Arturo Garcia and Aurelia Garcia v. HEB Grocery Co. ( 2023 )

NUMBER 13-21-00100-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ARTURO GARCIA AND
AURELIA GARCIA, Appellants,
v.
HEB GROCERY CO., Appellee.
On appeal from the 398th District Court
of Hidalgo County, Texas.
OPINION
Before Chief Justice Contreras and Justices Longoria and Silva
Opinion by Justice Longoria
Appellants Arturo Garcia and Aurelia Garcia challenge the trial court’s award of
certain costs to appellee H.E. Butt Grocery Company, L.P. (HEB). 1 By one issue with
1 Appellee was named as “HEB Grocery Co.” in appellants’ original petition and in the style of the
final judgment. In its motion for entry of final judgment, appellee referred to itself as “H-E-B, L.P. incorrectly
named HEB GROCERY CO.” The body of the final judgment, which was drafted by appellee, refers to
multiple subparts, appellants contend the trial court abused its discretion in taxing certain
expenses as court costs. We reverse the trial court’s order and remand for further
proceedings.
I. BACKGROUND
Appellants filed suit against HEB seeking compensation for personal injuries
arising out of a slip and fall incident that occurred at an HEB grocery store. A jury returned
a verdict in favor of HEB. HEB filed a motion for entry of final judgment, to which it
attached a Bill of Costs detailing the costs it sought to recover. HEB also attached a
proposed judgment which would award HEB $12,308.53 in costs of court. Appellants
responded, objecting to some of the costs sought by HEB. Specifically, appellants
objected to costs related to: video recording of depositions, copies of deposition
transcripts, video trial support, “Shana Lively Transcripts,” medical records, and “‘e[-]filing
fees’ not shown to be costs incurred in making necessary filings.” The trial court entered
the final judgment as proposed by HEB, providing that appellants would take nothing by
way of their claims and awarding HEB $12,308.53 in costs. This appeal ensued.
II. ANALYSIS
A. Standard of Review & Applicable Law
A successful party in a lawsuit is entitled to recover its costs from its adversary.
TEX. R. CIV. P. 131. We review an award of costs under an abuse of discretion standard.
Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 630 (Tex. App.—Dallas 2004, pet. denied).
appellee as “H-E-B, L.P. incorrectly named H.E. BUTT Grocery Company, L.P.” On appeal, appellee refers
to itself as “H.E. Butt Grocery Company, L.P.” It is undisputed that all of these monikers refer to the same
party.
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We may reverse a trial court for abuse of discretion only if, after searching the record, it
is clear the court’s decision was arbitrary and unreasonable. See City of Houston v.
Woods, 138 S.W.3d 574, 580 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing
Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987)).
“The general rule in Texas is that expenses incurred in prosecuting or defending a
suit are not recoverable as costs unless recovery for those items is expressly provided
for by statute, rule, or under principles of equity.” Gumpert v. ABF Freight Sys., Inc., 312
S.W.3d 237, 239 (Tex. App.—Dallas 2010, no pet.) (citing Ferry v. Sackett, 204 S.W.3d
911, 912 (Tex. App.—Dallas 2006, no pet.); Phillips v. Wertz, 579 S.W.2d 279, 280 (Tex.
App.—Dallas 1979, writ ref’d n.r.e.); Shaikh v. Aerovias de Mexico, 127 S.W.3d 76, 82
(Tex. App.—Houston [1st Dist.] 2003, no pet.)). Whether a particular expense is
recoverable under statute or rule as a court cost is a question of law, which we review de
novo. Sackett, 204 S.W.3d at 912.
A judge of any court may include in any order or judgment all costs,
including the following:
(1) fees of the clerk and service fees due the county;
(2) fees of the court reporter for the original of stenographic transcripts
necessarily obtained for use in the suit;
(3) masters, interpreters, and guardians ad litem appointed pursuant to
these rules and state statutes; and
(4) such other costs and fees as may be permitted by these rules and
state statutes.
TEX. CIV. PRAC. & REM. CODE ANN. § 31.007(b).
