No CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS

No. 05-10-00446-CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS Davie C. Westmoreland, agent for International Fidelity Insurance Company, Appellant v. State of Texas, Appellee Brief of Appellant, Davie C. Westmoreland, as agent for International Fidelity Insurance Company On appeal from judgment in cause number F08-00418-M In 194 th District Court of Dallas County, Texas Hon. Ernest White, Presiding Clint F. Sare Texas Bar No. 788354 P.O. Box 1694 Bryan, Texas 77806 (979) 822-1505 Counsel for appellant

IDENTITY OF PARTIES AND COUNSEL Appellant: Davie C. Westmoreland, agent, International Fidelity Insurance Company Counsel: Clint F. Sare P.O. Box 1694 Bryan, Texas 77806 Additional trial Counsel: Anthony Green PO BOX 338 Keller, Texas 76244 Appellee: Counsel The State of Texas Todd Sellars Anthony Eiland 133 North Riverfront. LB. 19 Dallas Texas 75207 ii

TABLE OF CONTENTS Identity of Parties and Counsel... ii Table of Contents... iii Index of Authorities... iv Statement of the Case... 1 Points of Error... 1 Statement of Facts... 2 Summary of the Argument... 5 Argument... 6 Point of Error 1. The trial court erred in rendering judgment against a defendant not named in the State's pleading... 6 Applicable Law... 6 Application... 7 Point of Error 2: The trial court erred in rendering a judgment against appellant because the evidence is legally insufficient to support any judgment of forfeiture... 8 Applicable Law... 8 Application... 10 Point 3. The trial court clerk charged fees not authorities by law and for which appellant has no remedy in the trial court... 13 Point 4. The court reporter charged fees not authorized by law... 13 Facts... 13 Application... 14 Prayer for Relief... 15 Certificate of Service... 16 Appendix... 17 iii

INDEX OF AUTHORITIES Cases Alvarez v. State, 861 S.W.2d 878 (Tex.Crim.App. 1992)... 9 Bennett v. McDaniel, 295 S.W.3d 644 (Tex. 2009)... 13 Castaneda v. State, No. 13-06-0039-CV, 2008 WL 2744582 (Tex.App. Corpus Christi June 30, 2008, no pet.)... 12 Cox v. Union Oil Co. of Cal., 917 S.W.2d 524 (Tex.App.--Beaumont 1996, no pet.)... 6 Dallas Co v. Sweitzer, 881 S.W.2d 757 (Tex.App.--Dallas 1994, writ denied)... 15 Dees v. State, 865 S.W.2d 461 (Tex.Crim.App. 1993)... 14 Dolgencorp of Texas v. Lerma, 288 S.W.3d 922 (Tex. 2009)... 8 Hokr v. State, 545 S.W.2d 463 (Tex.Crim.App. 1977)... 9 In re Doe, 19 S.W.3d 249 (Tex. 2000)... 10 Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex. 1983).... 10 Kubosh v. State, 241 S.W.3d 60 (Tex.Crim.App. 2007).... 9, 11 Lambert v. Dealers Elec. Supply, Inc., 629 S.W.2d 61 (Tex.App. Dallas 1981, writ ref'd n.r.e.)... 6 Low v. Henry, 221 S.W.3d 609 (Tex. 2007)... 9 Mapco Inc. v. Carter, 817 S.W.2d 686 (Tex. 1991)... 6, 7 Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)... 10, 12 Mullane v. Central Hanover Trust Co., 339 U.S. 306, 10 S.Ct. 652, 94 L.Ed. 865 (1950),... 6 Nichlos v. State, 255 S.W.2d 522 (Tex.Crim.App. 1952)... 6, 9 Safety National Cas. Corp v. State, 305 S.W.3d 586 (Tex.Crim.App. 2010)... 14 iv

Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979)... 8, 9 Titan Indemnity Co. v. Old South Insurance Group, Inc., 221 S.W.3d 707 (Tex.App. San Antonio 2006, no pet.)... 8 Union Pacific Corp. v. Legg, 49 S.W.3d 72 (Tex.App. Austin 2001, no pet.)... 7 Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884 (Tex. 1985).. 8 Statutes Tex. Code Crim. Proc. art 17.08... 8, 9, 11 Tex. Code Crim. Proc. art 22.13... 8, 9, 11 Tex. Code Crim. Proc. art 44.44... 14 Tex. Govt. Code 51.320... 5, 13 Rules Tex. R. App. P. 34.5(g)... 14 Tex. R. App. P. 37.3... 15 Tex. R. App. P. 43.2(c)... 13 Tex. R. App. P. 43.4... 15 Tex. R. Civ. P. 297... 5 Tex. R. Civ. P. 301... 8, 12 Tex. R. Civ. P. 39... 7 Tex. R. Civ. P. 45... 9, 12 Tex. R. Civ. P. 79... 6 v

STATEMENT OF THE CASE The State sought forfeiture of a bond issued to secure the appearance of Stan Chudi Melogu in a criminal proceeding in Dallas County. Alleging the principal s failure to appear, the State sought forfeiture of the appearance bond and obtained a judgment nisi, twice. (CR 12, 17). See appendix A. Appellant filed an answer in November 2009. (CR 19). The court rendered a default judgment against Allegheny / Freebird Bonds on the bond the following February (CR 32) and denied a motion for new trial in March. (CR 33). Appellant timely perfected this appeal. POINTS OF ERROR Point 1. The trial court erred in rendering judgment against a defendant not named in the State's pleading. Point 2. The evidence is legally insufficient to support the trial court's judgment. Point 2. The trial court clerk charged fees not authorized by law and for which appellant has no remedy in the trial court. Point 3. The court reporter charged fees not authorized by law and for which appellant has no remedy in the trial court.

STATEMENT OF FACTS A careful reading of the record in this appeal does not clearly establish the basis on which the trial court s judgment rests. The record is sufficient to establish the procedures used in this proceeding do not comply with the Rules of Civil Procedure or the applicable portions of the Code of Criminal Procedure. The events giving rise to the judgment began in February 2006 when Stan Chudi Melogu was indicted. (CR 2). This record does not affirmatively show when or where he was arrested. It leaves the impression he was arrested in Walker County. Melogu sought release on bail. The record contains two separate appearance bond documents. One dated May 13, 2008 lists the surety as: Davie C. Westmoreland, Agent, dba Freebirds Bail Bonds, International Fidelity Insurance Company. (CR 10). This document contains signatures on spaces provided for the defendant and the surety. A second document with the same case number dated May 20, 2008 lists the surety as Freebirds Bail Bonds. This bond is not signed by the principal or the surety. (CR 7, appendix C). The record also contains an "oath of sureties" which lists the surety as Davie C. Westmoreland, Agent, dba Freebirds Bail Bonds - International Fidelity Insurance Company" and, although notarized, was not signed by any surety. It only contains a certification from the Walker County Sheriff that the named surety is licensed and in good standing in Walker County. (CR 8). The portion of the document showing the bond was examined and approved is blank. (Id). 2

On March 19, 2009 the 194 th District Court rendered a judgment nisi stating Melogu failed to appear that day in cause number F0800418M and forfeiting the appearance bond of "Freebirds Bail Bonds" dated May 20, 2008. (CR 12). Although citation was issued to Freebirds Bail Bonds at an address in Huntsville, no return of service was made. (CR 11). Twenty days later the court signed an order setting aside the judgment nisi and reinstating the bond posted 20 th, May, 2008. (CR 14). The order recites that the surety appeared in person at a May 3, 2009 hearing. (Id.) Although not true, the statement is not relevant to this appeal. On July 24, 2009 the trial court rendered a second judgment nisi forfeiting the May 20, 2008 bond and stating Melogu failed to appear on July 24, 2009. (CR 17). This judgment also listed the surety as "Freebirds Bail Bonds." Two citations were issued, one to Freebirds Bail Bonds in Huntsville Texas (CR 16), and one to Allegheny Casualty Co. / Freebirds Bail Bonds, in Bryan Texas. (CR 18). It is apparent the name Allegheny Casualty Co. was simply added to the first citation. Neither citation contains a return of service. An answer was filed on behalf of "Allegheny Casualty Co." in November 2009. (CR 19). The answer specifically alleged the bond was not a valid undertaking because it was not signed. (Id). A January 2009 setting was continued based on lack of notice. (CR 25, 26). Findings made by the magistrate judge again incorrectly recited that the surety appeared in person with counsel. (CR 29). The case was set for 3 p.m. on February 16, 2010. 3

