OPINION
Appellee Viki Livesay Eberstein sued her half-sister, appellant Elizabeth Jones Boyce, for alleged malfeasance in managing a trust set up by their mother. Eberstein eventually nonsuited all of her claims, and the trial court ruled that the trust would be taxed with a $121,000 guardian ad litem fee. On appeal, Boyce raises one issue complaining about that ruling. We affirm, holding that Rule 141s good-cause standard is satisfied in this case because the trust was benefited by the guardian ad litems services.
I. Background
A. Factual Allegations
Eberstein alleged the following facts in her last amended petition:
Appellees Eberstein and Karen Livesay Shuford are the daughters of Vivian Jones by her first husband. Appellant Boyce is Joness daughter by her second husband, who died in 2002.
In 2003, Boyce caused Jones to execute a will that disinherited Eberstein and left most of Joness property to Boyce. In 2006, Jones created the Vivian Jones Management Trust, over which Jones and Boyce are trustees. Boyce and Shuford are the primary beneficiaries of the Trust upon Joness death.
After Jones was diagnosed with primary memory loss in 2014, Boyce began abusing her position as trustee and as Joness attorney in fact. For example, Boyce borrowed money from Jones, did not pay interest on the loans as promised, and sold the security for the loans.
B. Procedural History
1. The Litigation up to the Nonsuit
In January 2017, Eberstein, acting individually and as Joness next friend, sued Boyce on theories including breach of fiduciary duty and tortious interference with inheritance rights.
Boyce answered and filed a motion for appointment of a guardian ad litem for Jones. In the motion, Boyce stated that she did not dispute that Jones was an incapacitated individual unable to represent herself. The trial court eventually appointed attorney Richard Capshaw as Joness guardian ad litem.
In September 2019, the trial court set the case for trial on January 21, 2020.
In December 2019, Eberstein filed her seventh amended petition, which remained her live pleading when the lawsuit ended. In that pleading, Eberstein asserted claims for (1) money had and received (against Boyce in her capacity as trustee), (2) declaratory judgment (against Boyce both individually and in her capacity as trustee), and (3) unjust enrichment (against Boyce individually). Eberstein also sought imposition of a constructive trust.
On January 14, 2020, Eberstein filed an emergency motion for continuance of the trial. The docket sheet indicates that the trial was reset for February 4, 2020.
On February 3, 2020, Eberstein nonsuited all of her claims without prejudice.
2. The Dispute over Costs
After Eberstein nonsuited her claims, Capshaw filed his final report and an application for his fee in the amount of $121,478.60.
Boyce then filed a motion asking the trial court to tax Capshaws fee against Eberstein as costs pursuant to Texas Rules of Civil Procedure 162 and 173.6. Eberstein filed a combined response and cross-motion asking the trial court to tax Capshaws fee against Boyce pursuant to the same rules. Boyce filed a combined reply and response that cited no additional legal authorities.
A visiting judge heard Capshaws application and the parties competing motions about who should pay Capshaws fee. No one objected to the reasonableness of Capshaws fee; Eberstein and Boyce disagreed only about who should pay it. The judge orally ruled that the Trust would pay Capshaws fee, and he gave the following explanation:
I believe that there was some merit to the claims that were brought by the plaintiff [Eberstein]. I think the party that is in the best position to pay this is the [Trust], so the Court orders that the ad litems fee be paid out of the [Trust].
He then signed an order taxing Capshaws fee to the Trust. The order recited that there was good cause to tax Capshaws fee to the Trust and that “such good cause was stated on the record.”
Boyce filed a motion for reconsideration, which a different visiting judge heard and denied without explanation.
Boyce appealed.
II. Analysis
Boyces sole issue on appeal argues that the trial court abused its discretion by taxing Capshaws fees against Boyce as trustee of the Trust.
A. Standard of Review
We review a trial courts order allocating costs for abuse of discretion. Bertrand v. Bertrand, 449 S.W.3d 856, 870 (Tex. App.—Dallas 2014, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
B. Applicable Law
“Costs” usually refers to fees and charges required by law to be paid to the courts or their officers, the amount of which is fixed by statute or rule. Bundren v. Holly Oaks Townhomes Assn, Inc., 347 S.W.3d 421, 440 (Tex. App.—Dallas 2011, pet. denied). “The court may tax a guardian ad litems compensation as costs of court.” Tex. R. Civ. P. 173.6(c); see also Tex. Civ. Prac. & Rem. Code Ann. § 31.007(b)(3) (“A judge of any court may include in any order or judgment all costs, including ․ guardians ad litem ․”).
