PATRICK A. PIRTLE, Justice.
This appeal is from the trial court's entry of a judgment on remand from the Texas Supreme Court. Finding the trial court erred in the calculation of damages and the award of postjudgment interest, we reverse and remand.
Because the underlying facts of this case are well-known to the parties, we focus only on those facts germane to this appeal. This medical malpractice cause of action was originally tried to a jury in 2005. That jury returned a verdict in favor of Appellants, Dale Bramlett, Individually and as Independent Administrator of the Estate of Vicki Bramlett, Deceased, Shane Fuller and Michael Fuller,
Petition for review was granted by the Texas Supreme Court to consider the interrelationship between two provisions of the Medical Liability and Insurance Improvement Act of 1977. The first provision, section 11.02(a), capped the liability of a physician at a fixed amount, adjusted for inflation; whereas the second provision, section 11.02(c), created an exception to this cap when the physician's insurer negligently fails to settle within the meaning of the Stowers Doctrine,
Accordingly, on March 6, 2009, the Supreme Court reversed the judgment of this Court
After the Supreme Court issued its opinion, but prior to any action by the trial court, Appellants attempted to amend their petition to include claims against Appellee's insurance carrier, The Medical Protective Company of Fort Wayne, Indiana, Medical Protective Insurance Services, Inc., d/b/a The Medical Protective Company of Fort Wayne, Indiana (hereinafter "Med Pro"), and two adjusters, Dan Walston and Paul Rinaldi. Because Med Pro had previously filed a motion for rehearing before the Supreme Court,
Both parties moved for judgment and without a new trial on the merits, a hearing on pending motions was held on November 19, 2009. On December 1, 2009, the trial court entered its second judgment (the "2009 judgment") in the sum of $1,717,649.61. In rendering that judgment, the trial court implicitly denied Appellants' attempt to add additional parties, recalculated damages,
Appellants originally sought relief from the Supreme Court through a petition for writ of mandamus. The Supreme Court denied that relief without written opinion.
Ultimately, by one issue, stated in seven different subparts, Appellants contend the trial court erred by failing to recite in the 2009 judgment that (1) facts exist which would enable Appellants to assert a cause of action pursuant to the "Stowers Doctrine," (2) the amount of damages that would have been awarded Appellants but for the section 11.02(a) damages cap, (3) the apportionment of rights between Appellants and Appellee in any subsequent prosecution of a Stowers claim; and the trial court erred by exceeding the Supreme Court Mandate by (4) changing the effective date for and rate of postjudgment interest, (5) vacating the original judgment, (6) removing recitations and other language from the original judgment, and (7) misspelling Shane Fuller's name.
An intermediate appellate court must hand down a written opinion that addresses every issue raised that is necessary to final disposition of an appeal. Tex. R.App. P. 47.1. Upon disposition of that appeal, the court of appeals must also enter a judgment that either: (a) affirms the trial court's judgment in whole or in part; (b) modifies the trial court's judgment and affirms it as modified; (c) reverses the
Similarly, the Texas Supreme Court must hand down a written opinion in all cases in which it renders a judgment. Tex.R.App. P. 63. That judgment must either: (a) affirm the lower court's judgment in whole or in part; (b) modify the lower court's judgment and affirm it as modified; (c) reverse the lower court's judgment in whole or in part and render the judgment that the lower court should have rendered; (d) reverse the lower court's judgment and remand the case for further proceedings; (e) vacate the judgments of the lower courts and dismiss the case; or, (f) vacate the lower court's judgment and remand the case for proceedings in light of changes in the law. Tex.R.App. P. 60.2. Following entry of its judgment and expiration of appropriate time periods, the Clerk of the Supreme Court also issues a mandate. Tex.R.App. P. 18.1(b).
