Jewell Alt v. William F. Key, M.D. ( 1992 )

Alt v. Key

IN THE

TENTH COURT OF APPEALS

No. 10-91-129-CV

     JEWELL ALT, ET AL.,

                                                                                              Appellants

     v.

     WILLIAM F. KEY, M.D., ET AL.,

                                                                                              Appellees

From the 220th District Court

Bosque County, Texas

Trial Court # B-161-89

                                                                                                    

O P I N I O N

                                                                                                    

      Jewell Alt and Howard Alt, individually and on behalf of the estate of Russell Alt, sued Dr. William Key, Dr. T.W. Murphy, and Clifton Medical & Surgical Clinical Association for medical malpractice in connection with Russell Alt's death. The jury refused to find that Dr. Key and Dr. Murphy were negligent but found that Jewell and Russell Alt's negligence was the proximate cause of Russell's death. Jewell and Howard complain that, because Dr. Key was negligent as a matter of law, the court erred when it denied their motion for a new trial. They also argue that the refusal to find Dr. Key negligent was against the great weight and preponderance of the evidence. We affirm.

      On September 4, 1988, Russell Alt, accompanied by his wife, Jewell, who is a pharmacist, went to the emergency room at Goodall-Witcher Hospital. Russell was experiencing symptoms commonly associated with heart problems. Dr. Key, the attending physician, recommended hospitalization. The Alts, however, claimed they could not afford hospitalization and did not have insurance that would cover the costs. Thus, they left the hospital with prescription medications and instructions to report to a clinic in forty-eight to seventy-two hours. On September 6 Russell went to the clinic and claimed to be feeling better. However, on September 8 he died of complications resulting from a heart attack.

STANDARD AND SCOPE OF REVIEW

      The first and third points are that, because Dr. Key's negligence on September 4 and September 6 was established as a matter of law, the court erred when it denied the motion for a new trial. Findings of fact are binding on the appellate court unless either the contrary is established as a matter of law, or there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). When reviewing the evidence, this court must disregard all evidence to the contrary and uphold the finding if there is any evidence to support it. See id. at 696-97.

      Jewell and Howard complain in points two and four that the jury's refusal to find Dr. Key negligent on September 4 and September 6 was against the great weight and preponderance of the evidence. This is the standard of review when a party having the burden of proof on the question attacks the jury's refusal to find the affirmative. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). A complaint that the finding is against the great weight and preponderance of the evidence will be reviewed in light of the entire record to determine whether it was clearly wrong or manifestly unjust. See Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973). Furthermore, the fact-finder is the judge of the credibility of the witnesses and the weight to be given their testimony. Carson v. Kee, 677 S.W.2d 283, 284 (Tex. App.—Fort Worth 1984, no writ).

FACTS

      September 4, 1988

      Dr. Key was the attending physician at the emergency room. The medical records reflect that Russell had "right quadrant pain going into both arms-also diaphoretic-stomach bloating-lots of gas-running a temperature also-short of breath." Dr. Key recognized that the symptoms suggested heart problems and ordered a cardiac-enzymes analysis and an electrocardiogram. Dr. Murphy analyzed the results of the electrocardiogram.

      Dr. Key gave the following testimony. He told the Alts that Russell had some heart damage and recommended hospitalization for further testing. Although he suspected a heart problem, Dr. Key never: (1) told the Alts that unstable angina was a potential diagnosis; (2) explained the treatments available in the hospital; or (3) informed the Alts that Russell was at risk of having a heart attack or even sudden death.

      The Alts said they could not afford hospitalization and did not have insurance that would cover the costs. They then asked for an alternative. Dr. Key, who emphasized that he felt Russell should be in the hospital, prescribed several medications and told Russell to come to his clinic in forty-eight to seventy-two hours.

      Russell Alt was feeling ill enough to cause him to seek emergency medical attention on September 4. Yet, despite the doctor's recommendation, he refused hospitalization. Jewell, a pharmacist, recognized one of the medications prescribed as a medication typically given for "heart pain." She also admitted that Russell smoked approximately two packs of cigarettes a day and that she was familiar with warnings that smoking may cause heart disease.

