*1 was not gas market. The open ue sale, price and available
free contemporane- negotiated in these deliveries. Under
ously with the
circumstances, evi- is not price the GPA value, judge and the trial market
dence of excluded it.
properly reasons, judg- affirm the these
For appeals. of the court of not participate. did
Justice O’NEILL SUPERMARKETS,
FURR’S
INC., Petitioner, BETHUNE, Respondent.
Marthana
No. 00-0846.
Supreme Court of Texas. April
Submitted
Decided June Walker, Hughes, L. Steven
Mark C. Galatzan, El Myers Safi & Mounce Green Paso, petitioner.
376 Richard,
Dennis L. Richard emotionally fragile Cobb and that & she Hall, Paso, respondent. El for couldn’t “good the court costs—as cause” parties to have the bear their own opinion Justice ENOCH delivered the of only costs under Rule 141. Those are the Court, joined by the Chief Justice grounds appeal.3 two we will consider on PHILLIPS, HECHT, Justices OWEN and At the the trial court noted Be- JFFFERSON. thune’s emotional outbursts and threats of trial this case the court did not assess suicide and stated that it going “was not Bethune, court costs Marthana be the one to precipitate any further emo- Furr’s, losing party, and for prevailing problems tional for ap- [Bethune].” On party, as Texas Rule of Civil Procedure peal, appeals court of affirmed the trial requires.1 131 The trial court relied on because trial “[the court] 141, permits Rule which cause” was entitled to consider factors in several exception to Rule 131 that is “to be stated adequately [it] [its] stated rea- on the record.”2 Furr’s asserts soning, finding of cause was [its] “good cause” the trial court stated on the not an abuse of discretion.”4 But record was not cause as a matter of appeals court of erred. therefore, the trial court abused its discretion. The court of af- appeals requires the trial court to judgment.
firmed the trial court’s Be- order that winning party recover its cause the record doesn’t show disagree, losing party, and reverse the court costs from the a trial ap- allowing peals’ judgment. court to order otherwise “for good cause, to be stated on the record.”5 Tax
After Bethune was assaulted and her
ing
successful
purse
Supermar-
stolen
one of Furr’s
court,
therefore, generally
contra
lots,
parking
kets’
she sued
for
venes Rule 131.6 Yet the trial court’s rul
provide adequate security.
failure to
Al-
though
jury
did
any
not find that
ing on costs under Rule 141 is permitted
harm,
negligence by Furr’s caused her
discretion,7
within
although
its sound
court had each
bear its own discretion is not unlimited.8
contrary
to Rule 131.
141
two requirements'
has
The
court reporter’s record we
—(cid:127)
be
that it
there
cause and
have is of the
to determine assess-
stated on the record.9 “Good cause” is an
During
ment of court
that hearing,
grounds
concept
Bethune advanced two
she
from case to
varies
—that
1996),
modified,
975
1. Tex.R. Civ. P. 131.
[14th Dist.]
aff'd
(Tex.1998);
S.W.2d 546
iv. P. 141.
R.C
Tex.
2. Tex.R. Civ. P. 141.
114,
Pierce,
6.
v.
114
Martinez
(Tex.1988).
Bank,
Broadway
3. See Silber v.
Nat’l
901
(Tex.App.
Antonio
— San
Stores, Inc.,
Rogers
v. Walmart
686 (Tex. 1985).
4. — S.W.3d —.
Lines,
8. See Craddock
Sunshine Bus
(1939).
Operation
Parent
Rescue-Nat'l v. Planned
Texas,
hood
Houston
Southeast
9. Tex.R. Civ. P. 141.
— Houston
partial reporter’s
party may request
cause” has
Typically though, “good
case.10
in which event
prevailing party
meant that the
unneces-
partial reporter’s
unrea- must
sarily prolonged
proceedings,
costs,
the entire record
did record “constitutes
sonably increased
or otherwise
the stated
*3
purposes
of
something
penalized.11
that
should be
Here,
argues that Furr’s
having
it
issues.”15 But Bethune
court stated was
rule,
with the
strictly comply
their
avoid
failed to
parties pay
own costs to
that
the record
harm. Poten-
that we should
causing Bethune emotional
judgment, be-
by
judge
supports
tial emotional harm
the trial court’s
caused
nor the
appeal
the notice of
losing party
costs
as
cause “neither
cannot,
con-
request
partial reporter’s
a matter of
for a
requires
as
points
or issues
‘any
be
cause. Stress associated with
tain
statement of
”
litigation
consequence
presented
appeal.’
is an
of
to be
on
unavoidable
process.
