Opinion issued December 22, 2015




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-15-00301-CV
                            ———————————
                         DAVID M. DIGGS, Appellant
                                        V.
                      VSM FINANCIAL, L.L.C., Appellee


             On Appeal from the County Civil Court at Law No 1
                           Harris County, Texas
                       Trial Court Case No. 1046110


                                   OPINION

      In a single issue, appellant David Diggs complains of the trial court’s failure

to award him costs as the prevailing party in the underlying proceedings. We

affirm the judgment as modified.
                                 BACKGROUND

      Plaintiff-appellee VSM Financial, L.L.C. sued defendant-appellant David

Diggs for breach of contract to recover on a credit-card debt. VSM’s petition and

Diggs’s answer both requested that costs of court be awarded.

       The parties filed cross-motions for summary judgment, and each submitted

proposed Final Summary Judgments. The trial court granted summary judgment in

Diggs’s favor and denied VSM’s summary judgment. The court signed Diggs’s

proposed judgment, but crossed out the language “that the Defendant recover his

costs of court and that Plaintiff is taxed with all costs of court for which let

execution issue.”

                    PARTIES’ ARGUMENTS AND ANALYSIS

       Diggs contends that the trial court erred by not awarding his requested costs

as the prevailing party. TEX. R. CIV. P. 131 (“The successful party to a suit shall

recover of his adversary all costs incurred therein, except where otherwise

provided.”)     Diggs acknowledges that the trial court may decline to award costs

to a prevailing party, but contends that there must be good cause and that good

cause must be stated on the record. TEX. R. CIV. P. 141 (“The court may, for good

cause, to be stated on the record, adjudge the costs otherwise than as provided by

law or these rules); see also Furr’s Supermarkets, Inc. v. Bethune, 53 S.W.3d 375,

376 (Tex. 2001) (holding trial court abused its discretion in failing to assess costs


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in favor of prevailing party because the “good cause” stated on the record by the

trial court did not constitute good cause as a matter of law).

      VMS Financial responds that the trial court did not err in refusing to award

Diggs costs because “the successful party must before the judgment is signed

present to the trial court an itemized list of costs incurred so the trial court can

determine which cause are includable in the judgment.” Because the record does

not reflect that Diggs did so, VMS contends that “the decision by the trial court to

exclude costs was not erroneous.” We note, however, that the clerk of the trial

court prepared and filed an itemized bill of costs after the trial court signed the

final judgment, which is contained in the clerk’s record filed on appeal.

      VMS cites Varner v. Howe, 860 S.W.2d 458, 466 (Tex. App.—El Paso

1995, no writ) in support of its argument that Diggs waived his recovery of costs

because the record does not reflect that Diggs provided an itemized list of costs to

the trial court before the judgment was signed. In Varner, however, the court of

appeals upheld the trial court’s award of costs, rejecting the challenge that there

was “no evidence to support an award of court costs.” Id. at 466. The court

interpreted the issue as complaining that the prevailing party’s pleadings “prayed

not for court costs but only for general relief which, he asserts, is insufficient to

support an award of costs.” Id. The court noted that costs are not an award of

affirmative relief. Id. The timing of the presentment of a bill of costs was not in


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dispute in that case, and unlike in Varner, here Diggs specifically demanded that

costs be awarded to him should he prevail.

      As Diggs observed in his reply brief, our court has rejected any construction

of Varner as requiring that an itemized bill of costs be presented to the trial court

before entry of judgment. See Madison v. Williamson, 241 S.W.3d 145, 158 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied). As we noted in that case, “In

response to a request for an award of costs, the court’s role is to adjudicate which

party or parties is to bear the costs of court, not to determine the correctness of

specific items.” See id. (citing Reaugh v. McCollum Expl. Co., 140 Tex. 322, 325,

167 S.W.2d 727, 728 (1943); Pitts v. Dallas Cty. Bail Bond Bd., 23 S.W.3d 407,

417 (Tex. App.—Amarillo 2000, pet. denied)). The trial court should state in its

judgment which party is to pay costs. See TEX. R. CIV. P. 131; Reaugh, 167 S.W.2d

at 728; Pitts, 23 S.W.3d at 417. The judgment should not state the amount taxed as

costs, but only that costs are awarded against a certain party. See Pitts, 23 S.W.3d

at 417. Taxing costs, as distinguished from adjudicating those costs, is a ministerial

duty of the clerk. Wood v. Wood, 159 Tex. 350, 358, 320 S.W.2d 807, 813 (1959);

see also TEX. R. CIV. P. 129, 149, 622.

      Thus, contrary to VSM’s assertion otherwise, the rules do not require a

successful party in a lawsuit to submit an accounting of its court costs to the trial

court and opposing counsel before the entry of a judgment adjudicating costs. See


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TEX. CIV. PRAC. & REM. CODE ANN. § 31.007(a); TEX. R. CIV. P. 129, 131, 149,

622. Instead, Texas Civil Practice and Remedies Code section 31.007(a) requires

the successful party to submit a record of its court costs to the court clerk so that

the clerk can perform its ministerial duty and tax costs in accord with Texas Rule

of Civil Procedure 622. See TEX. CIV. PRAC. & REM. CODE ANN. § 31.007(a); TEX.

R. CIV. P. 622. To the extent a party complains about the taxation of any specific

costs, the remedy is a motion to re-tax costs in the trial court. See Operation

Rescue–Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 937 S.W.2d 60,

87 (Tex. App.—Houston [14th Dist.] 1996) (“A motion to retax costs is one to

correct the ministerial act of the clerk of the court in tabulating costs.”), aff’d as

modified, 975 S.W.2d 546, 570 (Tex. 1998).

      Diggs requested that he be awarded costs of court in his answer to the suit.

Such a request sufficiently apprised the trial court of his demand that costs of court

be awarded to him should he prevail. Thus, we conclude that he did not waive his

request. The trial court did not find or otherwise indicate on the record any cause

for failing to award the costs. An award of costs to Diggs as the prevailing party

was thus mandated. We accordingly sustain Diggs’s sole issue.




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                                CONCLUSION

      We modify the trial court’s judgment to award costs of court to Diggs as

required by Rule 131 of the Texas Rules of Civil Procedure. We affirm the

judgment as modified.




                                            Sherry Radack
                                            Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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