JOURNAL ENTRY AND OPINION
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Delmar Hall, the former administrator of the estate of Dorothy Lee White, Lamar White, and Denise White (collectively "appellants"), appeal from the decision of the probate court finding in favor of appellee, Bernard Black, declaring him to be the common-law surviving spouse of Dorothy Lee White ("Mrs. White"). Appellants allege that the trial court erred in granting an extension to a temporary restraining order, that the trial court did not consider their evidence, and that the court erred in determining appellee to be the surviving spouse. After a thorough review of the record and pertinent case law, we affirm the determinations of the trial court.
On February 16, 2010, Delmar Hall was removed as administrator of the estate and the probate court appointed Michael E. Stinn as successor fiduciary on June 3, 2010.
{¶ 2} Mrs. White and appellee began living together in 1972 in a home in Cleveland Heights, Ohio. Appellee testified that he paid for the home, but it was titled only in Mrs. White's name. The two maintained joint bank accounts, introduced themselves as husband and wife, and even had a wedding reception. They applied for and received a marriage license, although it was never properly executed.
{¶ 3} On March 6, 2009, Mrs. White died. On April 2, 2009, Hall filed an application to administer Mrs. White's intestate estate with the Cuyahoga County probate court, which was granted. Hall listed the heirs as Lamar White and Denise White, Mrs. White's living children at the time of her death. A dispute arose as to the status of appellee and his ability to remain in the Cleveland Heights home. On April 3, 2009, before receiving letters of authority from the probate court, Hall instituted an eviction action against appellee in the Cleveland Heights municipal court. On May 4, 2009, appellee filed a complaint with the probate court seeking declaratory judgment and a temporary restraining order to prevent his eviction. On the same day, the probate court granted a temporary restraining order preventing the eviction action from going forward. This order was extended 14 days to give appellee time to file a temporary injunction motion, which he did on June 1, 2009.
{¶ 4} On June 16, 2009, a hearing was held to determine appellee's status. The probate court magistrate heard testimony and admitted evidence as to the nature of appellee's relationship with Mrs. White. On August 4, 2009, the magistrate determined that appellee was Mrs. White's surviving spouse. Appellants objected and requested findings of fact and conclusions of law. The probate court adopted the decision of the magistrate over appellants' objections on August 17, 2009, dissolved the restraining order, and dismissed the motion for temporary injunction as moot. Appellants then filed the instant appeal assigning three errors for our review.
Law and Analysis Extension of a Temporary Restraining Order
{¶ 5} Appellants first claim that "[t]he Probate Court erred in granting a second ex-parte Temporary Restraining order without good cause shown and without any notice to opposing counsel even though the Court knew of another pending case, that there was counsel on that case, and that harm would be incurred against the party being restrained." Citing no case law and relying solely on Civ. R. 65, appellants claim that the probate court should not have granted an extension to the temporary restraining order ("TRO"). {¶ 6} Civ. R. 65(A) specifies that "[a] temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give notice and the reasons supporting his claim that notice should not be required."
{¶ 7} The rule contemplates an order made without notice and specifies that "[e]very temporary restraining order granted without notice shall be filed forthwith in the clerk's office; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for one like period * * *." (Emphasis added.) Id.
{¶ 8} Appellants cannot appeal the extension of a temporary restraining order after it has been dissolved and no further remedy exists. "Like a preliminary injunction, a temporary restraining order makes no final adjudication for any issue. Such orders merely prevent designated parties from exercising their claimed rights pending a determination of the merits. Gessler v. Madigan (1974), 41 Ohio App.2d 76, 322 N.E.2d 127. In this case, the order purported to hold the parties in their positions shortly before plaintiff filed his suit. It directed the parties to return to and remain at the status quo ante. Cf. Edgewater Construction Co., Inc. v. Percy Wilson Mortg. Finance Corp. (1976), 44 Ill.Dec. 864, 2 Ill.Dec. 864, 357 N.E.2d 1307." Beasley v. City of E. Cleveland (1984), 20 Ohio App.3d 370, 374, 486 N.E.2d 859. The same is true here. The grant of an extension of a TRO is not an adjudication of any issue.
