No. 03 -15- 00 386- CV

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

AT AUSTIN

HARRIS COUNTY HOSPITAL DISTRICT ,

Appellant

v. PUBLIC UTILITY COMMISSION OF TEXAS,

Appellee

Appealed from the 250th District Court of Travis County, Texas Trial Court Cause No. D-1- GN

- 09 -002116

APPELLANT’S BRIEF

VINCE RYAN Harris County Attorney
BRUCE S. POWERS Assistant County Attorney State Bar No. 16215500

1019 Congress, 15th Floor Houston, Texas 77002 (713) 274-5144 (telephone) (713) 755-8924 (facsimile) bruce.powers@cao.hctx.net
ATTORNEY FOR APPELLANT

ORAL ARGUMENT REQUESTED ACCEPTED 03-15-00386-CV 6707167 THIRD COURT OF APPEALS

AUSTIN, TEXAS 8/28/2015 3:44:57 PM JEFFREY D. KYLE

CLERKii IDENTI TY OF PARTIES AND COUNSEL The names of all parties and counsel to this appeal are:

Plaintiff /Appellant: Counsel for Plaintiff /Appellant: Harris County Hospital District Bruce S. Powers Assistant County Attorney Randall Raymond Smidt Assistant County Attorney 1019 Congress, 15th Floor Houston, Texas 77002

Trial Counsel for Plaintiff /Appellant : Thomas R. Bray 1431 Wirt Road, Suite 140 Houston, Texas 770 55 Edward J. Hennessy 2900 Weslayan , Suite 550 Houston, Texas 77027

Defendant

/Appellee: Counsel for Defendant /Appellee: Public Utility Commission of Texas Elizabeth R. B. Sterling Assistant Attorney General Environmental Protection Division Office of the Attorney General P.O. Box 12548, MC

- 066 Austin, Texas 78711

- 2548iii TABLE OF CONTENTS

ID ENTITY OF PARTIES AND COUNSEL

................................ ........................... ii

INDEX OF AUTHORITIES

................................ ................................ ..................... iv

STATEMENT OF THE CASE

................................ ................................ .................. 1

ISSUES PRESENTED

................................ ................................ ............................... 2

STATEMENT OF FACTS

................................ ................................ ........................ 3

SUMMARY OF THE ARGUMENT

................................ ................................ ........ 5

ARGUMENT

................................ ................................ ................................ ............. 7

ISSUE NO. 1

................................ ................................ ................................ .............. 7

WHETHER THE TRIAL CO URT ABUSED ITS DISCRETIO N IN FAILING TO CONSIDER THE ISSUE O F FEES FOR THE HOSPITAL DISTRICT’S ATTORNEYS AND EXPERT WITNESS AND IN RENDERING JUDGMENT D ENYING SUCH FEE S WITHOUT GIVING THE DISTRICT THE OPP ORTUNITY TO PRESENT EVIDENCE ON THE ISSUE

. ISSUE NO. 2

................................ ................................ ................................ .............. 7

WHETHER THE TRIAL COURT ERRED IN FINDING THAT THIS COURT DECLINED THE D ISTRICT’S “CLAIMS” U NDER TEXAS UTILITIES CODE § 15. 003 IN THE PREVIOUS APPEAL

.
PRAYER

................................ ................................ ................................ .................. 12

CERTIFICATE OF COMPLIANCE

................................ ................................ ....... 13

CERTIFICATE OF SERVICE

................................ ................................ ................ 14

APPENDIXiv INDEX OF AUTHORITIES

CASES page Chessher v. Southwestern Bell Telephone Co ., 658 S.W.2d 563 (Tex. 1983)(per curiam)

................................ ................................ 12 Harris County Hosp. Dist. v. Public Utility Com’n of Texas , No. 03

- 10

- 00647

- CV, 2012 WL 2989228, at *8 (Tex. App.―Austin July 13, 2012, no pet.)(mem. op.)

