Opinion issued July 11, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-17-00875-CV

———————————

JOHN RUFF AND CATHERINE LOTH, INDIVIDUALLY AND AS NEXT 

FRIENDS OF A.R., A MINOR CHILD, Appellants

V.

THE UNIVERSITY OF ST. THOMAS, Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2016-19616

O P I N I O N

Appellants John Ruff and Catherine Loth, as next friends1 of their daughter, 

A.R., appeal the trial court’s reduction of the $5,900 damage award made by the 

 

1 Ruff and Loth brought claims both in their personal capacities and in their 

capacities as A.R.’s next friends. However, the trial court’s judgment 
2

jury for injuries that A.R. sustained on the premises of appellee the University of 

St. Thomas (the “University”). Ruff and Loth contend that the common-law 

doctrine of parental immunity, as applied by the Supreme Court of Texas,

prohibited the trial court from reducing the award under the 

apportionment-of-responsibility provisions of Chapter 33 of the Civil Practice & 

Remedies Code. They also contend that the trial court abused its discretion by 

declining to adjudge costs entirely in their favor as the “successful parties” in the 

suit.

Parental immunity prevents Chapter 33 apportionment of responsibility on 

this record. Our disposition of that issue requires remand to the trial court for a 

determination of court costs. Therefore, we reverse and remand for further 

proceedings.

Background

Ruff and Loth are the parents of A.R., who was one year old at the time of 

this incident. Ruff and Loth attend religious services at a chapel on the 

University’s premises. During one service in the past, A.R. made some noise, and 

 

dismissed their personal-capacity claims, and Ruff and Loth do not present 

any argument before us contesting that dismissal. Therefore, only the 

next-friend claims are before us. We will, however, maintain the style of the 

case as it was in the trial court’s judgment. See Owens v. Handyside, 478 

S.W.3d 172, 175 n.1 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).
3

the celebrant of the mass asked them not to bring A.R. into the chapel during 

services.

Ruff and Loth attended the service in question and, because of the previous 

request, remained with A.R. in the narthex area just outside the chapel. Loth’s 

sister attended the service too and remained in the narthex area with Ruff, Loth, 

and A.R.

The University had provided benches in the narthex, which were available 

for use. While sitting on one of the benches in the narthex, Loth set A.R. on the 

ground so A.R. could go over to Loth’s sister on another nearby bench. While A.R. 

was moving along the floor, she put her hand on a light fixture embedded in the 

floor. A.R.’s hand was burned and blistered. Ruff and Loth took A.R. to an 

emergency-care facility, where A.R. received treatment. She received further 

treatment at later appointments with her primary-care doctor.

Ruff and Loth, as A.R.’s next friends, sued the University, seeking a 

recovery for A.R. for the physical pain and mental anguish sustained due to the 

injuries to her hand. The University answered and pleaded for the application of 

apportionment of responsibility under Sections 33.003, 33.012(a), and 33.013(a) of 

Chapter 33.

The suit proceeded to trial. Before evidence was presented, Ruff and Loth 

moved for a ruling in limine prohibiting the University from referencing the
4

parents’ alleged negligence. The University objected to that request, arguing that it 

pleaded the parents’ negligence and Chapter 33 and that it “should be able to 

allude or make reference to the negligence of the parents in regards to injuries that 

the child sustained.” Ruff and Loth disagreed, responding that “there’s no 

contributory negligence” because “there’s been no waiver of a parental immunity.” 

The trial court denied Ruff’s and Loth’s motion in limine, ruling that “the 

parental-immunity doctrine does not apply here” and that “nobody needs to 

approach before going into evidence of parental contributory negligence in this 

case.”

