### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON REMAND

NO. 03-10-00826- CV

Appellan t, Waste Managem ent of Texas, In c.// Cross-A ppellan t,

Texas Disposal S ystem s Land fi ll, In c.

v. Appellee, Texas Disposal S ystem s Land fi ll, In c.// Cross-A ppellee,

Waste M anagem ent of Texas, In c.

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-9 7-0 1216 3, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This ca s e co m es befor e this Court on rema nd from the supreme court for

rec onsideration of the amount of exemplary damag es, including allowable pre- and post-judgme nt interest, t o wh i ch appellee Texas Disposal Sy stems L andfill, I nc. is entitled in connec tion with its succe ssful defa

mation claim ag ainst appellant Waste Manag ement of Texas, I nc. We have so considere d and re nder de cision on the amounts as set for th below.
Background Th e u n d er l y i ng fac ts and proce dural history of this case are detailed in the
supreme court’s opinion rema nding this matter, see W

aste Mgmt. of Tex., Inc. v. Texas Disposal Sys.Landf

i l l, Inc. , 434 S.W .3d 142 (Tex. 2014) (“ W aste Mgmt. III

”), and in two prior opini ons issued by this Court, see W

aste Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfil l, Inc. , No. 03-10-00826- CV, 2012 WL 1810215 (Tex. App.—Austin May 18, 2012, aff’d in part, rev’ d in part , 434 S.W .3d 142) (mem. op.) (“ W

aste Mgmt. II

”); Texas Disposal Sys. Landfill , Inc. v . W

aste Mgmt. Holdings,
Inc. , 219 S.W .3d 563 (Tex. App.—Austin 2007, pet. denied) (“ W aste Mgmt. I

”). Br iefly , howeve r, this case arose in 1995 when Waste Manag ement d istributed a memorandum questioning the environmenta l integ rity of Texas Disposal’s landfill during a competitive bidding proce ss for wastedisposal a nd landfill-servic es contra cts with the cities of Austin and San Antonio. Texas D isposal sued for defa

mation and, afte r the second jury verdic t in Texas D isposal’s favor , the district c ourt 1
issued judgme nt dated Dec ember 9, 2010, awa rding Texas Disposal $450,592.03 for its rea sonable and necessar

y expenses, $0 for lost profits, $5 milli on for reputation damag es, and $1,651,184.06

as exemplary damag es based on the jury ’s finding that Waste Manag ement published the defa matory statements with malice. See W aste Mgmt. II

, 2012 WL 1810215, at *2. 2
Waste Manag ement appea led that judgme nt to this Court, challe n gi n g, among other thing s, the jury submissi on, the propriety of reputa tion damag es for a corpor ation, the awa rd

o f exemplary damag es, and the sufficie ncy of the evidenc e as to the finding s of falsity , m al i ce ,

We reve rsed the first jury verdic t and rema nded the case for a retria l. See Texas Disposal 1 Sys. Landfil l, Inc. v. W

aste Mgmt. Ho l d i n g

s , Inc. , 219 S.W .3d 563 (Tex. App.—Austin 2007, pet. denied) (“ W

aste Mgmt. I

”) The second jury awa

rded Texas Disp o s al $20 milli on in exemplary damag es, but that 2 amount was reduce d to $1, 6 5 1 , 1 8 4.06 under the statutory cap on exemplary damag es. See W aste Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfil l, Inc. , No. 03-10-00826- CV, 2012 WL 1810215 (Tex. App.—Austin May 18, 2012, aff’d in part, rev’ d in part , 434 S.W .3d 142) (mem. op.) (“ W aste Mgmt. II ”); see also Tex. Ci v. Prac. & Rem. Code § 41.008 (statutory cap)

. 2causa tion, and reputa tion damag es. See id. at *3. I n that same a ppeal, Te x as Disposal cha lleng ed the district court’s application of the statutory cap to reduc e the exemplary -dama g es awa rd. See id.
at *26. We aff

irmed the district court’s judgme nt. See id. at *31. Waste Manag ement appea led to the Texas Supreme Court.

