Charles Ly v. Sara Austin, M.D., and Kent Ellington, M.D,
No. 03-05-00516-CV (Tex.App.- Austin, Jul. 13, 2007)(Opinion by Justice Pemberton)
Appeal from 250th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. GN501313, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
MEMORANDUM OPINION BY PEMBEERTON
Charles Ly appeals from the district court's dismissal of his health care liability claims against Drs. Sara Austin and Kent Ellington (Defendants) for failure to furnish an expert report that complied with the requirements of section 13.01 of the Medical Liability and Insurance Improvement Act (the Act). See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01. (1) Ly asserts that the district court erred in holding that the reports he had furnished failed to comply with section 13.01 and refusing to grant him an additional 30-day grace period to cure any defects. We affirm.
BACKGROUND
On June 1, 2001, Ly sued Dr. Austin, Dr. Ellington, Seton Medical Center, and three other individual physicians alleging negligence "during the course of medical treatment provided by the above named Defendants . . . beginning on or about March 8, 1999 through March 14, 1999." Defendants are both board-certified neurologists who provided care to Ly during or immediately after he "fell just outside a restaurant" and was taken by ambulance to the Seton emergency room for treatment. Ly alleges that he came under the care of Dr. Austin and other physicians, "who treated him for a diagnosis of stroke." A "CT-Scan was taken and interpreted" by one of the other physicians. Ly "was given the drug Heparin, which was ordered by" Dr. Austin and another physician. Finally, Ly alleged that he was "eventually moved to the hospital floor," where he was treated "for stroke and various other ailments" by Dr. Ellington and another physician. During the course of this treatment, Ly "fell from his hospital bed and severely injured his left arm."
On August 20, 2001, Ly served on the defendants an expert report prepared by Dr. Suzanne E. Page, M.D., with her curriculum vitae attached. See id. art. 4590i, § 13.01(d)(1) ("Not later than the later of the 180th day after the date on which a health care liability claim is filed . . . the claimant shall . . . furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report."). Various of the defendants, including Defendants, filed motions to dismiss Ly's claim for failure to furnish a proper expert report. See id. art. 4590i, § 13.01(e).
The procedural history of the case thereafter was complicated by delays related to the withdrawal of Ly's counsel and his difficulties in obtaining replacement counsel. Of relevance here, after granting Ly a 30-day extension, id. art. 4590i, § 13.01(g), the district court granted Defendants' first amended motions to dismiss and denied Ly a second 30-day extension. (2) The court later severed out Ly's claims against Defendants, making its dismissal order regarding Defendants final. Ly appeals from this order.
DISCUSSION
On appeal, Ly contends that the district court erred in holding that Dr. Page's report failed to comply with section 13.01 of article 4590i and in refusing to grant him a second 30-day extension. (3)
In holding that Dr. Page's reports failed to comply with article 4590i, section 13.01, the district court relied on the two grounds raised in Defendants' dismissal motions: Dr. Page's report (1) failed to establish that she was an "expert" qualified to testify concerning the matters stated in her report; and (2) lacked a fair summary of her opinions regarding the applicable standard of care, its alleged breach by Defendants, or the causal relationship between the alleged breach and the claimed harm. Id. art. 4590i, § 13.01(r)(5), (6).
To comply with the requirements of section 13.01(d), an "expert report" first must be a "written report by an expert." Id. art. 4590i, § 13.01(r)(6) (emphasis added). Section 13.01(r)(5) defines "expert" to require that a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care be qualified under section 14.01(a). See id. art. 4590i, § 13.01(r)(5)(A). Section 14.01(a) requires:
In a suit involving a health care liability claim against a physician for injury to or death of a patient, a person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who:
(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.
Id. art. 4590i, § 14.01(a).
In determining whether the expert is qualified on the basis of training or experience, the court is to consider whether, at the time the claim arose or the testimony is given, the witness is board-certified or has other substantial training or experience in an area of practice relevant to the claim and is actively practicing medicine in rendering medical care services relevant to the claim. Id. art. 4590i, § 14.01(c). Furthermore, "the report itself must establish the expert's qualifications on the basis of training and experience." In re Samonte, 163 S.W.3d 229, 234 (Tex. App.--El Paso 2005, orig. proceeding). In other words, "the only information relevant to the inquiry is within the four corners of the document." American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The expert's curriculum vitae is considered part of the report. In re Windisch, 138 S.W.3d 507, 511 (Tex. App.--Amarillo 2004, orig. proceeding).
An "expert report" must also "provide[] a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6). A court must grant a motion challenging the adequacy of an expert report under subsection (r)(6) only if the report "does not represent an objective good faith effort to comply" with this definition of "expert report." Id. art. 4590i, § 13.01(l).
To constitute a "good faith effort," the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct that the plaintiff has called into question; and (2) it must provide a basis for the trial court to conclude that the claims have merit. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Palacios, 46 S.W.3d at 879 (Tex. 2001). Although a report need not marshal all of a claimant's proof, it must include the expert's opinion on each of the elements identified in the statute. Palacios, 46 S.W.3d at 878. It is not enough for the report merely to state the expert's conclusions about the statutory elements. Id. at 879. "Rather, the expert must explain the basis of his statements to link his conclusions to the facts." Bowie Mem'l Hosp., 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).
Again, because the statute dictates what is required in the report, the only information relevant to determining whether a report complies with the statute is that within "the four corners" of the report. Palacios, 46 S.W.3d at 878. This requirement precludes a court from filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended. Bowie Mem'l Hosp., 79 S.W.3d at 53.
We review a trial court's ruling to dismiss a suit under article 4590i, section 13.01 for an abuse of discretion. Palacios, 46 S.W.3d at 877-78. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). A clear failure by the trial court to analyze or apply the law correctly also constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
In her first amended report, Dr. Page described her qualifications as follows:
I am a duly licensed and practicing Board Certified Physician. I have been actively practicing Physical Medicine and Rehabilitation approximately twelve years. . . .
I have examined the medical records pertaining to Charles Ly with a view toward determining whether or not the medical care on the part of any of the physicians departed from the accepted standards of medical care and whether any such departure had a causal relationship between the injury and damage resulting from care by Dr. Sara Austin, Dr. Kent Ellington, Dr. Albert Horn, Dr. Rodney Schmidt, and Seton Hospital. . . .
. . . .
I have knowledge of the accepted standards of care that are applicable to the physicians in this matter for the diagnosis, care, and treatment of the illness, injury, or condition involved in this case, as reflected by the above listed records that I examined. Care of patients with strokes comprises approximately 20% of my practice.
Dr. Page then proceeded to opine "that the medical care provided by the above doctors and hospitals failed to meet the applicable standard of care" in the following regards:
. . . .
2) There is research indicating no benefit in giving ASA vs Heparin in stroke patients and complications of bleeding are higher with heparin in the case of hemorrhage. In regard to Mr. Ly's case, the standard of care should have been to not give Heparin in view of Mr. Ly's "improving" status in the Emergency Room and CT scan of the brain with bleeding. Dr. Sara Austin should have ordered an MRI of the brain as recommended by the radiologist in his report and/or get results of the CT scan of the brain done on 2/1999 to compare before deciding whether or not to give Heparin. Furthermore, Dr. Austin should have explained the risks vs. the benefits of Heparin to Mr. Ly.
3) Dr. Kent Ellington's failure to manage antihypertensive medication appropriately. This caused Mr. Ly's blood pressure to fluctuate. This is critical for the stroke patient to prevent complications. The standard of care for someone with hypertension and stroke is to maintain the blood pressure high enough to allow adequate cerebral perfusion. There should have been a parameter to hold the antihypertensive medication if the systolic blood pressure dropped below a certain value. Dr. Ellington did not order this, causing Mr. Ly's blood pressure to drop and therefore impeding the blood flow to his already injured brain.
. . . .
5) Failure to recognize the risk of fall in this patient. The doctors, nurses and therapists should all have recognized Mr. Ly's high risk for a fall. Doctors are trained to know that a patient with a stroke in Mr. Ly's location, would have left neglect, and significant impulsivity. Both of these medical problems significantly increase the risk for falls. . . . The fall caused a fracture in his clavical. This caused significant pain. Mr. Ly was unable to participate in therapy for a time secondary to the pain.
It is further my opinion that had the above-mentioned doctors met the applicable standard of care, Charles Ly would have had less residual neurologic deficits from his stroke, better function, and less pain. It is my opinion that the failure of the above-mentioned doctors and hospital to meet the applicable standard of care was a cause of increased pain, lower cognitive ability, and worsened function.
Dr. Page's attached curriculum vitae indicates that she is board-certified in physical medicine
and rehabilitation, or physiatry, and independent medical examination, and has what appears to be considerable experience and training in these practice areas. The district court also had before it a supplement or addendum to Dr. Page's report in which she stated the following:
RE: Questions about my training to read CT scans of the brain.
To Whom It May Concern.
Two of the three most common rehabilitation diagnoses that a physiatrist manages are stroke and brain injury. Reviewing basic CT scans of the brain was part of my training as a medical student. Reviewing many CT scans of the brain with detailed evaluations with attendings in both rehabilitation and radiology was part of my training as a resident. Continued work reading CT scans of the brain is a very important part of my work as an attending now. Many rehabilitation units are separate from acute care hospitals, and there is no radiologist available to read CTs immediately. Therefore, when CT scans of the brain or MRIs of the brain are done on a more emergent basis, copies of the images are brought to me at the rehabilitation unit for my reading.
We conclude that the district court did not abuse its discretion in concluding that Dr. Page failed to establish her qualifications to give opinion testimony regarding the standard of care applicable to Drs. Austin and Ellington and their alleged breaches of it.
Every licensed doctor is not automatically qualified to testify as an expert on every medical question. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). On the other hand, the fact that an expert is not a specialist in the particular branch of the profession for which the testimony is offered will not automatically disqualify her as an expert. Hagedorn v. Tisdale, 73 S.W.3d 341, 349 (Tex. App.--Amarillo 2002, no pet.); Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.--Houston [14th Dist.] 1999, no pet.). "What is required is that the offering party establish that the expert has 'knowledge, skill, experience, training, or education' regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject." Broders, 924 S.W.2d at 153.
Dr. Page's reports do not satisfy this requirement. Her first amended report establishes that, at most, Dr. Page has experience caring for patients who have suffered strokes, likely in a rehabilitation setting. Her addendum addresses only her qualifications regarding the reading of CT scans, and apparently responded to the dismissal motion of another physician whom Ly had alleged negligently misinterpreted his CT scan and failed to diagnose a cerebral hemorrhage. This training and experience does not relate to the specific issues concerning Drs. Austin and Ellington--the duties of care applicable to neurologists in providing emergency care services to a patient who had just suffered a stroke. Ly alleges that Dr. Austin rendered emergency room care to Ly and that Dr. Ellington attended to Ly's needs immediately following his transfer from the emergency room. There is no allegation that either doctor provided Ly treatment beyond that initial period of emergency and post-emergency care. The fact that, during "approximately 20%" of her rehabilitation practice, Dr. Page cares for patients who have suffered strokes does not automatically qualify her to give an expert opinion on the standard of care for doctors treating an emergent or post-emergent stroke patient in an acute care hospital setting. See Hagedorn, 73 S.W.3d at 350 (in suit against emergency room physician, absence of any experience in emergency medical care precluded finding that expert was qualified).
Additionally, the report provides no information about the type of care that Dr. Page provides to her stroke patients. From the statement in Dr. Page's report that she practices "Physical Medicine and Rehabilitation," the district court could reasonably infer that the care involves some sort of rehabilitation, but beyond that, the report is silent. An expert cannot rely on generalized, conclusory statements to establish her qualifications; she must provide specific details of her training and experience. See, e.g., Forrest v. Danielson, 77 S.W.3d 842, 848 (Tex. App.--Tyler 2002, no pet.) (report must establish that expert is familiar with specific medical procedure that was subject of lawsuit); Tomasi v. Liao, 63 S.W.3d 62, 66 (Tex. App.--San Antonio 2001, no pet.) (report must "provide detailed information regarding the extent of this experience and whether this experience was relevant to . . . the specific issue before the court.").
Furthermore, although it is readily apparent from Dr. Page's curriculum vitae that she is a specialist in rehabilitative care, there is no indication in her resume that she has any experience in providing emergency care to her patients, other than a vague reference in her supplement to her interpretation of CT scans on an "emergent basis." The specific issue before the district court was the standard of care applicable to neurologists providing emergency care immediately following a stroke, and the report failed to establish Dr. Page's qualifications in that regard. Therefore, we hold that the district court did not abuse its discretion in dismissing Ly's claim for failure to comply with section 13.01(r)(5).
We likewise conclude that the district court did not abuse its discretion in finding that Dr. Page's report failed to comply with section 13.01(r)(6). Among other things, Dr. Page does not explain the causal link between Dr. Austin's prescription of Heparin and Ly's increased pain, loss of cognitive ability, and worsened function, nor does it explain when Dr. Ellington should have ordered withholding of antihypertensive medication or whether, in fact, Ly's blood pressure dropped below the point where adequate cerebral perfusion was not possible.
Finally, we conclude that the district court did not abuse its discretion in granting Defendants' motion to dismiss and refusing to grant Ly a 30-day grace period. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g). "[A] section 13.01(g) grace period determination is reviewed under an abuse of discretion standard." Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003). "Section 13.01(g) requires a trial court to grant a grace period if, after hearing, 'the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake.'" Id. (quoting Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g)). Although some mistakes of law may negate a finding of intentional conduct or conscious indifference, entitling the claimant to a grace period under section 13.01(g), not every act of a defendant that could be characterized as a mistake of law is a sufficient excuse. Id. at 64. "In determining whether the failure to file adequate reports was due not to intentional disregard or conscious indifference but to accident or mistake, we must look to the knowledge and acts of the claimant." Id.
"[A] party who files suit on claims subject to article 4590i is charged with knowledge of the statute and its requirements." (4) Id. In an affidavit filed with the district court in response to one of the motions to dismiss, Ly's former attorney stated that, "[a]t the time of filing of the expert reports and now," he believed that their content complied with "the applicable law regarding art. 4590i expert reports." The attorney further believed that Dr. Suzanne Page was qualified. However, the supreme court has held that a mere "belief" that a report complies with the statutory requirements does not establish a "sufficient excuse" necessary to support a finding that a party made a mistake of law, nor does it negate a finding of "intentional or conscious indifference." Id. at 64-65.
We note that by the time the district court heard Defendants' amended dismissal motion, it had previously granted Ly one extension under section 13.01(g), and had earlier delayed adjudicating other dispositive matters in the case due to Ly's difficulties in obtaining replacement counsel. Even before the district court granted him a 30-day extension, Ly had filed one amended report plus a supplement, but had not availed himself of the opportunity to further amend or supplement Dr. Page's reports to address Defendants' challenges to their adequacy. (5) We cannot conclude that the district court abused its discretion in finding that Ly's failure to comply with section 13.01 was intentional or the result of conscious indifference and in denying an additional grace period under section 13.01(g).
We overrule Ly's issues on appeal.
CONCLUSION
We affirm the judgment of the district court.
_____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: July 13, 2007
1. Because Ly's claim was filed before September 1, 2003, it is governed by former article 4590i. See Act of May 5, 1995, 74th Leg., R.S., ch. 140 § 1, 1995 Tex. Gen. Laws 985, 985-87 (adding expert report requirement, at former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d)), repealed and recodified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 864, 884, 898-99 ("House Bill 4") (adopting chapter 74 of the Texas Civil Practice and Remedies Code, applicable only to actions filed on or after September 1, 2003, and continuing prior law in effect for actions filed before that date) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2006)).
2. The district court's order stated: True and correct copies of the motions were served on all parties to this lawsuit; This suit is being prosecuted under TEX. REV. CIV. STAT. ANN. art. 4590i . . . and was commenced after September 1, 1995, thus bringing this lawsuit under § 13.01 of that article; More than 180 days have elapsed since the date this action was commenced; Plaintiff failed to furnish counsel for Defendants a proper expert report pursuant to TEX. REV. CIV. STAT. ANN. art. 4590i, § 13.01(r)(5) and (6); A previous extension was granted by the Court pursuant to art. 4590i, § 13.01(g) . . . at least 30 days before the hearing; Plaintiff's second Motion for Extension filed pursuant to art. 4590i, § 13.01(g) . . . should be denied; thus, Defendants' motions should in all things be GRANTED.
3. Although Ly succeeded in obtaining new counsel who vigorously opposed dismissal in district court, Ly is acting pro se on appeal. Perhaps for this reason, his issues on appeal are not explicitly or clearly defined, although we can discern that he principally intends to challenge the two grounds on which the district court held Dr. Page's report inadequate and its refusal to grant him a second 30-day extension. To the extent that Ly is attempting to raise other issues, we hold that they were inadequately briefed and thus waived. See Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (pro se litigants not exempt from rules of procedure).
4. The supreme court noted that "even a pro se litigant would be charged with knowledge of the statute and compliance with its requirements." Walker v. Gutierrez, 111 S.W.3d 56, 65 n.2 (Tex. 2003). We note this only because it appears from the record that Ly's first counsel withdrew at some point after the original expert report was filed, and that Ly was not represented by counsel when he filed his amended expert report. However, by the time the district court granted Ly a 30-day grace period, and throughout the remainder of the proceedings until this appeal, Ly was again represented by counsel.
5. The extension appears to have served primarily to cure a timeliness problem with Dr. Page's supplement, which was not served until after the expiration of the 210th day after suit was filed.