When an appellate court affirms a trial court's judgment or renders the judgment a trial court should have rendered, the judgment of the appellate court becomes the judgment of both courts, as to those issues. Cook v. Cameron, 733 S.W.2d 137, 139 (Tex.1987) (op. on rehearing); Dallas County v. Sweitzer, 971 S.W.2d 629, 630 (Tex.App.-Dallas 1998, no pet.). When a lower court's judgment is reversed in whole, that judgment is a nullity, leaving the judgment as if it had never been rendered. See Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 145 (Tex.App.-Dallas 2011, no pet.); In re S.S.G., 208 S.W.3d 1, 3 (Tex.App.-Amarillo 2006, pet. denied) (stating effect of reversal is to nullify the judgment); Flowers v. Flowers, 589 S.W.2d 746, 748 (Tex.App.-Dallas 1979, no writ) (holding reversal of a judgment completely nullifies it, leaving it as if it had never been rendered); In re Jerry F., 294 S.W.3d 297, 298 (Tex.App.-Fort Worth 2009) (orig. proceeding) (stating once reversed, the trial court's judgment is of no force and effect). However, when a judgment is reversed in part, as to those issues on which the judgment was not reversed, unless otherwise modified, the judgment remains in force and effect.
The scope of an appellate court's mandate is determined with reference to both the appellate court's opinion and the mandate itself. Cessna Aircraft Co., 345 S.W.3d at 144 (citing Truck Ins. Exchange v. Robertson, 89 S.W.3d 261, 263 (Tex. App.-Fort Worth 2002, no pet.). Therefore, whether a judgment is reversed in whole or in part does not depend solely upon the wording of the mandate itself, but must instead be discerned by looking at both the opinion and the mandate to determine the full intent of the reviewing court. Id.
In this case, both the judgment and mandate of the Texas Supreme Court stated in pertinent part:
(Emphasis added.)
Although the Supreme Court's judgment and mandate "reversed" the judgment of this Court, its opinion did not address every issue previously determined by this Court, including issues pertaining to the recovery of exemplary damages, the remittitur suggested on the issue of Shane and Michael's future pecuniary losses, or the inclusion of findings made by the trial court in the original judgment. Because those issues were not addressed by the Supreme Court in its opinion, we construe that opinion, judgment and mandate as only reversing that part of our judgment dealing with the interrelationship between section 11.02(a) and section 11.02(c) of the Medical Liability and Insurance Improvement Act of 1977. Therefore, as to those issues not addressed by the Supreme Court, the opinions and judgments of this Court remain in force and effect. Similarly, as to those issues not addressed by either the Supreme Court or this Court, the 2005 judgment of the trial court remains in force and effect.
When an appellate court remands a case with specific instructions, the trial court is limited to complying with the instructions and cannot re-litigate issues controverted at the former trial. Denton County v. Tarrant County, 139 S.W.3d 22, 23 (Tex.App.-Fort Worth 2004, pet. denied). We construe the mandate of the Supreme Court as vesting the trial court with the limited jurisdiction to determine the issue addressed in its opinion, to-wit: the interplay between "two provisions of the Medical Liability and Insurance Improvement Act of 1977, now repealed."
Simply put, the Supreme Court found the trial court erred by failing to apply the statutory damages cap provided by section 11.02(a). The Supreme Court found the trial court's 2005 judgment, and the judgment of this Court, incorrectly assumed that the section 11.02(c) statutory Stowers exception waived the section 11.02(a) cap as to both the insurer and the insured, when, in fact, it only waived that cap as to the insurer. Because the cap was not waived as to the insured (Appellee), the trial court and this Court erred by not giving effect to that damages cap. Therefore, the
The 2009 judgment of the trial court does five things: (1) it vacates the court's 2005 judgment; (2) it calculates the amount of recoverable damages based upon the jury's verdict; (3) it provides that "the unpaid part of this Judgment shall bear post judgment interest at Five Percent (5.0%) per year compounded annually"; (4) it specifically reserves any claim
Because that provision of the 2009 judgment vacating the 2005 judgment exceeds the limited scope of the trial court's jurisdictional authority, it was improper and is, hereby, vacated.
Appellants contend the trial court erred in its recalculation of damages because it exceeded the mandate of the Supreme Court by "[c]hanging the rate of postjudgment interest and the date from which postjudgment interest accrues from that in the original judgment, despite not having been directed to do so." Because the trial court did not explain the mathematical process by which it calculated damages, it is impossible for this Court to determine (1) the date upon which the adjusted cap on damages was calculated, (2) the consumer price index used to adjust that cap, (3) the application of settlement credits due to the settlement of another defendant, or (4) the application of an offset of prejudgment interest pursuant to section 304.105(b) of the Texas Finance Code. While this Court is unable to determine the actual methodology used by the trial court in its recalculation of damages, what is clear is that the trial court did not make those recalculations based upon the date of the 2005 judgment. Furthermore, it is patently clear from the face of the judgment that the trial court changed the rate of postjudgment interest. Because the trial court did not recalculate damages in accordance with the judgment of the Supreme Court, the trial court erred.