On appea l, the supreme court aff irmed our holdings that a corpor ation m ay suffe r reputa tion damag es, that such reputa tion damag es are non-ec onomic in nature , and that the evidenc e

was sufficie nt to support the awa rd of reme diation costs and exemplary damag es. See W aste Mgmt.
III , 434 S.W .3d at 151–53, 156–60. Howeve r, the supreme court held that the evidenc e was leg ally insufficient to support the jury ’s awa rd of reputa tion damag es to Texas Disposal. See id. at 147, 162.
Fur ther deter mining t h at its holding reg arding reputa tion damag es nece ssitated a revie w and

rec alculation of the allowable exemplary damag es and pre- and post-judgme nt interest amounts, the
supreme court reve rsed the exemplary -dama g e awa rd and rema

nded the case to this C o urt to

rec alculate the ex emplary damag es and inter est amounts or, i f necessar y , rema nd to the t rial court for f urther pr ocee dings. See id. at 161–62.
Analysis

I n their briefs to this Court on rema nd, the parties ag ree on t h e following elements of Texas Disposal’s judg ment awa rd:
Remediation damag es: $450,592.03 3

See W aste Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfil l, Inc. , 434 S.W .3d 142, 161 3 (Tex. 2014) (“ W

aste Mgmt. II

I ”)( aff irming r emediation dama g es).

3Reputation damag es: $1.00 4
Ex emplary

damag es: $901,184.06 5 Pre-judg ment interest: $295,663.08 6
The parties join i ssue, however, on the amount of post -judg ment interest, specifically disag ree ing about (1) the eff

ect of Texas Disposal’s reque sts for ext en s i o n s o f t i m e on the acc rual period for post-judgme nt interest; and (2) the corr ect amount of costs to be included in the calc ulation. We will provide g ener al bac kg round on post-judg ment interest bef ore a ddressing the par

ties’ contentions.

P ost-judgm ent intere st

Under the Financ e Code, post-judgme nt interes t is mandatory for ever y money judgme nt awa

rded by a court. See Tex. Fin. Code § 304.001 (“A money judgme nt of a court in this
state must specify the post-judgme nt interest rate applicable to that judgme nt.”); Rainbow Grp., Ltd. v. Johnson , No. 03-00-00559-CV, 2002 WL 1991141, at *13 (Tex. App.—Austin Aug

. 30, 2002,
p et. denied) (citing Tex. Fin. Code § 304.001). Post-judgment interest is ear ned on the total

am o u n t aw ar ded as a money judgme nt, including, for ex ample and at i ssue here, court costs. See

See id. (holding that Texas Disposal was entitled to nominal damag es in acc ordanc e with 4 d ec i s i o n s o n presumed damag es in defa mation per se case s); MBM Fin. Corp. v. W oodlands Operating Co. , 292 S.W .3d 660, 665 (Tex. 2009) (noting that “nominal damag es” usual l y means awa rd of one dollar). See Tex. Civ. Prac. & Rem. Code § 41.008(b)( 1)(A) (ca pping exemplary damag es at twice 5 the ec onomic reme diation damag es).

The parties ag ree that Texas Disposal is entitled to 5% interest o n its compensa tory 6 damag es, see id. § 41.007, for a period of 13 y ear s and 45 day s, see Tex. Fin. Code §§ 304.003, .103, .104 (applica

