                                           NO. 07-04-0349-CV

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                  PANEL E

                                         SEPTEMBER 29, 2005

                                ______________________________


                          AMERICAN HOME ASSURANCE COMPANY,

                                                                                      Appellant

                                                      v.

                                          EDWARD VAUGHN,

                                                                                      Appellee


                             _________________________________

                FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;

                   NO. 52,395-C; HON. PATRICK A. PIRTLE, PRESIDING

                               _______________________________

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

                                          Concurring Opinion

        I concur with the majority but write separately to explain that the majority’s decision

also follows analogous precedent. We have recognized that of the many statutes and rules

which may entitle a prevailing party to recover attorney’s fees, the analysis applied has


        1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of A ppe als, sitting by as signme nt. Tex. Gov’t Code
Ann. §75.00 2(a)(1 ) (Vernon Supp. 2004 ).
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 Edward Vaughn

was the successful or prevailing party here when American Home Assurance Company

filed its non-suit.

                                                   Brian Quinn
                                                   Chief Justice




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