 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Yeubanks v. Methodist Healthcare-Memphis Hospitals6/10/2003
ting Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 60 (Tenn. 1992)).
Here, Yeubanks asserts that the trial court abused its discretion in awarding the costs because the costs were punitive, and because she is proceeding as a pauper. After reviewing the record we find that the trial court's order was not punitive in nature, but rather, was the result of consideration of all of the factors involving a trial that lasted almost six weeks and resulted in the trial court's dismissal of claims against some defendants and the plaintiff's voluntary dismissal of claims against other defendants.
Plaintiff contends that the trial court abused its discretion in awarding costs because she was proceeding as a pauper under section 20-12-127 of the Tennessee Code Annotated, which states:
(a) Any civil action may be commenced by a resident of this state without giving security as required by law for costs and without the payment of litigation taxes due by
(1) Filing the following oath of poverty; . . .and
(2) Filing an accompanying affidavit of indigency as prescribed by court rule.
(b) The filing of a civil action without paying the costs or taxes or giving security for the costs or taxes does not relieve the person filing the action from responsibility for the costs or taxes but suspends their collection until taxed by the court.
Tenn. Code Ann. § 20-12-127 (Supp. 2002). Thus, the plaintiff must file the oath and the affidavit of indigency. Here the record indicates that Yeubanks filed an oath of poverty, but it does not include an affidavit of indigency. Moreover, even when the plaintiff properly files a pauper's oath and an affidavit of indigency, the plaintiff is not relieved from paying the costs or taxes; the payment is merely suspended. See Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 4-9(b) & n.203 (1999 & Supp. 2001). Thus, the trial court did not abuse its discretion in awarding costs against Yeubanks, and this decision is affirmed.
Finally, Yeubanks argues that the trial court erred in requiring her to pay the awarded costs prior to refiling her case. The payment of such costs is addressed in Rule 41.04 of the Tennessee Rules of Civil Procedure, which 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.
Tenn. R. Civ. P. 41.04 (emphasis added). The rule clearly contemplates that the determination of when the plaintiff must pay costs previously ordered is made after the case is refiled. Thus, the trial court erred in ordering that the costs be paid prior to the refiling of the case, and this decision must be reversed.
Finally, defendants Dr. Hixson and Pediatric Surgical Group, and Dr. Hertz seek their costs and expenses on appeal, arguing that this appeal, as it relates to them, is frivolous. After a review of the record, we decline to find the appeal frivolous.
The decision of the trial court is affirmed in part and reversed in part, as set forth above. Costs are taxed to the appellant, Christina K. Yeubanks, individually, and as natural parent and surviving next of kin of Sarah Nicole Anderson, and her surety, for which execution may issue, if necessary.
Page 1 2 3 4 5 6 7 8 9 10 Tennessee Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|