Friday, July 13, 2007
Constellation Energy Commodities Group v. PUC (Tex.App.- Austin, Jul. 13, 2007)
Constellation Energy Commodities Group, Inc. vs. Public Utility Commission of Texas,
No. 03-06-00552-CV (Tex.App.- Austin, July 13, 2007)(Opinion by Justice Waldrop )(abatement)
Appeal from of County
DIRECT APPEAL FROM THE PUBLIC UTILITY COMMISSION OF TEXAS
M E M O R A N D U M O P I N I O N
The Public Utility Commission of Texas has filed a Motion to Extend Abatement Pending Adoption of Amended Rule. The deadlines in this case were originally abated on February 27, 2007, effective until June 25, 2007. We grant the motion.
This appeal is abated until further order of this Court. The parties may file a motion to lift the abatement based on changed circumstances. This Court's order staying enforcement of portions of the challenged rule, signed September 29, 2006, and modified by order signed January 12, 2007, remains in effect. The Public Utility Commission of Texas shall file a report on the status of this case by August 20, 2007.
G. Alan Waldrop, Justice
Before Justices Puryear, Pemberton and Waldrop
Abated
Filed: July 13, 2007
No. 03-06-00552-CV (Tex.App.- Austin, July 13, 2007)(Opinion by Justice Waldrop )(abatement)
Appeal from of County
DIRECT APPEAL FROM THE PUBLIC UTILITY COMMISSION OF TEXAS
M E M O R A N D U M O P I N I O N
The Public Utility Commission of Texas has filed a Motion to Extend Abatement Pending Adoption of Amended Rule. The deadlines in this case were originally abated on February 27, 2007, effective until June 25, 2007. We grant the motion.
This appeal is abated until further order of this Court. The parties may file a motion to lift the abatement based on changed circumstances. This Court's order staying enforcement of portions of the challenged rule, signed September 29, 2006, and modified by order signed January 12, 2007, remains in effect. The Public Utility Commission of Texas shall file a report on the status of this case by August 20, 2007.
G. Alan Waldrop, Justice
Before Justices Puryear, Pemberton and Waldrop
Abated
Filed: July 13, 2007
City of Garland v. PUC (Tex.App.-Austin, Jul. 13, 2007)
City of Garland, Texas v. Public Utility Commission of Texas, No. 03-06-00571-CV (Tex.App.-Austin)(Opinion by Justice Waldrop)(abatement)
Before Justices Puryear, Pemberton and Waldrop
DIRECT APPEAL FROM THE PUBLIC UTILITY COMMISSION OF TEXAS
M E M O R A N D U M O P I N I O N
The Public Utility Commission of Texas has filed a Motion to Extend Abatement Pending Adoption of Amended Rule. The deadlines in this case were originally abated on February 27, 2007, effective until June 25, 2007. We grant the motion.
This appeal is abated until further order of this Court. The parties may file a motion to lift the abatement based on changed circumstances. This Court's order staying enforcement of portions of the challenged rule, signed September 29, 2006, and modified by order signed January 12, 2007, remains in effect. The Public Utility Commission of Texas shall file a report on the status of this case by August 20, 2007.
G. Alan Waldrop, Justice
Before Justices Puryear, Pemberton and Waldrop
Abated
Filed: July 13, 2007
Before Justices Puryear, Pemberton and Waldrop
DIRECT APPEAL FROM THE PUBLIC UTILITY COMMISSION OF TEXAS
M E M O R A N D U M O P I N I O N
The Public Utility Commission of Texas has filed a Motion to Extend Abatement Pending Adoption of Amended Rule. The deadlines in this case were originally abated on February 27, 2007, effective until June 25, 2007. We grant the motion.
This appeal is abated until further order of this Court. The parties may file a motion to lift the abatement based on changed circumstances. This Court's order staying enforcement of portions of the challenged rule, signed September 29, 2006, and modified by order signed January 12, 2007, remains in effect. The Public Utility Commission of Texas shall file a report on the status of this case by August 20, 2007.
G. Alan Waldrop, Justice
Before Justices Puryear, Pemberton and Waldrop
Abated
Filed: July 13, 2007
Thursday, July 12, 2007
Failure to Issue Findings of Facts and Conclusions of Law Held Harmless Error; Did Not Require Reversal of Divorce Decree
Pope v. Pope, No. 03-06-00550-CV (Tex.App.- Austin, Jul. 12, 2007)(Opinion by Justice Patterson on rehearing)
Before Justices Patterson, Pemberton and Waldrop
Brian Lee Pope v. Nancy Pope
Appeal from 207th District Court of Comal County
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. C2004-503B, HONORABLE CHARLES A. STEPHENS II, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE PATTERSON
Upon consideration of appellant's motion for rehearing and motion for rehearing en banc, we overrule the motions; however, we withdraw our opinion and judgment dated May 30, 2007, and substitute the following.
Brian Lee Pope appeals two issues pertaining to the final decree of divorce from his marriage to appellee Nancy Pope. Brian contends that the district court (i) erred in failing to issue findings of fact and conclusions of law and that he was harmed by this failure, and (ii) improperly divested him of his separate property by awarding an RV park entirely to Nancy. Because we hold that Brian was not harmed by the district court's failure to issue findings of fact and conclusions of law and that the district court did not abuse its discretion in its property division, we affirm the judgment.
BACKGROUND
Brian and Nancy were married in 1995 and had one child born to the marriage. After Nancy sued for divorce in May 2004, she and the child moved out of the marital residence and lived at Bryan's Country RV Park, a business located in Guadalupe County that the parties had purchased in January 2004 from Nancy's stepfather, E. K. Bryan. This property consisted of an 11.65-acre tract of land on which the RV park was built and an additional adjoining 92-acre tract. Nancy had lived on this property since she was twelve years old. She lived in a trailer home located on the park and operated the park during the pendency of the divorce. Brian resided in the marital residence on Bobolink Street in Comal County that he had bought prior to the marriage and from which he operated a business, Laser Graphics.
The parties agreed to temporary orders, but Nancy thereafter obtained a protective order against Brian due to various harassing acts directed at Nancy and her tenants. After Nancy filed for divorce, Brian's work history became sporadic, and he spent January 25 until April 11, 2006 in jail serving a sentence for assaulting a tenant at the RV park. Brian also violated and pleaded guilty to violation of the protective order. The parties accused each other of various acts of misconduct and reported each other to various authorities.
Nancy paid Brian's mortgage payment from October 2005 until April 2006 to avoid foreclosure of the house even though Brian was ordered to make the house payments under the temporary orders. While Brian was in jail, Nancy did some work for Laser Graphics and received payments which she gave Brian upon his release. Brian acknowledged at trial that Nancy had paid the mortgage on the Bobolink residence beginning in October 2005 and that he had been held in contempt for failure to pay child support. He claimed to work in 2004 but made no income.
The trial of the divorce proceeded on May 15, 2006. The decree recites that the divorce was
"judicially pronounced and rendered in court at New Braunfels, Comal County, Texas, on May 15, 2006 and further noted on the court's docket sheet on the same date, but signed on June 19, 2006." In a motion for new trial, Brian complained that the division of the marital property was manifestly unjust and that the value assigned to the realty awarded to Nancy, evidently the RV park, was incorrect. A judgment in favor of an appraiser-intervenor was signed on July 19 and filed on August 15, 2006. Although Brian timely requested findings of fact and conclusions of law and filed a notice of past due findings, the district court failed to file them. This appeal followed.
DISCUSSION
Findings of fact and conclusions of law
Brian first complains that the district court erred by failing to file findings of fact and conclusions of law in response to his timely request. Under the Texas Family Code, in a suit for dissolution of marriage in which the trial court has rendered a judgment dividing the estate of the parties and upon a request by a party, the trial court shall state in writing its findings of fact and conclusions of law. Tex. Fam. Code Ann. § 6.711(a) (West 2006). A request for findings and conclusions under section 6.711 must conform to the Texas Rules of Civil Procedure. Id. § 6.711(b). The trial court's duty to make such findings is mandatory, and the failure to respond when requests have been properly made is presumed harmful unless the record demonstrates that the complaining party has suffered no injury. See Tex. R. Civ. P. 296; Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.--Austin 2006, pet. denied); Glass v. Williamson, 137 S.W.3d 114, 117-18 (Tex. App.--Houston [1st Dist.] 2004, no pet.). Error is harmful if it prevents an appellant from properly presenting a case on appeal. Tenery, 932 S.W.2d at 30.
In Tenery, the supreme court found the trial court's failure to file findings of fact and conclusions of law to be harmless as it related to the division of property because there was ample evidence in the record to support the judgment. Id.; see also Goggins v. Leo, 849 S.W.2d 373, 379 (Tex. App.--Houston [14th Dist.] 1993, no pet.) (only one theory of recovery and the implied findings necessary for recovery were supported by the evidence).
Because Brian's request was timely, we must determine whether he was harmed by the lack of findings and conclusions. Nancy argues that Brian does not have to guess the reasons behind the district court's order pertaining to its property division, that he raises the issue now raised on appeal for the first time and failed to raise it in the court below, and that there is ample evidence in the record to dispose of the issue he now raises. Moreover, the district judge announced his rulings and stated his reasons at the hearing. We agree.
Although we discourage trial judges from failing to respond to timely requests for findings, in this case the record clearly establishes the reasons underlying the district court's decisions, and there is ample evidence to support the court's determination. (1) The record affirmatively shows that Brian suffered no harm from the trial court's failure to issue findings of fact and conclusions of law.
Property division
Although the court awarded Brian the Bobolink home and the Laser Graphics business, the RV park was awarded to Nancy. Brian's sole complaint about the division of property pertains to the RV park which, he claims, was purchased partially with funds that were his separate property and partially with "community credit." That this property was either separate property or a "mixed character asset" is raised for the first time on appeal.
The family code requires the trial court to divide the estate of the parties in a manner that is just and right, having due regard for the rights of each party and their children, if any. Tex. Fam. Code Ann. § 7.001 (West 2006); see Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). We review property division issues for abuse of discretion. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). The trial court has broad discretion in dividing the marital estate at divorce. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). We must presume that the trial court exercised it properly and may not alter the division unless the complaining party establishes a clear abuse of the trial court's discretion. Id. A trial court abuses its discretion when it acts arbitrarily or unreasonably and without reference to any guiding rules or principles. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Because a trial court has no discretion in determining what the law is, which law governs, or how to apply the law, we review this category of discretionary rulings de novo. Id. at 840. When we review a ruling that results from the trial court's having resolved underlying facts, however, we must defer to the trial court's factual resolutions and any credibility determinations that may have affected those resolutions, and we may not substitute our judgment for that of the trial court in those matters. See id. at 839-40 (requiring deference to fact-based determinations).
All property on hand at the dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (West 2006). This is a rebuttable presumption, requiring a spouse claiming assets as separate property to establish their separate character by clear and convincing evidence. Id. § 3.003(a)-(b). Property owned before marriage, or acquired during marriage by gift, devise or descent, is separate property. Id. § 3.001 (West 2006). Where an asset is purchased during marriage with monies traceable to a spouse's separate estate, the asset may appropriately be characterized as separate property. Pace v. Pace, 160 S.W.3d 706, 711 (Tex. App.--Dallas 2005, pet. denied).
The only evidence at trial showed that the RV park was part of the community estate of the parties. The only inventory admitted into evidence showed the RV park as part of the community estate; Brian did not object to the exhibit or challenge its characterization. The parties agree that the property was purchased from Nancy's stepfather in 2004 for $420,000, and that they still owe $365,843. Nancy operated the RV park, and Brian testified that he did some work of an unidentified nature on the property. Both parties sought award of the RV park. Brian objected to the award of the RV park to Nancy not because it was separate or "mixed character" property but on the ground that his daughter "ought to live in a real house" such as the Bobolink residence.
On rehearing, Brian urges that the trial court and this Court in its original opinion erred in denying him his separate property "when the parties stipulated that the property was Appellant's separate property." (2) The parties agree--and Nancy testified--that the Bobolink home was acquired by Brian shortly before their marriage, the debt on the Bobolink house was paid with community funds, and that, after their marriage, a home equity loan of $91,000 was made against the home with $50,000 from the loan used as a down payment on the RV park purchased by the parties and the remainder used for operating expenses of the park. At the time of trial, the parties owed $88,000 on the home equity note. Because the original loan on the house was paid for during the marriage with community funds, Nancy sought an economic contribution to the community estate of $109,000. (3) In addition to awarding Nancy the RV park, the court ordered Nancy to pay off the $88,000 home equity note that had funded the initial purchase of the park. The court then awarded the Bobolink house free of the home equity debt. The court concluded that two loans incurred by Brian after the couple's separation would be Brian's liabilities.
That the Bobolink house was acquired before their marriage does not convert the RV park into his separate property. Based on the evidence (i) that the couple acquired community debt on the house to then acquire the RV park with community credit, (ii) that community property was used to make payments on Brian's separate property, and (iii) that Brian failed to adduce any proof that any portion of the RV park was paid for with funds that can be traced to his separate property rather than the couple's community credit or that there was any intent to repay the park note with his separate property, we conclude that the trial court did not err or abuse its discretion in finding that the park was community property, and awarding the park and notes on the park and Bobolink house to Nancy and the Bobolink house free of home equity debt to Brian.
CONCLUSION
We hold that Brian was not harmed by the district court's failure to issue findings of fact and conclusions of law and that the district court did not abuse its discretion in awarding the RV park to Nancy. Having overruled Brian's issues, we affirm the judgment.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed on Motion for Rehearing
Filed: July 12, 2007
1. We emphasize that oral determinations from the bench are not substitutes for written findings of fact and conclusions of law. See In re Doe, 78 S.W.3d 338, 340 n.2 (Tex. 2002); Narvaez v. Maldonado, 127 S.W.3d 313, 316 n.1 (Tex. App.--Austin 2004, no pet.). We rely on these oral pronouncements solely for the purpose of conducting our harm analysis.
2. Because Brian's citations to the record are to testimony and there are no formal stipulations concerning the subject of this testimony, we assume the reference to stipulations is to the parties' uncontroverted testimony that the Bobolink house was acquired by Brian before the marriage. Likewise, Brian does not dispute that the original debt on the Bobolink house was paid with community funds.
3. Payments made out of the community estate for the benefit of a separate estate, either to pay off a debt of the separate estate or to make improvements, give rise to a claim for reimbursement. Penick v. Penick, 783 S.W.2d 194, 196 (Tex. 1988).
Before Justices Patterson, Pemberton and Waldrop
Brian Lee Pope v. Nancy Pope
Appeal from 207th District Court of Comal County
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. C2004-503B, HONORABLE CHARLES A. STEPHENS II, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE PATTERSON
Upon consideration of appellant's motion for rehearing and motion for rehearing en banc, we overrule the motions; however, we withdraw our opinion and judgment dated May 30, 2007, and substitute the following.
Brian Lee Pope appeals two issues pertaining to the final decree of divorce from his marriage to appellee Nancy Pope. Brian contends that the district court (i) erred in failing to issue findings of fact and conclusions of law and that he was harmed by this failure, and (ii) improperly divested him of his separate property by awarding an RV park entirely to Nancy. Because we hold that Brian was not harmed by the district court's failure to issue findings of fact and conclusions of law and that the district court did not abuse its discretion in its property division, we affirm the judgment.
BACKGROUND
Brian and Nancy were married in 1995 and had one child born to the marriage. After Nancy sued for divorce in May 2004, she and the child moved out of the marital residence and lived at Bryan's Country RV Park, a business located in Guadalupe County that the parties had purchased in January 2004 from Nancy's stepfather, E. K. Bryan. This property consisted of an 11.65-acre tract of land on which the RV park was built and an additional adjoining 92-acre tract. Nancy had lived on this property since she was twelve years old. She lived in a trailer home located on the park and operated the park during the pendency of the divorce. Brian resided in the marital residence on Bobolink Street in Comal County that he had bought prior to the marriage and from which he operated a business, Laser Graphics.
The parties agreed to temporary orders, but Nancy thereafter obtained a protective order against Brian due to various harassing acts directed at Nancy and her tenants. After Nancy filed for divorce, Brian's work history became sporadic, and he spent January 25 until April 11, 2006 in jail serving a sentence for assaulting a tenant at the RV park. Brian also violated and pleaded guilty to violation of the protective order. The parties accused each other of various acts of misconduct and reported each other to various authorities.
Nancy paid Brian's mortgage payment from October 2005 until April 2006 to avoid foreclosure of the house even though Brian was ordered to make the house payments under the temporary orders. While Brian was in jail, Nancy did some work for Laser Graphics and received payments which she gave Brian upon his release. Brian acknowledged at trial that Nancy had paid the mortgage on the Bobolink residence beginning in October 2005 and that he had been held in contempt for failure to pay child support. He claimed to work in 2004 but made no income.
The trial of the divorce proceeded on May 15, 2006. The decree recites that the divorce was
"judicially pronounced and rendered in court at New Braunfels, Comal County, Texas, on May 15, 2006 and further noted on the court's docket sheet on the same date, but signed on June 19, 2006." In a motion for new trial, Brian complained that the division of the marital property was manifestly unjust and that the value assigned to the realty awarded to Nancy, evidently the RV park, was incorrect. A judgment in favor of an appraiser-intervenor was signed on July 19 and filed on August 15, 2006. Although Brian timely requested findings of fact and conclusions of law and filed a notice of past due findings, the district court failed to file them. This appeal followed.
