760 S.W.2d 785

7TH DAY ADVENTIST SCHOOL, Appellant, v. Gilbert and Dolly ESCAMILLA, Individually, and as Next Friends of Sandra Escamilla, A Minor, Appellees.

No. 13-88-032-CV.Court of Appeals of Texas, Corpus Christi.
November 3, 1988.

Appeal from the 197th District Court, Cameron County, Darrell B. Hester, J.

Richard D. Schell, Wiley Fleuriet, Harlingen, for appellant.

Ray R. Marchan, Law Offices of Warren L. Eddington, Brownsville, for appellees.

Before NYE, C.J., and BENAVIDES and DORSEY, JJ.


Appellant, 7th Day Adventist School, brings this appeal by writ of error. The trial court granted a default judgment in favor of appellees in a personal injury action.

In its only point of error, appellant complains that the trial court erred in granting a default judgment because the service of citation did not comply with Tex.R.Civ.P. 103 and 106. Citation was served on appellant by a court-ordered private process server. Appellant, citing Garcia v. Gutierrez, 697 S.W.2d 758 (Tex.App. — Corpus Christi 1985, no writ), argues that such service was improper.

Appellees confess error; however, they argue that the costs of appeal should be “borne by appellant” since the appellee offered to enter into an agreed order setting aside the judgment prior to the expiration of time to commence appeal procedures.

Tex.R.App.P. 89 provides in pertinent part that:

In any civil cause reversed by the court of appeals, the appellant shall be entitled to an execution in the trial court against the appellee for costs occasioned by such appeal, including costs for the transcript and statement of facts. Nothing herein shall be construed to . . . limit or impair the power of the court of appeals to otherwise tax the costs for good cause.

Since appellees confessed error, the cause must be reversed and remanded. The appellant, therefore, is entitled to have the costs assessed against appellees unless we find that good cause exists to do otherwise. Appellant contends that the costs should not be assessed against it since it had already incurred the costs of appeal before appellees offered to set the judgment aside. We agree.

The only evidence in the record concerning appellees “offer” to set aside the judgment is a letter written by their counsel addressed to counsel for appellant. The letter was dated February 23, 1988 and was filed in this Court on February 25, 1988. The record reflects that, prior to the date the letter was received and filed with this Court, the transcript, statement of facts, and brief had already been filed by appellant.

Page 786

Since the appellees’ offer to set aside the default judgment occurred after appellant had already incurred costs of appeal, we find no good cause to tax costs of this appeal against appellant. Accordingly, we order the costs be assessed against the appellees. The judgment of the trial court is REVERSED and REMANDED for a new trial.