MEMORANDUM OPINION(PUBLISH)
Court of Appeals of Texas,
Tyler.
PILGRIM’S PRIDE CORPORATION and Jack Alton Sherman, Appellants
v.
Billie Joe BURNETT and Sheri Lisa Burnett, Appellees.
No. 12–10–00037–CV.
Feb. 3, 2012.
Appeal from the 159th Judicial District Court of Angelina County, Texas. (Tr.Ct.No.38757–05–07).
Deborah Smith McClure, for Pilgrim’s Pride Corporation and Jack Alton Sherman.
Alton C. Todd, Mark Aronowitz and Julia C. Hatcher, for Billy Joe Burnett.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
BRIAN HOYLE, Justice.
Pilgrim’s Pride Corporation and Jack Alton Sherman appeal the judgment of the trial court awarding damages to Billie Joe Burnett and Sheri Lisa Burnett resulting from injuries they received in an automobile accident. They raise seven issues on appeal. The Burnetts raise three conditional cross-issues. We modify the judgment of the trial court, and affirm as modified.
BACKGROUND
On October 13, 2004, at approximately 6:30 a.m., Appellee Billie Joe Burnett was driving his pickup truck in the southbound lane of FM 326 near the intersection of FM 326 and Old Ewing Road in Angelina County, Texas. Appellant Jack Alton Sherman, a Pilgrim’s Pride employee-driver, was driving a tractor-trailer owned by Pilgrim’s Pride loaded with chickens on Old Ewing Road. After he stopped at the stop sign, he began to make a left turn onto FM 326 in the northbound lane.
Exactly what happened next was disputed at trial, but the evidence showed that Burnett’s truck and Sherman’s tractor-trailer collided. Debbie Turner, who heard the accident and went to the scene, testified that most of the trailer was in the northbound lane, but the rear portion was partially in Burnett’s lane. Sherman testified that he did not see Burnett’s vehicle when he began to turn, that he committed to the turn, and that he eventually saw Burnett’s truck come over the top of a hill on FM 326. But he believed that he had enough distance to complete the turn before Burnett’s truck would reach him.
Burnett stated that he saw the truck at Old Ewing Road but could not see that it had a trailer because he was focused on the cab portion of the tractor-trailer and its “blinding” headlights. He also testified that he could not see whether the trailer had any side lamps or reflective taping. The trailer obstructed the roadway during its turn. Burnett believed Sherman’s truck had already completed the turn before he saw the trailer, and stated that he could not initiate the brakes in time to avoid a collision. The evidence showed that he did initiate his brakes and unsuccessfully tried to veer to the right just prior to impact.
It was dark at the time of the collision.
There was testimony that the lights on the trailer were working at the time of the collision. However, the Burnetts presented evidence that the tractor-trailer was equipped with reflective sheeting or taping, but that it was covered with chicken feces. Sherman testified that he did not clean the reflective material on the morning of the accident. He was unaware of any Pilgrim’s Pride policy stating who was responsible for washing trailers when they became dirty.
Jerry Adams, the shop manager responsible for maintaining the tractor-trailers, testified that drivers were required to wash their own trucks and trailers, but that there was no specific time schedule or interval in which to do so. Kenny Clifton, former regional fleet safety manager and board member of the Internal Accident Review Board at Pilgrim’s Pride, also testified that there was not a specific schedule for washing tractor-trailers, that feces often covered them, and some offices were better than others at washing them. Clifton examined photos and testified that the trailer could have more tape, and that it probably should not have been on the road. On cross examination, he looked at other photos and stated that the taping on the trailer was not as obscured as it appeared in the prior photos he examined, but that the trailer needed to be washed with soap and water. Tom Reader was the fleet safety administrator for the Nacogdoches/Lufkin offices. He testified that the taping on the rear of the trailer was more visible than the taping on the exposed side of the trailer struck by Burnett, which was somewhat obscured by chicken feces. Nevertheless, he believed the tape on the side Burnett struck was visible and in good condition. Reader testified that the reflective material on the tractor-trailer at issue was about as good as the typical trailer in the Pilgrim’s Pride fleet.
Adams testified Pilgrim’s Pride did not have a specific safety policy that required drivers to make sure the reflective sheeting or taping was in good condition. Adams also testified that it did not require drivers to walk around the trailer to clean the reflective material because it gets dirty every time a trailer goes down a farm road and gets blanketed with dust and chicken feces. Danny Lovell, the live haul shop manager and Sherman’s direct supervisor, whose job it was to oversee the drivers, largely corroborated Adams’s testimony. Finally, although equivocal, there was evidence that the reflective material was obscured by chicken feces at the time of the collision.
Reader, Adams, and Lovell all went to the scene shortly after the accident occurred.
There also was evidence that Burnett was in a methadone maintenance program and was self-regulating his intake of methadone at the time of the accident. In addition, at the hospital, he tested presumptively positive for barbiturates after the accident. Experts testified about the effects of these drugs on the body’s systems. Burnett is legally blind in his left eye, has no depth perception, and was not wearing any type of corrective lenses at the time of the accident.
Sherman had cataract surgery on his left eye prior to the accident, and later had the same surgery on his right eye. He did not report any vision problems, the surgery, or the need for additional surgery to anyone at Pilgrim’s Pride. However, he was wearing glasses at the time of the accident. The parties also presented testimony from accident reconstructionists, and both testified that both drivers contributed to the accident and that both could have taken actions to avoid the accident.
At the conclusion of the jury trial, the trial court charged the jury. The charge included negligence questions and an apportionment question for Burnett, Pilgrim’s Pride, and separately, Sherman. The jury found that all three parties were negligent and apportioned fault as follows: twenty percent to Pilgrim’s Pride, forty-five percent to Sherman, and thirty-five percent to Burnett. The jury awarded the Burnetts $1,084,390.22 in damages. After apportioning the responsibility of the parties, the trial court reduced the amount of damages in its judgment to $704,853.64. Pilgrim’s Pride and Sherman filed a motion for new trial, which appears to have been overruled by operation of law. This appeal followed.
ADMISSION OF EVIDENCE
In their first issue, Pilgrim’s Pride and Sherman (Appellants) contend that “the trial court reversibly erred in allowing evidence concerning the Internal Accident Review Board to be presented to the jury.” Specifically, they contend that the evidence was inadmissible hearsay and “protected from discovery by privilege.”
Standard of Review
We review a trial court’s evidentiary rulings for an abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex.2005) (per curiam). In addition, generally, the scope of discovery is within the trial court’s discretion. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998) (per curiam). The trial court abuses its discretion if it acts without reference to guiding rules or principles, or in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). To reverse a judgment based on a claimed error in admitting or excluding evidence, a party must show that the error probably resulted in an improper judgment. TEX.R.APP. P. 44.1(a); Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex .2001). We must review the entire record to determine if the evidence probably resulted in the rendition of an improper judgment. Interstate Northborough P’ship, 66 S.W.3d at 220. We must uphold the trial court’s evidentiary ruling if there is any legitimate basis for it. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998).
Applicable Law
Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX.R. EVID. 801(d). Declarations of third persons may be binding on a party as vicarious admissions when made by the party’s agent or servant concerning a matter within the scope of the agency or employment and made during the existence of the relationship. Walker & Assocs. Surveying, Inc. v. Roberts, 306 S.W.3d 839, 855 (Tex.App.-Texarkana 2010, no pet.). A “statement by the party’s agent or servant concerning a matter within the scope of his or her agency or employment, made during the existence of the relationship” is considered to be an admission by a party-opponent and is not hearsay. TEX.R. EVID. 801(e)(2)(D). “[S]ubject to other Rules of Evidence that may limit admissibility, any statement by a party-opponent is admissible against that party.” See Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex.2007).
