2920 PARK GROVE VENTURE, LTD., CARY PLATT AND CEC REALTY, Appellants v. LANDAMERICA AMERICAN TITLE COMPANY, Appellee.

No. 05-07-00090-CVCourt of Appeals of Texas, Fifth District, Dallas.
Opinion issued March 13, 2008.

On Appeal from the 162nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 05-00286-I.

Mr. Kenneth B. Chaiken, Mr. Steven D. Goldston, Chaiken and Chaiken, P.C., Chaiken Chaiken, P.C., Dallas TX.

Chief Justice LINDA THOMAS, Justices JOSEPH B. MORRIS, MARK WHITTINGTON, CAROLYN WRIGHT, JIM MOSELEY, DAVID L. BRIDGES, MICHAEL J. O’NEILL, KERRY P. FITZGERALD, MARTIN RICHTER, MOLLY FRANCIS, DOUGLAS S. LANG, ELIZABETH LANG-MIERS, AMOS L. MAZZANT.

MEMORANDUM OPINION
MARTIN RICHTER, Justice.

This is an appeal from an order retaxing trial court costs. In two issues, 2920 Park Grove Venture, Ltd., Cary Platt, and CEC Realty (collectively, Park Grove) complain the trial court erred in retaxing costs because the court’s plenary power to act had long expired and no clerical error existed warranting the retaxing. We affirm.

Background
Park Grove, defendants in a suit arising from a real estate transaction, filed third-party claims against LandAmerica American Title Company (American Title). The third-party claims were disposed of by a take-nothing summary judgment in American Title’s favor and subsequently severed from the main suit. In the severance order, the trial court awarded American Title its court costs.

Two years later, after Park Grove’s unsuccessful appeal[1] but before the appellate mandate issued, American Title filed a motion to retax costs along with its own verified bill of costs and invoices for the various fees it had paid at the trial court level. Apparently, although American Title had incurred costs in excess of $12,000, the district court clerk’s bill of costs showed only $180 in costs in the main suit and $0 in costs in the severed cause.

At the hearing, counsel for American Title explained it did not “go after costs” immediately after the summary judgment and severance because of Park Grove’s appeal. Once the judgment was affirmed, counsel contacted the district court clerk and learned the costs totaled only $180 and did not include the severance fee nor the costs of several depositions taken, despite the filing of the deposition certificates. Although he had not reviewed the jacket in the main cause, counsel argued the deposition certificates had been associated with that suit, but not “properly apportioned to [American Title].” When asked if he had previously presented an accounting of American Title’s costs to the clerk, counsel admitted they may have been presented for the first time with the filing of the motion to retax. Counsel for Park Grove responded that American Title should have presented its costs to the clerk when the third-party claims were severed and also that no clerical error had occurred because the bill of costs reflected the costs in the file as of the date the bill was prepared. Park Grove further argued that because the depositions were taken in the main suit, American Title’s presentment of its costs two years later amounted to a request that the court determine the depositions costs were “transferable” and properly taxable in the severed suit. Because this would require an “adjudication of the costs” and the trial court no longer had plenary power over its judgment, Park Grove maintained the costs should not be retaxed. Unpersuaded by Park Grove’s argument and after an agreement by American Title to reduce the costs by about $4,000, the trial court granted the motion and awarded costs in the amount of $8,469.17.

Discussion
Generally, a successful party to a suit is entitled to recover its court costs and fees incurred during the lawsuit. Tex. R. Civ. Proc. 131. Whether a party is the “successful” party and entitled to costs is determined by the court while the taxing or tabulation of costs is determined by the clerk. Wood v. Wood, 320 S.W.2d 807, 812 (Tex. 1959) Madison v. Williamson, 241 S.W.3d 145, 158 (Tex.App.-Houston [1st. Dist.] 2007, pet. filed); Pitts v. Dallas County Bail Bond Bd., 23 S.W.3d 407, 417
(Tex.App.-Amarillo 2000, pet. denied) (op. on reh’g). To ensure full recovery of its costs, the successful party must apprise the clerk of all costs incurred and may do so by presenting a record of its costs either before or after the judgment is entered. See Tex. Civ. Prac. Rem. Code Ann. § 31.007(a) (Vernon 1997); Madison, 241 S.W.3d at 158; Varner v. Howe, 860 S.W.2d 458, 466 (Tex.App.-El Paso 1993, no writ). The successful party may also apprise the clerk of its costs by filing a motion to retax costs in the court where the costs accrued. Wood, 320 S.W.2d at 813; Reaugh v. McCollum Exploration Co., 167 S.W.2d 727, 728
(Tex. 1943); Irving v. Fort Worth State Bank, 276 S.W. 899, 900
(Tex.Com.App. 1925); Hartzell Propeller, Inc. v. Alexander, 517 S.W.2d 455, 456 (Tex.App.-Texarkana 1974, no writ). Because the taxing of costs is but a ministerial duty of the clerk, the motion may be filed even after the case has been disposed of on appeal as long as it is filed before the mandate issues and the costs are paid. Reaugh, 167 S.W.2d at 728 Operation Rescue-Nat’l v. Planned Parenthood of Houston Se. Tex., Inc., 937 S.W.2d 60, 87 (Tex.App.-Houston [14th Dist.] 1996), modified on other grounds, 975 S.W.2d 546 (Tex. 1998).

