Wendy Schreiber v. State Farm Lloyds , 474 S.W.3d 308 ( 2015 )

Affirmed as Modified and Opinion filed July 28, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00010-CV
WENDY SCHREIBER, Appellant
V.
STATE FARM LLOYDS, Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2012-03419
OPINION
In this insurance-coverage case, the trial court rendered judgment that the
insured take nothing based on the jury’s verdict in favor of the insurer. The verdict
included a finding that the fire that destroyed the insured’s home was intentionally
caused with the insured’s prior knowledge or participation. On appeal, the insured
asserts that the trial court reversibly erred in prohibiting her from asking certain
questions at two depositions and by excluding the testimony of an assistant district
attorney. We conclude that even if the trial court erred in all of these rulings, the
errors were harmless. In the insurer’s cross-appeal, we hold that the trial court
erred in denying the insurer recovery of certain court costs. We modify the
judgment to award these court costs, and affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant/plaintiff Wendy Schreiber’s house was destroyed by a fire. The
State Fire Marshal’s Office investigated the scene and classified the cause of the
fire as “undetermined.” The State Fire Marshal did not find any evidence of
criminal activity, but the State Fire Marshal did not conduct a full cause-and-origin
investigation.
Schreiber’s home was insured by appellee/defendant State Farm Lloyds.
After Schreiber made a claim on the policy, State Farm hired investigators Dustin
Deutsch and Lonnie Blevins to conduct a cause-and-origin investigation.
According to the trial testimony of both Deutsch and State Farm expert Cory
Martin, there are four classifications of fires: accidental fires, natural fires,
incendiary fires, and undetermined fires. Deutsch and Blevins determined that the
fire was an “incendiary fire.” Their determination was based, in part, on evidence
that gasoline was found in the home’s master bathroom and dining room.
State Farm denied Schreiber’s insurance claim. Schreiber then filed suit
against State Farm asserting a claim for breach of the insurance contract, as well as
various extra-contractual claims. State Farm asserted affirmative defenses,
including arson. The jury found that the fire was intentionally caused by an act,
design or procurement on the part of Schreiber and that the fire “was intentionally
caused with the prior knowledge of or participation of [Schreiber].” The jury also
answered various liability questions in State Farm’s favor. The trial court rendered
judgment that Schreiber take nothing and awarded State Farm taxable court costs
2
totaling $1,307.68.
II. ISSUES AND ANALYSIS
On appeal, Schreiber asserts that the trial court abused its discretion by (1)
ordering that, during the depositions of Blevins and Deutsch, Schreiber could not
question Blevins or Deutsch regarding any specific criminal investigations into
their conduct or specific acts of criminal conduct on their part outside of their
involvement in the investigation of the fire that burned down Schreiber’s house
and (2) refusing to admit into evidence testimony from a representative of the
Harris County District Attorney’s Office. Schreiber also argues that even if these
two claimed errors are harmless when considered separately, when they are
considered together under the doctrine of cumulative error, these errors probably
caused the rendition of an improper judgment. State Farm asserts on cross-appeal
that the trial court erred by failing to award State Farm its taxable court costs for
original deposition transcripts and subpoena fees.
A. Did the trial court reversibly err in restricting the questions that
could be asked at two depositions?
Schreiber noticed the depositions of Blevins and Deutsch. In response, State
Farm filed a motion to quash and motion for protection. In ruling on these
motions, the trial court allowed Schreiber to ask certain questions at the
depositions but prohibited her from asking other questions. Specifically, the trial
court allowed Schreiber to query Blevins and Deutsch about the factual
circumstances of their investigation of the fire and any alleged contemporaneous
“double billing” between the Schreiber fire investigation and any work conducted
for any public entity. The trial court also allowed Schreiber to ask Blevins whether
he was currently under indictment and, if so, under what charges he had been
indicted.