The party who seeks to limit discovery by asserting a privilege, such as the work product privilege, has the burden of proof. See In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.2004) (per curiam). “To meet its burden, the party seeking to assert a privilege must make a prima facie showing of the applicability of a privilege by first asserting the privilege.” See In Re BP Prods. N. Am. Inc., 263 S.W.3d 106, 112 (Tex.App.-Houston [1st Dist.] 2006, orig. proceeding). The documents in issue may themselves constitute sufficient evidence to make a prima facie showing of attorney-client or work product privilege. In re E.I. DuPont de Nemours & Co., 136 S.W.3d at 223. “Work product” is defined in relevant part as follows:
(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
TEX.R. CIV. P. 192.5(a) (emphasis added). The Texas Supreme Court has generally described “work product” as “specific documents, reports, communications, memoranda, mental impressions, conclusions, opinions, or legal theories, prepared and assembled in actual anticipation of litigation or for trial.” Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193, 200 (Tex.1993) (emphasis added).
The “anticipation of litigation” test is met when a reasonable person would have concluded from the totality of the circumstances that there was a substantial chance that litigation would ensue, the party asserting the work product privilege subjectively believed in good faith that there was a substantial chance that litigation would ensue, and the investigation was conducted for the purpose of preparing for the litigation. Id. at 195, 203–04, 207; see also Trevino v. Ortega, 969 S.W.2d 950, 956 (Tex.1998). A “substantial chance of litigation” does not “refer to any particular statistical probability that litigation will occur” but “simply means that litigation is more than merely an abstract possibility or unwarranted fear.” Brotherton, 851 S.W.2d at 204. Common sense dictates that a party may reasonably anticipate suit being filed, and conduct an investigation to prepare for anticipated litigation, before a party manifests an intent to sue by filing suit. Id.; see also In re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 342 (Tex.App.-Texarkana 1999, orig. proceeding [mand. denied] ).
Discussion
The document complained of was a one page report from Kenny Clifton on behalf of the Pilgrim’s Pride Accident Review Board. It stated that Sherman was “chargeable” for the accident that formed the basis of this case, the accident would be added to his record as a chargeable accident, and in the event that he was terminated, he would be eligible to reapply for employment within one year. The document also briefly outlined an appeal process. Clifton testified concerning the accident review process, what “chargeable” meant, and the results of the investigation outlined in the report. Sherman testified that he knew what “chargeable” meant, and that the document said he was chargeable with the accident.
Appellants first argue that this evidence, and particularly the report itself, is inadmissible hearsay. The Burnetts contend that the report is not hearsay because it is excluded from the hearsay rule as an admission of a party-opponent under Texas Rule of Evidence 801(e)(2)(D). We agree with the Burnetts. The evidence shows the Accident Review Board is composed of agents or employees of Pilgrim’s Pride, and that the Board’s findings were made in the scope of its members’ agency or employment; that is, the results of the investigation. Consequently, the report is an admission of a party-opponent, and is not hearsay. See Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 856 n. 5 (Tex.2011); see also City of San Antonio v. Rodriguez, 856 S.W.2d 552, 560–61 (Tex.App.-San Antonio 1993, writ denied) (statement by former engineering division drainage technician that he knew area was low water crossing but was told not to place warning sign at location, made during investigation of pedestrian drowning death at location, in response to inquiries by city public work director investigating death, was admission of party-opponent); State v. Buckner Const. Co., 704 S.W.2d 837, 845–46 (Tex.App.-Houston [14th Dist.] 1985, writ ref’d n.r.e.) (statement made by state auditor sent to review corporate records of company was admission by party-opponent); State v. City of Greenville, 726 S .W.2d 162, 168 (Tex.App.-Dallas 1986, writ ref’d n.r.e.) (letter from administrative assistant to head of agency was admission by party-opponent).
Also as part of their hearsay argument, Appellants contend that in order to be an admission by a party-opponent, the admission must be a “statement made or an act done by a party to the suit which constitutes a prior acknowledgement that facts relevant to the issues are not as claimed at trial.” However, there is no inconsistency requirement under Rule 801(e)(2). See Waldon v. City of Longview, 855 S.W.2d 875, 877–78 (Tex.App.-Tyler 1993, no writ) (holding that unlike Rule 801(e)(1)(A) pertaining to prior statements by witnesses, admissions by party-opponent under Rule 801(e)(2) need not be inconsistent with trial testimony).
Appellants next assert that the “investigative privilege” protected the Accident Review Board’s investigation report from discovery. First, we note that the investigative privilege has been subsumed as part of the work product privilege. See In re Monsanto Co., 998 S.W.2d 917, 923 n. 3, 932–33 (Tex.App.-Waco 1999, orig. proceeding). Second, Pilgrim’s Pride could have subjectively believed there was a substantial chance that litigation would ensue due to the collision. However, the evidence shows that the investigation was conducted to determine whether Sherman was “chargeable” with an accident under Pilgrim’s Pride employment policies. The determination from that investigation could result in his termination as a driver. But there is nothing in the record to establish that the investigation was conducted for the purpose of preparing for trial of the personal injury suit brought later by the Burnetts. And the burden rested upon Appellants to establish the applicability of the work product privilege. In re E.I. DuPont de Nemours & Co., 136 S.W.3d at 223; see also In Re BP Prods. N. Am. Inc., 263 S.W.3d at 112. We conclude that Appellants failed to discharge that burden. Consequently, they have not shown that the Accident Review Board’s investigation report and the testimony concerning it at trial were protected from disclosure by the work product privilege.
Appellants’ first issue is overruled.
JURY INSTRUCTIONS
In their second issue, Appellants argue that “the trial court reversibly erred in failing to fully instruct the jury concerning the provisions of the Texas Transportation Code.”
Standard of Review and Applicable Law
The standard of review for jury charge error is abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006) (per curiam). A trial court abuses its discretion if it acts arbitrarily or unreasonably or without reference to guiding rules or principles. Downer, 701 S.W.2d at 241–42. A trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).
Discussion
The trial court included a negligence per se instruction relating to portions of Section 545.151 of the Transportation Code. Specifically, the trial court instructed the jury as follows:
(a) An operator approaching an intersection:
(1) shall stop, yield, and grant immediate use of the intersection:
(A) in obedience to an official traffic-control device, including a stop sign or yield right-of-way sign; or
(B) if a traffic-control signal is present but does not display an indication in any of the signal heads; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with traffic using a different street or roadway.
….
(f) An operator who is required by this section to stop and yield the right-of-way at an intersection to another vehicle and who is involved in a collision or interferes with other traffic at the intersection to whom right-of-way is to be given is presumed not to have yielded the right-of-way.
A failure to comply with this law is negligence in itself.
See TEX. TRANSP. CODE ANN. § 545.151(a), (f) (West 2011). Appellants do not challenge on appeal whether it was proper to submit a negligence per se instruction generally. Rather, they objected at trial, and raise the argument on appeal, that the trial court should have also included an instruction on Section 545.151, subsections (d) and (e), because those subsections were raised by the evidence. Those subsections provide as follows:
(d) Except as provided in Subsection (e), an operator approaching an intersection of a street or roadway that is not controlled by an official traffic-control device:
(1) shall stop, yield, and grant immediate use of the intersection to a vehicle that has entered the intersection from the operator’s right or is approaching the intersection from the operator’s right in a proximity that is a hazard; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with traffic using a different street or roadway.