The parties focus on three rules of civil procedure that address the taxing of costs:
• “The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.” Tex. R. Civ. P. 131.
• “The 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.
• “Any dismissal pursuant to this rule [governing nonsuits] which terminates the case shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered by the court.” Tex. R. Civ. P. 162.
When interpreting rules of procedure, we apply the same rules of construction that govern the interpretation of statutes. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex. 2012). Accordingly, we look to the rules plain language and construe them according to their plain or literal meaning. Id. Additionally, the rules of civil procedure should be given a liberal construction “to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law” as quickly and inexpensively as practicable. Tex. R. Civ. P. 1.
C. The Parties Arguments and Counterarguments
Boyces argument that the trial court erred runs as follows: Rule 162 sets up a general rule that costs should be taxed against a nonsuiting party. The trial court may tax costs differently only on a showing of good cause, per Rule 141. Eberstein failed to show good cause, so the trial court erred by finding good cause and by taxing Capshaws fee to the Trust instead of to Eberstein.
Eberstein responds that Boyce has misread the rules. According to Eberstein, Rule 162 gives the trial court broad authority not to tax costs against a nonsuiting party. Because Rule 162 allows the trial court not to tax costs against a nonsuiting party, an order taxing costs to some other party does not tax costs “otherwise than as provided by law or these rules”; thus, Rule 141 and its good-cause standard do not apply. Instead, only a generous abuse-of-discretion standard applies, and here, Eberstein contends, adequate reasons justified the trial courts order taxing costs against the Trust. Eberstein argues in the alternative that the trial court did not abuse its discretion even if Rule 141s good-cause standard applies.
In reply, Boyce argues that Ebersteins first appellate argument is not properly before this Court because it is inconsistent with the argument she made in the trial court. Boyce points to the first hearing, at which Ebersteins lawyer argued that Rule 162 “must be informed by Rule 141” and that the trial court had discretion to tax Capshaws fee as it saw fit “if ․ theres good cause.” Boyce then goes on to argue that Ebersteins first argument is wrong on the merits as well.
Eberstein obtained leave to file a surreply brief, and in it she argues that her first appellate argument is properly before this Court under the principle that an appellate court must uphold a correct trial-court judgment on any legal theory before it, even if the trial court gave an incorrect reason for its judgment.
D. Evaluating the Trial Courts Order Under Rule 141s Good-Cause Standard
If the trial courts order can be upheld under Rule 141s good-cause standard, we need not address Ebersteins argument that Rule 141 does not apply in nonsuit situations governed by Rule 162 or Boyces argument that Eberstein forfeited that argument in the trial court.
Because we conclude that the trial courts order should be affirmed even if Rule 141s good-cause standard applies, we assume without deciding that the trial court had to tax costs against Eberstein unless good cause was shown under Rule 141.
1. Judicial Interpretations of Rule 141s Good-Cause Standard
Although many appellate opinions address Rule 141, not many decide whether particular facts and circumstances, if proved, constitute “good cause,” i.e., a legally sufficient reason to tax costs contrary to the default rules. See cause, Blacks Law Dictionary (8th ed. 2004) (“good cause. A legally sufficient reason”). We summarize some of those decisions as follows:
• A prevailing defendants conduct that unnecessarily prolongs a trial is good cause to order it to pay court costs. Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex. 1985). Indeed, the supreme court later remarked that Rule 141 good cause is typically found when the prevailing party has unnecessarily prolonged the proceedings, unreasonably increased costs, or otherwise done something that should be penalized. Furrs Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 377 (Tex. 2001) (citing Rogers, 686 S.W.2d at 601, among other cases).
