John Ruff and Catherine Loth, Individually and as Next Friends of A. R., a Minor Child v. the University of St. Thomas ( 2019 )

Opinion issued July 11, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00875-CV
———————————
JOHN RUFF AND CATHERINE LOTH, INDIVIDUALLY AND AS NEXT
FRIENDS OF A.R., A MINOR CHILD, Appellants
V.
THE UNIVERSITY OF ST. THOMAS, Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2016-19616
OPINION
Appellants John Ruff and Catherine Loth, as next friends1 of their daughter,
A.R., appeal the trial court’s reduction of the $5,900 damage award made by the
1
Ruff and Loth brought claims both in their personal capacities and in their
capacities as A.R.’s next friends. However, the trial court’s judgment
jury for injuries that A.R. sustained on the premises of appellee the University of
St. Thomas (the “University”). Ruff and Loth contend that the common-law
doctrine of parental immunity, as applied by the Supreme Court of Texas,
prohibited the trial court from reducing the award under the
apportionment-of-responsibility provisions of Chapter 33 of the Civil Practice &
Remedies Code. They also contend that the trial court abused its discretion by
declining to adjudge costs entirely in their favor as the “successful parties” in the
suit.
Parental immunity prevents Chapter 33 apportionment of responsibility on
this record. Our disposition of that issue requires remand to the trial court for a
determination of court costs. Therefore, we reverse and remand for further
proceedings.
Background
Ruff and Loth are the parents of A.R., who was one year old at the time of
this incident. Ruff and Loth attend religious services at a chapel on the
University’s premises. During one service in the past, A.R. made some noise, and
dismissed their personal-capacity claims, and Ruff and Loth do not present
any argument before us contesting that dismissal. Therefore, only the
next-friend claims are before us. We will, however, maintain the style of the
case as it was in the trial court’s judgment. See Owens v. Handyside, 478
S.W.3d 172, 175 n.1 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).
2
the celebrant of the mass asked them not to bring A.R. into the chapel during
services.
Ruff and Loth attended the service in question and, because of the previous
request, remained with A.R. in the narthex area just outside the chapel. Loth’s
sister attended the service too and remained in the narthex area with Ruff, Loth,
and A.R.
The University had provided benches in the narthex, which were available
for use. While sitting on one of the benches in the narthex, Loth set A.R. on the
ground so A.R. could go over to Loth’s sister on another nearby bench. While A.R.
was moving along the floor, she put her hand on a light fixture embedded in the
floor. A.R.’s hand was burned and blistered. Ruff and Loth took A.R. to an
emergency-care facility, where A.R. received treatment. She received further
treatment at later appointments with her primary-care doctor.
Ruff and Loth, as A.R.’s next friends, sued the University, seeking a
recovery for A.R. for the physical pain and mental anguish sustained due to the
injuries to her hand. The University answered and pleaded for the application of
apportionment of responsibility under Sections 33.003, 33.012(a), and 33.013(a) of
Chapter 33.
The suit proceeded to trial. Before evidence was presented, Ruff and Loth
moved for a ruling in limine prohibiting the University from referencing the
3
parents’ alleged negligence. The University objected to that request, arguing that it
pleaded the parents’ negligence and Chapter 33 and that it “should be able to
allude or make reference to the negligence of the parents in regards to injuries that
the child sustained.” Ruff and Loth disagreed, responding that “there’s no
contributory negligence” because “there’s been no waiver of a parental immunity.”
The trial court denied Ruff’s and Loth’s motion in limine, ruling that “the
parental-immunity doctrine does not apply here” and that “nobody needs to
approach before going into evidence of parental contributory negligence in this
case.”
During the presentation of evidence, the University’s counsel examined Loth
about what she was doing when she set A.R. on the ground in the narthex and
while A.R. was moving toward Loth’s sister. Amid this line of questioning, the
University’s counsel asked Loth, “so not knowing whether the lights were on or
off, you allowed [A.R.] to crawl in the area on the concrete?” This drew an
objection from Ruff’s and Loth’s counsel based on parental immunity, but the trial
court responded that it had “ruled on that.” Ruff’s and Loth’s counsel asked for a
running objection along those lines. When the University’s counsel later returned
to the topic, asking Loth, “you could have prevented [A.R.] from touching those
lights, couldn’t you,” Ruff’s and Loth’s counsel reiterated the running objection,
which the trial court overruled.