{¶ 9} Also, this court need not address this assigned error because the probate court's determination that appellee is Mrs. White's surviving spouse renders the issue moot. The issue is not capable of repetition, which, in some cases, would allow this court to examine it. See State ex rel. New World Communications of Ohio, Inc. v. Character (1995), 100 Ohio App.3d 773, 775, 654 N.E.2d 1301. This court has no means to remedy any alleged harm caused by the extension of a TRO, nor have appellants suggested one. Appellants' appeal from the grant of an extension of a TRO became moot when the probate court ruled on appellee's declaratory judgment action, and therefore it will not be addressed.
Findings of Fact and Conclusions of Law
{¶ 10} Next, appellants claim that "[t]he Probate Court erred in excluding Appellants' evidence in reaching their decision despite an appropriate Motion for Findings of Facts and Conclusions of Law." {¶ 11} Citing no case law or other authority, appellants argue that the magistrate excluded their submitted evidence when reaching its decision and ignored their request for findings of fact and conclusions of law. Civ. R. 52 gives a party the right to request findings of facts and conclusions of law when an issue is tried without a jury. However, all that is required to satisfy this right is "an opinion or memorandum of decision filed in the action prior to judgment entry and containing findings of fact and conclusions of law." Id.
{¶ 12} In the present case, the magistrate issued a lengthy decision on August 4, 2009 that effectively stated the evidence presented in the case on which he relied to determine that appellee was Mrs. White's surviving spouse. This is all that is required. See City of Strongsville v. Carr, Cuyahoga App. No. 89666, 2008-Ohio-907, ¶ 26 (dealing with a similar argument in the Crim. R. 12(F) context). Simply because the magistrate chose to find appellee's evidence more persuasive does not demonstrate that the magistrate or probate court erred. The credibility and weight to be given the evidence at trial is the prerogative of the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. Decisions of this type will be reviewed under an abuse of discretion standard. An abuse of discretion implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶ 13} Appellants have failed to show the how the magistrate and probate court abused their discretion; therefore, appellants' second assignment of error is overruled.
Common-law Spouse
{¶ 14} In appellants' final assignment of error, they argue that "[t]he probate Court erred when determining Appellee was the surviving spouse of [Mrs. White] as that determination was contrary to law and against the manifest weight of the evidence."
{¶ 15} It is well established that when some competent, credible evidence exists to support the judgement rendered by the trial court, an appellate court may not overturn that decision unless it is against the manifest weight of the evidence. Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. The knowledge a trial court gains through observing the witnesses and the parties in any proceeding (i.e., observing their demeanor, gestures, and voice inflections, and using these observations in weighing the credibility of the proffered testimony) cannot be conveyed to a reviewing court by a printed record. In re Satterwhite, Cuyahoga App. No. 77071, 2001-Ohio-4137, citing Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 106 N.E.2d 772. In this regard, the reviewing court in such proceedings should be guided by the presumption that the trial court's findings were indeed correct. Seasons Coal Co., supra. As the Ohio Supreme Court has stated, "it is for the trial court to resolve disputes of fact and weigh the testimony and credibility of the witnesses." Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23, 550 N.E.2d 178.
{¶ 16} Although the General Assembly abolished the institution of common-law marriage in 1991, that decision did not apply to those relationships that had already attained such status. See R.C. 3105.12. The state of Ohio still recognizes common law marriage under certain circumstances. "The Supreme Court of Ohio has set forth the essential elements of a common-law marriage as follows: (1) a mutual agreement to marry in praesenti while competent to contract; (2) cohabitation as husband and wife; (3) holding out as husband and wife; and (4) a reputation as being husband and wife. Nestor v. Nestor (1984), 15 Ohio St.3d 143, 472 N.E. 1091. The party alleging a common-law marriage has the burden of proving all of the elements by clear and convincing evidence. Id. at 146." St. John-Boyd v. Boyd, Cuyahoga App. No. 89047, 2007-Ohio-5336, ¶ 4. The Nestor court found that "[w]here there is no direct proof in reference to the formation of the marriage in praesenti, testimony regarding cohabitation and community reputation tend to raise an inference of the marriage." Id. at 146. "This court has also held that an agreement to marry in praesenti may be proven either by way of direct evidence which establishes an agreement to marry or by proof of cohabitation and reputation." Boyd at ¶ 9.