When a judgment is rendered by an appellate court or remanded for the limited purpose of entering a new judgment, the judgment creditor is entitled to postjudgment interest on the corrected judgment calculated from the date of the original erroneous judgment. Thornal v. Cargill, 587 S.W.2d 384, 385 (Tex.1979); D.C. Hall Transport, Inc. v. Hard, 355 S.W.2d 257, 260 (Tex.Civ.App.-Fort Worth 1962, writ ref'd n.r.e.). Even though the 2009 judgment does not specify the date from which postjudgment interest should be calculated, it clearly does not provide for postjudgment interest on the corrected judgment from the date of the original 2005 judgment. Therefore, the trial court erred in failing to specify that postjudgment interest would accrue from the date of the 2005 judgment.
The opinion of the Supreme Court made it clear that any Stowers claim would be the subject of subsequent litigation. Therefore, the trial court did not err in finding that any suit against Appellee's
Due to the limited jurisdiction of the trial court, the granting of additional relief would have exceeded the jurisdiction of the trial court. Therefore, the trial court did not err in denying relief not expressly granted.
Having found the trial court exceeded the limited jurisdiction granted by the mandate of the Supreme Court by vacating the 2005 judgment, and having found that the trial court erred in the recalculation of damages and the computation of postjudgment interest, Appellants' issue is sustained and the 2009 judgment is reversed. Accordingly, this cause is remanded to the trial court for the recalculation of damages. In calculating damages the trial court shall consider (1) the verdict of the jury, (2) Appellants' request to reduce the jury award of medical expenses by $124,000.00, (3) the judgment of this Court which reversed the award of exemplary damages, (4) this Court's Order of Remittitur, which reformed the 2005 judgment by reducing the recovery of Shane Fuller and Michael Fuller for future pecuniary losses, (5) the pretrial settlement of $2,300,000.00 received by Appellants from Covenant Health Systems d/b/a Covenant Medical Center, and (6) the judgment of the Supreme Court ordering the application of the statutory damages cap provided by section 11.02(a) as of October 18, 2005. Furthermore, in entering its judgment the trial court shall (1) calculate prejudgment interest pursuant to sections 304.003 and 304.103 of the Texas Finance Code from the date of injury, October 29, 2002, until the day before the date the original judgment was signed, October 17, 2005.
CAMPBELL, J., concurring and dissenting.
JAMES T. CAMPBELL, Justice, concurring and dissenting.
For the reasons the majority discusses, I agree with the reversal and remand of the trial court's judgment on remand for recalculation of damages. I concur in the court's judgment remanding the case.
I must dissent, however, from that portion of the majority opinion holding that the trial court erred by "vacating" its 2005 judgment.
Although the majority's opinion does not directly say so, its disagreement with the trial court's vacation of the 2005 judgment is of necessity tied to the contention of appellants ("the Bramletts") that the trial court erred by failing to include in its judgment on remand findings related to a Stowers claim against Dr. Phillips' insurer. I say that because all the relief granted
In their brief on appeal from the 2009 judgment, the Bramletts state specifically the language that was included within the 2005 judgment but omitted, over their objection, from the 2009 judgment. The Bramletts object that the trial court erred by omitting from the 2009 judgment a recitation of the amount of the uncapped "damages finding" that would have been awarded but for the damages cap, and by omitting its findings of "Stowers facts."