DISCUSSION
Findings of fact and conclusions of law
Brian first complains that the district court erred by failing to file findings of fact and conclusions of law in response to his timely request. Under the Texas Family Code, in a suit for dissolution of marriage in which the trial court has rendered a judgment dividing the estate of the parties and upon a request by a party, the trial court shall state in writing its findings of fact and conclusions of law. Tex. Fam. Code Ann. § 6.711(a) (West 2006). A request for findings and conclusions under section 6.711 must conform to the Texas Rules of Civil Procedure. Id. § 6.711(b). The trial court's duty to make such findings is mandatory, and the failure to respond when requests have been properly made is presumed harmful unless the record demonstrates that the complaining party has suffered no injury. See Tex. R. Civ. P. 296; Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.--Austin 2006, pet. denied); Glass v. Williamson, 137 S.W.3d 114, 117-18 (Tex. App.--Houston [1st Dist.] 2004, no pet.). Error is harmful if it prevents an appellant from properly presenting a case on appeal. Tenery, 932 S.W.2d at 30.
In Tenery, the supreme court found the trial court's failure to file findings of fact and conclusions of law to be harmless as it related to the division of property because there was ample evidence in the record to support the judgment. Id.; see also Goggins v. Leo, 849 S.W.2d 373, 379 (Tex. App.--Houston [14th Dist.] 1993, no pet.) (only one theory of recovery and the implied findings necessary for recovery were supported by the evidence).
Because Brian's request was timely, we must determine whether he was harmed by the lack of findings and conclusions. Nancy argues that Brian does not have to guess the reasons behind the district court's order pertaining to its property division, that he raises the issue now raised on appeal for the first time and failed to raise it in the court below, and that there is ample evidence in the record to dispose of the issue he now raises. Moreover, the district judge announced his rulings and stated his reasons at the hearing. We agree.
Although we discourage trial judges from failing to respond to timely requests for findings, in this case the record clearly establishes the reasons underlying the district court's decisions, and there is ample evidence to support the court's determination. (1) The record affirmatively shows that Brian suffered no harm from the trial court's failure to issue findings of fact and conclusions of law.
Property division
Although the court awarded Brian the Bobolink home and the Laser Graphics business, the RV park was awarded to Nancy. Brian's sole complaint about the division of property pertains to the RV park which, he claims, was purchased partially with funds that were his separate property and partially with "community credit." That this property was either separate property or a "mixed character asset" is raised for the first time on appeal.
The family code requires the trial court to divide the estate of the parties in a manner that is just and right, having due regard for the rights of each party and their children, if any. Tex. Fam. Code Ann. § 7.001 (West 2006); see Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). We review property division issues for abuse of discretion. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). The trial court has broad discretion in dividing the marital estate at divorce. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). We must presume that the trial court exercised it properly and may not alter the division unless the complaining party establishes a clear abuse of the trial court's discretion. Id. A trial court abuses its discretion when it acts arbitrarily or unreasonably and without reference to any guiding rules or principles. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Because a trial court has no discretion in determining what the law is, which law governs, or how to apply the law, we review this category of discretionary rulings de novo. Id. at 840. When we review a ruling that results from the trial court's having resolved underlying facts, however, we must defer to the trial court's factual resolutions and any credibility determinations that may have affected those resolutions, and we may not substitute our judgment for that of the trial court in those matters. See id. at 839-40 (requiring deference to fact-based determinations).
All property on hand at the dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (West 2006). This is a rebuttable presumption, requiring a spouse claiming assets as separate property to establish their separate character by clear and convincing evidence. Id. § 3.003(a)-(b). Property owned before marriage, or acquired during marriage by gift, devise or descent, is separate property. Id. § 3.001 (West 2006). Where an asset is purchased during marriage with monies traceable to a spouse's separate estate, the asset may appropriately be characterized as separate property. Pace v. Pace, 160 S.W.3d 706, 711 (Tex. App.--Dallas 2005, pet. denied).
The only evidence at trial showed that the RV park was part of the community estate of the parties. The only inventory admitted into evidence showed the RV park as part of the community estate; Brian did not object to the exhibit or challenge its characterization. The parties agree that the property was purchased from Nancy's stepfather in 2004 for $420,000, and that they still owe $365,843. Nancy operated the RV park, and Brian testified that he did some work of an unidentified nature on the property. Both parties sought award of the RV park. Brian objected to the award of the RV park to Nancy not because it was separate or "mixed character" property but on the ground that his daughter "ought to live in a real house" such as the Bobolink residence.
On rehearing, Brian urges that the trial court and this Court in its original opinion erred in denying him his separate property "when the parties stipulated that the property was Appellant's separate property." (2) The parties agree--and Nancy testified--that the Bobolink home was acquired by Brian shortly before their marriage, the debt on the Bobolink house was paid with community funds, and that, after their marriage, a home equity loan of $91,000 was made against the home with $50,000 from the loan used as a down payment on the RV park purchased by the parties and the remainder used for operating expenses of the park. At the time of trial, the parties owed $88,000 on the home equity note. Because the original loan on the house was paid for during the marriage with community funds, Nancy sought an economic contribution to the community estate of $109,000. (3) In addition to awarding Nancy the RV park, the court ordered Nancy to pay off the $88,000 home equity note that had funded the initial purchase of the park. The court then awarded the Bobolink house free of the home equity debt. The court concluded that two loans incurred by Brian after the couple's separation would be Brian's liabilities.
That the Bobolink house was acquired before their marriage does not convert the RV park into his separate property. Based on the evidence (i) that the couple acquired community debt on the house to then acquire the RV park with community credit, (ii) that community property was used to make payments on Brian's separate property, and (iii) that Brian failed to adduce any proof that any portion of the RV park was paid for with funds that can be traced to his separate property rather than the couple's community credit or that there was any intent to repay the park note with his separate property, we conclude that the trial court did not err or abuse its discretion in finding that the park was community property, and awarding the park and notes on the park and Bobolink house to Nancy and the Bobolink house free of home equity debt to Brian.
CONCLUSION
We hold that Brian was not harmed by the district court's failure to issue findings of fact and conclusions of law and that the district court did not abuse its discretion in awarding the RV park to Nancy. Having overruled Brian's issues, we affirm the judgment.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed on Motion for Rehearing
Filed: July 12, 2007
1. We emphasize that oral determinations from the bench are not substitutes for written findings of fact and conclusions of law. See In re Doe, 78 S.W.3d 338, 340 n.2 (Tex. 2002); Narvaez v. Maldonado, 127 S.W.3d 313, 316 n.1 (Tex. App.--Austin 2004, no pet.). We rely on these oral pronouncements solely for the purpose of conducting our harm analysis.
2. Because Brian's citations to the record are to testimony and there are no formal stipulations concerning the subject of this testimony, we assume the reference to stipulations is to the parties' uncontroverted testimony that the Bobolink house was acquired by Brian before the marriage. Likewise, Brian does not dispute that the original debt on the Bobolink house was paid with community funds.
3. Payments made out of the community estate for the benefit of a separate estate, either to pay off a debt of the separate estate or to make improvements, give rise to a claim for reimbursement. Penick v. Penick, 783 S.W.2d 194, 196 (Tex. 1988).
Ghrist v. Ghrist - Dissent by Justice Patterson
Ghrist v. Ghrist (Tex.App.,- Jul. 12, 2007)(Dissenting Opinion by Justice Patterson)
Before Justices Patterson, Pemberton and Waldrop)
03-05-00769-CV
Mary Ghrist v. Roy Ghrist
Appeal from 147th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 378,930, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
DISSENTING OPINION BY JUSTICE PATTERSON
I withdraw my dissenting opinion dated May 11, 2007, and substitute the following. Ex parte Burson is indeed a pathmarking precedent on a state court's authority to enforce a divorce decree by requiring payment of VA disability benefits. See 615 S.W.2d 192 (Tex. 1981) (orig. proceeding). The majority erroneously concludes that this case is just like Burson and holds that the result must be the same. But the majority is mistaken in supposing that Burson controls the outcome here. In Burson the enforcement order at issue required the former service member to pay a portion of his VA disability pay to his former spouse. Such an order is impermissible under federal law. See 38 U.S.C. § 5301(a) (Supp. III 2003). In this case, we are presented with a divorce decree that, depending on its interpretation, may or may not necessitate an impermissible enforcement order. Thus, disposing of the case before ascertaining the appropriate interpretation of the decree is premature. For this reason, I would reverse the trial court's order and remand for further proceedings to ascertain the intent of the parties and to then determine whether the decree is enforceable.
Accordingly, I respectfully dissent.
BACKGROUND
During the Ghrists' marriage, Roy served 18 years in the U.S. Air Force, retiring in 1975. Shortly after his retirement, it was determined that Roy was 40% disabled, making him eligible to receive disability pay, which is non-taxable. (1) In 1976, while still married, Roy waived a portion of his military retirement pay as required by statute to receive VA disability pay. See 38 U.S.C. § 5305 (2000). He thereafter received two checks each month--one from the Air Force for his retirement pay and one from the VA for his disability pay. At some point later, but prior to the parties' divorce, Roy cancelled the waiver of military pay and thereafter received only one check each month from the Air Force that included both his military retirement pay and his disability pay.
When the Ghrists divorced in 1985, they executed an agreed divorce decree. The divorce became final, and neither party timely perfected an appeal. The relevant portion of the decree states that:
The Court finds that Roy A. Ghrist now receives a monthly retirement benefit of $772.00 gross and $625.00 disposable. The Court further finds that the community interest in the monthly retirement benefit is fifty percent (50%). The Court further finds that Respondent's [Mary] fifty percent (50%) community interest is now equal to a monthly retirement benefit of $327.38. The Court further finds that costs-of-living related increases are made to the present retirement periodically and, in all probability, those costs-of-living related increases will occur in the future.
. . . .
It is ORDERED and DECREED that Mary S. Ghrist shall have judgment against and recover from Roy A. Ghrist fifty percent (50%) of the present disposable and future military retirement received each month by Roy A. Ghrist computing said amount by deducting from his "gross", withholding only, to reach his "net". Any election of benefits by Roy A. Ghrist shall not reduce the amount or the percentage of the retirement awarded to Mary S. Ghrist.
(Emphasis in italics added.) The decree also designates Roy as a constructive trustee for Mary's benefit with respect to the retirement.
Shortly after the divorce, Mary began receiving payments directly from the Air Force of the 50% awarded to her. See 10 U.S.C. § 1408(d)(1) (2000) (providing for direct payment). Thereafter, Roy again waived a portion of his military retirement pay to receive VA disability pay. He therefore returned to receiving his disability pay from the VA and his retirement pay from the Air Force. The change reduced the amount he received from the Air Force, in turn reducing the amount that Mary received each month.
In 2003, approximately 15 years after Roy's post-divorce waiver of retirement pay, Mary filed a petition for enforcement of the divorce decree. The trial court denied the petition and made the following finding of fact:
Applying the formula for division of the military retirement contained in the Decree signed by this Court in 1985, it is apparent that Petitioner [Mary] has lost money and will continue to lose money each month which she would otherwise receive as her one-half interest in Respondent's [Roy] military retirement directly due to his post-divorce receipt of a portion of this retirement benefits in the form of disability payments from the Veteran's Administration rather than continuing to receive all of his retirement monies from the United States Air Force itself.
Despite finding that Mary's payment was reduced, the court concluded that enforcement of the decree as it relates to military disability benefits is barred by federal statute and federal and state case law. The court further concluded that Mary could not enforce a claim to recover the amount by which her payments had been reduced based on military retirement monies paid to Roy by the VA for his disability.
ANALYSIS
On appeal, Mary urges that the trial court erred in determining it could not enforce the agreed divorce decree. Relying on federal and state case law holding that federal statutes preempt state courts from awarding VA disability benefits, Roy counters that enforcement of the decree impermissibly penalizes him for electing to receive VA benefits. Mary also argues that, even if the decree improperly awarded VA disability benefits, Roy may not now collaterally attack the agreement because it has become a final, unappealed judgment.
The majority concludes that, because the Texas Supreme Court did not bar the collateral attack in Burson, Roy is not barred from collaterally attacking the agreed divorce decree in this case. I disagree, and begin with a discussion of federal preemption to supply the context for my conclusion.
Federal preemption of VA disability benefits
Both the United States Supreme Court and the Texas Supreme Court have held, using different rationales, that federal preemption of VA disability benefits prevents a trial court from dividing such benefits upon divorce as community property. See Mansell v. Mansell, 490 U.S. 581 (1989); Burson, 615 S.W.2d 192; Ex parte Johnson, 591 S.W.2d 453 (Tex. 1979) (orig. proceeding). The trial court concluded--as does the majority--that Mansell and Burson prohibited enforcement of the Ghrists' divorce decree as a matter of law.
In Mansell, the California Court of Appeal had rejected a retired service member's request to modify a divorce decree provision that awarded his former wife 50% of his total military retirement pay, including a portion he had waived to receive VA disability benefits. 490 U.S. at 586-87. The former service member argued that the Uniformed Services Former Spouses' Protection Act (USFSPA) precluded the trial court from treating his VA disability benefits as community property. Id. at 586. Congress enacted the USFSPA in direct response to the Supreme Court's earlier decision in McCarty v. McCarty, 453 U.S. 210 (1981), which determined that federal law preempted state courts from considering any military retirement benefits as community property. Mansell, 490 U.S. at 587-88.
The USFSPA explicitly permits state courts to treat "disposable retired pay" as community property. 10 U.S.C. § 1408(c)(1) (2000). "Disposable retired pay" is defined as "the total monthly retired pay to which a member is entitled" minus certain deductions, including amounts waived in order to receive compensation under title 38, which covers veterans' benefits. Id. § 1408(a)(4) (2000). The Supreme Court reasoned that, because pre-existing federal law, as construed in McCarty, had preempted application of state community property law to military retirement pay, only an affirmative grant of authority from Congress could restore the states' authority to treat military retirement pay as community property. Mansell, 490 U.S. at 588. The Court therefore interpreted the USFSPA as abrogating federal preemption only as to "disposable retired pay." Id. at 589. Thus, the USFSPA does not grant state courts the power to award any of the items deducted from gross retired pay such as VA disability benefits. See id. at 594-95.
In Burson, a retired service member, after his divorce, waived all of his Air Force disability retirement pay in exchange for VA disability benefits. (2) 615 S.W.2d at 193. When he subsequently failed to make payments to his former wife, she commenced contempt proceedings to enforce their divorce decree, which had ordered him to pay her a portion of his Air Force disability retirement pay each month. Id. The trial court held him in contempt and committed him to jail. Id. The supreme court, in a habeas corpus proceeding, ordered that the service member be discharged, concluding that federal law preempted state courts from ordering payment of VA disability benefits. Id. In reaching this conclusion, the court relied on 38 U.S.C. § 3101(a), which has been redesignated without substantive change as 38 U.S.C. § 5301(a) and now reads in part:
Nonassignability and exempt status of benefits
Payments of benefits due or to become due under any law administered by the Secretary [of Veterans Affairs] shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.
38 U.S.C. § 5301(a). (3) The court held that VA benefits "are not divisible or assignable. They are not property." Burson, 615 S.W.2d at 194. The court further held that "a divorce decree cannot prohibit [the service member] from doing that which the federal law properly gave him the right to do." Id. at 196. In addition, the court stated that "[f]ederal preemption of veterans benefits for disability does not leave room for their defeat, either by implication or indirection." Id. Thus, a Texas court cannot expressly or impliedly prohibit a retired service member from unilaterally waiving some or all of his military retirement pay in exchange for VA disability benefits. Id.; Limbaugh v. Limbaugh, 71 S.W.3d 1, 17 (Tex. App.--Waco 2002, no pet.).
In support of Roy's contention that federal law bars enforcement of the divorce decree, he cites Limbaugh, 71 S.W.3d at 17, and Freeman v. Freeman, 133 S.W.3d 277, 280 (Tex. App.--San Antonio 2003, no pet.), both of which held provisions related to VA disability benefits invalid. In Limbaugh, the Waco court held that a provision requiring the service member to make up the difference in payment amount if he elected to receive VA disability pay was invalid because it prohibited the service member "from doing that which the federal law properly gave him a right to do." 71 S.W.3d at 18 (quoting Burson, 615 S.W.2d at 196). In Freeman, the San
Antonio court held that a provision preventing the service member from electing to receive VA disability benefits was invalid for the same reason. 133 S.W.3d at 280 (citing Burson, 615 S.W.2d at 196; Limbaugh, 71 S.W.3d at 17). Both Limbaugh and Freeman, however, involved direct appeals of divorce decrees, whereas the case before us involves a collateral attack on a final, unappealed divorce decree; thus, neither case is controlling here. (4)
Collateral attack
As with other final, unappealed judgments which are regular upon their face, divorce judgments are not vulnerable to collateral attack. Berry v. Berry, 786 S.W.2d 672, 673 (Tex. 1990). Only a void judgment may be collaterally attacked. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). A judgment is void only when the court rendering judgment "had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court." Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987). All errors other than jurisdictional errors render the judgment merely voidable and must be attacked within prescribed time limits. Id.
Because Mansell recognizes preemption of state community property laws in the area of VA disability benefits under the USFSPA (10 U.S.C. § 1408) and Burson does so independently under 38 U.S.C. § 5301(a), the issue of collateral attack must be examined under both statutes.
