan v. Bogan, 60 S.W.3d 721, 733 (Tenn. 2001), and reasonable minds can disagree about its correctness. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000). Discretionary decisions must, however, take the applicable law and the relevant facts into account. Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). Accordingly, a trial court has "abused its discretion" when it applies an incorrect legal standard, reaches a decision that is illogical, bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning that causes an injustice to the complaining party. Woodlawn Mem'l Park, Inc. v. Keith, 70 S.W.3d at 698; Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); Wilder v. Wilder, 66 S.W.3d 892, 895 (Tenn.Ct.App. 2001); Robinson v. Clement, 65 S.W.3d 632, 635 (Tenn.Ct.App. 2001).
1. Testimony of Mr. Allen's Removal from the Architectural Review Committee
The Austins assert that the trial court erred in excluding evidence of Mr. Allen's removal from the Committee because the evidence was directly related to the breach of fiduciary duty claim.
In ruling on a motion in limine filed by the Allens, the trial court excluded the testimony of Marcie Richmond, president of the Board of Directors ("Board") in 2003, regarding a letter detailing Mr. Allen's removal from the Committee based on a conflict of interest. At trial, the Austins made an offer of proof through the testimony of Ms. Richmond and admission of the letter addressed to Mr. Allen, which stated:
. . . the Board believes that there is a serious conflict of interest in your serving on the Committee when you personally do not intend to abide by the same rules as the rest of the neighborhood. For that reason, the Board had voted unanimously to dissolve the Post-Construction Architectural Committee until we are able to put in place a system that will be viewed as more equitable by everyone in the neighborhood. The Board will fulfill this function for the remainder of the year.
The trial court granted the Allens' motion in limine, seeking exclusion of Ms. Richmond's testimony and the letter, on the basis of relevance, finding that:
. . . I think the letter, then, introduces all of this postconstruction architectural committee issue, which I'm not seeing how that's going to be relevant to the proceedings, unless, again, Mr. Allen says, "No, I'm not familiar with these restrictive covenants. I don't have any understanding of them, never worked with them," or something — anything along those lines. Then, I think, certainly, the fact that he worked on the committee is going to be relevant.
I suppose, at this point, I will grant the motion in limine concerning the introduction of the letter. And . . . if there's some point in the proceedings where that letter becomes relevant, we'll certainly deal with it. But, certainly, if Ms. Richmond is expected to be a witness, she can testify, perhaps, as to the relevant issues more so than the letter.
"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tenn. R. Evid. 401. "All relevant evidence is admissible . . . Evidence which is not relevant is not admissible." Tenn. R. Evid. 402. When an appellate court reviews "a trial court's exclusion of evidence on the grounds of irrelevance, we will not disturb the decision of the trial court absent an abuse of discretion." State v. Powers, 101 S.W.3d 383, 395 (Tenn. 2003).
We find that the trial court did not abuse its discretion in excluding this evidence as irrelevant. Mr. Richmond's testimony and the letter clearly address concerns the Board had with Mr. Allen's position on the Committee and the actions taken to rectify the concerns. Nothing in the offer of proof addresses any fiduciary duty Mr. Allen owed the Austins, or any breach thereof. In ruling on the admissibility of the letter, the trial court outlined the purposes for which the letter could be introduced and found that Mr. Allen's removal as a member of the Committee was irrelevant and unrelated to any alleged breach of a fiduciary duty specific to the Austins. A discretionary decision will only be set aside "when the trial court has misconstrued or misapplied the controlling legal principles or has acted inconsistently with the substantial weight of the evidence." White, 21 S.W.3d at 222-23. We do not find that the trial court acted inconsistent with the evidence or misapplied legal principles in limiting the Austins' use of the letter.
2. Testimony from the Allens' Expert
The Austins assert that the trial court erred in allowing Mr. Coons to give his opinion as to the condition of the lots prior to his site visit because his opinion was not based on trustworthy facts or data.
Rule 702, Tenn. R. Evid., titled Testimony of Experts, states that:
If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.
Rule 703, Tenn. R. Evid., titled Bases of Opinion Testimony by Experts, states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.
