Opinion
NO. 03-15-00386-CV
04-20-2016
Harris County Hospital District, Appellant v. Public Utility Commission of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-09-002116, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDINGMEMORANDUM OPINION
This is Harris County Hospital District's second appeal in this case. In the previous appeal, we reversed the trial court's judgment that affirmed the Public Utility Commission's order and remanded the case to the trial court with instructions to reverse the Commission's order and remand the case to the Commission. See Harris Cty. Hosp. Dist. v. Public Util. Comm'n, No. 03-10-00647-CV, 2012 Tex. App. LEXIS 5707, at *1 (Tex. App.—Austin July 13, 2012, no pet.) (mem. op.). In this appeal, the District challenges the portions of the trial court's judgment on remand that address the District's request for attorney and expert witness fees under section 15.003 of the Texas Utilities Code. See Tex. Util. Code § 15.003 (authorizing prevailing "party represented by counsel" to recover "reasonable fees for attorneys and expert witnesses"). For the following reasons, we affirm the trial court's judgment.
BACKGROUND
In the underlying administrative proceeding, the District sought a refund from AT&T, the District's telecommunications provider, for overcharges from 1995 to September 2008. See Harris Cty. Hosp. Dist., 2012 Tex. App. LEXIS 5707, at *1-2. In its final order, the Commission ordered AT&T to pay the overcharges for half of this period. Id. at *4-5. The District sought judicial review of the order and, among its requested relief, sought to recover its fees for attorneys and expert witnesses and other costs under section 15.003 of the Texas Utilities Code. See Tex. Util. Code § 15.003. The trial court affirmed the Commission's order and did not award the District fees. See Harris Cty. Hosp. Dist., 2012 Tex. App. LEXIS 5707, at *7.
In the previous appeal, the District asked in the prayer section of its brief that this Court award it "attorneys' fees, expert witness fees and costs incurred through Appellant's efforts before the Commission and the court." The District also cited subsections (a) and (b) of section 15.003 of the Utilities Code in a footnote as authority for its statement in its concluding paragraph that it "[was] also entitled in the same action to recover against the regulation fund reasonable fees for attorneys and expert witnesses and other costs for the party's efforts before the commission and the court." The District, however, did not include an issue or otherwise provide substantive argument to support its request that this Court award these fees. See id. at *8-9 (listing District's issues).
In this Court's opinion in the previous appeal, we concluded that the Commission's order was arbitrary and capricious and prejudiced substantial rights of the District, reversed the trial court's judgment, and remanded the case to the trial court with instructions to remand the District's claims to the Commission for further proceedings consistent with our opinion. See id. at *22-23. The parties did not file motions for rehearing, and this Court remanded the case to the trial court and issued mandate in September 2012. Consistent with our judgment, this Court's mandate to the trial court stated:
IT IS THEREFORE considered, adjudged and ordered that the judgment of the trial court is reversed, and that the cause is remanded to the trial court with instructions that the case be remanded to the Commission for further proceedings consistent with this opinion. It is FURTHER ordered that the appellee pay all costs relating to this appeal, both in this Court and the court below; and that this decision be certified below for observance.
In October 2014, the District filed with the trial court a motion for order remanding its overbilling claims to the Commission and a separate motion to sever and abate its claims for attorney and expert fees and costs, which it sought to recover under section 15.003 of the Utilities Code. See Tex. Util. Code § 15.003. The Commission opposed the severance and abatement of the District's fees claims under section 15.003, and both parties filed briefing with the trial court to support their opposing positions. At the center of the parties' dispute was the meaning of the following sentence in a footnote of our opinion in the previous appeal: "To the extent that the District seeks to have this Court order the Commission to adopt the ALJ's proposal for decision and to award it expert's fees and attorney's fees, we decline to do so." See Harris Cty. Hosp. Dist., 2012 Tex. App. LEXIS 5707, at *22 n.6.
After considering the motions, the parties' briefing and pleadings, and this Court's opinion, judgment, and mandate, the trial court signed its final judgment. The trial court denied the District's motion to sever and abate its claims for attorney and expert fees and costs and ordered "that the Commission's Docket 34332, Complaint of Harris County Hospital District Against Sw. Bell Telephone, LP d/b/a AT&T Texas, be remanded to the Commission for proceedings in accord with the opinion and judgment of the Court of Appeals for the Third District of Texas." In its judgment, the trial court also found that this Court "declined the District's claims under Texas Utilities Code § 15.003 for attorneys and expert witnesses and other costs for the party's efforts before the Commission and the court."
