author: KENT C. SULLIVAN, Justice.

text:
    George Givens MILLER, Appellant, v. The STATE of Texas, Appellee.
    No. 14-08-00763-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 29, 2010.

      David L. Singer, Houston, for appellant.
    Lisa G. Porter, Houston, for state.
    Panel consists of Chief Justice HEDGES and Justices SEYMORE and SULLIVAN.
   SUBSTITUTE OPINION

KENT C. SULLIVAN, Justice.

We deny the State’s motion for rehearing, withdraw our opinion issued February 18, 2010, and issue this substitute opinion in its place.

A jury convicted George Miller of assaulting his son, Givens Miller. See Tex. Penal Code Ann. § 22.01 (Vernon Supp. 2009). The jury sentenced him to one day in jail, probated for thirty days. On appeal, George contends the trial court erred in denying his request for a jury instruction on the defense of consent. Finding error, we reverse and remand this cause to the trial court for proceedings consistent with this opinion.

I. Background

Givens, an eighteen-year-old, 210-pound football player, had a disagreement with his parents after one of his high-school football games. During the disagreement, George took away Givens’s cell phone and car keys. Thereafter, Givens repeatedly shouted expletives at his parents, such as “take your G.D. money and ‘f yourself with it.” He then bowed up in close proximity to George and, in a threatening tone, taunted him, saying “What the ‘f,’ man. I’m going to — you going to hit me, man? Are you going to hit me? What the ‘f,’ man.”

George replied, “No, I’m not going to hit you,” and shoved Givens away from him. At this point, Givens kicked and punched George in his side, and then, as Givens charged him, George punched Givens in the face. George threw two more punches, and the altercation ended.

After noticing Givens was bleeding from the mouth with several teeth loosened, George placed him in the car with his mother and asked her to take him to the hospital. George, a doctor, left to perform surgery at a different hospital. The police pulled Givens and his mother over on a routine traffic stop while they were on route. The police inquired about the son’s condition, and Givens told them he had been struck by his father. The officers called E.M.S., and E.M.S. personnel drove Givens the remaining distance to the hospital. After investigation, George was charged with the misdemeanor offense of assaulting a family member.

At trial, Givens testified that at the time of the incident he “was all jazzed up” from the game and “in an aggressive mood.” He acknowledged that his tone and conduct was threatening, and he testified that he “kind of wanted to hit [George]” and he “kind of wanted [George] to hit [him].” When he described the altercation, he testified that they “were ... fighting” and the punches were thrown “in the heat of combat.”

At the close of evidence, George objected to the jury charge because the court did not include an instruction on the defense of consent. The court denied his request for a consent instruction and overruled his objection. The jury convicted and sentenced him to one day in jail, probated for thirty days.

George contends the trial court erred by denying his request for an instruction on the defense of consent. Specifically, George argues that the underlying evidence raised a fact issue as to this defense. We agree.

II. Discussion

A. Jury Instruction

The victim’s effective consent or the actor’s reasonable belief the victim consented to the actor’s conduct is a defense to assault if the conduct did not threaten or inflict serious bodily injury. Tex. Penal Code Ann. § 22.06(a)(1) (Vernon 2003). An accused has the right to an instruction on any defense raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court thinks about the credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999). This rule was designed to ensure that the jury, not the judge, decides the credibility of the evidence. Id.; see Woodfox v. State, 742 S.W.2d 408, 409-10 (Tex.Crim.App.1987).

1. Consent

The evidence supporting a consent defense may be presented by the State or defense counsel. See Granger, 3 S.W.3d at 38 n. 2; Woodfox, 742 S.W.2d at 409. When considering whether an instruction was warranted, we are concerned only with whether the evidence supports the defense of consent, not whether the evidence is believable. See Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App.1984). If the evidence, viewed in a light favorable to the appellant, supports the defense of consent, then an instruction is required. See Granger, 3 S.W.3d at 38; Dyson, 672 S.W.2d at 463.

The State urges us to follow Allen v. State, 253 S.W.3d 260 (Tex.Crim.App.2008). In Allen, the complainant taunted the defendant by stating, ‘“go ahead,’ ‘come on,’ ‘slap me,’ ‘hit me.’ ” Allen, 253 S.W.3d at 267. There the court stated, “[c]ommon experience tells us that such apparent bravado ... in the face of an expressed threat does not normally communicate a genuine desire to be assaulted; it far more likely constitutes a backhanded warning of potentially dire consequences to the threatener should she actually carry out her threat.” Id. at 268 (emphasis added). However, the State fails to note that the Allen court ultimately concluded that the underlying facts were adequate to raise a fact issue relative to consent and require submission of the issue to the jury. There, the circumstances did not require reversal only because the defendant’s counsel failed to preserve error. Id.

Here, the evidence indicates Givens may have genuinely desired to provoke his father to hit him. Givens’s testimony that he “kind of wanted [George] to hit [him]” gives life to the argument that the fight was consensual. Additionally, Givens did more than threaten George; he struck the first blow. It is important to note that Givens was aggressively moving towards George when George finally hit Givens. Furthermore, Givens described the altercation with phrases indicative of mutual combat, not assault. He testified that he “was all jazzed up” and “in an aggressive mood” and that when George hit him, they were “in the heat of combat” and “still fighting.”

2. Serious Bodily Injury

The defense of consent is not available when the defendant threatens or inflicts “serious bodily injury.” See § 22.06(a)(1). Serious bodily injury is “injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function” of a bodily organ. Tex. Penal Code Ann. § 1.07(a)(46) (Vernon Supp. 2009).

Texas courts have not been consistent as to what specific facts constitute serious bodily injury. Hays v. State, 480 S.W.2d 635, 687 (Tex.Crim.App.1972). Whether an injury constitutes serious bodily injury is determined on a case-by-case basis. Moore v. State, 739 S.W.2d 347, 349 (Tex.Crim.App.1987). When deciding whether the injury rises to the level of serious bodily injury, we consider the extent of injury at the time it was inflicted, not after the effects have been ameliorated or exacerbated by medical treatment. Goodman v. State, 710 S.W.2d 169, 170 (Tex.App.-Houston [14th Dist.] 1986, no pet.).

Here, Givens suffered dental fractures and loose teeth, but he lost no teeth. He also received two blows to the head, and he testified that he may have lost consciousness for a brief moment. However, he did not sustain memory loss. The emergency physician who treated Givens testified that a black-out could be the result of many things, including shock or surprise. He also testified no damage appeared on Givens’s CAT scan. Nevertheless, the doctor testified that, because Givens lost consciousness, he likely suffered a mild concussion.

Some courts have concluded, on a case-by-case basis, that loss of teeth is a serious bodily injury in cases with and without other injuries. See, e.g., Hatfield v. State, 377 S.W.2d 647, 649 (Tex.Crim.App.1964); Lenzy v. State, 689 S.W.2d 305, 310 (Tex.App.-Amarillo 1985, no pet.). To date, courts have concluded that the loosening of teeth is a serious bodily injury only when accompanied by other serious injuries. See, e.g., Hawkins v. State, 115 Tex. Crim. 163, 29 S.W.2d 384, 386 (1930) (defendant struck complainant with an axe, crushed his nose flat, knocked four teeth loose, and pulled ears with pliers leaving a one and one-half inch incision behind ear); Pitts v. State, 742 S.W.2d 420, 422 (Tex.App.-Dallas 1987, no pet.) (profuse bleeding, misalignment of teeth, inability to breath normally, and fractured jawbone, cheekbone, orbital bones, and nasal bones).

Blows to the head, depending on the strength and repetitiveness of the blows, can, but do not always, constitute serious bodily injury. See Sanchez v. State, 543 S.W.2d 132, 134 (Tex.Crim.App.1976); Hays, 480 S.W.2d at 637; Gonzales v. State, 191 S.W.3d 741, 753 (Tex.App.Waco 2006); Powell v. State, 939 S.W.2d 713, 718 (Tex.App.-El Paso 1997, no pet.). Some courts have held that memory loss is sufficient to constitute serious bodily injury, while others have not. See, e.g., Powell, 939 S.W.2d at 718 (concussion that caused memory loss was sufficient); Sanchez, 543 S.W.2d at 134 (temporary amnesia, or a momentary loss of memory, was not sufficient).

Here, Givens’s teeth were loosened, but not lost, and he may have had a mild concussion. The State did not specifically contend below that Givens’s injuries constituted “serious bodily injury.” Even had it done so, in light of current precedent, the question still would be a question of fact for the jury to decide. See Allen, 253 S.W.3d at 267; Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App.1991); Gray v. State, 128 Tex.Crim. 637, 82 S.W.2d 958, 959 (1935).

Viewing the evidence in a light favorable to George, we hold an instruction on the defense of consent was required. See Granger, 3 S.W.3d at 38. Whether Givens actually consented was a question of fact for the jury. See id. Accordingly, the trial court erred in overruling George’s objection and denying his request for an instruction on consent.

B. Harmful Error

Where appellant properly objected to a jury charge error in the trial court, reversal is required unless the error is harmless. Almanza v. State, 724 S.W.2d 805, 806 (Tex.Crim.App.1986) (en banc). Here, George made a timely and proper objection. Therefore, he need only show he suffered some harm as a result of the error. See id.