During direct examination, the Allens moved to "allow Mr. Coons to testify as an engineer" under Rule 702 and the Austins made no objection. The Allens' attorney asked him "what things did you do in order to form your opinion . . . ?" Mr. Coons replied that:
[the Allens' attorney] had sent [him] a large packet of documents . . . including the depositions of the parties. Within that are also these reports . . . from PSI; two reports. We have some plats, some surveys. So there's a compilation of documents that [the Allens' attorney] provided, and that I'm sure the jury has already seen, in regards to what has progressed prior to me getting involved in this case.
The Allens' attorney then asked Mr. Coons, "[g]iven all the things we've discussed, what is your opinion in regard to the extent to which that fence affects drainage problems experienced by the plaintiffs?" The Austins objected to this question, and the trial court overruled the objection after a discussion outside the presence of the jury. Mr. Coons was permitted to answer the question and replied, "I think that fence has very little, if any, effect on the drainage problems on the plaintiffs property."
We do not find that the trial court abused its discretion in allowing Mr. Coons to provide his opinion in the context in which it was given. The Austins claim that Mr. Coons' opinion was untrustworthy because he collected no reliable data from which to make any determinations. Mr. Coons testified as to the information upon which he relied in forming his opinion and the Austins refer to nothing in the record to indicate a lack of trustworthiness of that information. In addition, the Austins were not limited in their cross-examination of Mr. Coons to uncover any alleged unreliability of the information he used in forming his opinion. The trial court properly applied the Rules of Evidence in allowing Mr. Coons to testify as an expert regarding his opinion.
3. The Allens' Presentation of Affirmative Defenses Not Pled in the Answer
The Austins allege that the trial court erred in permitting the Allens to assert the affirmative defenses of waiver and comparative fault when neither were properly pled in the Answer. The Allens assert that the defenses were properly raised in the Answer and that, even if they were not properly raised, evidence introduce at trial was sufficient to support the trial court's decision to permit the defenses to be argued to the jury.
In their brief, the Austins cite to the page in the trial transcript where their objection was raised, however, they fail to cite the page where the court made a ruling on the issue or the page(s) where the Allens' allegedly presented evidence of such affirmative defenses to the jury. As stated earlier, we are under no duty to verify unsupported allegations or to consider an issue raised but not properly argued in the Austins' brief. Bean, 40 S.W.3d at 55-56 (citing Duchow v. Whalen, 872 S.W.2d 692, 693 (Tenn.Ct.App. 1993); Airline Constr., Inc. v. Barr, 807 S.W.2d 247 (Tenn.Ct.App. 1990)). However, as before, we will review the issue presented despite the deficiencies in the Austins' brief in an effort to resolve all issues presented.
a. Waiver
Rule 8.03, Tenn. R. Civ. P., titled Affirmative Defenses, states that "[i]n pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute . . . comparative fault (including the identity or description of any other alleged tortfeasors), . . . waiver . . . and any other matter constituting an affirmative defense." Tenn. R. Civ. P. 8.03.
Rule 15.02, Tenn. R. Civ. P., titled Amendments to Conform to the Evidence, states, in part pertinent, that:
. . . Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues . . . If evidence is objected to at trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice that party in maintaining the action or defense upon the merits.
"`Amended pleadings may be filed before trial, after trial, or even after appeal so long as the trial court has jurisdiction and so long as the trial court does not abuse its discretion in allowing the amendment.'" George v. Bldg. Materials Corp. of Am., 44 S.W.3d 481, 486 (Tenn. 2001) (quoting Harris v. St. Mary's Med. Ctr., Inc., 726 S.W.2d 902, 904 (Tenn. 1987)). "The rules relating to amendment of pleadings are liberal, vesting broad discretion in the trial court." Biscan v. Brown, 160 S.W.3d 462, 471 (Tenn. 2005).
We find that the trial court did not abuse the discretion granted it under Rule 15 in allowing the Allens to introduce proof of waiver to the jury and further that the Austins have failed to show that they were prejudiced by the admission of such evidence.
Prior to opening statements, the trial court excused the jury and asked the parties if there were any pending matters. At that time, the Austins objected to the anticipated presentation of evidence of the affirmative defense of waiver by the Allens because it was not raised in their Answer. The trial court heard each party's argument on the issue and responded by stating "I think as to waiver that discussion is fair game. It was discussed at least as early as the Motion for Summary Judgment, which has been some several weeks ago." Thus, the trial court found that the waiver issue had been raised early enough in the proceedings so that the Allens' presentation of the defense would not prejudice the Austins.
