Bramlett v. Phillips

OPINION ON MOTION FOR REHEARING

PATRICK A. PIRTLE, Justice.

Remaining convinced that our prior disposition was correct, we deny Appellee’s motion for rehearing with these additional comments. Appellee, Benny P. Phillips, M.D., has filed a motion for rehearing contending that this Court erred in three ways in rendering its judgment and opinion of January 4, 2012.1 First, Appellee contends this Court lacked any jurisdiction to review the trial court’s 2009 judgment. Second, Appellee contends this Court erred in concluding the trial court erred by “vacating” its earlier 2005 judgment. Finally, Appellee contends this Court erred in ordering a recalculation of damages. We write briefly to address Appellee’s misconceptions concerning the judgment of this Court.

Appellate Jurisdiction

Appellee’s motion for rehearing rehashes the same arguments heretofore presented to this Court concerning our jurisdiction in this case. Those issues were fully addressed by this Court’s opinion of September 2, 2010, and we are unpersuaded to change our previous decision.2

Vacated Judgment

Appellee next contends this Court erred in concluding the trial court erred in “vacating” the 2005 judgment. In part, Ap-pellee contends this Court’s opinion of January 4, 2012, conflicts with the Texas Supreme Court’s opinion in In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246, 248 (Tex.2010), because it fails to allow the trial court to give “full effect” to the opinion, judgment and mandate of the Texas Supreme Court in Phillips v. Bram-lett, 288 S.W.3d 876 (Tex.2009). Appellee contends the Supreme Court’s decision cannot be given “full effect” without vacating the “decretal damage paragraphs” contained in the 2005 judgment.3

First, Las Colinas is clearly distinguishable from the case at hand. In Las Coli-nas, following the Supreme Court’s reversal of another portion of the damages award, the trial court refused a defense request to reduce exemplary damages in accordance with the statutory cap requiring that exemplary damages be capped in accordance with a ratio to actual damages. The Supreme Court reasoned that, although their earlier judgment did not specifically address the issue of exemplary damages, the trial court was required, as a matter of law, to reduce exemplary damages in accordance with the statutory cap. Because the trial court abused its discretion by failing to reduce the exemplary damages award in compliance with the statutory cap, it failed to give “full effect” to the Supreme Court’s judgment. Here, the trial court was not faced with a mandatory statutory obligation to delete the “de-cretal damage paragraphs” and their inclusion does not conflict with the Supreme Court’s decision in any way. More importantly, even applying the principles of Las Colinas, vacating the 2005 judgment is not necessary to give full effect to the Supreme Court’s judgment.

*317Recalculation of Damages

Finally, regarding the recalculation of damages, Appellee contends this Court erred in two ways: (1) by requiring the trial court to “extensively calculate or recalculate damages” and (2) by ordering that the date for determination of the statutory cap4 and commencement of post-judgment interest is the date of the original judgment. We will address Appellee’s concerns in reverse order.

First, both parties agree that the same date should be used for the determination of the section 11.02(a) statutory cap and the commencement of post-judgment interest. Starting with that premise, we must determine if the statutory provisions regarding these two dates are in conflict. The section 11.02(a) cap is based on the consumer price index as of the “time at which damages subject to such limits are awarded by final judgment or settlement.” See art. 4590i, § 11.04. Similarly, the statute governing post-judgment interest requires that accrual begin on the “date the judgment is rendered.... ” Tex. Fin.Code Ann. § 304.005(a) (West 2006). While not identically worded, the clear import of these statutes is that each statute is triggered by the date the trial court grants judgment in favor of one party and against another.

After concluding that the same date applies for both purposes, Appellee frames the question well. Should that date be the date of the original judgment, as urged by Appellants, or should that date be the date of the new judgment, as urged by Appel-lee? Appellee relies on B. & M. Machine Co. v. Avionic Enters., Inc., 566 S.W.2d 901, 901-02 (Tex.1978), to support his conclusion that the applicable date is the date of the new judgment. Appellee’s reliance is grossly misplaced. B. & M. deals with a situation where the trial court entered a new judgment within its plenary jurisdiction. Under the circumstances of that case, the Supreme Court held that the judgment of the trial court was the new judgment and that interest should run from the date of that judgment. Here, the original (albeit erroneous) judgment was entered by the trial court on October 18, 2005. No one disputes that, as of that date, Appellants were entitled to a judgment against Appellee; they just have not been able to agree on the “correct” dollar amount of that judgment. When the trial court eventually enters a judgment declaring that correct amount, Appellants are entitled to post-judgment interest on that amount calculated from October 18, 2005, the date of the original erroneous judgment. Thomal v. Cargill, 587 S.W.2d 384, 385 (Tex.1979); D.C. Hall Transport, Inc. v. Hard, 355 S.W.2d 257, 260 (Tex.Civ. App.-Fort Worth 1962, writ refd n.r.e.).

Having determined the correct date for determination of the section 11.02(a) cap and the commencement of post-judgment interest, we turn to Appellee’s argument that this Court erred by requiring the trial court to “extensively calculate or recalculate damages.” Here, Appellee grossly misreads the opinion of this Court. Both the majority and Justice Campbell agree that the trial court erred in its calculation of damages. Not only did the trial court use the wrong date for determination of the statutory cap, it specifically miscalculated the number of days of prejudgment *318interest. Frankly, we are at a loss to understand Appellee’s argument as to how the trial court could determine the correct amount of damages or “apply” the section 11.02(a) statutory cap without “recalculating” damages.

Additionally, Appellee incorrectly reads this Court’s opinion as requiring the judgment to contain the trial court’s mathematical calculations. Appellee contends this Court’s opinion requires the trial court to recite findings of fact in its judgment in contravention of Rule 299a of the Texas Rules of Civil Procedure. A careful reading of this Court’s opinion and judgment simply will not support that contention. Regardless of that argument, mathematical calculations themselves are not “findings” per se — they are simply math, and bad math is an abuse of discretion. Ultimately a trial court’s calculation of damages, including prejudgment interest, must be discernable by a reviewing court.5

Conclusion

Remaining convinced the trial court erred in its calculation of damages and that our prior opinion was correct, we deny Appellee’s motion for rehearing.*

. Bramlett v. Phillips, No. 07-10-0061-CV, 2012 Tex.App. LEXIS 71 (Tex.App.-Amarillo Jan. 4, 2012, no pet. h.)

. Bramlett v. Phillips, 322 S.W.3d 443 (Tex. App.-Amarillo 2010, no pet.).

. Motion for Rehearing of Appellee at page 11.

. All references to section 11.02(a) or section 11.04 are references to the Medical Liability and Insurance Improvement Act of 1977. 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. Although repealed, this statute was effective at all times relevant to this litigation.

. As a general rule, an appellant need not guess at the basis upon which a trial court has ruled and, unless apparent from the record, a trial court may be required to make such findings as are necessary to allow an appellant to properly present his case to the appellate court. See R.H. v. Smith, 339 S.W.3d 756, 766 (Tex.App.-Dallas 2011, no pet.).

Consistent with his opinion on original submission, Justice Campbell would grant rehearing of that portion of the Court's opinion holding that the trial court erred by "vacating” its 2005 judgment.