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Russell v. Brown8/18/2005
awards to the court reporter fees.
We find that the court abused its discretion in limiting its award of discretionary costs to the charges of court reporters. First, both defendants submitted affidavits in support of their motions attesting to the reasonableness and necessity of the expenses incurred. The plaintiff presented no counter-affidavits. Although the plaintiff claimed at oral argument that the charges commanded by the experts were unreasonable and excessive, we find this does not suffice to dispute the defendants' verified claims to the contrary. Second, it is entirely appropriate to award fees for expert witnesses. See Tenn. R. Civ. P. 54.04(2); Stalsworth, 36 S.W.3d at 835. Our courts have even extended this to fees incurred for experts who do not actually testify at trial. Id. Consequently, where the plaintiff has failed to proffer any evidence to challenge the reasonableness or necessity of the experts, e.g., that their testimony was cumulative or unhelpful, we find that the trial court abused its direction in declining to award these fees to the defendants. Case precedent has established that a trial court should award fees that are identified in Tenn. R. Civ. P. 54.04(2) and are reasonable and necessary. See Mass. Mutual Life Ins. Co., 104 S.W.3d at 35. In the absence of any evidence to the contrary, we find that the costs sought should have been awarded.
Accordingly, we vacate the amounts of the awards of discretionary costs. The plaintiff argued that the charges sought for the videographer are not covered by Tenn. R. Civ. P. 54.04(2). Counsel for Dr. Brown responded that if the court determined those costs incurred from taking video proof in three depositions were not appropriate, they took no issue with that. The expense of a videographer is not listed in Rule 54.04(2). Accordingly, the trial court is directed not to award the fees of the videographer. Otherwise, the trial court is directed, on remand, to enter an order awarding the full amount of costs sought by the defendants.
VII.
The judgment of the trial court predicated on the jury's verdict is hereby affirmed. The trial court's judgment with respect to the defendants' motions for discretionary costs is hereby vacated. We remand this case to the court below for the entry of an order awarding the defendants the full amount of their requested discretionary costs, save for the videographer's fees. Costs on appeal are taxed to the appellants, Emerson Russell and Angie Russell.
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