The hearing on the summary judgment motion was held on February 15, 2006, and counsel for the Austins acknowledged that waiver had been raised in the response to the summary judgment motion. Waiver was also discussed at the pre-trial conference held approximately three weeks before trial.
While the trial court allowed the Allens to present evidence of waiver, the Allens never moved to amend the pleadings under Rule 15.02, nor did the trial court amend the pleadings sua sponte pursuant to its authority under Rule 15.02. Rule 15.02, however, states that pleadings made be amended "at any time, even after judgment" and that "failure so to amend does not affect the result of the trial of these issues." "[U]nder a proper interpretation of Rule 15.02, [amendment of the pleadings following judgment] was largely unnecessary, except as a housekeeping measure designed to insure the integrity and clarity of the record on appeal." Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888, 890 (Tenn. 1980). As such, the failure of the Allens and the trial court to amend the pleadings will not affect the jury's decision and we remand the case to the trial court to make such amendment to the pleadings as it deems necessary. See George, 44 S.W.3d at 486 (holding that "`amended pleadings may be filed . . . even after appeal so long as the trial court has jurisdiction and so long as the trial court does not abuse its discretion in allowing the amendment'").
b. Comparative Fault
The Austins also assert that the trial court erred in allowing the Allens to introduce evidence supporting the affirmative defense of comparative fault with regard to the Austins' claim of negligent interference with property rights. As noted above, the jury found no negligent interference on the part of the Allens with the Austins' property rights. Such finding renders any question of comparative fault moot.
F. Discretionary Costs
The Austins assert that the trial court abused its discretion in awarding some of the costs requested by the Allens under Rule 54, Tenn. R. Civ. P., and Rule 68, Tenn. R. Civ. P.
Under Rule 54, the trial court awarded costs in the amount of $2,454.00, including $1,561.00 in court reporter costs, $143.00 in transcript of proceedings fees, and $750.00 in expert fees. In addition, the trial court awarded costs in the amount of $2,314.50 under Rule 68 for the remainder of expert fees not available for award under Rule 54.
Rule 54.04, Tenn. R. Civ. P., states, in part:
(1) Costs included in the bill of costs prepared by the clerk shall be allowed to the prevailing party unless 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. 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, reasonable and necessary interpreter fees for depositions or trials, and guardian ad litem fees; travel expenses are not allowable discretionary costs.
Tenn. Rule Civ. P. 54.04.
An award of costs in accordance with Tenn. R. Civ. P. 54.04, like other costs, are within the trial court's reasonable discretion. Perdue v. Green Branch Min. Co., Inc., 837 S.W.2d 56, 60 (Tenn. 1992). As such, this Court employs a deferential standard when reviewing a trial court's decision either to grant or to deny a motion pursuant to this rule. Scholz v. S.B. Int'l, Inc., 40 S.W.3d 78, 84 (Tenn.Ct.App. 2000). Because these decisions are discretionary, this Court is generally disinclined to second-guess a trial court's decision unless the trial court has abused its discretion. Woodlawn Mem'l Park, Inc. v. Keith, 70 S.W.3d 691, 698 (Tenn. 2002;) Stallworth v. Grummons, 36 S.W.3d 832, 836 (Tenn.Ct.App. 2000); Mitchell v. Smith, 779 S.W.2d 384, 392 (Tenn.Ct.App. 1989).
The Austins assert that the costs of an additional deposition of Mr. Austin should not have been awarded under Rule 54, contending that the deposition was unnecessary since its focus was not an issue in the case nor was it used at trial. The Austins state that the "[t]rial court permitted the Defendants to take this additional deposition even after an extensive deposition had already been given by the Plaintiffs." At a pre-trial conference held approximately three weeks before trial, discussion was had regarding the location of the sump pumps in the Austins' basement and the location of the sump pumps' attachment to the sewer system. The court allowed the deposition of Mr. Austin for the Allens to receive further information in this regard. "[A] trial court's discretionary decision will be upheld as long as it is not clearly unreasonable." Bogan, 60 S.W.3d at 733. Nothing has been presented to us to show that the court's allowance of the expense of this supplemental deposition was unreasonable or that the trial court abused its discretion in allowing the Allens to recover the cost.