1. The USFSPA
The field of domestic relations is generally a matter of state law, and when Congress passes general legislation, it rarely intends to displace state law in that particular area. Mansell, 490 U.S. at 587 (citing Rose v. Rose, 481 U.S. 619, 628 (1987) and Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)). When state family law has come into conflict with a federal statute, the Supreme Court has limited review under the Supremacy Clause to a determination of whether Congress has "positively required by direct enactment" that state law be preempted. Hisquierdo, 439 U.S. at 581 (citing Wetmore v. Markoe, 196 U.S. 68, 77 (1904)). Before a state law governing domestic relations will be overridden, it must do "major damage" to "clear and substantial" federal interests. Id. (quoting United States v. Yazell, 382 U.S. 341, 352 (1966)).
Whether federal law preempts state community property laws is a different question from whether the USFSPA preempts the common law doctrine of res judicata. Trahan v. Trahan, 894 S.W.2d 113, 117 (Tex. App.--Austin 1995, writ denied), cert. denied, 517 U.S. 1155 (1996). In Mansell, the Supreme Court addressed the issue of federal preemption of state community property laws, but also observed that it had no jurisdiction to decide whether the doctrine of res judicata applied because that was a matter of state law. 490 U.S. at 586 n.5.
The Texas Supreme Court has rejected collateral attacks on divorce decrees that violated the USFSPA by awarding more than "disposable retired pay." See, e.g., Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990) (decree awarded portion of gross military retirement pay); Berry, 786 S.W.2d at 673 (decree awarded portion of gross military disability retirement pay); Cook, 733 S.W.2d at 140 (decree awarded portion of gross military retirement pay). Each case involved a divorce decree that had become final prior to the USFSPA's 1981 effective date.
In Berry, the 1980 divorce decree ordered the service member to pay 25% of his gross military disability retirement pay to his former wife, which he failed to do. 786 S.W.2d at 673. Pursuant to an agreed order on contempt and enforcement motions, the trial court mandated payment; however, the service member then elected to receive his disability pay from the VA and reduced his payments to his former wife. Id. The wife filed a motion to enforce the prior order, but the trial court overruled the motion, and the court of appeals affirmed. Id. Even though the Berrys' divorce decree became final before the effective date of the USFSPA, the appellate court held that the USFSPA prevented state courts from treating military retirement pay that had been waived to receive VA disability benefits as property divisible on divorce. Id. The court reasoned that retroactive application of the USFSPA was required because Mansell permitted modification of a property settlement agreement that had become final. Id. The supreme court reversed and remanded the case to the trial court, observing that the Mansell decision turned on the California court's determination that it was appropriate under California law to reopen the final settlement order, and that Mansell does not require a similar result under Texas law. Id. at 673 (citing Mansell, 490 U.S. at 586 n.5). (5)
The divorce decree in Berry became final before the USFSPA's 1981 effective date, while the Ghrists' decree became final in 1985. Roy argues that Berry is distinguishable because the question the supreme court specifically addressed was whether the USFSPA applied retroactively to a divorce decree that was final before the USFSPA's enactment. See id. at 672. The language in Berry, however, is broader; the court states that "[b]ecause the final judgment is voidable as opposed to void, the rule of res judicata would apply." Id. at 673. In a similar case, the San Antonio court relied on Berry to prevent a collateral attack on a 1988 divorce decree. Jones v. Jones, 900 S.W.2d 786, 787 (Tex. App.--San Antonio 1995, writ denied); see also Baker v. Donovan, 199 S.W.3d 577, 580 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (op. on reh'g) (preventing collateral attack on 1987 decree). In Jones, a consent decree provided that the former wife was entitled to 25% of the "monthly amount that a retired Major with 20 years service will receive on the date [the service member] begins to receive his retirement." (Emphasis added.)
After the divorce, the service member retired, received a 40% disability rating, and elected to receive disability in lieu of a portion of his retirement. Id. The trial court entered a judgment enforcing the decree in favor of the former wife. Id. The appellate court affirmed the judgment, holding that the retired service member could not collaterally attack the final, unappealed decree. Id. at 788. Based on Berry and Jones, I conclude that federal preemption under the USFSPA does not prevent a state court from enforcing a final, unappealed divorce decree awarding military retirement pay, even when there has been a post-divorce waiver of retirement pay in exchange for VA disability benefits.
2. Section 5301(a)
The Texas Supreme Court has also considered the issue of collateral attack in the context of 38 U.S.C. § 5301(a). In Burson, the supreme court allowed a collateral attack, but did not explicitly state that the judgment was void. 615 S.W.2d at 194. The court specifically addressed collateral attack, observing that an award of retirement pay cannot be collaterally attacked, but distinguishing VA benefits because federal preemption exists:
A district court, under our decisions, has the power to enforce a decree ordering a spouse to make payments out of the Air Force disability retirement pay. If there is no appeal from the divorce court's division of property, that decree may not be collaterally attacked.
The important fact which distinguishes this case from those cited above is that Burson, after the divorce decree, made an election to forego his Air Force disability benefits and to receive instead the disability benefits from the Veterans Administration. Veterans Administration benefits, unlike Air Force disability benefits, are not divisible or assignable. They are not property.
Military disability retirement pay and Veterans Administration benefits are established by different statutory schemes. The statutes control the property characterization of each and the fact of, or lack of, federal preemption of each.
Id. at 194-95 (citations and footnotes omitted).
The Burson case actually involved two judgments--the original divorce decree and the trial court's order enforcing the divorce decree. Id. at 193. The divorce decree awarded only a set amount from the service member's "Air Force disability check." Id. In the language quoted above, the court recognized that a district court could enforce a decree ordering payments out of Air Force disability retirement pay and that the decree would not be subject to collateral attack. Id. at 194. Because the Burson decree awarded only Air Force disability, it is clear that the judgment at issue was the trial court's order of enforcement. The supreme court stated that:
Burson argues that the district court cannot order him to pay over to [his former wife] any portion of the Veterans Administration disability benefits because the supremacy clause of the United States Constitution preempts this area from the purview of state courts. We agree. We, therefore, grant the writ of habeas corpus and order Burson discharged. Id. at 193.
An enforcement order that expressly requires payment of VA disability benefits, or that impliedly requires payment of such benefits because they are the only income or asset available to satisfy the order, would violate section 5301(a), which states that VA disability benefits "shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." 38 U.S.C. § 5301(a). (6) Such an order would be void because the court had no jurisdiction to enter the judgment, and therefore would be subject to collateral attack. See Cook, 733 S.W.2d at 140. This explains why the Burson court permitted the collateral attack.
Cases where collateral attacks have been sustained on the theory that the judgment is void because the court lacked jurisdiction to enter the particular judgment involve error that "is quite serious and strikes at the very power of the court to render the judgment." Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 882 (Tex. 1973). The mere fact that an action by a court is contrary to a statute, constitutional provision, or rule of civil or appellate procedure makes the judgment only voidable or erroneous, absent one of the "rare circumstances" that makes a judgment void. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). Section 5301(a), however, clearly evidences Congress's intent to strike at the very power of a court to render judgment, and therefore an order of enforcement awarding VA disability benefits is one of the rare circumstances where a particular judgment is void. Thus, as the supreme court in Burson recognized, section 5301(a) acts as a limit on a court's power to enforce even a final, unappealed divorce decree.
The Ghrists' situation is similar to that in Burson. As in Burson, the parties' divorce decree was enforceable when entered into, became final, and was not appealed. Also, as in Burson, there was a post-divorce waiver of military retirement pay in exchange for VA disability pay and an attempt to enforce the original decree. At this point, however, the two cases take divergent paths. In Burson, the trial court attempted to enforce the original decree by requiring the former service member to make payments from his VA disability pay. It was this method of enforcement that the supreme court held invalid. In this case, however, the trial court has not attempted to enforce the decree. As discussed below, the Ghrists' divorce decree, depending on its interpretation, may or may not necessitate an impermissible enforcement order. Without additional proceedings in the trial court, it is premature to conclude the Ghrists' decree is unenforceable.
In summary, under both the USFSPA and 38 U.S.C. § 5301(a), a court may enforce a final, unappealed divorce decree awarding military retirement pay even though there has been a waiver of retirement pay to receive VA disability benefits. However, the court's power to enforce the decree is limited by section 5301(a), and the court therefore may not expressly or impliedly require the payment of VA disability benefits. (7) Having made this determination, the next step is to consider whether the Ghrists' divorce decree is capable of enforcement as written.
Interpretation and enforcement of the divorce decree
The Ghrists dispute the proper interpretation of their divorce decree. A marital property settlement agreement that is incorporated into a final divorce decree is treated as a contract, and its legal force and meaning are governed by the law of contracts. McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984). In construing a contract, the primary concern of the court is to ascertain and give effect to the true intention of the parties as they expressed that intent in the instrument. Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the parties entered the contract. Coker, 650 S.W.2d at 394. Contract language is accorded its plain, grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated. Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex. 1985). If the written instrument's language can be given a certain or definite legal meaning or interpretation, then it is not ambiguous. Buys v. Buys, 924 S.W.2d 369, 372 (Tex. 1996) (citing Coker, 650 S.W.2d at 393). A contract is ambiguous when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning. Coker, 650 S.W.2d at 393.
The plain language of the Ghrists' agreed divorce decree does not explicitly award a portion of VA disability benefits. Instead, the agreement addresses the division of Roy's "retirement benefit." (8) It awards Mary 50% of the retirement benefit and further provides that "[a]ny election of benefits" by Roy "shall not reduce the amount or percentage of the retirement awarded" to Mary. (Emphasis added.)
The first inquiry is whether the phrase "election of benefits" has a plain, grammatical meaning that is unambiguous and, if so, whether that meaning encompasses Roy's waiver of part of his military retirement pay. VA disability payments are commonly referred to as benefits. See, e.g., 38 U.S.C. § 5301; Mansell, 490 U.S. at 583. Title 38 of the U.S. Code, which addresses such payments, is titled "Veterans' Benefits." An "election" is defined as "[t]he exercise of choice; esp., the act of choosing from several possible rights or remedies in a way that precludes the use of other rights or remedies." Black's Law Dictionary 536 (7th ed. 1999). Because it was determined that Roy was disabled, he had the option of waiving retirement pay to receive VA disability pay, and he chose to exercise that option. Burson also characterizes this choice as an election. 615 S.W.2d at 196 ("[F]ederal law empowered Burson to make an election."). Thus, the phrase "election of benefits" has a plain, grammatical meaning and includes Roy's waiver of retirement pay to receive VA disability benefits. This interpretation is reinforced by looking at the circumstances present when the parties entered the contract, see Coker, 650 S.W.2d at 394, namely that during the marriage Roy had initially waived retirement pay to receive VA disability benefits, making it likely that both parties were aware of the possibility and effect of such an option. It is clear therefore that the plain language of the decree encompassed a potential future waiver of VA benefits by Roy.
What is unclear, however, is what the parties contemplated would be the effect of a waiver of retirement pay. The decree states that any election of benefits "shall not reduce the amount or percentage of the retirement awarded." At the hearing on the motion to enter and the motion to reconsider, there was no testimony addressing the parties' intent as to that provision. The language can be interpreted as allowing Roy to make certain elections of benefits, but not any election that would reduce the amount of retirement. If interpreted in this way, even though included in a final, unappealed judgment, such a provision could not be enforced because it requires a court to prevent Roy from "doing that which the federal law properly gave him a right to do." See Burson, 615 S.W.2d at 196. However, the language also can be interpreted as a voluntary commitment by Roy to provide a continuous stream of income to Mary by allowing for alternative payments if his retirement benefits are reduced by his election. If this is what the parties intended, then a court could enforce their agreement to the extent income or assets exist apart from VA disability benefits to satisfy the judgment. Without testimony regarding the parties' intent, the decree could be subject to either of these interpretations and perhaps others. Because the decree is reasonably susceptible to more than one meaning, it is ambiguous. See Coker, 650 S.W.2d at 393.
A court may render further orders to enforce the division of property made in a divorce decree to assist in the implementation of or to clarify the prior order; however, the court may not amend, modify, alter or change the division of property made in the divorce decree. Tex. Fam. Code Ann. §§ 9.006(a), .007(a) (West 2006). In Mary's petition for enforcement, she requested that, "if the Court finds that any part of the order sought to be enforced is not specific enough to be enforced by contempt, the Court enter a clarifying order restating the terms of the order, decree, or judgment in a manner specific enough to allow enforcement by contempt." Because the Ghrists' agreed divorce decree is ambiguous, the trial court must ascertain the parties' intent before it may determine the extent to which the award of retirement benefits is enforceable. (9)
CONCLUSION
The parties' divorce decree is ambiguous and subject to both enforceable and unenforceable interpretations. As such, it is premature to conclude that enforcement of the decree would require an impermissible order. Because the trial court determined that as a matter of law it could not enforce the Ghrists' divorce decree, the court did not ascertain the parties' intent regarding the effect of the "election of benefits" provision in the decree. I would therefore reverse the trial court's order and remand this case to the trial court to make such a finding. I respectfully dissent.
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Filed: July 12, 2007
1. There was a reference at the hearing on the petition for enforcement that Roy's disability rating had increased to 60%. The record does not, however, disclose the nature of Roy's disability.
2. Burson was 100% disabled, receiving only disability pay from the Air Force and, after the divorce, he made an election to receive his total disability benefits from the VA. At the time of the contempt hearing, Burson was not receiving any Air Force disability or retired pay. His only source of income was his VA disability pay. Roy Ghrist was 40% disabled and continues to receive Air Force retired pay in an amount that is in excess of fifty percent of his combined retirement and disability pay.
3. The Supreme Court observed in Mansell that, because it decided the USFSPA precluded treating VA disability benefits as community property, it need not address whether this nonassignability provision independently protects such pay. See Mansell v. Mansell, 490 U.S. 581, 587 n.6 (1989).
4. Limbaugh and Freeman are further distinguishable because they involved language included in the divorce decree by the court and not by agreement of the parties. Ordinarily, parties may place in an agreed divorce decree provisions that could not have been ordered by the trial court if it had divided the property, and the judgment agreed to by the parties is binding on them. Baxter v. Ruddle, 794 S.W.2d 761, 763 (Tex. 1990) (agreement awarded portion of gross military retirement pay including post-divorce increases); Boyett v. Boyett, 799 S.W.2d 360, 363 (Tex. App.--Houston [14th Dist.] 1990, no writ) (agreement awarded portion of husband's separate property to wife); Traylor v. Traylor, 789 S.W.2d 701, 702-03 (Tex. App.--Texarkana 1990, no pet.) (agreement required husband to maintain medical insurance on wife); see also Francis v. Francis, 412 S.W.2d 29, 33 (Tex. 1967) (even before family code provided for limited awards of spousal maintenance, parties' contract for spousal support payments did not violate public policy against court-ordered alimony).
5. Because of Berry's procedural posture, the court addressed only the application of res judicata in the context of the USFSPA; it did not address enforcement, section 5301 of Title 38 of the U.S. Code, or Burson. See Berry v. Berry, 786 S.W.2d 672, 673 (Tex. 1990).
6. The legislative history of this provision "recognizes two purposes: to 'avoid the possibility of the Veterans' Administration . . . being placed in the position of a collection agency' and to 'prevent the deprivation and depletion of the means of subsistence of veterans dependent upon these benefits as the main source of their income.'" Rose v. Rose, 481 U.S. 619, 630 (1987) (citing S. Rep. No. 94-1243, pp. 147-148 (1976)).
The Supreme Court has held that this statute does not prevent a court from using VA disability benefits to enforce a child support order because the statute's legislative history showed that the benefits "compensate for impaired earning capacity and are intended to 'provide reasonable and adequate compensation for veterans and their families.'" Id. In Rose, however, the court distinguished support obligations such as child support and alimony from divisions of property. Id. at 631-32 ("[I]n reaching what was clearly an alternative holding in Wissner [v. Wissner, 338 U.S. 655 (1950)] that community property division of insurance proceeds would constitute a 'seizure' in violation of a provision against 'attachment, levy, or seizure,' the Court was careful to identify a possible exception for alimony and child support cases. The suggested basis for this exception was that family support obligations are deeply rooted moral responsibilities, while the community property concept is more akin to an amoral business relationship."); id. at 632 n.6 ("We construed these amendments to 'expressly override' the anti-attachment provision for support claims, finding it 'logical to conclude that Congress . . . thought that a family's need for support could justify garnishment, even though it deflected other federal benefit programs from their intended goals, but that community property claims, which are not based on need, could not do so.'" (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 587 (1979))).
7. In Baker v. Donovan, the Houston court of appeals did not discuss section 5301; however, the enforcement order it upheld did not require the service member to pay any portion of his VA disability benefits. 199 S.W.3d 577 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (op. on reh'g). After the parties' divorce, the service member retired and began receiving $5000 per month, which included $1069 designated as VA disability pay. Id. at 578. On the former spouse's petition for enforcement and clarification of the parties' agreed divorce decree, the trial court ordered that the service member pay his former spouse $387.87 each month from his disposable military retirement pay. Id. at 578-79. On appeal, the service member argued that the trial court erred because it failed to take into account his VA disability pay and, thus, failed to reduce the retirement pay by the amount of disability. Id. at 579. The court disagreed, holding that the decree could not be collaterally attacked and that any modification of the decree could only be considered upon the timely filing of a motion to modify. Id. at 580.