................................ ................................ .. 1 , 3, 4, 9
International Security Life Ins. Co. v. Spray , 468 S.W.2d 347 (Tex. 1971)

................................ ................................ ...................... 9
Jay Petroleum, L.L.C. v. EOG Resources, Inc. , 332 S.W.3d 534 (Tex. App.―Houston [1st Dist.] 2009, pet. denied)

.............. 10, 11
Southwest Galvanizing, Inc. v. Eagle Fabricators, Inc. , 447 S.W.3d 473 (Tex. App.―Houston [14th Dist.] 2014, no pet.)

......................... 11
Texas Education Agency v. Maxwell , 937 S.W.2d 621 (Tex. App.―Eastland 1997, writ denied)

................................ . 9 , 10

STATUTES

Tex. Gov’t Code Ann. § 311.016(2)

................................ ................................ .......... 8

Tex. Util. Code A nn. § 11.003(16)

................................ ................................ ........... 8
Tex. Util. Code Ann. § 11.008

................................ ................................ ................... 8
Tex. Util. Code Ann. §15.003(a)

................................ ................................ ........... 7, 8
Tex. Util. Code Ann. §15.003(b)

................................ ................................ ........... 8, 9

RULES

Tex. R. App. P. 38.1(g)

................................ ................................ .............................. 31 No. 03

- 1 5

- 00 386

- CV

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

AT AUSTIN

HARRIS COUNTY HOSPIT AL DISTRICT ,

Appellant

v. PUBLIC UTILITY COMMI SSION OF TEXAS ,

Appellee

Appealed from the 250th District Court of Travis County, Texas Trial Court Cause No. D

- 1

- GN

- 09

- 002116

APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

This is a suit for judicial review of a final order of the Public Utility

Commission of Texas. ( CR 3 )

. In a previous appeal this Court reversed a trial

court order affirming the Commission’s order and remanded with instructions that
the case be remanded to the Commission for further proceedings consistent with this Court’s opinion. Harris County Hosp. Dist. v. Public Utility Com’n of Texas ,
No. 03

- 10

- 00647

- CV, 2012 WL 298922 8, at *8 (Tex. App.―Austin July 13, 2012,2

no pet.) (mem. op.). ( CR 71 )

. On remand the trial court signed a final judgment

which reversed the Commission’s order and remanded the case to the Commission for further proceedings consistent with this Court’s op inion. (CR 148). The Commission was ordered to pay all costs relating to the appeal and all relief not specifically granted was denied. ( CR 14 9 )

. The Hospital District’s Motion for

New Trial , which included a Motion to Set Attorney’s Fees and Award At torney’s Fees, Expert Witness Fees and other Costs , was denied by operation of law after the trial court declined the District’s request for an oral hearing

. ( CR 151 , 225 )

. The Hospital District then perfected this appeal. ( CR 292 )

. ISSUES PRESENTED

ISSU E NO. 1

WHETHER THE TRIAL CO URT ABUSED ITS DISCR ETION IN

FAILING TO CONSIDER THE ISSUE OF FEES FO R THE HOSPITAL

DISTRICT’S ATTORNEYS AND EXPERT WITNESS AND IN RENDE RING

JUDGMENT DENYING SUC H FEE S WITHOUT GIVING THE D ISTRICT

THE OPPORTUNITY TO P RESENT EVIDENCE ON T HE ISSUE.

