Campos v. Ysleta General Hosp., Inc.

• Decision Date: 16 March 1994
• Docket Number: No. 08-93-00060-CV,08-93-00060-CV
• Parties: Jose Angel CAMPOS and wife, Florencia Campos, Appellants, v. YSLETA GENERAL HOSPITAL, INC., Pedro Ortega d/b/a Ysleta Medical Clinic and Centro Medico Del Valle and David Allen Smith, M.D., Appellees.
• Court: Texas Court of Appeals

Page 67

879 S.W.2d 67

Jose Angel CAMPOS and wife, Florencia Campos, Appellants, v. YSLETA GENERAL HOSPITAL, INC., Pedro Ortega d/b/a Ysleta

Medical Clinic and Centro Medico Del Valle and

David Allen Smith, M.D., Appellees.

No. 08-93-00060-CV.

Court of Appeals of Texas,

El Paso.

March 16, 1994.

Opinion after Abatement June 2, 1994.

Rehearing Overruled June 29, 1994.

Timothy Harrington, Gage Beach & Ager, Ann Crawford McClure, McClure and McClure, El Paso, for appellants.

James W. Cannon, Jr., Jane R. Burruss, Akin, Gump, Hauer & Feld, Austin, Ken Braxton, Jr., Kevin L. Williams, Office of General Counsel, Lubbock, Victor F. Poulos, Mayfield and Perrenot, El Paso, for appellees.

Before BARAJAS, C.J., and KOEHLER and LARSEN, JJ.

OPINION

LARSEN, Justice.

For the second time, events surrounding the tragic death of one small boy are before this Court. Finding the trial court's order awarding attorneys' fees as sanctions failed to comply with the requirements of TEX.R.CIV.P. 13, we abate the appeal.

FACTS

Jose Angel Campos, Jr., five years old, died of complications from an unchecked fever on September 29, 1988. His mother and uncle took the boy to Ysleta Medical Clinic, where they were apparently refused help. ¹ The Camposes then went to Centro Medico Del Valle, where an attendant asked Ms. Campos to complete some forms and told her all examining rooms were full, so they would have to sit in the waiting area. Interpreting this as a refusal to provide service, Ms. Campos and her brother-in-law then took Jose to R.E. Thomason General Hospital's emergency room, where he was treated by emergency room physician David Allen Smith for approximately one-half hour before he was pronounced dead. Jose's parents hired the law firm of Gage, Beach & Ager, which brought a wrongful death suit based on these events. This first suit did not name David Allen Smith as a defendant.

The wrongful death suit went to trial. At a pretrial hearing, the Campos's lawyer belatedly tried to add a trial amendment for Jose's damages stemming from his conscious pain and suffering before death, a survival action. The trial court denied leave for plaintiffs to amend at that late date. After plaintiffs rested their case, the trial court granted a directed verdict, which this Court affirmed. In our opinion, we found that the trial court decision was correct because plaintiffs had presented no evidence that any act or omission of any defendant was a cause in fact of Jose Campos's death. Campos v. Ysleta General Hospital, Inc., 836 S.W.2d 791 (Tex.App.--El Paso 1992, writ denied).

Nevertheless, on August 19, 1991, Jose Angel Campos and Florencia Campos again filed suit based upon their son's death against all the same defendants plus Doctor Smith. The second suit alleged a survival cause of action on behalf of the deceased child, although it was not brought by his estate but by his parents in their individual capacities. All defendants filed motions for summary judgment based upon expiration of the two-year statute of limitations, and (except for Doctor Smith) judicial estoppel. Defendants also requested attorney's fees as sanctions under TEX.R.CIV.P. 13. The trial court granted summary judgment and sanctions of $21,500. On appeal, the plaintiffs challenge only the award of attorneys fees.

STANDARD OF REVIEW

We review the trial court's award of sanctions under TEX.R.CIV.P. 13 only for abuse of discretion. Whitaker v. Bank of El Paso, 850 S.W.2d 757, 762 (Tex.App.--El Paso 1993, no writ). We will overturn such an award only when it is based upon an erroneous application of law or is unsupported by the evidence. Id.

RULE 13

SANCTIONS

In their first two points of error, plaintiffs complain that the trial court's order does not comply with the mandates of TEX.R.CIV.P. 13. This, because the trial court failed to specify facts justifying its conclusion that the case was groundless, and brought in bad faith or for purposes of harassment. There is no doubt that TEX.R.CIV.P. 13 requires such specific findings:

Courts shall presume that pleadings, motions, and other papers are filed in good faith. No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanctions order. [Emphasis added].

It is equally clear that the order challenged here does not state the underlying facts upon which the court relied, nor even make a general finding of good cause. It only recites generally that:

The Court, having considered the Motions and being of the opinion that said Motions should be in all things GRANTED, it is accordingly:

ORDERED, JUDGED AND DECREED that Plaintiffs and Plaintiffs' Attorneys be and are hereby required to pay $3,500.00 to Defendants YSLETA GENERAL HOSPITAL, INC. and PEDRO ORTEGA d/b/a MEDICAL CLINIC, $13,000.00 to CENTRO MEDICO DEL VALLE and $5,000.00 to DAVID ALLEN SMITH, M.D. for sanctions imposed.

