From Casetext: Smarter Legal Research

Perez v. City of Houston

Court of Appeals of Texas, Fourteenth District
Aug 12, 2021
No. 14-20-00399-CV (Tex. App. Aug. 12, 2021)

Opinion

14-20-00399-CV

08-12-2021

IVAN PEREZ, Appellant v. CITY OF HOUSTON, Appellee


On Appeal from the 127th District Court Harris County, Texas Trial Court Cause No. 2019-70048

Panel consists of Justices Wise, Jewell, and Spain. (Spain, J. dissenting).

MEMORANDUM OPINION

PER CURIAM

This is an appeal from an order signed February 20, 2020. On June 8, 2021, appellant filed a motion to dismiss the appeal. See Tex.R.App.P. 42.1. The motion is granted.

We dismiss the appeal.

MEMORANDUM DISSENTING OPINION

The prayer to appellant's motion to dismiss the appeal includes the following: "For these reasons, Appellant asks the Court to grant this Unopposed Motion to Dismiss, with each party bearing own costs on appeal." The certificate of conference reflects that appellee's counsel is not opposed to the motion.

The court properly grants the motion. But in the judgment dismissing the appeal, the Court errs in the taxation of costs. Texas Rule of Appellate Procedure 42.1(d) states, "Absent agreement of the parties, the court will tax costs against the appellant." Tex.R.App.P. 42.1(d).

I could write about why "not opposed" is different from "agree." I suspect most lawyers would be legitimately concerned if an appellate court held "not opposed" was synonymous with "agree." I also suspect a lot of lawyers would stop saying they were "not opposed," they would not necessarily "agree," and they would likely offer "no response." That would be a big waste of time.

But a picture can be worth the proverbial 1, 000 words:

CERTIFICATE OF CONFERENCE
I hereby certify that on June 1, 2021, we asked appellee's counsel Collyn Peddie whether she was opposed to the foregoing motion to dismiss. Ms. Peddie-
___Notified me that she is OPPOSED to the motion.
X_ Notified me that she is not opposed to the motion.
___Notified me that she is AGREED to the motion.
___Did not respond.
ZACHARY SMITH

Nothing indicates the City agreed "with each party bearing own costs on appeal." The court is simply wrong to disregard Rule 42.1(d).

I dissent to the portion of the judgment taxing costs against the City of Houston without its agreement.

Charles A. Spain, Justice


Summaries of

Perez v. City of Houston

Court of Appeals of Texas, Fourteenth District
Aug 12, 2021
No. 14-20-00399-CV (Tex. App. Aug. 12, 2021)
Case details for

Perez v. City of Houston

Case Details

Full title:IVAN PEREZ, Appellant v. CITY OF HOUSTON, Appellee

Court:Court of Appeals of Texas, Fourteenth District

Date published: Aug 12, 2021

Citations

No. 14-20-00399-CV (Tex. App. Aug. 12, 2021)