This term means "[a]t present; right now." Black's Law Dictionary (8 Ed. 2004).
{¶ 17} Testimony was adduced that appellee lived with Mrs. White for more than 30 years, they shared a bedroom, traveled together, introduced each other as husband and wife, shared a bank account, shared household expenses, and carried on a sexual relationship. Photographs of the couple's wedding reception were introduced that showed them ceremonially cutting and sharing wedding cake and dancing. An unsolemnized marriage certificate was introduced bearing their names. Mrs. White's death certificate originally listed appellee as her surviving spouse. Mrs. White's granddaughter testified that she grew up calling appellee "papa," referring to him as her grandfather. While the testimony of appellants' witnesses was in conflict with this evidence and testimony, the credibility of the witnesses is best judged by the trier of fact. DeHass, supra.
{¶ 18} The facts presented in this case do not constitute that rare case where the trier of fact lost its way and created a manifest miscarriage of justice that necessitates this court's intervention. Therefore, appellants' third assignment of error is overruled.
Conclusion
{¶ 19} Appellants have failed to demonstrate any error on the part of the magistrate or probate court. The evidence presented showed that appellee and Mrs. White had a longstanding relationship that satisfied all the requirements of a common-law marriage established prior to 1991. The temporary restraining order and temporary injunction were necessary to preserve the status quo while the probate court determined whether appellee was the surviving spouse of Mrs. White.
Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, P.J., and JAMES J. SWEENEY, J., CONCUR.
oss-appeal. However, the supreme court has held that we are to construe the briefing rules "reasonably, but liberally, when possible so that the right to appeal is not lost . . ."
Jamar v. Patterson. 868 S.W.2d 318, 319 (Tex. 1993) (per curiam);
see San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.App.-Houston [14th Dist.] 2005, no pet.). In any event, given our resolution of appellees' proportionate responsibility cross-issue, we need not address appellants' waiver argument.
See TEXR.APP. P. 47.1.
The supreme court has stated that a jury may "consider the conduct of [a] patient when determining proportionate responsibility as a part of an inclusive comparative negligence scheme rather than compartmentaliz[ing] negligence in rigid categories." Jackson v. Axelrad, 221 S.W.3d 650, 654 (Tex. 2007); See Dowell, 262 S.W.3d at 333 (Wainwright, J., concurring); see also TEX. CIV. PRAC. REM. CODE ANN. §§ 33.001-.003. In Dowell, the dece-ent, Lance, a nineteen-year-old male, was admitted for treatment at a local hospital after threatening to kill himself. 262 S.W.3d at 325. Lance was distraught over his girlfriend threatening to leave him. Id. at 325-26. He had made similar threats in the past and had been previously admitted to the hospital for treatment. Id. While at the hospital, nurses and doctors failed to make a comprehensive assessment of Lance's risk of suicide. Id. at 326. Lance told doctors that he was not suicidal, and, because he was an adult and did not desire to be hospitalized, doctors released him pursuant to a no-suicide contract, which provided that Lance would go to the local Mental Health and Mental Retardation Center ("MHMR") for assessment and stay with his family until the assessment was completed. Id. at 326-27. Lance agreed, and the hospital discharged him shortly thereafter. Id. at 327. After being discharged, Lance went to a family reunion and attended a rodeo with his brother. Id. However, thirty-three hours after being discharged and not having visited the local MHMR center, Lance hung himself. Id.
The jury found that the hospital was negligent and assessed $400,000 in damages for Lance's parents and $400,000 in damages for Lance's estate. Id. at 327-28. The court of appeals affirmed the jury's verdict. Id. at 328. However, the supreme court reversed, holding that Lance could not have been hospitalized against his will given the circumstances and that the hospital's discharge of Lance did not proximately cause his death. Id. at 328-30. The majority opinion did not discuss the interplay between chapter 33 and section 93.001 of the civil practice and remedies code.