The District thereafter filed a motion for new trial and to set attorney's fees and award attorney's fees, expert witness fees, and other costs with supporting affidavits. The motion was overruled by operation of law, and this appeal followed.
ANALYSIS
The District raises two issues on appeal. The District argues that (i) the trial court abused its discretion in failing to consider the issue of fees for attorneys and expert witnesses and in rendering judgment denying those fees without giving the District the opportunity to present evidence on the issue and (ii) the trial court erred in finding that this Court "declined the District's 'claims' under Texas Utilities Code § 15.003 in the previous appeal." The District asks this Court to reverse the portion of the judgment denying its claims for section 15.003 fees and to remand the case to the trial court with instructions that the trial court conduct a hearing to determine the amount of section 15.003 fees that should be awarded to the District.
The Commission counters with several independent grounds to support the trial court's denial of the District's motion to sever and abate the claims for section 15.003 fees and its remand to the Commission without conducting an evidentiary hearing on the fees issue. Because they are dispositive, we limit our analysis to the Commission's arguments concerning the previous appeal and this Court's mandate from that appeal. See Tex. R. App. P. 47.1. The Commission argues that the District waived its request for section 15.003 fees by failing to preserve the issue in the previous appeal and that this Court's mandate from that appeal did not require the trial court on remand to conduct an evidentiary hearing or otherwise consider the Commission's claims for section 15.003 fees.
The Commission's arguments include: (i) the District did not request a hearing on its fees claims until after the final judgment was signed and, thus, the request was not timely; (ii) this Court declined the District's request for fees; and (iii) the plain language of section 15.003 of the Texas Utilities Code does not authorize fees in this case. See Tex. Util. Code § 15.003.
The Commission also urges that, even if the District did not waive its claims for section 15.003 fees in the previous appeal, the legislature has not created or funded the "regulation fund" referenced in section 15.003 and that, even if such a fund existed, the District's fees claims do not fit within the terms of section 15.003. The Commission focuses on the basis of the District's overbilling allegations—the Prompt Payment Act—and not that AT&T's "rates" were "excessive." See Harris Cty. Hosp. Dist. v. Public Util. Comm'n, No. 03-10-00647-CV, 2012 Tex. App. LEXIS 5707, at *1 (Tex. App.—Austin July 13, 2012, no pet.) (mem. op.); see also Tex. Util. Code § 15.003(a) (requiring allegation that rates are "excessive"); see also id. § 11.003(16) (defining "rate"). --------
"A mandate issued by the appellate court is a formal command requiring the lower court to comply with the appellate court's judgment." Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex. App.—Dallas 2011, no pet.) (citing Texas Parks & Wildlife Dep't v. Dearing, 240 S.W.3d 330, 347 (Tex. App.—Austin 2007, pet. denied)); see Tex. R. App. P. 51.1 (addressing mandates); Beyer v. Beyer, No. 03-14-00178-CV, 2015 Tex. App. LEXIS 10815, at *5-6 (Tex. App.—Austin Oct. 22, 2015, pet. denied) (mem. op.) (discussing trial court's duties upon receipt of mandate). On remand, a "trial court has no authority to take any action that is inconsistent with or beyond the scope of that which is necessary to give full effect to the appellate court's judgment and mandate." Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013); see Cessna, 345 S.W.3d at 144 (noting that "scope of mandate is determined with reference to both the appellate court's opinion and the mandate itself"); Texacally Joint Venture v. King, 719 S.W.2d 652, 653 (Tex. App.—Austin 1986, writ ref'd n.r.e.) (noting that, when case is remanded to trial court with instructions, "authority of the trial court is limited to trying only those issues specified in the mandate").
On appeal, the District does not argue that this Court should have awarded it section 15.003 fees in the previous appeal or otherwise challenge the judgment, opinion, or mandate in that appeal. See Beyer, 2015 Tex. App. LEXIS 10815, at *6 (noting that trial court correctly identified that any further challenge to or appeal of issue in prior appeal was barred by res judicata). The District's position is that this Court properly did not consider the issue of section 15.003 fees in the previous appeal because we lacked jurisdiction to do so and that the issue was a matter for the trial court to address in the first issue on remand. See International Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 349 (Tex. 1971) (noting that "it has been decided in Texas that the award of any attorney fee is a fact issue which must be passed upon by the trial court" and that "court of civil appeals may not initiate an award, since this would be the exercise of original rather than appellate jurisdiction"). According to the District, this Court's reversal of the trial court's judgment in the previous appeal "necessarily made the claim for attorney's fees and expert witness fees live again" and that, because our mandate ordered the trial court to certify and observe our decision, we "necessarily ordered the trial court to consider the now live claim for attorney's fees and expert witness fees."
