                                                                                                     ACCEPTED
                                                                                                 05-17-00281-CV
                                                                                       FIFTH COURT OF APPEALS
                                                                                                DALLAS, TEXAS
                                                                                                6/6/2018 5:03 PM
                                                                                                      LISA MATZ
                                                                                                          CLERK

                          No. 05-17-00281-CV
__________________________________________________________________
                                                          FILED IN
                                                   5th COURT OF APPEALS
                      IN THE COURT OF APPEALS          DALLAS, TEXAS
             FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS
                                                   6/6/2018 5:03:02 PM
                             AT DALLAS                   LISA MATZ
                                                           Clerk
__________________________________________________________________

                                   KOJO W. NKANSAH,

                                                                          Appellant,

                                               v.

                     TEXAS WORKFORCE COMMISSION, et al.,

                                                      Appellees.
   _________________________________________________________________

                     APPELLEES’ JOINT MOTION
                          FOR REHEARING
              TO MODIFY OR CORRECT THE JUDGMENT
__________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

       The Appellees, the City of Dallas (the “City”) and the Texas Workforce

Commission (the “TWC”), submit this motion in response to the Court’s Judgment

dated May 31, 2018, which taxes the costs of appeal of Appellant, Kojo W. Nkansah

(“Nkansah”), against the TWC and the City. The Appellees request that the Court

reconsider the judgment for costs because the taxation of costs against them as

prevailing parties is not required by law or supported by good cause.




Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment                Page 1
                          ISSUE PRESENTED FOR REVIEW

       The Court improperly taxed costs against the prevailing parties, the City and the

TWC.

                                     INTRODUCTION

       This matter arises from Nkansah’s appeal of his denial of unemployment

benefits by the TWC following his termination by the City for misconduct in the

workplace. On December 30, 2016, the trial court granted the Appellees’ joint motion

for summary judgment in the underlying case. On March 16, 2017, Nkansah filed his

notice of appeal. After the parties fully briefed the issues, this Court issued its

Memorandum Opinion on May 31, 2018, resolving all Nkansah’s issues against him,

and affirming the trial court’s judgment in favor of the Appellees. Although this

Court resolved this appeal in favor of the City and the TWC in its Judgment dated

May 31, 2018, the Court ordered that Nkansah recover his costs of this appeal from

the City and the TWC.

                          ARGUMENT AND AUTHORITIES

       Nkansah should not recover his costs of this appeal from the prevailing parties,

the City and the TWC, because taxation of costs against the prevailing parties is not

required by law or supported by good cause.              The rules of appellate procedure

provide:




Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment         Page 2
       The court of appeals’ judgment should award to the prevailing party costs
       incurred by that party related to the appeal, including filing fees in the
       court of appeals and costs for preparation of the record. The court of
       appeals may tax costs otherwise as required by law or for good cause.
       But the judgment must not require the payment of costs by a party who
       was entitled to proceed without payment of costs under Rule 20.1, and a
       provision in the judgment purporting to do so is void.

Tex. R. App. P. 43.4. The Court’s Judgment taxed costs against the City and the

TWC, when the City and TWC have prevailed in this appeal. While the Court may

“tax costs otherwise as required by law or for good cause,” id., neither the law nor

good cause support the taxation of costs against the Appellants in this appeal.

       There is no requirement under case law, statute, or rule that Nkansah’s costs be

taxed to the City or the TWC, who were the prevailing parties in this appeal. While

the Texas Labor Code provides that an individual claiming unemployment benefits

may not be charged a fee by “the commission or a representative of the commission”

or “a court or an officer of the court,” Tex. Lab. Code § 207.007(a), it does not

provide that the individual’s opposing parties are responsible for those costs.

       Nor is there good cause for Nkansah to be awarded his costs from the City and

the TWC. The City and the TWC have prevailed at every stage of this litigation – first

when Nkansah appealed the denial of his unemployment benefits to the trial court, and

now in this appeal of the trial court’s decision. It would be inequitable to require the

City and the TWC, despite their having prevailed at every stage of this litigation, to




Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment           Page 3
bear Nkansah’s costs in a matter that originally arose from Nkansah’s own misconduct

in the workplace.

                                          PRAYER

       For all the reasons stated herein, the City and the TWC respectfully request that

the Court modify or correct its Judgment dated May 31, 2018, to the extent that it

taxes the costs of this appeal incurred by Nkansah against the City and TWC.



                                           Respectfully submitted,

                                           LARRY E. CASTO
                                           Dallas City Attorney

                                           /s/ Dixon M. Merkt

                                           Barbara Rosenberg
                                           Texas Bar No. 17267700
                                           barbara.rosenberg@dallascityhall.com
                                           Dixon M. Merkt
                                           Texas Bar No. 24088899
                                           dixon.merkt@dallascityhall.com
                                           Assistant City Attorneys

                                           Dallas City Attorney’s Office
                                           1500 Marilla Street, Room 7D North
                                           Dallas, Texas 75201
                                           Telephone: 214-670-3519
                                           Telecopier: 214-670-0622

                                           ATTORNEYS FOR APPELLEE
                                           CITY OF DALLAS




Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment           Page 4
                                           Respectfully submitted,

                                           KEN PAXTON
                                           Attorney General of Texas

                                           JEFFREY C. MATEER
                                           First Assistant Attorney General

                                           BRANTLEY STARR
                                           Deputy First Assistant Attorney General

                                           JAMES E. DAVIS
                                           Deputy Attorney General for Civil Litigation

                                           JACK HOHENGARTEN
                                           Division Chief
                                           Tax Division

                                           /s/ Scott D. Simmons
                                           SCOTT D. SIMMONS
                                           Assistant Attorney General
                                           State Bar No. 24013512
                                           Tax Division
                                           P.O. Box 12548
                                           Austin, Texas 78711-2548
                                           PH: (512) 475-3694
                                           FAX: (512) 478-4013
                                           Scott.Simmons@oag.texas.gov

                                           ATTORNEYS FOR APPELLEE
                                           TEXAS WORKFORCE
                                           COMMISSION




Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment          Page 5
                             CERTIFICATE OF SERVICE

       I hereby certify that on June 6, 2018, a copy of the foregoing document was

served in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure (1)

through an electronic filing manager (EFM) upon each person listed below if the

email address is on file with the EFM or (2) by email (if the address is available) and

first-class mail upon each person below who does not have an email on file with the

EFM:


 Kojo W. Nkansah
 2801 Red River Street
 Mesquite, TX 75150
 Phone: 972-682-1096
 Kojonkansah1953@gmail.com
 Pro Se Appellant

 Scott D. Simmons
 Assistant Attorney General
 Tax Division
 P.O. Box 12548
 Austin, TX 78711
 scott.simmons@texasattorneygeneral.gov
 Attorney for Appellee Texas Workforce
 Commission


                                                  /s/ Dixon M. Merkt
                                                  Attorney for City of Dallas




Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment         Page 6
