Elizabeth Jones Boyce v. Viki Livesay Eberstein and Karen Livesay Shuford ( 2021 )

Affirmed and Opinion Filed November 4, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00486-CV
ELIZABETH JONES BOYCE, Appellant
V.
VIKI LIVESAY EBERSTEIN AND KAREN LIVESAY SHUFORD,
Appellees
On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. DC-17-00957
OPINION
Before Justices Schenck, Pedersen, III, and Garcia
Opinion by Justice Garcia
Appellee Viki Livesay Eberstein sued her half-sister, appellant Elizabeth
Jones Boyce, for alleged malfeasance in managing a trust set up by their mother.
Eberstein eventually nonsuited all of her claims, and the trial court ruled that the
trust would be taxed with a $121,000 guardian ad litem fee. On appeal, Boyce raises
one issue complaining about that ruling. We affirm, holding that Rule 141’s good-
cause standard is satisfied in this case because the trust was benefited by the guardian
ad litem’s services.
I. Background
A. Factual Allegations
Eberstein alleged the following facts in her last amended petition:
Appellees Eberstein and Karen Livesay Shuford are the daughters of Vivian
Jones by her first husband. Appellant Boyce is Jones’s daughter by her second
husband, who died in 2002.
In 2003, Boyce caused Jones to execute a will that disinherited Eberstein and
left most of Jones’s property to Boyce. In 2006, Jones created the Vivian Jones
Management Trust, over which Jones and Boyce are trustees. Boyce and Shuford
are the primary beneficiaries of the Trust upon Jones’s death.
After Jones was diagnosed with primary memory loss in 2014, Boyce began
abusing her position as trustee and as Jones’s attorney in fact. For example, Boyce
borrowed money from Jones, did not pay interest on the loans as promised, and sold
the security for the loans.
B. Procedural History
1. The Litigation up to the Nonsuit
In January 2017, Eberstein, acting individually and as Jones’s next friend,
sued Boyce on theories including breach of fiduciary duty and tortious interference
with inheritance rights.
Boyce answered and filed a motion for appointment of a guardian ad litem for
Jones. In the motion, Boyce stated that she did not dispute that Jones was an
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incapacitated individual unable to represent herself. The trial court eventually
appointed attorney Richard Capshaw as Jones’s guardian ad litem.
In September 2019, the trial court set the case for trial on January 21, 2020.
In December 2019, Eberstein filed her seventh amended petition, which
remained her live pleading when the lawsuit ended. In that pleading, Eberstein
asserted claims for (1) money had and received (against Boyce in her capacity as
trustee), (2) declaratory judgment (against Boyce both individually and in her
capacity as trustee), and (3) unjust enrichment (against Boyce individually).
Eberstein also sought imposition of a constructive trust.
On January 14, 2020, Eberstein filed an emergency motion for continuance of
the trial. The docket sheet indicates that the trial was reset for February 4, 2020.
On February 3, 2020, Eberstein nonsuited all of her claims without prejudice.
2. The Dispute over Costs
After Eberstein nonsuited her claims, Capshaw filed his final report and an
application for his fee in the amount of $121,478.60.
Boyce then filed a motion asking the trial court to tax Capshaw’s fee against
Eberstein as costs pursuant to Texas Rules of Civil Procedure 162 and 173.6.
Eberstein filed a combined response and cross-motion asking the trial court to tax
Capshaw’s fee against Boyce pursuant to the same rules. Boyce filed a combined
reply and response that cited no additional legal authorities.
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A visiting judge heard Capshaw’s application and the parties’ competing
motions about who should pay Capshaw’s fee. No one objected to the
reasonableness of Capshaw’s fee; Eberstein and Boyce disagreed only about who
should pay it. The judge orally ruled that the Trust would pay Capshaw’s fee, and
he gave the following explanation:
I believe that there was some merit to the claims that were brought by
the plaintiff [Eberstein]. I think the party that is in the best position to
pay this is the [Trust], so the Court orders that the ad litem’s fee be paid
out of the [Trust].
He then signed an order taxing Capshaw’s fee to the Trust. The order recited that
there was good cause to tax Capshaw’s fee to the Trust and that “such good cause
was stated on the record.”
Boyce filed a motion for reconsideration, which a different visiting judge
heard and denied without explanation.
Boyce appealed.