To resolve whether George suffered harm, we consider the plausibility of the evidence raising the defense. See id. Here, under these very unusual circumstances, a reasonable factfinder might conclude that Givens consented to the fight, or that George reasonably believed he consented. Whether Givens actually consented, of course,, is a question of fact for the jury. See Allen, 253 S.W.3d at 268. Therefore, we conclude that failure to include the instruction on consent was harmful error, and we sustain Appellant’s sole issue on appeal. See Almanza, 724 S.W.2d at 806.

III. Conclusion

Having sustained appellant’s sole issue, we reverse and remand this cause to the trial court for further proceedings consistent with this opinion.

      . In an affidavit filed with the trial court, Givens expanded on his provocation of his father. Givens swore that after his father took his phone and keys, he “got angry and said ‘This is out of controlf,]’ ... ‘F* * * you[,]’ and some other inappropriate words to [his] father and mother.” He also provoked his father, “Come on, hit me, go ahead and hit me.” Givens also admitted “[he] instigated ... the situation” and described the altercation as a "fight," not an assault.

      . The consent defense statute is unusual in that it seems to focus on outcome rather than only intent. See § 22.06(a)(1) ("The victim’s effective consent ... is a defense ... if the conduct did not threaten or inflict serious bodily injury.”). While focusing on the outcome works to distinguish simple assault from aggravated assault, it poses a problem when applied to consent. See Landrian v. State, 268 S.W.3d 532, 543 (Tex.Crim.App.2008). Essentially, it can have the effect of disabling one’s consent altogether. For instance, A & B, two grown men, consent to a fist fight. A, not intending to cause serious bodily injury, throws a punch breaking B’s nose or knocking out B's tooth. Though A has played by the terms to which both parties consented, a jury could conceivably decide B's injury is a "serious bodily injury.” In that case, A could be deprived of an otherwise legitimate defense of consent and, therefore, guilty of legal assault. Thus, under the statute, the same conduct, depending on outcome, could potentially produce two different legal results.


source: Caselaw Access Project

author: TRACY CHRISTOPHER, Justice (Assigned).

license: Public Domain

text:
    M7 CAPITAL LLC, Appellant, v. Theodore B. MILLER, Jr. a/k/a Ted B. Miller, Jr., Appellee
    No. 14-08-00951-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 29, 2010.

      Louis Jerome Stanley, Baton Rouge, LA, for appellant.

      Robert H. Singleton, Jr., Randall L. Brim, Houston, for appellee.
    Panel consists of Justices ANDERSON, BOYCE, and CHRISTOPHER.

       J. Tracy Christopher, sitting by assignment before her appointment to this court.

   SUBSTITUTE OPINION

TRACY CHRISTOPHER, Justice (Assigned).

We overrule appellee’s motion for rehearing, withdraw our opinion of March 25, 2010, and substitute this opinion in its place.

This is an appeal of a summary judgment granted in the defendant’s favor on the claimed breach of an option contract. On appeal, the plaintiff argues that (a) the absence of a signed writing setting forth the agreement’s terms does not bar enforcement of an option contract to purchase an interest in a limited partnership, and (b) there is evidence raising a genuine issue of material fact on each of the challenged elements of plaintiffs claim. Because we agree with both points, we reverse the judgment and remand the case to the trial court.

I. Factual and Procedural Background

In November 2002, John P. Miller (“John”) and Ted Miller (“Ted”) began to discuss forming a limited partnership to purchase the assets of Fairchild Aircraft out of bankruptcy. Ted bid on some assets from a San Antonio bankruptcy in December and on some assets from a Virginia bankruptcy in February 2003. Closing on both purchases was set for April 1, 2003. John and Ted agreed that an entity controlled by Ted would own at least a 51%-interest in the limited partnership they planned to form (the “Partnership”). John or an entity he controlled would have an option to purchase up to 49% of the Partnership by paying (a) an amount equal to 49% of the equity Ted invested, and (b) 20% compound interest on the amount Ted invested, with such interest accruing only until John’s company bought a share in the Partnership. As consideration for the option contract, John agreed to give Ted 3% of Lifebridge, an entity controlled by John’s family. Ted and John orally agreed that John’s company would have to purchase its interest in the Partnership within ninety days after Ted’s company closed on the assets.

In March 2003, Ted formed the Limited Partnership (M7 Holdings, LP), invested $3.4 million in it, and obtained financing for the remaining $10 million required to purchase the assets. Ted sent John the Limited Partnership Agreement for M7 Holdings, LP at that time. John formed appellant M7 Capital LLC (“M7”) to purchase an interest in the Partnership, and he and Ted agreed that the percentage that M7 would be permitted to purchase in the Partnership would decrease over time. On March 26, 2003, John sent an email to Ted summarizing their agreement as follows:

[M7] has an option to make the investment of 49% of the equity required at closing. If not, the option to buy equity reduces to 44% for the first 30 days following closing, then 39% for the second 30 days following closing, then 34% for the next 30 days, at which time [M7] will have no option to buy stock....

The Partnership closed on the assets of the bankrupt companies on April 1, 2003. Thus, M7 could have purchased 49% on April 1, 44% on May 1, 39% on May 31, and 34% on June 30, 2003.

On June 4, 2003, John, acting as CEO and Managing Principal for M7, sent Ted an email entitled “Decision concerning [partnership] purchase,” in which John stated as follows:

[M7] will move forward with its purchase of 34% of [the partnership]..... I will yield to your decision as to when Taylor [Cooksey, Ted’s attorney] should become involved. I have attached the ownership structure if you wish to provide this to Taylor, which includes the purchase price plus accrual of bridge loan fees to you until closing.... I will continue to follow your lead as to my role in the building of the company.

Attached to the email is a document entitled “Purchase Price and Fees Until Closing,” in which John lists the “Purchase Price for 34% ownership” of the Partnership as $1,184,582 and states that bridge loan fees until June 1, 2003 are $39,486, with an additional fee of $649 per diem until closing.

On June 27, 2003, Taylor Cooksey sent a memorandum (the “Memorandum”) to Ted and two nonparties regarding M7’s proposed acquisition of an interest in the Partnership. In the Memorandum, a copy of which was sent to M7, Cooksey wrote as follows:

We may anticipate that the referenced investment, pursuant to which [M7] may acquire up fo[] a thirty-four percent (34%) interest in [the Partnership], will require modification of the existing [partnership agreement] as generally outlined below.... Please note that the following is intended only for the convenience of the parties and is not intended to be a definitive term sheet. 1. Our office must receive written confirmation of the escrow deposit of [M7]’s funds by no later than 5:00 p.m. (CST) on Monday, June 30, 2003. Time is of the essence and failure to meet this deadline will terminate any further discussions. The amount of deposit should be $1,255,000 ($1,245,000 for the 34% interest, plus $10,000 toward Ted Miller’s attorneys!’] fees.)....
3. The Agreement will be modified to include Buy/Sell provisions triggered upon various events including ... cessation of employment by John Miller.... Any purchase price arising under the Buy/Sell provisions will be fair market value established via one or more independent appraisers.

M7 did not deposit $1,255,000 into escrow by 5:00 p.m. on June 30, 2003. Instead, John H. Bryan III, an investor in M7, transferred $750,000 to the escrow account on that date. M7 argues that this sum represents the purchase price for a 20.48% interest in the partnership. There is no evidence in the record explaining how M7 computed that percentage.

Nine days later, on July 9, 2003, Ted emailed John an amended Limited Partnership Agreement for M7 Holdings LP, with a signature line for M7 as a Class B limited partner and with a provision for transfer of “a_percent (_%) Class B Limited Partnership interest to M7.” Under this agreement, if John ceased to be both (a) a direct or indirect owner of M7 and (b) an employee or consultant of the Partnership, then the Partnership or its remaining partners had the right to purchase all or part of M7’s interest in the Partnership for the lesser of the dollar value reflected in M7’s capital account or half of its fair market value.

Ted filled in the evidentiary gaps in his reply brief to his motion for summary judgment. John wired $10,000 to Ted on July 2, 2003 for the attorney fees. John emailed Ted on July 11, 2008 cancel-ling the transaction. John stated in the email that M7 would not proceed with the purchase of the ownership interest from Ted and requested return of the escrow money. However, Ted did not request or receive permission to supplement the summary judgment record; therefore this evidence cannot be considered by this court on appeal. See Tex.R. Civ. P. 166a(d) (a summary judgment movant relying on previously unfiled discovery products must file the material or a notice specifically referring to such material twenty-one days before the summary judgment hearing). Because there is no basis in the record from which to conclude that the trial court granted leave for the late filing, we presume the trial court did not consider this evidence. Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 620 (Tex.App.-Houston [14th Dist.] 2009, pet. denied).

On July 5, 2007, M7 sued Ted Miller for over $13 million, alleging that Ted “made it impossible for [M7] to perform on the agreement by purposefully including provisions in the Amended Partnership Agreement that would allow [Ted] to purchase [M7’s] interest in [the Partnership]” at half of fair market value if John Miller — who had no employment contract with the Partnership — ceased to be employed by it. Ted filed a motion for traditional and no-evidence summary judgment which the trial court granted, and this appeal ensued.