Similarly, courts from other states have upheld final, unappealed divorce decrees agreed to by the parties where the agreements could be enforced without reference to VA disability benefits. See, e.g., Danielson v. Evans, 36 P.3d 749, 760-61 (Ariz. Ct. App. 2006) (contempt order enforcing agreed divorce decree did not violate federal law where court order did not require payment from VA disability pay and former service member failed to show that VA pay was his only source for making such payment); Abernethy v. Fishkin, 699 So. 2d 235, 240 (Fla. 1997) ("[W]hile federal law prohibits the division of disability benefits, it does not prohibit spouses from entering into a property settlement agreement that awards the non-military spouse a set portion of the military spouse's retirement pay. Nor does it preclude indemnification provisions ensuring such payments, so long as veterans' disability benefits are not the source of such payments."); In re Marriage of Nielsen, 792 N.E.2d 844, 849 (Ill. App. Ct. 2003) (trial court impermissibly enforced divorce decree by requiring payment from disability benefits; cause was remanded to determine if former service member was free to satisfy his obligation with assets other than his disability benefits); Scheidel v. Scheidel, 4 P.3d 670, 674 (N.M. Ct. App. 2000) ("[F]ederal law does not prohibit state courts from enforcing indemnity provisions which ensure the payment of a minimum sum to a non-military spouse as his or her share of a community pension, provided that veterans' disability benefits are not specified as the source of such payments.").
8. Roy argues that the agreement's use of the term "disposable" twice in discussing retirement indicates that Mary's award was limited to "disposable retired pay" as defined in the USFSPA, which omits amounts waived in order to receive VA disability benefits. See 10 U.S.C. § 1408(a)(4). The agreement, however, does not explicitly adopt the statutory definition. Furthermore, in awarding Mary 50% of the "present disposable and future military retirement," the agreement states that "said amount" is computed by "deducting from [Roy's] 'gross', withholding only, to reach his 'net'." The inclusion of this provision is inconsistent with an intent to adopt the statutory definition.
9. A Houston court of appeals has held that, when the parties did not address VA disability benefits in the decree, it would be an impermissible modification of the original decree for the court to take the benefits into account during a clarification. Baker v. Donovan, 199 S.W.3d 577, 580 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (op. on reh'g).
Before Justices Patterson, Pemberton and Waldrop)
03-05-00769-CV
Mary Ghrist v. Roy Ghrist
Appeal from 147th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 378,930, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
DISSENTING OPINION BY JUSTICE PATTERSON
I withdraw my dissenting opinion dated May 11, 2007, and substitute the following. Ex parte Burson is indeed a pathmarking precedent on a state court's authority to enforce a divorce decree by requiring payment of VA disability benefits. See 615 S.W.2d 192 (Tex. 1981) (orig. proceeding). The majority erroneously concludes that this case is just like Burson and holds that the result must be the same. But the majority is mistaken in supposing that Burson controls the outcome here. In Burson the enforcement order at issue required the former service member to pay a portion of his VA disability pay to his former spouse. Such an order is impermissible under federal law. See 38 U.S.C. § 5301(a) (Supp. III 2003). In this case, we are presented with a divorce decree that, depending on its interpretation, may or may not necessitate an impermissible enforcement order. Thus, disposing of the case before ascertaining the appropriate interpretation of the decree is premature. For this reason, I would reverse the trial court's order and remand for further proceedings to ascertain the intent of the parties and to then determine whether the decree is enforceable.
Accordingly, I respectfully dissent.
BACKGROUND
During the Ghrists' marriage, Roy served 18 years in the U.S. Air Force, retiring in 1975. Shortly after his retirement, it was determined that Roy was 40% disabled, making him eligible to receive disability pay, which is non-taxable. (1) In 1976, while still married, Roy waived a portion of his military retirement pay as required by statute to receive VA disability pay. See 38 U.S.C. § 5305 (2000). He thereafter received two checks each month--one from the Air Force for his retirement pay and one from the VA for his disability pay. At some point later, but prior to the parties' divorce, Roy cancelled the waiver of military pay and thereafter received only one check each month from the Air Force that included both his military retirement pay and his disability pay.
When the Ghrists divorced in 1985, they executed an agreed divorce decree. The divorce became final, and neither party timely perfected an appeal. The relevant portion of the decree states that:
The Court finds that Roy A. Ghrist now receives a monthly retirement benefit of $772.00 gross and $625.00 disposable. The Court further finds that the community interest in the monthly retirement benefit is fifty percent (50%). The Court further finds that Respondent's [Mary] fifty percent (50%) community interest is now equal to a monthly retirement benefit of $327.38. The Court further finds that costs-of-living related increases are made to the present retirement periodically and, in all probability, those costs-of-living related increases will occur in the future.
. . . .
It is ORDERED and DECREED that Mary S. Ghrist shall have judgment against and recover from Roy A. Ghrist fifty percent (50%) of the present disposable and future military retirement received each month by Roy A. Ghrist computing said amount by deducting from his "gross", withholding only, to reach his "net". Any election of benefits by Roy A. Ghrist shall not reduce the amount or the percentage of the retirement awarded to Mary S. Ghrist.
(Emphasis in italics added.) The decree also designates Roy as a constructive trustee for Mary's benefit with respect to the retirement.
Shortly after the divorce, Mary began receiving payments directly from the Air Force of the 50% awarded to her. See 10 U.S.C. § 1408(d)(1) (2000) (providing for direct payment). Thereafter, Roy again waived a portion of his military retirement pay to receive VA disability pay. He therefore returned to receiving his disability pay from the VA and his retirement pay from the Air Force. The change reduced the amount he received from the Air Force, in turn reducing the amount that Mary received each month.
In 2003, approximately 15 years after Roy's post-divorce waiver of retirement pay, Mary filed a petition for enforcement of the divorce decree. The trial court denied the petition and made the following finding of fact:
Applying the formula for division of the military retirement contained in the Decree signed by this Court in 1985, it is apparent that Petitioner [Mary] has lost money and will continue to lose money each month which she would otherwise receive as her one-half interest in Respondent's [Roy] military retirement directly due to his post-divorce receipt of a portion of this retirement benefits in the form of disability payments from the Veteran's Administration rather than continuing to receive all of his retirement monies from the United States Air Force itself.
Despite finding that Mary's payment was reduced, the court concluded that enforcement of the decree as it relates to military disability benefits is barred by federal statute and federal and state case law. The court further concluded that Mary could not enforce a claim to recover the amount by which her payments had been reduced based on military retirement monies paid to Roy by the VA for his disability.
ANALYSIS
On appeal, Mary urges that the trial court erred in determining it could not enforce the agreed divorce decree. Relying on federal and state case law holding that federal statutes preempt state courts from awarding VA disability benefits, Roy counters that enforcement of the decree impermissibly penalizes him for electing to receive VA benefits. Mary also argues that, even if the decree improperly awarded VA disability benefits, Roy may not now collaterally attack the agreement because it has become a final, unappealed judgment.
The majority concludes that, because the Texas Supreme Court did not bar the collateral attack in Burson, Roy is not barred from collaterally attacking the agreed divorce decree in this case. I disagree, and begin with a discussion of federal preemption to supply the context for my conclusion.
Federal preemption of VA disability benefits
Both the United States Supreme Court and the Texas Supreme Court have held, using different rationales, that federal preemption of VA disability benefits prevents a trial court from dividing such benefits upon divorce as community property. See Mansell v. Mansell, 490 U.S. 581 (1989); Burson, 615 S.W.2d 192; Ex parte Johnson, 591 S.W.2d 453 (Tex. 1979) (orig. proceeding). The trial court concluded--as does the majority--that Mansell and Burson prohibited enforcement of the Ghrists' divorce decree as a matter of law.
In Mansell, the California Court of Appeal had rejected a retired service member's request to modify a divorce decree provision that awarded his former wife 50% of his total military retirement pay, including a portion he had waived to receive VA disability benefits. 490 U.S. at 586-87. The former service member argued that the Uniformed Services Former Spouses' Protection Act (USFSPA) precluded the trial court from treating his VA disability benefits as community property. Id. at 586. Congress enacted the USFSPA in direct response to the Supreme Court's earlier decision in McCarty v. McCarty, 453 U.S. 210 (1981), which determined that federal law preempted state courts from considering any military retirement benefits as community property. Mansell, 490 U.S. at 587-88.
The USFSPA explicitly permits state courts to treat "disposable retired pay" as community property. 10 U.S.C. § 1408(c)(1) (2000). "Disposable retired pay" is defined as "the total monthly retired pay to which a member is entitled" minus certain deductions, including amounts waived in order to receive compensation under title 38, which covers veterans' benefits. Id. § 1408(a)(4) (2000). The Supreme Court reasoned that, because pre-existing federal law, as construed in McCarty, had preempted application of state community property law to military retirement pay, only an affirmative grant of authority from Congress could restore the states' authority to treat military retirement pay as community property. Mansell, 490 U.S. at 588. The Court therefore interpreted the USFSPA as abrogating federal preemption only as to "disposable retired pay." Id. at 589. Thus, the USFSPA does not grant state courts the power to award any of the items deducted from gross retired pay such as VA disability benefits. See id. at 594-95.
In Burson, a retired service member, after his divorce, waived all of his Air Force disability retirement pay in exchange for VA disability benefits. (2) 615 S.W.2d at 193. When he subsequently failed to make payments to his former wife, she commenced contempt proceedings to enforce their divorce decree, which had ordered him to pay her a portion of his Air Force disability retirement pay each month. Id. The trial court held him in contempt and committed him to jail. Id. The supreme court, in a habeas corpus proceeding, ordered that the service member be discharged, concluding that federal law preempted state courts from ordering payment of VA disability benefits. Id. In reaching this conclusion, the court relied on 38 U.S.C. § 3101(a), which has been redesignated without substantive change as 38 U.S.C. § 5301(a) and now reads in part:
Nonassignability and exempt status of benefits
Payments of benefits due or to become due under any law administered by the Secretary [of Veterans Affairs] shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.
38 U.S.C. § 5301(a). (3) The court held that VA benefits "are not divisible or assignable. They are not property." Burson, 615 S.W.2d at 194. The court further held that "a divorce decree cannot prohibit [the service member] from doing that which the federal law properly gave him the right to do." Id. at 196. In addition, the court stated that "[f]ederal preemption of veterans benefits for disability does not leave room for their defeat, either by implication or indirection." Id. Thus, a Texas court cannot expressly or impliedly prohibit a retired service member from unilaterally waiving some or all of his military retirement pay in exchange for VA disability benefits. Id.; Limbaugh v. Limbaugh, 71 S.W.3d 1, 17 (Tex. App.--Waco 2002, no pet.).
In support of Roy's contention that federal law bars enforcement of the divorce decree, he cites Limbaugh, 71 S.W.3d at 17, and Freeman v. Freeman, 133 S.W.3d 277, 280 (Tex. App.--San Antonio 2003, no pet.), both of which held provisions related to VA disability benefits invalid. In Limbaugh, the Waco court held that a provision requiring the service member to make up the difference in payment amount if he elected to receive VA disability pay was invalid because it prohibited the service member "from doing that which the federal law properly gave him a right to do." 71 S.W.3d at 18 (quoting Burson, 615 S.W.2d at 196). In Freeman, the San
Antonio court held that a provision preventing the service member from electing to receive VA disability benefits was invalid for the same reason. 133 S.W.3d at 280 (citing Burson, 615 S.W.2d at 196; Limbaugh, 71 S.W.3d at 17). Both Limbaugh and Freeman, however, involved direct appeals of divorce decrees, whereas the case before us involves a collateral attack on a final, unappealed divorce decree; thus, neither case is controlling here. (4)
Collateral attack
As with other final, unappealed judgments which are regular upon their face, divorce judgments are not vulnerable to collateral attack. Berry v. Berry, 786 S.W.2d 672, 673 (Tex. 1990). Only a void judgment may be collaterally attacked. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). A judgment is void only when the court rendering judgment "had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court." Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987). All errors other than jurisdictional errors render the judgment merely voidable and must be attacked within prescribed time limits. Id.
Because Mansell recognizes preemption of state community property laws in the area of VA disability benefits under the USFSPA (10 U.S.C. § 1408) and Burson does so independently under 38 U.S.C. § 5301(a), the issue of collateral attack must be examined under both statutes.
1. The USFSPA
The field of domestic relations is generally a matter of state law, and when Congress passes general legislation, it rarely intends to displace state law in that particular area. Mansell, 490 U.S. at 587 (citing Rose v. Rose, 481 U.S. 619, 628 (1987) and Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)). When state family law has come into conflict with a federal statute, the Supreme Court has limited review under the Supremacy Clause to a determination of whether Congress has "positively required by direct enactment" that state law be preempted. Hisquierdo, 439 U.S. at 581 (citing Wetmore v. Markoe, 196 U.S. 68, 77 (1904)). Before a state law governing domestic relations will be overridden, it must do "major damage" to "clear and substantial" federal interests. Id. (quoting United States v. Yazell, 382 U.S. 341, 352 (1966)).
Whether federal law preempts state community property laws is a different question from whether the USFSPA preempts the common law doctrine of res judicata. Trahan v. Trahan, 894 S.W.2d 113, 117 (Tex. App.--Austin 1995, writ denied), cert. denied, 517 U.S. 1155 (1996). In Mansell, the Supreme Court addressed the issue of federal preemption of state community property laws, but also observed that it had no jurisdiction to decide whether the doctrine of res judicata applied because that was a matter of state law. 490 U.S. at 586 n.5.
The Texas Supreme Court has rejected collateral attacks on divorce decrees that violated the USFSPA by awarding more than "disposable retired pay." See, e.g., Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990) (decree awarded portion of gross military retirement pay); Berry, 786 S.W.2d at 673 (decree awarded portion of gross military disability retirement pay); Cook, 733 S.W.2d at 140 (decree awarded portion of gross military retirement pay). Each case involved a divorce decree that had become final prior to the USFSPA's 1981 effective date.
In Berry, the 1980 divorce decree ordered the service member to pay 25% of his gross military disability retirement pay to his former wife, which he failed to do. 786 S.W.2d at 673. Pursuant to an agreed order on contempt and enforcement motions, the trial court mandated payment; however, the service member then elected to receive his disability pay from the VA and reduced his payments to his former wife. Id. The wife filed a motion to enforce the prior order, but the trial court overruled the motion, and the court of appeals affirmed. Id. Even though the Berrys' divorce decree became final before the effective date of the USFSPA, the appellate court held that the USFSPA prevented state courts from treating military retirement pay that had been waived to receive VA disability benefits as property divisible on divorce. Id. The court reasoned that retroactive application of the USFSPA was required because Mansell permitted modification of a property settlement agreement that had become final. Id. The supreme court reversed and remanded the case to the trial court, observing that the Mansell decision turned on the California court's determination that it was appropriate under California law to reopen the final settlement order, and that Mansell does not require a similar result under Texas law. Id. at 673 (citing Mansell, 490 U.S. at 586 n.5). (5)
The divorce decree in Berry became final before the USFSPA's 1981 effective date, while the Ghrists' decree became final in 1985. Roy argues that Berry is distinguishable because the question the supreme court specifically addressed was whether the USFSPA applied retroactively to a divorce decree that was final before the USFSPA's enactment. See id. at 672. The language in Berry, however, is broader; the court states that "[b]ecause the final judgment is voidable as opposed to void, the rule of res judicata would apply." Id. at 673. In a similar case, the San Antonio court relied on Berry to prevent a collateral attack on a 1988 divorce decree. Jones v. Jones, 900 S.W.2d 786, 787 (Tex. App.--San Antonio 1995, writ denied); see also Baker v. Donovan, 199 S.W.3d 577, 580 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (op. on reh'g) (preventing collateral attack on 1987 decree). In Jones, a consent decree provided that the former wife was entitled to 25% of the "monthly amount that a retired Major with 20 years service will receive on the date [the service member] begins to receive his retirement." (Emphasis added.)
After the divorce, the service member retired, received a 40% disability rating, and elected to receive disability in lieu of a portion of his retirement. Id. The trial court entered a judgment enforcing the decree in favor of the former wife. Id. The appellate court affirmed the judgment, holding that the retired service member could not collaterally attack the final, unappealed decree. Id. at 788. Based on Berry and Jones, I conclude that federal preemption under the USFSPA does not prevent a state court from enforcing a final, unappealed divorce decree awarding military retirement pay, even when there has been a post-divorce waiver of retirement pay in exchange for VA disability benefits.
2. Section 5301(a)
The Texas Supreme Court has also considered the issue of collateral attack in the context of 38 U.S.C. § 5301(a). In Burson, the supreme court allowed a collateral attack, but did not explicitly state that the judgment was void. 615 S.W.2d at 194. The court specifically addressed collateral attack, observing that an award of retirement pay cannot be collaterally attacked, but distinguishing VA benefits because federal preemption exists:
A district court, under our decisions, has the power to enforce a decree ordering a spouse to make payments out of the Air Force disability retirement pay. If there is no appeal from the divorce court's division of property, that decree may not be collaterally attacked.
The important fact which distinguishes this case from those cited above is that Burson, after the divorce decree, made an election to forego his Air Force disability benefits and to receive instead the disability benefits from the Veterans Administration. Veterans Administration benefits, unlike Air Force disability benefits, are not divisible or assignable. They are not property.
Military disability retirement pay and Veterans Administration benefits are established by different statutory schemes. The statutes control the property characterization of each and the fact of, or lack of, federal preemption of each.
Id. at 194-95 (citations and footnotes omitted).
The Burson case actually involved two judgments--the original divorce decree and the trial court's order enforcing the divorce decree. Id. at 193. The divorce decree awarded only a set amount from the service member's "Air Force disability check." Id. In the language quoted above, the court recognized that a district court could enforce a decree ordering payments out of Air Force disability retirement pay and that the decree would not be subject to collateral attack. Id. at 194. Because the Burson decree awarded only Air Force disability, it is clear that the judgment at issue was the trial court's order of enforcement. The supreme court stated that:
Burson argues that the district court cannot order him to pay over to [his former wife] any portion of the Veterans Administration disability benefits because the supremacy clause of the United States Constitution preempts this area from the purview of state courts. We agree. We, therefore, grant the writ of habeas corpus and order Burson discharged. Id. at 193.