      Dr. Shoultz, a Waco-area physician specializing in cardiovascular diseases, reviewed Russell's medical records and testified that the records indicate that Dr. Key recommended hospitalization on September 4. He also claimed that Dr. Key provided adequate information concerning the course of the treatment suggested and noted that a doctor has to be careful what to "unload" on a patient with potential heart problems, although he did admit that "the more information you can give them, the better off they are." Dr. Shoultz testified that Dr. Key's treatment of Russell was reasonable and within the applicable standard of care.

      Dr. Murphy, Dr. Key's partner, admitted that the standard of care when unstable angina is suspected is hospitalization for treatment and that a patient should be told if his condition is immediately life threatening.

      Dr. Dittrich, from California, claimed that readily available forms of treatment for unstable angina exist in a hospital. Dr. Key, he alleged, did not meet the appropriate standard of care because he failed to hospitalize Russell. Dr. Dittrich further testified that when Russell initially refused hospitalization, Dr. Key should have described "exactly" what could happen as a result.

      Dr. Hellstern, a Dallas physician, testified that when Russell refused hospitalization Dr. Key should have explained all the possible consequences. He also said that accepting Russell's decision to refuse hospitalization, without explaining the possible consequences, was below the standard of care.

      We find that some evidence supports the refusal to find that, with respect to Russell's death, Dr. Key was negligent on September 4. See McGalliard, 722 S.W.2d at 696. Furthermore, based on the record as a whole, that refusal to find was not clearly wrong or manifestly unjust. See Traylor, 497 S.W.2d at 945. The jury could have chosen to accept Dr. Key's and Dr. Shoultz's testimony or to believe that the Alts' negligence, when they refused hospitalization after seeking emergency medical treatment for symptoms commonly associated with a heart problem, negated any negligence on the part of Dr. Key. See Carson, 677 S.W.2d at 284. Points one and two are overruled.

September 6, 1988

      Russell reported to Dr. Key's clinic on September 6 and claimed to be feeling better. Dr. Key ordered another electrocardiogram, which showed no change from the September 4 electrocardiogram. He did not (1) tell the Alts that unstable angina was still a potential diagnosis, (2) explain the treatments available in the hospital, (3) inform the Alts that Russell was at risk of having a heart attack or even sudden death, or (4) recommend hospitalization.

      Dr. Shoultz testified that, in light of the patient's claim that he was feeling better, Dr. Key's actions were reasonable. Dr. Dittrich and Dr. Hellstern stated, however, that the electrocardiogram on September 6 indicated that Russell had taken a "turn for the worse." Thus, they claimed that not recommending hospitalization at this time constituted a failure to meet the appropriate standard of care.

      We find some evidence to support the refusal to find that, with respect to Russell's death, Dr. Key was negligent on September 6. See McGalliard, 722 S.W.2d at 696. Furthermore, based on the record as a whole, that refusal to find was not clearly wrong or manifestly unjust. See Traylor, 497 S.W.2d at 945. The jury could have believed Dr. Key's testimony that Russell, who claimed to be feeling better, appeared better and logically concluded that he would have refused hospitalization at this point. See Carson, 677 S.W.2d at 284. We overrule points three and four.

September 8, 1988

      Early that morning, Jewell called Dr. Key's office because Russell's condition had worsened. Dr. Key returned the call around noon. Jewell again called Dr. Key at approximately 6:30 P.M.and informed him that Russell was pale, cold, sweaty, and had chest pain. Dr. Key recommended hospitalization.

      Later, Jewell called Dr. Key at his home and again repeated Russell's symptoms. Dr. Key recommended that she take him to the emergency room. When Jewell said that Russell was to weak to go to the hospital, Dr. Key suggested an ambulance.

      At this time, Jewell lost faith in Dr. Key and called a friend about finding another doctor. Jewell got the friend's answering machine and, by the time the call was returned, Russell had died.

      All points have been overruled and we affirm the judgment.

 

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed May 27, 1992

Do not publish

an style='font-family:"CG Times"'>Appellants four issues are: (1) whether the probate court erred in concluding that the gun collection was among the “contents of the home”; (2) whether the probate court erred in denying Appellants recovery of their attorney’s fees; (3) whether the probate court erred in awarding Merrill Lynch attorney’s fees; and (4) whether the probate court erred in awarding Toni attorney’s fees.