ble ra te and a ccr

ual per iod). 4Tex. Fin. Code § 304.003(a) ; Dallas Cnty. v. Crestview Corners Car W ash , 370 S.W .3d 25, 50–51 (Tex. A pp.—Dallas 2012, pet. denied) (noting that post-judgme nt interest “a ccr ue[s] on the entire
amount of the final judgme nt (including court costs and prejudg ment interest)” ). The acc rual period for post-judgme nt interest runs from the date the judgme nt is rende red to the date the judgme nt is satisfied. See Tex. Fin. C ode § 304.005(a). This interest does not acc rue, however , during any appellate briefing extensions g rante d to a party who was a claimant at trial. See id. §§ 304.003(c) , .005(b). The post-judgme nt interest rate applicable here is 5% compounded ann u al l y . See id. 7 § 304.006. I n sum then, the information nece ssary to calc u l at e p o s t -judg ment interest includes the applicable interest rate , the total amount of the money judgme nt, and the acc rual period. As stated, t he parties here raise issues r eg arding (1) the e ffe cts of Te x as Disposal’s appellate briefing extensions on the interest acc rual period and (2) the amount o f co s t s proper ly included in Texas Disposal’s damag es.

Acc rual period

Texas Disposal’s pos t-judg ment interest bega n acc ruing on Dec ember 9, 2010, the date judgme nt was rendered, and will continue to acc rue until the judgme nt is satisfied. See id. § 304.005(a)

. As noted, howeve r, post-judgme nt interest does not acc rue during any extensions of time soug ht by Texas Disposal on appea l. See id. § 304.005(b) (providing that “intere st does not

The post-judgme nt interest rate is equal to the prime rate as published by the Boa rd of 7 Gover nors of the F eder al Reser ve Sy stem, see id. § 304.003(c) (1), but w hen the prime rate is a t or lower than 5%, the Financ e Code sets the post-judgme n t i n t er es t rate at five perc ent, see id. § 304.006. The prime rate has been at or below five perc ent since May 2008. See “Selec ted I ntere st Rates (Daily ) – H.15,” Boar d of Governors of the Feder al R eser ve S y s t em , currently available at www.f eder alre serve .g ov.rele ases.h15/data .htm. 5acc rue for the period of extension” g rante d to the complainant at trial); W aste Mgmt. III

, 434 S.W .3d
at 162 (noting that “judg ment interest does not acc rue for the period of any extens i o n ”). The appellate rec ords show, and Texas Disposal does not dispute, that Texas Dispo s al was g rante d briefing extensions by the supreme court an d this Court that total 150 day s. Acc ording ly , under subsection 304.005(b), post-judg ment interest does not a ccr ue on those 150 da

y s. Texas Di s p o s al rea sons, howeve r, that these 150 day s should not be subtracte d from the acc rual period beca use the extensions wer e soug ht to prese rve the order of briefing in the wake of briefing extensions g rante d t o W as t e Manag ement, not simply to g ive Texas Disposal

more time to brief. To reduc e its interest acc rual period in light of this explanation, Texas Disposal
arg ues, would not further the purpose of subsection 304.005(b), which it contends is to keep a claimant from acc ruing interest during a delay it soug ht. Stated another way , Texas Disposal rea sons that beca use it only soug ht extensions as nece ssary to respond to Waste Manag ement’s extensions, Texas Disposal did not cause a ny delay in the rendition of appe llate-c ourt dec isions. Although Texas Disposal’s arg ument here is fac ially appea ling, we conclude that the
text of the Fina

nce Code fore closes it. See Molinet v. Kimbrell , 356 S.W .3d 407, 411 (Tex. 2011) (“The plain meaning of the text is the best expression of leg islative intent unless a differ ent meaning is appar ent from the context or the plain meaning leads to absurd or nonsensical results.”). Subse ct i o n 304.005(b) simply and plainly states that any briefing extensions g rante d for Texas Disposal b e subt rac ted from the accrua l period: “I f a case is appea led and a mot ion for ex tension of time to file a brief is g rante d for a party who was a claimant at trial, [post -judg ment] interest does

n ot acc rue for t he period of ex tension.” Tex. Fin. C ode § 304.005(b). This provision def i n es t h e

