FORD MOTOR COMPANY, ET AL. v. NUECES COUNTY, TEXAS--Appeal from County Court at Law No 2 of Nueces County

 NUMBER 13-04-640-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FORD MOTOR COMPANY, ET AL., Appellants,

v.

NUECES COUNTY, TEXAS, Appellee.

On appeal from the County Court at Law No. 2

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Castillo and Garza

Memorandum Opinion by Justice Garza

Appellants, Ford Motor Company, Charlie Thomas= Courtesy Ford, Inc. f/k/a Courtesy Ford Motors, Inc., Charlie Thomas= Courtesy Ford, Inc. d/b/a Padre-Ford-Mazda, Tradewinds Ford Sales, Inc. f/k/a Crosstown Ford Sales, Inc., and Bob Lacy Ford, Inc. (collectively AFord@), appeal the trial court=s denial of their motion to adjudicate costs. We affirm.

On July 2, 2002, Nueces County filed suit in district court against Ford, seeking injunctive and declarative relief for alleged violations of the Texas Deceptive Trade Practices Act and breach of warranties related to the sale of several Ford Crown Victoria Police Interceptors purchased by Nueces County. Ford removed the case to a federal court on July 9, 2002. The case was subsequently transferred to the Northern District of Ohio for pre-trial proceedings. On May 19, 2004, a federal court judge remanded the case to state court for lack of subject matter jurisdiction. The case was returned to district court on June 3, 2004. On November 3, 2004, Nueces County non-suited all of its claims. The district court entered a dismissal order on November 4, 2004. Subsequently, Ford sought to recover costs pursuant to Texas Rule of Civil Procedure 162. Tex. R. Civ. P. 162. Following a hearing, the court denied Ford=s motion and entered an order that the parties bear their own costs.

By one issue, Ford contends the trial court abused its discretion in denying its motion, which sought reimbursement of deposition costs in the amount of $10,270.70. See id. Rule 162 states that if a party takes a non suit, the court clerk is authorized to tax costs against that party, unless otherwise ordered by the court. City of Houston v. Woods, 138 S.W.3d 574, 581 (Tex. App.BHouston [14th Dist.] 2004, no pet.). As the Fourteenth Court of Appeals recently explained, AWhen a plaintiff abandons an action by obtaining a non-suit, that plaintiff is liable for all costs.@ Id. (citing Leon Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 580 (Tex. App.BSan Antonio 1997, no pet.)). The Fourteenth Court further noted that, if a plaintiff dismisses his claims against the defendant, Athe defendant is the successful party and should [also be allowed to] recover its costs under [rule 131].@ Id. (citing Tex. R. Civ. P. 131).

Rules 131 and 162 are qualified by rule 141, which provides that Athe court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules.@ See Tex. R. Civ. P. 141. Rule 141 has two requirements: (1) that there be good cause, and (2) that the good cause be stated on the record. Id.; Furr's Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 376 (Tex. 2001). AGood cause@ is an elusive concept that varies from case to case. Furr=s Supermarkets, Inc., 53 S.W.3d at 376. Typically, Agood cause@ means that the prevailing party unnecessarily prolonged the proceedings, unreasonably increased costs, or otherwise did something for which it should be penalized. Id.

We review a trial court=s determination of good cause and assessment of court costs for abuse of discretion. See State v. Castle Hills Forest, Inc., 842 S.W.2d 370, 372 (Tex. App.BSan Antonio 1992, writ denied). An abuse of discretion occurs if the trial court acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial judge may decide a matter within his discretion in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id. at 242. In reviewing rulings under rule 141, we evaluate the record to determine whether it supports the trial court=s decision. Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex. 1985); Gleason v. Lawson, 850 S.W.2d 714, 717 (Tex. App.BCorpus Christi 1993, no writ).

In the present case, the court stated the following reasons as good cause for each party to bear its own expenses: (1) Ford improperly removed the case to federal court; (2) Ford took discovery pursuant to orders issued by a court without subject matter jurisdiction, brought about by its own improper removal of the case to federal court; (3) Ford=s conduct in the case wrongfully and substantially delayed the proceedings; (4) Ford=s wrongful removal of the case substantially increased Nueces County=s costs; (5) Ford=s wrongful removal caused Nueces County to expend considerable time and effort to obtain remand to a court that had jurisdiction over the litigation; and (6) Nueces County obtained some of the relief it sought by Ford=s action after the lawsuit was filed.