During the presentation of evidence, the University’s counsel examined Loth 

about what she was doing when she set A.R. on the ground in the narthex and 

while A.R. was moving toward Loth’s sister. Amid this line of questioning, the 

University’s counsel asked Loth, “so not knowing whether the lights were on or 

off, you allowed [A.R.] to crawl in the area on the concrete?” This drew an 

objection from Ruff’s and Loth’s counsel based on parental immunity, but the trial 

court responded that it had “ruled on that.” Ruff’s and Loth’s counsel asked for a 

running objection along those lines. When the University’s counsel later returned 

to the topic, asking Loth, “you could have prevented [A.R.] from touching those 

lights, couldn’t you,” Ruff’s and Loth’s counsel reiterated the running objection, 

which the trial court overruled.
5

The suit was submitted to the jury in three questions. Question 1 asked for 

“Yes” or “No” answers on whether the negligence of either or both of the 

University or “John Ruff and/or Catherine Loth” proximately caused the injury in 

question. The jury answered “Yes” in both blanks.

Question 2 was conditioned on “Yes” answers in both blanks in Question 1 

and asked for an apportionment of percentages of responsibility between the 

University and “John Ruff and/or Catherine Loth.” The jury found each of the two 

sides liable for 50% responsibility.

Question 3 asked what sum of money, if paid now in cash, would provide 

fair and reasonable compensation for A.R.’s injuries, if any, that resulted from the 

injury in question. The jury answered “$5900” for physical pain and mental 

anguish sustained in the past, “$0” for physical impairment sustained in the past, 

and “$0” for disfigurement sustained in the past.

The trial court entered a judgment in A.R.’s favor on the jury’s verdict, but 

awarded A.R. only $2,950, which is 50% of $5,900.

Further, the judgment “ordered that all costs of court are taxed against the 

party incurring said cost” (all-capitalization removed). The court explained its 

costs ruling:

Well, I think that the record speaks for itself on the outcome of this 

case. And the determination of the award of costs is based on success. 

And I think in this matter, equity certainly supports splitting the costs. 

I’m not sure either party was what one would call “successful.” The 
6

award was not at all what the plaintiff sought. It was less than what 

the plaintiff was offered in settlement. The attorneys’ fees were 

probably five times at least what the jury awarded in damages. I don’t 

think it’s just based on the fact that the plaintiff received an award of 

damages. I think you have to look at the whole picture. Neither side 

really won this case. And I think that splitting the costs was fair.

Ruff and Loth appeal the judgment because it reduced A.R.’s $5,900 award 

by 50% and because it did not adjudge costs entirely in Ruff’s and Loth’s favor.

Entry of Judgment With Reduced Award

In their first issue, Ruff and Loth contend that “[t]he trial court erred in 

ignoring the doctrine of parental immunity and allowing the jury to apportion fault 

to” them as “A.R.’s parents.” They argue that the trial court erred “in overruling 

[their] objections and allowing [the University] to argue that the jury should 

consider parental contributory negligence.” And they argue that parental immunity

(i) bars the University’s “claim of contributory negligence against” them and 

(ii) makes Chapter 33 an impermissible “argument[,] and the trial court erred in 

allowing this argument to be presented to the jury and in allowing the jury to 

consider this argument in deliberations.”

To support their parental-immunity-based contention, Ruff and Loth rely on 

Shoemake v. Fogel, Ltd., 826 S.W.2d 933 (Tex. 1992). We discuss Shoemake in 

more detail below, but, there, the Supreme Court of Texas concluded that the court 

of appeals “erred in reforming the trial court’s judgment to reflect a . . . credit in 

favor of” a premises owner defending against the negligence claims of a mother on 
7

behalf of her child who died from injuries sustained at the owner’s swimming pool. 

Id. at 935, 938. The Supreme Court reached its conclusion over the premises 

owner’s claim for contribution against the child’s mother for the mother’s alleged 

negligence. Id. at 936–38.

Given Ruff’s and Loth’s arguments, and their reliance on Shoemake, we 

construe their first issue to be a contention that the trial court erred by entering a 

judgment that did not disregard the jury’s finding of 50% responsibility attributable 

to Ruff and Loth in response to a jury question allegedly rendered immaterial by

parental immunity.