(e) An operator approaching an intersection of a street or roadway from a street or roadway that terminates at the intersection and that is not controlled by an official traffic-control device or controlled as provided by Subsection (b) or (c):
(1) shall stop, yield, and grant immediate use of the intersection to another vehicle that has entered the intersection from the other street or roadway or is approaching the intersection on the other street or roadway in a proximity that is a hazard; and
(2) after stopping, may proceed when the intersection can be safely entered without interference or collision with the traffic using the other street or roadway.
Id. § 545.151(d), (e).
Subsections (d) and (e) apply when there is no traffic control device. In the instant case, a traffic control device controlled the intersection. Therefore, it was appropriate for the trial court to exclude those subsections from the jury charge, because they were not raised by the evidence. See TEX.R. CIV. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992); N. River Ins. Co. v. Purdy, 733 S.W.2d 630, 635 (Tex.App.-San Antonio 1987) (“Issues and instructions not raised by the evidence do not require submission.”).
Appellants also appear to argue that Sherman was already committed to the turn when the Burnetts first became visible, and consequently, Sherman did not violate the portions of the statute that were included in the jury charge. The statute provides that the vehicle required to stop and yield the right of way may proceed, only after stopping, when the intersection can be safely entered without interference or collision. Furthermore, the statute creates a presumption when a collision occurs that the person required to stop failed to yield the right of way. But that was a disputed question of fact for the jury to decide. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.2005). Moreover, Burnett had the right of way.
Appellants nevertheless contend that Burnett could not rush into the path of danger, even if he had the right of way. See Lawson v.. McDonald’s Estate, 524 S.W.2d 351, 354–55 (Tex.Civ.App.-Waco 1975, writ ref’d n.r.e.). While this is a correct statement of the law, under the circumstances of this case, the instruction that Pilgrim’s Pride should have sought pertained to whether Burnett failed to keep a proper lookout, timely apply his brakes, take evasive action, or take other similar action, but not Burnett’s alleged failure to yield the right of way. See Kenneally v. Thurn, 653 S.W.2d 69, 73 (Tex.App.-San Antonio 1983, writ ref’d n .r.e.) (holding in similar case that although party with right of way may not rush into path of danger, he cannot be negligent in that circumstance for failing to maintain right of way; rather he may be negligent for failing to keep lookout, apply brakes, take evasive action, or other similar action). But they did not contend at trial, and do not contend on appeal, that Burnett failed to take any of those actions; only that he failed to yield the right of way. Therefore, the trial court did not err in omitting Appellants’ requested instruction under Section 545.151, subsections (d) and (e).
Even without such instructions, it was for the jury to decide whether Burnett rushed into the path of danger and was contributorily negligent. The jury decided that he was thirty-five percent responsible for his injuries. City of Keller, 168 S.W.3d at 819.
Appellants’ second issue is overruled.
INDEPENDENT LIABILITY OF PILGRIM’S PRIDE
In its third issue, Pilgrim’s Pride contends that “there was legally and factually insufficient evidence to support the submission of Pilgrim’s Pride Corporation’s independent liability in this respondeat superior action.” Particularly, Pilgrim’s Pride contends there was insufficient evidence that it owed the Burnetts a cognizable legal duty, and without a duty, there was no basis to include its negligence in the charge separately from Sherman’s in the negligence and apportionment questions.
The Burnetts disagree, contending that Pilgrim’s Pride owed a duty to them, under the common law and Federal Motor Carrier Safety Regulations (FMCSRs), as members of the driving public, to safely equip its tractor-trailers and to ensure that its drivers have suitable vision. With regard to the condition of the tractor-trailer, the Burnetts contend that Pilgrim’s Pride failed to maintain visible reflective sheeting or taping as required under the FMCSRs. The Burnetts contend that this failure was a proximate cause of the collision, that any sheeting or taping was obscured by chicken feces, and that there was no corporate policy to render the sheeting or taping visible, despite its knowledge that chicken fecal matter continuously accumulates on its tractor-trailers. With regard to Sherman’s vision, the Burnetts contend that Pilgrim’s Pride failed to have a policy requiring medical examinations of its drivers at sufficient intervals in order to discover changes in vision that would fall below the FMCSRs minimum visual acuity.
Standard of Review and Applicable Law
1. Submission of Employer Liability in the Jury Charge
We review a trial court’s decision to submit or refuse to submit a particular issue to the jury for an abuse of discretion. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). A trial court abuses its discretion when it acts without reference to any guiding principles. Downer, 701 S.W.2d at 241–42.
Generally speaking, if a contested issue is raised by the pleadings and evidence, then the litigants are entitled to have the issue submitted to the jury. TEX.R. CIV. P. 278; Elbaor, 845 S.W.2d at 243. In the negligence liability question of the jury charge, submission of the employer’s negligence is improper when the sole basis for its liability is the employment relationship with its employee who caused the harm under the respondeat superior doctrine. See Janga v. Colombrito, No. 05–10–00408–CV, 2011 WL 6146197, at(Tex.App.-Dallas Dec. 12, 2011, no pet. h.). In other words, there should be no separate blank for the employer. Id. In that circumstance, it is likewise improper to include the employer in the apportionment question. See id.; Bedford v. Moore, 166 S.W.3d 454, 461 (Tex.App.-Fort Worth 2005, no pet.). However, if the pleadings and the evidence raise an independent basis for liability—where the employer’s own independent breach of a separate legal duty proximately caused the plaintiff harm—it is proper to submit the employer’s negligence separately, as well as to apportion its liability along with the other defendants. See Bedford, 166 S.W.3d at 462–63.
2. Existence of a Legal Duty
A negligence cause of action has three elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach. Id. The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). Generally, the existence of a duty is a question of law for the court to decide based on the facts surrounding the occurrence in question. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998); Block v. Mora, 314 S .W.3d 440, 444 (Tex.App.-Amarillo 2009, pet. dism’d).
The primary inquiry in the duty analysis revolves around whether a given course of conduct would subject others to an unreasonable, foreseeable risk of harm. See Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 39 (Tex.2002); Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 311 (Tex.1984) (discussing unreasonable risk of harm as component of duty analysis). A reviewing court balances several related factors to determine whether a defendant owed a plaintiff a duty, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the defendant’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990).
Foreseeability of the risk is the foremost and dominant factor. See id. Foreseeability requires only that the general danger be foreseeable, not the exact sequence of events that produced the harm. See Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex.1999). The test for foreseeability is whether (1) the injury is of a general character that might reasonably have been anticipated and (2) the injured party is situated in relation to the wrongful act so that injury to him or one similarly situated might reasonably have been foreseen. See id.
3. Vehicle Owner’s Duty to Safely Equip Vehicle
Texas law has long recognized that a vehicle owner has a common law duty to refrain from allowing his vehicle to be operated on the road when he knew, or in the exercise of ordinary care, should have known of dangerous defects in the vehicle, although the vehicle was operated by another driver at the time of the collision. Sturtevant v. Pagel, 130 S.W.2d 1017, 1018 (Tex. Comm’n App.1939, judgm’t adopted); see Russell Constr. Co. v. Ponder, 186 S .W.2d 233, 235–36 (Tex.1945) (holding trucking company was liable for its own negligence in causing bicyclist’s death, even though bicyclist was killed while its employee drove truck, because trucking company knew or should have known that its tractor-trailer’s brakes were not in good working order; stating “fact that [driver] was negligent in operating the truck and that his negligence was also a proximate cause of the injuries does not break the causal connection between [employer’s] negligent acts and the injury to the extent that it became in itself the cause of such injury”); Continental Bus Sys., Inc. v. Toombs, 325 S.W.2d 153, 161–62 (Tex.Civ.App.-Fort Worth 1959, writ ref’d n.r.e.).