But trial courts
adversarial
it is true that Furr’s record re-
While
have
to minimize the
attendant
tools
strain
a statement of
quest does not itself contain
may,
example,
to a lawsuit. The court
appeal,
to
presented
recess the
postpone
request
for a
rejected
argument
suggest
if circu stances
that a
incorporate a state-
partial record must
(cid:127)
proceed
unable to
^motional reasons.
in,
with,
of
rather than
issues
n apply
A court must not deciue wheth
o
Bethune,
Here,
notified
request.16
procedure
a rule of
base on whether a
day
requested
it
same
wo_.ld
litm-mt
particular
suffer emotional-
record,
ap-
that “FSI desires to
reporter’s
ly-
Ferguson’s failure to
peal only -Tudge
costs, pursu-
its taxable court
,cond
award FSI
Regarding th
element of
out to Tex.R. Civ. P. 131 and
Civ.
Rule 141—cause “stated on th record”—
§
That
Prac. &
31.007.”
notice
Rem.Code
complains
Bethune
that Furr’s
presumption
is sufficient to invoke the
brought forward a limited record. She
record constitutes
partial reporter’s
authority holding
cites
purposes
record” for
of review-
the “entire
scrutinize
record to decide
point,
ing the stated issue.
any
whether there is
evidence to
responsibility
desig-
became Bethune’s
cause” statement.12
rec-
any
part
reporter’s
nate
argues
And she
the limited
because of
she deemed relevant to the costs is-
ord
affirm
of app
we must
the court
did not do so.
sue.17 She
disagree.
We
eals.13
court declared that Be
appellate procedure
Our rules of
autho-
The trial
limited,
the rea-
fragile
If
thune’s
emotional state was
appeals.14
properly
rize limited
Kennedy,
e.g., Englander
Co. v.
10. See
601.
13.
(Tex.1968); Christiansen v.
S.W.2d 806
Prezel
ski,
Rescue-Nat’l,
id.;
Operation
11. See
see also
Dep't
Transp. v.
937 S.W.2d at
Texas
Tex.R.App.
34.6(c)(1).
P.
14.
Pirtle,
— Fort
Tex.R.App.
pet.);
Worth
State v. Castle Hills
34.6(c)(4).
P.
15.
Forest, Inc.,
(Tex.App.—
Conner, 813 S.W.2d
16. Schafer
San Antonio
(Tex.1991).
Rule 131 directs is that she couldn’t Justice HANKINSON Justice the costs. Just as O’NEILL. litigant by enforcing harm to a caused is the rules is not neither BAKER, joined by Justice Justice *4 “If inability to court costs.18 pay O’NEILL, Hankinson and Justice inability ‘good financial cause’ pay to dissenting. then, contrary to rule the winner —not Today, the Court holds that would often be the loser—of lawsuit may harm a trial court cause position to the costs.”19 pay better be, can never party us, In the before we have Be- law, good ordering matter of cause for thune’s assertions and the trial court’s ob- pay each to their own costs under that Bethune servations and statement so, ignores doing Rule 141. Court if emotionally would be harmed court costs under parameters the limited of its review Otherwise, against her. were assessed standard. Because an abuse-of-discretion assertion that she have Bethune’s in the record to there is some evidence Because these cannot the court costs. good-cause state- support the trial court’s good cause as a matter of causes are not ment, improperly substitut- the Court has us no law and because Bethune judg- ed its for argued cause” that she to the ment. I dissent. court, we conclude that the trial court abused its discretion. I. LAW APPLICABLE provided, the
Typically, unless otherwise in a suit shall recover successful is to underlying purpose Rule 131’s party. Tex.R. Civ. opposing costs from the is freed prevailing party ensure that the however, “for may, The trial court P. 131. costs and that the of the burden of court to be stated Any litiga- losing party pays those pro- than as adjudge the costs otherwise in- emotionally wrenching for the tion is rules.” Crv. by vided law or these Tex.R. And court costs are dividuals involved. P. 141. This is financially often burdensome. “ ‘[g]ood recognized has cannot precisely why Bethune’s reasons is a 141] her cause’ [under to release her from cause on a Rather, only be determined concept which can Rule 141’s responsibility. Rogers Walmart basis.” mandate of Rule exception cause to the (Tex. Stores, prevail- to account for a designed 131 is result, instructed that oc- As a conduct ing party’s questionable the record” to “scrutinize appellate the trial courts during litigation, permitting curs Stotts, Id. 18. Adams v. 1983, writ). App. no — Dallas Assocs., writ); v. Perez & trial court’s no Guerra supports if it