4
The suit was submitted to the jury in three questions. Question 1 asked for
“Yes” or “No” answers on whether the negligence of either or both of the
University or “John Ruff and/or Catherine Loth” proximately caused the injury in
question. The jury answered “Yes” in both blanks.
Question 2 was conditioned on “Yes” answers in both blanks in Question 1
and asked for an apportionment of percentages of responsibility between the
University and “John Ruff and/or Catherine Loth.” The jury found each of the two
sides liable for 50% responsibility.
Question 3 asked what sum of money, if paid now in cash, would provide
fair and reasonable compensation for A.R.’s injuries, if any, that resulted from the
injury in question. The jury answered “$5900” for physical pain and mental
anguish sustained in the past, “$0” for physical impairment sustained in the past,
and “$0” for disfigurement sustained in the past.
The trial court entered a judgment in A.R.’s favor on the jury’s verdict, but
awarded A.R. only $2,950, which is 50% of $5,900.
Further, the judgment “ordered that all costs of court are taxed against the
party incurring said cost” (all-capitalization removed). The court explained its
costs ruling:
Well, I think that the record speaks for itself on the outcome of this
case. And the determination of the award of costs is based on success.
And I think in this matter, equity certainly supports splitting the costs.
I’m not sure either party was what one would call “successful.” The
5
award was not at all what the plaintiff sought. It was less than what
the plaintiff was offered in settlement. The attorneys’ fees were
probably five times at least what the jury awarded in damages. I don’t
think it’s just based on the fact that the plaintiff received an award of
damages. I think you have to look at the whole picture. Neither side
really won this case. And I think that splitting the costs was fair.
Ruff and Loth appeal the judgment because it reduced A.R.’s $5,900 award
by 50% and because it did not adjudge costs entirely in Ruff’s and Loth’s favor.
Entry of Judgment With Reduced Award
In their first issue, Ruff and Loth contend that “[t]he trial court erred in
ignoring the doctrine of parental immunity and allowing the jury to apportion fault
to” them as “A.R.’s parents.” They argue that the trial court erred “in overruling
[their] objections and allowing [the University] to argue that the jury should
consider parental contributory negligence.” And they argue that parental immunity
(i) bars the University’s “claim of contributory negligence against” them and
(ii) makes Chapter 33 an impermissible “argument[,] and the trial court erred in
allowing this argument to be presented to the jury and in allowing the jury to
consider this argument in deliberations.”
To support their parental-immunity-based contention, Ruff and Loth rely on
Shoemake v. Fogel, Ltd., 826 S.W.2d 933 (Tex. 1992). We discuss Shoemake in
more detail below, but, there, the Supreme Court of Texas concluded that the court
of appeals “erred in reforming the trial court’s judgment to reflect a . . . credit in
favor of” a premises owner defending against the negligence claims of a mother on
6
behalf of her child who died from injuries sustained at the owner’s swimming pool.
Id. at 935, 938. The Supreme Court reached its conclusion over the premises
owner’s claim for contribution against the child’s mother for the mother’s alleged
negligence. Id. at 936–38.
Given Ruff’s and Loth’s arguments, and their reliance on Shoemake, we
construe their first issue to be a contention that the trial court erred by entering a
judgment that did not disregard the jury’s finding of 50% responsibility attributable
to Ruff and Loth in response to a jury question allegedly rendered immaterial by
parental immunity.
I. Applicable Law and Standard of Review
A trial court’s judgment “shall conform to the pleadings, the nature of the
case proved and the verdict, if any . . . ,” meaning that a trial court should enter its
judgment in accord with the jury’s findings. TEX. R. CIV. P. 301. An exception
exists when a jury finding is made in response to a question that is “immaterial”: a
trial court may disregard a jury finding on an immaterial question when entering
judgment. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.
1994); Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390, 394, 397 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied) (en banc).
A jury question is immaterial in several instances, one of which is when the
question should not have been submitted. USAA Tex. Lloyds Co. v. Menchaca, 545
7
S.W.3d 479, 506 (Tex. 2018); Spencer, 876 S.W.2d at 157. A question should not
be submitted to the jury when the question is “legally defective” or when the
question submits a theory that otherwise fails as a matter of law. See Fazio, 403
S.W.3d at 394–96 (holding that jury question was “legally defective” because it
submitted improper measure of damages); Soon Phat, L.P. v. Alvarado, 396
S.W.3d 78, 93 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (holding that
jury question on malicious-prosecution claim should not have been submitted
because claim “was foreclosed as a matter of law”); Hall v. Hubco, Inc., 292
S.W.3d 22, 27–28 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (holding
that jury question on breach of contract should not have been submitted because
alleged contract failed for lack of consideration).2
When a judgment is successfully challenged for having improperly
disregarded or having improperly failed to disregard immaterial jury questions, we
may render the appropriate judgment. See Ford Motor Co. v. Ledesma, 242 S.W.3d
32, 44–45 (Tex. 2007); Torrington Co. v. Stutzman, 46 S.W.3d 829, 839–40 (Tex.
