ACCEPTED 05-17-00281-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 6/6/2018 5:03 PM LISA MATZ CLERK No. 05-17-00281-CV __________________________________________________________________ FILED IN 5th COURT OF APPEALS IN THE COURT OF APPEALS DALLAS, TEXAS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS 6/6/2018 5:03:02 PM AT DALLAS LISA MATZ Clerk __________________________________________________________________ KOJO W. NKANSAH, Appellant, v. TEXAS WORKFORCE COMMISSION, et al., Appellees. _________________________________________________________________ APPELLEES’ JOINT MOTION FOR REHEARING TO MODIFY OR CORRECT THE JUDGMENT __________________________________________________________________ TO THE HONORABLE COURT OF APPEALS: The Appellees, the City of Dallas (the “City”) and the Texas Workforce Commission (the “TWC”), submit this motion in response to the Court’s Judgment dated May 31, 2018, which taxes the costs of appeal of Appellant, Kojo W. Nkansah (“Nkansah”), against the TWC and the City. The Appellees request that the Court reconsider the judgment for costs because the taxation of costs against them as prevailing parties is not required by law or supported by good cause.

Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment Page 1 ISSUE PRESENTED FOR REVIEW The Court improperly taxed costs against the prevailing parties, the City and the TWC.

INTRODUCTION This matter arises from Nkansah’s appeal of his denial of unemployment benefits by the TWC following his termination by the City for misconduct in the workplace. On December 30, 2016, the trial court granted the Appellees’ joint motion for summary judgment in the underlying case. On March 16, 2017, Nkansah filed his notice of appeal. After the parties fully briefed the issues, this Court issued its Memorandum Opinion on May 31, 2018, resolving all Nkansah’s issues against him, and affirming the trial court’s judgment in favor of the Appellees. Although this Court resolved this appeal in favor of the City and the TWC in its Judgment dated May 31, 2018, the Court ordered that Nkansah recover his costs of this appeal from the City and the TWC.

ARGUMENT AND AUTHORITIES Nkansah should not recover his costs of this appeal from the prevailing parties, the City and the TWC, because taxation of costs against the prevailing parties is not required by law or supported by good cause. The rules of appellate procedure provide:

Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment Page 2 The court of appeals’ judgment should award to the prevailing party costs incurred by that party related to the appeal, including filing fees in the court of appeals and costs for preparation of the record. The court of appeals may tax costs otherwise as required by law or for good cause.

But the judgment must not require the payment of costs by a party who was entitled to proceed without payment of costs under Rule 20.1, and a provision in the judgment purporting to do so is void.

Tex. R. App. P. 43.4. The Court’s Judgment taxed costs against the City and the TWC, when the City and TWC have prevailed in this appeal. While the Court may “tax costs otherwise as required by law or for good cause,” id., neither the law nor good cause support the taxation of costs against the Appellants in this appeal.

There is no requirement under case law, statute, or rule that Nkansah’s costs be taxed to the City or the TWC, who were the prevailing parties in this appeal. While the Texas Labor Code provides that an individual claiming unemployment benefits may not be charged a fee by “the commission or a representative of the commission” or “a court or an officer of the court,” Tex. Lab. Code § 207.007(a), it does not provide that the individual’s opposing parties are responsible for those costs.

Nor is there good cause for Nkansah to be awarded his costs from the City and the TWC. The City and the TWC have prevailed at every stage of this litigation – first when Nkansah appealed the denial of his unemployment benefits to the trial court, and now in this appeal of the trial court’s decision. It would be inequitable to require the City and the TWC, despite their having prevailed at every stage of this litigation, to

Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment Page 3 bear Nkansah’s costs in a matter that originally arose from Nkansah’s own misconduct in the workplace.

PRAYER For all the reasons stated herein, the City and the TWC respectfully request that the Court modify or correct its Judgment dated May 31, 2018, to the extent that it taxes the costs of this appeal incurred by Nkansah against the City and TWC.

Respectfully submitted, LARRY E. CASTO Dallas City Attorney /s/ Dixon M. Merkt Barbara Rosenberg Texas Bar No. 17267700 [email protected] Dixon M. Merkt Texas Bar No. 24088899 [email protected] Assistant City Attorneys Dallas City Attorney’s Office 1500 Marilla Street, Room 7D North Dallas, Texas 75201 Telephone: 214-670-3519 Telecopier: 214-670-0622 ATTORNEYS FOR APPELLEE CITY OF DALLAS

Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment Page 4 Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation JACK HOHENGARTEN Division Chief Tax Division /s/ Scott D. Simmons SCOTT D. SIMMONS Assistant Attorney General State Bar No. 24013512 Tax Division P.O. Box 12548 Austin, Texas 78711-2548 PH: (512) 475-3694 FAX: (512) 478-4013 [email protected] ATTORNEYS FOR APPELLEE TEXAS WORKFORCE COMMISSION

Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment Page 5 CERTIFICATE OF SERVICE I hereby certify that on June 6, 2018, a copy of the foregoing document was served in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure (1) through an electronic filing manager (EFM) upon each person listed below if the email address is on file with the EFM or (2) by email (if the address is available) and first-class mail upon each person below who does not have an email on file with the EFM:

Kojo W. Nkansah 2801 Red River Street Mesquite, TX 75150 Phone: 972-682-1096 [email protected] Pro Se Appellant Scott D. Simmons Assistant Attorney General Tax Division P.O. Box 12548 Austin, TX 78711 [email protected] Attorney for Appellee Texas Workforce Commission

/s/ Dixon M. Merkt Attorney for City of Dallas

Appellees’ Joint Motion for Rehearing to Modify or Correct the Judgment Page 6