The jury did not conclude that Lance was proportionally responsible for his own suicide; instead, the jury determined that two health care providers and an emergency room physician were responsible for Lance's suicide. Providence Health Center v. Dowell, 262 S.W.3d 324, 327-28 (Tex. 2008).
In a concurrence, Justice Wainwright, however, did consider the interplay between those statutory provisions and noted that "[i]f [the decedent's] actions apart from the act of committing suicide violated an applicable standard of care (such as negligence), a jury should have weighed such actions in assigning proportionate responsibility." Id. at 332 (Wainwright, J., concurring). Justice Wainwright noted that a jury could have concluded that Lance failed to follow the no-suicide contract and that the failure to follow that contract contributed to his death; therefore, Justice Wainwright concluded that Lance engaged in actions apart from the actual commission of suicide that were negligent and, thus, partially caused the complained-of injuries. Id. (Wainwright, J., concurring). Under these circumstances, Justice Wainwright determined that the jury could have been instructed about the proportionate responsibility statutes. Id. at 332-33 (Wainwright, J., concurring).
On the other hand, Justice O'Neill's dissent in Dowell pointed out that to "attribute causation for breach of a mental health standard of care to the patient whose un-diagnosed mental impairment was the very cause of injury" would be "clearly contrary to the statute's [section 93.001(a)(2)] intent." Id. at 337 (O'Neill, J., dissenting). Justice O'Neill also stated that Justice Wainwright's suggestion that the jury consider negligent actions taken by the decedent apart from committing suicide was untenable because:
Under such an approach, a fact[-]finder would have to somehow separate Lance's suicide from the events leading to his suicide. However, I find it unlikely that, in drafting the statute, the Legislature intended parties who breached the standard of care to be absolved from liability because the act of isolating one's self in order to commit suicide is somehow separable from the act of suicide itself. Notwithstanding the difficulties inherent in requiring the fact[-]finder to divorce actions leading to suicide from the actual event, there is no factual support for such a submission in this case.
Id. at 336 (O'Neill, J., dissenting).
We agree with Justice O'Neill's analysis as applied in this case because the negligent actions of appellants' employees were ongoing and Hermes's suicide flowed from those actions. Moreover, it is noteworthy that Hermes committed suicide while still in the care of appellants' employees, not thirty-three hours after being released by a health care provider. See id., at 325. Because of the ongoing nature of the negligence, it would be extremely difficult for the jury to divorce Hermes's suicide from the events leading to his suicide. See id. at 336 (O'Neill, J., dissenting). Furthermore, we agree that the submission of a question to the jury regarding Hermes's proportionate responsibility circumvents section 93.001(a)(2), which provides that the affirmative defense of suicide may not be asserted if the defendant breaches an applicable legal duty and causes the suicide in whole or in part. See id; see also TEX. CIV. PRAC. REM. CODE ANN. § 93.001(a)(2). For example, if the jury had concluded that Hermes was 51% responsible for the complained-of injuries and that appellants were 49% responsible, appellants would not be allowed to assert the affirmative defense of suicide because they were 49% negligent or, in other words, were negligent in part in causing the suicide. See TEX. CIV. PRAC. REM. CODE ANN. § 93.001(a)(2). However, in such an event, Hermes would be precluded from recovering, despite the jury's conclusion that appellants were 49% negligent in the matter, because his negligence exceeded 50%. See id., § 33.001. Essentially, appellants would be insulated from liability and ostensibly given a second chance at asserting suicide as an affirmative defense if Hermes's proportionate responsibility is submitted, both of which contravene the Legislature's intent in promulgating chapter 33 and section 93.001(a)(2). See Dowel!, 262 S.W.3d at 336 (O'Neill, J., dissenting).