II. Issues Presented

In three issues to be addressed in this appeal, M7 challenges the trial court’s grant of summary judgment in Ted’s favor. In its first issue, M7 contends the trial court erred in granting Ted’s no-evidence summary judgment motion because M7 produced summary judgment evidence that raised a genuine issue of material fact on each of the challenged breach of contract elements. In its second issue, M7 argues that the trial court erred in granting no-evidence summary judgment based on Ted’s erroneous assertion that an option contract is unenforceable unless it is in writing, signed by the offeror, recites the consideration for the option, and proposes an exchange within a reasonable time. M7 argues in its third issue that the trial court erred in granting the traditional summary judgment because the absence of a signed option contract does not conclusively negate the existence of an enforceable contract.

III. Standard of Review

We review summary judgments de novo. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex.2009) (per cu-riam). When the trial court grants the judgment without specifying the grounds, we affirm the judgment if any of the grounds presented are meritorious. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). We consider all grounds the appellant preserves for review that are necessary for final disposition of the appeal. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005). Here, Ted moved for summary judgment on both traditional and no-evidence grounds; thus, we apply the standard of review appropriate for each type of summary judgment, taking as true all evidence favorable to the nonmovant and indulging every reasonable inference and resolving any doubts in the nonmovant’s favor. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004).

In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Id. Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex.1982).

In a no-evidence summary judgment, the movant represents that there is no evidence of one or more essential elements of the claims for which the nonmov-ant bears the burden of proof at trial. Tex.R. Civ. P. 166a(i); Lowe’s Home Ctrs., Inc. v. GSW Mktg., Inc., 293 S.W.3d 283, 287 (Tex.App.-Houston [14th Dist.] 2009, pet. denied). We sustain a no-evidence summary judgment when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Lowe’s, 293 S.W.3d at 287-88 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). “Evidence does not exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise or suspicion’ ” that the challenged fact exists. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex.2009) (quoting Kroger Tex. L.P. v. Suben, 216 S.W.3d 788, 793 (Tex.2006)).

IV. Analysis

A successful breach of contract claim requires proof of the following: (a) a valid contract, (b) performance or tendered performance by the plaintiff, (c) breach of the contract by the defendant, and (d) damages sustained by the plaintiff as a result of that breach. Grynberg v. Grey Wolf Drilling Co., L.P., 296 S.W.3d 132, 136 (Tex.App.-Houston [14th Dist.] 2009, no pet.). In his traditional motion for summary judgment, Ted contends that he conclusively proved that the contract was not valid because an option contract cannot be oral. In his no-evidence motion for summary judgment, Ted contends there is no evidence of any of these four elements. The arguments and evidence concerning each ground for summary judgment are discussed below.

A. Existence of a Valid and Enforceable Contract

According to Ted, the Texas Supreme Court adopted section 87 of the Restatement (Second) of Contracts in 1464-Eight, Ltd. v. Joppich, 154 S.W.3d 101 (Tex.2004). To be enforceable pursuant to section 87(l)(a), an option contract must (1) be in writing, (2) be signed by the offeror, (3) recite the consideration for the offer, and (4) propose an exchange on fair terms within a reasonable time. See Restatement (Second) of Contracts § 87(l)(a) (1981). Ted argues that because there is no evidence that an option contract satisfying these four “Restatement elements” existed, there is no evidence of a valid, enforceable option contract. Relying on John’s testimony that no writings signed by Ted Miller set forth the terms of the option contract, Ted moved for traditional summary judgment on the same grounds.

Both arguments rest on a misinterpretation of Joppich and a successor decision by this court. In Joppich, the petitioners argued that “the respondent’s offer to sell real property should be binding as an option contract because the offer was in writing and signed by the respondent, acknowledged the receipt of a nominal consideration of ten dollars, and proposed an exchange on fair terms within a reasonable time.” Joppich, 154 S.W.Bd at 102. These arguments were directed to the requirements listed in section 87(l)(a) of the Restatement (Second) of Contracts. Jop-pich responded that the option contract was unenforceable because the petitioners never paid the nominal consideration recited. The Texas Supreme Court followed section 87(l)(a) of the Restatement (Second) of Contracts only in agreeing that when an option contract contains a recital that some nominal sum constitutes consideration for the option, the contract is enforceable despite the failure to pay the sum recited. Id. at 108-110.

Ted further argues that, according to this court, the Texas Supreme Court adopted the elements of section 87 of the Restatement as mandatory requirements for creating an enforceable option contract. See Sandel v. ATP Oil & Gas Corp., 243 S.W.3d 749, 752 (Tex.App.-Houston [14th Dist.] 2007, no pet.). In Sandel we stated that “the Texas Supreme Court adopted section 87 of the Restatement (Second) of Contracts regarding option contracts” in Joppich. Id. at 752. But that .statement must be read in context. The Texas Supreme Court merely “incorporated” the language from section 87(l)(a) that describes the recital of consideration, rather than the payment of consideration, as an element in an enforceable option contract. See Joppich, 154 S.W.3d at 102, 108-10. And in Sandel, we did not read Joppich to stand for the proposition that an option contract is unenforceable if it does not comply with the Restatement elements. This is readily seen by comparing the two cases. In Joppich, it was undisputed that the nominal consideration recited — as stated in section 87 of the Restatement — was not paid; in Sandel, the parties disputed whether consideration was recited or paid — a factor not mentioned in the Restatement. Thus, after determining that the purported option contract did not recite consideration, we addressed the question of whether consideration had been paid. Sandel, 243 S.W.3d at 752 (evaluating appellant’s claim that his continued employment was consideration for an option). This step would have been unnecessary if, as Ted contends, an option contract is enforceable only if the contract complies with the elements listed in the Restatement. ■

Ted has made no other argument, either at trial or on appeal, in support of his position that an oral option contract is unenforceable, and we have found no case in which an option contract that was not subject to the statute of frauds was held unenforceable simply because it was not in writing. Cf. Miga v. Jensen, 96 S.W.3d 207, 209, 213 (Tex.2002) (addressing the correct measure of damages for breach of an oral option contract for the purchase of stock). Because M7 offered more than a scintilla of evidence that a valid and enforceable contract existed, and no applicable precedent supports Ted’s argument that an oral option contract necessarily is unenforceable as a matter of law, summary judgment cannot be affirmed on this basis.

Ted also argues in his reply brief that no consideration actually was paid for the option. But the oral agreement included the promise to pay the 3% interest in Lifebridge, which would happen at closing. The contract was allegedly breached before the final closing took place. In addition, the lack of payment of the consideration merely meant that Ted could revoke the option. Culbertson v. Brodsky, 788 S.W.2d 156, 157 (Tex.App.-Fort Worth 1990, writ denied). Ted does not argue that he revoked the option before acceptance. Absent such a contention, a promise to pay consideration is all that is necessary for a valid option. See Joppich, 154 S.W.3d at 105.

B. Evidence that M7 Performed or Tendered Performance

Ted also moved for summary judgment on the grounds that there is no evidence that M7 performed or tendered performance. To prove that it performed or tendered performance of its own contractual obligations, a plaintiff must demonstrate that it complied with the contract’s provisions. Preston State Bank v. Jordan, 692 S.W.2d 740, 744 (Tex.App.Fort Worth 1985, no writ). In the absence of equitable considerations not presented here, an option contract may be exercised only in strict compliance with the contract’s terms. Zeidman v. Davis, 161 Tex. 496, 499, 342 S.W.2d 555, 558 (1961); Jones v. Gibbs, 133 Tex. 627, 639, 130 S.W.2d 265, 271 (1939). “Acceptance of an option must be unqualified, unambiguous, and strictly in accordance with the terms of the agreement.” Comeaux v. Suderman, 93 S.W.3d 215, 220 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (citing Crown Constr. Co. v. Huddleston, 961 S.W.2d 552, 558 (Tex.App.-San Antonio 1997, no pet.)). A failure to exercise an option according to its terms, including a defective performance, legally amounts to a rejection. Id.

But not all option contracts contain detailed specifications as to how the option must be exercised. “Unless the option contains provisions to the contrary, all that is required of the optionee is that he notify the optionor, prior to the expiration of the option, of his decision to exercise the option.” W. Fed. Sav. & Loan Ass’n v. Atkinson Fin. Corp., 747 S.W.2d 456, 461 (Tex.App.-Fort Worth 1988, no writ). The “‘[ojptionee thereafter has a reasonable time within which to complete the deal.’ ” Luccia v. Ross, 274 S.W.3d 140, 148 (Tex.App.-Houston [1st Dist.] 2008, pet. denied) (quoting W. Fed. Sav. & Loan Ass’n, 747 S.W.2d at 461).

It is not clear whether M7 argued that it exercised its option by performance or by notification of its acceptance of the option. Because the evidence raises a fact issue under either approach, we conclude that summary judgment was not warranted.

1. Exercise by Performance

Ted argues that the option could be exercised only by strict compliance with the terms in the Memorandum. On appeal, M7 argues that the Memorandum contained terms to which it did not agree. Ted argues that M7’s position is inconsistent because M7 alleged in its pleadings and in its summary judgment response that the Memorandum “evidenced” the parties’ agreement. A memorandum from Ted’s agent to M7 containing instructions for exercising the option is evidence that an option agreement existed. This does not foreclose M7’s arguments about performance.

In any event, M7 produced more than a scintilla of evidence that it acted in accordance with the “closing instructions” in the Memorandum, which allowed it to purchase “up to” a 34%-interest in the Partnership. M7 contends that its deposit of $750,000 by the deadline in the Memorandum was for a purchase of 20.48% interest in the Partnership. The Memorandum, by its terms, allowed for a purchase of less than 34% when it used the words “up to” a 34% interest. The money could have included a deposit for the attorney fees as well. This is more than a scintilla of evidence of strict compliance with the terms of the Memorandum. This evidence raises a fact issue as to whether M7 strictly complied with the terms of the Memorandum (if a jury agrees that the Memorandum was the exclusive way for M7 to perform).