An enforcement order that expressly requires payment of VA disability benefits, or that impliedly requires payment of such benefits because they are the only income or asset available to satisfy the order, would violate section 5301(a), which states that VA disability benefits "shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." 38 U.S.C. § 5301(a). (6) Such an order would be void because the court had no jurisdiction to enter the judgment, and therefore would be subject to collateral attack. See Cook, 733 S.W.2d at 140. This explains why the Burson court permitted the collateral attack.
Cases where collateral attacks have been sustained on the theory that the judgment is void because the court lacked jurisdiction to enter the particular judgment involve error that "is quite serious and strikes at the very power of the court to render the judgment." Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 882 (Tex. 1973). The mere fact that an action by a court is contrary to a statute, constitutional provision, or rule of civil or appellate procedure makes the judgment only voidable or erroneous, absent one of the "rare circumstances" that makes a judgment void. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). Section 5301(a), however, clearly evidences Congress's intent to strike at the very power of a court to render judgment, and therefore an order of enforcement awarding VA disability benefits is one of the rare circumstances where a particular judgment is void. Thus, as the supreme court in Burson recognized, section 5301(a) acts as a limit on a court's power to enforce even a final, unappealed divorce decree.
The Ghrists' situation is similar to that in Burson. As in Burson, the parties' divorce decree was enforceable when entered into, became final, and was not appealed. Also, as in Burson, there was a post-divorce waiver of military retirement pay in exchange for VA disability pay and an attempt to enforce the original decree. At this point, however, the two cases take divergent paths. In Burson, the trial court attempted to enforce the original decree by requiring the former service member to make payments from his VA disability pay. It was this method of enforcement that the supreme court held invalid. In this case, however, the trial court has not attempted to enforce the decree. As discussed below, the Ghrists' divorce decree, depending on its interpretation, may or may not necessitate an impermissible enforcement order. Without additional proceedings in the trial court, it is premature to conclude the Ghrists' decree is unenforceable.
In summary, under both the USFSPA and 38 U.S.C. § 5301(a), a court may enforce a final, unappealed divorce decree awarding military retirement pay even though there has been a waiver of retirement pay to receive VA disability benefits. However, the court's power to enforce the decree is limited by section 5301(a), and the court therefore may not expressly or impliedly require the payment of VA disability benefits. (7) Having made this determination, the next step is to consider whether the Ghrists' divorce decree is capable of enforcement as written.
Interpretation and enforcement of the divorce decree
The Ghrists dispute the proper interpretation of their divorce decree. A marital property settlement agreement that is incorporated into a final divorce decree is treated as a contract, and its legal force and meaning are governed by the law of contracts. McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984). In construing a contract, the primary concern of the court is to ascertain and give effect to the true intention of the parties as they expressed that intent in the instrument. Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the parties entered the contract. Coker, 650 S.W.2d at 394. Contract language is accorded its plain, grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated. Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex. 1985). If the written instrument's language can be given a certain or definite legal meaning or interpretation, then it is not ambiguous. Buys v. Buys, 924 S.W.2d 369, 372 (Tex. 1996) (citing Coker, 650 S.W.2d at 393). A contract is ambiguous when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning. Coker, 650 S.W.2d at 393.
The plain language of the Ghrists' agreed divorce decree does not explicitly award a portion of VA disability benefits. Instead, the agreement addresses the division of Roy's "retirement benefit." (8) It awards Mary 50% of the retirement benefit and further provides that "[a]ny election of benefits" by Roy "shall not reduce the amount or percentage of the retirement awarded" to Mary. (Emphasis added.)
The first inquiry is whether the phrase "election of benefits" has a plain, grammatical meaning that is unambiguous and, if so, whether that meaning encompasses Roy's waiver of part of his military retirement pay. VA disability payments are commonly referred to as benefits. See, e.g., 38 U.S.C. § 5301; Mansell, 490 U.S. at 583. Title 38 of the U.S. Code, which addresses such payments, is titled "Veterans' Benefits." An "election" is defined as "[t]he exercise of choice; esp., the act of choosing from several possible rights or remedies in a way that precludes the use of other rights or remedies." Black's Law Dictionary 536 (7th ed. 1999). Because it was determined that Roy was disabled, he had the option of waiving retirement pay to receive VA disability pay, and he chose to exercise that option. Burson also characterizes this choice as an election. 615 S.W.2d at 196 ("[F]ederal law empowered Burson to make an election."). Thus, the phrase "election of benefits" has a plain, grammatical meaning and includes Roy's waiver of retirement pay to receive VA disability benefits. This interpretation is reinforced by looking at the circumstances present when the parties entered the contract, see Coker, 650 S.W.2d at 394, namely that during the marriage Roy had initially waived retirement pay to receive VA disability benefits, making it likely that both parties were aware of the possibility and effect of such an option. It is clear therefore that the plain language of the decree encompassed a potential future waiver of VA benefits by Roy.
What is unclear, however, is what the parties contemplated would be the effect of a waiver of retirement pay. The decree states that any election of benefits "shall not reduce the amount or percentage of the retirement awarded." At the hearing on the motion to enter and the motion to reconsider, there was no testimony addressing the parties' intent as to that provision. The language can be interpreted as allowing Roy to make certain elections of benefits, but not any election that would reduce the amount of retirement. If interpreted in this way, even though included in a final, unappealed judgment, such a provision could not be enforced because it requires a court to prevent Roy from "doing that which the federal law properly gave him a right to do." See Burson, 615 S.W.2d at 196. However, the language also can be interpreted as a voluntary commitment by Roy to provide a continuous stream of income to Mary by allowing for alternative payments if his retirement benefits are reduced by his election. If this is what the parties intended, then a court could enforce their agreement to the extent income or assets exist apart from VA disability benefits to satisfy the judgment. Without testimony regarding the parties' intent, the decree could be subject to either of these interpretations and perhaps others. Because the decree is reasonably susceptible to more than one meaning, it is ambiguous. See Coker, 650 S.W.2d at 393.
A court may render further orders to enforce the division of property made in a divorce decree to assist in the implementation of or to clarify the prior order; however, the court may not amend, modify, alter or change the division of property made in the divorce decree. Tex. Fam. Code Ann. §§ 9.006(a), .007(a) (West 2006). In Mary's petition for enforcement, she requested that, "if the Court finds that any part of the order sought to be enforced is not specific enough to be enforced by contempt, the Court enter a clarifying order restating the terms of the order, decree, or judgment in a manner specific enough to allow enforcement by contempt." Because the Ghrists' agreed divorce decree is ambiguous, the trial court must ascertain the parties' intent before it may determine the extent to which the award of retirement benefits is enforceable. (9)
CONCLUSION
The parties' divorce decree is ambiguous and subject to both enforceable and unenforceable interpretations. As such, it is premature to conclude that enforcement of the decree would require an impermissible order. Because the trial court determined that as a matter of law it could not enforce the Ghrists' divorce decree, the court did not ascertain the parties' intent regarding the effect of the "election of benefits" provision in the decree. I would therefore reverse the trial court's order and remand this case to the trial court to make such a finding. I respectfully dissent.
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Filed: July 12, 2007
1. There was a reference at the hearing on the petition for enforcement that Roy's disability rating had increased to 60%. The record does not, however, disclose the nature of Roy's disability.
2. Burson was 100% disabled, receiving only disability pay from the Air Force and, after the divorce, he made an election to receive his total disability benefits from the VA. At the time of the contempt hearing, Burson was not receiving any Air Force disability or retired pay. His only source of income was his VA disability pay. Roy Ghrist was 40% disabled and continues to receive Air Force retired pay in an amount that is in excess of fifty percent of his combined retirement and disability pay.
3. The Supreme Court observed in Mansell that, because it decided the USFSPA precluded treating VA disability benefits as community property, it need not address whether this nonassignability provision independently protects such pay. See Mansell v. Mansell, 490 U.S. 581, 587 n.6 (1989).
4. Limbaugh and Freeman are further distinguishable because they involved language included in the divorce decree by the court and not by agreement of the parties. Ordinarily, parties may place in an agreed divorce decree provisions that could not have been ordered by the trial court if it had divided the property, and the judgment agreed to by the parties is binding on them. Baxter v. Ruddle, 794 S.W.2d 761, 763 (Tex. 1990) (agreement awarded portion of gross military retirement pay including post-divorce increases); Boyett v. Boyett, 799 S.W.2d 360, 363 (Tex. App.--Houston [14th Dist.] 1990, no writ) (agreement awarded portion of husband's separate property to wife); Traylor v. Traylor, 789 S.W.2d 701, 702-03 (Tex. App.--Texarkana 1990, no pet.) (agreement required husband to maintain medical insurance on wife); see also Francis v. Francis, 412 S.W.2d 29, 33 (Tex. 1967) (even before family code provided for limited awards of spousal maintenance, parties' contract for spousal support payments did not violate public policy against court-ordered alimony).
5. Because of Berry's procedural posture, the court addressed only the application of res judicata in the context of the USFSPA; it did not address enforcement, section 5301 of Title 38 of the U.S. Code, or Burson. See Berry v. Berry, 786 S.W.2d 672, 673 (Tex. 1990).
6. The legislative history of this provision "recognizes two purposes: to 'avoid the possibility of the Veterans' Administration . . . being placed in the position of a collection agency' and to 'prevent the deprivation and depletion of the means of subsistence of veterans dependent upon these benefits as the main source of their income.'" Rose v. Rose, 481 U.S. 619, 630 (1987) (citing S. Rep. No. 94-1243, pp. 147-148 (1976)).
The Supreme Court has held that this statute does not prevent a court from using VA disability benefits to enforce a child support order because the statute's legislative history showed that the benefits "compensate for impaired earning capacity and are intended to 'provide reasonable and adequate compensation for veterans and their families.'" Id. In Rose, however, the court distinguished support obligations such as child support and alimony from divisions of property. Id. at 631-32 ("[I]n reaching what was clearly an alternative holding in Wissner [v. Wissner, 338 U.S. 655 (1950)] that community property division of insurance proceeds would constitute a 'seizure' in violation of a provision against 'attachment, levy, or seizure,' the Court was careful to identify a possible exception for alimony and child support cases. The suggested basis for this exception was that family support obligations are deeply rooted moral responsibilities, while the community property concept is more akin to an amoral business relationship."); id. at 632 n.6 ("We construed these amendments to 'expressly override' the anti-attachment provision for support claims, finding it 'logical to conclude that Congress . . . thought that a family's need for support could justify garnishment, even though it deflected other federal benefit programs from their intended goals, but that community property claims, which are not based on need, could not do so.'" (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 587 (1979))).
7. In Baker v. Donovan, the Houston court of appeals did not discuss section 5301; however, the enforcement order it upheld did not require the service member to pay any portion of his VA disability benefits. 199 S.W.3d 577 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (op. on reh'g). After the parties' divorce, the service member retired and began receiving $5000 per month, which included $1069 designated as VA disability pay. Id. at 578. On the former spouse's petition for enforcement and clarification of the parties' agreed divorce decree, the trial court ordered that the service member pay his former spouse $387.87 each month from his disposable military retirement pay. Id. at 578-79. On appeal, the service member argued that the trial court erred because it failed to take into account his VA disability pay and, thus, failed to reduce the retirement pay by the amount of disability. Id. at 579. The court disagreed, holding that the decree could not be collaterally attacked and that any modification of the decree could only be considered upon the timely filing of a motion to modify. Id. at 580.
Similarly, courts from other states have upheld final, unappealed divorce decrees agreed to by the parties where the agreements could be enforced without reference to VA disability benefits. See, e.g., Danielson v. Evans, 36 P.3d 749, 760-61 (Ariz. Ct. App. 2006) (contempt order enforcing agreed divorce decree did not violate federal law where court order did not require payment from VA disability pay and former service member failed to show that VA pay was his only source for making such payment); Abernethy v. Fishkin, 699 So. 2d 235, 240 (Fla. 1997) ("[W]hile federal law prohibits the division of disability benefits, it does not prohibit spouses from entering into a property settlement agreement that awards the non-military spouse a set portion of the military spouse's retirement pay. Nor does it preclude indemnification provisions ensuring such payments, so long as veterans' disability benefits are not the source of such payments."); In re Marriage of Nielsen, 792 N.E.2d 844, 849 (Ill. App. Ct. 2003) (trial court impermissibly enforced divorce decree by requiring payment from disability benefits; cause was remanded to determine if former service member was free to satisfy his obligation with assets other than his disability benefits); Scheidel v. Scheidel, 4 P.3d 670, 674 (N.M. Ct. App. 2000) ("[F]ederal law does not prohibit state courts from enforcing indemnity provisions which ensure the payment of a minimum sum to a non-military spouse as his or her share of a community pension, provided that veterans' disability benefits are not specified as the source of such payments.").
8. Roy argues that the agreement's use of the term "disposable" twice in discussing retirement indicates that Mary's award was limited to "disposable retired pay" as defined in the USFSPA, which omits amounts waived in order to receive VA disability benefits. See 10 U.S.C. § 1408(a)(4). The agreement, however, does not explicitly adopt the statutory definition. Furthermore, in awarding Mary 50% of the "present disposable and future military retirement," the agreement states that "said amount" is computed by "deducting from [Roy's] 'gross', withholding only, to reach his 'net'." The inclusion of this provision is inconsistent with an intent to adopt the statutory definition.
9. A Houston court of appeals has held that, when the parties did not address VA disability benefits in the decree, it would be an impermissible modification of the original decree for the court to take the benefits into account during a clarification. Baker v. Donovan, 199 S.W.3d 577, 580 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (op. on reh'g).
Dismissal of Prisoner's Suit Should Have Been Without Prejudice
Hunt v. Rodriguez-Mendoza, No. 03-06-00117-CV (Tex.App.- Austin, Jul. 11, 2007)(Pemberton)(inmate IFP suit, right to hearing)
REFORMED AND, AS REFORMED, AFFIRMED: Opinion by Justice Pemberton
Before Chief Justice Law, Justices Pemberton and WaldropStan Hunt v. Amalia Rodriguez-Mendoza, Travis County District Clerk
Appeal from 98th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN501768, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Stan Hunt appeals from the district court's dismissal of his lawsuit against Travis County District Clerk Amalia Rodriguez-Mendoza for failure to comply with chapter 14 of the civil practice and remedies code, which governs inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (West 2002). In four issues on appeal, Hunt claims that he was denied his right to a hearing on the dismissal, alleges that the district court interfered with his compliance with the statute, asserts that the district court abused its discretion in ordering the dismissal, and contends that his case should not have been dismissed with prejudice.
We reform the judgment to reflect that the dismissal was without prejudice. As reformed, we affirm.
BACKGROUND
Hunt is an inmate confined in the Institutional Division of the Texas Department of
Criminal Justice. In May 2005, Hunt filed suit against Rodriguez-Mendoza, primarily alleging that he was being denied access to court records maintained by the Travis County District Clerk's Office. Hunt filed with his petition an affidavit of his inability to pay court costs and a request for leave to proceed in forma pauperis.
Chapter 14 of the civil practice and remedies code applies to a suit brought by an inmate in a district, county, justice of the peace, or small claims court in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate. See id. § 14.002(a). In accordance with section 14.004(a), Hunt filed a "Declaration of Previous Litigation," in which he listed 42 previously filed lawsuits. See id. § 14.004(a) (West 2002). Pursuant to section 14.006(f), Hunt was also required to file a certified copy of "the inmate's trust account statement." See id. §§ 14.004(c), .006(f) (West 2002). The statement is required because money is withdrawn from the inmate's trust account in order to pay for court fees, court costs, and other costs, and the statement indicates the amount that is available to be withdrawn. See id. § 14.006(a), (e), (f). However, the record does not reflect that Hunt filed such a statement.
On November 14, 2005, Rodriguez-Mendoza filed a motion to dismiss the suit, alleging that Hunt failed to comply with the requirements of chapter 14. Specifically, Rodriguez-Mendoza claimed that Hunt neglected to mention that one of his previous lawsuits had been dismissed as frivolous, see id. § 14.004(a)(2)(D) (requiring that inmate "describe[] each suit that was previously brought by . . . stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise."), and that Hunt failed to file a certified copy of his trust account statement. See id. § 14.004(c) ("The affidavit or unsworn declaration [of inability to pay costs] must be accompanied by the certified copy of the trust account statement required by Section 14.006(f).").
A hearing on the motion to dismiss was set for December 2, 2005. On that date, the district court granted the motion to dismiss. The district court's order specified that the dismissal was "with prejudice." Three days later, on December 5, Hunt filed a response to the motion to dismiss and a "Motion for Telephone Conference Hearing on Defendant's Motion to Dismiss."
The motion was overruled by operation of law. This appeal followed.
DISCUSSION
Right to hearing
In his first issue, Hunt asserts that the district court abused its discretion by "implicitly denying" his "timely request to appear by telephone conference at the scheduled dismissal hearing." We first note that there was nothing "timely" about Hunt's request. The motion to dismiss was filed on November 14, 2005. On November 22, the district court notified the parties that a hearing on the motion was set for December 2. Hunt's motion to appear at the hearing by telephone conference was not filed until December 5.