Appellant retained local counsel to appear at the February 16, 2010 hearing. When that attorney was not in the courtroom when the case was called, the court rendered a default judgment. (RR 4-5, CR 32, appendix B). That judgment was not against the surety named in the judgment nisi, but against "Allegheny / Freebird bonds." (CR 32). Contrary to the reporter s record, the judgment recites: Came the defendants in person and by attorney; and it appearing to the court, after consideration of the pleadings and the evidence herein, that no sufficient cause is shown why defendant Stan Melogu did not appear[.] Findings signed by the magistrate judge and approved by the district judge both recite that the defendant-surety appeared with attorney Clint Sare, (CR 35) and that the judgment was a default judgment. (CR 34). A motion for new trial was filed the same day. (CR 6). The filing is reflected in the docket sheet and subsequent rulings of the court. Although requested, the document does not appear in the clerk s record. (CR 49). The court held a hearing on the motion for new trial on March 16, 2010. Although the making of a record was not waived, the reporter apparent did not record this hearing. Appellant requested the court reporter certify to this court the absence of a record of that hearing. See appendix D. The court reporter failed to do so but responded with a letter stating there was no hearing on the record. See appendix E. The trial court denied the motion stating petitioners had not met the burden of proof. (CR 35). Appellant requested findings of fact and conclusions of 4

law pursuant to Rule 297. (CR 38). The record contains some findings and recommendation of the magistrate judge. (CR 36). However those findings were never mailed to each party in the suit as required by Rule of Civil Procedure 297. When none were provided, appellant filed a notice of past due findings. (CR 36). No action was taken in response to that notice. Notice of appeal was timely filed. (CR 37). Appellant filed a supersecedeas bond (CR 45) and requested preparation of a record in accordance with the Rules of Appellate Procedure. The reporter filed a record of the February 16, 2010 hearing, and a duplicate copy with the district clerk. On June 23, 76 days after the notice of appeal was filed and after several requests, the clerk provided the cost for preparing the clerk s record. After an additional request the clerk provided a list of the details of the charge on July 7, 2010, making the payment due. See Tex. Govt. Code 51.320. Those details showed the clerk sought payment for two copies of the clerk s record and a $25 processing fee. (see appendix G). The clerk s record was filed on July 27, 2010. SUMMARY OF THE ARGUMENT The trial court erred in rendering judgment against a party or parties not named in the pleadings. Consequently the judgment is void. Moreover, the evidence is legally insufficient to support the judgment and it must be reversed. 5

ARGUMENT Point of Error 1. The trial court erred in rendering judgment against a defendant not named in the State's pleading. Applicable Law The judgment nisi serves as the State s pleading in a forfeiture proceeding. Nichlos v. State, 255 S.W.2d 522 (Tex.Crim.App. 1952). It is fundamental that a court's judgment is only binding on parties over which it has acquired personal jurisdiction. Notice of a suit, and more specifically, notice of the claims against the defendant, is a fundamental component of due process. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-14, 10 S.Ct. 652, 94 L.Ed. 865 (1950). This requirement is reflected in the Rules of Civil Procedure. Rule 79 requires that the petition state the names of the parties. Tex. R. Civ. Proc. 79. A judgment rendered against one who was not a party is not binding on them. Mapco Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). When deciding who has been made a party to a suit, courts are to consider the petition as a whole, Cox v. Union Oil Co. of Cal., 917 S.W.2d 524, 526 (Tex.App.--Beaumont 1996, no pet.). It is the body of the petition, which contains the matters which the plaintiff intends to prove at trial. Lambert v. Dealers Elec. Supply, Inc., 629 S.W.2d 61, 62 (Tex.App. Dallas 1981, writ ref'd n.r.e.) (on rehearing). 6