The 2005 judgment contains eleven pages of text. The decretal paragraphs occupy one page. The other ten pages of text consist of recitations of such matters as the case's procedural history, the jury findings, explanations of damage and interest calculations, and other discussion supporting the damages awarded. The 2009 judgment on remand is just over a page in length. The specific "Stowers facts" recited in the 2005 judgment but not carried over into the 2009 judgment read as follows:
The majority's implicit conclusion the trial court erred by failing to include the recitations in its 2009 judgment is premised on case law holding that when an appellate court affirms a trial court's judgment or renders the judgment a trial court should have rendered, the judgment of the appellate court becomes the judgment of both courts. See Cook v. Cameron, 733 S.W.2d 137, 139 (Tex. 1987) (so holding). Despite the Supreme Court's clear statement it was reversing our judgment,
The majority may mean that the Supreme Court "affirmed" all or part of the ten pages of the 2005 judgment that preceded the decretal paragraphs of the order. But it is difficult to see how the majority could mean such a thing. Factual recitations or reasons preceding the decretal portion of a judgment form no part of the judgment itself. Cadles of Grassy Meadow, II, LLC v. Herbert, 07-09-0190-CV, 2010 WL 1705307, 2010 Tex.App. Lexis 3147, April 27, 2010, no pet) (mem. op.); Nelson v. Britt, 241 S.W.3d 672, 676 (Tex. App.-Dallas 2007, no pet.). See generally, 5 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 27:24 (2d ed. 1999).
The recitation of "Stowers facts" that were supportive of the judgment against Dr. Phillips under the view of the law adopted by the trial court may have been appropriate in that 2005 judgment, but after the Supreme Court's opinion those "Stowers facts" no longer had any bearing on the judgment against him. For that reason also the court did not err by failing to include them in its judgment on remand.
The majority is correct that a trial court's authority on remand is limited to complying with the specific instructions of the reviewing court; hence, it may not re-litigate previously contested issues. Bramlett v. Phillips, 359 S.W.3d at 311. Applying that precept, however, the majority states that "[w]e construe the mandate of the Supreme Court as vesting the trial court with the limited jurisdiction to determine the issue addressed in its opinion, to wit: the interplay between `two provisions of the Medical Liability and Insurance Improvement Act of 1977, now repealed.'" Id. But the Supreme Court did not tell the trial court to determine any issue. As noted, the Supreme Court said in its opinion that the "cause is remanded to the trial court for it to apply the [damages] cap [of § 11.02(a)] and render judgment consistent with our opinion." Phillips, 288 S.W.3d at 883.
Given those instructions, the trial court did not, in my opinion, exceed the authority given it on remand by signing a judgment against Dr. Phillips omitting recitations that supported relief the Supreme Court's opinion had reversed and that would have no bearing on the judgment to be rendered on remand.
Our court is not naive concerning the purported import of this current appeal to the anticipated Stowers action against Dr. Phillips' insurer. The parties have been candid, both in briefing and at argument, regarding their focus on that litigation. I believe, however, that we have taken our eye off the ball of the question before us, which is whether the trial court erred in its judgment against Dr. Phillips. With regard to its refusal to repeat in its 2009 judgment the "Stowers facts" recited in the 2005 judgment, I would hold that the trial court did not err.
Lastly, the majority opinion states it "vacates" the provision of the 2009 judgment "vacating the 2005 judgment." To the degree the majority intends its language to restore the 2005 judgment to some effect, its action seems to me contrary to the opinion and judgment of the
PATRICK A. PIRTLE, Justice.
Remaining convinced that our prior disposition was correct, we deny Appellee's motion for rehearing with these additional comments. Appellee, Benny P. Phillips, M.D., has filed a motion for rehearing contending that this Court erred in three ways in rendering its judgment and opinion of January 4, 2012.
Appellee's motion for rehearing rehashes the same arguments heretofore presented to this Court concerning our jurisdiction in this case. Those issues were fully addressed by this Court's opinion of September 2, 2010, and we are unpersuaded to change our previous decision.
Appellee next contends this Court erred in concluding the trial court erred in "vacating" the 2005 judgment. In part, Appellee contends this Court's opinion of January 4, 2012, conflicts with the Texas Supreme Court's opinion in In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246, 248 (Tex.2010), because it fails to allow the trial court to give "full effect" to the opinion, judgment and mandate of the Texas Supreme Court in Phillips v. Bramlett, 288 S.W.3d 876 (Tex.2009). Appellee contends the Supreme Court's decision cannot be given "full effect" without vacating the "decretal damage paragraphs" contained in the 2005 judgment.