2. Exercise by Notification and Performance in a Reasonable Time

According to M7, the parties’ oral agreement did not specify how M7 was to exercise the option. M7 notified Ted on June 4, 2003 that it was purchasing a 34%-interest in the Partnership for $1,184,582, plus loan fees in the amount of $39,486, together with additional fees of $649 per day from June 1, 2003 until closing. M7 then performed by depositing $750,000 by the June 30 deadline, with closing to follow. M7 did not explain why it did not place a deposit for the entire amount or whether it planned to do so by closing, but M7 nonetheless produced more than a scintilla of evidence that it notified Ted of its intent to exercise the option and produced more than a scintilla of evidence of actual performance by depositing money in the escrow account. The parties anticipated a formal closing to follow, and the law allows an optionee a reasonable time to complete the deal. See Luccia, 274 S.W.3d at 148. Thus, a fact issue exists as to whether M7 exercised the option and performed in a reasonable time.

In its appellate brief, M7 contends for the first time that there are questions of fact as to whether Ted waived any deficiencies in M7’s acceptance of the option offer or whether the time for M7 to perform its obligations under the option contract was extended. Because these arguments were not presented to the trial court, we do not consider them on appeal. See Tex.R.App. P. 33.1(a); Tex.R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

C. Evidence of Breach and Damages

M7 contends that Ted breached the contract by presenting M7 with partnership documents with material changes. M7 presented evidence showing the changes in the partnership documents and an affidavit explaining why those terms were unacceptable. M7 also supplied an affidavit supporting its damages.

Y. Conclusion

We reject Ted’s argument that there cannot be an oral option contract. M7 presented more than a scintilla of evidence of the existence of a valid and enforceable contract, performance, breach, and damages; in so doing, M7 raised fact issues that foreclose summary judgment. Accordingly, we reverse the judgment and remand the case to the trial court.

      . In accordance with the standard of review, we describe the summary judgment evidence in the light most favorable to the nonmovant.

      . Emphasis added.

      . M7 originally presented five issues on appeal, but Ted Miller concedes that the arguments M7 presents regarding two of those issues are correct. Specifically, Ted’s summary judgment motion was based in part on M7’s deemed admissions, but after the motion was filed, M7 was permitted to withdraw them. M7 argues — and Ted agrees — that summary judgment cannot be affirmed on the basis of the withdrawn admissions. We therefore sustain M7’s fourth and fifth issues without further discussion.

      . In light of such a closing memorandum it is hard to understand how Ted could argue that there was "no evidence” of an agreement. It is understandable that Ted would argue that there was no evidence of a written, signed option agreement.


author: Justice FILLMORE.

text:
    SAXA INC., Las Colinas Office Investors L.P., and Las Colinas Office Condominium Association Inc., Appellants, v. DFD ARCHITECTURE INC., Appellee.
    No. 05-09-01245-CV.
    Court of Appeals of Texas, Dallas.
    April 29, 2010.

      Jason Clay Spencer, R. Carson Fisk, Ford Nassen & Baldwin P.C., Austin, TX, for Appellants.
    Gregory N. Ziegler, Bryan Rutherford, Alexander George Blue, MacDonald Devin, P.C., Dallas, TX, for Appellee.
    Before Justices MORRIS, FRANCIS, and FILLMORE.
   OPINION

Opinion By

Justice FILLMORE.

Saxa Inc. initiated an arbitration proceeding against DFD Architecture Inc. (DFD) based on a written contract containing an arbitration clause. Las Colinas Office Investors L.P. (Office Investors) and the Las Colinas Office Condominium Association Inc. (Condominium Association) sought to join the arbitration. DFD filed this action, requesting declaratory and injunctive relief from the trial court to prevent the joinder. DFD also requested that the trial court stay the arbitration pursuant to the Texas General Arbitration Act (TAA).

The trial court granted DFD’s motion for summary judgment on its request for declaratory relief and found Office Investors and the Condominium Association are not proper parties to the arbitration. Appellants perfected this interlocutory appeal asserting (1) the trial court did not have authority to determine whether Office Investors and the Condominium Association are proper parties to the arbitration, (2) the trial court erred by admitting portions of DFD’s summary judgment evidence, (3) Office Investors and the Condominium Association are proper parties to the arbitration, and (4) Saxa may assign its rights and claims under its contract with DFD. We conclude the contract between Saxa and DFD delegated the authority to determine substantive arbitrability to the arbitrator. Because the trial court erred by granting summary judgment on the issue of whether Office Investors and the Condominium Association are proper parties to the arbitration, we reverse the trial court’s judgment and remand to the trial court for further proceedings.

Background

Pursuant to a written contract, DFD agreed to design a professional office condominium complex for Saxa. Saxa and DFD agreed that “[a]ny claim, dispute or other matter in question arising out of or related to” the contract “shall be subject to arbitration.” The parties further agreed any arbitration would be conducted “in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect.” The contract bound Saxa and DFD, as well as their partners, successors, assigns, and legal representatives “with respect to all covenants of this Agreement,” but also provided it did not “create a contractual relationship with or a cause of action in favor of a third party” against either Saxa or DFD. Finally, the parties agreed:

No arbitration arising out of or relating to this Agreement shall include, by consolidation or joinder or in any other manner, an additional person or entity not a party to this Agreement, except by written consent containing a specific reference to this Agreement and signed by [Saxa], [DFD], and any other person or entity sought to be joined-The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by the parties.to this Agreement shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof.

Saxa alleges that after the office complex was completed, the buildings were damaged by water penetration. Saxa filed an arbitration proceeding against DFD and the construction contractor. Over DFD’s objection, the arbitration panel allowed Office Investors to join the arbitration. The Condominium Association subsequently also sought to join the arbitration.

DFD filed a petition for declaratory judgment, request for injunctive relief, and motion to stay the arbitration under the TAA in the trial court asserting Office Investors and the Condominium Association are not proper parties to the arbitration because neither Office Investors nor the Condominium Association “has a valid or enforceable agreement to arbitrate with any other party.” DFD filed a motion for summary judgment on its claim for declaratory relief on grounds Saxa and DFD were the only parties to the contract and the contract prohibited (1) joinder of third-parties to the arbitration without DFD’s consent, (2) assignment of Saxa’s claims under the contract, and (3) the creation of third-party beneficiaries of the contract. Saxa responded that the trial court did not have the authority to decide the issue because Saxa and DFD agreed issues of substantive arbitrability would be decided by the arbitration panel. Saxa also filed a motion for summary judgment on grounds Office Investors and the Condominium Association are proper parties to the arbitration as legal representatives or successors to Saxa or as third-party beneficiaries of the contract. The trial court denied appellants’ motion for summary judgment and granted DFD’s motion for summary judgment. The trial court specifically found (1) Office Investors and the Condominium Association are not proper parties to the arbitration based on the anti-joinder clause in the contract between Saxa and DFD; (2) Saxa and DFD are proper parties to the arbitration; and (3) the anti-assignment clause in the contract between Saxa and DFD prevented Saxa from assigning its rights or claims against DFD.

Appellants sought review of the trial court’s judgment by interlocutory appeal. DFD filed a motion to dismiss the appeal, asserting this Court does not have jurisdiction over a non-appealable, interlocutory order.

Jurisdiction

We turn first to DFD’s contention this Court does not have jurisdiction over this interlocutory appeal under the TAA. DFD asserts the TAA does not provide a right to interlocutory appeal and, even if there is a right to interlocutory appeal under the TAA, the declaratory judgment signed by the trial court does not stay arbitration and, therefore, is not subject to interlocutory appeal.

Appellate courts have jurisdiction over final judgments and such interlocutory orders as the legislature deems appealable. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex.2001) (“A party may not appeal an interlocutory order unless authorized by statute.”); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex.App.-Dallas 2009, no pet.) (op. on reh’g). Unless the record affirmatively shows the propriety of appellate jurisdiction, we must dismiss. Id.

DFD first argues the only jurisdictional basis asserted by appellants is section 171.098(a)(2) of the TAA and that statute, on its face, does not provide for an interlocutory appeal. Section 171.098(a)(2) of the TAA allows a party to appeal an order granting an application to stay arbitration made under Section 171.023. Tex. Civ. Prac. & Rem.Code ANn. § 171.098(a)(2) (Vernon 2005). Section 171.023 provides a trial court may “stay an arbitration commenced or threatened on application and a showing that there is not an agreement to arbitrate.” Id. § 171.023. The Texas Supreme Court has concluded section 171.098(a)(2) provides for an interlocutory appeal of the denial of arbitration. Chambers v. O’Quinn, 242 S.W.3d 30, 31 (Tex. 2007) (per curiam); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271-72 & n. 10 (Tex.1992) (orig.proceeding); see also In re Hawthorne Townhomes, L.P., 282 S.W.3d 131, 137 (Tex.App.-Dallas 2009, orig. proceeding) (“A denial of arbitration under the Texas Arbitration Act may be appealed through an interlocutory appeal.”).

