Bramlett v. Phillips

• Decision Date: 17 February 2012
• Docket Number: No. 07–10–0061–CV.,07–10–0061–CV.
• Citation: 359 S.W.3d 304
• Parties: Dale BRAMLETT, Individually and as Independent Administrator of the Estate of Vicki Bramlett, Deceased; Shane Fuller and Michael Fuller, Appellants, v. Benny P. PHILLIPS, M.D., Appellee.
• Court: Texas Court of Appeals

359 S.W.3d 304

Dale BRAMLETT, Individually and as Independent Administrator of the Estate of Vicki Bramlett, Deceased; Shane Fuller and Michael Fuller, Appellants,

v.Benny P. PHILLIPS, M.D., Appellee.

No. 07–10–0061–CV.

Court of Appeals of Texas, Amarillo,Panel D.

Jan. 4, 2012.Opinion Denying Rehearing Feb. 17, 2012.

John Smithee, Templeton Smithee Hayes Heinrich & Russell, L.L.P., Amarillo, TX, Alexander B. Klein III, J. Todd Trombley, Myriam K. Legge, The Klein Law Firm, Houston, TX, Thomas J. Turner, Turner & Jordan, P.C., Lubbock, TX, for Appellant.

Jim Hund, Linda Russell, Hund, Krier, Wilkerson & Wright, P.C., Lubbock, TX, for Appellee.

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

OPINION

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.

Background

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,¹ and against Appellee, Benny P. Phillips, M.D., awarding $11 million in actual damages and $3 million in exemplary damages. The trial court denied Appellee's request to apply the statutory cap on damages in a medical malpractice action provided by article 4590i, section 11.02(a), ² and after posttrial adjustments,³ entered a judgment in favor of Appellants in the sum of $12,168,364.50 on October 18, 2005 (the “2005 judgment”). That judgment provided for postjudgment interest at the rate of 6.50% from the date of judgment. See Tex. Fin.Code Ann. § 304.003 (West 2006). The 2005 judgment was appealed to this Court where, on March 17, 2007, it was affirmed in part and reversed and remanded in part.⁴ Consistent with the remittitur suggested in that opinion, on April 30, 2007, this Court issued its Opinion on Order of Remittitur, which reformed the 2005 judgment by reducing the recovery of Shane Fuller and Michael Fuller for future pecuniary losses and associated prejudgment interest.

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,⁵ that is, when the physician's insurer negligently fails to settle a claim within the limits of the physician's liability policy. Ultimately, the Supreme Court determined that both provisions could be given effect by conforming the judgment against the physician to section 11.02(a)'s cap and reserving for another case any suit against the insurer under section 11.02(c)'s Stowers exception.

Accordingly, on March 6, 2009, the Supreme Court reversed the judgment of this Court ⁶ and remanded the case to the trial court for entry of a judgment “consistent” with the Supreme Court's opinion.⁷ All motions for rehearing were denied and the Texas Supreme Court issued its mandate on September 29, 2009.

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,⁸ Appellants contended that Med Pro was a party to this proceeding and they filed a motion requesting the trial court to compel Med Pro to appear and answer Appellants' allegations.

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, ⁹ changed the rate and effective date for computing postjudgment interest, and omitted findings originally contained in the 2005 judgment. According to Appellants' allegations, in rendering judgment, the trial court disregarded a Rule 11 agreement between the parties entered into after the 2005 judgment pertaining to the effective date for the computation of postjudgment interest. Appellants' motion to modify, correct, or reform that judgment was subsequently overruled by operation of law and this appeal followed.

Appellants originally sought relief from the Supreme Court through a petition for writ of mandamus. The Supreme Court denied that relief without written opinion.¹⁰ While awaiting disposition of their requested mandamus relief, Appellants timely perfected this appeal of the trial court's 2009 judgment. Contending this Court lacked jurisdiction, Appellee moved to dismiss the appeal. Originally, we denied Appellee's motion to dismiss without written opinion; however, upon consideration of Appellee's motion for rehearing, we reaffirmed our denial by written opinion.¹¹

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.

Opinions and Judgments and Mandates! Oh, my!¹²

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 trial court's judgment in whole or in part and renders the judgment that the trial court should have rendered; (d) reverses the trial court's judgment and remands the case for further proceedings; (e) vacates the trial court's judgment and dismisses the case; or, (f) dismisses the appeal. Tex.R.App. P. 43.2. Following entry of the appellate court's judgment and the expiration of appropriate time periods, the clerk of that court issues a mandate. Tex.R.App. P. 18.1(a), 51.1. The mandate is the appellate court's directive commanding the lower court to comply with the appellate court's judgment. Tex. Parks & Wildlife Dep't v. Dearing, 240 S.W.3d 330, 347 (Tex.App.-Austin 2007, pet. denied).

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.)....