Hagberg v. City of Pasadena

• Decision Date: 15 February 2007
• Docket Number: No. 01-05-00466-CV.,01-05-00466-CV.
• Citation: 224 S.W.3d 477
• Parties: John D. HAGBERG, Appellant, v. THE CITY OF PASADENA, Appellee.
• Court: Texas Court of Appeals

224 S.W.3d 477

John D. HAGBERG, Appellant, v. THE CITY OF PASADENA, Appellee.

No. 01-05-00466-CV.

Court of Appeals of Texas, Houston (1st Dist.).

February 15, 2007.

Peggy M. Campbell, Barnes Law Firm, Peter Kelly, Moore & Kelly, P.C., for Appellant.

Dean G. Pappas, Mary M. Markantonis, Dean G. Pappas & Associates, P.C., Houston, for Appellee.

Panel consists of Justices TAFT, ALCALA, and HANKS.

OPINION

ELSA ALCALA, Justice.

John D. Hagberg appeals the trial court's order denying his attorney's fees incurred in defending this suit, which was filed by the City of Pasadena and sought to overturn a Texas Workers' Compensation Commission ("TWCC") determination in Hagberg's favor. After the suit had been pending for almost one year, the City moved for and was granted a nonsuit. The trial court also denied Hagberg's request for attorney's fees by a separate order. In a single issue on appeal, Hagberg contends that the trial court erred by not awarding attorney's fees because the Texas Workers' Compensation Act ("the Act") makes an award of fees mandatory for a claimant who prevails on an issue appealed by the insurance carrier.¹ See TEX. LAB.CODE ANN. § 408.221(c) (Vernon 2006). We conclude that the trial court erred by denying Hagberg's request for attorney's fees because Hagberg was the prevailing party under section 408.221 of the Act. See id. Accordingly, we reverse and remand.

Background

Hagberg was injured while working for the City. He received an impairment rating of 20%, which entitled him to receive Supplemental Income Benefits (SIBS). The City disputed Hagberg's impairment rating before the TWCC. After a benefit review conference, a hearing officer found Hagberg's impairment rating to be 20%. The City sought review by an appeals panel of the TWCC, which upheld the hearing officer's decision.

In February 2004, the City filed the underlying suit seeking to reverse the TWCC's determination of Hagberg's impairment rating. Hagberg's answer to the City's lawsuit asserted a general denial to the claims and requested attorney's fees. Less than one month before the February 2005 trial date, and after the case had been on file for over 11 months, the City filed a "Motion for Non-Suit."

Before the trial court ruled on the motion, Hagberg filed a "Motion for Approval of Attorney's Fees." In its response, the City challenged the request for attorney's fees by making two arguments, arguments which it also asserted in its response to Hagberg's motion for new trial and in its response in this appeal. First, the City claimed that there was no "prevailing party" because it nonsuited the lawsuit, and therefore the Act's provision that provides for an award of attorney's fees for the "prevailing party" was not met. Second, the City asserted that Hagberg's pleadings requesting attorney's fees were insufficient to constitute a claim for affirmative relief because he did not request attorney's fees by counterclaim or by naming any particular statute. The trial court granted the City's nonsuit and denied Hagberg's request for attorney's fees without stating the reason for its ruling.

Hagberg filed a motion for new trial that asserted that he was entitled to attorney's fees because (1) he requested attorney's fees in his answer to the lawsuit and (2) section 408.221 of the Act makes the award of attorney's fees mandatory for him, as the prevailing party in the lawsuit. Citing a decision from the El Paso Court of Appeals, Hagberg asserted that his pleadings were sufficient to request attorney's fees because attorney's fees for the prevailing party are mandatory under the Act. See Rodriguez v. Ysleta Indep. Sch. Dist., 68 S.W.3d 699, 700 (Tex.App.-El Paso 2001, pet. denied) ("Absent a mandatory statute or contract providing for attorney's fees, a party must specifically plead for it to invoke the trial court's jurisdiction to render judgment for attorney's fees."). The trial court denied the motion for new trial filed by Hagberg.

Waiver of Appeal

The City asserts that Hagberg has waived his appellate challenge to the trial court's order. The City contends that by limiting his issue on appeal to the sole complaint that the trial court erred by not finding him the "prevailing party" in the lawsuit, Hagberg has failed to challenge the second ground that the City asserted in its motion to dismiss, concerning the sufficiency of Hagberg's pleadings requesting attorney's fees.