Analysis

The Gun Collection

Regarding Appellants’ issue on the gun collection, Merrill Lynch prefaces its response with an assertion that Appellants have waived or not preserved their complaint because they did not seek in the probate court the relief that they now seek in this appeal. Merrill Lynch correctly notes that it—not Appellants—pled claims for declaratory relief and constructive trust relating to the gun collection. Appellants did not sue Merrill Lynch or Toni for return of the gun collection to the estate by imposition of a constructive trust or for a declaratory judgment on the ownership of the gun collection.  While they did plead in the probate court that Merrill Lynch had improperly transferred the gun collection to Toni in breach of its fiduciary and statutory (Probate Code section 233) duties, Appellants sought only money damages for these alleged breaches and Merrill Lynch’s removal and fee disgorgement.  Appellants lost on these claims in the trial court and have not appealed these adverse rulings. 

In their first issue, Appellants are indirectly attempting to do on appeal what the will’s no-derivative action and in terrorem clauses prohibit them from doing directly[9] and what they did not—and could not—do in the probate court.  And we agree with Merrill Lynch that it is axiomatic that a party cannot complain on appeal about a trial court’s failure to award relief when the party never pled for that relief in the trial court.[10] A claim, issue, or allegation may not be raised for the first time on appeal.  Adams v. First Nat’l Bank, 154 S.W.3d 859, 871 (Tex. App.—Dallas 2005, no pet. h.) (“A claim that was not presented to the trial court cannot be considered on appeal.”); Carrizales v. Tex. Dep’t Prot. & Reg. Servs., 5 S.W.3d 922, 925 (Tex. App.—Austin 1999, pet. denied) (“As a rule, a party may not raise an issue, even a constitutional claim, for the first time on appeal.”); General Ass’n Branch Davidian Seventh Day Adventist v. McLennan County Appraisal Dist., 715 S.W.2d 391, 393 (Tex. App.—Waco 1986, no writ) (issue may not be raised for first time on appeal); see also California Dep’t of Mental Hygiene v. Bank of the Southwest, N.A., 354 S.W.2d 576, 581 (Tex. 1962) (“An allegation raising this contention is not contained in petitioner’s pleadings and was not raised in the trial court.  The issue cannot be raised for the first time on appeal.”).

Appellants plainly did not plead a cause of action for return of the gun collection or for declaratory relief regarding the gun collection.  We thus hold that Appellants have not preserved their complaint for appeal and overrule their first issue.  Tex. R. App. P. 33.1(a).

Appellants’ Attorney’s Fees

Section 245 of the Probate Code provides for the recovery of reasonable attorney’s fees incurred in obtaining compliance regarding any statutory duty that the personal representative has neglected.  Tex. Prob. Code Ann. § 245 (Vernon Supp. 2004-05).  Arguing that because the probate court imposed a constructive trust on five of the twelve categories of contested property as a result of Merrill Lynch’s alleged neglect, Appellants in their second issue complain that the trial court abused its discretion in refusing to award them their attorney’s fees.

An appellate court reviews a trial court’s decision on the award of attorney’s fees for an abuse of discretion.  Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).  “Whether to award attorney's fees, and to which party, is a decision that is solely within the trial court's discretion and will not be reversed absent a clear abuse of that discretion.”  Sammons v. Elder, 940 S.W.2d 276, 284 (Tex. App.—Waco 1997, writ denied).  A trial court abuses its discretion when it acts “without reference to any guiding rules or principles,” or stated another way, when the trial court acts in an arbitrary and unreasonable manner.  City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)).  An abuse of discretion does not occur when a trial court bases its decision on conflicting evidence.  Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997); Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).

The probate court specifically concluded that Merrill Lynch did not fail to use due diligence in recovering property belonging to the estate.  And the probate court noted that on the five times that it disagreed with Merrill Lynch on the categorization of property as estate property or “contents of the home,” those disagreements were within the zone of reasonable disagreement and amounted to approximately only 7% of the value of the entire estate.  Merrill Lynch adds that it was not Appellants, but Merrill Lynch, who sued for a constructive trust and for declaratory relief on the contested property.  Additionally, in its decision to deny Appellants recovery of their attorney’s fees, the probate court emphasized that Appellants had lost on their claims to remove Merrill Lynch and to disgorge its executor’s fee.  On the other hand, the probate court found that in some instances Merrill Lynch’s conduct deviated from the ordinary standard of care and in some instances may have been inadvertent, but the conduct did not rise to the level of willful, malicious, or bad-faith conduct.