2
See also Jang Won Cho v. Kun Sik Kim, 572 S.W.3d 783, 795, 797–99, 815–
16 (Tex. App.—Houston [14th Dist.] 2019, no pet. h.) (holding that jury
questions on breach of fiduciary duty should have been disregarded because
no fiduciary relationship existed as a matter of law); Nelson v. Pasol,
No. 13-15-00379-CV, 2017 WL 3634059, at *5 (Tex. App.—Corpus
Christi–Edinburg Aug. 24, 2017, no pet.) (mem. op.) (holding that jury
question was immaterial because it submitted claim that was barred by
limitations).
8
2000); Vecellio Ins. Agency, Inc. v. Vanguard Underwriters Ins. Co., 127 S.W.3d
134, 140–41 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
When a trial court’s entry of judgment is challenged for having improperly
disregarded or having improperly failed to disregard immaterial jury questions
because of a legal issue (as opposed to a factual one), we review the trial court’s
ruling de novo. See Markovsky v. Kirby Tower, LP, No. 01-10-00738-CV, 2011
WL 5429014, at *2 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, pet. denied)
(mem. op.); Hall, 292 S.W.3d at 27–28.
II. Parental Immunity, Chapter 33 Percentages of Responsibility, and
Their Interplay
The Texas common-law doctrine of “parental immunity” prevents “an
unemancipated minor [from] bring[ing] a tort action against his or her parent”
when the parent’s “alleged acts of ordinary negligence . . . involve a reasonable
exercise of parental authority or the exercise of ordinary parental discretion with
respect to provisions for the care and necessities of the child.” Shoemake, 826
S.W.2d at 935–36 (citing and quoting Felderhoff v. Felderhoff, 473 S.W.2d 928,
929–33 (Tex. 1971)). The doctrine is subject to certain exceptions not relevant
here. Trial courts may properly refuse to apply parental immunity if no evidence
supports its application or if its proponent fails to bring it to the court’s attention.
See Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107, at *2 (Tex.
App.—Corpus Christi–Edinburg Nov. 25, 2009, pet. denied) (mem. op.) (no
9
evidence); Hudson v. City of Houston, No. 14-03-00565-CV, 2005 WL 3995160,
at *3 n.8, 7 (Tex. App.—Houston [14th Dist.] Jan. 6, 2005, no pet.) (mem. op.)
(parental-immunity appellate issue forfeited under Rule of Appellate
Procedure 33.1(a) for failure to have raised parental immunity before trial court).
Parental immunity also restricts a tortfeasor’s contribution claim against an
injured child’s parent in a suit by the parent on the child’s behalf. In Shoemake,
Shoemake’s child died from injuries suffered at Fogel’s swimming pool. 826
S.W.2d at 935. Shoemake sued Fogel, making (1) a wrongful-death claim in her
personal capacity and (2) a survival claim as representative of her child’s estate. Id.
The jury awarded damages on both claims but apportioned to Shoemake 45% of
the negligence that caused her child’s death. Id. Relying on Chapter 33, the trial
court reduced Shoemake’s wrongful-death award by 45% but did not similarly
reduce the child’s survival award. Id. Shoemake did not appeal the wrongful-death
reduction, but Fogel appealed the lack of any reduction of the survival award. Id.
The court of appeals agreed with Fogel and held “that the requested contribution
was available under sections 33.012 and 33.016 of the Texas Civil Practice and
Remedies Code,”3 and reformed the trial court’s judgment to reduce the survival
3
As relevant to this suit, the versions of Sections 33.012(a), 33.013(a), and
33.016 in effect when Shoemake was decided are not materially different
from the current versions of those statutes. Compare Act of June 3, 1987,
70th Leg., 1st C.S., ch. 2, §§ 2.08, 2.09, 2.11A, 1987 TEX. GEN. LAWS 37,
10
award. Id. Shoemake applied for a writ of error from the Supreme Court of Texas,
which reversed the court of appeals. Id.