It was error for the trial court to enter this sanctions order without setting out the factors it relied upon in doing so.

Defendants argue, however, that plaintiffs waived this error by not objecting to the form of the order, or requesting the particular grounds for awarding sanctions be set out by the court. Two courts of appeals have held that complaining parties may waive the particularity requirement of Rule 13 if they fail to make a timely complaint; they further held that the trial court's failure to make particular findings may constitute harmless error. Bloom v. Graham, 825 S.W.2d 244, 247 (Tex.App.--Fort Worth 1992, writ denied); Powers v. Palacios, 771 S.W.2d 716, 719 (Tex.App.--Corpus Christi 1989, writ denied); TEX.R.APP.P. 52(a) and 81(b)(1). Other cases hold that the language of Rule 13 is mandatory, and failure to comply is an abuse of discretion, without addressing whether such error can be waived. See GTE Communications Systems Corp. v. Curry, 819 S.W.2d 652, 654 (Tex.App.--San Antonio 1991, orig. proceeding); Zarsky v. Zurich Management, Inc., 829 S.W.2d 398, 399 (Tex.App.--Houston [14th Dist.] 1992, no writ); Kahn v. Garcia, 816 S.W.2d 131, 133 (Tex.App.--Houston [1st Dist.] 1991, orig. proceeding); Watkins v. Pearson, 795 S.W.2d 257, 260 (Tex.App.--Houston [14th Dist.] 1990, writ denied).

While agreeing that the issue may be waived under TEX.R.APP.P. 52(a), we believe that plaintiffs did make some attempt to draw the trial court's attention to the need for particularized findings. ² Coupled with the clear and mandatory language of Rule 13, we find plaintiffs did sufficiently bring the issue to the trial court's attention, and preserved their right to particularized findings on good cause as required by the rule.

REMEDY

Having found error which was preserved, we must now decide what remedy is appropriate here. Existing caselaw is not dispositive on the point, but enlightens us by analogizing the finding of Rule 13 "particulars" to findings of fact and conclusions of law under TEX.R.CIV.P. 269 and 270:

A rule of civil procedure is interpreted by the same rules that govern statutes. When a rule is clear and unambiguous, we construe the language according to its literal meaning. [Citations omitted]. The language contained in rule 13 is clear and unambiguous. The rule provides that no sanctions may be imposed except for good cause and that the trial court must enumerate the particulars of the good cause in the sanction order. The requirement that the court state its findings in the order is in lieu of the traditional findings of fact and conclusions of law which normally are filed in a trial on the merits in a non-jury case. These findings enable the appellate court to review the order in light of the facts found by the trial court. Without the findings required by Rule 13, effective review of the sanctions is unavailable because the sanctioned party would be unable to overcome the presumption that the trial court found necessary facts in support of its judgment. Curry, 819 S.W.2d at 653-54. [Emphasis added].

We have previously been asked to take appropriate action where the trial court has not filed findings of fact and conclusions of law, where requested by Appellant and where necessary for a meaningful review of the judgment. In that situation, we abated the appeal and remanded to the trial court for entry of findings of fact and conclusions of law. Rothwell v. Rothwell, 775 S.W.2d 888, 890 (Tex.App.--El Paso 1989, no writ). We have done the same in a criminal case where the trial court failed to file mandatory findings after a Jackson v. Denno ³ hearing on the voluntariness of defendant's confession. Avila v. State, 856 S.W.2d 260, 262 (Tex.App.--El Paso 1993, no pet.). We find these cases very similar to the one here, and further find that abatement will best expedite a meaningful review of the trial court's decision on sanctions.

CONCLUSION

We abate the appeal for a period of thirty days, and remand this cause to the trial court for proceedings consistent with this opinion and TEX.R.CIV.P. 13.

OPINION AFTER ABATEMENT

The trial court having filed the particulars required by TEX.R.CIV.P. 13, we now examine the merits of its sanction order against plaintiffs and their attorneys. Plaintiffs' Points of Error One and Two deal solely with the trial court's failure to state the particulars supporting good cause to enter the sanctions award under TEX.R.CIV.P. 13. We overrule these points of error as moot.

Upon reviewing plaintiff's remaining points of error, we conclude that the Campos's second lawsuit was barred by both res judicata and the applicable statute of limitations, that the law in both areas was well settled at the time Campos II was filed, and that action was therefore groundless within the meaning of TEX.R.CIV.P. 13. We further conclude that the trial court's findings that Campos II was brought for purposes of harassment and in bad faith are supported by the record. We affirm the trial court's judgment.

GROUNDS FOR ASSESSING SANCTIONS UNDER RULE 13

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