• A partys inability to pay costs can be good cause if the costs in question are ad litem fees. See, e.g., Davis v. Henley, 471 S.W.2d 883, 885–86 (Tex. App.—Houston [1st Dist.] 1971, writ refd n.r.e.); see also Dover Elevator Co. v. Servellon, 876 S.W.2d 166, 170 (Tex. App.—Dallas 1993, no writ) (citing Davis); Dallas Area Rapid Transit v. Williams, No. 05-96-01485-CV, 1998 WL 436917, at *3–4 (Tex. App.—Dallas Aug. 4, 1998, pet. denied) (not designated for publication) (following Davis). This rule is based at least in part on the public policy that ad litems should be reasonably sure of receiving payment for their services. Davis, 471 S.W.2d at 885.
• “Certainly, fairness can be good cause, but the record must substantiate the connection.” Roberts v. Williamson, 111 S.W.3d 113, 124 (Tex. 2003). In Roberts, the trial court assessed some of a guardian ad litems fee against the prevailing parties based on the premise that the guardian ad litem was “there for the benefit of all the parties.” Id. at 123. But the trial courts premise was wrong; the guardian ad litem was appointed to protect a childs interests. Id. at 124. Thus, the trial courts costs ruling was reversible error. However, the supreme court was willing to assume for purposes of the case that an incidental benefit to a prevailing party could constitute good cause in an appropriate case. Id.
• Good cause to make both sides liable for a receivers fee as costs was shown where both sides benefited from the receivers work. Rusk v. Runge, No. 14-02-00481-CV, 2003 WL 22672182, at *5 (Tex. App.—Houston [14th Dist.] Nov. 13, 2003, pet. denied) (mem. op.).
• Good cause to order each party to bear its own costs was shown where (1) plaintiff prevailed on only one of two claims and (2) the trial court concluded that the claim the plaintiff prevailed on was de minimis. In re Peter & Camella Scamardo, FLP, No. 10-17-00160-CV, 2018 WL 1528476, at *10 (Tex. App.—Waco Mar. 28, 2018, orig. proceeding) (mem. op.); see also Ritchie v. Yazdi, No. 14-05-01232-CV, 2007 WL 1470267, at *5 (Tex. App.—Houston [14th Dist.] May 22, 2007, no pet.) (mem. op.) (good cause to order each party to bear its own costs was shown where plaintiff sued three defendants on multiple claims and only one claim against one defendant survived to be submitted to the jury).
• A losing partys emotional fragility is not good cause to depart from the default rules about costs. Furrs Supermarkets, 53 S.W.3d at 377.
• A losing partys inability to pay court costs is not good cause to depart from the default rules about costs. Id. Nor is a prevailing partys relatively superior ability to pay costs good cause. Deans Campin Co. v. Hardsteen, No. 01-00-01190-CV, 2002 WL 1980840, at *7 (Tex. App.—Houston [1st Dist.] Aug. 29, 2002, pet. denied) (not designated for publication).
• In the case of a prevailing defendant and an outstanding guardian ad litem fee, good cause to shift the fee to the defendant is not satisfied by the incidental “benefit” to the defendant that the judgment will not be subject to attack for lack of a guardian ad litem. Dover Elevator, 876 S.W.2d at 170–71.
• A trial courts belief that all parties are entitled to their day in court is not good cause to tax costs contrary to Rule 131. Mora v. Villalobos, No. 13-02-00691-CV, 2005 WL 2000759, at *6 (Tex. App.—Corpus Christi–Edinburg Aug. 22, 2005, pet. denied) (mem. op.).
• A plaintiffs rejection of a settlement offer and subsequent recovery of a lower amount is not good cause to tax costs contrary to Rule 131. Nicholson v. Tashiro, 140 S.W.3d 445, 448 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.).
Both Boyce and Eberstein discuss City of Houston v. Woods, 138 S.W.3d 574, 581–82 (Tex. App.—Houston [14th Dist.] 2004, no pet.). In that case, David Melasky served as both guardian ad litem and attorney ad litem for a minor plaintiff, and he eventually nonsuited the minors claims against the City of Houston. Id. at 577–78. After a hearing, the trial court taxed two-thirds of Melaskys fee against the City, and its written order recited good cause in that (1) Melaskys services were necessary to protect the minors interests and (2) the City of Houston had the financial ability to pay those fees. Id. at 578–79. The City appealed, and the court of appeals affirmed the apportionment of Melaskys guardian ad litem fee based on the following reasoning:
In its order, the trial court based its good cause finding on the Citys financial ability to pay costs and fees. However, without the record of the evidentiary hearing, we must presume the evidence supports a finding of good cause.