3
The trial court ordered Schreiber to refrain from questioning Blevins or
Deutsch regarding any specific criminal investigations into their conduct or
specific acts of criminal conduct on their part outside of their involvement in the
fire investigation. The trial court stated that this prohibition on questioning at the
depositions extended to (1) a Brady disclosure made by the District Attorney’s
Office,1 (2) any specific instances of Blevins’s conduct, Deutsch’s conduct, or
investigations into either man’s conduct in any of the matters identified in the
Brady disclosure, (3) investigations into fire cases undertaken by Blevins and
Deutsch for the District Attorney’s Office or the State Fire Marshall’s Office that
are the subject of the Brady disclosure, and (4) any reference to or comparison of
facts from any investigation undertaken by Blevins or Deutsch for the District
Attorney’s Office or the Fire Marshall’s Office in cases or matters referenced in
the Brady disclosure with the investigation of the Schreiber fire. 2
Schreiber obtained a Brady disclosure that informed the Harris County
Public Defender’s Office in a criminal case that a federal complaint had been filed
against Blevins alleging that he violated title 18, section 2314 of the United States
Code, which makes it a crime for anyone to transport or cause to be transported in
interstate commerce stolen property having a value of $5,000 or more, knowing it
to have been stolen, converted, or taken by fraud. The Brady disclosure contained
an affidavit from the investigating officer in which the officer stated that he had
probable cause to believe Blevins removed evidence seized pursuant to a search
warrant, transported the evidence across state lines, and then sold the evidence for
1
Under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215 (1963),
the State has a duty to disclose to a criminal defendant material evidence favorable to the
defendant that is in the State’s possession. See Webb v. State, 232 S.W.3d 109, 114 (Tex. Crim.
App. 2007).
2
The trial court also stated that this prohibition on questioning at the depositions extended to a
specific matter or facts involved in that matter.
4
financial gain. The Brady disclosure also stated that Deutsch was under
investigation by the Federal Bureau of Investigation for the same type of criminal
conduct alleged against Blevins.
In her first issue, Schreiber argues that the trial court’s restrictions on her
ability to question Blevins and Deutsch at their depositions constituted an abuse of
discretion that prevented Schreiber from discovering evidence relating to the
credibility and investigative methods of Blevins and Deutsch. We presume,
without deciding, that the trial court erred in imposing these restrictions, and we
examine whether any such error probably caused the rendition of an improper
judgment or probably prevent Schreiber from properly presenting this case on
appeal. See Tex. R. App. P. 44.1(a); Lesikar v. Moon, No. 14-11-01016-CV, 2012
WL 3776365, at *5 (Tex. App.—Houston [14th Dist.] Aug. 30, 2012, pet. denied)
(mem. op.).
Schreiber argues that the trial court reversibly erred in preventing her from
discovering this evidence because Blevins and Deutsch were the only witnesses to
opine that the fire was intentionally set, the only witnesses to testify that the
sample of flooring determined to contain gasoline came from the home and was
handled appropriately in the investigation, and the only witnesses to testify that the
stove cooktop was found at the site in the “on” position. Because Blevins and
Deutsch were such critical witnesses, Schreiber argues, her inability to obtain
information regarding the misconduct identified in the Brady disclosure probably
led to an improper judgment inasmuch as it prevented her from attacking Blevins’s
and Deutsch’s investigative methodology, including their alleged propensity for
improperly and illegally taking evidence, as well as their veracity and bias.
At trial, Blevins and Deutsch both testified. They stated that they conducted
5
a cause-and-origin investigation for State Farm. Deutsch was in charge of the
cause-and-origin investigation, and he provided testimony regarding the
conclusions he reached during the investigation. Deutsch testified that after
Blevins, Deutsch, and technicians washed the scene, he saw irregular burn patterns
on the floors of the home. Deutsch explained, and another expert, Cory Martin,
confirmed that ignitable liquids can cause irregular burn patterns. Deutsch hired an
individual named Bobby Caldron to bring a hydrocarbon-detecting dog to aid in a
search for possible ignitable liquids. The dog alerted to various places on the floor
of the home. Deutsch, Blevins, and Caldron all worked together to take samples of
those areas and sent them to a forensic lab. The forensic-lab analyst testified that
the samples revealed the presence of weathered gasoline, meaning that the gasoline
contained on the samples had been stressed by heat. The analyst testified that he
saw no evidence suggesting that the samples had been mishandled.
