                              NO. 07-02-0011-CV

                         IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                                AT AMARILLO

                                   PANEL E

                                 MAY 19, 2003

                      ______________________________


                 CRESTHAVEN NURSING RESIDENCE; CANTEX
                  HEALTHCARE CENTERS D/B/A CRESTHAVEN
                NURSING RESIDENCE; BRATEX, INC.; GAMTEX,
                INC.; MEDCO MEDICAL SERVICES; ONTEX, INC.;
                       AMLON U.S.A., INC., APPELLANTS

                                      V.

            DEBORAH FREEMAN, INDIVIDUALLY, AND ON BEHALF
          OF THE ESTATE OF WANDA GRANGER, ET AL., APPELLEES

                    _________________________________

          FROM THE 60TH DISTRICT COURT OF JEFFERSON COUNTY;

            NO. B155491; HONORABLE GARY SANDERSON, JUDGE

                      _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1


                         ON MOTION FOR REHEARING


      Appellants Cresthaven Nursing Residence, Cantex Healthcare Centers d/b/a




      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
Cresthaven Nursing Residence, Bratex, Inc., Gamtex, Inc., Medco Medical Services,

Ontex, Inc., and Amlon U.S.A., Inc. have filed a motion for rehearing of our February 5,

2003 opinion in this cause.


       In their motion, without waiving their right to seek review by the supreme court of

all the issues they presented and which we discussed in our prior opinion, they present two

issues for our decision. Those issues are:


      1. Whether the court’s opinion conflicts with the Texas Supreme Court’s
      holding in Columbia Hospital Corporation v. Moore, 92 S.W.3d 470 (Tex.
      2002) that prejudgment interest on damages subject to the limitation on civil
      liability for damages under section 11.02(a) of article 4590i of the Texas
      Revised Civil Statutes, is included within that damages cap.

      2. Whether the cap amount is calculated by adjusting the $500,000 statutory
      limitation by the Bureau of Labor Statistics’ consumer price index identified
      as “CPI-W,” the index for urban wage earners and clerical workers, rather
      than the consumer price index identified as “CPI-U,” the consumer price
      index for all urban consumers, pursuant to section 11.01 of article 4590i.


We have also asked for, and received, a response to appellants’ motion from appellees.

See Tex. R. App. P. 49.2.


       Because our disposition of appellants’ first issue does conflict with the decision of

the supreme court in Columbia Hospital Corporation, which was decided after this appeal

was perfected, we are obligated to answer both the questions affirmatively. Accordingly,

appellants’ motion for rehearing is granted to that extent. The parties have agreed that if

this motion is granted, the adjusted damage cap applicable to the judgment would be

$1,413,008.13. They have also agreed that the amount of $1,413,008.13 was calculated

                                             2
by adjusting the $500,000 statutory limitation by the Bureau of Labor Statistics’ consumer

price index identified as “C.P.I.-W,” the index for urban wage earners and clerical workers,

rather than the consumer price index identified as “C.P.I.-U,” the consumer price index for

all urban consumers, pursuant to section 11.01 of article 4590i.


       We remain satisfied with the disposition and discussion of the issues presented in

this appeal, with the exception of that portion of the opinion to which the motion for

rehearing was directed. Accordingly, we grant appellants’ motion for rehearing as

provided above.


       A portion of the decretal provision of the judgment of the trial court is modified to

provide that appellees recover damages in the amount of $1,413,008.13 from appellants

Cresthaven Nursing Residence; Cantex Healthcare Centers d/b/a Cresthaven Nursing

Residence; Bratex, Inc.; Gamtex, Inc., Medco Medical Services; Ontex, Inc.; and Amlon

U.S.A., Inc., jointly and severally, in the amount of $1,413,008.13, together with interest

thereon at the rate of 10% per annum from August 30, 2001, until paid. Tex. R. App. P.

43.2. As modified, the judgment of the trial court is affirmed.



                                                 John T. Boyd
                                                 Senior Justice




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