From the foregoing, it is apparent that the trial court=s decision was heavily influenced by its conclusion that Ford=s trial tactics unnecessarily prolonged the litigation and increased the costs incurred by both sides. The record shows that the following considerations also support the trial court=s decision that Agood cause@ existed for making Ford bear its own costs:

1. Nueces County filed suit against Ford on July 2, 2002, seeking injunctive and declaratory relief.[1]

2. A hearing on Nueces County=s application for temporary injunction was scheduled for July 22, 2002.

3. On July 9, 2002, Ford removed the suit to federal court.

4. On July 11, 2002, Ford filed a motion for transfer and consolidation of the cases for pretrial procedures.

5. On July 11, 2002, Nueces County filed a motion to remand and a motion for expedited hearing on its motion to remand.

6. On July 15, 2002, Ford filed a motion to stay the proceedings in federal court and a memorandum in opposition to Nueces County=s motion for expedited hearing.

7. On August 8, 2002, Nueces County filed a motion to set hearing on its motion to remand.

8. On August 29, 2002, Ford filed a motion in opposition to Nueces County=s motion to set hearing on the motion to remand.

9. On August 30, 2002, Nueces County filed a notification of setting by the Multidistrict Litigation Panel (AMDL@) and a request for ruling on its motion for remand.

10. On October 8, 2002, the MDL Panel transferred the proceeding to the Northern District of Ohio and assigned the case to the Honorable Donald C. Nugent for coordinated or consolidated pretrial proceedings.

11. On February 13, 2003, Judge Nugent issued a discovery plan and order, pursuant to which Ford took 22 depositions of Nueces County employees.

12. On May 19, 2004, Judge Nugent ruled that the federal court did not have subject matter jurisdiction and remanded the case to state court, stating that:

(1) although Ford argues that the Federal Motor Vehicle Safety Act (the ASafety Act@) completely preempts Nueces County=s claims, the weight of authority supported the exact opposite conclusion: that Nueces County=s claims were not completely preempted the Safety Act;

(2) federal law did not create Nueces County=s causes of action because (a) Nueces County pled only state or common law causes of action, (b) the recall remedy requested by Nueces County is not properly considered when determining federal-question jurisdiction, and (c) the Safety Act does not provide citizens with a federal cause of action for a claim for safety related defects, or with a private right to recall defective vehicles;

(3) Nueces County=s right to relief under a state-law cause of action does not depend on the resolution of substantial questions of federal law;

(4) on the face of Nueces County=s complaints, the existence of in-state car dealers involved in the suit destroys complete diversity;

(5) the in-state car dealers were not fraudulently joined because Nueces County sought relief based on statutory state laws and, as such, had colorable warranty claims against the in-state dealers; and

(6) Nueces County sufficiently pleaded causes of action for breach of implied warranty of fitness for a particular purpose to give rise to colorable warranty claims against the in-state dealers. As such, the in-state car dealers were not fraudulently joined and complete diversity between Nueces County and Ford was lacking.

13. On November 3, 2004, Nueces County filed a notice of non-suit, effectively dropping all claims against Ford.

14. On November 4, 2004, the court dismissed the suit without prejudice.

Given these considerations, we believe that the record supports the trial court=s conclusion that Ford=s tactics substantially prolonged the litigation and unnecessarily increased the costs incurred by both sides. See Rogers, 686 S.W.2d at 601 (taxing costs against prevailing party whose trial tactics unnecessarily prolonged litigation); see also Lofton v. Norman, 508 S.W.2d 915, 922B23 (Tex. Civ. App.BCorpus Christi 1974, writ ref=d n.r.e.) (stating that the determination of a trial judge that a particular trial strategy substantially delayed proceedings or caused an unnecessary increase in costs should not be disturbed on appeal absent an abuse of discretion). We conclude that the trial court=s ruling was within its discretion. Accordingly, the judgment is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 17th_day of November, 2005.

[1] The record reflects that Nueces County filed its original petition on July 2, 2002; however, both Nueces County and Ford state in their brief that the petition was filed on July 3, 2002.