to determine cf. pre- taxing some or all costs — El writ) at 601. Rogers, (holding vailing party. Paso an the record demonstrates by stating And “[u]nless abused its discretion court as- judge’s abuse of recognizing that good cause cause should of costs sessment remand would have considered the court Rogers, 686 appeal.” not be disturbed on if do so the trial court to ing the case- to supporting in the record there were facts assessment). Rule 141 cost appeals have es After courts of approaches sentially taken three different vary have taken Although these courts reviewing a trial court’s decision all they applied ing approaches, under Rule 141. assess costs Some has estab review this Court standard of have held that a trial court abuses 141 cases—whether lished for Rule discretion in trial court abused its discretion. did not winning party if the trial court Under an abuse-of- grounds explain or state on the record standard, cause. finding good rationale for decision un cannot overrule v. Donna e.g., Howell Crude Oil Co. Refin *5 unreasonably, the trial court acted less (Tex. Partners, 100, 112 ery 928 S.W.2d guiding without reference to arbitrarily, or 1996, writ de App. Dist.] [14th — Houston Herring, Bocquet v. principles. rules or Inc., nied); Landfill, B L 758 State v. & (Tex.1998); 19, Beaumont 21 972 S.W.2d 297, (Tex.App. [1st 300 S.W.2d — Houston (Tex. Buller, 223, 806 S.W.2d 226 Bank v. writ). courts, 1988, But no Dist.] not abuse its A trial court does when the trial court does not state supports the if some evidence cause on examine the record Huey, v. 571 trial court’s decision. Davis determine if the despite this omission to (Tex.1978); 859, Es 863 see also S.W.2d intended from the to deviate (Tex. Elboar, 754, 758 trello v. 965 S.W.2d rule and if this an general abuse 1998, Crabtree, pet.); Holley no See, App. Worth e.g., v. 936 discretion. Allen — Fort 6, 703, (Tex.App.— 706 (Tex.App. Holley, 9-10 v. S.W.2d — Texarkana 1996, writ); 1993, Broadway no Silber v. Nat’l writ Houston [1st Dist.] Bank, 672, (Tex.App. 675 — San 1995, denied); Howell v.
Antonio writ cf. II. ANALYSIS Hecht, 627, (Tex.App.— 821 632-33 S.W.2d case, Furr’s received a favorable In this denied) 1991, (affirming trial Dallas Then, hearing, post-trial at a jury verdict. losing party assessing court’s determined that each the trial court no reviewing finding the record and after Furr’s initiated bear its own costs. should rule). general to deviate from the intention appellate our rules partial appeal, cases, Still, a trial court does in other court’s complaining about the trial permit, not state cause on $4,500— its own costs—about assessing to the trial court so it can remand the case Tex.R.App. it under Rule 141. See opportunity to do so. have the 34.6(c). with provided Court P. Inc. v. e.g.,Contemporary Mgmt., Health Palacios, 743, transcript from costs, designate any 1992, writ); Bethune did not no App. [14th Dist.] — Houston Servellon, appeal. for the See additional record v. 812 Dover Elevator Co. R.App. 1991, 366, 34.6(c)(2). P. (Tex.App. S.W.2d 368 — Dallas 380
Traditionally, reviewing courts review matters committed to the trial appellate the entire record to determine whether a court’s such decision trial court abused its discretion. Mer there is cause to assess costs under Rhyne, Corp. cedes-Benz Credit v. 925 reviewing court Rule cannot sub- (Tex.1996); 666 S.W.2d Simon York judgment for the trial stitute its court’s Co., Rigging 739 795 Crane & S.W.2d even if it have reached a would (Tex.1987). Thus, before the Walker, contrary conclusion. See rules were amended in 839; Bank, S.W.2d at Beaumont could with decision not be reviewed partial appellant record “[w]hen operating presumption Even under the sufficiency factual chal legal [d] raise or that the limited record is the entire record v. AT lenge.” Transp., See Land & S clearly for this it is erroneous for appeal, — Austin this to hold that the trial court Court writ) (refusing review trial requiring its discretion in Furr’s to abused partial order under rec sanctions pay its own costs. There is some evidence ord). But, recognizes, as the good-cause expressly permits partial 34.6 now rec statement for costs under Rule legal sufficiency ord for or factual issues. Davis, at Es Tex.R.App. 34.6(c)(4). And, even when P. trello, 758; Holley, complaint legal is about the evidence’s post-trial S.W.2d at 706. sufficiency, presume factual we previous Bethune’s noted pur entire record threats, emotional outbursts and suicide Tex.R.App. poses appeal. argument and it that a third considered 34.6(c)(4). case, Accordingly, this P. police had asked officers to attend the limited record before us *6 in harmed her hearing the case Bethune appeal. is the entire record for this Further, argu trial court heard self. holding court determina- that trial that Bethune’s income is derived assessing tions about costs under disability pension. from a The trial court basis, case-by-case on a