DFD concedes Texas appellate courts have recognized that section 171.098(a)(2) of the TAA provides a right to an interlocutory appeal of an order denying arbitration, but argues those courts relied on “older versions” of the TAA. However, the relevant substantive language of the current version of the TAA is virtually identical to older versions. See Act of May 29, 1965, 59th Leg., R.S., ch. 689, § 1, art. 238-2, 1965 Tex. Gen. Laws 1593, 1600 (providing for an appeal of an “order granting an application to stay arbitration”). We, therefore, decline DFD’s invitation to revisit the issue of whether an interlocutory appeal is available under the TAA for an appropriate order denying arbitration.

DFD next argues the order in this case does not stay arbitration but only declares Saxa’s and DFD’s rights under a contract that includes an arbitration clause. However, DFD sought declaratory and injunc-tive relief and filed a motion to stay the arbitration under the TAA on grounds it had not agreed to arbitrate with Office Investors or the Condominium Association. The trial court declared Office Investors and the Condominium Association are not proper parties to the arbitration. It is the “substance and function of the order viewed in the context of the record that controls our interlocutory jurisdiction, not [the party’s] characterization of the order.” Walker Sand, Inc. v. Baytown Asphalt Materials, 95 S.W.3d 511, 515 (Tex.App.Houston [1st Dist.] 2002, no pet.). The effect of the trial court’s order was to stay or deny arbitration between DFD and Office Investors and the Condominium Association because there was no agreement to arbitrate. Therefore, the trial court’s order falls within section 171.023 of the TAA, and we have jurisdiction to consider this interlocutory appeal pursuant to section 171.098(a)(2) of the TAA.

Substantive Arbitrability

In their first issue, appellants assert the trial court erred by granting DFD’s motion for summary judgment requesting a declaration that Office Investors and the Condominium Association are not proper parties to the arbitration because Saxa and DFD agreed that issues of substantive arbitrability would be determined by the arbitration panel. We review the trial court’s decision to grant summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). To prevail on a summary judgment motion, the movant must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c).

Saxa and DFD agreed any arbitration under the contract would be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association (the Rules). The Rules provide the arbitrator has the power “to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement” and “to determine the existence or validity of a contract of which an arbitration clause forms a part.” Appellants assert Saxa and DFD clearly and unmistakably delegated the issue of substantive arbitrability, including the joinder of parties, to the arbitration panel. DFD responds the issue is whether Office Investors and the Condominium Association are parties to the contract with standing to invoke the arbitration clause and the trial court had authority over this issue of contract interpretation.

Generally, the question of arbi-trability is a gateway issue to be decided by a court rather than an arbitrator. AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). These “gateway matters” include whether the parties agreed to arbitrate and whether a claim or dispute is encompassed in the agreement to arbitrate. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.2009) (orig.proeeed-ing); In re Weekley Homes, 180 S.W.3d 127, 130 (Tex.2005) (orig.proceeding); P. McGregor Enters., Inc. v. Denman Bldg. Prods., Ltd., 279 S.W.3d 717, 722 n. 9 (Tex.App.-Amarillo 2007, pet. denied) (“The question of [substantive] arbitrability has two aspects: first, whether the parties agreed to arbitration (or are bound by another’s agreement to arbitrate); and second, whether a particular claim or dispute is within the scope of the agreement.”).

The parties, however, may agree to submit matters of substantive arbitrability to arbitration; Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002); Ernst & Young LLP v. Martin, 278 S.W.3d 497, 500 (Tex.App.-Houston [14th Dist.] 2009, no pet.) ■ (“[A]n arbitration clause that reallocates traditional court functions to the' arbitrator is enforceable....”); ODL Servs., Inc. v. ConocoPhillips Co., 264 S.W.3d 399, 413 (Tex.App.-Houston [1st Dist.] 2008, no pet.). But, “[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clear and unmistakable’ evidence that they did so.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (citing AT & T, 475 U.S. at 649, 106 S.Ct. 1415); see ODL Servs., 264 S.W.3d at 413. Silence or ambiguity about who should decide the arbitrability issue should not lead a court to presume the parties intended for the issue to be decided by the arbitrator. First Options, 514 U.S. at 944-45, 115 S.Ct. 1920; ODL Servs., 264 S.W.3d at 413. Rather, a court must examine the arbitration agreement to decide if, when construed under the relevant state law, the agreement evidences a clear and unmistakable intention that the arbitrators will have the authority to determine the scope of arbitration. ODL Servs., 264 S.W.3d at 413.

Here, DFD and Saxa agreed that “[a]ny claim, dispute or other matter in question arising out of or related to” the contract “shall be subject to arbitration.” “A broad arbitration clause, purporting to cover all claims, disputes, and other matters arising out of or relating to the contract, creates a presumption of arbitrability.” Am. Realty Trust, Inc. v. JDN Real Estate-McKinney, L.P., 74 S.W.3d 527, 531 (Tex.App.-Dallas 2002, pet. denied). Further, Saxa and DFD incorporated the Rules into their contract, giving the arbitration panel the power to rule on its own jurisdiction, including any objections to the existence, scope or validity of the arbitration agreement. When, as here, the parties agree to a broad arbitration clause and explicitly incorporate rules that empower an ai'bitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties’ intent to delegate such issues to an arbitrator. See Haddock v. Quinn, 287 S.W.3d 158, 172 (Tex.App.-Fort Worth 2009, pet. denied) (“The majority of courts have concluded that express incorporation of rules empowering the arbitrator to decide arbi-trability (including ruling upon his or her own jurisdiction) clearly and unmistakably evidences the parties’ intent to delegate issues of arbitrability to the arbitrator.”); Burlington Res. Oil & Gas Co. LP v. San Juan Basin Royalty Trust, 249 S.W.3d 34, 41 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (“We are also mindful that, in certain circumstancés, the incorporation of AAA rules may constitute clear and unmistakable evidence of an intent to allow an arbitrator to decide issues of arbitrability.”); Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366, 1368, 1373 (Fed.Cir.2006) (concluding arbitration agreement containing broad arbitration clause and incorporating American Arbitration Rules allowing arbitrator to rule on own jurisdiction “clearly and unmistakably shows the parties’ intent to delegate the issue of determining arbi-trability to an arbitrator”); Contec Corp. v. Remote Solution Co. Ltd., 398 F.3d 205, 208 (2d Cir.2005).

Relying on ODL Services, DFD argues the trial court had the authority to make the initial determination of whether there was an agreement to arbitrate. In ODL Services, the parties entered into a master agreement that contained an arbitration clause. The agreement also provided that if ConocoPhillips needed technical and support services from ODL under the master agreement, it would send a request for services. ODL subsequently performed services for a subsidiary of ConocoPhillips without receiving a request for services. ODL was not paid for its services and initiated an arbitration against ConocoPhil-lips.

On appeal, ODL argued it was entitled to arbitrate its claim based on the master agreement and that, by incorporating the AAA International. Arbitration Rules into the master agreement, the parties had agreed the arbitrator would decide all issues of substantive arbitrability, including whether an agreement to arbitrate existed. The Houston First Court of Appeals disagreed, noting the master agreement was triggered only by a request for services. ODL Servs., 264 S.W.3d at 415. The trial court had the authority to decide the threshold issue of whether the master agreement had been triggered because if “no underlying request for ODL’s services existed to trigger the contractually separate arbitration agreement, on that itself contained its own arbitration agreement, then there is no issue of substantive arbi-trability to send to an arbitrator.” Id.

Unlike ConocoPhillips in ODL, DFD does not dispute it entered into a written agreement to arbitrate with Saxa or that the agreement extends to partners, successors, assigns and legal representatives of Saxa. Further, this dispute does not involve a third-party attempting to join in the arbitration a claim that is unrelated to the contract between Saxa and DFD. Nor are we confronted with a non-signatory to the arbitration agreement contesting whether it is bound by a signatory’s agreement to arbitrate. Rather, Office Investors and the Condominium Association are attempting to assert a claim under the contract between Saxa and DFD as partners, successors, assigns and legal representatives of Saxa while DFD disputes that Office Investors and the Condominium Association are entities with which it agreed to arbitrate under the arbitration agreement. The scope of the arbitration agreement and the claims and parties it encompasses are questions of substantive arbitrability that DFD and Saxa agreed would be decided by the arbitration panel. Contec, 398 F.3d at 209, 211 (signatory to contract “containing an arbitration clause and incorporating by reference the AAA Rules” cannot disown obligation to arbitrate all disputes, including question of arbitrability of non-signatory’s claims). Accordingly, the trial court erred by granting DFD’s motion for summary judgment on the issue of whether Office Investors and the Condominium Association are proper parties to the arbitration.

We sustain appellants’ first issue. Because of our disposition of appellants’ first issue, we need not consider appellants’ remaining issues. TexR.App. P. 47.1. We reverse the trial court’s judgment and remand this case to the trial court for further proceedings.

      . Saxa was the sole owner of Shea Partners, Inc. Saxa also owned ninety-nine percent of Shea Commercial Properties, L.L.C. Shea Partners owned the remaining one percent of Shea Commercial. Shea Commercial was the sole owner of Shea Dallas Properties, L.L.C. Shea Commercial also owned ninety-nine percent of Office Investors. Shea Dallas Properties owned the remaining one percent of Office Investors. Shea Commercial entered into ' the contract to purchase the real property on which the project that forms the basis of Saxa’s claims against DFD was built. Shea Commercial assigned that contract to Office Investors, and Office Investors closed on the purchase of the land. Saxa entered into a contract with DFD for design services for the project. Office Investors paid a number of the invoices submitted by DFD to Saxa.