Furthermore, in lawsuits filed under chapter 14, the district court's decision to hold a hearing prior to dismissal is discretionary. See id. § 14.003(c) ("In determining whether [to dismiss a claim], the court may hold a hearing." (emphasis added)); Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex. App.--Fort Worth 1997, pet. denied). No abuse of discretion is shown when the inmate does not demonstrate that there is evidence that he would have presented at the hearing. See Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.--Beaumont 2001, no pet.); Thomas, 952 S.W.2d at 938. In his "Motion for Telephone Conference Hearing," Hunt failed to demonstrate that he had specific evidence to present of compliance with chapter 14. On this record we hold that the district court did not abuse its discretion in denying Hunt's motion to appear at the hearing by telephone conference. We overrule Hunt's first issue.
The district court's alleged interference
In his second issue, Hunt alleges that the district court prevented him from complying with chapter 14. Specifically, Hunt asserts that he sent a copy of his inmate trust account statement to various district court officials both before and after the filing of his current lawsuit, but that these officials refused to file the statement. Other than conclusory allegations that are not supported by the record, Hunt references no evidence that would support this claim. Because we find no support for this assertion in the record, we overrule Hunt's second issue.
Dismissal for failure to comply with chapter 14
In his third issue, Hunt asserts that the district court abused its discretion in dismissing his lawsuit. The trial court has broad discretion to dismiss a suit brought pursuant to chapter 14, and we review that dismissal under an abuse of discretion standard. White v. State, 37 S.W.3d 562, 563 (Tex. App.--Beaumont 2001, no pet.); McCollum v. Mt. Ararat Baptist Church, 980 S.W.2d 535, 536 (Tex. App.--Houston [14th Dist.] 1998, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). A clear failure by the trial court to analyze or apply the law correctly also constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
In her motion to dismiss, Rodriguez-Mendoza alleged two independent grounds on which the district court could have based its dismissal. First, Rodriguez-Mendoza alleged that Hunt omitted information stating that one of his previous lawsuits had been dismissed as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a)(2)(D). Second, Rodriguez-Mendoza alleged that Hunt failed to file a certified copy of his inmate trust account statement. See id. §§ 14.004(c), .006(f). We need not consider the former contention, because we conclude that the district court did not abuse its discretion in finding that Hunt failed to file a certified copy of his inmate trust account statement. A copy of the statement does not appear anywhere in the record and, as we discussed earlier, there is no evidence in the record that the district court interfered with Hunt's alleged attempts to file the statement. The district court does not abuse its discretion in dismissing a suit for failure to comply with the procedural requirements of chapter 14. See Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.--Houston [1st Dist.] 2006, no pet.); Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.--Houston [1st Dist.] 2000, no pet.). We overrule Hunt's third issue.
Prejudice
In his fourth issue, Hunt contends that the district court erred in dismissing his case with prejudice. Dismissal with prejudice functions as a final determination on the merits of a case. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991); Barcroft v. County of Fannin, 118 S.W.3d 922, 927 (Tex. App.--Texarkana 2003, pet. denied). A dismissal for failure to comply with the rules governing the filing of suits brought pursuant to chapter 14 is not a ruling on the merits. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.--Beaumont 2001, no pet.). Therefore, the dismissal in this case should have been without prejudice. Lentworth v. Trahan, 981 S.W.2d 720, 723 (Tex. App.--Houston [1st Dist.] 1998, no pet.). We sustain Hunt's fourth issue.
CONCLUSION
We overrule Hunt's first, second, and third issues and sustain his fourth issue. (1)
Accordingly, we reform the judgment to provide that the cause is dismissed without prejudice. As reformed, the judgment of the district court is affirmed.
_____________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Reformed and, as Reformed, Affirmed
Filed: July 11, 2007
1. Subsequent to the filing of this appeal, Hunt filed with this Court a "Motion to Take Judicial Notice." In the motion, Hunt lists various rules, statutes, cases, and alleged facts related to this proceeding and Hunt's previous lawsuits and asks this Court to take "judicial notice" of these items. An appellate court's decision to take judicial notice of a fact on appeal is generally discretionary. Tran v. Fiorenza, 934 S.W.2d 740, 742-43 (Tex. App.--Houston [1st Dist.] 1996, no writ); Martinez v. City of San Antonio, 768 S.W.2d 911, 914-15 (Tex. App.--San Antonio 1989, no writ) (citing Wellborn, Judicial Notice Under Article II of the Texas Rules of Evidence, 19 St. Mary's L.J. 1, 20 (1987)). To be the proper subject of judicial notice, a fact must be one not subject to reasonable dispute and "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Office of Pub. Util. Counsel v. Public Util. Comm'n, 878 S.W.2d 598, 600 (Tex. 1994) (quoting Tex. R. Evid. 201(b)). Furthermore, the requesting party must supply the court with the necessary information. Id. (quoting Tex. R. Evid. 201(d)). We have considered the items in Hunt's motion and determined that: (1) many of the items are not the proper subject of judicial notice; (2) other items contain either incomplete or inaccurate information; and (3) none of the items affect our resolution of the specific issues Hunt raised on appeal. Accordingly, we exercise our discretion and deny Hunt's motion.
REFORMED AND, AS REFORMED, AFFIRMED: Opinion by Justice Pemberton
Before Chief Justice Law, Justices Pemberton and WaldropStan Hunt v. Amalia Rodriguez-Mendoza, Travis County District Clerk
Appeal from 98th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN501768, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Stan Hunt appeals from the district court's dismissal of his lawsuit against Travis County District Clerk Amalia Rodriguez-Mendoza for failure to comply with chapter 14 of the civil practice and remedies code, which governs inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (West 2002). In four issues on appeal, Hunt claims that he was denied his right to a hearing on the dismissal, alleges that the district court interfered with his compliance with the statute, asserts that the district court abused its discretion in ordering the dismissal, and contends that his case should not have been dismissed with prejudice.
We reform the judgment to reflect that the dismissal was without prejudice. As reformed, we affirm.
BACKGROUND
Hunt is an inmate confined in the Institutional Division of the Texas Department of
Criminal Justice. In May 2005, Hunt filed suit against Rodriguez-Mendoza, primarily alleging that he was being denied access to court records maintained by the Travis County District Clerk's Office. Hunt filed with his petition an affidavit of his inability to pay court costs and a request for leave to proceed in forma pauperis.
Chapter 14 of the civil practice and remedies code applies to a suit brought by an inmate in a district, county, justice of the peace, or small claims court in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate. See id. § 14.002(a). In accordance with section 14.004(a), Hunt filed a "Declaration of Previous Litigation," in which he listed 42 previously filed lawsuits. See id. § 14.004(a) (West 2002). Pursuant to section 14.006(f), Hunt was also required to file a certified copy of "the inmate's trust account statement." See id. §§ 14.004(c), .006(f) (West 2002). The statement is required because money is withdrawn from the inmate's trust account in order to pay for court fees, court costs, and other costs, and the statement indicates the amount that is available to be withdrawn. See id. § 14.006(a), (e), (f). However, the record does not reflect that Hunt filed such a statement.
On November 14, 2005, Rodriguez-Mendoza filed a motion to dismiss the suit, alleging that Hunt failed to comply with the requirements of chapter 14. Specifically, Rodriguez-Mendoza claimed that Hunt neglected to mention that one of his previous lawsuits had been dismissed as frivolous, see id. § 14.004(a)(2)(D) (requiring that inmate "describe[] each suit that was previously brought by . . . stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise."), and that Hunt failed to file a certified copy of his trust account statement. See id. § 14.004(c) ("The affidavit or unsworn declaration [of inability to pay costs] must be accompanied by the certified copy of the trust account statement required by Section 14.006(f).").
A hearing on the motion to dismiss was set for December 2, 2005. On that date, the district court granted the motion to dismiss. The district court's order specified that the dismissal was "with prejudice." Three days later, on December 5, Hunt filed a response to the motion to dismiss and a "Motion for Telephone Conference Hearing on Defendant's Motion to Dismiss."
The motion was overruled by operation of law. This appeal followed.
DISCUSSION
Right to hearing
In his first issue, Hunt asserts that the district court abused its discretion by "implicitly denying" his "timely request to appear by telephone conference at the scheduled dismissal hearing." We first note that there was nothing "timely" about Hunt's request. The motion to dismiss was filed on November 14, 2005. On November 22, the district court notified the parties that a hearing on the motion was set for December 2. Hunt's motion to appear at the hearing by telephone conference was not filed until December 5.
Furthermore, in lawsuits filed under chapter 14, the district court's decision to hold a hearing prior to dismissal is discretionary. See id. § 14.003(c) ("In determining whether [to dismiss a claim], the court may hold a hearing." (emphasis added)); Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex. App.--Fort Worth 1997, pet. denied). No abuse of discretion is shown when the inmate does not demonstrate that there is evidence that he would have presented at the hearing. See Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.--Beaumont 2001, no pet.); Thomas, 952 S.W.2d at 938. In his "Motion for Telephone Conference Hearing," Hunt failed to demonstrate that he had specific evidence to present of compliance with chapter 14. On this record we hold that the district court did not abuse its discretion in denying Hunt's motion to appear at the hearing by telephone conference. We overrule Hunt's first issue.
The district court's alleged interference
In his second issue, Hunt alleges that the district court prevented him from complying with chapter 14. Specifically, Hunt asserts that he sent a copy of his inmate trust account statement to various district court officials both before and after the filing of his current lawsuit, but that these officials refused to file the statement. Other than conclusory allegations that are not supported by the record, Hunt references no evidence that would support this claim. Because we find no support for this assertion in the record, we overrule Hunt's second issue.
Dismissal for failure to comply with chapter 14
In his third issue, Hunt asserts that the district court abused its discretion in dismissing his lawsuit. The trial court has broad discretion to dismiss a suit brought pursuant to chapter 14, and we review that dismissal under an abuse of discretion standard. White v. State, 37 S.W.3d 562, 563 (Tex. App.--Beaumont 2001, no pet.); McCollum v. Mt. Ararat Baptist Church, 980 S.W.2d 535, 536 (Tex. App.--Houston [14th Dist.] 1998, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). A clear failure by the trial court to analyze or apply the law correctly also constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
In her motion to dismiss, Rodriguez-Mendoza alleged two independent grounds on which the district court could have based its dismissal. First, Rodriguez-Mendoza alleged that Hunt omitted information stating that one of his previous lawsuits had been dismissed as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a)(2)(D). Second, Rodriguez-Mendoza alleged that Hunt failed to file a certified copy of his inmate trust account statement. See id. §§ 14.004(c), .006(f). We need not consider the former contention, because we conclude that the district court did not abuse its discretion in finding that Hunt failed to file a certified copy of his inmate trust account statement. A copy of the statement does not appear anywhere in the record and, as we discussed earlier, there is no evidence in the record that the district court interfered with Hunt's alleged attempts to file the statement. The district court does not abuse its discretion in dismissing a suit for failure to comply with the procedural requirements of chapter 14. See Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.--Houston [1st Dist.] 2006, no pet.); Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.--Houston [1st Dist.] 2000, no pet.). We overrule Hunt's third issue.
Prejudice
In his fourth issue, Hunt contends that the district court erred in dismissing his case with prejudice. Dismissal with prejudice functions as a final determination on the merits of a case. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991); Barcroft v. County of Fannin, 118 S.W.3d 922, 927 (Tex. App.--Texarkana 2003, pet. denied). A dismissal for failure to comply with the rules governing the filing of suits brought pursuant to chapter 14 is not a ruling on the merits. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.--Beaumont 2001, no pet.). Therefore, the dismissal in this case should have been without prejudice. Lentworth v. Trahan, 981 S.W.2d 720, 723 (Tex. App.--Houston [1st Dist.] 1998, no pet.). We sustain Hunt's fourth issue.
CONCLUSION
We overrule Hunt's first, second, and third issues and sustain his fourth issue. (1)
Accordingly, we reform the judgment to provide that the cause is dismissed without prejudice. As reformed, the judgment of the district court is affirmed.
_____________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Reformed and, as Reformed, Affirmed
Filed: July 11, 2007
1. Subsequent to the filing of this appeal, Hunt filed with this Court a "Motion to Take Judicial Notice." In the motion, Hunt lists various rules, statutes, cases, and alleged facts related to this proceeding and Hunt's previous lawsuits and asks this Court to take "judicial notice" of these items. An appellate court's decision to take judicial notice of a fact on appeal is generally discretionary. Tran v. Fiorenza, 934 S.W.2d 740, 742-43 (Tex. App.--Houston [1st Dist.] 1996, no writ); Martinez v. City of San Antonio, 768 S.W.2d 911, 914-15 (Tex. App.--San Antonio 1989, no writ) (citing Wellborn, Judicial Notice Under Article II of the Texas Rules of Evidence, 19 St. Mary's L.J. 1, 20 (1987)). To be the proper subject of judicial notice, a fact must be one not subject to reasonable dispute and "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Office of Pub. Util. Counsel v. Public Util. Comm'n, 878 S.W.2d 598, 600 (Tex. 1994) (quoting Tex. R. Evid. 201(b)). Furthermore, the requesting party must supply the court with the necessary information. Id. (quoting Tex. R. Evid. 201(d)). We have considered the items in Hunt's motion and determined that: (1) many of the items are not the proper subject of judicial notice; (2) other items contain either incomplete or inaccurate information; and (3) none of the items affect our resolution of the specific issues Hunt raised on appeal. Accordingly, we exercise our discretion and deny Hunt's motion.
Tuesday, July 10, 2007
Malpractice Suit Dismissed Because of Deficient Expert Report
Zavala v. Pinkerton, DDS, No. 03-05-00169-CV (Tex.App.- Austin, Jul. 10, 2007)(Law)(HCLC)
DISMISSAL AFFIRMED: Opinion by Chief Justice Law
Before Chief Justice Law, Justices Patterson and Puryear
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. 2000-0898, HONORABLE GARY L. STEEL, JUDGE PRESIDING
MEMORANDUM OPINION BY CHIEF JUSTICE KENNETH LAW
In this appeal, we must decide whether the trial court properly dismissed a dental malpractice claim based on the claimant's failure to serve an adequate expert report in compliance with the former Medical Liability and Insurance Improvement Act ("article 4590i"). (1) In her sole issue, appellant Rose Marie Zavala argues that the trial court abused its discretion by dismissing her suit against appellees, Kenneth Pinkerton, D.D.S. and Donald Bandy, D.D.S., as her expert's report represented a good-faith effort to comply with statutory requirements.
Because the report lacked a causal link explaining how the dentists' alleged breach of the standard of care brought about Zavala's claimed injuries, we conclude that the trial court did not abuse its discretion by granting the motion to dismiss. See art. 4590i, § 13.01(l). Accordingly, we affirm the trial court's order of dismissal.
BACKGROUND
The record shows that Zavala brought this health care liability claim against Pinkerton and Bandy for injuries she claimed to have sustained as a result of the extraction of her wisdom teeth. She filed a timely report and curriculum vitae from her expert, Dr. John K. Jones, in support of her claim. See id. § 13.01(d)(1).
Pinkerton and Bandy filed a motion to dismiss Zavala's suit because Jones's report lacked any reference to the required element of causation. See id. § 13.01(r)(6). Zavala responded that an incorrect draft of the report had been submitted due to a legal assistant's error and requested a thirty-day extension to comply with section 13.01(d). Zavala supported her claim of mistake with affidavits from her attorney and the legal assistant who made the error. After a hearing, the trial court granted the requested extension, (2) and Zavala filed her expert's amended report. See id. § 13.01(g). The amended report's reference to causation consisted of the following sentence: "In my opinion, these departures from the standards of care are contributing causes to the harm and injuries experienced by Rose Marie Zavala."
Believing that the expert's report was still inadequate because of its cursory reference to causation, Pinkerton and Bandy filed another motion to dismiss. Zavala argued that she had complied with section 13.01(d) and alternatively, that she should receive another thirty-day extension because any inadequacy in her expert's report was not due to intentional disregard or conscious indifference but to accident or mistake. This time, the response containing Zavala's assertion of accident or mistake was not supported with an affidavit or any facts.
When the court heard the dentists' motion to dismiss on November 23, 2004, Zavala produced a third report from Jones. His report elaborated on the standard of care and Zavala's injuries. It also stated that departures from the standard of care were "contributing causes" of Zavala's injuries, but it did not offer any explanation about how any breach of the standard of care caused Zavala's injuries. After the trial court accepted Jones's third report, Pinkerton and Bandy filed an amended motion to dismiss, and the parties provided the court with additional briefing.
The trial court granted Pinkerton and Bandy's motion to dismiss Zavala's claim for failure to file an adequate expert report. See id. § 13.01(l). Zavala filed a timely motion for new trial that was overruled by operation of law. This appeal followed.
DISCUSSION
Standard of review
We review a trial court's decision to dismiss a claim for failure to comply with section 13.01(d)'s expert-report requirements under an abuse of discretion standard. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 58, 52 (Tex. 2002). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Id. When reviewing matters committed to the trial court's discretion, a court of appeals may not substitute its own judgment for that of the trial court. Id. Our analysis of the adequacy of the expert's report under section 13.01(l) is limited to the four corners of the report. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006).
Adequacy of expert's report
Section 13.01(d)(1) requires that, within 180 days after filing a health care liability claim, a claimant must furnish counsel for each defendant physician and health care provider with an expert report. Id. at 93 (citing art. 4590i § 13.01(d)(1)). Although the expert's report need not marshal "every bit" of the claimant's evidence, it must provide a fair summary of the expert's opinions concerning the applicable standard of care, the manner in which the care rendered by the physician or health care provider failed to meet the standard, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. (citing art. 4590i, § 13.01(r)(6)).