I. Applicable Law and Standard of Review

A trial court’s judgment “shall conform to the pleadings, the nature of the 

case proved and the verdict, if any . . . ,” meaning that a trial court should enter its 

judgment in accord with the jury’s findings. TEX. R. CIV. P. 301. An exception 

exists when a jury finding is made in response to a question that is “immaterial”: a 

trial court may disregard a jury finding on an immaterial question when entering 

judgment. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 

1994); Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390, 394, 397 (Tex. 

App.—Houston [1st Dist.] 2013, pet. denied) (en banc).

A jury question is immaterial in several instances, one of which is when the 

question should not have been submitted. USAA Tex. Lloyds Co. v. Menchaca, 545 
8

S.W.3d 479, 506 (Tex. 2018); Spencer, 876 S.W.2d at 157. A question should not 

be submitted to the jury when the question is “legally defective” or when the 

question submits a theory that otherwise fails as a matter of law. See Fazio, 403 

S.W.3d at 394–96 (holding that jury question was “legally defective” because it 

submitted improper measure of damages); Soon Phat, L.P. v. Alvarado, 396 

S.W.3d 78, 93 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (holding that 

jury question on malicious-prosecution claim should not have been submitted 

because claim “was foreclosed as a matter of law”); Hall v. Hubco, Inc., 292 

S.W.3d 22, 27–28 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (holding 

that jury question on breach of contract should not have been submitted because 

alleged contract failed for lack of consideration).

2

When a judgment is successfully challenged for having improperly 

disregarded or having improperly failed to disregard immaterial jury questions, we 

may render the appropriate judgment. See Ford Motor Co. v. Ledesma, 242 S.W.3d 

32, 44–45 (Tex. 2007); Torrington Co. v. Stutzman, 46 S.W.3d 829, 839–40 (Tex. 

 

2 See also Jang Won Cho v. Kun Sik Kim, 572 S.W.3d 783, 795, 797–99, 815–

16 (Tex. App.—Houston [14th Dist.] 2019, no pet. h.) (holding that jury 

questions on breach of fiduciary duty should have been disregarded because 

no fiduciary relationship existed as a matter of law); Nelson v. Pasol, 

No. 13-15-00379-CV, 2017 WL 3634059, at *5 (Tex. App.—Corpus 

Christi–Edinburg Aug. 24, 2017, no pet.) (mem. op.) (holding that jury 

question was immaterial because it submitted claim that was barred by 

limitations).
9

2000); Vecellio Ins. Agency, Inc. v. Vanguard Underwriters Ins. Co., 127 S.W.3d 

134, 140–41 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

When a trial court’s entry of judgment is challenged for having improperly 

disregarded or having improperly failed to disregard immaterial jury questions 

because of a legal issue (as opposed to a factual one), we review the trial court’s 

ruling de novo. See Markovsky v. Kirby Tower, LP, No. 01-10-00738-CV, 2011 

WL 5429014, at *2 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, pet. denied) 

(mem. op.); Hall, 292 S.W.3d at 27–28.

II. Parental Immunity, Chapter 33 Percentages of Responsibility, and 

Their Interplay

The Texas common-law doctrine of “parental immunity” prevents “an 

unemancipated minor [from] bring[ing] a tort action against his or her parent” 

when the parent’s “alleged acts of ordinary negligence . . . involve a reasonable 

exercise of parental authority or the exercise of ordinary parental discretion with 

respect to provisions for the care and necessities of the child.” Shoemake, 826 

S.W.2d at 935–36 (citing and quoting Felderhoff v. Felderhoff, 473 S.W.2d 928, 

929–33 (Tex. 1971)). The doctrine is subject to certain exceptions not relevant 

here. Trial courts may properly refuse to apply parental immunity if no evidence 

supports its application or if its proponent fails to bring it to the court’s attention. 

See Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107, at *2 (Tex. 