Based on the finding of gasoline, the burn patterns, and the way the home
was completely engulfed in the fire, Deutsch concluded that the gasoline vapors
were ignited by a handheld open flame. Deutsch also noted that he found a roman
candle outside the home. Deutsch testified that a cooktop stove was found with the
switch flipped to the “on” position, but that the cooktop was not a competent
source of ignition for the gasoline vapors. Deutsch opined that the cooktop may
have energized the fire once it started.
With Schreiber’s permission, Deutsch recorded the conversation in which he
informed Schreiber that he found gasoline in the home and explained to her that he
did not have an accidental explanation for the presence of gasoline. He asked her a
battery of questions regarding any potential explanation for the gasoline. During
this conversation, he stated that he needed to know the answer to these questions to
rule out any accidental explanation for the presence of gasoline. Deutsch
6
explained to Schreiber that the presence could be accidental, for example, if she
had been clumsy with her phone while filling the car up with gasoline and had
spilled gasoline all over her shoes. At the time, Schreiber could not think of any
accidental cause of gasoline, but a few days later she informed Deutsch that she, in
fact, had spilled gasoline on her shoes and clothes while filling up her car with
gasoline. According to Schreiber after she spilled gasoline on her shoes and
clothes, she picked up her children from school, returned home, and dropped her
clothes in the bathroom, where one of the samples was found. The shoes in
question were not present during the fire, and Schreiber provided the shoes to
Deutsch. The shoes were tested, but they did not contain any gasoline. The
forensic-lab analyst testified that gasoline from clothes was not a plausible
explanation for finding the presence of gasoline on the tile samples because the
time delay from the spillage to Schreiber dropping the clothes on the bathroom
floor would have caused the gasoline to vaporize. Vaporized gasoline would not
have been able to efficiently transfer into the grout of Schreiber’s glazed bathroom
tiles. State Farm’s second expert, Martin, affirmed Deutsch’s analysis and
conclusions.
Although the Brady disclosure revealed that Deutsch was under
investigation for stealing evidence during other investigations, there was no
evidence that any evidence was stolen or mishandled in Schreiber’s case.
Furthermore, unlike the instances in which Deutsch allegedly stole evidence for
personal gain, no motive for Deutsch to steal or mishandle evidence is apparent
from this record. Schreiber questioned Deutsch and Blevins about the money they
made performing investigations for State Farm. Deutsch testified that he had
investigated the cause and origin of fires for State Farm 192 times and that
seventeen of those fires were determined to be incendiary. State Farm denied
7
alleged bias of Deutsch and Blevins and to attack their investigative methodology.
After reviewing the entire record, we conclude that, even if the trial court erred by
restricting Schreiber’s ability to question Blevins and Deutsch at their depositions,
any such error did not probably cause the rendition of an improper judgment or
probably prevent Schreiber from properly presenting this case on appeal. See Tex.
R. App. P. 44.1(a); Smith v. Thornton, 765 S.W.2d 473, 477–78 (Tex. App.—
Houston [14th Dist.] 1988, no writ). Accordingly, we overrule Schreiber’s first
issue.
B. Was the trial court’s exclusion of the testimony of an assistant
district attorney harmful?