Regardless of which approach is applied in this matter, we arrive at the same conclusion. There is no evidence that Hermes took any "actions apart from the act of committing suicide" that violated an applicable standard of care. See id. at 332. Nurse Bergado and Doctor Tavarez both testified that Hermes was "alert and oriented" and followed their instructions for treatment. See Jackson, 221 S.W.3d at 654 (holding that a patient has a duty to cooperate with treating physicians, including cooperating in both diagnosis and treatment); See also Elbaor v. Smith, 845 S.W.2d 240, 245 (Tex. 1992) (same). Moreover, there is no evidence in the record clearly expressing Hermes's thoughts regarding the suicide; therefore, we cannot be certain whether Hermes's suicide was an intentional act or solely the result of Hermes's descent into madness that was partially caused by the negligence of appellants' employees; or, in other words, we cannot separate Hermes's suicide from the events leading to his suicide. See Dowell, 262 S.W.3d at 334 (O'Neill, J., dissenting) (citing Int'l Great N. R.R. Co. v. White, 103 Tex. 567, 131 S.W. 811, 812 (1910) (holding that a witness may not testify as to what a deceased person would have done because such testimony is mere speculation)).
Therefore, based on the foregoing, we would conclude that it was error to submit Hermes's proportionate responsibility once the jury rejected appellants' suicide affirmative defense. See TEX.R. CIV. P. 277 (requiring that apportionment questions be submitted to the jury in broad form); See also Romero v. KPH Consol, Inc., 166 S.W.3d 212, 215 (Tex. 2005) ("But broad-form submission [of apportionment questions] cannot be used to put before the jury issues that have no basis in the law or the evidence."). Despite this conclusion, appellees have not adequately explained how the submission of Hermes's proportionate responsibility harmed them. See TEX.R.APP. P. 38.1(i), 44.1. Specifically, appellees have failed to explain how the jury's damage award and proportionate responsibility calculations would change given the erroneous submission of Hermes's proportionate responsibility. Without clearly articulating the harm caused by the improper submission, we cannot conclude that the jury's verdict was improper. See Dowell, 262 S.W.3d at 331 (Wainwright, J., concurring) (stating that "[a] reviewing court may reverse and remand for a new trial based on alleged error in a jury charge only if such error was reasonably calculated and probably did cause the rendition of an improper judgment") (internal quotations omitted) (citing Sterling Trust Co. v. Adderley, 168 S.W.3d 835, 843 (Tex. 2005); Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995); Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986)). Accordingly, we overrule appellees' first cross-issue.
IV. SECTIONS 74.301 AND 74.303 — THE STATUTORY DAMAGE CAPS
By their second cross-issue, appellees argue that the trial court erroneously imposed the damage cap of $250,000, as provided in section 74.301(b) of the civil practice and remedies code, as opposed to the damage cap found in section 74.303. See TEX. CIV. PRAC. REM. CODE ANN. §§ 74.301(b), .303. Specifically, appellees assert that because their claims are wrongful death and survival actions based on a health care liability claim, section 74.303 rather than section 74.301(b), the damage cap applicable to ordinary health care liability claims, applies. See TEX. CIV. PRAC. REM. CODE ANN. §§ 74.301(b), .303. Appellants counter by arguing that the trial court correctly applied the $250,000 non-economic damage cap of section 74.301(b). See id. § 74.301(b). Appellants further argue that the plain language and legislative history of section 74.301(b) prove that the $250,000 non-economic damage cap applies to all health care liability actions, including wrongful death actions. See id.
A. Standard of Review
In analyzing appellees' second cross-issue, we must resort to the rules of statutory interpretation. Matters of statutory interpretation are questions of law, over which we exercise de novo review. Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). The primary rule of statutory construction is that a court must look to the intent of the Legislature and must construe the statute so as to give effect to that intent. See TEX. GOV'T CODE ANN. § 312.005 (Vernon 2005); See also Lee-Hickman's Invs. v. Alpha, Invesco Corp., 139 S.W.3d 698, 700 (Tex.App.-Corpus Christi 2004, no pet.) (per curiam) (citing City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex.App.-Austin 1998, no pet.)). It is a rule of statutory construction that every word of a statute must be presumed to have been used for a purpose, and each sentence, clause, and word is to be given effect if reasonable and possible. See Tex. Workers' Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000) (citing Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963)); see also Cameron v. Terrell Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981). Likewise, every word excluded from a statute must also be presumed to have been excluded for a purpose. See Cameron, 618 S.W.2d at 540. In addition, we do not view disputed portions of a statute in isolation. Del Indus., Inc., 35 S.W.3d at 593 (citing Bridge-stone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex. 1994)). We are to discern legislative intent from the plain meaning of the words of the statute. See Alpha Invesco Corp., 139 S.W.3d at 700 (citing L.S. Ranch, Ltd., 970 S.W.2d at 752).