App.—Corpus Christi–Edinburg Nov. 25, 2009, pet. denied) (mem. op.) (no 
10

evidence); Hudson v. City of Houston, No. 14-03-00565-CV, 2005 WL 3995160, 

at *3 n.8, 7 (Tex. App.—Houston [14th Dist.] Jan. 6, 2005, no pet.) (mem. op.) 

(parental-immunity appellate issue forfeited under Rule of Appellate 

Procedure 33.1(a) for failure to have raised parental immunity before trial court).

Parental immunity also restricts a tortfeasor’s contribution claim against an 

injured child’s parent in a suit by the parent on the child’s behalf. In Shoemake, 

Shoemake’s child died from injuries suffered at Fogel’s swimming pool. 826 

S.W.2d at 935. Shoemake sued Fogel, making (1) a wrongful-death claim in her 

personal capacity and (2) a survival claim as representative of her child’s estate. Id.

The jury awarded damages on both claims but apportioned to Shoemake 45% of 

the negligence that caused her child’s death. Id. Relying on Chapter 33, the trial 

court reduced Shoemake’s wrongful-death award by 45% but did not similarly 

reduce the child’s survival award. Id. Shoemake did not appeal the wrongful-death 

reduction, but Fogel appealed the lack of any reduction of the survival award. Id.

The court of appeals agreed with Fogel and held “that the requested contribution 

was available under sections 33.012 and 33.016 of the Texas Civil Practice and 

Remedies Code,”

3

and reformed the trial court’s judgment to reduce the survival 

 

3 As relevant to this suit, the versions of Sections 33.012(a), 33.013(a), and 

33.016 in effect when Shoemake was decided are not materially different 

from the current versions of those statutes. Compare Act of June 3, 1987, 

70th Leg., 1st C.S., ch. 2, §§ 2.08, 2.09, 2.11A, 1987 TEX. GEN. LAWS 37, 
11

award. Id. Shoemake applied for a writ of error from the Supreme Court of Texas, 

which reversed the court of appeals. Id.

The Court found that “Fogel’s claim of contribution depends upon whether 

[the child]’s estate has the right to recover damages from Shoemake.” Id. The 

Court then reviewed parental immunity and the allegations of Shoemake’s 

negligence. Id. at 935–36. Because Fogel alleged that Shoemake was negligent in 

the management, supervision, and control of her child, and because “[t]hose 

responsibilities entail exactly the sort of parental authority” that parental immunity 

protects, the child’s “estate ha[d] no viable negligence claim against Shoemake,” 

and therefore “Fogel ha[d] no viable contribution claim against Shoemake” for the 

survival claim. Id. at 936, 938. The Court concluded that the court of appeals erred 

by reforming the trial court’s judgment to reduce the survival award. Id. at 938.

The Court said that “Shoemake’s negligence does affect her recovery under the 

wrongful death statute; but it does not affect the recovery of her child’s estate 

under the survival statute.” Id.

Chapter 33 requires the factfinder, “as to each cause of action asserted,” to 

“determine the percentage of responsibility” for each “claimant,” “defendant,” 

“settling person,” and properly designated “responsible third party.” TEX. CIV.

PRAC. & REM. CODE § 33.003(a)(1)–(4). “This statutory mandate is not 

 

41–44 (amended 1995, 2003, 2005, 2007), with TEX. CIV. PRAC. & REM.

CODE §§ 33.012(a), .013(a), .016.
12

discretionary . . . .” F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 

694 (Tex. 2007).

The trial court will then (1) reduce a claimant’s recovery “with respect to a 

cause of action by a percentage equal to the claimant’s percentage of 

responsibility” and, (2) for a liable defendant that is not jointly and severally liable,

find that that “liable defendant is liable to a claimant only for the percentage of the 

damages found by the trier of fact equal to that defendant’s percentage of 

responsibility . . . .” See TEX. CIV. PRAC. & REM. CODE §§ 33.012(a), 33.013(a); 

Roberts v. Williamson, 111 S.W.3d 113, 122–23 (Tex. 2003). If there are multiple 

defendants, then an apportionment of responsibility will be made among all liable 

defendants in the lawsuit as well as any “contribution defendants,” who may not 

have been sued initially. See TEX. CIV. PRAC. & REM. CODE §§ 33.015–.016. A 

liable defendant may recover from a contribution defendant in proportion to the 

contribution defendant’s percentage of liability. See id.

