IN THE SUPREME COURT OF TEXAS
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No. 04-0575
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Columbia Medical Center of Las Colinas, Inc. d/b/a Las Colinas Medical Center,
Petitioner,
v.
Athena Hogue, Individually and as Executrix of the Estate of Robert Hogue, Jr.,
Deceased, Christopher Hogue, and Robert Hogue, III, Respondents
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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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Argued April 12,
2005
Justice Wainwright, joined by Justice Hecht and Justice Brister, dissenting from the denial of Petitioners Motion to Clarify the Mandate.
This
Courts opinion reversed the
trial courts judgment for
loss of inheritance damages and affirmed the jurys award of exemplary damages. 271 S.W.3d 238,
257. No other damages were challenged in the appeal. After the mandate
issued, Petitioner Columbia Medical Center tendered the amount for damages
affirmed in our opinion and judgment along with post-judgment interest accrued,
but the Hogues, Respondents, refused the tender. The Hogues did not dispute that the damages for loss of
inheritance were not recoverable as compensatory damages, but they took the
position that, notwithstanding the Courts decision, the inheritance damages should be included in the
statutory calculation of the maximum amount of punitive damages awardable. Columbia
Medical filed a motion to clarify the mandate. Today, the Court declines to
resolve this dispute.
Due
to the variety of factual scenarios and the complexity of the law, the answer to many legal questions is a close call. Here, there is only
one answer to the legal issue, and the Courts denial of the motion to clarify should not be read as a rejection
of Columbia Medicals
position. When the Court reverses a portion of economic damages that form the
basis of the cap on punitive damages, it is elementary that the cap must be
recalculated and reduced to account for the change. It is also elementary that
a reduction in compensatory damages on appeal requires, for example, the
parties to recalculate the apportionment of damages among defendants, to
reconsider settlement credits, and to recalculate post-judgment interest. We
should not need to expend time on such matters, but when necessary, we should
answer the question and settle the dispute. Because denying the motion to
clarify will likely embroil the parties in further litigation, when this Court
has jurisdiction to put an end to the dispute easily,1 I respectfully dissent from the denial of the motion to
clarify.
Our
original opinion, issued August 29, 2008, reversed $306,393 awarded as damages
to the Hogues for loss of inheritance and affirmed
the award of exemplary damages, capped by section 41.008 of the Texas Civil
Practice and Remedies Code. 271 S.W.3d at 255, 257. The
other amounts awarded as actual damages were not changed. We held that the
evidence submitted to the jury was legally insufficient to support an award of
damages for loss of inheritance. Id. at 255. However, the loss of
inheritance damages had been included as economic damages in the trial courts judgment to calculate the maximum
amount of punitive damages that could be awarded under the applicable statutory
cap. See Tex. Civ. Prac. &
Rem. Code § 41.008(b).
Under chapter 41, punitive damages were capped at (1) two times any amount of
economic damages plus (2) an amount equal to any noneconomic
damages not exceeding $750,000. Id.2
After
the Court issued its opinion and judgment, Columbia Medical filed a motion for
rehearing, which was denied January 16, 2009. That same day, we issued the
mandate. Thirteen days later Columbia Medical issued a wire transfer to the
trust account for the Hogues counsel in the amount of $8,906,385.50, which included payment of
compensatory damages, punitive damages, and post-judgment interest at a ten
percent rate, compounded annually. Columbia Medicals tender had reduced the amount of damages by properly
deducting the loss of inheritance damages from the compensatory damages and
adjusting the exemplary damages award accordingly. In other words, Columbia
Medical did not include $612,786two times the amount awarded as loss of inheritance damagesin calculating the exemplary damages cap.
The Hogues refused the tender. Columbia Medical
thereafter filed a motion to clarify the mandate, asking the Court to clarify
that the opinion reversing and rendering the loss of inheritance damages
requires the recalculation of the amount of compensatory damages as well as the
statutory cap on exemplary damages. The Hogues
opposed the motion, arguing that the motion was untimely or, in the
alternative, that the language in the original opinion stating that Columbia Medical
does not challenge the
quantum of exemplary damages
indicated that Columbia Medical had waived any right to the recalculation.