Under her second issue, Schreiber asserts that the trial court reversibly erred
in excluding from evidence the testimony of Lynne Parsons, an assistant district
attorney. According to Schreiber, the trial court should have allowed that
testimony under Texas Rules of Evidence 404(b) and 608(a). Schreiber made an
offer of proof showing the proffered testimony of Parsons. On appeal, Schreiber
asserts that the trial court erred in excluding evidence in which Parsons testified as
follows:
• Parsons is able to provide evidence as to Deutsch’s character for
truthfulness or untruthfulness within the law-enforcement
community and Deutsch’s reputation is “very poor.”
• Parsons is able to provide information about Blevins’s reputation
for truthfulness or untruthfulness within the law-enforcement
community and that reputation is “untruthful.”
• While working in the Major Fraud Unit, Blevins and Deutsch were
charged with executing a search warrant seeking property that had
been purchased with stolen funds; Blevins took property that was
the subject of the search warrant to another state and sold it.
Blevins has been indicted in federal court for this conduct.
• After Blevins was indicted, Deutsch resigned from his employment
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threatened foreclosure on the home that burned down. The home had
been listed as “for sale” for months with little interest from
prospective buyers.
• Robinson was the last person in the home before the fire. In a
statement, Robinson said he was at his residence around the time the
fire started. But, his cell phone records revealed he was near
Schreiber’s house.
• Schreiber was shopping in Katy at the time of the fire, and she used
her debit card extensively, which was out of character for her,
potentially indicating that she was trying to establish an alibi.
• Robinson told State Farm that he had been at the house applying
lacquer thinner to the kitchen cabinets at Schreiber’s request earlier in
the day on the day of the fire. Schreiber explained that she requested
that Robinson apply the lacquer thinner to the cabinets because her
daughter had drawn on the cabinets with permanent marker and
Schreiber had an appointment with a real estate agent to take pictures
of the house.
• The real estate agent stated that she already had the pictures she
needed of the house and that she had no plans to take any more
pictures of the house. A college student—Libby—who worked as a
housekeeper for Schreiber six to eight hours per week testified that
there were no marks on the cabinets.
• Libby also testified that in the weeks before the fire many items had
been removed from the home, including portraits of Schreiber’s
daughter in fairy outfits, a popcorn machine the children loved, a
treadmill, and towels. After the fire, Libby noticed that the children’s
Christmas presents, as well as many pairs of shoes and pieces of
clothing, remained in Schreiber’s car.
• Though on appeal Schreiber suggests Libby was a disgruntled ex-
employee, the trial evidence does not contain any evidence suggesting
any animosity between Schreiber and Libby. Instead, Libby testified
that after the fire, she did not return to clean the house though
Schreiber asked her to watch the children one day. While the record
is somewhat unclear on the issue, there was no trial evidence Libby
left for any reason other than as a natural consequence of the fire
consuming Schreiber’s home.
• During the trial, Schreiber’s trial counsel alluded to a dispute between
9
Libby’s father and Robinson. Libby testified that she did not know
the details of the dispute, but knew that it related to taxes owing on a
building Robinson sold to her father. Ronald Lopez, an adjuster for
State Farm, testified Libby’s father mentioned the dispute and said the
issue was being resolved by Libby’s father deducting the owed taxes
from the amount he owed Robinson for the building. Lopez also
spoke with Robinson, who said he was planning on returning the
owed money to Libby’s father. Robinson confirmed that he intended
to return the money to Libby’s father in February 2011, when Libby
first discussed the missing items with the police department. Libby
testified that the dispute was currently “not a big deal.” When pressed
about whether the dispute was ever a “big deal,” Libby said she did
not know the details of the dispute because “[i]t wasn’t [her] thing,”
and she was not with her father when he spoke with Robinson. She
thought her father ended up paying the taxes owed on the building
after the fire and did not discuss the matter again with Robinson until
Robinson called her father about a year later.
• Though Schreiber denied removing pictures displayed in her home
before the fire, Schreiber admitted she removed at least two of the
other items—the treadmill and the popcorn machine—that Libby
stated Schreiber had removed from the house before the fire.
