author: Opinion by Justice HINOJOSA.

text:
    Edwin OWENS, M.D., Appellant, v. Domingo PEREZ as Next Friend of Maria SAN JUANA MORIN, A Non Compos Mentis, Appellee.
    No. 13-01-00876-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 3, 2005.
    Rehearing Overruled April 7, 2005.

      Linda C. Breck, Thomas F. Nye, Robert W. Clore, Brin & Brin, Corpus Christi, for appellant.
    Alex M. Miller, San Antonio, Richard E. Zayas, Brownsville, for appellee.
    Before Justices HINOJOSA, YÁÑEZ, and GARZA.
   OPINION

Opinion by Justice HINOJOSA.

This is a medical malpractice case. Ap-pellee, Domingo Perez (“Perez”), as next Mend of Maria San Juana Morin (“Morin”), a non compos mentis, sued appellant, Edwin Owens, M.D. (“Dr.Owens”), and others after Morin, suffered a third-degree burn to her arm during or after outpatient eyelid surgery. A jury found that Dr. Owens, the anesthesiologist during the surgery, was thirty percent responsible for the negligence that caused the burn and found damages totaling $500,000. In four issues, Dr. Owens contends: (1) the evidence is legally and factually insufficient to show that he caused the burn; (2) the trial court abused its discretion in excluding the testimony of Margie Cornwell, M.D. (“Dr.CornweH”); (3) the evidence is legally and factually insufficient to support the medical damages awarded by the jury; and (4) the trial court abused its discretion in appointing an ad litem to represent Morin’s interests and taxing ad litem fees against him. We reform the trial court’s judgment and, as reformed, affirm.

I. SUFFICIENCY OF THE EVIDENCE

In his first issue, Dr. Owens contends the evidence is legally and factually insufficient to establish that he breached the standard of care or that he proximately caused appellee’s burn.

A. Standard of Review

When we review a “no evidence” or legal sufficiency of the evidence issue, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). A no evidence issue will be sustained when the record discloses that: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is not more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711.

When we review an “insufficient evidence” or factual sufficiency of the evidence issue, we consider, weigh and examine all of the evidence which supports or undermines the jury’s finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We review the evidence, keeping in mind that it is the jury’s role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses’ testimony. Wilhelm v. Flores, 133 S.W.3d 726, 732 (Tex.App.-Corpus Christi 2003, pet. filed). We set aside the verdict only when we find that the evidence standing alone is too weak to support the finding or that the finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

B. Medical Malpractice

To prevail, a plaintiff in a medical malpractice case must prove the following four elements: (1) a duty by the physician to act according to a certain standard; (2) a breach of the applicable standard of care; (3) injury or harm- to the plaintiff; and (4) a causal connection between the breach of the applicable standard of care and the injury or harm. Krishnan v. Ramirez, 42 S.W.3d 205, 212 (Tex.App.-Corpus Christi 2001, pet. denied). The jury is usually allowed to decide the issue of causation: (1) when general experience and common sense will enable a layman fairly to determine the causal relationship between the event and the condition; (2) when scientific principles, usually proved by expert testimony, establish a traceable chain of causation from the condition back to the event; and (3) when probable causal relationship is shown by expert testimony. Duff v. Yelin, 751 S.W.2d 175, 177 (Tex. 1988). To establish proximate cause, a plaintiff must prove foreseeability and cause in fact. Id. at 176. Regarding cause in fact, the plaintiff must establish a causal connection based upon “reasonable medical probability,” not mere conjecture, speculation, or possibility. Id.

The rule of “reasonable medical probability” relates to the showing that must be made to support an ultimate finding of fact and not to the standard by which the medical expert must testify. Lenger v. Physican’s Gen. Hosp., 455 S.W.2d 703, 707 (Tex.1970). Expert testimony concerning the possible causes of the condition in question will often assist the jury in evaluating other evidence in the case. Id. However, a plaintiff is not required to establish causation in terms of medical certainty, nor is he required to exclude every other reasonable hypothesis. Krishnan, 42 S.W.3d at 212.