4. Federal Motor Carrier Safety Regulations
The attendant standard of conduct may be determined by the violation of a statute or administrative regulation. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex.1985). In appropriate cases, the statute or regulation itself sets the duty and standard of care. See id. Consequently, a violation of a traffic regulation that proximately causes a collision can often create negligence liability. Freudiger v. Keller, 104 S.W.3d 294, 296 (Tex.App.-Texarkana 2003, pet. denied). In addition, several Texas cases have held that a violation of an administrative regulation such as the FMCSRs, in appropriate cases, serves as a basis for a negligence finding. See, e.g., Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 839 (Tex.App.-Fort Worth 2006, no pet.); N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 124 (Tex.App.-Beaumont 2001, pet. denied).
Here, the relevant administrative regulation states that “[n]o commercial motor vehicle shall be driven when any of the lamps or reflective devices/material required by subpart B of part 393 of this title are obscured by the tailboard, or by any part of the load or its covering, by dirt, or other added vehicle or work equipment or otherwise.” 49 C.F.R. § 392.33(a) (West 2011) (Obscured lamps or reflective devices/material). Subpart B of part 393 similarly provides in Section 393.9(b) that “reflective devices/material required by this subpart must not be obscured by the tailboard, or by any part of the load, or its covering by dirt, or other added vehicle or work equipment, or otherwise.” 49 C.F.R. § 393.9(b). Finally, Sections 393.11, 393.22, and 393.26 outline the requirements for reflective material. See generally 49 C.F.R. §§ 393.11, 393.22, 393.26. Pilgrim’s Pride does not dispute that reflective material was required on its tractor-trailers.
5. FMCSR Applicability to Trucks Operating Wholly Intrastate
The Texas Department of Public Safety (DPS) has expressly adopted many of the FMCSRs, including those at issue in the instant case. 37 TEX. ADMIN. CODE § 4.11(a) (2011) (Tex. Dep’t of Public Safety, General Applicability and Definitions) (“The director of the Texas Department of Public Safety incorporates, by reference, the Federal Motor Carrier Safety Regulations, Title 49, Code of Federal Regulations, Parts … 390–393, … including all interpretations thereto, as amended through April 1, 2011.”). The director of the DPS stated that the FMCSRs were adopted to ensure that
(1) a commercial motor vehicle is safely maintained, equipped, loaded, and operated;
(2) the responsibilities imposed on a commercial motor vehicle’s operator do not impair the operator’s ability to operate the vehicle safely;
(3) the physical condition of a commercial motor vehicle’s operator enables the operator to operate the vehicle safely;
(4) commercial motor vehicle operators are qualified, by reason of training and experience, to operate the vehicle safely; and
(5) the minimum levels of financial responsibility for motor carriers of property or passengers operating commercial motor vehicles in interstate, foreign, or intrastate commerce is maintained as required.
Id.
If the vehicle at issue is operated wholly intrastate, as in the instant case, the relevant FMCSRs still govern, provided other applicability requirements are met. See id. § 4.11(b)(3) (“[I]nterstate or foreign commerce will include all movements by motor vehicle, both interstate and intrastate, over the streets and highways of this state.”). The pertinent FMCSRs apply to intrastate vehicles or a combination of vehicles “with an actual gross weight, a registered gross weight, or a gross weight rating in excess of 26,000 pounds when operating intrastate.” See id. § 4 .11(c)(1)(A).
When the vehicle travels wholly intrastate within Texas, and a pertinent FMCSR applies, the term “motor carrier” as used in the FMCSR has the meaning given in Texas Transportation Code, Section 643.001(6) when vehicles operated by the motor carrier meet the applicability requirements. See id. § 4.11(b)(1). “Motor carrier” in that section means “an individual, association, corporation, or other legal entity that controls, operates, or directs the operation of one or more vehicles that transport persons or cargo over a road or highway in this state.” TEX. TRANSP. CODE ANN. § 643.001(6) (West 2011).
Similarly, when the FMCSRs use the phrase “commercial motor vehicle” in a wholly intrastate case, it has the meaning provided in Texas Transportation Code Section 548.001(1). 37 TEX. ADMIN. CODE § 4.11(b)(8). That section defines “commercial motor vehicle” as a “self-propelled or towed vehicle, other than a farm vehicle with a gross weight, registered weight, or gross weight rating of less than 48,000 pounds, that is used on a public highway to transport … cargo if the vehicle … or combination of vehicles has a gross weight, registered weight, or gross weight rating of more than 26,000 pounds….” TEX. TRANSP. CODE ANN. § 548.001(1)(A) (West 2011).
The DPS also made the rules applicable to “a farm vehicle or combination of farm vehicles with an actual gross weight, a registered gross weight, or a gross weight rating of 48,000 pounds or more when operating intrastate….” 37 TEX. ADMIN. CODE § 4.11(c)(1)(B). “Farm vehicle” means any vehicle or combination of vehicles controlled and/or operated by a farmer or rancher being used to transport agriculture commodities, farm machinery, and farm supplies to or from a farm or ranch. 37 TEX. ADMIN. CODE § 4.11(b)(7). Among other products, “agricultural commodities” include “poultry or a poultry product that is produced in this state, either in its natural form or as processed by the producer.” Id. § 4.11(b)(10). The regulations do not define the term “farmer,” but do define the term “producer” of agricultural commodities. “Producer” is defined as “a person engaged in the business of producing or causing to be produced for commercial purposes an agricultural commodity [,]” and includes “the owner of a farm on which the commodity is produced….” Id. § 4.11(b)(12).
In short, since there is no dispute that the tractor-trailer was operated wholly intrastate, the relevant FMCSRs apply if the tractor-trailer at issue was a commercial motor vehicle that had at least a gross weight rating in excess of 26,000 pounds, but was not a farm vehicle with a gross weight rating of less than 48,000 pounds. Here, Trooper Ramey Bass listed the tractor-trailer’s gross vehicle weight rating at 80,000 pounds in his accident investigation report. In addition, records admitted at trial showed that the tractor portion weighed 16,800 pounds, and that the trailer itself weighed 12,600 pounds. Affixed to the trailer were twenty-two metal cages each weighing 850 pounds, for a total of 18,700 pounds. Thus, without any chickens, the actual weight of the tractor-trailer in question on the day of the collision was 48,100 pounds. This means that the FMCSRs apply here, even if the truck was classified as a farm truck. In addition, the truck was loaded with chickens, and Danny Lovell, the live haul manager, testified that there were approximately 6,930 chickens on the truck that weighed an estimated 40,194 pounds. Thus, the cages and the chickens alone weighed almost 59,000 pounds. Moreover, Jerry Adams testified that they were subject to the relevant FMCSRs. Consequently, we conclude that the relevant FMCSRs generally apply to the operation of the tractor-trailer in question on the day of the accident.
6. Legal and Factual Sufficiency Standards of Review
When a party attacks the legal sufficiency of the evidence to support an adverse jury finding on an issue for which it did not have the burden of proof at trial, it must show that no evidence supports the jury’s adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex.2011). The test for legal sufficiency of the evidence to support a fact is whether the evidence would enable reasonable and fair-minded people to determine the fact exists. See City of Keller, 168 S.W.3d at 807. The reviewing court considers the evidence in the light most favorable to the verdict, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not. Id. A “no evidence” challenge must be sustained when the record discloses a complete absence of evidence of a vital fact, the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a scintilla, or the evidence conclusively establishes the opposite of a vital fact. Id. at 810.
When challenging the factual sufficiency of the evidence supporting an adverse finding upon which the appealing party did not have the burden of proof, the appellant must demonstrate there is insufficient evidence to support the adverse finding. McIntyre v. Comm’n for Lawyer Discipline, 169 S.W.3d 803, 806 (Tex.App.-Dallas 2005, pet. denied). We review the factual sufficiency of the evidence to support a jury verdict by considering and weighing all the evidence in a neutral light, and we will set the verdict aside “only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). However, this court is not a fact finder, and we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998).
