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Rule 54.04 – Costs

May 14, 2021 | Civil Procedure, Tennessee

(1) Costs included in the bill of costs prepared by the clerk shall be allowed to the prevailing party unless the court otherwise directs, but costs against the state, its officers, or its agencies shall be imposed only to the extent permitted by law.
(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 not paid pursuant to Tennessee Supreme Court Rule 42, and guardian ad litem fees; travel expenses are not allowable discretionary costs. Subject to Rule 41.04, a party requesting discretionary costs shall file and serve a motion within thirty (30) days after entry of judgment. The trial court retains jurisdiction over a motion for discretionary costs even though a party has filed a notice of appeal. The court may tax discretionary costs at the time of voluntary dismissal. In the event an appeal results in the final disposition of the case, under which there is a different prevailing party than the prevailing party under the trial court’s judgment, the new prevailing party may request discretionary costs by filing a motion in the trial court, which motion shall be filed and served within thirty (30) days after filing of the appellate court’s mandate in the trial court pursuant to Rule 43(a), Tenn. R. App. P.

Tenn. R. Civ. P. 54.04

As amended by order entered January 23, 1986, effective August 1, 1986, by order entered March 18, 1986, by order entered January 25, 1991, effective July 1, 1991, by order entered January 28, 1993, effective July 1, 1993; by order filed February 1, 1995, effective July 1, 1995; by order filed January 23, 2001, effective July 1, 2001, by by order filed December 10, 2003; effective July 1, 2004; by order effective July 1, 2005; and by order filed December 18, 2012, effective July 1, 2013.

Advisory Commission Comments.

54.01: The definition of “Judgment” includes and makes no distinction between “Judgment,” “Order” or “Decree.”

Advisory Commission Comments [1991].

Rule 54.04(3) [deleted in 2001] was formerly numbered Rule 43.06. It is moved here because it has to do with court costs rather than admissibility of evidence.

Advisory Commission Comments [1993].

The amendment to Rule 54.04 is consistent with the Supreme Court’s opinion in Lock v. National Union Fire Insurance Company of Pittsburgh, Pennsylvania, 809 S.W.2d 483 (Tenn. 1991). The expanded rule defines discretionary costs, provides for a timely motion, and makes clear that a notice of appeal will not deprive the trial court of jurisdiction to entertain a motion for discretionary costs.

If the plaintiff takes a voluntary nonsuit, Rule 41.04 gives the trial judge discretion to require payment of costs upon recommencement of the action. Revised Rule 54.04 would permit assessment of costs at an earlier date, assuming the defendant submits and the court enters an order formally dismissing the case pursuant to plaintiff’s nonsuit. A motion for discretionary costs in that instance must be made within thirty days of entry of the order.

Advisory Commission Comment [1995].

This is a clarifying amendment to Rule 54.04(2).

Advisory Commission Comment [2001].

Interpreter fees are added to the list in subsection (2). Consequently prior subsection (3) on court-appointed interpreters is no longer needed, as subsection (2) covers both privately retained and judicially appointed interpreters.

Advisory Commission Comment [2004].

Some experts, including medical doctors, are furnishing reports stipulated by adversaries to be accurate and truthful, thereby avoiding the necessity of a deposition. The amendment to Rule 54.04(2) would allow recovery of related expenses as discretionary costs.

Advisory Commission Comment [2005].

In some cases, the “prevailing party” under the trial court’s judgment may not be the prevailing party following an appeal of the judgment. The amendment to Rule 54.04(2) provides a procedure for requesting discretionary costs in cases in which: (1) the appellate court’s decision is a final disposition of the merits of the case; and (2) the appellate court’s decision results in a new prevailing party. The amendment does not cover cases in which the appellate court’s decision is not a final disposition of merits of the case, i.e., cases that are remanded for a new trial or for other proceedings on the merits; in such cases, a motion for discretionary costs may be filed following the trial court’s ultimate judgment on remand.

Advisory Commission Comment [2013].

Tenn. Sup. Ct. R. 42 was amended (effective July 1, 2012) to govern the payment of costs for services of interpreters used in proceedings covered by that rule. Rule 54.04(2) was amended to provide that any “reasonable and necessary interpreter fees not paid pursuant to Tennessee Supreme Court Rule 42” may be allowed as discretionary costs.

Advisory Commission Comment [2014].

54.04. Effective July 1, 2012, Tennessee Code Annotated Section 20-12-119 was amended to add subsection (c) which authorizes the trial court, under certain circumstances, to award costs and reasonable and necessary attorney’s fees to a party who prevails on a motion to dismiss for failure to state a claim upon which relief may be granted. Section 20-12-119(c) requires the party or parties whose claim or claims were dismissed to pay the awarded costs and fees.