                                          NO. 07-04-0016-CV

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL E

                                          OCTOBER 13, 2005

                               ______________________________


                  DEAN FOODS COMPANY d/b/a BELL GANDY’S INC. and
                   TEXAS WORKER’S COMPENSATION COMMISSION

                                                                                    Appellants

                                                      v.

                                         DEBRA ANDERSON,

                                                                                    Appellee


                             _________________________________

               FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

                    NO. 2002-518,172; HON. SAM MEDINA, PRESIDING

                              _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

                                         Concurring Opinion

        I concur with the majority with regard to the “prevailing party,” but write separately

to explain that the majority’s decision also follows analogous precedent. We have



        1
        John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2004 ).
recognized that of the many statutes and rules which may entitle a prevailing party to

recover attorney’s fees, the analysis applied has been uniform. City of Amarillo v. Glick,

991 S.W.2d 14, 17 (Tex. App.–Amarillo 1997, no pet.) (dealing with the recovery of fees

under §143.015(c) of the Local Government Code). Furthermore, included among the

category of statutes and rules alluded to in City of Amarillo is Rule 131 of the Texas Rules

of Civil Procedure, and though it speaks in terms of a “successful party,” the definition

accorded that phrase is the same one accorded the term “prevailing party.” Id. So, given

the uniformity of definition utilized throughout the differing bodies of law, it seems only

logical that opinions implicating Rule 131 would be authoritative when deciding whether a

party prevailed under §408.221(c) of the Texas Labor Code. After all, they encompass the

same concept.

       Next, it consistently has been held that the beneficiary of a non-suit, e.g., the

defendant when a plaintiff files a non-suit, is the prevailing or successful party for purposes

of Rule 131. City of Houston v. Woods, 138 S.W.3d 574, 581 (Tex. App.–Houston [14th

Dist.] 2004, no pet.); Harris v. Shotwell, 490 S.W.2d 860, 861 (Tex. App.–Fort Worth 1973,

no writ); Reed v. State, 78 S.W.2d 254, 256 (Tex. App.–Austin 1935, writ dism’d). If we

are to retain the uniformity spoken of above, then we cannot but conclude that Anderson

was the successful or prevailing party here when Dean Foods filed its non-suit.



                                                  Brian Quinn
                                                  Chief Justice




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