6period for which interest does not acc rue solely in terms of the extension that was gra n t ed f o r a claimant at trial. See id. I t does not addre ss, or sug g est that we m ay consi der, the eff ect of such

an extension on the appellate proce ss o r t h e cl aimant’s rea sons for seeking such an extension.
Fur ther, we cannot say that this leads to an absurd or nonsensical result g iven that the claimant does, in fac t, benef

it from the resulting delay , even if that delay was not the purpose of the re q uest for

an extension. See Molinet , 356 S.W .3d at 411. L ikewise, eve n i f we wer e to conclude that this construction led to unrea sonable results here , the supreme court has told us that “re asonable ness is
not the standard for esche wing plain statutory lang uag e.” Jaster v. Comet II Const., Inc. , 438 S.W .3d 556, 570 (Tex. 2014) (citing In re Blair , 408 S.W .3d 843, 859 (Tex. 2013) (B oy d, J ., concur ring )).
Acc ording ly , beca

use t here is no dispute that Texas Disposal was gra nted 150 day s in extensions, post-judgme nt interest does not acc rue on 150 of the day s in the acc rual period. See Tex. Fin. Code § 304.005(b). There fore , we hold that the acc rual period for Texas Disposal’s post-judgme nt interest is the time betwee n Dec ember 9, 2010, throug h the date the judgme nt is satisfied, less 150 day s.

Court c osts The rema i n i n g varia ble for calc ulating post-judgme nt interest in this case is the
amount of Texas Disposal’s damag e awa rd, whi ch, as stated, is simply the total amount of the
money judgme nt awar ded. B ut the parties disag ree reg arding one element of this amount—Texas Disposal’s costs. Waste Manag ement arg ues t hat Tex as Dispos al’s t ax ab l e costs are $158, or t he
amount shown in the curr ent b i l l o f costs issued by the district cler k. I t also arg ues that Texas Di s p o s al h as waived any arg ument that seeks to modify the bill of costs contained in the rec ord. Texas Disposal, in turn, counters that its taxable costs are $76,981.72, which it supports with list s
7of its costs attache d as two appendic es to its briefing in this case , but which it has not y et prese nted

to the district court. 8

The district court awa

rded Texas Disposal, as the succe ssful party in the suit, “costs of Court from and against [W aste Manag ement,] ag ainst whom all costs of Court are taxed.” (E m phasis added.) See Tex. R. Civ. P. 131 (“The succe ssful party to a suit shall reco v er o f h i s adver sary all costs incurre d there i n , ex cept wher e otherwise provided.” ). This means that Texas Disposal is entitled to rec over as part of its monetary damages all its court costs. See Cornelison

v. State , No. 03-07-00664- CR, 2008 WL 3540085, at *2 (Tex. App.—Austin Aug

. 14, 2008, no pet.) (mem. op.) (holding t h at aw ard of “any and all court costs” in criminal judgme nt was “not an
assessment of indeterminate costs, but an assessment of all court costs”). T h o s e co sts, howeve r,

are limit ed to items that are within the scope of taxable court costs as deter mined by statutes, rules, and the common law. See Tex. Civ. Prac. & Rem. Code § 31.007(b) (listing rec overa ble court costs, including “such other costs and fee s as may be permitted by these rules and state statutes”);
In re Nalle Plastics Family Ltd. P’ship , 406 S.W .3d 168, 175 (Tex. 2013) (noting “costs” g ener ally

u n d erstood to mean “the fee s or compensa tion fix ed by law collectible by the office rs of court, witnesses, and such like items”); Hatfield v. Solomon , 316 S.W .3d 50, 6 6 (T ex. App.—Houston [14t h Dist.] 2010, no pet.) (“Te x as s t at u t es and common law delineate which items the court
may and may not include as taxable costs.”) (citing Sterling Bank v. W illard M., L.L.C