• Schreiber told State Farm that Robinson was not a member of her
household and that she could not compel him to give an examination
under oath because he was “out of the picture.”
• Although Schreiber told State Farm she had no relationship with
Robinson, Schreiber and Robinson communicated extensively in the
months after the fire, including multiple contacts on the day and night
of the fire and immediately before and after Schreiber gave statements
to State Farm. After the fire, the landlord of Schreiber’s temporary
housing refused to renew a lease because she determined that
Robinson had been living there in violation of the lease.
The trial evidence included substantial circumstantial evidence that would
support a reasonable inference that the fire was intentionally caused by an act,
design, or procurement on Schreiber’s part and that the fire was intentionally
caused with Schreiber’s prior knowledge or participation. The record also reflects
that, at trial, Schreiber was able in various ways to attack the credibility and
10
alleged bias of Deutsch and Blevins and to attack their investigative methodology.
After reviewing the entire record, we conclude that, even if the trial court erred by
restricting Schreiber’s ability to question Blevins and Deutsch at their depositions,
any such error did not probably cause the rendition of an improper judgment or
probably prevent Schreiber from properly presenting this case on appeal. See Tex.
R. App. P. 44.1(a); Smith v. Thornton, 765 S.W.2d 473, 477–78 (Tex. App.—
Houston [14th Dist.] 1988, no writ). Accordingly, we overrule Schreiber’s first
issue.
B. Was the trial court’s exclusion of the testimony of an assistant
district attorney harmful?
Under her second issue, Schreiber asserts that the trial court reversibly erred
in excluding from evidence the testimony of Lynne Parsons, an assistant district
attorney. According to Schreiber, the trial court should have allowed that
testimony under Texas Rules of Evidence 404(b) and 608(a). Schreiber made an
offer of proof showing the proffered testimony of Parsons. On appeal, Schreiber
asserts that the trial court erred in excluding evidence in which Parsons testified as
follows:
• Parsons is able to provide evidence as to Deutsch’s character for
truthfulness or untruthfulness within the law-enforcement
community and Deutsch’s reputation is “very poor.”
• Parsons is able to provide information about Blevins’s reputation
for truthfulness or untruthfulness within the law-enforcement
community and that reputation is “untruthful.”
• While working in the Major Fraud Unit, Blevins and Deutsch were
charged with executing a search warrant seeking property that had
been purchased with stolen funds; Blevins took property that was
the subject of the search warrant to another state and sold it.
Blevins has been indicted in federal court for this conduct.
• After Blevins was indicted, Deutsch resigned from his employment
11
with the District Attorney’s Office.
• Two defendants in criminal proceedings whom Deutsch arrested
have complained that money they had when they were arrested was
missing when their personal possessions were returned to them. If
Deutsch took these individuals’ money, the conduct is illegal.
• Deutsch’s office at the District Attorney’s Office was in “quite a
state of disrepair.” Money was found in Deutsch’s office that was
connected to the wallet of one of the defendants who had
complained about missing money. There were seized narcotics in
Deutsch’s office that had not been properly tagged and that were
connected with another defendant who was complaining about
money having been taken from him. There was a drawer that was
full of cell phones, and it could not be determined to which cases
the phones belonged.
• It is absolutely imperative that proper procedures be followed
regarding the tagging of property and its placement in the evidence
room.
• Deutsch engaged in intentional acts not to document evidence
according to proper procedure, a serious matter that goes to the
very essence of integrity and pursuing and seeking justice.
• Parsons believes Deutsch received a “dishonorable discharge
reported to the law enforcement licensing agency,” but she does
not know for sure.
• In any matter in which a person is collecting and handling
evidence, if the person has no integrity about how the person
handles or documents evidence, then one cannot rely on that
person for truthfulness.
• Parsons is very certain about her opinion as to the reputations of
Deutsch and Blevins and “our office’s opinion about their
reputation[s].”