Discussion
The Burnetts requested the trial court to instruct the jury on Section 392.33. They also tendered proposed instructions, and objected to the omission of the relevant FMCSRs, but the trial court did not include a Section 392.33 instruction in the charge. Nevertheless, the trial court still included blanks for all three parties in the negligence and apportionment questions. The jury found all three parties liable. The Burnetts argue that common law and/or Section 392.33 set the independent duty of Pilgrim’s Pride here.
Pilgrim’s Pride contends that the Burnetts waived their argument by inadequately briefing their contentions. We disagree. The Burnetts cited the relevant sections of the FMCSRs and made their arguments in a logical, nonconclusory fashion. It is true that the Burnetts did not provide explicit citations to authority on exactly how the FMCSRs can create a duty here, but the duty issue is a question of law that we review de novo. It is also apparent upon reviewing the record that counsel for the Burnetts asked questions and elicited answers that demonstrated the FMCSRs applied to this case. They also obtained an admission that they applied from Jerry Adams, the shop manager who was required to keep the vehicles operating safely. Although the Burnetts’ briefing could have been more detailed, we conclude they satisfied the briefing standard of Rules 38.1 and 38.2. See TEX.R.APP. P. 38.1, 38.2.
As we stated above, Pilgrim’s Pride, as the owner of the tractor-trailer, had its own common law duty to refrain from allowing its vehicle to be operated on the road when it knew, or in the exercise of ordinary care, should have known of dangerous defects in the vehicle, although the tractor-trailer was operated by another driver at the time of the collision. See Sturtevant, 130 S.W.2d at 1018; Russell Constr. Co., 186 S.W.2d at 235–36; Continental Bus Sys., 325 S.W.2d at 161–62. The regulation provides that reflective material shall not be obscured by dirt or otherwise. 49 C.F.R. § 392.33(a). It can be said that the regulation supplies a particular standard of conduct for an existing common law duty. In other words, the jury could still consider the violation of Section 392.33 as evidence of negligence, because the jury could have found that a reasonable person of ordinary sensibilities, under the circumstances of this case, would have ensured that the reflective taping was not obscured by chicken feces. We conclude that Pilgrim’s Pride had a legal duty to safely equip its tractor-trailer and to comply with Section 392.33. Therefore, it was appropriate for the trial court to include separate blanks for Pilgrim’s Pride and Sherman in the negligence question and the apportionment question.
Since we conclude that Pilgrim’s Pride had its own independent legal duty here, we turn to Pilgrim’s Pride’s argument that the evidence is legally and factually insufficient to support any independent liability of Pilgrim’s Pride for its own negligence. The evidence, as described above, showed that Burnett saw the cab portion of the tractor-trailer and was focused on its lights. He testified that he did not see that the trailer occupied his lane until just prior to impact, because he did not see any reflective material. As we have stated, Adams testified that the reflective material gets dirty every time a trailer goes down a farm road and gets blanketed with dust and chicken feces. Clifton testified that he knew chicken feces often covered Pilgrim’s Pride’s trailers. Reader testified that the condition of the trailer was as good as he normally sees them. Thus, Pilgrim’s Pride knew the trailers were often covered in chicken feces. Yet the evidence also showed that it did not maintain a clear policy on how often the trailers should be washed. There was also testimony that could have led the jury to believe that the reflective material was obscured on the morning in question.
The Burnetts contend that Pilgrim’s Pride failed to preserve its factual sufficiency argument. Pilgrim’s Pride included its factual sufficiency challenge in its motion for new trial, which preserves a factual sufficiency challenge. See In re C.E.M., 64 S.W.3d 425, 428 (Tex.App.-Houston [1st Dist.] 2000, no pet.).
Based on this evidence, reasonable jurors could have concluded that (1) Pilgrim’s Pride knew chicken feces usually obscured the reflective material on its trailers when the trailer travelled down a farm road, (2) there was no specific policy pertaining to cleaning the reflective material, (3) Pilgrim’s Pride should have known that the reflective material was obscured on the morning in question in violation of FMCSR 392.33, its common law duty, or both, and (4) the violations were a proximate cause of the accident. Viewing the evidence in the light most favorable to the verdict, and separately viewing all the evidence in a neutral light, we conclude that legally and factually sufficient evidence supports the jury’s finding that Pilgrim’s Pride violated the regulation and its common law duty to safely equip the tractor-trailer.
Pilgrim’s Pride does not challenge causation or damages.
Conclusion
In summary, we conclude that Pilgrim’s Pride owed the Burnetts a legal duty to refrain from allowing its tractor-trailer to be operated when it knew or should have known of dangerous defects in the tractor-trailer’s condition, and that the failure to provide visible reflective taping, sheeting, or other material required by FMCSRs can be a basis for negligence liability. We also conclude that the evidence raised the issue of Pilgrim’s Pride’s breach of that duty, and thus it was properly submitted to the jury. In addition, the evidence is legally and factually sufficient to support the jury’s finding that Pilgrim’s Pride breached that duty and that the breach proximately caused harm in the amount of twenty percent. Pilgrim’s Pride did not challenge causation or damages.
In addition, since we conclude that there is legally and factually sufficient evidence to establish that Pilgrim’s Pride had a legal duty to clean the reflective tape, that it failed to do so, and that such failure was a proximate cause of the Burnetts’ injuries, we need not consider whether there is legally and factually sufficient evidence to show that it had a duty to engage in further health examinations, and eye examinations in particular, beyond what was required under the FMCSRs. See TEX.R.APP. P . 47.1.
Pilgrim’s Pride’s third issue is overruled.
INSTRUCTION IMPROPERLY PROVIDING JURY EFFECT OF ANSWER
In their fourth issue, Appellants argue that “the instruction concerning Appellees’ recovery improperly gives the jury the effect of their answers.” Specifically, Appellants contend that the following conditioning instruction gives the jury the effect of its answer:
Answer Questions 3, 4, & 5 [i.e. the damages questions] if you answered “Yes” for [Sherman], and/or [Pilgrim’s Pride] and answered:
1. “No” for [Burnett] to Question 1, or
2. 50 percent or less for [Burnett] to Question 2.
The Texas Supreme Court addressed this instruction and held that it does not improperly inform the jury of the effect of its answer. H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23–24 (Tex.1998). Appellants recognize this, but ask that we decline to follow Bilotto, because they assert that its holding is incorrect. As an intermediate court of appeals, we are bound by the Texas Supreme Court’s resolution of this issue. See In re K.M.S., 91 S.W.3d 331, 331 (Tex.2002).
Accordingly, Appellants’ fourth issue is overruled.
PREJUDGMENT INTEREST
In their fifth issue, Appellants allege that “Burnett’s death threats, which necessitated a delay in the process of the trial, warrant the suspension of pre-trial interest during the time of the delay.”
Standard of Review and Applicable Law
There are two legal sources for an award of prejudgment interest: (1) common law equitable principles, and (2) an enabling statute. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex.1998). In Johnson & Higgins, the Texas Supreme Court harmonized the common law prejudgment interest accrual scheme and the Texas Finance Code. Id. at 528–31 & n. 9; see TEX. FIN.CODE ANN. §§ 304.101–.107 (West 2006).