B. Applicable Law
Section 74.301(b) provides that: In an action on a health care liability claim where final judgment is rendered against a single health care institution, the limit of civil liability for non[-]economic damages inclusive of all persons and entities for which vicarious liability theories may apply, shall be limited to an amount not to exceed $250,000 for each claimant.
TEX. CIV. PRAC. REM. CODE ANN. § 74.301(b). On the other hand, section 74.303 states that:
(a) In a wrongful death or survival action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for all damages, including exemplary damages, shall be limited to an amount not to exceed $500,000.00 for each claimant, regardless of the number of defendant physicians or health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based.
(b) When there is an increase or decrease in the consumer price index with respect to the amount of that index on August 29, 1977, the liability limit described in Subsection (a) shall be increased or decreased, as applicable, by a sum equal to the amount of such limit multiplied by the percentage increase or decrease in the consumer price index, as published by the Bureau of Labor Statistics of the United States Department of Labor, that measures the average changes in prices of goods and services purchased by urban wage earners and clerical workers' families and single workers living alone (CPI-W: Seasonally adjusted U.S. City Average-All items), between August 29, 1977, and the time at which damages subject to such limits are awarded by final judgment or settlement.
(c) Subsection (a) does not apply to the amount of damages awarded on a health care liability claim for the expenses of necessary medical, hospital, and custodial care received before judgment or required in the future for treatment of the injury.
Id., § 74.303(a)-(c).
The crux of this issue is whether what seems to be the more general provision, section 74.301(b), or the more specific provision, section 74.303, applies. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000) (determining that the judgment cap provisions of section 11.02 of former article 4590i prevail over the general pre-judgment interest provisions of article 5069-1.05); cf. TEX. GOV'T CODE ANN. § 311.026 (Vernon 2005) (providing that, when construing code provisions that are irreconcilable, "the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail"). On appeal, neither party cites any case law addressing the interplay between sections 74.301(b) and 74.303; however, in researching this issue, we were able to find one case from the Amarillo Court of Appeals addressing this precise issue. See THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 583-89 (Tex.App.-Amarillo 2010, no pet. h.).
In all fairness, the Amarillo Court of Appeal's decision in THI of Texas at Lubbock I, LLC v. Perea, was handed down on July 28, 2010, and the parties' briefs arguing this cross-issue were filed in May and August 2009. See 329 S.W.3d 548, 583-89 (Tex.App.-Amarillo 2010, no pet. h.).
In Perea, the appeals court stated the following:
We find no cases which directly decide this issue [the interplay between sections 74.301(b) and 74.303]. However, because the two statutory provisions do not conflict on their face, in order to give full effect to the intent of the Legislature, we see no reason why one cap should apply to the exclusion of the other cap. Neither the express wording of the applicable statutes, nor their legislative history indicates that the Legislature intended anything other than to apply both caps. Therefore, we conclude that both caps can be applied, and should be applied.
Id. at 587.
The plain language of section 74.301(b) limits a health care provider's civil liability for non-economic damages at $250,000 per claimant, while section 74.303 limits the health care provider's total civil liability, including economic and non-economic damages but excluding "necessary medical, hospital, and custodial care" costs, at $500,000 per claimant. We agree that both section 74.301(b) and section 74.303 can and should be applied together. See id. at 585-87.
In any event, appellees have not argued that the statutes are in conflict. Instead, they argue that, by including the "wrongful death and survival action on a health care liability claim," the Legislature intended to apply the section 74.303 cap to such claims, while the section 74.301(b) cap applies to "common[-]law negligence health care liability claims." In applying section 74.303, as explained by appellees, the trial court's damage award should have been $1,788,325 rather than $728,980.98. We disagree. Because sections 74.301(b) and 74.303 can and should be read together, see id. at 586, we cannot say that section 74.303 applies solely to the exclusion of section 74.301(b) in this case. Furthermore, appellees have not cited to any authority directly on point.