Application The only surety named in the judgment nisi giving rise to the present judgment was "Freebirds Bail Bonds." (CR 17, appendix A). Issuance of citation to another entity does not make them a party. See Tex. R. Civ. P. 79, 99; Union Pacific Corp. v. Legg, 49 S.W.3d 72 (Tex.App. Austin 2001, no pet.). The answer filed in response to the improper citation was not a joinder under Rules of Civil Procedure 39 and 40. Moreover, the trial court did not render judgment against the named party "Freebirds Bail Bonds" but against another unnamed entity "Allegheny / Freebird Bonds." (CR 32). Because "Allegheny / Freebird Bonds." was not named as a party in the State's pleading, no judgment could be rendered against it or them and any attempt to do so was void. Mapco, 817 S.W.2d at 687. Additionally, the trial court did not, and could not, render judgment against the only possible surety on a bond issued for the appearance of Melogu: Davie C. Westmoreland, as agent for International Fidelity Insurance Company. Neither Westmoreland as agent or International Fidelity Insurance Company was named as a party or made any appearance. reversed. For these reasons, the judgment of the trial court is void and must be 7

Point of Error 2: The trial court erred in rendering a judgment against appellant because the evidence is legally insufficient to support any judgment of forfeiture. Applicable Law When a defendant has filed an answer, any subsequent failure to appear for trial is not an abandonment of the answer or confession of judgment. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). A judgment can not be rendered on the pleadings but the plaintiff must offer evidence and prove his case. Dolgencorp of Texas v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009). The rules that a judgment must conform to the pleadings and the evidence apply here. Stoner. at 683. See also Tex. R. Civ. P. 301. It is likewise a basic tenet of jurisprudence that the law abhors a default because equity is rarely served by a default. Titan Indemnity Co. v. Old South Insurance Group, Inc., 221 S.W.3d 707, 708 (Tex.App. San Antonio 2006, no pet.). As a result, there is no presumption of regularity in favor of a default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). The requisites of a valid bail bond are set out in article 17.08 of the Code of Criminal Procedure. One of the requirements is that the bond be signed by the principal and sureties, with the mailing address of each. Tex. Code Crim. P. 17.08(4). The invalidity of a bond is a statutory defense to liability of a surety. Tex. Code Crim. Proc. art. 22.13(a)(1). 8

The judgment nisi serves as the State s pleading in a forfeiture proceeding. Nichlos, 255 S.W.2d 522. Any plaintiff's pleading must give fair notice of the basis of the claims asserted and relief sought. Tex. R. Civ. P. 45(b); Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); Stoner, 578 S.W.2d at 683. The essential elements of the State's cause of action in a bond forfeiture proceeding are proof of the bond and the judicial declaration of the forfeiture of the bond, which is the judgment nisi. Kubosh v. State, 241 S.W.3d 60, 63-64 (Tex.Crim.App. 2007). The facts to be proven to establish those essential elements are (1) a valid bond executed by the surety (Articles 17.08(5); 22.13(a)(1)); (2) failure of a defendant bound by bail to appear in a court in which his case is pending when his personal appearance is required (Article 22.01); (3) the name of the defendant had been called distinctly at the courthouse door (Article 22.02); and (4) no valid reason for the principal not appearing (Article 22.13). Alvarez v. State, 861 S.W.2d 878 (Tex.Crim.App. 1992). In a bond forfeiture proceeding, the State has the burden of proof. Kubosh, 241 S.W.3d at 63. Although the State is typically required to present and offer both the bond and judgment nisi into evidence, the Court of Criminal Appeals has held that a trial court may take judicial notice of the judgment nisi if the record reflects that judicial notice. Hokr v. State, 545 S.W.2d 463, 466 (Tex.Crim.App. 1977). A court may likewise take judicial notice of the bond if the record affirmatively shows it has done so. Kubosh, 241 S.W.3d at 65. Rendition of a judgment for which the supporting evidence is not legally sufficient is error. A legal sufficiency challenge will be sustained when, (a) there 9

