### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00578-CV

Health Enrichment and Longevity Institute, Inc. d/b/a Brazos Oaks Personal

Care Center; and Linda S. Milam, Appellants

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. GV300269, HONORABLE PAUL DAVIS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellants Hea lth Enrichment and Longevity Institute, Inc. d/b/a Brazos Oaks

Personal Care Center (“Brazos Oaks”) and L inda S. Milam appeal from a judgment after a bench

trial assessing civil penalties against them, awarding attorney’s fees to appellee the State of Texas,

and issuing a permanent injunction p rohibiting them from engaging in certain conduct. In nine

issues, appellants contend that the district court erred in (i) allowing the Attorney General’s office

to bring this action against them; (ii) depriving them of their constitutional right to a jury trial; (iii)

requiring this case to be tried in Travis County instead of Brazos County; (iv) limiting them to one

hour to present their case at trial; (v) rendering judgment against Linda Milam individually; (vi)

issuing a permanent injunction against them; (vii) assessing a civil penalty against them; and (viii)1 Because the pertinent provisions of the administrative code have not changed since the

subject of this suit arose, for convenience we will refer to the current code provisions.

2 awarding attorney’s fees to the State. Because we do not find reversible error in any of these rulings,

we affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Brazos Oaks is an assisted living facility in Bryan, Texas, that has been licensed by

the Texas Department of Human Services (“DHS”) since 1994. Dr. Linda S. Milam is its president

and sole owner. With Brazos Oaks’s annual license due to expire on November 2, 2002, at some

point in October 2002 appellants mailed a license renewal application and check to a DHS office in

Austin. The return receipt card showed that the DHS office received the application on November

4, 2002. A DHS representative testified at trial that for an application to be timely, it must be

received by DHS forty-five days before the license expires. 40 Tex. Admin. Code § 92.15(b)

(2004). 1 She further testified that an application will also be timely if the DHS Long-Term CareRegulatory Facility Enrollment Section, which issues license renewals, receives the application,

postmarked by the filing deadline, within fifteen days of the postmark. Id. § 92.15(c) (2004). That

office did not receive the application, which, in any event, was incomplete, until November 25, 2002.

DHS treated the submission as a new application instead of a renewal because it was incomplete and

untimely.

On December 10, 2002, DHS requested that the Attorney General file suit against

appellants for operating an unlicensed assisted living facility. The State filed suit, including a

request for a temporary injunction, against appellants on January 31, 2003. Appellants filed a motion2 Counsel for appellants s tated in argument at trial that in the course of investigating

embezzlement by one of her employees she discovered a jury fee had not been paid.

3 In re Health Enrichment & Longevity Inst., Inc. d/b/a Brazos Oaks Personal Care Ctr.

, No. 03-03- 00317-CV (Tex. App.—Austin Jun. 11, 2003, orig. proceeding) (not designated for

publication).

3 to transfer venue to Brazos County, where Brazos Oaks is located, and, subject to th e motion to

transfer venue, also filed an original answer and jury demand. In March, the State set a hearing on

its request for a temporary injunction for April 24. The State then canceled the hearing after DHS

issued a license to Brazos Oaks on April 17 . In late April, counsel for the State called the court

coordinator to determine whether appellants had paid a jury fee. Upon learning that no jury fee had

been paid, the State requested that the case be set for a three-hour, non-jury trial on June 12.

At some point thereafter, counsel for appellants discovered that a jury fee had not

been paid 2 and paid the fee on May 16. Appellants then filed a motion to strike the non-jury trial

setting, which the district court overruled at the June 5 hearing on the motion. The next day,

appellants filed in this Court a petition for writ of mandamus against the district court, which was

denied on Ju ne 11. 3 On June 12, the day of trial, appellants moved for a continuance and for the

Attorney General to show authority for bringing the suit. Counsel for appellants also stated that she

did not believe that the case could be tried in three hours. The district court denied appellants’

motions.