. , 221 S.W .3d

Texas Disposal’s appendic es include amounts for the following ty pes of expenses: filing 8 fee s, service fee s, attempted-se rvice fee s, deposition costs, v i deo depositi on costs, copy fee s, jury fee s, subpoena fees, reporte r’s recor d fee s, cer tificate of nonappea

ranc e fe es (both video a

nd nonvideo), trial tra

nscript costs, cler

k’s re cord c osts, and a fe e for deposition on written questions. 8121, 124 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). Fur ther, the taxi ng of these co sts is a

m i n i s t er ial duty of the cler k, who fulfills that duty by filing a bill of costs in the rec ord. S ee Operati o n Rescue -Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc. , 937 S.W .2d 60, 87 (Tex. App.—Housto n [ 1 4 th Dist.] 1996), aff’d as modified on other grounds , 975 S.W .2d 546 (Tex. 1998) (noting that “taxing of costs, as distinguished from the adjudication of costs, is mere ly a ministerial duty

of the c lerk” ). Under the Tex as C i v i l Practice and Remedies Code, taxable court costs include cler k fee s and service fee s due the county , which include, fo r example, filing fee s, service fee s, jury fee s, and subpoena fee s. See Tex. Civ. Prac. & Rem. Code § 31.007(b)( 1); In re Nalle , 406 S.W .3d at 175 (noting various ty pes of f ees) ; Operation Resc ue , 937 S.W .2d at 88 (subpoena and service fee s). Statutorily allowed costs also include court repor ter fee s for orig inal stenog raphic
transcr ip t s . S

ee Tex. Civ. Prac. & Rem. Code § 31.007(b)( 2). Thus, Texas courts have held that
expenses rela

ted to depositions, including a deposition on written questions, are taxable court costs. See W allace v. Briggs , 348 S.W .2d 523, 527 (Tex. 1 9 6 1 ) (“ The expense of taking depositions is

an i t em of court costs and proper ly char g eable as such.”) ; City of Houston v. Maguire Oil, Co. , 342 S.W .3d 726, 749 (Tex. App.—Houst o n [14t h Dist.] 2011, pet. denied) (holding that court
repor ter’s fee s for depositions are re co v era ble as costs); Ferry v. Sacke tt , 204 S.W .3d 911, 913 (Tex. App.—Dallas 2006, no pet.) (noting “we ll-established case law that the cost s o f t aking and filing depositions are rec over ab l e” and holding this includes depositions on written questions); Shaikh v. Ae rovias de Mexico , 127 S.W .3d 76, 82 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding that costs of taking and filing depositions ar e rec overa ble costs). The costs for video

9depositions or copies of depositions or transcr ipts, howeve r, are not rec overa ble as court costs. See
Tex. R. Civ. P. 140 (disallowing fee s for copies); Gumpert v. ABF Freight Sys., Inc. , 312 S.W .3d 237, 240–41 (Tex. App.—Dallas 2010, no pet.) (holding that “bec ause no statute or rule authorizes the rec overy of the costs to videotape a deposition or obtain a copy of a deposition transcr ipt,” those items are not rec overa

ble costs); Shaikh , 127 S.W .3d at 82 (holding costs of copy ing depositions are
not tax able c osts).

Eac h party to a suit is responsible for ac cura tely rec ording all its costs and fee s incurre d in this lawsuit, and in the case of a party to whom costs wer e awa rded, prese nting a rec ord of those costs to the trial court. See Tex. Fin. Code § 31.007(a). As far as we can tell from the

rec ord, Tex as Dispos al has not presente d to the district clerk e ither of the a ppendice s of costs that it has prese nted to this Court. L ikewise, the rec ord indicates that the only bill of costs issued by the district cler

k in this matter is for $158, which ref lects various filing fee s and a cler k’s rec ord. This is, then, as Waste Manag ement sug g e s ts , the curr ent, officia l amount of Texas Disposal’s court costs. See Shaikh , 127 S.W .3d at 82 (noting that costs are those items included in cler k’s bill of costs). As such, t hat bi ll of costs ref lects t he amount t h at wo uld be included in Texas Disposal’s damage s if its post-judgment intere st were being calc ulated at this time. See id.