In its damages award, the jury awarded the following:
1. Diana: $123,000 in economic damages; $800,000 for past and future loss of companionship and society; and $750,000 for past and future mental anguish for a total of $ 1.55 million in non-economic damages;
2. Sarah: $87,000 in economic damages; $ 1 million for past and future loss of companionship and society; and $1 million for past and future mental anguish for a total of $2 million in non-economic damages.
3. Lauren: $87,000 in economic damages; $1 million for past and future loss of companionship and society; and $1 million for past and future mental anguish for a total of $2 million in non-economic damages.
4. Alejandro: $87,000 in economic damages; $1 million for past and future loss of companionship and society; and $ 1 million for past and future mental anguish for a total of $2 million in non-economic damages.
5. Hermalinda: $100,000 in past and future economic damages; $500,000 for past and future loss of companionship and society; and $500,000 for past and future mental anguish for a total of $1 million in non-economic damages.
In addition, several commentators, after reviewing the statutes and transcripts of the hearings on the Tort Reform Act of 2003, commonly known as House Bill 4, have expressed that the Legislature intended for "the wrongful death cap" to be "an aggregate cap on all damages. Thus, section 74.303 will apply secondarily to any cap on non-economic damages. Therefore, any damage award will be limited by applying the non-economic damage cap in section 74.301, and then will further be limited by applying the total cap of section 74.303." Jeff Watters, Better to Kill than to Maim: The Current State of Medical Malpractice Wrongful Death Cases in Texas, 60 BAYLOR L. REV. 749, 760 (2008); see Michael S. Hull et al., House Bill U and Proposition 12: An Analysis with Legislative History, Part Three, 36 TEX. TECH L. REV. 169, 175, 243 n. 464 (2005) (stating, after consulting with Former Chairman of the Texas Senate Robert L. Duncan and Former Chairman of the Texas House of Representatives, Joseph M. Nixon, that "[a]s an aggregate cap on all damages, the wrongful death and survival action cap will apply secondarily to any cap on non[-]economic damages. Therefore, any damage award will be limited by applying the non[-]economic damage cap, and then will be further limited by applying the total cap in cases where it applies. . . . Nothing in the Act forces the defendant to choose one cap to the exclusion of any other caps that might also apply.").
Based on the foregoing, we believe that the Legislature intended for the wrongful death and survival action cap, section 74.303, to apply secondarily to the cap on non-economic damages, section 74.301(b), especially considering that appellees' wrongful death and survival claims arose out of a health care liability claim. See TEX. CIV. PRAC. REM. CODE ANN. §§ 74.301(b), 74.303; see also TEX. GOV'T CODE ANN. § 312.005; Alpha Invesco Corp., 139 S.W.3d at 700; L.S. Ranch, Ltd., 970 S.W.2d at 752. We do not believe that section 74.303 should be read to the exclusion of section 74.301(b). See TEX. CIV. PRAC. REM. CODE ANN. §§ 74.301(b), 74.303.
In this case, the trial court did not award any of the five claimants more than $250,000 in non-economic damages individually. In fact, the sum total of non-economic damages awarded to the claimants was $250,000. This figure comports with section 74.001(a)(2)'s requirement that "all persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant" and the $250,000 damage cap provided in section 74.301(b). See id. §§ 74.001(a)(2) (Vernon 2005), 74.301(b); see also Perea, 329 S.W.3d at 586 (concluding that for purposes of applying the health care liability damage caps, the estate of the deceased and the deceased's four sons all constituted one claimant). We cannot say that the trial court erred in applying the damage cap provisions provided in sections 74.301(b) and 74.303. See TEX. CIV. PRAC. REM. CODE ANN. §§ 74.301(b), 74.303. Accordingly, we overrule appellees' second cross-issue.
V. CONCLUSION
Because we have overruled all issues and cross-issues on appeal, we affirm the judgment of the trial court.