If a claimant timely files an expert report, and a defendant moves to dismiss the claim because of the report's inadequacy, the trial court must grant the motion "only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section [13.01]." Wright, 79 S.W.3d at 51 (citing art. 4590i §13.01(l)).
Here, the parties do not dispute that the standard of care and the alleged breaches of the standard of care are summarized fairly in Jones's third report. It states that Pinkerton and Bandy should have:
(1) advised of the risks regarding temporomandibular disorders after surgery;
(2) diagnosed and treated or referred for treatment of facial pain, trismus, and possible temporomandibular disorder after surgery;
(3) halted procedure at patient's request after the first of two planned extractions; and
(4) provided mandibular support during procedure.
By failing to take the above actions, Jones's report opines that Pinkerton and Bandy breached the standard of care.
The parties' dispute is whether Jones's report constitutes a good-faith effort to provide a fair summary of the expert's opinions concerning the causal relationship between the breaches of the standard of care and Zavala's injuries. See art. 4590i, § 13.01(l), (r)(6).
Regarding the element of causation, Jones's report stated, "In my opinion, these departures from the standards of care are contributing causes to the chronic facial pain, internal derangement of the right and left temporomandibular joints and other harm and injuries experienced by Rose Marie Zavala." Causation is not discussed in any other manner.
Zavala argues that Jones's report provides a fair summary of his opinions on the standard of care, breach and causation. She also argues that article 4590i does not require her to prove her lawsuit through an expert report. See American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001) ("[T]o avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits."). Pinkerton and Bandy contend that the single sentence in the report addressing causation was an insufficient conclusion, not an explanation.
To constitute a good-faith effort, the report must "discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question, and to provide a basis for the trial court to conclude that the claims have merit." Jernigan, 195 S.W.3d at 93 (quoting Palacios, 46 S.W.3d at 875).
A report cannot merely state the expert's conclusions about the standard of care, breach, and causal relationship. Wright, 79 S.W.3d at 52. Instead, "the expert must explain the basis of his statements to link his conclusions to the facts." Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).
The issue in this case concerns whether the third report explained Jones's conclusions about Zavala's injuries by linking them to facts that would have allowed the trial court to determine that the malpractice claims had merit. A report that merely states the expert's conclusions about causation will not assist the trial court in making that determination. See Palacios, 46 S.W.3d at 879.
The Texas Supreme Court considered the adequacy of an expert's report with regard to the element of causation in Bowie Memorial Hospital v. Wright. The report at issue in Wright opined that the hospital should have had a system for reviewing x-rays and if it had, the claimant "would have had the possibility of a better outcome." 70 S.W.3d at 50-51. The court concluded that the report lacked information linking the expert's conclusion to the alleged breach because it simply opined that the claimant might have had a better outcome without explaining how the hospital's conduct caused injury to her. Id. at 53. It stated, "We cannot infer from this statement, as the Wrights ask us to, that Bowie's alleged breach precluded Barbara from obtaining a quicker diagnosis and treatment for her foot. Rather, the report must include the required information within its four corners." Id. Thus, the court concluded that the trial court did not abuse its discretion in dismissing the medical malpractice claim because the report failed to offer any basis for determining the claim's merit (the latter part of the Palacios test) by failing to provide a fair summary of the expert's opinion on causation. Id.
Courts in Dallas and San Antonio have reached the same conclusion about reports with similar deficiencies concerning the element of causation. See Rose v. Garland Cmty. Hosp., 168 S.W.3d 352, 357 (Tex. App.--Dallas 2005, no pet.) (concluding that report was inadequate because it did not link alleged negligent credentialing and claimant's injuries); Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.--San Antonio 2004, no pet.) (concluding that report was inadequate because it failed to explain what "more timely triage and evaluation" would have revealed, what treatment would have been available, whether decedent was a candidate for that unknown treatment, or whether that unknown treatment would have been effective); see also Davis v. Markey, No. 03-04-00455-CV, 2005 Tex. App. LEXIS 2185, at *12-14 (Tex. App.--Austin Mar. 24, 2005, pet. denied) (mem. op.) (concluding that report was inadequate because it did not contain any factual information linking physicians' alleged failures to "be vigilant in the postoperative period," to properly analyze material aspirated from claimant's knee, and to "over-ream," to conclusion that claimant would have "lifetime of disability").
Jones's third report in this case--similar to the reports in Wright, Rose, and Costello--lacks a causal link explaining how the dentists' alleged breaches of the standard of care brought about Zavala's injuries. The entirety of the discussion on causation in Jones's report is confined to a single sentence stating that, in his opinion, Pinkerton and Bandy's departures from the standard of care were "contributing causes" to Zavala's injuries. The report fails to explain how the purported breaches by the dentists caused the injuries that Zavala claims.
For instance, although the report alleges that Zavala's extraction procedure required mandibular support and that Pinkerton and Bandy did not provide it, it omits any explanation about how the failure to provide mandibular support caused Zavala's injuries or how providing that support would have prevented them. It simply concludes that the failure to do so was a contributing cause of her injuries. Because Jones's report lacked information as to causation, it did not provide a basis for the trial court to conclude that Zavala's claims had merit. Jernigan, 195 S.W.3d at 93; Palacios, 46 S.W.3d at 875. Based on this omission, the trial court could have reasonably determined that the third report did not represent a good-faith effort to summarize the causal relationship between Pinkerton and Bandy's alleged departures from the standard of care and Zavala's claimed injuries. See Bowie, 79 S.W.3d at 53; Palacios, 46 S.W.3d at 880.
We conclude that the trial court did not abuse its discretion by granting Pinkerton and Bandy's motion to dismiss based on Zavala's failure to furnish an expert report that met the requirements of section 13.01(r)(6). See art. 4590i, § 13.01(l). Accordingly, we overrule Zavala's sole issue.
CONCLUSION
Having concluded that the trial court did not abuse its discretion by granting Pinkerton and Bandy's motion to dismiss based on Zavala's failure to furnish an expert report that met the requirements of section 13.01(r)(6), we affirm the trial court's order of dismissal.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed: July 10, 2007
1. See Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(l), 1995 Tex. Gen. Laws 985, 987, repealed and recodified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, sec. 74.351(l), 10.09, 2003 Tex. Gen. Laws 847, 876, 884 (effective September 1, 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2006)). Because Zavala filed suit before September 1, 2003, article 4590i applies to her claim.
2. After the February 15, 2001 hearing, there was some delay in the entry of this order. The reporter's record states that the court entered the order on November 23, 2004, during a subsequent hearing on the motion to dismiss, but the order was not included in the clerk's record.
----------------
Full style: Rose Marie Zavala v. Kenneth Pinkerton, D.D.S. and Donald Bandy, D.D.S. (Tex.App. - Austin, July 10, 2007)(trial court's dismissal of HCLC affirmed due to insufficient expert report)
Appeal from 22nd District Court of Hays County
DISMISSAL AFFIRMED: Opinion by Chief Justice Law
Before Chief Justice Law, Justices Patterson and Puryear
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. 2000-0898, HONORABLE GARY L. STEEL, JUDGE PRESIDING
MEMORANDUM OPINION BY CHIEF JUSTICE KENNETH LAW
In this appeal, we must decide whether the trial court properly dismissed a dental malpractice claim based on the claimant's failure to serve an adequate expert report in compliance with the former Medical Liability and Insurance Improvement Act ("article 4590i"). (1) In her sole issue, appellant Rose Marie Zavala argues that the trial court abused its discretion by dismissing her suit against appellees, Kenneth Pinkerton, D.D.S. and Donald Bandy, D.D.S., as her expert's report represented a good-faith effort to comply with statutory requirements.
Because the report lacked a causal link explaining how the dentists' alleged breach of the standard of care brought about Zavala's claimed injuries, we conclude that the trial court did not abuse its discretion by granting the motion to dismiss. See art. 4590i, § 13.01(l). Accordingly, we affirm the trial court's order of dismissal.
BACKGROUND
The record shows that Zavala brought this health care liability claim against Pinkerton and Bandy for injuries she claimed to have sustained as a result of the extraction of her wisdom teeth. She filed a timely report and curriculum vitae from her expert, Dr. John K. Jones, in support of her claim. See id. § 13.01(d)(1).
Pinkerton and Bandy filed a motion to dismiss Zavala's suit because Jones's report lacked any reference to the required element of causation. See id. § 13.01(r)(6). Zavala responded that an incorrect draft of the report had been submitted due to a legal assistant's error and requested a thirty-day extension to comply with section 13.01(d). Zavala supported her claim of mistake with affidavits from her attorney and the legal assistant who made the error. After a hearing, the trial court granted the requested extension, (2) and Zavala filed her expert's amended report. See id. § 13.01(g). The amended report's reference to causation consisted of the following sentence: "In my opinion, these departures from the standards of care are contributing causes to the harm and injuries experienced by Rose Marie Zavala."
Believing that the expert's report was still inadequate because of its cursory reference to causation, Pinkerton and Bandy filed another motion to dismiss. Zavala argued that she had complied with section 13.01(d) and alternatively, that she should receive another thirty-day extension because any inadequacy in her expert's report was not due to intentional disregard or conscious indifference but to accident or mistake. This time, the response containing Zavala's assertion of accident or mistake was not supported with an affidavit or any facts.
When the court heard the dentists' motion to dismiss on November 23, 2004, Zavala produced a third report from Jones. His report elaborated on the standard of care and Zavala's injuries. It also stated that departures from the standard of care were "contributing causes" of Zavala's injuries, but it did not offer any explanation about how any breach of the standard of care caused Zavala's injuries. After the trial court accepted Jones's third report, Pinkerton and Bandy filed an amended motion to dismiss, and the parties provided the court with additional briefing.
The trial court granted Pinkerton and Bandy's motion to dismiss Zavala's claim for failure to file an adequate expert report. See id. § 13.01(l). Zavala filed a timely motion for new trial that was overruled by operation of law. This appeal followed.
DISCUSSION
Standard of review
We review a trial court's decision to dismiss a claim for failure to comply with section 13.01(d)'s expert-report requirements under an abuse of discretion standard. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 58, 52 (Tex. 2002). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Id. When reviewing matters committed to the trial court's discretion, a court of appeals may not substitute its own judgment for that of the trial court. Id. Our analysis of the adequacy of the expert's report under section 13.01(l) is limited to the four corners of the report. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006).
Adequacy of expert's report
Section 13.01(d)(1) requires that, within 180 days after filing a health care liability claim, a claimant must furnish counsel for each defendant physician and health care provider with an expert report. Id. at 93 (citing art. 4590i § 13.01(d)(1)). Although the expert's report need not marshal "every bit" of the claimant's evidence, it must provide a fair summary of the expert's opinions concerning the applicable standard of care, the manner in which the care rendered by the physician or health care provider failed to meet the standard, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. (citing art. 4590i, § 13.01(r)(6)).
If a claimant timely files an expert report, and a defendant moves to dismiss the claim because of the report's inadequacy, the trial court must grant the motion "only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section [13.01]." Wright, 79 S.W.3d at 51 (citing art. 4590i §13.01(l)).
Here, the parties do not dispute that the standard of care and the alleged breaches of the standard of care are summarized fairly in Jones's third report. It states that Pinkerton and Bandy should have:
(1) advised of the risks regarding temporomandibular disorders after surgery;
(2) diagnosed and treated or referred for treatment of facial pain, trismus, and possible temporomandibular disorder after surgery;
(3) halted procedure at patient's request after the first of two planned extractions; and
(4) provided mandibular support during procedure.
By failing to take the above actions, Jones's report opines that Pinkerton and Bandy breached the standard of care.
The parties' dispute is whether Jones's report constitutes a good-faith effort to provide a fair summary of the expert's opinions concerning the causal relationship between the breaches of the standard of care and Zavala's injuries. See art. 4590i, § 13.01(l), (r)(6).
Regarding the element of causation, Jones's report stated, "In my opinion, these departures from the standards of care are contributing causes to the chronic facial pain, internal derangement of the right and left temporomandibular joints and other harm and injuries experienced by Rose Marie Zavala." Causation is not discussed in any other manner.
Zavala argues that Jones's report provides a fair summary of his opinions on the standard of care, breach and causation. She also argues that article 4590i does not require her to prove her lawsuit through an expert report. See American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001) ("[T]o avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits."). Pinkerton and Bandy contend that the single sentence in the report addressing causation was an insufficient conclusion, not an explanation.
To constitute a good-faith effort, the report must "discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question, and to provide a basis for the trial court to conclude that the claims have merit." Jernigan, 195 S.W.3d at 93 (quoting Palacios, 46 S.W.3d at 875).
A report cannot merely state the expert's conclusions about the standard of care, breach, and causal relationship. Wright, 79 S.W.3d at 52. Instead, "the expert must explain the basis of his statements to link his conclusions to the facts." Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).
The issue in this case concerns whether the third report explained Jones's conclusions about Zavala's injuries by linking them to facts that would have allowed the trial court to determine that the malpractice claims had merit. A report that merely states the expert's conclusions about causation will not assist the trial court in making that determination. See Palacios, 46 S.W.3d at 879.
The Texas Supreme Court considered the adequacy of an expert's report with regard to the element of causation in Bowie Memorial Hospital v. Wright. The report at issue in Wright opined that the hospital should have had a system for reviewing x-rays and if it had, the claimant "would have had the possibility of a better outcome." 70 S.W.3d at 50-51. The court concluded that the report lacked information linking the expert's conclusion to the alleged breach because it simply opined that the claimant might have had a better outcome without explaining how the hospital's conduct caused injury to her. Id. at 53. It stated, "We cannot infer from this statement, as the Wrights ask us to, that Bowie's alleged breach precluded Barbara from obtaining a quicker diagnosis and treatment for her foot. Rather, the report must include the required information within its four corners." Id. Thus, the court concluded that the trial court did not abuse its discretion in dismissing the medical malpractice claim because the report failed to offer any basis for determining the claim's merit (the latter part of the Palacios test) by failing to provide a fair summary of the expert's opinion on causation. Id.
Courts in Dallas and San Antonio have reached the same conclusion about reports with similar deficiencies concerning the element of causation. See Rose v. Garland Cmty. Hosp., 168 S.W.3d 352, 357 (Tex. App.--Dallas 2005, no pet.) (concluding that report was inadequate because it did not link alleged negligent credentialing and claimant's injuries); Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.--San Antonio 2004, no pet.) (concluding that report was inadequate because it failed to explain what "more timely triage and evaluation" would have revealed, what treatment would have been available, whether decedent was a candidate for that unknown treatment, or whether that unknown treatment would have been effective); see also Davis v. Markey, No. 03-04-00455-CV, 2005 Tex. App. LEXIS 2185, at *12-14 (Tex. App.--Austin Mar. 24, 2005, pet. denied) (mem. op.) (concluding that report was inadequate because it did not contain any factual information linking physicians' alleged failures to "be vigilant in the postoperative period," to properly analyze material aspirated from claimant's knee, and to "over-ream," to conclusion that claimant would have "lifetime of disability").
Jones's third report in this case--similar to the reports in Wright, Rose, and Costello--lacks a causal link explaining how the dentists' alleged breaches of the standard of care brought about Zavala's injuries. The entirety of the discussion on causation in Jones's report is confined to a single sentence stating that, in his opinion, Pinkerton and Bandy's departures from the standard of care were "contributing causes" to Zavala's injuries. The report fails to explain how the purported breaches by the dentists caused the injuries that Zavala claims.
For instance, although the report alleges that Zavala's extraction procedure required mandibular support and that Pinkerton and Bandy did not provide it, it omits any explanation about how the failure to provide mandibular support caused Zavala's injuries or how providing that support would have prevented them. It simply concludes that the failure to do so was a contributing cause of her injuries. Because Jones's report lacked information as to causation, it did not provide a basis for the trial court to conclude that Zavala's claims had merit. Jernigan, 195 S.W.3d at 93; Palacios, 46 S.W.3d at 875. Based on this omission, the trial court could have reasonably determined that the third report did not represent a good-faith effort to summarize the causal relationship between Pinkerton and Bandy's alleged departures from the standard of care and Zavala's claimed injuries. See Bowie, 79 S.W.3d at 53; Palacios, 46 S.W.3d at 880.
We conclude that the trial court did not abuse its discretion by granting Pinkerton and Bandy's motion to dismiss based on Zavala's failure to furnish an expert report that met the requirements of section 13.01(r)(6). See art. 4590i, § 13.01(l). Accordingly, we overrule Zavala's sole issue.
CONCLUSION
Having concluded that the trial court did not abuse its discretion by granting Pinkerton and Bandy's motion to dismiss based on Zavala's failure to furnish an expert report that met the requirements of section 13.01(r)(6), we affirm the trial court's order of dismissal.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed: July 10, 2007
1. See Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(l), 1995 Tex. Gen. Laws 985, 987, repealed and recodified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, sec. 74.351(l), 10.09, 2003 Tex. Gen. Laws 847, 876, 884 (effective September 1, 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2006)). Because Zavala filed suit before September 1, 2003, article 4590i applies to her claim.
2. After the February 15, 2001 hearing, there was some delay in the entry of this order. The reporter's record states that the court entered the order on November 23, 2004, during a subsequent hearing on the motion to dismiss, but the order was not included in the clerk's record.
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Full style: Rose Marie Zavala v. Kenneth Pinkerton, D.D.S. and Donald Bandy, D.D.S. (Tex.App. - Austin, July 10, 2007)(trial court's dismissal of HCLC affirmed due to insufficient expert report)
Appeal from 22nd District Court of Hays County
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