We presume, without deciding, that the trial court erred in excluding
Parsons’s testimony, and we examine whether any such error was harmful. See
Tex. R. App. P. 44.1(a). For the exclusion of evidence to constitute reversible
error, the complaining party must show that the trial court committed error and that
12
After reviewing the entire record, we conclude that, even if the trial court
committed these errors and considering the cumulative effect of these errors, they
did not probably cause the rendition of an improper judgment or probably prevent
Schreiber from properly presenting this case on appeal. See Tex. R. App. P.
44.1(a). Therefore, we overrule Schreiber’s third issue.
D. Did the trial court err in denying State Farm’s request for court
costs based on original-deposition-transcript fees and subpoena fees?
In its cross-appeal, State Farm asserts that the trial court erred in failing to
award to State Farm court costs State Farm incurred for original deposition
transcripts and subpoena fees. Before the trial court rendered judgment and before
the trial court clerk issued any bill of costs, State Farm moved for entry of
judgment and costs. In its motion, State Farm asked the trial court to render a take-
nothing judgment against Schreiber and to award State Farm, as the successful
party, approximately $26,000 in court costs and State Farm attached evidence
proving that it had incurred these costs. Schreiber objected that, of the costs State
Farm sought to recover, approximately $6,000 were not taxable court costs. In her
response, Schreiber did not submit any evidence or assert that there was good
cause why State Farm should not recover all of its taxable court costs. No record
was made of the hearing on State Farm’s motion.3 On the hearing day, the trial
court rendered the judgment State Farm sought, except that the trial court awarded
State Farm only $1,307.68 in court costs, the aggregate amount of State Farm’s
filing fees. In the judgment, the trial court did not state any good cause why the
successful party, State Farm, should not recover from Schreiber all taxable court
costs State Farm incurred in the lawsuit.
3
The trial court’s court reporter has informed this court that no record was made of this hearing
so there is no way to obtain a reporter’s record of the proceedings at that hearing.
15
circumstantial evidence that would support a reasonable inference that the fire was
intentionally caused by an act, design, or procurement on Schreiber’s part and that
the fire was intentionally caused with Schreiber’s prior knowledge or participation.
The record also reflects that, at trial, Schreiber was able to attack the credibility
and alleged bias of Deutsch and Blevins and to attack their investigative
methodology. After reviewing the entire record under the applicable standard of
review, we conclude that, even if the trial court erred by excluding Parsons’s
testimony, any such error did not probably cause the rendition of an improper
judgment. See Tex. R. App. P. 44.1(a); Southwestern Elec. Power Co. v.
Burlington Northern Railroad Co., 966 S.W.2d 467, 473–74 (Tex. 1998).
Accordingly, we overrule Schreiber’s second issue.
C. Did any errors by the trial court cause cumulative error?
Schreiber asserts in her third issue that even if the trial court’s errors under
the first two issues were individually harmless, the combined effect of the two
errors was harmful. Relying on the doctrine of cumulative error, Schreiber argues
that multiple errors, even if considered harmless taken separately, may result in
reversal if the cumulative effect of such errors is harmful. Schreiber relies on
various authorities, including obiter dicta from an opinion of this court. See Jones
v. Lurie, 32 S.W.3d 737, 745 (Tex. App.—Houston [14th Dist.] 2000, no pet.)
(addressing cumulative error at the end of an opinion in which the court had not
found more than one error). We presume, without deciding, that (1) the trial court
erred in imposing the restrictions on Schreiber’s ability to question Blevins and
Deutsch at their depositions and in excluding Parsons’s testimony and (2) the
doctrine of cumulative error applies to the errors alleged under Schreiber’s first
two issues, even though one issue addresses a discovery ruling and the other issue
addresses an evidentiary ruling at trial.
14
After reviewing the entire record, we conclude that, even if the trial court
committed these errors and considering the cumulative effect of these errors, they
did not probably cause the rendition of an improper judgment or probably prevent
Schreiber from properly presenting this case on appeal. See Tex. R. App. P.
