Elizabeth C. Brent v. Martha C. Field, J & J Cattle Family Limited Partnership, a Texas Limited Partnership, American Express Travel Related Services Company, Inc. and Thomas & Watson Trucking, Inc.

• Court: Court of Appeals of Texas
• Decided: June 24, 2009
• Docket: 07-08-00065-CV
• Status: Published

Opinion

NO. 07-08-0065-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 24, 2009

______________________________

ELIZABETH C. BRENT, APPELLANT

v.

MARTHA C. FIELD, J & J CATTLE FAMILY

LIMITED PARTNERSHIP, AMERICAN EXPRESS

TRAVEL RELATED SERVICES COMPANY, AND

THOMAS & WATSON TRUCKING, INC., APPELLEES

_________________________________

FROM THE 69^TH DISTRICT COURT OF HARTLEY COUNTY;

NO. 4300 H; HON. RONALD E. ENNS, PRESIDING

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ORDER

          By motion before us appellant Lisa C. Brent seeks to amend the bill of costs prepared by the clerk of this court. We will grant the motion.

          On December 30, 2008, we issued our opinion and judgment in this case. The mandate issued March 18, 2009. See Tex. R. App. P. 18.1(a)(1)(A),(B). With the mandate the clerk of this court forwarded to the clerk of the trial court a statement of costs. See Tex. R. App. P. 51.1(a). The judgment and mandate taxed appellate costs in equal fifty percent shares against Brent and appellee Martha C. Field. See Tex. R. App. P. 43.4. On May 28, 2009, Brent filed a motion seeking amendment of the clerk’s bill of costs. According to the motion supported by affidavit, evidence of taxable appellate costs totaling $3,895 was not filed and was therefore not included in the statement of costs prepared by the court’s clerk. This total consisted of $3,500 for preparation of the reporter’s record of trial; $195 for preparation of the reporter’s record of a hearing conducted under Rule of Appellate Procedure 24; and the $200 nonappearance fee of a reporter for two depositions in support of a motion for injunction Brent filed in this court.

          In a certificate of conference included in Brent’s motion, her counsel indicated he was unable to confer with counsel for Field. By letter, we directed Field to file a response to the motion by June 11. Field has made no response.

          Brent does not supply case authority supporting her request and we find limited guidance. With its mandate, the clerk of an appellate court must prepare and send to the clerk of the trial court a statement of costs showing preparation costs for the appellate record as well as filing fees in the court of appeals. Tex. R. App. P. 51.1(a). Here, the statement of costs did not contain the costs presented by Brent’s motion because the amounts of such costs were not reported by the reporter or otherwise documented. Our plenary power to affect our judgment has lapsed. Tex. R. App. P. 19.1 & 19.3. However, Brent asks not that we readjudge costs but merely that the clerk’s statement of costs include the omitted cost items. We therefore treat the motion as one to retax costs; that is, not a request for our judgment but solely for a ministerial act by the clerk to correct an omission.

A motion to retax the costs is distinguishable from a motion to have the costs readjudged. Where complaint is made of the ruling of the court in adjudging the costs against the wrong party, the error is inherent in the judgment and must be assigned and properly brought up on appeal as any other alleged error in the case. But the taxing of costs is not an adjudication by the court as to the correctness of the items taxed as such by the clerk.

 

Reaugh v. McCollum Exploration Co., 140 Tex. 322, 325, 167 S.W.2d 727, 728 (1943) (citations omitted). See Manzer v. Barnes, 216 S.W.2d 1015, 1016 (Tex.Civ.App.–Amarillo 1948, no writ) (per curiam) (granting motion to retax omitted cost of reporter’s record after mandate issued).

          Brent’s motion is granted. Our clerk is directed to prepare an amended statement of costs containing the costs itemized in Brent’s motion and forward it to the clerk of the trial court. See H. & I. Imp. Co. v. Three B Co., 235 S.W.2d 461, 462 (Tex.Civ.App–Austin 1950, writ ref’d n.r.e.).

