American Home Assurance Company v. Edward Vaughn ( 2005 )

NO. 07-04-0349-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
SEPTEMBER 29, 2005
______________________________
AMERICAN HOME ASSURANCE COMPANY,
Appellant
v.
EDWARD VAUGHN,
Appellee
_________________________________
FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;
NO. 52,395-C; HON. PATRICK A. PIRTLE, PRESIDING
_______________________________
Before QUINN, C.J., REAVIS, J., and BOYD, S.J.1
Concurring Opinion
I concur with the majority but write separately to explain that the majority’s decision
also follows analogous precedent. We have recognized that of the many statutes and rules
which may entitle a prevailing party to recover attorney’s fees, the analysis applied has
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of A ppe als, sitting by as signme nt. Tex. Gov’t Code
Ann. §75.00 2(a)(1 ) (Vernon Supp. 2004 ).
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 Edward Vaughn
was the successful or prevailing party here when American Home Assurance Company
filed its non-suit.
Brian Quinn
Chief Justice
2