The case proce eded to trial that day with each side allotted one hour to present its

evidence and arguments. At the end of trial, the district court found that Brazos Oaks had operated

withou t a license. The court i ssued a permanent injunction, assessed $20,000 in civil penalties

against appellants, and awarded $20,000 in attorney’s fees to the State, with an additional sliding4

scale of fees for appeals to this Court and the supreme court. At appellants’ request, the district court

also issued findings of fact and conclusions of law. Appellants filed a motion for new trial and/or

remittitur, which was overruled by operation of law.

ANALYSIS

Authority of the Attorney General

In their first issue, appellants urge that the district court erred in denying their motion

that the Attorney General show authority for bringing suit. Appellants filed this motion pursuant to

rule 12 of the Texas Rules of Civil Procedure. Under rule 12, the “notice of the motion shall be

served upon the challenged attorney at least ten days before the hearing on the motion.” Tex. R. Civ.

P. 12. Appellants served the motion upon counsel for the Attorney General on the day of trial.

A district court may “in its discretion” allow an act to be done after expiration of time

“where good cause is shown for the fail ure to act.” Tex. R. Civ. P. 5. When reviewing matters

comm itted to the trial court’s discretion, we may not substitute our judgment for that of the trial

court. Bowie Mem’l Hosp. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002). We may reverse a trial court

under this standard only when we find that “the court acted in an unreasonable or arbitrary manner,”

Beaumont Bank, N.A. v. Buller

, 806 S.W.2d 223, 226 (Tex. 1991), or “without regard for any guiding

rul es or principles.” O wens Corning Fiberglas Corp. v. Malone

, 972 S.W.2d 35, 43 (Tex. 1998)

(quoting City of Brownsville v. Alvarado

, 897 S.W.2d 750, 754 (Tex. 1995)). The trial court does

not abuse its discretion if some evidence reasonably supports its decision. B utnaru v. Ford Motor

Co. , 84 S.W.3d 198, 211 (Tex. 2002) (citing Davis v. Huey , 571 S.W.2d 859, 862 (Tex. 1978)).5 The district court asked appellants’ counsel if there was some reason why the motion

was not filed before docket call the previous week, as required by the local rules. S ee Travis County

(Tex.) Civ. Dist. Ct. Loc. R. 4.1 (“Except for motions in limine and motions for continuance based

on new circumstances, all except ions and all pre-trial motions and pleas in every case shall be

presented and heard before the announcement docket begins.”). Appellants’ counsel explained that

she had filed the motion to strike the non-jury setting the week before and that she did not want to

go forwar d with the rule 12 motion, which requested affirmative relief, because in doing so

appellants would waive their venue argument. The district court found that appellants had no good

cause for having waited until the day of trial to file the motion and denied the motion. Because some

evidence reasonably supports the trial court’s decision, we do not find that the trial court abused its

discretion in denying appellan ts’ motion that the Attorney General show authority to bring suit.

Accordingly, we overrule appellants’ first issue.

Right to a Jury Trial

In their second issue, appellants assert that the district court, in denying their motion

to strike the non-jury trial setting, deprived them of their constitutionally protected right to a jury

trial. S ee Tex. Const. art. I, § 15. T o invoke the right to a trial by jury in a civil case, a party must

first comply with the requirements of Texas Rule of Civil Procedure 216. Tex. R. Civ. P. 216. R ule

216(a) provides: “No jury trial shall be had in any civil suit unless a written request for a jury trial

is filed with the clerk of the court a reasonable time before the date set for trial of the cause on the

non-jury docket, but not less than thirty days in advance.” Tex. R. Civ. P. 216(a). The fee also must

be paid within the same thirty-day deadl ine. Tex. R. Civ. P. 216(b). In the absence of a timely4 Although the Texas Lawyer’s Creed states, “I will not arbitrarily schedule a deposition,

Court appearance, or hearing until a good faith effort has been made to schedule it by agreement,”

Texas Lawyer’s Creed—A Mandate for Professionalism, III(5), it is undisputed that counsel for the

State did not confer with counsel for appellants before setting the case for trial.

6 request or payment of the fee, it is within the trial court’s discretion to deny a jury trial. Martin v.