      . Office Investors recorded the condominium declaration for the project. The Condominium Association became responsible for the management, maintenance, and repair of the common areas of the condominiums.

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 171.001-.098 (Vernon 2005).

      . Although this case is brought under the TAA, the parties rely on a number of cases interpreting the Federal Arbitration Act (FAA). See 9 U.S.C.A. §§ 1-16 (West 2009). The issue of arbitrability is subject to a virtually identical analysis under either the FAA or the TAA. See ODL Servs., Inc. v. ConocoPhillips Co., 264 S.W.3d 399, 418 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (applying same analysis of arbitrability under the FAA and the TAA).

      . Saxa argued in its response to DFD’s motion for summary judgment that the trial court did not have the authority to rule on the motion because the parties had agreed the arbitration panel would determine issues of substantive arbitrability. However, Saxa did not move for summary judgment on the ground the trial court did not have authority to rule on the issue. Accordingly, we remand this case to the trial court rather than rendering the judgment the trial court should have rendered. See Valence Operating Co., 164 S.W.3d at 661 ("When both parties move for partial summary judgment on the same issues and the trial court grants one motion and denies the other, as here, the reviewing court considers the summary judgment evidence presented by both sides, determines all questions presented, and if the reviewing court determines that the trial court erred, renders the judgment the trial court should have rendered.”).


author: MACKEY K. HANCOCK, Justice.

text:
    KCCC PROPERTIES, INC., Appellant, v. QUALITY VENDING, INC., Appellee.
    No. 07-09-00298-CV.
    Court of Appeals of Texas, Amarillo, Panel B.
    April 29, 2010.
    Rehearing Overruled June 9, 2010.

      Aubrey J. Fouts, The Fouts Law Firm, Lubbock, TX, for Appellant.
    John Simpson, Splawn Simpson & Pitts, Lubbock, TX, for Appellee.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   OPINION

MACKEY K. HANCOCK, Justice.

Appellant, KCCC Properties, Inc. (KCCC), appeals a judgment following a bench trial that reformed a deed and a compromise settlement agreement to reflect the transfer of only one tract of land to KCCC from Quality Vending, Inc. (Quality). We affirm the judgment of the trial court.

Factual and Procedural Background

On March 24, 2004, a lease with option to purchase was executed by KCCC, through its President, Lester Payne, and Quality, through its officer, Jack Basden. The property subject to the lease and option to purchase was described as:

Lot 1 and the West 35 feet of Lot 2, Clutter 2nd Addition, an addition to the City of Lubbock, Lubbock County, Texas. (Street address: 902 East 34th Street, Lubbock[,] Texas)

On June 2, 2006, KCCC filed, in the public records of Lubbock County, Texas, a document, bearing document number 2006022694, styled “Notice of Lease With Option To Purchase.” The property described in the document is the same property described in the lease with option to purchase set out above.

Subsequently, on October 19, 2006, Quality filed a declaratory judgment action seeking to quiet title to property it owned and in which KCCC was claiming an interest. KCCC filed an answer to the lawsuit in which KCCC stated that Quality had agreed to sell the real property that was the subject of the lawsuit to KCCC. Both Quality and KCCC described the real property at issue in the 2006 lawsuit as that property covered by the lease with option to purchase and the Notice of Lease With Option to Purchase filed in the deed records of Lubbock County, Texas. Before trial, the parties executed a compromise settlement agreement and release of claims, and a special warranty deed was drawn transferring the real property from Quality to KCCC. However, the compromise settlement agreement, release, and deed described the property as:

Tract I:
LOT ONE (1) and the West 35 feet of LOT TWO (2), BLOCK TWO (2), CLUTTER SECOND ADDITION to the City of Lubbock, Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed thereof recorded in Volume 321, Page 132 of the Deed Records of Lubbock County, Texas.
Tract II:
LOTS ONE (1) and TWO, BLOCK ONE (1), CLUTTER SECOND ADDITION to the City of Lubbock, Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed thereof recorded in Volume 321, Page 132 of the Deed Records of Lubbock County, Texas.

After execution of the compromise settlement agreement and release of claims, an agreed order of dismissal was signed by the trial judge on January 24, 2007, dismissing cause number 2006-536,901.

On August 3, 2007, Quality filed the present lawsuit to reform and/or rescind the settlement agreement and.special warranty deed. Trial was to the court without a jury and, as a result of the trial, judgment was granted reforming the settlement agreement and the special warranty deed. In each document, the reference to the second tract was ordered removed and the documents were reformed to reflect the transfer of only Tract I. The trial court filed findings of fact and conclusions of law. At the request of KCCC, the trial court filed additional findings of fact and conclusions of law.

KCCC appeals the judgment reforming the settlement agreement and deed. KCCC contends that the trial court erred because it failed to apply the principals of res judicata to give conclusive effect to the original 2006 judgment. In the alternative, KCCC contends that the trial court erred in reforming the compromise settlement agreement and special warranty deed because Quality was conclusively bound by the terms of the documents. Disagreeing with KCCC, we will affirm the judgment of the trial court.

Res Judicata

KCCC complains that the trial court failed to properly apply the law when determining the applicability of KCCC’s claim preclusion theory of res judicata to the facts of this case. Res judicata is a generic term that describes the effects given to final judgments. Steger v. Muenster Drilling Co., Inc., 134 S.W.3d 359, 368 (Tex.App.-Fort Worth 2003, pet. denied). It is normally explained as either claim preclusion (res judicata) or issue preclusion (collateral estoppel). Id. As claim preclusion, res judicata prevents the reliti-gation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been adjudicated. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 627 (Tex.1992). To succeed with a claim of res judicata, the proponent is required to prove three elements: 1) prior final judgment on the merits by a court of competent jurisdiction; 2) identity of parties or those in privity with them; and 3) a second action based on the same claims that were raised or could have been raised in the first action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.1996). Texas courts follow the transaction approach that bars subsequent lawsuits that arise out of the same subject matter as the prior lawsuit when that subject matter could have been litigated in the prior lawsuit. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex.2007). A determination of what constitutes the subject matter of a suit necessarily requires an examination of the factual basis of the claim in the prior lawsuit. Barr, 837 S.W.2d at 630. Put another way, we must analyze the factual matters that make up the gist of the complaint. Id.

Standard of Review

Because we are required to examine the factual basis of KCCC’s claim of res judi-cata, we must also take into consideration the findings of fact and conclusions of law prepared and filed by the trial court. Findings of fact in a case tried to the court have the same force and dignity as a jury’s verdict upon questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). Therefore, we evaluate the sufficiency of the evidence to support those findings by the same standards for evaluating the legal and factual sufficiency of the evidence to support a jury verdict. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). Under the legal sufficiency standard, we must credit evidence that supports the judgment if a reasonable fact finder could, and we must disregard contrary evidence unless a reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Unless there is no favorable evidence to support the challenged finding or the contrary evidence renders supporting evidence incompetent or conclusively establishes the opposite of the finding, we must affirm. See id. at 810-11. In reviewing the factual sufficiency of the evidence, we consider all the evidence and will set aside the finding only if the evidence supporting the finding is so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001).

A trial court’s conclusions of law are always reviewable. Farmers Ins. Exch. v. Neal, 120 S.W.3d 493, 494 (Tex.App.-Texarkana 2003, no pet.); Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). Since a trial court has no discretion in determining what the law is or applying the law to the facts, we review a trial court’s conclusions of law de novo. See In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994). Conclusions of law “will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence” and, unless erroneous as a matter of law, will not be reversed. Westech Eng’g, Inc., 835 S.W.2d at 196. In conducting a de novo review, we may reexamine legal conclusions drawn from specific findings of fact contained in the record. Id. at 196 n. 1. We exercise our own judgment on each issue and afford no deference to the original tribunal’s decision. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1999).

Analysis

Our analysis begins with the trial court’s findings of fact. After hearing the evidence, the trial court found that:

3. On March 18, 2004, Quality and KCCC Properties, Inc. (KCCC) executed an “option to purchase real estate” described as follows:
Lot 1 and W 35' of Lot 2, Block 2, Clutter 2nd Addition, Lubbock County, Texas (902 E. 34th, Lubbock, TX 79404) [This property is Tract 1 of the property conveyed to Quality on September 21, 2000.]
4. KCCC rented the property described in the option to purchase real estate until June, 2006.
5. On June 6, 2006, KCCC filed for record with the Lubbock County Clerk, in document number 2006022694, its:
Notice of Lease with Option to Purchase
Notice of Exercise of Option to Purchase
6. The June 6, 2006 documents referenced only Tract I property previously described as follows:
Lot 1 and the West 35 feet of Lot 2, Block 2, Clutter 2nd Addition, an addition of City of Lubbock, Lubbock County, Texas (Street address: 902 East 34th Street, Lubbock[,] Texas)

The trial court further found that KCCC tendered a check for $7,500 for the purchase of the subject property, but, Quality did not negotiate the cheek. Subsequently, Quality filed the 2006 lawsuit seeking to set aside the “exercise of the option to purchase.” Finally, the trial court found, in finding of fact 10, that:

The parties discussed the issues in dispute between them and on November 6, 2006, KCCC filed its “First Answer of Defendant,” stating that the case had been settled in accordance with the option to purchase dated March 24, 2004, and the Notice of Lease with Option to Purchase and Notice of Exercise of Option to Purchase filed in the Official Public Records of Lubbock County, Texas (document number 2006022694).