As mentioned, howeve r, T ex as Disposal has included in its briefing to this Court
two appendic es showing what it contends to be its true court cos ts, which sug g ests that Texas Disposal is seeking to reta x the costs ref lected in the curr ent bill of costs. Although this Court lacks jurisdiction to do so, see Reaugh v. McCollum Exploration Co. , 167 S.W .2d 727, 728 (Tex. 1943) (holding that motion to retax costs should be filed in cour t where costs acc rue a

nd, thus, appellate

10court lacks jurisdiction to reta x district court costs), we n o t e, as the Texas Supreme Court did in

Reaugh , that Texas Disposal may , at any time a fter the judgme nt, inc luding afte r resolution of any
appea ls, so long as it is filed bef ore ma ndate issues a

nd costs are paid, file a

motion to reta x court
costs with the district court. See id

. (holding that claimant “may file a motion in a lower court to have the costs reta x ed, even though the main case has alre ady been disposed of on appea l by a highe r court” ); 2920 Park Grove Venture, Ltd. v. LandAmerica Am. Titl e Co. , No. 0 5 -0 7 -0 0 090-CV,
2008 WL 650946, at *1 (Tex. App.—Dallas Mar. 12, 2008, no pet.) (mem. op.) (holding that party
may file motion to reta x costs in lower court even afte r “the main case has alre ady been disposed of
on appea l by a highe r court” ) (citing Reaugh , 167 S.W .2d at 325); Operation Resc ue , 937 S.W .2d
at 87 (“B eca

use taxi ng of costs, as d i s t i n gu i s h ed from the adjudication of costs, is mere ly a minist eria l duty of the cler k, an err or may

be cor rec ted upon the injured party ’s motion, eve n afte r the case has been disposed of on appea l, as long as the reque st is made befor e the mandate issues and the costs are paid.”) (citing Hartzell Propeller, Inc. v . Alexande r , 517 S.W .2d 455, 456 (Tex. Civ. App.—Texarkana 1974, no writ) (holding as untimely “motion [to reta x costs] filed afte r issuance

o f the mandate and pay

ment of the costs”)) ). Stated another way , if the bill of costs does no t
proper ly ref lect the c osts Tex as Disposal acc rued in the district court, Texas Disposal may seek to make the bill of costs compl et e b y filing a motion to reta x the costs in the district court befor e mandate issues a

nd the costs ar e paid.
I n l i gh t o f these limit s on our jurisdiction, we hold that the district court awa rde d
Texas Disposal all its court costs and that those costs, as ref lected i n t h e district cler k’s bill of costs—either the one in the rec ord befor e us or a reta x ed bill should Texas Disposal reque st one in

11the future—should be included in Texas Disposal’s damag es for the purpose of calc ulating its postjudgme nt interest. To the extent that Texas Disposal seeks to have this Court reta x the curr ent bill of costs, we dismiss that motion for lack of jurisdiction. See R eaugh , 167 S.W .2d at 728.

Conclusion We rende r judg ment in favor of Texas Disposal as follows:

• $450,592.03 in remedia tion damag es;

• $1.00 in reputation dama g es;

• $901,184.06 in exemplary damag es; and

• $295,663.08 in pre-judg ment interest.

We also re n d er judgme nt awa rding Texas Disposal post-judgme nt interest at 5%, compounded annually , on Texas Disposal’s t o t al m oney damag es—which equal $1,647,440.17 plus Texas Disposal’s court costs as set forth in the district cler k’s final bill of costs—for the period beg inning
Dec ember

9, 2010, throug h the date the judgme nt is satisfied, less 150 day s.

__________________________________________ J eff Rose, J ustice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Rendere d on Remand Filed: Nove mber 14, 2014

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