Id. at 582 (footnote omitted). This passage is not entirely clear. The court may have meant that a prevailing defendants financial ability to pay a guardian ad litems fee, without more, is sufficient good cause under Rule 141 to justify shifting that cost to the defendant. Or the court may have meant that the missing reporters record required the appellate court to presume both that the trial court made a different oral good-cause finding at the hearing and that this presumed finding was supported by sufficient evidence. In any event, Woods is not binding on this Court, and we do not consider it instructive in this case.
2. Applying the Law to the Facts
The trial judge stated on the record two good-cause reasons to tax the guardian ad litems fee to the Trust: (1) Ebersteins claims had some merit, and (2) the Trust was “in the best position to pay.” At the hearing in this case, Eberstein argued in support of one additional reason that there was good cause to tax the fee to the Trust: she contended that the Trust benefited from the guardian ad litems involvement in the case.
Although the trial court did not expressly adopt Ebersteins argument, the Furrs Supermarkets opinion indicates that we may nevertheless consider it as a possible support for the trial courts order. See 53 S.W.3d at 376 (supreme court considered two good-cause arguments that losing party made in the trial court even though trial court expressly adopted only one of those arguments); see also Leachman v. Stephens, No. 02-13-00357-CV, 2016 WL 6648747, at *16 (Tex. App.—Fort Worth Nov. 10, 2016, pet. denied) (mem. op.) (“Even if the trial court ordered Appellant to pay his costs for the wrong reason, a proper basis exists; accordingly, we will not overturn the trial courts decision to assess costs against Appellant.”); Luxenberg v. Marshall, 835 S.W.2d 136, 141–42 (Tex. App.—Dallas 1992, orig. proceeding) (denying mandamus relief where trial courts order was expressly based on an invalid reason but the record supported other valid bases for the order); M.J.R.s Fare of Dallas, Inc. v. Permit & License Appeal Bd. of Dallas, 823 S.W.2d 327, 331 (Tex. App.—Dallas 1991, writ denied) (“We affirm the trial courts judgment if we can sustain it on any theory suggested by the pleadings and evidence and authorized by law.”). We agree with Ebersteins benefit-to-the-Trust argument and affirm on that basis.
As noted above, the supreme court has left open the question whether an incidental benefit from a guardian ad litems services can constitute good cause. Roberts, 111 S.W.3d at 124. In Dover Elevator, we held that the “benefit” of making the judgment secure against later attack for lack of a guardian, without more, was not sufficient good cause to support taxing costs against a prevailing defendant. 876 S.W.2d at 170–71. But we did not close the door on the possibility that some other kind of benefit might be sufficient to constitute good cause.
The Houston Fourteenth Court of Appeals decision in Rusk v. Runge, however, indirectly supports the proposition that a benefit conferred by an ad litem can constitute Rule 141 good cause. In that case, the trial court appointed a receiver for the community property of divorcing spouses, the court of appeals held that the appointment was an abuse of discretion, and on remand the trial court ruled that both husband and wife would be jointly and severally liable for the receivers fee because they both benefited from the receivers services. 2003 WL 22672182, at *1, *5. The husband appealed, and the court of appeals agreed with the husband that he was the “successful party” for Rule 131 purposes. Id. at *4. But the appellate court still affirmed the costs order because it concluded that the record supported the trial courts good-cause finding that the receiver benefited both parties. Id. at *5. The appellate court listed several such benefits, including (1) the receiver tried to protect the assets against dissipation and (2) the husband used the receivership as a shield to protect assets from creditors and prevent foreclosures. Id. We agree with Rusks reasoning and conclude that Rule 141 good cause to shift a guardian ad litems fee can consist of a benefit to a party otherwise entitled to recover court costs. That benefit, of course, must be something besides the “benefit” of receiving a judgment not subject to challenge for lack of a guardian. See Dover Elevator, 876 S.W.2d at 171.
Here, Eberstein argued to the trial court that Capshaws services benefited the Trust in ways other than making the judgment secure against later attack for lack of a guardian ad litem. In particular, Eberstein argued that Capshaws work led to an improvement in the Trusts security regarding a debt Boyce owed to the Trust. Ebersteins lawyer explained that the following sequence of events occurred:
• Boyce borrowed $1.7 million from Jones to acquire property, and the loans were secured by two parcels of property in Dallas County.