ISSUE NO. 2

WHETHER THE TRIAL CO URT ERRED IN FINDING THAT THIS

COURT DECLINED THE D ISTRICT’S “CLAIMS” U NDER TEXAS
UTILITIES CODE § 15. 003 IN THE PREVIOUS APPEAL

.3 STATEMENT OF FACTS

I n the instant case the “facts pertinent to the issues or points presented ” all relate to the procedural history of the case. Tex. R. App. P. 38.1(g). Those facts

are these. The Harris County Hospital District prevailed in the previous appeal of this proceeding for review. T his Court’s mandate in th at appeal contain ed the
following language:

THIS CAUSE came on to be heard on the record of the court below, and the same being considered, because it is the opinion of this Court that there was error in the trial court’s judgment: IT IS THEREFORE considered , adjudged and ordered that the judgment of the tria l 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 th is appeal , both in this Court and the court below; and that this decision be certified below for observance. 1

Wherefore , we command you to observe the order of our Court of Appeals in this behalf and in all things have the order duly recognize d , obey ed , and executed.
( CR 87 ) . Th e Court’s opinion concluded with the following:

For these reasons, we conclude that the Commission’s finding that “it was appropriate to limit the amount that AT&T should refund to the amount of overcharges over the last s ix and one

- half years, plus interest” and its corollary decision to order a partial refund to be arbitrary and capricious. See i d

. ; Starr Cnty ., 584 S.W.2d at 356. We also conclude that the Commission’s arbitrary limitation on the recovery period prejudice d substantial rights of the District. See Tex. Gov’t Code Ann. § 2001.174(2). We sustain the District’s second and third issues on this bas i s and need not

1 The Court’s judgment was identically worded. (CR 70).4

address the District’ s remaining arguments and issues. 6 See Tex. R. App. P. 47.1.

CONCLUS ION

Because we conclude that the Commission’s order was arbitrary and capricious and prejudiced substantial rights of the District, we reverse the order of the trial court and remand with instructions that the case be remanded to the Commission for further proceedings consistent with this opinion.

_____________________________ 6 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 Tex. Gov’t Code Ann. § 2001.174(2)(West 200 8 ); Tex. Util. C ode Ann. § 15.003 (West 2007); Ford Motor Co . v. Butnaru , 157 S.W.3d 142, 149 (Tex. App.―Austin 2005, no pet.)(“In a suit for judicia l review of an agency action, the reviewing court is empowered to issue only a general remand when it finds error that pre judices an appellant’s substantial rights.”).
( CR 84

- 85 )

. On remand the Hospital District filed its Motion for Order Remanding Overbilling Claims to the Public Utility Commission of Texas and its Motion to Sever Claims for Attorney and Expert Fees and Costs, and to Abate the Severed

Claims. ( CR 90, 114 ) . The trial court considered the two motions at a nonevidentiary hearing on January 22, 2015. On March 27, 2015, the trial court signed the Final Judgment sub judice, wh ich contain s the following find ing :5

The Court finds that , although the Court of Appeals reversed this Court’s judgm ent affirming the Commission’s o rder, the Court of Appeals declined the District’s claims under Texas Utili ties Code § 15.003 for attorney s and expert witnesses and other costs for the party’s efforts before the Commission and the court. Therefore, the Court denies the District’s request to sever that claim into a different lawsuit.

( CR 149. ) The trial court denied all relief which was not specifically granted in

the judgment. (CR 149). As a result, the District’s claim for attorney’s fees and
expert witness fees was denied.

SUMMARY OF THE ARGUMENT Section 15.003 of the Texas Utilities Code provides that a party represented by counsel who alleges that existing rates are excessive or that rates prescribed by the Commission are excessive and who prevails in a proceeding for review is

entitled to recove r 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. In this proceeding for review the Hospital District alleged that the “rate”
that was charged by A T&T during a thirteen year period was unjust and unreasonable and therefore improper and prohibited. The District further alleged that it is entitled to a refund of the “overbillings” for the entire period of the “overcharges” . Therefore, when the Distri ct prevailed in the previous appeal of this case, it became “entitled” to recover reasonable fees for attorneys and expert6

witnesses and other costs. The trial court denied such relief when it signed the final judgment in this ca u se