We must construe the briefing requirements of the Texas Rules of Appellate Procedure liberally. TEX.R.APP. P. 38.9; see also Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004) (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.1997)). "The statement of an issue or point will be treated as covering every subsidiary question that is fairly included." TEX.R.APP. P. 38.1(e). Even though a specific point on appeal may not be recited within the statement of the issue presented, that point is not waived if it is raised within the body of the brief. See Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 n. 1 (Tex.2004). "[I]t is our practice to construe liberally points of error in order to obtain a just, fair, and equitable adjudication of the rights of the litigants." Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).

Although we construe issues presented liberally, failure to raise an issue on appeal waives error on the issue. Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001) (quoting San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex.1990), for the "well-established rule that grounds of error not asserted by points of error or argument in the court of appeals are waived"). Further, "[a]n issue raised for the first time in a reply brief is ordinarily waived." N.P. v. Methodist Hosp., 190 S.W.3d 217, 225 (Tex.App.-Houston [1st Dist.] 2006, pet. denied); see also Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 424 (Tex.1996) (holding issue waived when authority to support argument cited for first time in reply brief). Moreover, when a judgment or order may have been based upon grounds not challenged on appeal, a court of appeals must normally affirm. Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676, 681 (Tex.App.-Houston [1st Dist.] 2002, no pet.) "Generally speaking, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment." Id.

Hagberg's original brief to this Court asserts, in a single issue, that the "trial court erred in denying [Hagberg's] Motion for New Trial and Motion for Reconsideration of Court Order Denying Attorney's Fees Pursuant to 408.221(c), Tex. Lab.Code, because John D. Hagberg is the prevailing party for purposes of assessing attorney's fees under TEX. LAB.CODE. § 408.221." Within his sole issue in his original brief, Hagberg asserts that section 408.221 makes mandatory an award of attorney's fees for the prevailing party. Hagberg's original brief states that

in September, 2001, TEX. LAB.CODE. § 408.221 was amended by the Texas Legislature to include the following section [that states that] ... [a]n insurance carrier that seeks judicial review ... of a final decision of a commission appeals panel regarding compensability or eligibility for or the amount of, income or death benefits is liable for reasonable and necessary attorney's fees ... if the claimant prevails on an issue on which judicial review is sought by the insurance carrier . . . .

(Emphasis in brief). Hagberg's original brief asserts that it is undisputed that he met two of the three conditions precedent for requiring the carrier to pay his attorney's fees under the Act because the insurance carrier sought judicial review of a final decision of a TWCC appeals panel and the only issue appealed was Hagberg's impairment rating. His original brief further contends that having met two of the three conditions precedent for an award of attorney's fees, the only remaining unresolved question is whether he is the prevailing party. Hagberg's position on appeal is that he met all of the conditions precedent for an award of attorney's fees under the Act, which makes attorney's fees mandatory for the prevailing party. Hagberg thus implicitly argues in his original brief what he more expressly asserted in his motion for new trial and in his reply brief—that no pleadings are necessary to obtain an award of attorney's fees "when there is statutory authority providing for attorney's fees."

Although we agree with the City that the better practice is for an appellant to assert a separate issue for each of the grounds in the trial court's order, we cannot agree that Hagberg has waived his right to appeal the trial court's order. Construing the briefing requirements liberally to obtain a just, fair, and equitable adjudication of the rights of the litigants here, we conclude that Hagberg's sole issue fairly included the subsidiary issue that no pleadings were necessary for the conditions of the Act to be satisfied. See TEX.R.APP. P. 38.9, 38.1(e); Sterner, 767 S.W.2d at 690. Hagberg clearly asserted to the trial court and within his arguments to this Court that he met all of the conditions required by the statute. We hold that Hagberg has not waived error by asserting his complaint to the trial court's order through one appellate issue. See Tex. Dep't of Transp., 146 S.W.3d at 642 n. 1.

Attorney's Fees Under Section 408.221

Hagberg contends that the trial court erred by failing to award him attorney's fees under section 408.221 of the Act because he was the prevailing party under the TWCC's determination, and he remained the prevailing party by virtue of the City's nonsuit of its appeal of the TWCC decision.

A. Sufficiency of the Pleading for Attorney's Fees

The City challenges Hagberg's pleading that requests attorney's fees by asserting that in the pleading Hagberg failed to allege sufficient facts to support a claim for attorney's fees,...