is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla of evidence exists when the evidence rises to a level such that reasonable and fair-minded people could differ in their conclusions. Id.; Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). If findings of fact are requested and filed, and a reporter s record exists, the findings are not conclusive. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App. Houston [14 th Dist.] 1995, writ ref d n.r.e.). The findings are reviewed for sufficiency. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000). When findings of fact are requested and not filed, the failure is presumed harmful. Tenery v. Tenry, 932 S.W.2d 29 (Tex. 1996). Application The judgment nisi declared forfeiture of the May 20, 2008 bond by "Freebirds Bail Bonds." (CR 17, appendix A). Appellant s answer expressly raised a challenge to the validity of the bond because it was not signed. (CR 19). When the case was called for trial the judge reiterated that forfeiture was sought on the May 20, 2008 bond. (RR 4). State s entire case consisted of the statement that the: State asks for default judgment and asks the court to grant judgment for the full amount of the bond and costs. (RR 4). The State did not offer either the 10

May 20, 2008, bond, the May 13, 2008 bond or the judgment nisi into evidence. Nor did the State request the court to take judicial notice of those documents. (Id.) The trial court did purport to make findings, including that the surety posted a bond on May 20, 2008 and that bond was forfeited on July 24, 2009. (CR 33). As noted, those findings were never provided to counsel as required by Rule of Civil Procedure 297 and are controverted in relevant part by the reporter s record. The record affirmatively shows the State wholly failed to meet its burden to establish the existence of a valid bond executed by appellant individually or as agent for International Fidelity Insurance Company, or anyone else. Tex. Code Crim. Proc. art 17.08(4); Kubosh, 241 S.W.3d 63-64 (Tex.Crim.App. 2007). The result is the same regardless of whether the trial court took judicial notice of the bond dated May 20, 2008 and the judgment nisi. If the court s findings are insufficient to establish the court took judicial notice of the bond, there is no evidence of either essential element of the State s claim, rendering the evidence legally insufficient to support the judgment. If the court s findings are effective to show it took judicial notice of the bond, it was clearly the May 20, 2008 bond. The bond affirmatively shows that was not a valid and enforceable undertaking because it was not executed by the principle or the surety. Tex. Code Crim. Proc. art. 17.08(4); 22.13(a)(1); Kubosh, 241 S.W.3d at 64. Consequently, the evidence is legally insufficient to support a finding that any surety was liable on the May 11

20, 2008 bond and the trial court s judgment was error. See Havner, 953 S.W.2d at 711. The State may not save the judgment by arguing it is supported by a bond executed May 13, 2008. There are several reasons this is so. The State s pleading, which is the judgment nisi, specifically identified the May 20, 2008 bond as the basis for the forfeiture. (CR 17). Rendition of a judgment forfeiting a different bond would violate the fair notice requirement of Rule 45, appellant s due process right to notice of the claim against it, Mullane, 339 U.S. at 313, and the limitation of Rule 301 that a judgment conform to the pleadings. Additionally, as noted in appellant's first point, neither the judgment nisi or citation named the surety on the May 13, 2008 bond: International Fidelity Insurance Company, through its agent, Davie C. Westmoreland, dba Freebirds Bail Bonds. Service on agent for a corporate surety is insufficient to support a judgment against the surety even where the agent files an answer. Castaneda v. State, No. 13-06-0039-CV, 2008 WL 2744582 (Tex.App. Corpus Christi June 30, 2008, no pet.). The State may not argue any other bond forfeiture was tried by consent because the only bond reference at the hearing was the May 20, 2008 bond (RR 4), that is the bond listed in the purported findings of the trial court. (CR 23). Because the evidence is legally insufficient to support the trial court s judgment, the judgment must be reversed. Ordinarily legal insufficiency of the evidence in a post-answer default requires remand to permit the record to be 12