Our review of the record reveals that these findings of fact are supported by the exhibits offered and the testimony of the witnesses. Thus, we have determined that the evidence is legally sufficient to support the findings of fact. City of Keller, 168 S.W.3d at 810-11. From a factual sufficiency perspective, we cannot say that the evidence supporting the finding is so weak or so against the overwhelming weight of the evidence that the findings are clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 242.

When these findings, and the evidence supporting them, are applied to the law of res judicata, we are left with the conclusion that the subject matter of the 2006 lawsuit was limited to Tract I. Citizens Ins. Co. of Am., 217 S.W.3d at 449. This being so, KCCC, as the proponent of res judicata, has failed to prove the third element of a claim of res judicata, that the second action is based on the same claims that were raised or could have been raised in the first action. Amstadt, 919 S.W.2d at 652. Accordingly, we overrule KCCC’s first issue.

Error in Granting Reformation

By its second issue, KCCC contends that the trial court erred in granting reformation of the deed in question because Quality was conclusively bound by the terms of the documents previously executed between the parties. It is unclear whether KCCC’s alternative second issue is attacking the legal sufficiency of the evidence to support the trial court’s judgment of reformation of the deed or the trial court’s application of the law to the facts. We will address each argument, beginning with the second argument.

If KCCC is attacking the trial court’s application of the law to the facts as found by the trial court, we view the issue as simply a recasting of the argument made by KCCC in its first issue. As we have determined that issue, we will not further address that issue.

If KCCC is claiming that the evidence was legally insufficient to support the trial court’s judgment, then we are left with trial court findings that have not been challenged on appeal. These unchallenged findings are binding upon this court, unless the contrary is established as a matter of law. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986). With that understanding, we will analyze the issue under the standards of review for a challenge to the legal sufficiency of the evidence, as set forth above.

Reformation of a deed

In Davis v. Grammer, 750 S.W.2d 766, 768 (Tex.1988), the Texas Supreme Court noted that a party is entitled to reformation of a deed upon proving that the parties to a transaction had reached an agreement but the deed executed by the parties did not reflect the true agreement because of mutual mistake. Previously, the Texas Supreme Court had stated that, “Equity has jurisdiction to reform written instruments in cases of mutual mistake, but a written contract will not be reformed in equity because of a mistake, in the absence of fraud, unless it is mutual, that is, common to both parties, and each under the same mistake as to its terms.” St. Paul Fire & Marine Ins. Co. v. Culwell, 62 S.W.2d 100, 101 (Tex.Com.App.1933). Further, the Court has reaffirmed that mutual mistake is not determined by self-serving statements of the parties’ intent, but rather solely by objective circumstances surrounding the execution of the deed. See Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746, 751 (Tex.2009). Finally, courts are authorized to award rescission to avoid unjust enrichment in cases based upon mistakes. Id.

Analysis

The trial court’s findings of fact, as set forth in detail in the first issue, and the evidence reflected in the record at trial, support the proposition that the parties had reached an agreement concerning Tract I. The record also supports the proposition that Tract I was the only subject matter of the earlier lawsuit. Additionally, the trial court found, and the record supports, that both parties believed that KCCC was buying only Tract I from Quality. See St. Paul Fire & Marine Ins. Co., 62 S.W.2d at 101. Therefore, both parties executed the deed in question under the belief that they were transferring Tract I alone. Yet, their actions had the result of transferring Tract II to KCCC despite the expressed desire, as found by the trial court, to transfer only Tract I. See Myrad Properties, Inc., 300 S.W.3d at 751. According to the findings of the trial court, as supported by the record, KCCC would be unjustly enriched if the deed was not reformed. See id. All of these facts found by the trial court support the reformation of the deed and are unchallenged. See McGalliard, 722 S.W.2d at 696. Therefore, we overrule KCCC’s second issue.

Conclusion

Having overruled KCCC’s two issues, we affirm the judgment of the trial court.

      . Quality denied the authority of Jack Basden to execute a lease with option to purchase.

      . The 2006 lawsuit was number 2006-536,-901, filed in the 72nd District Court of Lubbock County, Texas.


author: Justice LANG-MIERS.

text:
    Jerry GUMPERT and Martin Coyne, Appellants, v. ABF FREIGHT SYSTEM, INC., Appellee.
    No. 05-09-00064-CV.
    Court of Appeals of Texas, Dallas.
    May 3, 2010.

      Carl Adams, Robert E. Goodman, Jr., Attorney at Law, Dallas, TX, for Appellants.
    Michael Andrew McCabe, Munck Carter, PC, Dallas, TX, for Appellee.
    Before Justices BRIDGES, LANG, and LANG-MIERS.
   OPINION

Opinion By

Justice LANG-MIERS.

This is an appeal from a postjudgment order denying Jerry Gumpert and Martin Coyne’s motion to retax costs and awarding costs to ABF Freight System, Inc. in the amount of $20,434.51. For the following reasons, we vacate the trial court’s order and remand for further proceedings.

Background

After prevailing in the lawsuit below, ABF filed its original itemized bill of costs in the amount of $34,047.70. Appellants filed written objections. Subsequently, ABF filed the district clerk’s certified bill of costs listing ABF’s taxable costs in the amount of $20,434.51. Appellants filed a motion to retax costs, arguing that the certified bill of costs improperly included the costs to videotape depositions and obtain copies of deposition transcripts that are not recoverable as taxable costs. After a hearing, the trial court denied appellants’ motion to retax costs and ruled that good cause existed to award ABF its costs of $20,434.51. Appellants appeal, arguing that the trial court erred by denying its motion to retax costs.

Standard of Review

A successful party is entitled to recover its costs from its adversary. Tex.R. Civ. P. 131. A party that wishes to challenge items contained in the clerk’s bill of costs must file a motion to retax costs. See Wood v. Wood, 159 Tex. 850, 320 S.W.2d 807, 812-13 (1959). Awarding costs is largely a matter of trial court discretion. Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 630 (Tex.App.-Dallas 2004, pet. denied); Shaikh v. Aerovias de Mexico, 127 S.W.3d 76, 82 (Tex.App.-Houston [1st Dist.] 2003, no pet.). We may reverse a trial court for abuse of discretion only if, after searching the record, it is clear the court’s decision was arbitrary and unreasonable. See City of Houston v. Woods, 138 S.W.3d 574, 580 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (citing Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987)).

The general rule in Texas is that expenses incurred in prosecuting or defending a suit are not recoverable as costs unless recovery for those items is expressly provided for by statute, rule, or under principles of equity. Ferry v. Sackett, 204 S.W.3d 911, 912 (TexApp.-Dallas 2006, no pet.); Phillips v. Wertz, 579 S.W.2d 279, 280 (Tex.Civ.App.-Dallas 1979, writ ref'd n.r.e.); Shaikh, 127 S.W.3d at 82. Whether a particular expense is recoverable under statute or rule as a court cost is a question of law, which we review de novo. Sackett, 204 S.W.3d at 912.

Discussion

Appellants contend that the trial court erred by denying their motion to retax costs. They first challenge the trial court’s award of the costs to videotape depositions and obtain copies of deposition transcripts because they contend that recovery of those costs are not authorized by statute or rule. They also contend that the trial court erred by awarding those costs to ABF for “good cause.” ABF contends that our review of appellants’ issues is precluded because appellants did not object to the clerk’s certified bill of costs and the objections were not specific. We address each issue in turn.

A. Are the issues preserved for appellate review?

ABF argues that appellants did not preserve their objections for review because the written objections challenged ABF’s original bill of costs, not the clerk’s certified bill of costs. We disagree. In an amended motion to retax costs, appellants objected to the costs itemized in the clerk’s certified bill of costs and expressly reurged their earlier objections. In addition, appellants orally objected at the hearing to the certified bill of costs on the same grounds they raise on appeal, and the record indicates that the trial court impliedly, if not expressly, overruled those objections. We conclude that appellants preserved this issue for our review. Tex. R.App. P. 33.1(a)(1).

ABF also contends that, even if we sustain both of appellants’ issues, we must affirm the trial court’s order because appellants did not point out specifically which items in the bill of costs should have been excluded. Again, we disagree. A party moving to retax costs may satisfy the specificity requirement by stating which items should have been included in the bill of costs or which items should have been excluded. See Allen v. Woodson, 60 Tex. 651, 654 (1884). Appellants argued at the hearing on the motion to retax costs that all costs to videotape depositions and all other deposition costs except the plaintiffs’ written depositions were improperly included in the bill of costs. We conclude that appellants satisfied the specificity requirement. See id.

B. Are the costs to videotape depositions and obtain copies of deposition transcripts taxable as court costs?

Appellants argue that there is no statute or rule that authorizes the recovery of the costs to videotape a deposition or to obtain copies of deposition transcripts. They also argue that civil procedure rule 140 specifically prohibits the taxing of copies as costs. See Tex.R. Civ. P. 140 (“No fee for a copy of a paper not required by law or these rules to be copied shall be taxed in the bill of costs.”).