In the previous appeal, however, the District did not ask this Court to remand its claims for section 15.003 fees to the trial court for the trial court's determination but asked this Court to award the requested fees itself. See Jay Petroleum, L.L.C. v. EOG Res., Inc., 332 S.W.3d 534, 538 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (noting that "court cannot grant relief that a party fails to request"); Harris Cty. Children's Protective Servs. v. Olvera, 971 S.W.2d 172, 176 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (reversing trial court's award of attorney's fees on remand because, in previous appeal, party did not request and appellate court did not remand issue of attorney's fees to trial court for determination).
The District also did not include an issue addressing its request for section 15.003 fees in its briefing to this Court in the previous appeal or otherwise provide argument or authority to support remanding the fees issue to the trial court for its determination. See State v. Anderson Courier Serv., 222 S.W.3d 62, 66-67 (Tex. App.—Austin 2005, pet. denied) (describing how to preserve claim for attorney's fees on appeal such as requesting remand to trial court for determination of fees issue); see also Tex. R. App. P. 38.1 (addressing requisites of briefs); cf. EOG Res., 332 S.W.3d at 539 (holding that, in summary judgment context, appellee did not waive counterclaims because "appellate brief in the underlying appeal did request remand of the counterclaims"). Consistent with the District's requested relief in its briefing and our judgment and opinion in the previous appeal, this Court's mandate did not instruct the trial court to consider and determine the issue of section 15.003 fees on remand but instructed the trial court to remand the case to the Commission for further proceedings consistent with our opinion.
To support its position that its fees claim was "live again" after this Court's mandate in the previous appeal, the District relies on the opinion in EOG Resources. See 332 S.W.3d at 539-40. We do not find the procedural issues in that summary judgment case helpful to the District's position. In that case, the court concluded that its mandate reversing summary judgment on one of the party's counterclaims in the prior appeal "necessarily made those counterclaims live" and that the mandate's order to "certify and observe" the appellate court's decision "necessarily ordered the trial court to consider the now live claims." Id. Based on these conclusions and in the context of an appeal from a summary judgment, the court held that the party "did not waive its counterclaims by failing to assert an appellate challenge to [the court's] mandate." Id. The party also had requested in the prior appeal that the appellate court remand the counterclaims to the trial court. Id. at 539. In contrast, as previously stated, the District did not request that this Court remand the fees issue to the trial court for its determination but asked this Court to award those fees, and the dispositive issue here concerns a mandate with specific instructions to the trial court in the context of an administrative appeal. See Tex. Gov't Code § 2001.174 (addressing judicial review of administrative decisions); Cessna, 345 S.W.3d at 145 (limiting trial court to complying with "specific instructions" on remand).
The trial court's judgment—reversing the Commission's order and remanding the case to the Commission—is consistent and within the scope of our judgment and mandate. See Phillips, 407 S.W.3d at 234 (requiring trial court to act consistently and within scope of judgment and mandate on remand); Cessna, 345 S.W.3d at 144 ("On remand, the filing of the mandate with the trial court vests the trial court with limited jurisdiction, as defined by the parameters of the mandate, to decide the issues specified in the mandate."). Thus, we conclude that the trial court did not abuse its discretion in its judgment by remanding the District's claims to the Commission for further proceedings consistent with this Court's opinion and denying the District's motion to abate and sever its claims for fees under section 15.003. See Southwest Galvanizing, Inc. v. Eagle Fabricators, Inc., 447 S.W.3d 473, 478 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (noting that trial court has "no discretion but to enforce [mandate]; signing an order contrary to our mandate would be an abuse of discretion"); Olvera, 971 S.W.2d at 176 (applying "general rules of jurisdiction" to judgment on remand that "trial court had no further power to act in the case except for what we remanded to judge" and concluding trial court abused discretion by awarding attorney's fees on remand).
CONCLUSION
For these reasons, we overrule the District's issues and affirm the trial court's judgment.
/s/_________
Melissa Goodwin, Justice Before Justices Puryear, Goodwin, and Bourland Affirmed Filed: April 20, 2016