The Court found that “Fogel’s claim of contribution depends upon whether
[the child]’s estate has the right to recover damages from Shoemake.” Id. The
Court then reviewed parental immunity and the allegations of Shoemake’s
negligence. Id. at 935–36. Because Fogel alleged that Shoemake was negligent in
the management, supervision, and control of her child, and because “[t]hose
responsibilities entail exactly the sort of parental authority” that parental immunity
protects, the child’s “estate ha[d] no viable negligence claim against Shoemake,”
and therefore “Fogel ha[d] no viable contribution claim against Shoemake” for the
survival claim. Id. at 936, 938. The Court concluded that the court of appeals erred
by reforming the trial court’s judgment to reduce the survival award. Id. at 938.
The Court said that “Shoemake’s negligence does affect her recovery under the
wrongful death statute; but it does not affect the recovery of her child’s estate
under the survival statute.” Id.
Chapter 33 requires the factfinder, “as to each cause of action asserted,” to
“determine the percentage of responsibility” for each “claimant,” “defendant,”
“settling person,” and properly designated “responsible third party.” TEX. CIV.
PRAC. & REM. CODE § 33.003(a)(1)–(4). “This statutory mandate is not
41–44 (amended 1995, 2003, 2005, 2007), with TEX. CIV. PRAC. & REM.
CODE §§ 33.012(a), .013(a), .016.
11
discretionary . . . .” F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680,
694 (Tex. 2007).
The trial court will then (1) reduce a claimant’s recovery “with respect to a
cause of action by a percentage equal to the claimant’s percentage of
responsibility” and, (2) for a liable defendant that is not jointly and severally liable,
find that that “liable defendant is liable to a claimant only for the percentage of the
damages found by the trier of fact equal to that defendant’s percentage of
responsibility . . . .” See TEX. CIV. PRAC. & REM. CODE §§ 33.012(a), 33.013(a);
Roberts v. Williamson, 111 S.W.3d 113, 122–23 (Tex. 2003). If there are multiple
defendants, then an apportionment of responsibility will be made among all liable
defendants in the lawsuit as well as any “contribution defendants,” who may not
have been sued initially. See TEX. CIV. PRAC. & REM. CODE §§ 33.015–.016. A
liable defendant may recover from a contribution defendant in proportion to the
contribution defendant’s percentage of liability. See id.
Shoemake addressed the situation wherein suits are brought by a parent on
his or her injured child’s behalf and a tortfeasor seeks a reduction in the child’s
recovery due to the parent’s negligence. The Supreme Court noted that the court of
appeals had “h[eld] that the requested contribution was available under
sections 33.012 and 33.016 of the Texas Civil Practice and Remedies Code.”
Shoemake, 826 S.W.2d at 935. But the Court, in reversing the court of appeals,
12
concluded that the “recovery of [the] child’s estate” could not be reduced, due to
parental immunity. Id. at 938.
Thus, the Court applied parental immunity not only to Section 33.016
contribution apportionments but also to apportionment under Sections 33.003 and
33.012(a). The child’s recovery would not be reduced for the negligence of the
parent by apportionment between joint tortfeasors because the Court concluded
that parental immunity protected the child’s estate’s recovery from such a
reduction.
Further, Shoemake’s reasoning extends to Section 33.013 as well, which
governs reductions in defendants’ liability for damages in proportion to their own
percentages of responsibility. That section refers to “a liable defendant” or “each
liable defendant.” TEX. CIV. PRAC. & REM. CODE § 33.013(a), (b). Parental
immunity, when it applies, prevents the parents from being a “liable defendant”
with respect to any injuries suffered by their children and prevents the tortfeasor
from using Section 33.013(a) to reduce its liability in proportion to any liability
that may have been apportioned to the injured child’s parents. See Plainview
Motels, Inc. v. Reynolds, 127 S.W.3d 21, 41 (Tex. App.—Tyler 2003, pet. denied).
Both the Eighth and Twelfth Courts of Appeals have applied Shoemake in
similar ways. In Gem Homes, Inc. v. Contreras, 861 S.W.2d 449 (Tex. App.—
El Paso 1993, writ denied), Contreras sued Gem Homes for the wrongful death of
13
his wife both in his personal capacity and as next friend to his children. Id. at 452.