Black , 909 S.W.2d 192, 197 (Tex. App.—Houston [14th Dist.] 1995, writ denied) (citing Huddle

v. Huddle , 696 S.W.2d 895, 895 (Tex. 1985) (op. on reh’g)).

Appellants rely on General Motors Corp. v. Gayle

, which stated that “[e]ven where

a party does not timely pay the jury fee, courts have held that a trial court should accord the right to

jury trial if it can be done without interfering with the court’s docket, delaying the trial, or injuring

the opposing party.” 951 S.W.2d 469, 476 (Tex. 1997) (orig. proceeding). In G ayle

, General Motors

filed a motion for continuance after discovering that the jury fee had not been paid. I d. at 471. The

trial court denied the motion although conceding that the case was not ready for trial and having “no

expectation of reaching the heart of the case for some weeks or months.” I d. at 477. Because of the

“particular and unusual circumstances,” the suprem e court held that the trial court had abused its

discretion. Id.

Here, appellants included a jury demand in their original answer , which they filed

more than thirty days before trial. Counsel for appellants also presumed that the jury fee was paid

at the same ti me. In late April, counsel for the State called the court coordinator’s office to

determine whet her the jury fee had been paid. Upon discovering that the fee had not been paid,

counsel for the State set the case for a non-jury trial on June 12. 4 On May 16, twenty-seven days

before the trial, counsel for appellants paid the jury fee. Appellants did not pay the jury fee within7

the thirty-day deadline prescribed by rule 216. Appellants then filed a motion to strike the non-jury

trial setting.

The court noted on the docket sheet for the motion to strike hearing that a record was

waived. In the absence of a reporter’s record, “we indulge every presumption in favor of the trial

court’s findings.” B ryant v. United Shortline, Inc. Assurance Servs., N.A.

, 972 S.W.2d 26, 31 (Tex.

1998). On the facts before us, we conclude that the district court did not abuse its discretion in

denying appellants’ motion to strike the non-jury trial setting. Accordingly, we overrule appellants’

second issue.

Venue

In their third issue, appellants contend that the district court erred in requiring the case

to be tried in Travis County. When the State seeks injunctive relief concerning a licensing violation,

venue is proper in the county of the assisted living facility or in Travis County. Tex. Health & Safety

Code Ann. § 247.044(e) (West 2001). Appellants requested a transfer of venue to Brazos County

under section 15.002(b) of the civil practice and remedies code, which grants a court discretion to

transfer venue from one proper county to another proper county for the convenience of the parties.

Tex. Civ. Prac. & Rem. Code Ann. § 15.002(b) (West 2002). In its conclusions of law, the district

court held that venue was proper in Travis County. A court retains discretion in deciding whether

to transfer from one permissive venue to another, id.

, and its decision to deny a transfer under section

15.002(b) is not grounds for appeal or reversible error. I d. § 15.002(c) (West 2002). Based on the

record befor e us, we cannot say that the district court abused its discretion in denying appellants’

motion to transfer venue. Accordingly, we overrule appellants’ third issue.8

Time Limits at Trial

In their fourth issue, appellants urge that the district court violated their procedural

and substantive due process rights by limiting them to one hour to present their case. The trial court

has “inherent power” to control the disposition of the cases on its docket “with economy of time and

effo rt for itself, for counsel, and for litigants.” M etzger v. Sebek

, 892 S.W.2d 20, 38 (Tex.

App.—Houston [1st Dist.] 1994, writ denied) (quoting Landis v. North Am. Co.

, 299 U.S. 248, 254

(1936)).

Counsel for appellants stated at the beginning of trial, when presenting motions, that

she did not believe the case could be tried in three hours. The district court allotted each side one

hour to present its case. During appellants’ opening statement, the district court informed counsel

for appellants that she had used fifteen minutes of the hour. The State then presented its case, during

which appellants had an opportunity to cross-examine the State’s witnesses. Appellants presented

their case, then both sides presented closing arguments. Assuming that the effect of the time limit

was to exclude evidence, error may not be predicated on a ruling excluding evidence unless a party

makes known to the court the substance of the evidence by an offer of pro of. Tex. R. Evid.