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B. Recoverable Court Costs
Appellants make general assertions that costs of video recordings of depositions,
copies of deposition transcripts, and “video trial support” are not recoverable as court
costs. 2 Citing Texas Rule of Civil Procedure 140 and several cases, appellants argue
that the trial court erred in awarding such expenses as court costs. See In re Nalle Plastics
Fam. Ltd. P’ship, 406 S.W.3d 168, 175 (Tex. 2013) (orig. proceeding); Hatfield v.
Solomon, 316 S.W.3d 50, 66 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Gumpert,
312 S.W.3d at 240–42 (holding costs related to copying deposition transcripts and
videotaping depositions are not recoverable); Matbon. Inc. v. Gries, 288 S.W.3d 471, 487
(Tex. App.—Eastland 2009, no pet.) (same); Shaikh, 127 S.W.3d at 82; see also Waste
Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., No. 03-10-00826-CV, 2014 WL
6705741 at *5 (Tex. App.—Austin Nov. 14, 2014, no pet.) (mem. op.) (same). In response,
HEB, noting a split in Texas courts, cites cases supporting its position that the trial court
did not err in awarding these costs. See Crescendo Invs. Inc. v. Brice, 61 S.W.3d 465,
480–81 (Tex. App.—San Antonio 2001, pet. denied) (holding that “[t]ranscripts
‘necessarily obtained for use in the suit’ seems to obviously include depositions . . . used
to question witnesses and prepare for argument at trial” and allowing those costs to be
2 HEB argues that appellants inadequately briefed the issue of whether costs for video recordings
of depositions and “video trial support” can be recovered. While appellants’ brief does not elaborate on the
issue, it does provide legal authority to support their position regarding video recordings of depositions.
Accordingly, waiver being disfavored, we will address appellants’ issue related to video recordings of
depositions in this memorandum opinion. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per
curiam) (“Appellate briefs are to be construed reasonably, yet liberally, so that the right to appellate review
is not lost by waiver. Simply stated, appellate courts should reach the merits of an appeal whenever
reasonably possible.” (internal citations omitted)). As to “video trial support,” the cases cited by appellants
do not pertain to the issue raised. Liberal construction in the interest of justice is not possible where there
is total lack of argument concerning a particular issue. Appellants did not provide additional explanation,
argument, or support, and as such, we find they have waived their issue concerning “video trial support” on
appeal. See TEX. R. APP. P. 38.1(i).
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recovered); see also Weeks Marine, Inc. v. Barrera, No. 04-08-00681-CV, 2010 WL
307878, at *5 (Tex. App.—San Antonio Jan. 27, 2010, pet. denied) (mem. op.) (same).
The issue of whether the costs of videotaping depositions and copies of deposition
transcripts are taxable as court costs are issues of first impression in this Court. We find
appellants’ cited cases persuasive.
The statute that applies here specifically limits recovery of costs to the “fees
of the court reporter for the original of stenographic transcripts necessarily
obtained for use in the suit” and “such other costs and fees as may be
permitted by these rules and state statutes.” TEX. CIV. PRAC. & REM. CODE
ANN. § 31.007(b)(2), (4) (emphasis added)[;] [s]ee TEX. R. CIV. P. 203.2(f)
(stating clerk of court must tax charges for preparing original deposition
transcript as costs). Civil procedure rule 140 specifically states that “[n]o fee
for a copy of a paper not required by law or these rules to be copied shall
be taxed in the bill of costs.” TEX. R. CIV. P. 140. We have not found any
rule or statute that requires a party to videotape a deposition or to obtain a
copy of a deposition, and [appellee] cites to none. And we do not find any
language in an applicable statute or rule that allows a party to recover as
costs the expenses of videotaping depositions or copying deposition
transcripts, or any general language that allows recovery as costs for
expenses that were “necessary to the conduct of trial” or “necessarily
obtained for use in the suit and were used to question witnesses and
prepare for argument at trial.”
Gumpert, 312 S.W.3d at 241–42 (footnotes omitted). Here, appellants argue that HEB
was awarded costs related to video recording depositions as well as for copies of
transcripts of depositions that were noticed and taken by appellants. We find no statute
or rule that authorizes the recovery of the costs to videotape a deposition or obtain a copy
of a deposition transcript, therefore, we conclude that the trial court erred by awarding
HEB those costs. See id.; Matbon, 288 S.W.3d at 487; Shaikh, 127 S.W.3d at 82; see
also Waste Mgmt. of Tex., 2014 WL 6705741 at *5; but see Crescendo Invs. Inc, 61
S.W.3d at 481; Weeks Marine, Inc., 2010 WL 307878, at *5. We sustain appellants’ issue
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as it relates to costs for video recordings of depositions and copies of deposition
transcripts.