II. Analysis
Boyce’s sole issue on appeal argues that the trial court abused its discretion
by taxing Capshaw’s fees against Boyce as trustee of the Trust.
A. Standard of Review
We review a trial court’s order allocating costs for abuse of discretion.
Bertrand v. Bertrand, 449 S.W.3d 856, 870 (Tex. App.—Dallas 2014, no pet.). A
trial court abuses its discretion if it acts in an arbitrary or unreasonable manner
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without reference to any guiding rules or principles. Walker v. Gutierrez, 111
S.W.3d 56, 62 (Tex. 2003).
B. Applicable Law
“Costs” usually refers to fees and charges required by law to be paid to the
courts or their officers, the amount of which is fixed by statute or rule. Bundren v.
Holly Oaks Townhomes Ass’n, Inc., 347 S.W.3d 421, 440 (Tex. App.—Dallas 2011,
pet. denied). “The court may tax a guardian ad litem’s compensation as costs of
court.” TEX. R. CIV. P. 173.6(c); see also TEX. CIV. PRAC. & REM. CODE ANN.
§ 31.007(b)(3) (“A judge of any court may include in any order or judgment all costs,
including . . . guardians ad litem . . . .”).
The parties focus on three rules of civil procedure that address the taxing of
costs:
• “The successful party to a suit shall recover of his adversary all
costs incurred therein, except where otherwise provided.” TEX.
R. CIV. P. 131.
• “The court may, for good cause, to be stated on the record,
adjudge the costs otherwise than as provided by law or these
rules.” TEX. R. CIV. P. 141.
• “Any dismissal pursuant to this rule [governing nonsuits] which
terminates the case shall authorize the clerk to tax court costs
against dismissing party unless otherwise ordered by the court.”
TEX. R. CIV. P. 162.
When interpreting rules of procedure, we apply the same rules of construction
that govern the interpretation of statutes. Ford Motor Co. v. Garcia, 363 S.W.3d
573, 579 (Tex. 2012). Accordingly, we look to the rules’ plain language and construe
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them according to their plain or literal meaning. Id. Additionally, the rules of civil
procedure should be given a liberal construction “to obtain a just, fair, equitable and
impartial adjudication of the rights of litigants under established principles of
substantive law” as quickly and inexpensively as practicable. TEX. R. CIV. P. 1.
C. The Parties’ Arguments and Counterarguments
Boyce’s argument that the trial court erred runs as follows: Rule 162 sets up
a general rule that costs should be taxed against a nonsuiting party. The trial court
may tax costs differently only on a showing of good cause, per Rule 141. Eberstein
failed to show good cause, so the trial court erred by finding good cause and by
taxing Capshaw’s fee to the Trust instead of to Eberstein.
Eberstein responds that Boyce has misread the rules. According to Eberstein,
Rule 162 gives the trial court broad authority not to tax costs against a nonsuiting
party. Because Rule 162 allows the trial court not to tax costs against a nonsuiting
party, an order taxing costs to some other party does not tax costs “otherwise than
as provided by law or these rules”; thus, Rule 141 and its good-cause standard do
not apply. Instead, only a generous abuse-of-discretion standard applies, and here,
Eberstein contends, adequate reasons justified the trial court’s order taxing costs
against the Trust. Eberstein argues in the alternative that the trial court did not abuse
its discretion even if Rule 141’s good-cause standard applies.
In reply, Boyce argues that Eberstein’s first appellate argument is not properly
before this Court because it is inconsistent with the argument she made in the trial
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court. Boyce points to the first hearing, at which Eberstein’s lawyer argued that Rule
162 “must be informed by Rule 141” and that the trial court had discretion to tax
Capshaw’s fee as it saw fit “if . . . there’s good cause.” Boyce then goes on to argue
that Eberstein’s first argument is wrong on the merits as well.
Eberstein obtained leave to file a surreply brief, and in it she argues that her
first appellate argument is properly before this Court under the principle that an
appellate court must uphold a correct trial-court judgment on any legal theory before
it, even if the trial court gave an incorrect reason for its judgment.
D. Evaluating the Trial Court’s Order Under Rule 141’s Good-Cause
Standard
If the trial court’s order can be upheld under Rule 141’s good-cause standard,
we need not address Eberstein’s argument that Rule 141 does not apply in nonsuit
situations governed by Rule 162 or Boyce’s argument that Eberstein forfeited that
argument in the trial court.