ABF argues that deposition expenses are properly taxed as costs and are recoverable under section 31.007(b) of the Texas Civil Practice and Remedies Code:

(b) A judge of any court may include in any order or judgment all costs, including the following:
(1) fees of the clerk and service fees due the county;
(2) fees of the court reporter for the original of stenographic transcripts necessarily obtained for use in the suit;
(4) such other costs and fees as may be permitted by these rules and state statutes.

Tex. Civ. Prac. & Rem.Code Ann. § 31.007(b) (Vernon 2008). It contends that Texas courts have “routinely allowed recovery of items such as deposition costs and filings, transcripts, and subpoena/citation fees so long as they were ‘necessarily obtained for use in the suit and were used to question witnesses and prepare for argument.’ ”

The specific issues of whether the costs of videotaping depositions and copying deposition transcripts are taxable as court costs are issues of first impression in this Court. ABF cites several cases to support its argument that those costs are taxable. Only three of those cases, however, dealt with the specific issues confronting us, and two of those did not reach the merits.

In Operation Rescue-National v. Planned Parenthood of Houston & Southeast Texas, Inc., 937 S.W.2d 60, 87 (Tex.App.-Houston [14th Dist.] 1996), aff’d as modified, 975 S.W.2d 546 (Tex.1998), the prevailing party sought to recover the costs of, among other things, obtaining copies of transcripts of depositions it did not take. Although the court stated that “[a]ll of these [challenged] costs were necessary to the conduct of trial,” it did not reach the merits of whether the costs to copy deposition transcripts were taxable as costs. There was no record of the hearing on the motion to retax costs, and the court concluded that it could not determine whether the trial court abused its discretion without a record. Id. at 88.

Similarly, in Fasken Land & Minerals, Ltd. v. Occidental Permian Ltd., 225 S.W.3d 577, 596 (Tex.App.-El Paso 2005, pet. denied), the appellant challenged the recovery of costs for videotaping depositions and copying deposition transcripts. The court observed that the defendants’ statement of costs was supported by affidavits that the depositions and transcripts were “necessarily obtained for use in the suit and were used to question witnesses and prepare for argument at trial.” Id. The court stated that “[c]osts which are necessary to the conduct of trial may be recoverable.” Id. at 597 (citing Operation Rescue, 937 S.W.2d at 88). But the Fasken court did not examine the merits of whether those costs were taxable as costs because the appellant did not specifically point out which items were purportedly improperly taxed. Id.

In Crescendo Investments, Inc. v. Brice, 61 S.W.3d 465, 480 (Tex.App.-San Antonio 2001, pet. denied), the appellant challenged the trial court’s award of the costs for certified copies of depositions and trial transcripts. The court cited the language of section 31.007(b)(2) and held that “[t]ranscripts ‘necessarily obtained for use in the suit’ seems to obviously include depositions ... used to question witnesses and prepare for argument at trial.” Id. at 480-81 (quoting Tex. Civ. Prac. & Rem.Code Ann. § 31.007(b)(2)). It also concluded that obtaining certified copies of depositions does not constitute “making copies” as prohibited by civil procedure rule 140. Id. at 481.

Conversely, other courts have concluded that the costs to videotape depositions and obtain copies of deposition transcripts are not recoverable as taxable costs. See Matbon, Inc. v. Gries, 288 S.W.3d 471, 487 (Tex.App.-Eastland 2009, no pet.); Shaikh, 127 S.W.3d at 82. As those courts explain, the term “costs” usually refers to fees and charges required by law to be paid to the court or its officers. Matbon, 288 S.W.3d at 487; Shaikh, 127 S.W.3d at 82. See Sterling Bank v. Willard M, L.L.C., 221 S.W.3d 121, 125 (TexApp.-Houston [1st Dist.] 2006, no pet.). It does not include ordinary expenses incurred in prosecuting or defending a lawsuit. Griffin v. Carson, No. 01-08-00340-CV, 2009 WL 1493467, at *6 (Tex.App.-Houston [1st Dist.] May 28, 2009, pet. denied) (mem.op.); Willard M, L.L.C., 221 S.W.3d at 125; Shaikh, 127 S.W.3d at 82. See Sackett, 204 S.W:3d at 912 (recognizing general rule that costs not recoverable unless expressly provided for by statute, rule, or under principles of equity); Shenandoah Assocs. v. J & K Props., Inc., 741 S.W.2d 470, 486-87 (Tex.App.-Dallas 1987, writ denied) (same).

We agree with these latter cases. The statute that applies here specifically limits recovery of costs to the “fees of the court reporter for the original of stenographic transcripts necessarily obtained for use in the suit” and “such other costs and fees ais may be permitted by these rules and state statutes.” Tex. Civ. Prao. & Rem.Code Ann. § 31.007(b)(2), (4) (emphasis added). See Tex.R. Civ. P. 203.2(f) (stating clerk of court must tax charges for preparing original deposition transcript as costs). Civil procedure rule 140 specifically states that “[n]o fee for a copy of a paper not required by law or these rules to be copied shall be taxed in the bill of costs.” Tex.R. Civ. P. 140. We have not found any rule or statute that requires a party to videotape a deposition or to obtain a copy of a deposition, and ABF cites to none. And we do not find any language in an applicable statute or rule that allows a party to recover as costs the expenses of videotaping depositions or copying deposition transcripts, or any general language that allows recovery as costs for expenses that were “necessary to the conduct of trial” or “necessarily obtained for use in the suit and were used to question witnesses and prepare for argument at trial.”

In summary, because no statute or rule authorizes the recovery of the costs to videotape a deposition or obtain a copy of a deposition transcript, we conclude that the trial court erred by awarding ABF those costs.

C. May costs not authorized by statute or rule be awarded for “good cause”?

ABF argues that even if the costs to videotape a deposition or obtain a copy of a deposition transcript are not taxable as costs, the trial court’s order must be affirmed because the court found there was good cause to award those costs. See Tex.R. Civ. P. 141 (“A court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules.”). Appellants contend that rule 141 does not give the trial court the discretion to award otherwise non-taxable items for good cause. We agree with appellants.

Rule 141 has been interpreted to mean that a trial court may adjudge costs against a party other than the prevailing party if it has good cause to do so. See Operation Rescue, 937 S.W.2d at 87. As the Brice court pointed out, there is a difference between adjudging costs (deciding who shall pay) and deciding which costs to assess. Id. Although a trial court has discretion to adjudge costs, the power to tax costs does not include the power to tax items normally not allowed under statute or rule. Griffin, 2009 WL 1493467, at *6; Matbon, 288 S.W.3d at 487; Willard M, L.L.C., 221 S.W.3d at 125; Shaikh, 127 S.W.3d at 82.

In this case, the trial court’s order states there was good cause to award the costs of videotaping depositions and obtaining copies of deposition transcripts to ABF because ABF used those copies and videotapes to “defend the lawsuit, ... to prepare for trial, ... to prepare witnesses for trial, to question witnesses in subsequent depositions, and for counsel to prepare for depositions and trial, including counsel’s anticipated argument at trial.” But these are ordinary expenses of prosecuting or defending a lawsuit for which there is no recovery authorized by statute or rule. See Griffin, 2009 WL 1493467, at *6; Willard M, L.L.C., 221 S.W.3d at 125; Shaikh, 127 S.W.3d at 82.

Because we have concluded that the costs to videotape depositions and obtain copies of deposition transcripts are not taxable as costs, we further conclude that the trial court abused its discretion by awarding those costs for good cause.

We sustain appellants’ two issues.

Conclusion

The trial court did not have the benefit of our analysis at the time it denied the motion to retax costs. Accordingly, we believe the best resolution is to give the trial court the opportunity to recalculate the taxable costs. We vacate the trial court’s order and remand this cause for further proceedings.

      . See Wallace v. Briggs, 162 Tex. 485, 492, 348 S.W.2d 523, 527 (1961); Shenandoah Assocs. v. J & K Props., Inc., 741 S.W.2d 470, 487 (Tex.App.-Dallas 1987, writ denied); Fasken Land & Mins. Ltd. v. Occidental Permian Ltd., 225 S.W.3d 577, 596 (Tex.App.-El Paso 2005, pet. denied); Crescendo Invs., Inc. v. Brice, 61 S.W.3d 465, 480-81 (Tex.App.San Antonio 2001, pet. denied); Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 937 S.W.2d 60, 86-88 (Tex.App.-Houston [14th Dist.] 1996), aff’d as modified, 975 S.W.2d 546 (Tex.1998); Allen v. Crabtree, 936 S.W.2d 6, 8 (Tex.App.-Texarkana 1996, no writ). We conclude that the Wallace, Shenandoah, and Allen cases do not apply here. The Wallace case involved the recovery of costs for taking depositions, not for obtaining a copy of a deposition the party did not take or for videotaping a deposition. See Wallace, 162 Tex. at 492, 348 S.W.2d at 527. In Shenandoah, we concluded that deposition costs were recoverable. Shenandoah, 741 S.W.2d at 487. Although we did not specifically state that those costs were for taking the depositions, as opposed to obtaining copies of deposition transcripts, we did recognize the general rule that only costs authorized by statute or rule are recoverable as taxable costs. See id. at 486-87. And the Allen case involved the question of whether costs for copying medical records, not depositions, were recoverable. Allen, 936 S.W.2d at 7.

      . See Operation Rescue, 937 S.W.2d at 87.

      . See Fasken Land & Minerals, 225 S.W.3d at 596; Brice, 61 S.W.3d at 480-81.