. When this case was remanded to the trial court following the previous appeal, the Commission argued that any Section 15.003 claim was extinguished in the appeal. It based this contention on footnote 6 of this Court’s opinion.
However, i n footnote 6 the Court did not decli ne the District’s “claims” under Texas Utilities Code §15.003. The Court simply declined to award expert’s fees and attorney’s fees to the extent that the District sought to have the C ourt, itself, do so. The issue of fees was simply a matter for the tria l court to address in the first

instance. In f

ailing to consider the issue of fees for the District’s attorneys and
expert witness and in rendering judgment denying such fees without giving the District the opportunity to present evidence on the issue, th e trial court clearly

abused its discretion. The Hospital District submits that the Commission’s contention that nothing in this Court’s opinion, judgment, or mandate allowed the trial court to consider

the District’s Section 15.003 claim is based on a m isinterpretation of the Court’s
rulings . 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.
Further, the mandate ordered the trial court to certify and observe this Court’s
decision, which necessarily ordered the trial court to consider the now live claim7

for attorney’s fees and expert witness fees. The trial court’s failure to do so was
contrary to the mandate and was an abuse of discretion.

ARGUME NT
ISSUE NO. 1 (RESTATED)

WHETHER THE TRIAL CO URT ABUSED ITS DISCR ETION IN

FAILING TO CONSIDER THE ISSUE OF FEES FO R THE HOSPITAL

DISTRICT’S ATTORNEYS AND EXPERT WITNESS AND IN RENDE RING

JUDGMENT DENYING SUC H FEE S WITHOUT GIVING THE D ISTRICT

THE OPPORTUNITY TO P RESENT EVIDENCE ON T HE ISSUE.

ISSUE NO. 2 (RESTATED)

WHETHER THE TRIAL CO URT ERRED IN FINDING THAT THIS

COURT DECLINED THE D ISTRICT’S “CLAIMS” U NDER TEXAS
UTILITIES CODE § 15. 003 IN THE PREVIOUS APPEAL

. ARG UMENT AND AUTHORITIES UNDER IS SUES NO. 1 AND 2

S ection 15.003 of the Texas Utilities Code provides that a party represented by counsel who alleges that existing rates are excessive or that rates prescribed by the Commission are excessive and who prevails in a proceeding for review is entitled 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. Tex. Util. Code Ann. §15.003(a). As used in Sec tion 15.003 the term8

“rate” includes “any compensation, tariff, charge, fare, toll, rental, or classification
that is directly or indirectly demanded, observed, charged, or collected by a public utility for a service.” Tex. Util. Code Ann. § 11.0 03(16). Section 11.008 of the

C ode provides that T i t le 2 , of which Section 15.003 is a part , “shall be construed liberally.” Tex. Util. Code Ann. § 11.008. In this proceeding for review the Hospital District alleged that the “rate” that
was charged by AT& T during a thirteen year period was unjust and unreasonable

and therefore im

proper and prohibited. The District further alleged that it is

entitled to a refund of the “ overbillings ” for the entire period of the “overcharge s ”.
(CR 10). Therefore, when th e District prevailed in the previous appeal of this case, it became “entitled” to recover reasonable fees for attorneys and expert witnesses
and other costs. Tex. Util. Code Ann. § 15.003(a). The statute provides that in

that circumstance the court “shal l” set the amount of attorney’s fees awarded. Tex.
Util. Code Ann. §15.003(b). 2 Nevertheless, the trial court denied such relief when it signed the F inal J udgment in this cause. (CR 148, 149)

. When this case was remanded to the trial court following th e previous appeal, the Commission argued that “ [ a ] ny Section 15.003 claim was extinguished in the appeal. ” It based this contention on footnote 6 of th is Court’s opinion. (CR 124). The Commission further argued that nothing in this Court’s opinion,

2 The Legislature’s use of the word “ shall ” in the C ode “imposes a duty.” Tex. Gov’t Code Ann. § 311.016(2).9

judg ment or mandate allowed the trial co urt to consider the District’s S ection

15.003 claim. (CR 124). The trial court apparently accepted th ese argument s since it expressly found that this Court “declined the District’s claims under Texas

Utilities Code § 15 .003 for attorneys and expert witnesses and other costs.” (CR 149). However, that was a misinterpretation of footnote 6 of this Court’s opinion.