Because we conclude that the trial court’s order should be affirmed even if
Rule 141’s good-cause standard applies, we assume without deciding that the trial
court had to tax costs against Eberstein unless good cause was shown under Rule
141.
1. Judicial Interpretations of Rule 141’s Good-Cause Standard
Although many appellate opinions address Rule 141, not many decide
whether particular facts and circumstances, if proved, constitute “good cause,” i.e.,
a legally sufficient reason to tax costs contrary to the default rules. See cause,
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BLACK’S LAW DICTIONARY (8th ed. 2004) (“good cause. A legally sufficient
reason”). We summarize some of those decisions as follows:
• A prevailing defendant’s conduct that unnecessarily prolongs a
trial is good cause to order it to pay court costs. Rogers v.
Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex. 1985). Indeed,
the supreme court later remarked that Rule 141 good cause is
typically found when the prevailing party has unnecessarily
prolonged the proceedings, unreasonably increased costs, or
otherwise done something that should be penalized. Furr’s
Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 377 (Tex. 2001)
(citing Rogers, 686 S.W.2d at 601, among other cases).
• A party’s inability to pay costs can be good cause if the costs in
question are ad litem fees. See, e.g., Davis v. Henley, 471 S.W.2d
883, 885–86 (Tex. App.—Houston [1st Dist.] 1971, writ ref’d
n.r.e.); see also Dover Elevator Co. v. Servellon, 876 S.W.2d
166, 170 (Tex. App.—Dallas 1993, no writ) (citing Davis);
Dallas Area Rapid Transit v. Williams, No. 05-96-01485-CV,
1998 WL 436917, at *3–4 (Tex. App.—Dallas Aug. 4, 1998, pet.
denied) (not designated for publication) (following Davis). This
rule is based at least in part on the public policy that ad litems
should be reasonably sure of receiving payment for their
services. Davis, 471 S.W.2d at 885.
• “Certainly, fairness can be good cause, but the record must
substantiate the connection.” Roberts v. Williamson, 111 S.W.3d
113, 124 (Tex. 2003). In Roberts, the trial court assessed some
of a guardian ad litem’s fee against the prevailing parties based
on the premise that the guardian ad litem was “there for the
benefit of all the parties.” Id. at 123. But the trial court’s premise
was wrong; the guardian ad litem was appointed to protect a
child’s interests. Id. at 124. Thus, the trial court’s costs ruling
was reversible error. However, the supreme court was willing to
assume for purposes of the case that an incidental benefit to a
prevailing party could constitute good cause in an appropriate
case. Id.• Good cause to make both sides liable for a receiver’s fee as costs
was shown where both sides benefited from the receiver’s work.
Rusk v. Runge, No. 14-02-00481-CV, 2003 WL 22672182, at *5
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(Tex. App.—Houston [14th Dist.] Nov. 13, 2003, pet. denied)
(mem. op.).
• Good cause to order each party to bear its own costs was shown
where (1) plaintiff prevailed on only one of two claims and
(2) the trial court concluded that the claim the plaintiff prevailed
on was de minimis. In re Peter & Camella Scamardo, FLP, No.
10-17-00160-CV, 2018 WL 1528476, at *10 (Tex. App.—Waco
Mar. 28, 2018, orig. proceeding) (mem. op.); see also Ritchie v.
Yazdi, No. 14-05-01232-CV, 2007 WL 1470267, at *5 (Tex.
App.—Houston [14th Dist.] May 22, 2007, no pet.) (mem. op.)
(good cause to order each party to bear its own costs was shown
where plaintiff sued three defendants on multiple claims and only
one claim against one defendant survived to be submitted to the
jury).
• A losing party’s emotional fragility is not good cause to depart
from the default rules about costs. Furr’s Supermarkets, 53
S.W.3d at 377.
• A losing party’s inability to pay court costs is not good cause to
depart from the default rules about costs. Id. Nor is a prevailing
party’s relatively superior ability to pay costs good cause. Dean’s
Campin’ Co. v. Hardsteen, No. 01-00-01190-CV, 2002 WL
1980840, at *7 (Tex. App.—Houston [1st Dist.] Aug. 29, 2002,
pet. denied) (not designated for publication).
• In the case of a prevailing defendant and an outstanding guardian
ad litem fee, good cause to shift the fee to the defendant is not
satisfied by the incidental “benefit” to the defendant that the
judgment will not be subject to attack for lack of a guardian ad
litem. Dover Elevator, 876 S.W.2d at 170–71.