be reviewed was also reminded about the evidence and recognized that showing expert testimony at trial Be categorically should not assess whether a Through fragile thune’s emotional state. “good reason as a matter of is cause” law. hearing, out the the trial court and the at 601. The parties’ attorneys referred to conversa Court, however, ignores principle this argu the record that tions and conduct off holds that emotional harm a court ably Bethune’s emotional demonstrated may party cause a in costs can spoke And Bethune out several state. be, law, good never as a matter of cause. often incoherent during times holding disregards The also its Court’s anxiety. ly, displaying her distress and applying role as the court hearing the trial When Under this
abuse-of-discretion standard. going it was “not court determined that standard, appellate courts defer to trial any further emo- precipitate be the one to discretionary matters courts’ decisions on [Bethune],” and it thus problems tional reasonably could unless the court bear their own ordered that each decision or the trial have reached one Despite good-cause this statement costs. applies court the law to the improperly Packer, the evidence despite facts of the case. Walker (Tex.1992). And, supporting that state- when the record judgment. Trial courts ment, fear court’s judge’s that a the trial Court holds par- about knowledge cause a have first-hand that will not, the liti- throughout harm is matter of their conduct ties and emotional that, daily this events of they cause. The Court reasons gation, and witness Thus, litiga- because “stress with typically is so associated trial courts trial. of the consequence tion is an unavoidable as- determining when how to insight most also rea- process.” Here, adversarial At 377. It sess “[j]ust that sons appreciate the situation position best litigant by enforcing harm to a caused And the ruling to make the it did. is the rules is not neither trial court determined under the inability to pay court costs.” requiring that and within discretion its own was the Furr’s to recessing opines to make. The Court disagree may I not suffer parties do the situa- would have resolved resulting from And I do litigation. stress nothing But this is suggestion tion better. disagree not within exercising than a reviewing more losing par- discretion to that a determine it does not there discretion have. Because ty’s economic status cause to is not the trial supporting is some evidence assess costs But the the winner. statement, re- good-cause court’s as the reasoning guiding ignores Court’s our “ court, may viewing disturb the trial in Rule 141 principle ‘[g]ood cases that appeal. Rog- cost assessment cause’ is a can concept which ers, Davis, be determined on a ba- (emphasis sis.” at 601
added). precludes from “Rule Finally, the Court concludes that determining that something is not mandate exception 141’s cause to the cause” there is some evidence to designed for a of Rule 131 is to account the trial court’s decision. questionable prevailing party’s conduct
Here, during litigation, permitting there is evidence in the record occurs judge some to reassess showing that emotionally Bethune was to that fragile and that costs so cost attendant Bethune was in fact ex innocent, visited conduct is not on an *7 tremely Notably, distressed and upset. concluding, losing party.” 378. In so even Furr’s does not that Bethune dispute limits improperly the Court defines and suffered from real and severe Further, cause,” wholly again can what distress. there is evidence that jurisprudence the con- Texas ignoring considered other events (“ trary. Rogers, 686 at 601 ‘Good previously occurred or As off record. concept which can cause’ is a appeals the court of ba- only be determined court was entitled consider all these sis.”). Now, factors, only apply a trial it court can adequately stated its rea — 141 based on a misconduct at —.Rule soning requires. line is the
during litigation. The bottom Rogers. implicitly Court has overruled exemplifies ease why why under 141 and have discretion III. CONCLUSION courts, applying an abuse- standard, determining micro- the trial court
of-discretion should not whether manage their this Court exercises substitute abused step does not have to “fix” it perceives wrong what to be a improper
unfair decision. This is because
there is some evidence in the record to the trial court’s Rule 141 cost Thus,
assessment. I affirm the would appeals’ judgment.
court of Because otherwise,
Court concludes I dissent. COMPANY, AND
SEARS ROEBUCK
Appellant,
DALLAS CENTRAL APPRAISAL
DISTRICT, Appellee.
No. 05-99-00480-CV. Texas, of Appeals
Dallas.
Aug.