First, Las Colinas is clearly distinguishable from the case at hand. In Las Colinas, following the Supreme Court's reversal of another portion of the damages award, the trial court refused a defense request to reduce exemplary damages in accordance with the statutory cap requiring that exemplary damages be capped in accordance with a ratio to actual damages. The Supreme Court reasoned that, although their earlier judgment did not specifically address the issue of exemplary damages, the trial court was required, as a matter of law, to reduce exemplary damages in accordance with the statutory cap. Because the trial court abused its discretion by failing to reduce the exemplary damages award in compliance with the statutory cap, it failed to give "full effect" to the Supreme Court's judgment. Here, the trial court was not faced with a mandatory statutory obligation to delete the "decretal damage paragraphs" and their inclusion does not conflict with the Supreme Court's decision in any way. More importantly, even applying the principles of Las Colinas, vacating the 2005 judgment is not necessary to give full effect to the Supreme Court's judgment.
Finally, regarding the recalculation of damages, Appellee contends this Court erred in two ways: (1) by requiring the trial court to "extensively calculate or recalculate damages" and (2) by ordering that the date for determination of the statutory cap
First, both parties agree that the same date should be used for the determination of the section 11.02(a) statutory cap and the commencement of post-judgment interest. Starting with that premise, we must determine if the statutory provisions regarding these two dates are in conflict. The section 11.02(a) cap is based on the consumer price index as of the "time at which damages subject to such limits are awarded by final judgment or settlement." See art. 4590i, § 11.04. Similarly, the statute governing post-judgment interest requires that accrual begin on the "date the judgment is rendered...." Tex. Fin.Code Ann. § 304.005(a) (West 2006). While not identically worded, the clear import of these statutes is that each statute is triggered by the date the trial court grants judgment in favor of one party and against another.
After concluding that the same date applies for both purposes, Appellee frames the question well. Should that date be the date of the original judgment, as urged by Appellants, or should that date be the date of the new judgment, as urged by Appellee? Appellee relies on B. & M. Machine Co. v. Avionic Enters., Inc., 566 S.W.2d 901, 901-02 (Tex.1978), to support his conclusion that the applicable date is the date of the new judgment. Appellee's reliance is grossly misplaced. B. & M. deals with a situation where the trial court entered a new judgment within its plenary jurisdiction. Under the circumstances of that case, the Supreme Court held that the judgment of the trial court was the new judgment and that interest should run from the date of that judgment. Here, the original (albeit erroneous) judgment was entered by the trial court on October 18, 2005. No one disputes that, as of that date, Appellants were entitled to a judgment against Appellee; they just have not been able to agree on the "correct" dollar amount of that judgment. When the trial court eventually enters a judgment declaring that correct amount, Appellants are entitled to post-judgment interest on that amount calculated from October 18, 2005, the date of the original erroneous judgment. Thornal v. Cargill, 587 S.W.2d 384, 385 (Tex.1979); D.C. Hall Transport, Inc. v. Hard, 355 S.W.2d 257, 260 (Tex.Civ. App.-Fort Worth 1962, writ ref'd n.r.e.).
Having determined the correct date for determination of the section 11.02(a) cap and the commencement of post-judgment interest, we turn to Appellee's argument that this Court erred by requiring the trial court to "extensively calculate or recalculate damages." Here, Appellee grossly misreads the opinion of this Court. Both the majority and Justice Campbell agree that the trial court erred in its calculation of damages. Not only did the trial court use the wrong date for determination of the statutory cap, it specifically miscalculated the number of days of prejudgment
Additionally, Appellee incorrectly reads this Court's opinion as requiring the judgment to contain the trial court's mathematical calculations. Appellee contends this Court's opinion requires the trial court to recite findings of fact in its judgment in contravention of Rule 299a of the Texas Rules of Civil Procedure. A careful reading of this Court's opinion and judgment simply will not support that contention. Regardless of that argument, mathematical calculations themselves are not "findings" per se—they are simply math, and bad math is an abuse of discretion. Ultimately a trial court's calculation of damages, including prejudgment interest, must be discernable by a reviewing court.
Remaining convinced the trial court erred in its calculation of damages and that our prior opinion was correct, we deny Appellee's motion for rehearing.