103(a)(2). At no point in the trial did appellants make an offer of proof concerning evidence

excluded because of time constraints. We therefore have nothing to review. We overrule appellants’

fourth issue.

Issuance of Permanent Injunction

In their sixth issue, appellants contend that there is no evidence to support the district

court’s issuance of a permanent injunction prohibiting appellants from operating Brazos Oaks9

without a license, denying DHS agents acce s s to the facility, preventing transfers of residents if

required, and failing to care for residents if relocation is required. A party requesting injunctive

relief must show the existence of a wrongful act, imminent harm, irreparable injury, and the absence

of an adequate remedy at law. T exas Health Care Info. Council v. Seton Heal th Plan, Inc. , 94

S.W.3d 841, 853 (Tex. App.—Austin 2002, pet. denied). We review a trial court’s issuance of

in junctive relief for an abuse of discretion. Operation Rescue-Nat’l v. Planned Parenthood

, 975

S.W.2d 546, 560 (Tex. 1998).

Appellants argue that a permanent injunction is not warranted by the facts because

they never intended to operate without a license. However, “[w]here the facts conclusively show a

party is violating the substantive law it becomes the duty of the court to enjoin the violation and in

such case there is no discretion to be exercised.” P r iest v. Texas Animal Health Comm’n , 780

S.W.2d 874, 876 (Tex. App.—Dallas 1989, no writ). A district court, upon petition by DHS and a

finding that a person is violating the standards or licensing requirements under chapter 247 of the

health and safety code, may by injunction prohibit that person from continuing the violation, restrain

the operation of a n assisted living facility without a license, or grant any other injunctive relief

warranted by the facts. Tex. Health & Safety Code Ann. § 247.044(b) (West 2001). In its findings

of fact, the district court found that Brazos Oaks had operated without a license from November 3,

2002 through April 17, 2003. A person may not operate an assisted living facility without a license.

Id. § 247.021(a) (West 2001). Assisted living facilities must renew their licenses annually. 40 Tex.

Admin. Code § 92.15 (2004).

Appellants contend that the only requirement in chapter 247 of the health and safety

code for renewing a license is tha t the “license holder must submit to the department the annual10

license renewal fee.” Tex. Health & Safety Code Ann. § 247.023(b) (West 2001). However, it is

within the DHS’s authority to adopt rules necessary to implement the chapter, including

requirements for renewal of a license. I d. § 247.025 (West 2001). Accordingly, DHS has adopted

procedures for renewing the licenses of assisted living facilities. 40 Tex. Admin. Code § 92.15.

The evidence adduced at trial supports the finding that Brazos Oaks operated without

a license. A DHS representative testified, and appellants do not dispute, that Brazos Oaks’s license

expired November 2, 2002. A DHS office received appellants’ incomplete application on November

4, 2002, after expiration of the license. For an incomplete application to be timely, the party must

file the application with DHS, with an explanatory letter, forty-five days before the license expires.

Id. § 92.15(b)(2). An application will also be timely if the DHS Long-Term Care-Regulatory Facility

Enrollment Section, which issues lice nse renewals, receives the application, postmarked by the filing

deadline, within fif

teen days of the postmark. I d. § 92.15(c). The DHS representative further

testified that the appropriate office did not receive the application until November 25, 2002. She

also testified that DHS sent three letters to the owner of Brazos Oaks requesting documents needed

to complete the application.

Appellants do not dispute that they continued to operate Brazos Oaks between

November 2, 2002 and April 17, 2003, when DHS issued a ne w license to the facility. By

establishing that Brazos Oaks op erated without a license for more than five months, the State

demonstrated the existence of a wrongful act, imminent harm, irreparable injury, and absence of an

adequate remedy at law. S eton Health Plan

, 94 S.W.3d at 853. The further injunctions concerning

the residents and DHS agents’ access to the facility would be necessary to protect the safety of the11

residents. Accordingly, we cannot say that the district court abused its discretion in issuing the

permanent injunction. We overrule appellants’ sixth issue.