• A trial court’s belief that all parties are entitled to their day in
court is not good cause to tax costs contrary to Rule 131. Mora
v. Villalobos, No. 13-02-00691-CV, 2005 WL 2000759, at *6
(Tex. App.—Corpus Christi–Edinburg Aug. 22, 2005, pet.
denied) (mem. op.).
• A plaintiff’s rejection of a settlement offer and subsequent
recovery of a lower amount is not good cause to tax costs
contrary to Rule 131. Nicholson v. Tashiro, 140 S.W.3d 445, 448
(Tex. App.—Corpus Christi–Edinburg 2004, no pet.).
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Both Boyce and Ebertstein discuss City of Houston v. Woods, 138 S.W.3d
574, 581–82 (Tex. App.—Houston [14th Dist.] 2004, no pet.). In that case, David
Melasky served as both guardian ad litem and attorney ad litem for a minor plaintiff,
and he eventually nonsuited the minor’s claims against the City of Houston. Id. at
577–78. After a hearing, the trial court taxed two-thirds of Melasky’s fee against the
City, and its written order recited good cause in that (1) Melasky’s services were
necessary to protect the minor’s interests and (2) the City of Houston had the
financial ability to pay those fees. Id. at 578–79. The City appealed, and the court of
appeals affirmed the apportionment of Melasky’s guardian ad litem fee based on the
following reasoning:
In its order, the trial court based its good cause finding on the City’s
financial ability to pay costs and fees. However, without the record of
the evidentiary hearing, we must presume the evidence supports a
finding of good cause.
Id. at 582 (footnote omitted). This passage is not entirely clear. The court may have
meant that a prevailing defendant’s financial ability to pay a guardian ad litem’s fee,
without more, is sufficient good cause under Rule 141 to justify shifting that cost to
the defendant. Or the court may have meant that the missing reporter’s record
required the appellate court to presume both that the trial court made a different oral
good-cause finding at the hearing and that this presumed finding was supported by
sufficient evidence. In any event, Woods is not binding on this Court, and we do not
consider it instructive in this case.
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2. Applying the Law to the Facts
The trial judge stated on the record two good-cause reasons to tax the guardian
ad litem’s fee to the Trust: (1) Eberstein’s claims had some merit, and (2) the Trust
was “in the best position to pay.” At the hearing in this case, Eberstein argued in
support of one additional reason that there was good cause to tax the fee to the Trust:
she contended that the Trust benefited from the guardian ad litem’s involvement in
the case.
Although the trial court did not expressly adopt Eberstein’s argument, the
Furr’s Supermarkets opinion indicates that we may nevertheless consider it as a
possible support for the trial court’s order. See 53 S.W.3d at 376 (supreme court
considered two good-cause arguments that losing party made in the trial court even
though trial court expressly adopted only one of those arguments); see also
Leachman v. Stephens, No. 02-13-00357-CV, 2016 WL 6648747, at *16 (Tex.
App.—Fort Worth Nov. 10, 2016, pet. denied) (mem. op.) (“Even if the trial court
ordered Appellant to pay his costs for the wrong reason, a proper basis exists;
accordingly, we will not overturn the trial court’s decision to assess costs against
Appellant.”); Luxenberg v. Marshall, 835 S.W.2d 136, 141–42 (Tex. App.—Dallas
1992, orig. proceeding) (denying mandamus relief where trial court’s order was
expressly based on an invalid reason but the record supported other valid bases for
the order); M.J.R.’s Fare of Dallas, Inc. v. Permit & License Appeal Bd. of Dallas,
823 S.W.2d 327, 331 (Tex. App.—Dallas 1991, writ denied) (“We affirm the trial
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court’s judgment if we can sustain it on any theory suggested by the pleadings and
evidence and authorized by law.”). We agree with Eberstein’s benefit-to-the-Trust
argument and affirm on that basis.
As noted above, the supreme court has left open the question whether an
incidental benefit from a guardian ad litem’s services can constitute good cause.
Roberts, 111 S.W.3d at 124. In Dover Elevator, we held that the “benefit” of making
the judgment secure against later attack for lack of a guardian, without more, was
not sufficient good cause to support taxing costs against a prevailing defendant. 876
S.W.2d at 170–71. But we did not close the door on the possibility that some other
kind of benefit might be sufficient to constitute good cause.