C. Recoverable Expenses
Appellants next assert that the trial court erred in awarding HEB costs for the
“Shana Lively Transcripts” and for “e[-]filing fees” that were not shown to be fees of the
clerk.
1. Transcripts
The “Shana Lively Transcripts” are the transcripts of pre-trial hearings reported by
Shana Lively, the court reporter for the 398th District Court. The civil practice and
remedies code expressly authorizes the trial court to include in the judgment “fees of the
court reporter for the original of stenographic transcripts necessarily obtained for use in
the suit.” TEX. CIV. PRAC. & REM. CODE ANN. § 31.007(b)(2). Because these costs are
explicitly provided for by statute, the trial court did not err in awarding them. Appellants’
issue as it relates to the “Shana Lively Transcripts” is overruled.
2. Electronic Filing Fees
Appellants further assert that the trial court erred in awarding electronic filing fees,
to HEB because “HEB presented no such proof” that these expenses were “shown to be
fees of the clerk.” The statute expressly permits an award for “fees of the clerk and service
fees due the county.” Id. § 31.007(b)(1). Electronic filing is an appropriate—and in some
courts, mandatory—method by which parties may file and serve pleadings and motions.
See TEX. R. CIV. P. 21(f). Use of the electronic system in Texas is free. Price Structure,
EFILETEXAS, https://www.efiletexas.gov/Service-Providers/StateEFSP.htm (last visited
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Jan. 17, 2023). However, there are fees assessed by and collected by the clerk when a
document is e-filed. Accordingly, the trial court did not err in awarding costs for the clerk’s
fees associated with e-filing. See Allen v. Crabtree, 936 S.W.2d 6, 8 (Tex. App.—
Texarkana 1996, no writ); Shenandoah Assocs. v. J & K Props., Inc., 741 S.W.2d 470,
487 (Tex. App.—Dallas 1987, writ denied); see also Spears v. Huber, No. 07-11-0193-
CV, 2012 WL 933780, at *4 (Tex. App.—Amarillo Mar. 20, 2012, no pet.) (mem. op.).
Appellants’ issue is overruled as it relates to e-filing fees.
D. Evidence to Support Bill of Costs
In their final argument, appellants contend that HEB did not present evidence to
support the listed expenses. “Each party to a suit shall be responsible for accurately
recording all costs and fees incurred during the course of a lawsuit, if the judgment is to
provide for the adjudication of such costs.” TEX. CIV. PRAC. & REM. CODE ANN. § 31.007(a).
There is no requirement in § 31.007(a) for a formal presentation of evidence of HEB’s
costs. See Nolte v. Flournoy, 348 S.W.3d 262, 271 (Tex. App—Texarkana 2011, pet.
denied); see also TEX. CIV. PRAC. & REM. CODE ANN. § 31.007(a). Instead, “[a]ll that seems
to be required is that the successful party present . . . an itemized list of costs and fees
incurred during the lawsuit.” Nolte, 348 S.W.3d at 271; see Johnson v. Ventling, 462
S.W.3d 92, 104–05 (Tex. App.—Corpus Christi–Edinburg 2013), aff’d in part, rev’d in part,
466 S.W.3d 143 (Tex. 2015). Here, HEB presented an itemized list of costs and fees
incurred during the lawsuit. Therefore, we cannot say the trial court abused its discretion
in awarding costs. Appellants’ issue as it relates to evidentiary support for the bill of costs
is overruled.
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E. Summary
The trial court did not have the benefit of our analysis at the time it denied the
motion to retax costs. Accordingly, we believe the best resolution is to give the trial court
the opportunity to recalculate the taxable costs consistent with our analysis. See
Gumpert, 312 S.W.3d at 242.
III. CONCLUSION
We reverse the trial court’s order and remand this cause for further proceedings
consistent with this opinion.
NORA L. LONGORIA
Justice
Delivered and filed on the
16th day of February, 2023.
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