The Austins have not specified when the additional deposition was taken; we assume that the additional deposition referred to by the Austins was that held on November 16, 2007.
The Austins also assert that three court reporter expenses allowed by the trial court, dated September 14, 2007 ($143.00), September 14, 2007 ($90.00), and November 12, 2007 ($90.00), were not "for depositions or trials" and should not have been awarded under Rule 54; they do not state the purpose for which these costs were incurred nor do they cite anything in the record to reveal the purpose of the expenses. We have reviewed the record and determined that these expenses were incurred for the court reporters' per diem and transcripts of the September 14 and November 2 pre-trial conferences. 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. Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 216 (Tenn.Ct.App. 2008) (holding "court reporter fees for attending pretrial hearings are not permitted by Tenn. R. Civ. P. 54.04(2)"). As such, we find that the trial court abused its discretion in awarding these fees; the award of these costs, totaling $323.00, is vacated and the Allens' discretionary award under Rule 54 is reduced to $2,131.00.
Lastly, the Austins assert that the trial court exceeded its authority in awarding the costs of the remainder of the expert fees under Rule 68. On March 9, 2006, the Allens made an Offer of Judgment pursuant to Rule 68, offering to remove the bottom portion of their fence (as suggested by the Austins' expert) and to pay the Austins a lump sum of $2,500.00. The offer was not accepted. Following the jury's verdict, the Allens sought reimbursement for "all costs accruing after the making of the offer" since the trial result was "not more favorable than the offer." The trial court's order granting discretionary costs included the following language:
12/9/2007 Expert (Charles Coons) fee $3,064.50
(Of this total amount, $750 is granted under Rule 54 of the Tennessee Rules of Civil Procedure, and the balance is granted pursuant to Rule 68 of the Tennessee Rules of Civil Procedure)
This is the only mention of costs awarded under Rule 68.
Rule 68, Tenn. R. Civ. P., states:
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property, or to the effect specified in the offer, with costs then accrued. Likewise a party prosecuting a claim may serve upon the adverse party an offer to allow judgment to be taken against that adverse party for the money or property or to the effect specified in the offer with costs then accrued . . . An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree shall pay all costs accruing after the making of the offer.
In Jordan v. CSX Transp. Inc., 2001 WL 378555 (Tenn.Ct.App. April 17, 2001), this Court considered the issue of whether expert witness fees fell within the definition of "costs" to be awarded under Rule 68. In granting Rule 68 costs, the trial court awarded only "costs included in the bill of costs prepared by the trial court clerk." Jordan, 2001 WL 378555, at *6. The defendant appealed the trial court's failure to include expert witness fees in the award. Id. This Court affirmed the trial court's award, stating:
In this case, there are no underlying statutes defining "costs" to include items such as expert witness fees. [Defendant] cites no case in which [Rule 54], or its federal counterpart, have been the sole basis for an award of such costs under Rule 68 of the Tennessee Rules of Civil Procedure or Rule 68 of the Federal Rules. Thus, while the policy arguments supporting [defendant's] argument are appealing, in view of Person, [ supra.], Woods, [ supra.], and the federal case law cited by [defendant], we must affirm the trial court's holding that Rule 68 mandates an award in this case only of costs included in the bill of costs prepared by the clerk of the court.
Id. at 8.
The Austins do not challenge the trial court's award of $750 to the Allens for expert witness fees under Rule 54; rather, they assert that the award of the remaining $2,314.50 under Rule 68 was an abuse of the court's discretion. Since the jury's verdict was not more favorable than the Allens' Offer of Judgment, we find that the trial court was authorized to award costs under Rule 68. However, in accordance with our decision in Jordan, supra., we find that expert witness fees are not a "cost" recoverable under this Rule. As such, the award of $2,314.50 made pursuant to Rule 68 is vacated.
V. Conclusion
For the reasons set forth above, so much of the judgment of the Chancery Court as awards the Allens $2,314.50 in costs under Rule 68 is vacated and the award of costs under Rule 54 is reduced by $323.00 to $2,131.00; in all other respects, the judgment is affirmed. The case is remanded to the Chancery Court for collection of costs accrued therein and for such further proceedings in accordance with this Opinion as may be necessary.
Costs of appeal are assessed against Barbara and Steven Austin, for which execution may issue if necessary.