Because
the Court reversed the damages award for loss of inheritance, those damages are
not recoverable as part of a judgment in this case, either directly or
indirectly through inclusion in the calculation of the maximum exemplary
damages awardable. A reversal of a portion of economic damages requires that
the cap on the amount of punitive damages that could be awarded must be
recalculated. See, e.g., Seminole Pipeline Co. v. Broad Leaf
Partners, Inc., 979 S.W.2d 730, 760 (Tex. App.Houston [14th Dist.] 1998, no pet.) (recognizing the necessary recalculation
of the punitive damages cap when a portion of economic damages is reversed by
an appellate court). Columbia Medical excluded those damages from the cap, and
the Hogues do not challenge Columbia Medicals math.
Instead,
the Hogues essentially contend that Columbia Medical
waived the right to recalculation, because Columbia Medical should have been on
notice of the issue prior to the issuance of the mandate. The Hogues point to language in the Courts opinion stating that Columbia Medical does not . . . challenge
the quantum of exemplary damages. That sentence refers to Columbia Medicals decision to challenge whether evidence of its
mental state supported an award of punitive damages at all, rather than whether
the punitive damages award was excessive. See Tex. Civ. Prac
& Rem. Code § 41.001(11)(B) (providing one definition of gross negligence, which supports an award of punitive
damages, as an act or omission of which the actor has actual, subjective awareness of the risk
involved, but nevertheless proceeds with conscious indifference to the rights,
safety, or welfare of others).
The sentence had no relation whatsoever to the recalculation of exemplary
damages that must be undertaken due to our striking of a portion of the
economic damages. No party raised an issue with the calculation of the punitive
damages cap during this appeal, and the motion to clarify merely seeks
confirmation of a necessary mathematical calculation.
And Columbia Medical could not have
been expected to raise this issue prior to the Hogues refusal of the tender of payment after
the mandate issued. Columbia Medical had no way of knowing beforehand that the Hogues would interpret the judgment and mandate to attempt
to collect damages to which they were not entitled.
The
opinion and judgment are clear: The Hogues are not
entitled to loss of inheritance damages, either directly or indirectly through
an increase of the exemplary damages cap. By denying this motion, the Court is
leaving the parties in a quandary. It is not denying that Columbia Medicals position on the punitive
damages cap is correct (which it undisputably is). If
the Hogues continue to press the issue, at best the
failure to address the motion to clarify will force Columbia Medical to
continue to litigate this dispute, perhaps by filing a new action, having to
pay post-judgment interest that continues to accrue, incurring additional
attorneys fees, and
expending time over a matter we settled nearly a year ago. It is possible that
this matter will come before the Court again. At worst, the Courts inaction today could result in a more
than $612,000 windfall directly contrary to our opinion.
Thomas
Jefferson famously said, Never
put off till tomorrow what you can do today. Charles D. Cleveland, A Compendium of American
Literature 190 (1971). The Court fails to follow this sage advice. I
respectfully dissent from the denial of Columbia Medicals Motion to Clarify the Mandate.
_________________
Dale Wainwright
Justice
OPINION DELIVERED: June 19, 2009
1 Columbia Medicals motion is properly before
us. Texas Rule of Appellate Procedure 18.7 provides authority for this Court to
recall or modify its mandate. Tex. R. App. P. 18.7; see
also ONeil v. Mack Trucks,
Inc., 551 S.W.2d 32, 3233 (Tex. 1997) (recalling the mandate to correct an error related
to the remand of the case). Likewise, the motion is timely. Texas Rule of
Appellate Procedure 19.4 notes that the expiration of the appellate courts term does not affect the courts plenary power or its jurisdiction over a case that is pending
when the courts term
expires. Tex. R. App. P.
19.4. The Court denied Columbia Medicals
motion for rehearing on January 16, 2009. Because the motion for rehearing
remained pending in 2009, this case was pending during this Courts 2009 term, and it has jurisdiction
over the motion.