In footnote 6 the Court did not decline the District’s “claims” under Texas
Utilities Code § 15.003. The Court simply declined to award expert ’s fees and attorney’s fees “to the extent that” the District sought to have the C ourt , itself, do so. Certainly , the C ourt could not initiate such an award, “since this would be the
exercise of original rather than a ppellate jurisdiction.” International Security Life
Ins. Co. v. Spray , 468 S.W.2d 347, 349 (Tex. 1971). Declining to exercise a jurisdiction which the C ourt did not have did not constitute a ruling on the merits
of the District’s claim. Moreover, since the C ourt had just determined that the District should prevail in the proceeding for review , the C ourt would have had no reason to deny the District’s ent itlement to recover fees under Section 15.003. The issue of fees was simply a matter for the trial court to address in the first instanc e. Tex. Util. Code Ann. §15.003(b). In failing to consider the issue of fees for the District’s attorneys and expert witness and in rendering judgment denying such fees without giving the District the opportunity to present evidence on the issue, the trial court clearly abused its discretion. Compare Texas Education Agency v.10

Maxwell , 937 S.W.2d 621, 623 (Tex. App.―East land 1997, writ denied)(“ W e hold that the trial court abused its discretion in failing to consider the issue of attorney’s fees and in rendering judgment denying attorney’s fees without giving plaintiffs
the opportunity to present evidence on the issue

. ” )( case brought under 42 U.S.C. §
1983). The Hospital District submits that the Commission’s contention that nothing in this Court’s opinion, judgment, or mandate allowed the trial co urt to consider

the District’s S ection 15.003 claim is also based on a mi sinterpretation of the Court’s rulings

. In that regard, this case is similar to the procedural circumstances

described in Jay Petroleum, L

. L

. C

. v. EOG Resources, Inc. , 332 S.W.3d 534 (Tex. App.―Houston [1st Dist.] 2009, pet. denied). In a prior appeal of that case the

c ourt of a ppeals had reversed the judgment of the trial court, stating, “ T he trial court erred by granting Jay’s motion for final summary judgment on its breach of

contract and conversion claims, and by denying EOG’s motion for partial summa ry judgment.” Id . at 537 . The court’s mandate stated the following:

“ The cause heard today by the Court is an appeal from the judgment signed by the court below on February 17, 2003. After submitting the cause and inspecting the record of the court belo w, it is the opinion of this Court that there was reversible error in the judgment. It is therefore CONSIDERED, ADJUDGED, and ORDERED that the judgment of the court below be in all things reversed and that judgment be rendered that the partial summary judgment of appellant, EOG RESOURCES, INC

. , be granted and that the motion for final summary judgment by appellee, JAY PETROLEUM , L

. L

. C

. , be11

denied, and that appellee, JAY PETROLEUM , L

. L

. C

. , take nothing on its claims against appellant, EOG RESOURCES, INC

. It is further ORDERED that the appellee , JAY PETROLEUM, L

. L

. C

. , pay all costs incurred by reason of this appeal.

It is further ORDERED that this decision be certified below for observance. ”

Id. On remand the trial court granted EOG’s motion for summary judgment and awarded EOG its attorney’s fees. On the second appeal Jay Petroleum contended

that the mandate did not remand the case to the trial court. However, the court of

a ppeals said the foll owing:

“ The mandate plainly reversed the summary judgment on the counter

claims, which necessarily made those counterclaims live. Moreover, the mandate order ed the trial court to certify and observe our decision, which necessarily ordered the trial court to consider the now live claims. ”

Id. at 540. The court therefore overruled Jay Petroleum’s issues concerning
waiver, res judicata and lack of jurisdiction. Id . at 540