The Houston Fourteenth Court of Appeals’ decision in Rusk v. Runge,
however, indirectly supports the proposition that a benefit conferred by an ad litem
can constitute Rule 141 good cause. In that case, the trial court appointed a receiver
for the community property of divorcing spouses, the court of appeals held that the
appointment was an abuse of discretion, and on remand the trial court ruled that both
husband and wife would be jointly and severally liable for the receiver’s fee because
they both benefited from the receiver’s services. 2003 WL 22672182, at *1, *5. The
husband appealed, and the court of appeals agreed with the husband that he was the
“successful party” for Rule 131 purposes. Id. at *4. But the appellate court still
affirmed the costs order because it concluded that the record supported the trial
court’s good-cause finding that the receiver benefited both parties. Id. at *5. The
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appellate court listed several such benefits, including (1) the receiver tried to protect
the assets against dissipation and (2) the husband used the receivership as a shield to
protect assets from creditors and prevent foreclosures. Id. We agree with Rusk’s
reasoning and conclude that Rule 141 good cause to shift a guardian ad litem’s fee
can consist of a benefit to a party otherwise entitled to recover court costs. That
benefit, of course, must be something besides the “benefit” of receiving a judgment
not subject to challenge for lack of a guardian. See Dover Elevator, 876 S.W.2d at
171.
Here, Eberstein argued to the trial court that Capshaw’s services benefited the
Trust in ways other than making the judgment secure against later attack for lack of
a guardian ad litem. In particular, Eberstein argued that Capshaw’s work led to an
improvement in the Trust’s security regarding a debt Boyce owed to the Trust.
Eberstein’s lawyer explained that the following sequence of events occurred:
• Boyce borrowed $1.7 million from Jones to acquire property, and
the loans were secured by two parcels of property in Dallas
County.
• Jones assigned the loans to the Trust.
• Boyce caused the Trust to release its lien on one of the two
parcels of property securing the loans and improperly tried to
substitute her primary residence as collateral for the loans.
• One of the results of Capshaw’s activities as guardian ad litem
was that Boyce filed a new deed of trust that properly secured the
loans with property that would not be subject to a homestead
exemption.
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Although Eberstein’s lawyer was not placed under oath before he made these
statements, we conclude that the absence of objection waived the oath requirement.
See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam). Capshaw also
supported Eberstein’s position with his comments at the hearing:
I tend to agree with both sides in the sense of that the end result of all
of this was the substitution of the deed of trust for one piece of property
for the other. . . . But from the standpoint of preserving that—that—that
corpus of money [in the Trust], I believe we were able to achieve that.
Again the oath requirement was waived, so the trial court could credit Capshaw’s
unsworn testimony. And, finally, Boyce’s own lawyer confirmed that the collateral
for the debt had changed during the litigation:
Nothing has changed [since the beginning of the lawsuit], except one
piece of property has some different security on it than it had before the
lawsuit was filed.
We conclude that the record contains some evidence that Capshaw’s
involvement in the case benefited the Trust because it led to an improvement in the
Trust’s secured position regarding a debt owed to the Trust. And we hold that this
benefit to the Trust is sufficient to constitute good cause within the meaning of Rule
141. As the supreme court said in Roberts, “fairness can be good cause, but the
record must substantiate the connection.” 111 S.W.3d at 124. Here, the record
substantiates that Capshaw’s services led to a specific and identifiable benefit to the
Trust. We conclude that the trial court, in the exercise of its discretion, could
reasonably conclude that this benefit to the Trust made it fair to tax the guardian ad
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litem’s fee against the Trust rather than against Eberstein. See Rusk, 2003 WL
22672182, at *5.
Accordingly, we hold that the trial court did not abuse its discretion by taxing
Capshaw’s fee to the Trust, and we overrule Boyce’s sole issue on appeal.
III. Disposition
We affirm the trial court’s judgment.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
Schenck, J., dissenting
200486F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ELIZABETH JONES BOYCE, On Appeal from the 95th District
Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-17-00957.
No. 05-20-00486-CV V. Opinion delivered by Justice Garcia.
Justices Schenck and Pedersen, III
VIKI LIVESAY EBERSTEIN AND participating.
KAREN LIVESAY SHUFORD,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees Viki Livesay Eberstein and Karen Livesay
Shuford recover their costs of this appeal from appellant Elizabeth Jones Boyce.
Judgment entered November 4, 2021.
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