          It is so ordered.

                                                                           Per Curiam

false" UnhideWhenUsed="false" Name="Medium List 1 Accent 2"/>

NO. 07-10-00505-CV

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 29, 2010

IN RE TOMMY DOMINGUEZ, RELATOR

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Relator, Tommy Dominguez, has filed a “Motion to File Extraordinary Mandamus” requesting this Court “conduct a (sic) evidentiary hearing, make findings of fact and conclusions of law, . . . and reverse and remand for a new trial . . . .”  We deny the petition.

Texas Rule of Appellate Procedure 52.3^[1] identifies the requirements for a petition for writ of mandamus^[2] filed in this court.  Dominguez has failed to comply with these requirements.  Rule 52.3(a) requires that a petition must include a complete list of all parties and the names and addresses of all counsel.  Dominguez does not list the names of the parties against whom he seeks mandamus relief apart from the identification of Judge William D. Smith of the 84^th Judicial District Court of Hutchinson County in the “History of the Case” portion of his petition.  Rule 52.3(b) requires that the petition include a table of contents with references to the pages of the petition and an indication of the subject matter of each issue or point raised in the petition.  Dominguez’s petition includes no table of contents.  Rule 52.3(c) requires that a petition include an index of authorities in which all authorities cited in the petition are arranged alphabetically and the page(s) upon which the authorities are cited is indicated.  Dominguez=s petition includes no index of authorities.  Rule 52.3(d) requires a statement of the case that includes a concise description of the nature of the underlying proceeding.  Dominguez=s petition does not contain a statement of the case, and does not contain a concise description of the nature of the underlying proceeding.^[3]  Rule 52.3(f) requires the petition include a concise statement of all issues or points presented for relief.  Dominguez’s petition includes no such statement.  Rule 52.3(g) requires the petition include a statement of facts supported by citation to competent evidence included in the appendix or record.  Dominguez’s petition does not include a statement of facts.  Rule 52.3(h) requires a clear and concise argument for the contentions made, with appropriate citations to authorities.  Dominguez’s argument is reasonably clear and concise.  However, the citations to legal authority included in the argument relate only to the general requirements for mandamus relief rather than supporting the relief that he seeks by his petition.  Rule 52.3(i) requires the petition include a short conclusion that “clearly states the nature of the relief sought.”  Dominguez’s conclusion requests this Court to “conduct a (sic) evidentiary hearing, make findings of fact and conclusions of law, . . . and reverse and remand for a new trial . . . .”  Clearly, as a reviewing court, we will not conduct an evidentiary hearing nor make findings of fact and conclusions of law.  Further, we are aware of no authority that would allow this Court to utilize its mandamus authority to reverse a judgment and remand the case for a new trial and Dominguez fails to identify any authority for such action.  Rule 52.3(j) requires the person filing the petition to certify that he has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.  Dominguez did not certify his petition.  Finally, Rule 52.3(k)(1)(A) requires that the appendix to the petition include a certified or sworn copy of any order complained of, or other document showing the matter complained of.  Dominguez has not included an appendix to his petition.  As each of these items are required in a petition for writ of mandamus and Dominguez has failed to comply with these requirements, we may not grant the relief that he requests.

As Dominguez=s petition for writ of mandamus does not comply with the requirements of Rule 52.3, we deny the petition.

                                                                                                Mackey K. Hancock

                                                                                                            Justice

           

---

^[1]Further citation of Texas Rules of Appellate Procedure will be by reference to ARule __.@

^[2] While Dominguez’s filing is denominated a motion to file a mandamus, the body of the document presents a petition for writ of mandamus, and we will construe it as such.

^[3] Dominguez’s petition appears to be a collateral attack on the trial court’s alleged failure to appoint two attorneys to represent Dominguez in a capital murder case in which the State sought the death penalty.  Dominguez also references at least one post-conviction petition for writ of habeas corpus that he filed that appears to have raised this issue.  It is unclear, however, which of these proceedings underlie the present petition.