Shoemake addressed the situation wherein suits are brought by a parent on 

his or her injured child’s behalf and a tortfeasor seeks a reduction in the child’s 

recovery due to the parent’s negligence. The Supreme Court noted that the court of 

appeals had “h[eld] that the requested contribution was available under 

sections 33.012 and 33.016 of the Texas Civil Practice and Remedies Code.” 

Shoemake, 826 S.W.2d at 935. But the Court, in reversing the court of appeals, 
13

concluded that the “recovery of [the] child’s estate” could not be reduced, due to

parental immunity. Id. at 938.

Thus, the Court applied parental immunity not only to Section 33.016 

contribution apportionments but also to apportionment under Sections 33.003 and 

33.012(a). The child’s recovery would not be reduced for the negligence of the 

parent by apportionment between joint tortfeasors because the Court concluded 

that parental immunity protected the child’s estate’s recovery from such a 

reduction.

Further, Shoemake’s reasoning extends to Section 33.013 as well, which 

governs reductions in defendants’ liability for damages in proportion to their own 

percentages of responsibility. That section refers to “a liable defendant” or “each 

liable defendant.” TEX. CIV. PRAC. & REM. CODE § 33.013(a), (b). Parental 

immunity, when it applies, prevents the parents from being a “liable defendant” 

with respect to any injuries suffered by their children and prevents the tortfeasor 

from using Section 33.013(a) to reduce its liability in proportion to any liability 

that may have been apportioned to the injured child’s parents. See Plainview 

Motels, Inc. v. Reynolds, 127 S.W.3d 21, 41 (Tex. App.—Tyler 2003, pet. denied).

Both the Eighth and Twelfth Courts of Appeals have applied Shoemake in 

similar ways. In Gem Homes, Inc. v. Contreras, 861 S.W.2d 449 (Tex. App.—

El Paso 1993, writ denied), Contreras sued Gem Homes for the wrongful death of 
14

his wife both in his personal capacity and as next friend to his children. Id. at 452. 

The Contreras family lived in a mobile home sold and delivered to the farm where

Contreras worked by Gem Homes. Id. No one ever anchored the mobile home to 

the ground, so when a violent storm later passed through, it upended the mobile 

home, resulting in the death of Contreras’s wife. Id. The jury awarded Contreras

and his children damages for his wife’s death but apportioned 5% of the 

responsibility to her, and the trial court reduced the award to the children by that 

5%. Id. at 452, 459. The court of appeals reversed this reduction, relying on 

Shoemake and reasoning that parental immunity applied because Contreras’s 

wife’s responsibility stemmed from decisions that “f[e]ll within the ambit of 

parental care and supervision” and that were therefore “acts of discretion for which 

her children could not have held her legally liable.” Id. at 459–60.

In Plainview Motels, Reynolds and his minor son were visiting Surplus 

Sales’s premises so Reynolds could look through a stack of mirrors. Id. at 28. 

Several of the mirrors fell over, severely injuring Reynolds and his son, who was 

standing at his father’s feet. Id. The jury awarded Reynolds’s son damages and

apportioned 50% of the negligence to Surplus Sales. Id. at 41 & n.10. The trial 

court did not reduce Reynolds’s son’s recovery by 50%, and Surplus Sales 

appealed. Id. at 41. The court of appeals referenced Section 33.013(a) but relied on

Shoemake to apply parental immunity to the statute:
15

When a defendant is not jointly and severally liable, liability is 

calculated by multiplying the defendant’s percentage of fault by the 

total amount of damages. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.013(a) (Vernon 1997). However, where the parental immunity 

doctrine bars legal action by a child against his parents, that child’s 

recovery from other defendants is not reduced by his parents’

percentage of negligence. See Shoemake v. Fogel, Ltd., 826 S.W.2d 

933, 938 (Tex. 1992).