Based on the above and on the probate court’s extensive and careful consideration of all the evidence and claims in this case, we cannot say that the probate court abused its discretion in refusing to award Appellants attorney’s fees.  Appellants’ second issue is overruled.

Merrill Lynch’s Attorney’s Fees

Appellants’ third issue challenges the probate court’s award of attorney’s fees to Merrill Lynch.  The probate court found that Merrill Lynch defended Appellants’ removal action in good faith and was entitled to recover its attorney’s fees under section 149C(c) of the Probate Code.  That section permits an independent executor to recover necessary expenses, including attorney’s fees, if it defends an action for removal in good faith, “whether successful or not.”  Tex. Prob. Code Ann. § 149C(c) (Vernon 2003).  “[A]n executor acts in good faith when [it] subjectively believes [its] defense is viable, if that belief if reasonable in light of existing law.”  Lee v. Lee, 47 S.W.3d 767, 795 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

Merrill Lynch prevailed on Appellants’ claim to remove it as independent executor for alleged gross misconduct or gross mismanagement.  Appellants have not appealed the probate court’s ruling on their removal claim.  Appellants’ brief points out several instances of Merrill Lynch’s conduct that served as the basis for their removal claim, but those instances do not pertain to Merrill Lynch’s defense of the removal action in good faith.  Moreover, Appellants do not point to any actual harm that they suffered, and the probate court specifically found that the estate suffered no actual harm or damages from Merrill Lynch’s incorrect categorization of some of the contested property.

The probate court did take issue with the reasonableness of Merrill Lynch’s interpretation that the phrase “contents of the home” included “personal property wherever located,” but in finding that Merrill Lynch defended the action in good faith, the court noted that the estate was not harmed and again that Merrill Lynch’s disagreements were reasonable. The probate court did not abuse its discretion in awarding Merrill Lynch attorney’s fees.  We overrule Appellants’ third issue.

Toni’s Attorney’s Fees

Finally, in their fourth issue, Appellants complain of the probate court’s award of attorney’s fees to Toni, recoverable from Appellants.  They assert that the probate court abused its discretion in granting Toni leave to file a trial amendment, that no legal basis for the award exists, and that Toni did not substantially prevail.

In Appellants’ earlier, superseded petitions, they specifically sued for declaratory relief on the terms of the will and the marital agreement, alleging that Toni had forfeited her benefits under the will because of her alleged violations of the in terrorem clause.  In response to Appellants’ suit, Merrill Lynch filed a counterclaim, adding Toni as a third-party defendant and seeking declaratory relief on the property being contested by Appellants.

In her response to Appellants’ request for disclosure, Toni stated that she was seeking “recovery of her reasonable and necessary attorney’s fees pursuant to the action for declaratory judgment.”  She identified her attorney as an expert who would testify on attorney’s fees.  At the time of trial, Toni’s amended answer requested an award of attorney’s fees; she had not made a claim for affirmative relief.  She thus filed a motion for leave to file a trial amendment to allege a claim for attorney’s fees, and the probate court granted Toni leave.

Texas Rule of Civil Procedure 66 allows a party to seek leave to file a trial amendment to its pleading if no prejudice or surprise is shown by the opponent.  Tex. R. Civ. P. 66; State Bar v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994).  Because of Toni’s response to Appellants’ request for disclosure, the probate court found that Appellants could not seriously object to her proposed trial amendment on grounds of surprise or prejudice.  We agree with the probate court and hold that it did not abuse its discretion in allowing the trial amendment.

The probate court found that Appellants’ and Merrill Lynch’s live pleadings implicitly sought declaratory relief.  See Edwards Aquifer Auth. v. Bragg, 21 S.W.3d 375, 381 (Tex. App.—San Antonio 2002) (court has discretion to construe pleading as containing implicit request for declaratory judgment), aff’d, 71 S.W.3d 729 (Tex. 2002).  We agree. And when one claimant has invoked the declaratory judgment statute, the other party may plead for and recover attorney’s fees “as are equitable and just.”  Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997); Spiller v. Spiller, 901 S.W.2d 553, 560 (Tex. App.—San Antonio 1995, writ denied).