Assessment of Civil Penalties

In their seventh and eighth issues, appellants contend that the evidence is legally and

factually insufficient to support the district court’s assessment of $20,000 in civil penalties against

appellants for violation of licensure requirements. In this case, the district court issued findings of

fact and conclusions of law. We attach to findings of fact the same weight that we attach to a jury

verdict upon jury questions. C atalina v. Blasdel

, 881 S.W.2d 295, 297 (Tex. 1 994). We review

findings of fact for legal and factual sufficiency of the evidence by the same standards used to review

jury findings. W

estech Eng’g, Inc. v. Cle arwater Constructors, Inc. , 835 S.W.2d 190, 195 (Tex.

App.—Austin 1992 , no writ). We review challenges to conclusions of law d e novo as legal

questions, examining the legal conclusions drawn from the facts to determine their correctness. See

Circle C Child Dev. Ctr., Inc. v. Travis Cent. Appraisal Dist. , 981 S.W.2d 483, 485 (Tex.

App.—Austin 1998, no pet.). We will uphold the trial court’s conclusions if any legal theory

supported by the evidence can sustain the judgment. S ee Westech Eng’g

, 835 S.W.2d at 196;

Simpson v. Simpson , 727 S.W.2d 662, 664 (Tex. App.—Dallas 1987, no writ).

As discusse d above, the evidence adduced at trial demonstrates that Brazos Oaks

operated without a license from November 2, 2002 to April 17, 2003. If a person operates a facility

without a license, in violation of health and safety code section 247.021, the district court may assess

civil penalties of not less than $1,000 and not more than $10,000 for each violation. Tex. Health &5 Under the code construction act, which applies to the health and safety code, Tex. Health

& Safety Code Ann. § 1.001 (We st 2001), “person” includes a “corporation, organization,

government or gover nmental subdivision or agency, business trust, estate, trust, partnership,

association, and any other legal entity.” Tex. Gov’t Code Ann. § 311.005(2) (West 1998).

Therefore, “person” under section 247.045 of the health and safety code encompasses Brazos Oaks,

a corporation.

12 Safety Code Ann. § 247.045(a)-(c) (West 2001). 5 Each day of operating without a license constitutes

a separate violation. Id. § 247.045(c). Thus, it was well within the district court’s statutory authority

to impose $20,000 in civil penalties for operating without a license for more than five months.

Because the evidence is legally and factually sufficient to support the imposition of civil penalties,

we overrule appellants’ seventh and eighth issues.

Attorney’s Fees Award

In their ninth issue, appellants assert that the district court erred in awarding $20,000

in attorney’s fees to appellee. The standard of review of a trial court’s award granting attorney’s fees

is sufficiency of the evidence. See Stewart Title Guar. Co. v. Sterling , 822 S.W.2d 1, 12 (Tex.

1991). An award of attorney’s fees must be based on some statutory or contractual authority. S ee

Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 1997); Dallas Cent. Appraisal Dist. v. Seven Inv.

Co.

, 835 S.W.2d 75, 77 (Tex. 199 2 ). The determination of the reasonableness of the fees is a

question for the finder of fact. S terling

, 822 S.W.2d at 12. In reviewing the reasonableness of an

award of attorney’s fees, the reviewing court should consider: (1) the time and labor required, the

novelty and difficulty of the questions involved, and the skill required to perform the legal service

properly; (2) the likeli hood that the acceptance of the particular employment will preclude other

employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services;13

(4) the amount involved and the results obtained; (5) the time limitations imposed by the client or

by the circumstances; (6) the nature and length of the professional relationship with the client; (7)

the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8)

whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal

services have been rendered. See Arthur Andersen & Co. v. Perry Equip. Corp

., 945 S.W.2d 812,

818 (Tex. 1997).