44.1(a). Therefore, we overrule Schreiber’s third issue.
D. Did the trial court err in denying State Farm’s request for court
costs based on original-deposition-transcript fees and subpoena fees?
In its cross-appeal, State Farm asserts that the trial court erred in failing to
award to State Farm court costs State Farm incurred for original deposition
transcripts and subpoena fees. Before the trial court rendered judgment and before
the trial court clerk issued any bill of costs, State Farm moved for entry of
judgment and costs. In its motion, State Farm asked the trial court to render a take-
nothing judgment against Schreiber and to award State Farm, as the successful
party, approximately $26,000 in court costs and State Farm attached evidence
proving that it had incurred these costs. Schreiber objected that, of the costs State
Farm sought to recover, approximately $6,000 were not taxable court costs. In her
response, Schreiber did not submit any evidence or assert that there was good
cause why State Farm should not recover all of its taxable court costs. No record
was made of the hearing on State Farm’s motion.3 On the hearing day, the trial
court rendered the judgment State Farm sought, except that the trial court awarded
State Farm only $1,307.68 in court costs, the aggregate amount of State Farm’s
filing fees. In the judgment, the trial court did not state any good cause why the
successful party, State Farm, should not recover from Schreiber all taxable court
costs State Farm incurred in the lawsuit.
3
The trial court’s court reporter has informed this court that no record was made of this hearing
so there is no way to obtain a reporter’s record of the proceedings at that hearing.
15
On appeal State Farm argues under a cross-issue that it proved it had
incurred taxable court costs based on filing fees, original-deposition-transcript fees,
and subpoena fees. State Farm asserts that as the successful party, under Texas
Rule of Civil Procedure 131, the trial court erred by not awarding State Farm, the
successful party, all of these costs. See Tex R. Civ. P. 131. Though Texas Rule of
Civil Procedure 141 gives a trial court discretion to order that the successful party
should not recover all taxable court costs it incurred, State Farm argues that (1) to
exercise this discretion a trial court must state on the record good cause for taking
this action; and (2) the record reveals that the trial court never made such a
statement on the record.
Schreiber agrees that State Farm prevailed at trial and was entitled to an
award of costs in the trial court’s judgment. But, Schreiber argues, Civil Practice
and Remedies Code section 31.007(b), enacted in 1987, changed Texas law and
gave trial courts discretion to not award the successful party all of the taxable court
costs that party incurred, without any requirement that the trial court state on the
record good cause for doing so. See Tex. Civ. Prac. & Rem. Code Ann. §
31.007(b) (West, Westlaw through 2013 3d C.S.). Under this statute, Schreiber
maintains, the trial court had discretion to award State Farm $1,307.68 in taxable
court costs, even though State Farm incurred substantially more taxable court
costs, and without any requirement that the trial court state on the record good
cause for doing so.
Texas Rule of Civil Procedure 131 provides that “[t]he successful party to a
suit shall recover of his adversary all costs incurred therein, except when otherwise
provided.” Tex. R. Civ. P. 131. Under Texas Rule of Civil Procedure 141, the trial
court “may, for good cause, to be stated on the record, adjudge the costs otherwise
than as provided by law or these rules.” Tex. R. Civ. P. 141. After the enactment
16
of Civil Practice and Remedies Code section 31.007(b), but without specifically
addressing the argument based on that statute Schreiber makes, the Supreme Court
of Texas held that, to order a successful party to bear some of the taxable court
costs incurred by that party, the trial court must state on the record good cause for
doing so. See Roberts v. Williamson, 111 S.W.3d 113, 124 (Tex. 2003). Similarly,
this court has held that the trial court must award the successful party to a suit its
taxable court costs from the adverse party, unless the trial court finds good cause to
adjudge the costs otherwise and states its reasons for finding good cause on the
record. See Howell Crude Oil Co. v. Donna Refinery Partners, Ltd., 928 S.W.2d
100, 112 (Tex. App.—Houston [14th Dist.] 1996, writ denied).