The instant case is governed by a statutory prejudgment interest scheme covering wrongful death, personal injury, and property damage cases. See TEX. FIN.CODE ANN. §§ 304.101–.107. Therefore, the award of prejudgment interest is not controlled by general common law equitable principles, but by the confines of the statute. See Johnson & Higgins, 962 S.W.2d at 530. The prejudgment interest statute in such cases provides that “[e]xcept as provided by Section 304.105 [outstanding settlement offers] or 304.108 [repealed section relating to tolling for trial delays], prejudgment interest accrues on the amount of a judgment during the period beginning on the earlier of the 180th day after the date the defendant receives written notice of a claim or the date the suit is filed….” TEX. FIN.CODE ANN. § 304.104. Prejudgment interest ends on the day preceding the date judgment is rendered. Id.
With regard to tolling or suspension of prejudgment interest, the original common law rule was that the “trial court [has] no discretion to lessen or increase the interest amount [or otherwise toll the accrual of prejudgment interest] for delays caused by either party.” Matthews v. DeSoto, 721 S.W.2d 286, 287 (Tex.1986). The legislature amended the statutory scheme and created what ultimately became Section 304.108. That section changed the common law rule in Matthews and gave the trial court discretion to toll the accrual of prejudgment interest due to delay caused by the parties. Specifically, the statute provided as follows:
§ 304.108. Accrual of Prejudgment Interest During Periods of Trial Delay.
(a) In addition to the exceptions provided by Section 304.105, a court may order that prejudgment interest does not accrue during periods of delay in the trial.
(b) A court shall consider:
(1) periods of delay caused by a defendant; and
(2) periods of delay caused by a claimant.
Act of April 23, 1999, 76th Leg., R.S., ch. 62, § 7.18, 1999 Tex. Gen. Laws 127, 233, repealed by Act of May 16, 2003, 78th Leg., R.S., ch. 204, § 6.03, 2003 Tex. Gen Laws 847, 862. However, Section 304.108 was repealed in 2003. The collision in the instant case occurred in 2004, and consequently, former Section 304.108 does not apply to this suit.
The repeal of Texas Finance Code Section 304.108 applies “in any case in which a final judgment is signed or subject to appeal on or after the effective date of this Act.” See Act of May 16, 2003, 78th Leg., R.S., ch. 204, § 6.04, 2003 Tex. Gen Laws 847, 862. The Act took effect on September 1, 2003. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(a), 2003 Tex. Gen. Laws 847, 898–99.
Discussion
Since the legislature repealed Section 304.108, we are in effect back to the common law on tolling in wrongful death, personal injury, and property damage cases. See AMX Enterprises, L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 511 (Tex.App.-Fort Worth 2009, no pet.) (stating that legislature’s repeal of Section 304.108 destroyed trial court’s discretion to toll prejudgment interest due to delays caused by parties’ conduct). That is, the trial court does not have discretion to toll prejudgment interest due to the delay of the parties. Matthews, 721 S.W.2d at 287.
Appellants nevertheless assert that the Burnetts delayed in changing counsel on several occasions and made death threats to defense counsel, which resulted in several defense counsel changes. These acts, they contend, were dilatory tactics that warranted equitable tolling of prejudgment interest, despite the statutory changes. But to allow equitable tolling or prejudgment interest in such a case, even after the legislature’s repeal of the statute, would be at odds with principles of statutory construction.
The cardinal rule to be observed in any case involving statutory interpretation is that a court must look to the intent of the legislature and must construe the statute so as to give effect to that intent. See Knight v. Int’l Harvester Credit Corp., 627 S.W.2d 382, 384 (Tex.1982). “When a right or remedy is dependent on a statute, the unqualified repeal of that statute operates to deprive the party of all such rights that have not become vested or reduced to final judgment.” Quick v. City of Austin, 7 S.W.3d 109, 128 (Tex.1998). To hold that the court would retain equitable power to toll prejudgment interest for delays in the trial by the conduct of the plaintiff in spite of the repeal of the statute authorizing such relief would be in contravention to the repeal of Section 304.108. See Concord Oil Co. v. Pennzoil Exploration & Prod. Co., 966 S.W.2d 451, 454 (Tex.1998) (holding equitable prejudgment interest is not recoverable if it would be directly at odds with a statute). In other words, such a construction would render the repeal of that section ineffectual.
Appellants also argue that to award the full amount of prejudgment interest would run counter to the policies of prejudgment interest—to encourage settlement and to fully compensate the injured party. See Johnson & Higgins, Inc., 962 S.W.2d 507, 528 (Tex.1998). Appellants further point out that prejudgment interest is not designed to punish the defendant. See id. These are correct statements of the law, but the Texas Supreme Court addressed this argument in Matthews and concluded that there is no incentive for the plaintiff to delay in order to accrue more prejudgment interest. Matthews, 721 S.W.2d at 287. Specifically, the court stated that “our prejudgment interest scheme does not create incentives for plaintiff delay,” and that “[f]ew if any plaintiffs would prefer to have defendants retain their funds in order to increase the amount of interest instead of obtaining the full compensation to which they are entitled as quickly as possible.” Id. The court continued, noting that the defendant has several tools to force the case to trial such as objecting to the granting of continuances, objecting to the passing of the case, and moving for a special trial setting. Id. Therefore, it concluded that since the legislature repealed Section 304.108, the trial court had no discretion to toll or suspend the accrual of prejudgment interest. See id.; AMX Enterprises, 283 S.W.3d at 511.
Appellants’ fifth issue is overruled.
COSTS FOR LIFTING BANKRUPTCY STAY
In their sixth issue, Appellants argue that the “trial court erred in assessing additional costs for the lifting of the [automatic] stay” in Pilgrim’s Pride’s bankruptcy proceeding.
Standard of Review and Applicable Law
The successful party to a suit shall recover of his adversary all costs incurred therein, except when otherwise provided.” TEX.R. CIV. P. 131. Texas statutes and rules delineate which items the court may and may not include as taxable costs. See Hatfield v. Solomon, 316 S.W.3d 50, 66 (Tex.App.-Houston [14th Dist.] 2010, no pet.). Costs within the meaning of rules of procedure 125 through 149 are those items in the clerk’s bill of costs. Id.; see also TEX.R. CIV. P. 125–149; TEX. CIV. PRAC. & REM.CODE ANN. § 31.007 (West 2008). Another statute delineating taxable costs provides that a court may include in any order or judgment all costs, including, among other expenses, court appointed masters, interpreters, and guardians ad litem, as well as “such other costs and fees as may be permitted by these rules and state statutes.” See TEX. CIV. PRAC. & REM.CODE ANN. § 31.007(b)(3), (4).
The term “costs” has a particular meaning. City of Houston v.. Maguire Oil Co., 342 S.W.3d 726, 747 (Tex.App.-Houston [14th Dist.] 2011, pet. denied). “Costs” usually encompass fees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by statute or the court’s rules; examples include filing and service fees. Id. However, “the general rule in Texas is that expenses incurred in prosecuting or defending a suit are not recoverable as costs unless recovery for those items is expressly provided for by statute, rule, or under principles of equity.” Gumpert v. ABF Freight Sys., Inc., 312 S.W.3d 237, 239 (Tex.App.-Dallas 2010, no pet.).