developed. Bennett v. McDaniel, 295 S.W.3d 644, 645 (Tex. 2009). Here the record is sufficiently developed to permit this court to render the judgment the trial court should have rendered, a take-nothing judgment. Tex. R. App. P. 43.2(c); 43.2. Point 3. The trial court clerk charged fees not authorities by law and for which appellant has no remedy in the trial court. Point 4. The court reporter charged fees not authorized by law. together. Appellant s third and fourth points are closely related and will be addressed Facts Appellant perfected appeal on April 8, 2010. (CR 39). Appellant s request for preparation of a clerk s record was filed on April 10, 2010. Seventy-six days later, the trial court clerk sent notice to this court that the clerk s record had been prepared and is being held for a tender of $129. The notice contained no listing of fees and only a copy was sent to appellant. See appendix F. Only on request for the particulars of the fee under section 51.320 of the Government Code, the clerk revealed it sought payment for preparation of two copies of the clerk s record and $25 processing fee. See appendix G. In the absence of procedure for challenging the fee, appellant was required to pay the fee or risk dismissal of its appeal. 13

Application. The trial court clerk and court reporter charged fees not authorized in this appeal. This court should review the proper calculation of fees in a bond forfeiture proceeding and render judgment awarding recovery of costs in accordance with Rule of Appellate Procedure 43.4. If the court finds it may not consider the issue in the context of this appeal, it should determine the proper method for challenging the assessment of fees. Both the trial court clerk and the court reporter demanded payment for two copies of the record. This was improper because it is now well established that although a bond forfeiture proceeding is a criminal matter it is governed by the rules for other civil actions after entry of a judgment nisi. Safety National Cas. Corp v. State, 305 S.W.3d 586 (Tex.Crim.App. 2010); Dees v. State, 865 S.W.2d 461, 462 (Tex.Crim.App. 1993); Tex. Code Crim. Proc. art 44.44. The rules that govern civil proceedings do not provide for preparation of a duplicate clerk s record or reporter s record. See Tex. R. App. P. 34.5(g), 35.6(h). This court should determine whether the trial court clerk and court reporter were permitted to charge appellant for two copies of the record in an appeal from a bond forfeiture proceeding. It should next determine how an appellant may challenge an demand for excess fees. There is no statutory authority to challenge the assessment of fees by a court clerk. See Dallas Co v. Sweitzer, 881 S.W.2d 757 (Tex.App.--Dallas 1994, 14

writ denied) (discussing former section 51.321 of the Government Code authorizing an action to recover excess fees). An appellant faced with a demand for excess fees has no apparent remedy to challenge the fees. The failure to pay the fee will result in the record not being filed and dismissal of the appeal or affirmance when the reporter s record is necessary to show error. Tex. R. App. P. 37.3(b) and (c). The recovery of costs to a prevailing party on appeal under Rule 43.4, merely shifts the harm resulting from the improperly charged fees. This court should direct remitture of the excess fees or state the manner in which an appellant may challenge a demand for excess fees without risking dismissal of its appeal. PRAYER FOR RELIEF Appellant prays this court reverse the default judgment of the trial court and render a take-nothing judgment or, in the alternative, remand for further proceedings. Appellant also prays the court tax costs against appellee. Tex. R. App. P. 43.4. Respectfully submitted: Clint F. Sare Texas Bar Num. 788354 P.O. Box 1694 Bryan Texas, 77806 (979) 822-1505 15

CERTIFICATE OF SERVICE I certify a copy of appellant s brief was served on counsel for the State by first class mail on August 26, 2010 to the following address: Todd Sellars 133 North Riverfront. LB. 19 Dallas Texas 75207 Clint F. Sare 16

APPENDIX Appendix A. Appendix B. Appendix C. Appendix D. Appendix E. Appendix F. Appendix G Judgment Nisi Trial Court Judgment Bond Letter to Court Reporter Response from Court Reporter Notice of Clerk s Record Clerk s Record Statement of Cost 17