The parties agree that section 247.045 of the health and safety code permits an award

of attorney’s fees to the State if the court has assessed a civil penalty. See Tex. Health & Safety

Code Ann. § 247.045(e) (West 2001). Lowell Keig, chief of the Elder Law and Public Health

Division of the Attorney General’s office, testified about the fees requested. His testimony included

the usual and customary hourly rates for the attorneys and support staff, the services performed, and

the reasonableness and necessity of the fees. Supporting this testimony was an exhibit listing the

name, position, market rate, and time spent for each attorney and legal assistant who worked on the

case. The State requested $30,731.25 in fees, $20,000 of which the district court awarded. Given

the statutory authority and evidence presented, we cannot say that the district court erred in awarding

attorney’s fees to the State. Accordingly, we overrule appellants’ ninth issue.

Judgment Against Linda Milam, Individually

In their fifth issue, appellants contend that the district cou rt erred in rendering

judgment against Linda Milam, individually, because there is no evidence that she committed any

act described in the judgment. We review a no-evidence challenge by considering all of the record

evidence in the light most favorable to the prevailing party, indulging every reasonable inference in14

that party’s favor. A ssociated Indem. Corp. v. CAT Contracting, Inc

., 964 S.W.2d 276, 285-86 (Tex.

1998); Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc.

, 960 S.W.2d 41, 48 (Tex.

1998). We must sustain a no-evidence challenge when the record discloses that no more than a

s cintilla of evidence supports finding a vital fact or that the evidence conclusively establishes the

opposite of a vital fact. Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997).

The evidence supporting a finding amounts to more than a scintilla if reasonable minds could arrive

at the finding given the facts proved in the particular case. B urroughs Wellcome Co. v. Crye , 907

S.W.2d 497, 499 (Tex. 1995).

The district court found that Linda Milam was the sole owner of Brazos Oaks during

the period that it operated without a license. Supporting this finding is the license renewal

application of Brazos Oaks, which li sts “Dr. Linda S. Milam” as the sole owner of “Health

Enrichment & Longevity Institute, Inc.” and the “owner/applicant” for the facility. The evidence

demonstrates that Brazos Oaks submitted an incomplete and unt imely application. The evidence

further demonstrates th at Linda Milam, as sole owner and applicant, was responsible for the

application. As discussed above, the incomplete and untimely application led to Brazos Oaks

operating without a license for a period of time.

Upon finding that a person is violating the licensing requirements under chapter 247,

a district court may by injunction prohibit that p erson from continuing to violate the licensing

requirements. Tex. Health & Safety Code Ann. § 247.044. If a person operates a facility without

a license, in violation of health and safety code section 247.021, the district court may also assess

civil penaltie s of not less than $1,000 and not more than $10,000 for each violation. I d.

§ 247.045(a)-(c). Each day of operating without a license constitutes a separate violation. I d.15

§ 24 7.045(c). The record raises more than a scintilla of evidence to support imposition of an

injunction and assessment of civil penalties and attorney’s fees against Linda Milam as sole owner

of Brazos Oaks. Accordingly, we do not find that the district court erred in rendering judgment

against Linda Milam, individually. We overrule appellants’ fifth issue. Having overruled all of

appellants’ issues, we affirm the judgment of the district court.

CONCLUSION

We do not find that the district court abus e d its discretion in denying appellants’

motion that the Attorney General show authority t o bring suit, because some evidence reasonably

supports the district court’s decision. We further do not find that the district court abused its

discretion in overruling appellants’ motion to strike th e non-jury trial setting. It was within the

district court’s discretion to retain venue in Travis County, and we cannot say that the district court

abused this discretion. As to appellants’ challenge of the time limits at trial, we have nothing to

review because appellants made no offer of proof of evidence excluded.

Although difficulties in communication between the facility and DHS, coupled with

the confluence of circumstances confronted by appellants’ counsel, may have led to a harsh result,

the evidence adduced at trial supports the district court’s finding that Brazos Oaks operated without

a license. Accordingly, we do not find that the district court erred in issuing a permanent injunction

and assessing $20,000 in civil penalties against Brazos Oaks. We further do not find that the district

court erred in rendering judgment against Linda Milam, as sole owner of Brazos Oaks and applicant

for the renewal of its license. Finally, we cannot say that the district court erred in awarding $20,00016

in attorney’s fees, plus additional fees for appeal, to the State. Having overruled all of appellants’

issues, we affirm the judgment of the district court.

Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: June 10, 2004