For example, costs do not generally include attorney’s fees. Westech Eng’g Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 206 (Tex.App.-Austin 1992, no writ); City of Houston v. Biggers, 380 S.W.2d 700, 705 (Tex.Civ.App.-Houston 1964, writ ref’d n.r.e.). Also, expert fees are generally not recoverable as costs, because they are incidental expenses in preparation for trial. See, e.g., Richards v. Mena, 907 S.W.2d 566, 571 (Tex.App.-Corpus Christi 1995, writ dism’d) (regardless of any good cause shown, costs of experts are incidental expenses in preparation for trial and not taxable court costs); King v. Acker, 725 S.W.2d 750, 755 (Tex.App.-Houston [1st Dist.] 1987, no writ) (plaintiffs in action for tortious interference with inheritance rights could not recover costs of handwriting experts, as those were litigation expenses); Whitley v. King, 581 S.W.2d 541, 544 (Tex.Civ.App.-Fort Worth 1979, no writ) (regardless of good cause shown, costs of experts are merely incidental expenses in preparation for trial and are not recoverable; thus, court was without authority to assess as costs the expenses of a surveyor who was not court-appointed but performed duties solely on plaintiffs’ behalf in trespass to try title suit). Similarly, costs of hiring a private investigator to locate and serve required court documents on a party are not recoverable as costs. Ex parte Williams, 866 S.W.2d 751, 753 (Tex.App.-Houston [1st Dist.] 1993, no writ). And premiums charged by a bonding company in order to obtain a supersedeas bond are not recoverable. See Hammonds v. Hammonds, 313 S.W.2d 603, 605 (Tex.1958). Finally, business liabilities that are not generated by a court or some court officer are also not recoverable. See Sterling Bank v. Willard M, L.L.C., 221 S.W.3d 121, 125 (Tex.App.-Houston [1st Dist.] 2006, no pet.).
There is a difference between deciding which costs to assess or tax, and separately, deciding who shall pay and in what proportion or amount (i.e. adjudging or allocating those costs). Gumpert, 312 S.W.3d at 242. Although a trial court has discretion, under Rule 141, to deviate from the successful party rule found in Rule 131 and adjudge or allocate costs among the parties as it deems appropriate for good cause, the power to tax costs does not include the power to tax or assess items normally not allowed under statute or rule. Id. Whether a particular expense is recoverable as court costs is a question of law, which is reviewed de novo. City of Houston, 342 S.W.3d at 747–48. The allocation of costs among the parties, on the other hand, is a matter for the trial court’s discretion and cannot be overturned on appeal absent an abuse of discretion. Id. at 748.
Discussion
The Burnetts primarily argue that, under equitable principles, Appellants should bear the costs of lifting the bankruptcy stay because of their dilatory tactics in initially refusing to agree to lift the stay. The Burnetts allege they incurred costs for legal services incurred in lifting the stay in the amount of $18,092.99 to Forshey Prostock, P.C., $650.00 to Silvas Law & Title, and $500.00 to Mark Aronowitz.
Specifically, after Pilgrim’s Pride filed for bankruptcy, the Burnetts filed their proof of claim in the bankruptcy court. They allege that Pilgrim’s Pride would not agree to modify the stay so the personal injury lawsuit could proceed. We have found no authority expressly supporting that the attorney’s fees incurred by the Burnetts in lifting Pilgrim’s Pride’s bankruptcy stay can be taxed against Pilgrim’s Pride, and the parties cite none. As we have stated, attorney’s fees are not generally considered taxable costs. Westech Eng’g Inc., 835 S.W.2d at 206. In addition, attorney’s fees are not fees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by statute or court’s rules. See Ex parte Williams, 866 S .W.2d at 753. Rather, the fees incurred in lifting the bankruptcy stay are more like the fees paid a private investigator to locate and serve court papers on a defendant. See id. In Ex parte Williams, as here, the Burnetts incurred necessary expenses in removing an obstacle to the resolution of their case. We hold that these expenses were “incurred [by the Burnetts] in prosecuting or defending a suit,” and therefore were not recoverable as “costs.”
We have recognized that the trial court has discretion, for good cause stated on the record, to allocate costs in a manner other than as provided by law or the Texas Rules of Civil Procedure. See TEX.R. CIV. P. 141; City of Houston, 342 S.W.3d at 748. But, as we have stated, this power to allocate costs in a manner different from the norm does not encompass the power to tax as “costs” items that are not normally allowed as taxable court costs. See City of Houston, 342 S.W.3d at 748. Even if Texas law recognized that such expenses can be awarded on equitable grounds, there is no evidentiary foundation in the record to support such a finding.
The Burnetts nevertheless argue, with minimal explanation in their brief, that the costs were incurred due to a violation of a discovery order. Particularly, they contend that the reason Pilgrim’s Pride delayed in lifting the stay was because it did not adequately disclose its insurance policy. Pilgrim’s Pride contended that it had a $2 million deductible on a $2 million policy. The Burnetts argued to the trial court in their hearing on costs that such an arrangement would be absurd and that they expended money and time to obtain their own copy of the policy. According to the Burnetts, once Pilgrim’s Pride was confronted with the true policy on the day of the lift stay hearing, it agreed to lift the stay. The Burnetts contend that the failure to disclose the true insurance policy was a violation of Texas Rule of Civil Procedure 194.2(g) and that the trial court could sanction Pilgrim’s Pride under Texas Rule of Civil Procedure 215.2(b)(2). That rule allows the trial court to assess costs against an abuser of the discovery process as a sanction. TEX.R. CIV. P. 215.2(b)(2). In essence, like Section 31.007, Rule 215.2(b)(2) is a rule that governs the award of costs, and the Burnetts argue that the trial court could have awarded the attorney’s fees they incurred in lifting the stay as costs under that rule.
However, Rule 215.2(b)(2) allows the trial court to charge “all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him.” Id. (emphasis added). As we have already held, the Burnetts’ attorney’s fees are not a taxable cost, and thus, there was no authority to award them as such under Rule 215.2(b)(2). In addition, the record does not demonstrate that the trial court awarded the Burnetts their attorney’s fees for lifting the stay based on Pilgrim’s Pride’s alleged violation of a discovery order.
Appellants’ sixth issue is sustained.
REIMBURSEMENT FOR UNNECESSARY RECORD
In their seventh issue, Appellants contend that “Appellees ordered a supplemental clerk’s record containing voluminous irrelevant and unnecessary documents for no purpose other than to needlessly increase costs and expenses to Appellants, and Appellants are entitled to reimbursement.” Among other purposes, the Burnetts contend that the majority of the documents they requested to be included in the supplemental court’s record were relevant to their cross-issues.
Standard of Review and Applicable Law
1. Taxing Costs on Appeal for Supplementing Record
This court possesses considerable discretion in taxing costs on appeal. See Recognition Commc’ns, Inc. v. Am. Auto. Ass’n, 154 S .W.3d 878, 894–95 (Tex.App.-Dallas 2005, pet. denied). A court of appeals must construe the rules governing supplementation of the appellate record liberally. El Paso Cnty v. Ontiveros, 36 S.W.3d 711, 714 (Tex.App.-El Paso 2001, no pet.). The court of appeals ordinarily awards costs to the prevailing party, but has the authority to tax costs differently for good cause. See TEX.R.APP. P. 43.4; see, e.g., Castillo v. Am. Garment Finishers Corp ., 965 S.W.2d 646, 655–56 (Tex.App.-El Paso 1998, no pet.).
An appellant who believes that an appellee has needlessly requested the supplementation of the clerk’s record is not without a remedy. If a party in a civil case requests documents that are not necessary to the appeal, the court of appeals may, regardless of the appeal’s outcome, tax the cost for the unnecessary documents against that party. TEX.R.APP. P. 34.5(b)(3), Goetz v. Goetz, 534 S.W.2d 716, 720 (Tex.Civ.App.-Dallas 1976, no writ). With those concepts in mind, the appellee nevertheless has the burden to present a sufficient record to show error requiring reversal on the issues raised in a cross-issue. Atlantic Richfield Oil & Gas v. McGuffin, 773 S.W.2d 711, 715 (Tex.App.-Corpus Christi 1989, writ dism’d by agr.).