• Jones assigned the loans to the Trust.
• Boyce caused the Trust to release its lien on one of the two parcels of property securing the loans and improperly tried to substitute her primary residence as collateral for the loans.
• One of the results of Capshaws activities as guardian ad litem was that Boyce filed a new deed of trust that properly secured the loans with property that would not be subject to a homestead exemption.
Although Ebersteins lawyer was not placed under oath before he made these statements, we conclude that the absence of objection waived the oath requirement. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam). Capshaw also supported Ebersteins position with his comments at the hearing:
I tend to agree with both sides in the sense of that the end result of all of this was the substitution of the deed of trust for one piece of property for the other․ But from the standpoint of preserving that—that—that corpus of money [in the Trust], I believe we were able to achieve that.
Again the oath requirement was waived, so the trial court could credit Capshaws unsworn testimony. And, finally, Boyces own lawyer confirmed that the collateral for the debt had changed during the litigation:
Nothing has changed [since the beginning of the lawsuit], except one piece of property has some different security on it than it had before the lawsuit was filed.
We conclude that the record contains some evidence that Capshaws involvement in the case benefited the Trust because it led to an improvement in the Trusts secured position regarding a debt owed to the Trust. And we hold that this benefit to the Trust is sufficient to constitute good cause within the meaning of Rule 141. As the supreme court said in Roberts, “fairness can be good cause, but the record must substantiate the connection.” 111 S.W.3d at 124. Here, the record substantiates that Capshaws services led to a specific and identifiable benefit to the Trust. We conclude that the trial court, in the exercise of its discretion, could reasonably conclude that this benefit to the Trust made it fair to tax the guardian ad litems fee against the Trust rather than against Eberstein. See Rusk, 2003 WL 22672182, at *5.
Accordingly, we hold that the trial court did not abuse its discretion by taxing Capshaws fee to the Trust, and we overrule Boyces sole issue on appeal.
III. Disposition
We affirm the trial courts judgment.
DISSENTING OPINION
My colleagues do an excellent job of addressing what little law exists regarding Texas Rule of Civil Procedure 141 and the good cause that may support a trial courts decision to adjudge costs other than as provided by Texas Rule of Civil Procedure 131. Here, the trial judge stated two reasons for adjudging costs pursuant to Rule 141, neither of which the majority concludes may support the cost award. I agree with that conclusion. Where I depart from the majority is its conclusion that all of the costs awarded should be upheld on a basis that was argued to, but not relied upon by, the trial court in making the award.
Assuming that a benefit to the trust may ever be a valid basis for awarding costs in a manner other than that provided by Rule 131,
1
and given that basis was not the one upon which the trial court made the award, I question what amount the trial court would have awarded had it made the award on a benefit to the trust basis. Would it have been the full award of $121,000 or some other amount? Because the trial court did not state “benefit to the trust” as good cause to support the cost award, we do not know how much the trial court would have awarded had it adjudged the cost award for that reason. As the trial court informed us that he believed that the award was premised on the respective parties ability to pay and potential merit, either of which, if valid, would have supported a full award, it seems unlikely that the costs would have been divided in this manner had the courts discretion been properly directed to the extent of benefit achieved. In other words, we do not know what amount the trial court would have awarded on that basis, and thus we cannot determine the ultimate question of abuse of discretion.
Therefore, I would reverse and remand this case to the trial court to determine whether the benefit to the trust here constitutes good cause to deviate from Rule 131, and, if so, to make a determination of the appropriate amount of the cost award against the trust. See, e.g., Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 516 (Tex. App.—Eastland 2008, pet. denied) (reversing and remanding to trial court to reconsider allocation of taxable costs where stated reason was improper but record contained other information that could support Rule 141 good cause determination).
Accordingly, I dissent.
FOOTNOTES
1
. While I do not necessarily agree with it, I cannot fault the majoritys decision in this respect given the lack of an authoritative answer or meaningful guidance on this point. Nevertheless, this will now be the first case to so hold and involves a substantial award made on an apparently improper stated basis.
Opinion by Justice Garcia
Schenck, J., dissenting