Id. (other internal citation omitted).

With the principles of parental immunity in mind, we turn to Ruff’s and 

Loth’s issues on appeal.

III. Parental Immunity and the Trial Court’s Damage Apportionment

The jury awarded $5,900 for A.R.’s injuries. The trial court entered 

judgment awarding A.R. only half that amount because the jury apportioned

responsibility 50% each to the University and “John Ruff and/or Catherine Loth.” 

Ruff and Loth contend that the trial court should have disregarded the jury’s 

apportionment finding in entering judgment.

Ruff and Loth argue that parental immunity applies to the facts underlying 

their alleged negligence, and the University does not appear to argue otherwise. 

Ruff’s and Loth’s alleged negligent acts or failure to act in supervising A.R. fall 

within the purview of parental supervision and care, which parental immunity 

protects.

Testimony established that the injury happened when Loth put A.R. on the 

ground to crawl to Loth’s sister sitting nearby. The University’s counsel asked 
16

Loth, “so not knowing whether the lights were on or off, you allowed [A.R.] to 

crawl in the area on the concrete?” Ruff’s and Loth’s counsel objected on

parental-immunity grounds, but, because the trial court had denied the earlier 

motion in limine, the court said that it had “ruled on that” already. Ruff’s and 

Loth’s counsel asked for a running objection on the topic. When the University’s 

counsel soon thereafter asked Loth, “you could have prevented [A.R.] from 

touching those lights, couldn’t you,” Ruff’s and Loth’s counsel reiterated the 

running objection, which the trial court overruled.

The University’s counsel emphasized the parents’ negligence in her closing 

argument. She read Loth’s deposition testimony: “You could have prevented this 

accident from happening, couldn’t you? Response by the Plaintiff, Catherine Loth, 

‘Yes.’ She could have prevented this accident from happening.” She contrasted 

what Ruff and Loth were doing when A.R. was injured with the hypothetical 

alternatives of “not put[ing] my child on the concrete to crawl, light present or 

not”; “check[ing] to see if the lights are on”; and not “mak[ing] an assumption” 

about whether the light was hot but instead touching it herself to check. She 

concluded, “when you’re parenting or when you’re responsible for small folks, you 

don’t get to blame someone else when something happens, especially when you’re 

supervising that child.”
17

These questions and arguments are addressed to the sort of “reasonable 

exercise of parental authority or the exercise of ordinary parental discretion” that 

parental immunity protects. See Shoemake, 826 S.W.2d at 935–36. Therefore, 

parental immunity applies to the acts forming the basis of Ruff’s and Loth’s 50% 

of the responsibility. See id. at 935–36, 938; Plainview Motels, 127 S.W.3d at 41–

42 & n.10; Gem Homes, 861 S.W.2d at 459–60.

The apportionment question had only two blanks—one for the University 

and one for “John Ruff and/or Catherine Loth.” But, for purposes of A.R.’s claims, 

parental immunity prohibits any reduction in the damages to be awarded to A.R. 

due to any fault apportioned to Ruff or Loth regardless of whether Ruff and Loth 

were “claimants” or “defendants” under Sections 33.012(a) or 33.013(a) or 

whether they were “contribution” defendants under Section 33.016. The only 

purpose for submitting the apportionment question was to achieve a Chapter 33 

reduction of damages owed by the University to A.R., which parental immunity 

barred as a matter of law. Therefore, the question was immaterial, and the jury’s 

