NO. 07-10-0061-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 2, 2010
______________________________
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
_________________________________
FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-522,183; HONORABLE WILLIAM C. SOWDER, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
OPINION ON MOTION FOR REHEARING
At issue here is the authority of an intermediate appellate court to review the
judgment entered by a trial court after the Texas Supreme Court has remanded the
case to the trial court for the entry of a judgment "consistent" with the opinion of the
Supreme Court. Appellee, Benny P. Phillips, M.D., takes the position that the Supreme
Court's jurisdiction is exclusive, whereas Appellants, Dale Bramlett, Individually and as
Independent Administrator of the Estate of Vicki Bramlett, Deceased; Shane Fuller and
Michael Fuller, take the position that this Court has statutory jurisdiction. Believing this
case to be one involving, in part, review of legal and factual determinations made by the
trial court within the parameters of the mandate issued by the Supreme Court, we find
that intermediate appellate review of those previously unresolved issues would be
appropriate to the effective administration of justice. Accordingly, we reaffirm our denial
of Appellee's motion to dismiss and we deny Appellee's motion for rehearing.
Background
This is an appeal following the entry of a judgment in favor of Appellants in their
medical malpractice cause of action against Appellee, following remand from the Texas
Supreme Court. In the original appeal to this Court, the trial court's judgment was
reversed, in part, and a take-nothing judgment was rendered in favor of Appellee on the
issue of gross negligence and punitive damages; a remittitur was suggested on the
issue of Shane and Michael's future pecuniary losses; and, in all other respects, the
judgment of the trial court was affirmed. See Phillips v. Bramlett, 258 S.W.3d 158
(Tex.App.--Amarillo 2007) rev'd, 288 S.W.3d 876, 882 (Tex. 2009). 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, now
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repealed. See Tex. Rev. Civ. Stat. Ann. art. 4590i. 1 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, that is, when the physician's insurer negligently fails to settle a claim within the
limits of the physician's liability policy. See generally, G.A. Stowers Furniture Co. v. Am.
Indem. Co., 15 S.W.2d 544, 547 (Tex. Comm’n App. 1929, holding approved).
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. Phillips v. Bramlett, 288 S.W.3d 876, 882 (Tex. 2009). Accordingly, on
March 6, 2009, the Supreme Court reversed the judgment of this Court and remanded
the cause to the trial court for it to apply the cap and render judgment consistent with
the opinion of the Supreme Court. Id. at 883.
Although the Supreme Court's opinion "reversed" the judgment of this Court, it
did not address issues previously determined by this Court pertaining to the remittitur
suggested on the issue of Shane and Michael's future pecuniary losses or the recovery
of punitive damages. All motions for rehearing were denied and the Texas Supreme
Court issued its mandate on September 29, 2009.
1
Act of June 16, 1977, 65th Leg., R.S., ch. 817, § 11.02, 1977 Tex. Gen. Laws 2039, 2052 (formerly Tex.
Rev. Civ. Stat. Ann. art. 4590i). Article 4590i was repealed by Act of June 2003, 78th Leg., R.S., ch.
204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
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After the Supreme Court issued its opinion, Appellants amended 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 filed a motion for rehearing
before the Supreme Court, 2 Appellants contended that Med Pro was a party to the
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 a hearing on pending motions was heard
on November 19, 2009. On December 1, 2009, the trial court signed a new judgment,
the judgment the subject of this appeal. In rendering that judgment, the trial court
omitted findings contained in the original judgment relevant to Appellants' amended
pleadings and it implicitly denied Appellants' attempt to add additional parties.
Furthermore, according to Appellant's allegations, in rendering judgment the trial court
disregarded a post-original judgment Rule 11 agreement between the parties pertaining
to the effective date for the computation of post-judgment interest. Additionally, the trial
court made legal and factual decisions pertaining to the applicable date for computation
of the statutory cap, as well as the applicable consumer price index to be applied in
calculating the cap. Appellants' motion to modify, correct, or reform that judgment was
subsequently overruled by operation of law.
2
The Supreme Court ultimately treated the filing as an amicus brief.
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Before filing this appeal, Appellants sought relief from the Supreme Court
through a petition for writ of mandamus. The requested relief was denied without
written opinion and this appeal followed.
Originally this Court denied Appellee's motion to dismiss for want of jurisdiction
without written opinion. Upon consideration of Appellee's motion for rehearing, we
requested Appellants to respond. Thereafter, Appellants did file a response and
Appellee filed a reply to that response.
Appellate Jurisdiction
If a judgment is reversed and the case is remanded to the trial court to have
"some special judgment rendered by the court below," the appellate court retains
jurisdiction until that particular judgment is entered and the mandate of the appellate
court obeyed. Wells v. Littlefield, 62 Tex. 28, 30-31 (1884). This jurisdiction is not,
however, exclusive. On remand, the filing of the appellate court's mandate with the trial
court clerk vests the trial court with limited jurisdiction, as defined by the parameters of
the mandate, to decide those issues specified in the appellate court's mandate. V-F
Petroleum, Inc. v. A. K. Guthrie Operating Co., 792 S.W.2d 508, 510 (Tex.App.--Austin
1990, no writ); Texacally Joint Venture v. King, 719 S.W.2d 652, 653 (Tex.App.--Austin
1986, writ ref'd n.r.e.).
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Thus, to the extent that the mandate vests the trial court with jurisdiction, albeit
limited, to determine legal and factual issues, the parties retain their right to appeal
those determinations through the usual and customary process of appeal. Tex. Gov't
Code § 22.220(a) (Vernon Supp. 2009).
If a trial court exceeds the limited jurisdiction granted by the mandate, the
jurisdiction of the appellate court continues for the purpose of enforcing its order by the
issuance of either a writ of prohibition or a writ of mandamus. See Wells, 62 Tex. at 31;
Dallas/Fort Worth Int'l Airport Bd. v. City of Irving, 868 S.W.2d 750, 751 (Tex. 1993);
Curtis v. Nobles, 588 S.W.2d 687, 690 (Tex.App.--Amarillo 1979, orig. proceeding). This
right of review by writ of prohibition or writ of mandamus does not, however, deprive an
intermediate appellate court of jurisdiction to review the decisions of the trial court which
were made within the trial court's limited jurisdiction. See Wall v. East Tex. Teachers
Credit Union, 549 S.W.2d 232 (Tex.App.--Texarkana 1977, writ ref'd) (appeal from
judgment of the district court on remand from the Texas Supreme Court); Peurifoy v.
Wiebusch, 174 S.W.2d 619, 621-22 (Tex.Civ.App.--El Paso 1943, no writ) (appeal from
the judgment of the district court on remand from the Texas Supreme Court).
Therefore, where the Supreme Court reverses an earlier judgment and remands
the case to the trial court for the rendition of a judgment "consistent" with the judgment
of the Supreme Court, an intermediate appellate court has jurisdiction to review the
decisions of the trial court which were made within the trial court's limited jurisdiction.
6
Appellee contends the Texas Supreme Court has exclusive jurisdiction to review
the new judgment entered by the trial court on remand. Appellants contend the trial
court erred in its legal determination of the rate and commencement date for post-
judgment interest, as well as matters collateral to the Supreme Court's resolution of the
Stowers issue. Because we believe Appellee has incorrectly construed the law
pertaining to the exclusivity of the Supreme Court's jurisdiction, we reaffirm our denial of
his motion to dismiss.
Conclusion
Because the trial court had jurisdiction to enter judgment in this case, we have
jurisdiction to review the decisions of the trial court. Appellee=s motion for rehearing is
denied.
Per Curiam
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