The Contreras family lived in a mobile home sold and delivered to the farm where
Contreras worked by Gem Homes. Id. No one ever anchored the mobile home to
the ground, so when a violent storm later passed through, it upended the mobile
home, resulting in the death of Contreras’s wife. Id. The jury awarded Contreras
and his children damages for his wife’s death but apportioned 5% of the
responsibility to her, and the trial court reduced the award to the children by that
5%. Id. at 452, 459. The court of appeals reversed this reduction, relying on
Shoemake and reasoning that parental immunity applied because Contreras’s
wife’s responsibility stemmed from decisions that “f[e]ll within the ambit of
parental care and supervision” and that were therefore “acts of discretion for which
her children could not have held her legally liable.” Id. at 459–60.
In Plainview Motels, Reynolds and his minor son were visiting Surplus
Sales’s premises so Reynolds could look through a stack of mirrors. Id. at 28.
Several of the mirrors fell over, severely injuring Reynolds and his son, who was
standing at his father’s feet. Id. The jury awarded Reynolds’s son damages and
apportioned 50% of the negligence to Surplus Sales. Id. at 41 & n.10. The trial
court did not reduce Reynolds’s son’s recovery by 50%, and Surplus Sales
appealed. Id. at 41. The court of appeals referenced Section 33.013(a) but relied on
Shoemake to apply parental immunity to the statute:
14
When a defendant is not jointly and severally liable, liability is
calculated by multiplying the defendant’s percentage of fault by the
total amount of damages. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 33.013(a) (Vernon 1997). However, where the parental immunity
doctrine bars legal action by a child against his parents, that child’s
recovery from other defendants is not reduced by his parents’
percentage of negligence. See Shoemake v. Fogel, Ltd., 826 S.W.2d
933, 938 (Tex. 1992).
Id. (other internal citation omitted).
With the principles of parental immunity in mind, we turn to Ruff’s and
Loth’s issues on appeal.
III. Parental Immunity and the Trial Court’s Damage Apportionment
The jury awarded $5,900 for A.R.’s injuries. The trial court entered
judgment awarding A.R. only half that amount because the jury apportioned
responsibility 50% each to the University and “John Ruff and/or Catherine Loth.”
Ruff and Loth contend that the trial court should have disregarded the jury’s
apportionment finding in entering judgment.
Ruff and Loth argue that parental immunity applies to the facts underlying
their alleged negligence, and the University does not appear to argue otherwise.
Ruff’s and Loth’s alleged negligent acts or failure to act in supervising A.R. fall
within the purview of parental supervision and care, which parental immunity
protects.
Testimony established that the injury happened when Loth put A.R. on the
ground to crawl to Loth’s sister sitting nearby. The University’s counsel asked
15
Loth, “so not knowing whether the lights were on or off, you allowed [A.R.] to
crawl in the area on the concrete?” Ruff’s and Loth’s counsel objected on
parental-immunity grounds, but, because the trial court had denied the earlier
motion in limine, the court said that it had “ruled on that” already. Ruff’s and
Loth’s counsel asked for a running objection on the topic. When the University’s
counsel soon thereafter asked Loth, “you could have prevented [A.R.] from
touching those lights, couldn’t you,” Ruff’s and Loth’s counsel reiterated the
running objection, which the trial court overruled.
The University’s counsel emphasized the parents’ negligence in her closing
argument. She read Loth’s deposition testimony: “You could have prevented this
accident from happening, couldn’t you? Response by the Plaintiff, Catherine Loth,
‘Yes.’ She could have prevented this accident from happening.” She contrasted
what Ruff and Loth were doing when A.R. was injured with the hypothetical
alternatives of “not put[ing] my child on the concrete to crawl, light present or
not”; “check[ing] to see if the lights are on”; and not “mak[ing] an assumption”
about whether the light was hot but instead touching it herself to check. She
concluded, “when you’re parenting or when you’re responsible for small folks, you
don’t get to blame someone else when something happens, especially when you’re
supervising that child.”
16
These questions and arguments are addressed to the sort of “reasonable
exercise of parental authority or the exercise of ordinary parental discretion” that
parental immunity protects. See Shoemake, 826 S.W.2d at 935–36. Therefore,
parental immunity applies to the acts forming the basis of Ruff’s and Loth’s 50%
of the responsibility. See id. at 935–36, 938; Plainview Motels, 127 S.W.3d at 41–
42 & n.10; Gem Homes, 861 S.W.2d at 459–60.
