UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-50476

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JOHN R. HAWKINS, SR.; PENNY LEWIS; DOLORES MOORE;

ERNESTINE PATRICK,

Plaintiffs - Appellants,

versus

BURLESON COUNTY, TEXAS; EVELYN M. HENRY, County Clerk; 

CRAIG BOYETT, Deputy Sheriff; RONALD URBANOVSKY, Sheriff,

Defendants - Appellees.

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Appeal from the United States District Court for the

Western District of Texas

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* * * * * * 

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No. 95-50543

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JOHN R. HAWKINS, SR.; PENNY LEWIS; DOLORES MOORE;

ERNESTINE PATRICK,

Plaintiffs - Appellants

Cross-Appellees,

versus

BURLESON COUNTY, TEXAS,

Defendant - Appellee,

EVELYN M. HENRY, County Clerk; CRAIG BOYETT, Deputy Sheriff;

RONALD URBANOVSKY, Sheriff,

Defendants - Appellees

Cross-Appellants.
*Pursuant to Local Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in Local Rule 47.5.4.

2

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Appeal from the United States District Court for the

Western District of Texas

(A-93-CV-791)

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June 26, 1996

Before BENAVIDES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

This is a consolidated appeal. The case involves: an appeal

from a partial summary judgment order, an appeal from a takenothing final judgment in favor of the Defendants, and a crossappeal by the Defendants on costs. 

In No. 95-50476, Plaintiffs-Appellants appeal from a partial

summary judgment dismissing all claims against Burleson County and

dismissing claims based upon violations of the Eighth and

Fourteenth Amendments against the remaining Defendants. Having

carefully considered the record, the briefs, and the argument of

counsel, we affirm basically for the reasons set forth in the

magistrate judge's recommendation that was adopted by the district

court.

In No. 95-50543, Plaintiffs-Appellants appeal from a takenothing judgment in favor of Defendants. In its verdict, the jury

rejected the bulk of Plaintiffs' claims including finding no First

or Fourth Amendment violation, no conspiracy to violate

constitutional rights, no false imprisonment or conspiracy to

falsely imprison, and no intentional infliction of emotional
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distress. The jury found for the Plaintiffs on a single negligence

claim only as to one defendant, Evelyn Henry. Most importantly,

the jury found zero actual damages. Nonetheless, the jury awarded

$400 in punitive damages. 

The district court properly entered a take-nothing judgment.

The evidence is legally sufficient to support the jury's zero

damage finding. Under Texas law, proximately-caused damages is an

element of negligence. See Greater Houston Transp. Co. v.

Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Likewise, as a matter

of law, punitive damages cannot be awarded absent a finding of

actual damages. See Federal Express Corp. v. Dutschmann, 846

S.W.2d 282, 284 (Tex. 1993). The zero actual damage finding

requires the take-nothing judgment.

In one respect, however, the final judgment must be remanded.

In the final judgment, the district court ordered all parties to

bear their own costs. On cross-appeal, Defendants contend that as

the prevailing party they are entitled to costs. Rule 54(d)

provides that costs shall be allowed as of course to the prevailing

party unless the court otherwise directs. Fed. R. Civ. P. 54(d).

Even though the rule does not prevent a court from requiring a

prevailing party to bear its own costs, the intent of the rule is

that the prevailing party is entitled to costs and denial is a form

of penalty. Walters v. Roadway Express, Inc., 557 F.2d 521, 526

(5th Cir. 1977). When a trial court exacts such a penalty, it

should state a reason for its decision. Id. A trial court abuses

its discretion when it provides no reasons for the denial. Id. ;

Hall v. State Farm Fire & Casualty Co., 937 F.2d 210, 216-17 (5th
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Cir. 1991).

The final judgment of the district court ordered the

plaintiffs "take nothing by any of their claims against any of the

Defendants." The Defendants were "hereby dismissed with

prejudice." The Defendants are the prevailing party. However, the

final judgment ordered that "[c]osts of Court in this case shall be

borne by the party bearing such." The district court did not,

however, articulate any reason for the denial of costs to the

prevailing party. Consequently, we remand the matter of costs to

the district court for it to state a justification for its denial

or alternatively to grant their motion for costs. See Hall, 937

F.2d at 217; Walters, 557 F.2d at 526-27. 

The summary judgment order in No. 95-50476 is AFFIRMED. The

final judgment order in No. 95-50543 is AFFIRMED IN PART and

REMANDED IN PART, solely on the issue of costs.