Court of Appeals of Texas, Dallas.

Shirley ROGERS, Appellant,

v.

ROCHESTER GAUGES, INC., Appellee.

No. 05-97-00305-CV.

|

May 10, 1999.

Before Chief Justice THOMAS and Justices LAGARDE and OVARD.

OPINION

OVARD.

*1 Appellant Shirley Rogers brought suit against appellee Rochester Gauges, Inc. asserting a retaliatory discharge claim under the Texas Workers’ Compensation Act.¹ Rochester Gauges moved for summary judgment on the ground that it is not a subscriber under the workers’ compensation act and therefore is not subject to the act’s retaliatory discharge provision. The trial court rendered summary judgment for Rochester Gauges, and Rogers appealed asserting two points of error.² In one cross point, Rochester Gauges complains that the trial court erred in failing to assess all court costs against Rogers.

During the pendency of this matter, the Texas Supreme Court addressed the issue before us in this appeal. In Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 56 (Tex.1998), the court held that an employee may not assert a retaliatory discharge claim under the Texas Workers’ Compensation Act against a nonsubscribing employer. In reaching its conclusion, the court specifically disapproved this Court’s decision in Hodge v. BSB Invs., Inc., 783 S.W.2d 310, 312-13 (Tex.App.-Dallas 1990, writ denied), on which Rogers relied in the trial court. See Bouchet, 963 S.W.2d at 57. On appeal, Rogers concedes that Bouchet applies retroactively to preclude her claim against Rochester Gauges under the worker’s compensation act. See Sanchez v. Shindler, 651 S.W.2d 249, 254 (Tex.1983) (“The general rule is that a decision of a supreme court is to be retrospective in its operation.”). We agree. Accordingly, we overrule Rogers’ two points of error.

Rogers, however, contends we should not affirm the trial court’s judgment.³ Rather, she asserts that under the facts of this case we should recognize the existence of a common law cause of action for retaliatory discharge. She prays that we remand the cause to the trial court so she may pursue her common law cause of action.

Without determining whether any such cause of action exists, we conclude this is not an appropriate case to address the issue. Rogers concedes, as she must, that she pleaded only a cause of action under the workers’ compensation act. She cites no authority, nor are we aware of any, which would allow us to remand the case to the trial court for her to plead a new cause of action, not previously asserted, after her sole cause of action was dismissed. Generally, a party may not raise matters on appeal which have not been asserted in the trial court. See Tex.R.App.P. 52(a) (former rules); see also Tex.R.App.P. 33.1 (effective September 1, 1997); Davis v. Campbell, 572 S.W.2d 660, 662 (Tex.1978); Poe v. Hutchins, 737 S.W.2d 574, 578 (Tex.App.-Dallas 1987, writ ref’d n.r.e.). Rogers could have pleaded alternative claims for relief in the trial court had she chosen to do so. See Tex.R.Civ.P. 47. She chose instead to rely on a single, statutory theory, knowing the Texas Supreme Court had not addressed whether the statute was available to her in this instance. The trial court correctly disposed of Rogers’ only asserted claim, and Rogers’ unasserted claim was merged into the trial court’s final judgment. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992).

*2 In its cross point⁴, Rochester Gauges complains the trial court erred in ordering each party to pay its own costs. Specifically, Rochester Gauges contends it was entitled to recover its costs because (1) it was the successful party at summary judgment and (2) nothing in the record established good cause for taxing costs against it. We agree.

We review a trial court’s award of costs under an abuse of discretion standard. Hasty Inc. v. Inwood Buckhorn J.V., 908 S.W.2d 494, 502 (Tex.App.-Dallas 1995, writ denied). Absent an abuse of discretion, we will not reverse the trial court’s assessment of costs. See id.

Rule 131 provides: “The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.” Tex.R.Civ.P. 131. In this case, there is no dispute that Rochester Gauges was the successful party at summary judgment. Thus, Rochester Gauges was entitled to recover its costs as the successful party except “for good cause, to be stated on the record.” See Tex.R.Civ.P. 141.⁵

Here, the trial court did not state on the record why any costs were assessed against Rochester Gauges. Because the trial court failed to state good cause on the record, we conclude the trial court abused its discretion by failing to assess all costs against the losing party. See Tex.R.Civ.P. 131, 141; see also Dover Elevator Co. v. Servellon, 812 S.W.2d 366, 367 (Tex.App.-Dallas 1991, no writ) (concluding trial court abused its discretion in assessing costs against prevailing party without stating reasons for doing so). Accordingly, we sustain Rochester Gauges’ cross point of error and reform the judgment to reflect that all trial court costs are assessed against Rogers.

We affirm the judgment of the trial court.

	Footnotes
1		Appellant brought the claim under former article 8307c, Texas Revised Civil Statutes. Effective September 1, 1993, article 8307c was recodified without substantive change at section 451.001 of the Texas Labor Code.
2		In her first point of error, Rogers asserts that the trial court erred in failing to follow precedent from this court recognizing a cause of action under former article 8307c against nonsubscribers. In her second point, she asserts that the trial court erred in rendering summary judgment because fact issues exist as to whether Rogers was wrongfully discharged.
3		Rogers first asserted this argument in a supplemental brief which she tendered to the Court January 13, 1999. Rogers did not seek leave to file a supplemental brief; therefore, it is not properly before the Court. See Tex.R.App.P. 38.7 (effective September 1, 1997); see also Tex.R.App.P. 74(o) (former rules). However, in the interest of justice, we will address the argument.
4		The former rules of appellate procedure were in effect at the time this appeal was perfected and initially briefed by the parties. Under the former rules, an appellee was permitted to assert a cross point without the necessity of perfecting a separate appeal. See Tex.R.App.P. 74(e) (former rules); cf. Tex.R.App.P. 25.1( c ) (effective September 1, 1997) (providing that any “party who seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal.”). Accordingly, Rochester Gauges was not required to perfect a separate appeal, and its cross point is properly before the Court.
5		Rule 141 provides: “The court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules.” Tex.R.Civ.P. 141.