answers to it should have been disregarded by the trial court in entering its 

judgment. See Fazio, 403 S.W.3d at 394–96; Soon Phat, 396 S.W.3d at 93; Hall, 

292 S.W.3d at 27–28.

The University argues that parental immunity does not apply here because 

Shoemake dealt with a contribution claim and not with the damages-reducing 
18

effects of apportionment under Sections 33.003, 33.012, and 33.013. The 

University further argues that “parental immunity does not preclude a jury from 

apportioning fault” under the applicable statutes.4

However, Shoemake referred to Section 33.012 and Plainview Motels to 

Section 33.013(a). Neither case can be cited for the proposition that parental 

immunity reaches contribution apportionment but not apportionment under 

Sections 33.003, 33.012(a), and 33.013(a). Indeed, the court in Plainview Motels

reasoned that the Section 33.012(a) ruling in Shoemake leads to a similar 

conclusion with regard to Section 33.013(a).

As to the second argument, even if it is correct, it does not change the 

outcome. If it was indeed within the jury’s purview to apportion responsibility 

between the University and “John Ruff and/or Catherine Loth,” any reduction in 

the University’s liability for A.R.’s recovery as a result was barred by parental 

immunity as a matter of law.

Accordingly, we sustain Ruff’s and Loth’s first issue. Judgment should not 

have been entered taking into account the apportionment findings because the 

apportionment question was immaterial. We therefore render judgment in A.R.’s 

favor in the full amount of the jury’s $5,900 damage award. See Ford Motor, 242 

 

4 This suit does not involve an apportionment question that includes blanks for 

additional parties beyond the parent(s) and a single liable defendant. A 

question seeking apportionment of responsibility among multiple defendants 

may serve other purposes that are not present in this case.
19

S.W.3d at 44–45; Torrington, 46 S.W.3d at 839–40; Vecellio Ins. Agency, 127 

S.W.3d at 140–41.

Our disposition means that we need not address Ruff’s and Loth’s second 

appellate issue. See TEX. R. APP. P. 47.1.

Costs

In their third issue, Ruff and Loth contend that the trial court abused its 

discretion in not adjudging all costs in their favor as the successful parties in the 

suit.

The successful party to a suit should ordinarily recover his or her costs, but a 

trial court may adjudge costs otherwise, so long as the court states good cause for 

the ruling on the record. See TEX. R. CIV. P. 131, 141. Good cause is determined on 

a case-by-case basis. See Furr’s Supermkts., Inc. v. Bethune, 53 S.W.3d 375, 376–

77 (Tex. 2001). We review the trial court’s costs ruling for an abuse of discretion. 

Henry v. Masson, 453 S.W.3d 43, 50 (Tex. App.—Houston [1st Dist.] 2014, no 

pet.).

The trial court must evaluate how costs should be adjudged in light of the 

result of this appeal and its effect on any finding of good cause. See Landing Cmty. 

Improvement Ass’n, Inc. v. Young, No. 01-15-00816-CV, 2018 WL 2305540, at 

*23 (Tex. App.—Houston [1st Dist.] May 22, 2018, pet. filed) (mem. op.); 

Recognition Commc’ns, Inc. v. Am. Auto. Ass’n, Inc., 154 S.W.3d 878, 895 (Tex. 
20

App.—Dallas 2005, pet. denied). Accordingly, we sustain Ruff’s and Loth’s third 

issue.

5

Conclusion

We reverse the judgment of the trial court insofar as it reduced the jury’s 

$5,900 damages award to A.R., render judgment for the full amount of that award, 

and remand for further proceedings consistent with this opinion.

Russell Lloyd

Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Hightower, J., concurring.

 

5 The concurrence correctly notes that, with the 2003 amendments to 

Chapter 33, it seems that parents can be named as responsible third parties in 

a suit involving a minor child. Both of the cases referred to by the 

concurrence address the propriety of naming parents as third parties in the 

face of a claim of parental immunity. Neither of them involve a case where 

such a designation has been submitted to a jury and where an apportionment 

has occurred. Neither this case, nor either of those cases, address the effect 

on a child’s recovery of an apportionment of damages to a parent as 

responsible third party when parental immunity is claimed. That is a 

question for another day.