Dean Foods, D/B/A Bell/Gandy's a Certified Self-Insured v. Debra Anderson ( 2005 )

NO. 07-04-0016-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
OCTOBER 13, 2005
______________________________
DEAN FOODS COMPANY d/b/a BELL GANDY’S INC. and
TEXAS WORKER’S COMPENSATION COMMISSION
Appellants
v.
DEBRA ANDERSON,
Appellee
_________________________________
FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-518,172; HON. SAM MEDINA, PRESIDING
_______________________________
Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1
Concurring Opinion
I concur with the majority with regard to the “prevailing party,” but write separately
to explain that the majority’s decision also follows analogous precedent. We have
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John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2004 ).
recognized that of the many statutes and rules which may entitle a prevailing party to
recover attorney’s fees, the analysis applied has been uniform. City of Amarillo v. Glick,
991 S.W.2d 14, 17 (Tex. App.–Amarillo 1997, no pet.) (dealing with the recovery of fees
under §143.015(c) of the Local Government Code). Furthermore, included among the
category of statutes and rules alluded to in City of Amarillo is Rule 131 of the Texas Rules
of Civil Procedure, and though it speaks in terms of a “successful party,” the definition
accorded that phrase is the same one accorded the term “prevailing party.” Id. So, given
the uniformity of definition utilized throughout the differing bodies of law, it seems only
logical that opinions implicating Rule 131 would be authoritative when deciding whether a
party prevailed under §408.221(c) of the Texas Labor Code. After all, they encompass the
same concept.
Next, it consistently has been held that the beneficiary of a non-suit, e.g., the
defendant when a plaintiff files a non-suit, is the prevailing or successful party for purposes
of Rule 131. City of Houston v. Woods, 138 S.W.3d 574, 581 (Tex. App.–Houston [14th
Dist.] 2004, no pet.); Harris v. Shotwell, 490 S.W.2d 860, 861 (Tex. App.–Fort Worth 1973,
no writ); Reed v. State, 78 S.W.2d 254, 256 (Tex. App.–Austin 1935, writ dism’d). If we
are to retain the uniformity spoken of above, then we cannot but conclude that Anderson
was the successful or prevailing party here when Dean Foods filed its non-suit.
Brian Quinn
Chief Justice
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