- 542. Similarly, in the instan t case, 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 . Further, the mandate ordered the trial court to certify and observe this Court’s decision, which necessarily ordered the trial court to consider the now live claim for attorney’s fees and expert witness fees. Id

. The trial court’s failure to do so was contrary to the mandate and was an abuse of

discretion. Southwest Galvanizing, Inc. v. Eagle Fabricators, Inc. , 447 S.W.3d12

473, 478 (Tex. App.―Houston [14 th Dist.] 2014, no pet.)(“After this court
directed its mandate to the trial court, the trial court had jurisdiction to enforce our
mandate. The trial court, however, had no discretion but to e nforce it; signing an order contrary to our mandate would be an abuse of discretion.”)(citation omitted)

. The trial court denied the District’s claim for attorney’s fees and expert witness

fees su a sponte . The Commission had filed no motion seeking the dismissal of the claim. The trial court clearly erred in proceeding to the rendition of a final judgment which summarily denied the requested relief in that circumstance.
Compare Chessher v. Southwestern Bell Telephone Co ., 658 S.W.2d 563, 564 (Tex. 1983)(per curiam)(“It is axiomatic that one may not be granted judgment as a

matter of law on a cause of action not addressed in a summary judgment proceeding.”).

PRAYER WHEREFORE, PREMISES CONSIDERED, Appella nt Harris County Hospital District respectfully prays that the portion of the trial court’s judgment which denied the District’s claim for attorney’s fees and expert witness fees be

rever s ed and remanded with instructions that the trial court conduct a hea ring to

determine the amount of reasonable attorney’s fees and expert witness fees which

should be awarded to the District

.13 Respectfully submitted,

VINCE RYAN Harris County Attorney

/s/ Bruce S. Powers Bruce S. Powers Assistant Count y Attorney State Bar No. 16215500 1019 Congress, 15th Floor Houston, Texas 77002 (713) 274

- 5144 (telephone) (713) 755

- 8924 (facsimile) bruce.powers@cao.hctx.net

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this document complies with the

word

- count limitations of Tex. R. App. P. 9.4. Relying on the word count of the computer program used to pre pare this document, it contains 2,74 0 words.

/s/ Bruce S. Powers Bruce S. Powers Assistant Harris County Attorney14 CERTIFICATE OF SERVICE I hereby certify that on this the 28th day of August, 2015, a true and correct copy of the foregoing APPELLANT’S BRIEF was served electronically upon Defendant Public Utility Commission of Texas’ counsel, Elizabeth R. B. Sterling,
Assistant Attorney General, Environmental Protection Division, Office of the
Attorney General, P.O. Box 12548, MC

- 066, Austin, Texas 78711

- 2548.

/s/ Bruce S. Powers Bruce S. Powers Assistant County AttorneyAPPENDIXTable of Contents

Tab No. Description

1 Final Judgment

2 Tex. Util. Code Ann. §15.003Tab 1 Final JudgmentTab 2 Tex. Util. Code Ann. §15.003§ 15.003. Costs and Attorney's Fees, TX UTIL § 15.003

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Vernon's Texas Statutes and Codes Annotated Utilities Code (Refs & Annos) Title 2. Public Utility Regulatory Act Subtitle A. Provisions Applicable to All Utilities Chapter 15. Judicial Review, Enforcement, and Penalties (Refs & Annos) Subchapter A. Judicial Review

V.T.C.A., Utilities Code § 15.003 § 15.003. Costs and Attorney's Fees

Currentness

(a) A party represented by counsel who alleges that existing rates are excessive or that rates prescribed by the commission are excessive and who prevails in a proceeding for review of a commission order or decision is 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.

(b) The court shall set the amount of attorney's fees awarded under Subsection (a).

(c) If a court finds that an action under Section 15.001 or this section was groundless and brought in bad faith and for the purpose of harassment, the court may award reasonable attorney's fees to the defendant public utility.

Credits Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997

.

V. T. C. A., Utilities Code § 15.003, TX UTIL § 15.003 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.