2. Presenting Cross–Issues
Unless a party seeking to alter a trial court’s judgment files its own notice of appeal, we may not grant the party more favorable relief than did the trial court except for just cause. TEX.R.APP. P. 25.1(c); see also Brooks v. Northglen Ass’n, 141 S.W.3d 158, 171 (Tex.2004) (citing Dean v. Lafayette Place (Section One) Council of Co–Owners, Inc., 999 S.W.2d 814, 818 (Tex.App.-Houston [1st Dist.] 1999, no pet.). In Dean, cited with approval by the Texas Supreme Court, the court explained the rule as follows:
If an appellee is satisfied with the relief granted by the trial court, but merely wants to present additional, independent grounds for affirming the trial court’s judgment, no notice of appeal is required. The independent grounds for affirmance can be raised in a cross-point as long as the appellee is not requesting greater relief than that awarded by the trial court.
Dean, 999 S.W.2d at 818. Under this rule, an appellee’s failure to file a notice of appeal may warrant dismissal of the appellee’s cross-issues. Mid–Century Ins. Co. of Tex. v. Daniel, 223 S.W.3d 586, 589 (Tex.App.-Amarillo 2007, pet. denied). Several courts have applied this rule in holding that an appellee waived cross-issues by failing to file a notice of appeal in circumstances in which it is required. See, e.g., Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 737–38 (Tex.2001) (holding appellee satisfied with court’s judgment, despite erroneous application of four-year limitations period to unjust enrichment claims, did not preserve right to appeal statute of limitations issue where no notice of appeal of the issue was filed); Cities of Allen v. R.R. Comm’n of Texas, 309 S.W.3d 563, 576 (Tex.App.-Austin 2010), aff’d in part, rev’d on other grounds, Atmos Energy Corp. v. Cities of Allen, 353 S.W.3d 156 (Tex.2011) (holding appellees’ cross-issue was not properly before court because no notice of appeal was filed and appellees sought holding that trial court erred in issuing conclusion of law that was not merely an alternative basis for affirming judgment, but a ground for reversing trial court).
Discussion
Although their request properly did not contain all documents on file with the trial court clerk, Appellants designated several documents in the clerk’s record that they believed were relevant to the appeal. Their designations consumed a single 260 page volume. The Burnetts designated other documents, which amounted to five supplemental volumes to the clerk’s record, totaling approximately 1,000 pages. Of those pages, Appellants concede that approximately twelve pages are relevant to the appeal. They contend, however, that the cost of supplementing the remaining 988 pages should be taxed against the Burnetts because they are unnecessary to the disposition of the appeal. The Burnetts counter that the documents are relevant to their conditional cross-issues. The question is whether the Burnetts were required to file a notice of appeal on their cross-issues. If a notice of appeal was required and they failed to file it, the 988 pages are not relevant.
The Burnetts generally seek to affirm the judgment of the trial court. However, they raised three conditional cross-issues: (1) the trial court erred when it granted Pilgrim’s Pride’s motion for partial summary judgment holding that gross negligence, and thus exemplary damages, were not raised by the evidence as to Pilgrim’s Pride; (2) the trial court erred when it admitted expert testimony from Professor George regarding the role, as to causation, of Mr. Burnett’s consumption of half his prescribed prescription of methadone approximately eighteen hours before the accident; and (3) the trial erred when it admitted evidence of Mr. Burnett’s presumptively positive drug test results for barbiturates administered at the hospital after the collision. In substance, the Burnetts’ conditional cross-issues ask for reversal of rulings made by the trial court.
We note that the Burnetts contend we should only address those issues in the event that we decide a new trial is warranted.
By their cross-issues, the Burnetts do not present “additional, independent grounds for affirming the trial court’s judgment.” Instead, their cross-issues are more properly characterized as arguments that the trial court reversibly erred. Therefore, we hold that the Burnetts were required to file a notice of appeal. They failed to do so, and consequently, their cross-issues are not properly before us. Moreover, since their supplementation of the record related to their cross-issues, and those issues are not properly before us, we conclude that the Burnetts should bear the cost of supplementing the record under the facts of this case.
Appellants also contend that they should be awarded the attorney’s fees they incurred in preparing their motion filed in this court challenging an award of costs to the Burnetts for their unnecessary supplementation of the clerk’s record. In essence, Appellants seek their fees as sanctions under Section 10.001(1) of the Texas Civil Practice and Remedies Code. We have the authority to grant such sanctions, but decline to exercise that authority here. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 10.001–.006 (West 2002); see Merrell Dow Pharms. Inc. v. Havner, 953 S.W.2d 706, 733 (Tex.1997). The Burnetts’ cross-issues, and thus, many of the documents they requested in the supplemental clerk’s record, pertained to their cross-appeal, and would have been relevant had they properly perfected the appeal. The record does not show that the Burnetts sought to harass or to cause unnecessary delay or needlessly increase in the cost of the litigation.
Appellants’ seventh issue is sustained as to the shifting of $988 .00 in costs for unnecessary supplementation of the record to the Burnetts, but overruled as to their claim for attorney’s fees in preparing the motion.
CROSS–APPEAL
As we have already held, the Burnetts were required to file a notice of appeal on their cross-issues and failed to do so. TEX.R.APP. P. 25.1(c); see also Brooks, 141 S.W.3d at 171. Therefore, their cross-issues are not properly before us.
Moreover, the Burnetts conditioned their cross-issues on this court’s determination that a new trial is warranted. Since we have affirmed the jury award, and modified the trial court’s judgment only to delete an award of attorney’s fees awarded as costs by the trial court, we have not determined that a new trial is warranted. Consequently, even if the Burnetts’ cross-appeal was properly before us, we would not reach their conditional cross-issues. See TEX.R.APP. P. 47.1; Stokes v. Puckett, 972 S.W.2d 921, 927 (Tex.App.-Beaumont 1998, pet. denied) (holding “[w]e do not address appellees’ second and third cross-points because appellees state in their brief that these two points become ‘relevant or important if the court, for some reason, remanded this case back to trial.’ ”).
CONCLUSION
We have overruled Appellants’ issues one through five. However, we have sustained their sixth issue and have also sustained their seventh issue in part. Accordingly, we modify the judgment of the trial court to delete the following amounts from the award of costs: $18,092.99 for services rendered by Forshey Prostock, P.C., $650.00 for Silvas Law & Title, and $500.00 for Mark Aronowitz, and as modified, affirm the judgment of the trial court. We also assess $988.00 against the Burnetts for the cost of supplementing the clerk’s record for their cross-appeal.
Appellants filed a motion requesting an order directing the clerk not to file the designated items in the supplemental clerk’s record. We overruled the motion to the extent it sought an order to the clerk and carried the remainder of the motion for consideration with the merits. The motion also includes a request that costs of the record be shifted to the Burnetts. Finally, the motion includes a request for attorney’s fees Appellants incurred in challenging the award of costs for unnecessary supplementation. Because Appellants have raised these remaining arguments as issues on appeal, and we have addressed them, we dismiss the remaining portions of the motion as moot.
THIS CAUSE came to be heard on the oral arguments, appellate record and briefs filed herein, and the same being considered, it is the opinion of the Court that the judgment of the trial court should be MODIFIED and as MODIFIED, AFFIRMED.
It is therefore ORDERED, ADJUGDED and DECREED that the judgment of the court below be Modified to:
Delete the following amounts from the award of costs: $18,092.99 for services rendered by Forshey Prostock, P.C., $650.00 for Silvas Law & Title, and $500.00 for Mark Aronowitz, and as modified, affirm the judgment of the trial court. We also assess $988.00 against the Burnetts for the cost of supplementing the clerk’s record for their cross-appeal.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be AFFIRMED and that this decision be certified to the court below for observance.