Here, American Title apprised the clerk of its costs through its motion, and filed the motion before the mandate issued and costs were paid. Nonetheless, Park Grove argues the court erred in granting the motion because its plenary power had expired and no clerical error existed warranting the retaxing. Making the same argument it made before the trial court, Park Grove maintains the motion was not a “true” motion to retax costs because (1) the omitted costs were American Title’s own fault, and (2) it sought to have costs from the main suit transferred to the severed cause which amounted to a readjudication or allocation of costs and a motion to modify the judgment. In arguing American Title’s motion to retax costs was a “disguised” motion to modify, Park Grove notes the trial court’s plenary power to act on such a motion expired thirty days after the severance order was signed because no post-judgment motions were filed at that time. See Tex. Rs. Civ. Proc. 306a(1) (date judgement signed determines beginning of period for court’s plenary power to modify judgment), 329b(d), (g) (trial court’s plenary power expires thirty days after judgment signed unless timely motion for new trial or to modify, correct, or reform judgment filed). Because the motion was filed and ruled upon well after that period, Park Grove asserts the trial court acted without authority and erred in granting the motion. Id.
329b(f) (judgment cannot be modified or set aside once trial court’s plenary power expires). Park Grove does not dispute, however, that American Title was the successful party and entitled to recover its costs from Park Grove. Nor does Park Grove assert that had the third party claims been carried with the main cause and not severed, it would not be responsible for the costs. Instead, Park Grove asserts the transferring of the costs from the main suit to the severed suit amounted to a re-allocation or assessment of the costs. We would agree with Park Grove if in fact the transferring of costs had resulted in a new determination of who the successful party was. See Operation Rescue, 937 S.W.2d at 87
(concluding proportionate reduction in costs in multi-party suit based on the number of non-successful parties amounted to reallocation or adjudication of costs upon which trial court could not act once its plenary power expired). However, it did not. The “transferring” of costs to the severed suit was a mere re-tabulation of the amount of costs owed by Park Grove. Park Grove’s argument that the motion to retax was a motion to modify judgment over which the court lacked jurisdiction is without merit.

We also conclude Park Grove’s argument that the motion to retax was not a “true” motion to retax because the omitted items were not the clerk’s fault is without merit. In arguing this point, Park Grove maintains American Title’s counsel’s “explanations” at the hearing as to why the clerk’s bill reflected $0 in costs in the severed suit and $180 in the main suit showed the omissions in the bill were a direct result of American Title’s own actions. Park Grove maintains it was American Title’s affirmative duty to apprise the clerk, “long before” the filing of its motion to retax, that costs incurred in the main suit should be transferred to and taxed in the severed suit and that other costs had been incurred. Park Grove’s argument fails, however, because it presupposes that a motion to retax may be filed only to correct errors by the clerk and that the successful party may only apprise the clerk of its costs by filing a record of costs. While a motion to retax costs may be filed to correct a clerical error, such a motion may also be filed after appeal but before mandate issues to secure costs the successful party had not previously brought to the clerk’s attention.[2] See, e.g., Reaugh, 167 S.W.2d at 728; Operation Rescue, 937 S.W.2d at 97; Hartzell, 517 S.W.2d at 456. We resolve Park Grove’s two issues against them.

We affirm the trial court’s order granting defendant’s motion to re-tax costs.

Mr. Lance V. Clack Figari Davenport, L.L.P. Dallas TX

Dear Attorneys:

Enclosed is a copy of page 1 of the opinion in the above mentioned case. The Court of Appeals cause number now correctly reads 05-07-00090-CV.

Please replace your old page 1 with the new corrected page 1.

[1] See 2920 Park Grove Joint Venture, Ltd., Cary Platt, and CEC Realty v. LandAmerica American Title Co., No. 11-05-00120-CV (Tex.App.-Eastland 2006, no pet.).
[2] It may also be brought to challenge particular costs. See, e.g. Ferry v. Sackett, 204 S.W.3d 911, 912 (Tex.App.-Dallas 2006, no pet.) (challenging costs associated with depositions on written questions) King v. Guerra, 13 S.W.2d 908, 908-09 (Tex.Civ.App.-San Antonio 1929, writ dism’d w.o.j.) (challenging certain stenographer fees).