Civil Practice and Remedies Code section 31.007(b) provides in pertinent
part that “[a] judge of any court may include in any order or judgment all costs,
including the following: [listing three categories of costs] 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) (emphasis added). The parties have not cited and
research has not revealed any cases addressing the specific statutory argument
Schreiber advances. In construing a statute, our objective is to determine and give
effect to the Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15
S.W.3d 525, 527 (Tex. 2000). If possible, we must ascertain that intent from the
language the Legislature used in the statute and not look to extraneous matters for
an intent the statute does not state. Id. If the meaning of the statutory language is
unambiguous, we adopt the interpretation supported by the plain meaning of the
provision's words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505
(Tex. 1997). We must not engage in forced or strained construction; instead, we
must yield to the plain sense of the words the Legislature chose. See id.
We conclude that section 31.007(b) is unambiguous and that it lists certain
17
categories of costs that are taxable court costs. See Tex. Civ. Prac. & Rem. Code
Ann. § 31.007(b). The statute does not address the circumstances under which a
trial court may order a successful party to bear taxable court costs the party
incurred. See id. We conclude that this statute does not conflict with, supersede,
or modify Rule 131 or Rule 141 of the Texas Rules of Civil Procedure. See id;
Tex. R. Civ. P. 131, 141. Thus, this statute does not change the rule that the trial
court must award the successful party to a suit all of its taxable court costs from the
adverse party, unless the trial court finds good cause to adjudge the costs otherwise
and states its reasons for finding good cause on the record. See Roberts, 111
S.W.3d at 124; Howell Crude Oil Co., 928 S.W.2d at 112.
State Farm and Schreiber agree, and Texas law provides, that both the fees
for original deposition transcripts and subpoena fees are taxable court costs. See
Tex. Civ. Prac. & Rem. Code Ann. § 31.007(b)(2); City of Houston v. Maguire Oil
Co., 342 S.W.3d 726, 749 (Tex. App.—Houston [14th Dist.] 2011, pet. denied);
Operation Rescue-National v. Planned Parenthood of Houston and Southeast
Texas, Inc., 937 S.W.2d 60, 87–88 (Tex. App.—Houston [14th Dist.] 1996), aff’d
as modified on other grounds, 975 S.W.2d 546 (Tex. 1998). The record reflects
that State Farm proved that it had incurred $20,195.15 in taxable court costs, and
as a matter of law, State Farm is the successful party. Schreiber did not argue in
the trial court that there was good cause for the trial court not to award State Farm
all of its taxable court costs from Schreiber. On appeal, Schreiber does not assert
that the trial court in fact found good cause not to award State Farm all of its
taxable court costs. We conclude that the trial court erred in not awarding State
Farm the $20,195.15 in taxable court costs that State Farm proved it had incurred.
See Roberts, 111 S.W.3d at 123–24; Howell Crude Oil Co., 928 S.W.2d at 112.
Accordingly, we sustain State Farm’s cross-issue in this regard.
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III. CONCLUSION
Even if the trial court erred by restricting Schreiber’s ability to question
Blevins and Deutsch at their depositions, any such error was harmless. Likewise,
even if the trial court erred by excluding Parsons’s testimony, any such error was
harmless. Presuming that the doctrine of cumulative error applies to the errors
alleged under Schreiber’s first two issues, even if the trial court made these errors
and bearing in mind the cumulative effect of them, we conclude they did not
probably cause the rendition of an improper judgment or probably prevent
Schreiber from properly presenting this case on appeal. But, the trial court erred in
not awarding State Farm $20,195.15 in taxable court costs. Therefore, we modify
the trial court’s judgment to award State Farm a total of $20,195.15 in taxable
court costs, and we affirm the judgment as so modified.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and McCally.
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