While it is true, as Appellants claim, that neither they nor Toni had direct claims against each other at trial, it is undeniably true that Appellants and Toni were adverse parties.  Furthermore, “the award of attorney's fees in declaratory judgment actions is clearly within the trial court's discretion and is not dependent on a finding that a party ‘substantially prevailed.’”  Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996).  The probate court awarded Toni her attorney’s fees from Appellants, rather than from the estate, because an award from the estate would have only diminished her income interest in the trust.  We cannot say that the probate court abused its discretion, and we overrule Appellants’ fourth issue.

Conclusion

          Having overruled Appellants’ four issues, we affirm the probate court’s final judgment.  Because Appellants have been unsuccessful in this appeal, Merrill Lynch is entitled to recover an additional attorney’s fee of $15,000 from the estate, and Toni is entitled to recover an additional attorney’s fee of $15,000 from Appellants.

 

 

 

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

          (Chief Justice Gray dissenting)

Affirmed

Opinion delivered and filed August 31, 2005

[CV06]

 

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    [1]       An “in terrorem clause,” also called a no-contest clause, is a “testamentary provision that threatens to dispossess any beneficiary who challenges the terms of a will.”  Black’s Law Dictionary 1073 (8th ed. 2000).

    [2]       Those eight vehicles were: two Ferrari road cars parked in their usual place in the marital home’s garage; a 2002 Porsche that was usually parked in the garage but was out for repairs; a personal-use Ford Explorer usually parked either at the home or office; a personal-use Subaru parked at the office; a 2001 Porsche and a 1995 Ferrari given to Toni as gifts; and Toni’s personal Mercedes parked at the home.

 

    [3]       Luhnau had Toni sign a receipt and release dated October 31, 2002, pertaining to all of Ed’s property that she had received:  the contents of the home, including a gun collection and a watch collection; a 2001 Ferrari 360 Spider Modena; a 2000 Ferrari 550 Maranello; a 2002 Porsche 911 Turbo; a 1999 Ford Explorer; and a 2002 Subaru Impreza.

    [4]       At the start of the trial, Appellants amended their pleading to remove the jewelry and the watch collection as contested assets.  The probate court thus found that the jewelry and the watch collection were not estate assets.

    [5]       Specifically, the probate court granted Merrill Lynch’s motion for judgment without objection by Appellants on their damage claims as to these three cars:  (1) the 2000 Ferrari 550 Maranello (whose debt exceeded its value and which had been surrendered); (2) the 2001 Porsche 911 (whose debt exceeded its value); and (3) the Mercedes ML 55-AMG, for which no title evidence was adduced and which Toni claimed as her personal car.

 

    [6]       On two grounds the probate court ruled against Appellants that all of Ed’s personal property that could be “contents of the home” passed to the estate: (1) applying section 4.005 of the Family Code, the will did not revoke Ed and Toni’s marital agreement; and (2) the marital agreement was not an invalid testamentary transfer of Ed’s entire estate under section 450 of the Probate Code.

 

    [7]       The probate court found that “contents of the home” was ambiguous, so it utilized section 58 of the Probate Code in ruling on the cars.  That section defines “contents” as “tangible personal property, other than titled personal property, found inside of or on a specifically bequeathed or devised item.”  Tex. Prob. Code Ann. § 58(d)(1) (Vernon 2003).  And it defines “titled personal property” to include motor vehicles.  Id. § 58(d)(2).

 

    [8]       Toni testified that Ed had given the Explorer to his stepdaughter Nina (Toni’s child from a previous marriage) but that she could not drive it until she entered college.  Because a rift developed between Ed and Nina, in his codicil Ed deleted a $100,000 bequest to Nina and deleted practically every reference to Nina.  The probate court thus concluded that Ed never “delivered” the Explorer to Nina as a gift.

    [9]       The probate court found that Appellants had violated the no-derivative action clause in part but nonetheless did not forfeit Appellants’ bequests under the will.  Neither Appellants nor Merrill Lynch appeal this ruling.

 

    [10]      Appellants’ general prayer for relief in their petition is insufficient to cure the absence of the specific claim and relief that they are seeking for the first time on appeal; a general prayer for relief must be consistent with the claims in the petition.  See Kissman v. Bendix Home Sys., Inc., 587 S.W.2d 675, 677 (Tex. 1979) (“Only the relief consistent with the theory of the claim reflected in the petition may be granted under a general prayer.”); Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex. 1979) (general prayer for relief cannot “enlarge a pleading to the extent that it embraces an entirely different cause of action for which fair notice does not exist.”).