The apportionment question had only two blanks—one for the University
and one for “John Ruff and/or Catherine Loth.” But, for purposes of A.R.’s claims,
parental immunity prohibits any reduction in the damages to be awarded to A.R.
due to any fault apportioned to Ruff or Loth regardless of whether Ruff and Loth
were “claimants” or “defendants” under Sections 33.012(a) or 33.013(a) or
whether they were “contribution” defendants under Section 33.016. The only
purpose for submitting the apportionment question was to achieve a Chapter 33
reduction of damages owed by the University to A.R., which parental immunity
barred as a matter of law. Therefore, the question was immaterial, and the jury’s
answers to it should have been disregarded by the trial court in entering its
judgment. See Fazio, 403 S.W.3d at 394–96; Soon Phat, 396 S.W.3d at 93; Hall,
292 S.W.3d at 27–28.
The University argues that parental immunity does not apply here because
Shoemake dealt with a contribution claim and not with the damages-reducing
17
effects of apportionment under Sections 33.003, 33.012, and 33.013. The
University further argues that “parental immunity does not preclude a jury from
apportioning fault” under the applicable statutes.4
However, Shoemake referred to Section 33.012 and Plainview Motels to
Section 33.013(a). Neither case can be cited for the proposition that parental
immunity reaches contribution apportionment but not apportionment under
Sections 33.003, 33.012(a), and 33.013(a). Indeed, the court in Plainview Motels
reasoned that the Section 33.012(a) ruling in Shoemake leads to a similar
conclusion with regard to Section 33.013(a).
As to the second argument, even if it is correct, it does not change the
outcome. If it was indeed within the jury’s purview to apportion responsibility
between the University and “John Ruff and/or Catherine Loth,” any reduction in
the University’s liability for A.R.’s recovery as a result was barred by parental
immunity as a matter of law.
Accordingly, we sustain Ruff’s and Loth’s first issue. Judgment should not
have been entered taking into account the apportionment findings because the
apportionment question was immaterial. We therefore render judgment in A.R.’s
favor in the full amount of the jury’s $5,900 damage award. See Ford Motor, 242
4
This suit does not involve an apportionment question that includes blanks for
additional parties beyond the parent(s) and a single liable defendant. A
question seeking apportionment of responsibility among multiple defendants
may serve other purposes that are not present in this case.
18
S.W.3d at 44–45; Torrington, 46 S.W.3d at 839–40; Vecellio Ins. Agency, 127
S.W.3d at 140–41.
Our disposition means that we need not address Ruff’s and Loth’s second
appellate issue. See TEX. R. APP. P. 47.1.
Costs
In their third issue, Ruff and Loth contend that the trial court abused its
discretion in not adjudging all costs in their favor as the successful parties in the
suit.
The successful party to a suit should ordinarily recover his or her costs, but a
trial court may adjudge costs otherwise, so long as the court states good cause for
the ruling on the record. See TEX. R. CIV. P. 131, 141. Good cause is determined on
a case-by-case basis. See Furr’s Supermkts., Inc. v. Bethune, 53 S.W.3d 375, 376–
77 (Tex. 2001). We review the trial court’s costs ruling for an abuse of discretion.
Henry v. Masson, 453 S.W.3d 43, 50 (Tex. App.—Houston [1st Dist.] 2014, no
pet.).
The trial court must evaluate how costs should be adjudged in light of the
result of this appeal and its effect on any finding of good cause. See Landing Cmty.
Improvement Ass’n, Inc. v. Young, No. 01-15-00816-CV, 2018 WL 2305540, at
*23 (Tex. App.—Houston [1st Dist.] May 22, 2018, pet. filed) (mem. op.);
Recognition Commc’ns, Inc. v. Am. Auto. Ass’n, Inc., 154 S.W.3d 878, 895 (Tex.
19
App.—Dallas 2005, pet. denied). Accordingly, we sustain Ruff’s and Loth’s third
issue.5
Conclusion
We reverse the judgment of the trial court insofar as it reduced the jury’s
$5,900 damages award to A.R., render judgment for the full amount of that award,
and remand for further proceedings consistent with this opinion.
Russell Lloyd
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
Hightower, J., concurring.
5
The concurrence correctly notes that, with the 2003 amendments to
Chapter 33, it seems that parents can be named as responsible third parties in
a suit involving a minor child. Both of the cases referred to by the
concurrence address the propriety of naming parents as third parties in the
face of a claim of parental immunity. Neither of them involve a case where
such a designation has been submitted to a jury and where an apportionment
has occurred. Neither this case, nor either of those cases, address the effect
on a child’s recovery of an apportionment of damages to a parent as
responsible third party when parental immunity is claimed. That is a
question for another day.
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