C. Analysis

Maria Morin, eighty-six years of age, was a resident of Villa Residential Care Homes, Inc, an assisted living center. On February 26, 1998, Morin was taken to Dolly Vinsant Hospital for an out-patient surgical procedure on her eyelid. Dr. Owens served as the anesthesiologist for Morin’s procedure, during which an IV was run into Morin’s right hand. Following surgery, Morin’s right hand showed signs of injury, which were ultimately determined to be third degree burns. Morin required two surgical debridements and three skin grafts. Morin’s suit against Dr. Owens was based on the theory that Morin’s IV fluid had been excessively heated.

Yolanda Rodriguez, a Villa Residential employee, testified that Morin had no injuries to her arm when Rodriguez accompanied Morin to the hospital two days prior to surgery. At this time, Morin’s hospital’s medical records show that Morin was oriented, alert, and demonstrated her understanding of her surgical orders.

Consuelo Gonzales, the licensed vocational nurse at Valley Baptist Medical Center who treated Morin during pre-opera-tive procedures before Morin was taken in to surgery, had no independent recollection of Morin but testified after reviewing Morin’s medical records. Gonzales’s testimony illustrates several inconsistencies in Morin’s chart. Gonzales testified that Dr. Owens’ orders for the surgery specified that Morin was to receive lactated ringers solution (a salt-based solution) in her IV. Nevertheless, Morin’s pre-operation report showed that Morin received an IV of D5W dextrose solution (a sugar-based solution). In contrast, the post-operative report and the billing report state that Morin received lactated ringers solution. The billing report indicates only one bag of fluid was administered.

Dr. Owens’s surgical orders called for nurses to utilize a .20 jelco needle to insert the catheter for the IV. Nevertheless, Morin’s pre-operation report showed that nurses instead utilized a .22 jelco needle, attempting the insertion of the catheter in three separate locations. In contrast, the anaesthesia records showed that a .20 jelco needle was used.

Gonzales testified that she has never used heated fluids in an IV, although she was aware that Dolly Vinsant sometimes used heated fluids. She admitted IVs are sometimes changed in the operating room, and if an IV is changed, then the needles used are also changed. After Gonzales assisted Morin, Morin was taken to surgery.

Gonzales testified that Nurse Richardson was in charge of the notations on the pre-operation and post-operation reports. She said that Richardson was a competent nurse. At the time of trial, Richardson was no longer employed by Valley Baptist, as were any of the other four employees that had actually been involved in Morin’s surgery.

Dr. Owens testified that he had no independent recollection of Morin’s surgery. Dr. Owens testified: (1) that he sometimes uses heated IV fluids at the hospital; (2) when he uses heated TV fluids, he does not note it in the patient’s chart; and (3) he often changes TV fluids in the operating room. According to Dr. Owens, the only way to warm IV fluids was to use the warmer in the surgical suite, and then transfer it to the ambulatory care unit, where Morin’s surgery took place. Dr. Owens also testified that the first bag of IV fluids is usually not heated, and that he has never used heated IV fluids in an eyelid surgery. Dr. Owens testified that heated IV fluids are only used in surgery when there is a great blood loss to keep the patient warm, and Morin’s eyelid surgery did not require heated IV fluids. Dr. Owens said it was not his “habit” to give warm fluids to a “case like this.” Similarly, Dr. Richard B. Hecker, chief of anesthesia at Christian Santa Rosa Children’s Hospital, testified he would never use heated TV fluids in an eyelid surgery, and that most anesthesiologists would not use heated IV fluids in an eyelid surgery.

Dr. Owens said that Morin went into surgery with an TV solution bag containing 500 cc of fluid. He testified that Morin’s records show that only 300 cc of fluid were used during surgery and 200 cc of fluid were left in the bag after the surgery, therefore, Dr. Owens concluded that only one bag of fluid was administered to Morin. In connection with this testimony, the anesthesia record indicates that the total amount of fluid administered to Morin was 300 cc. However, according to other evidence adduced at trial, the post operative report shows that 300 cc remained in the bag, and further indicates that Morin received an additional 100 cc of fluid during her stay in recovery.

Dr. Owens acknowledged that Morin’s hospital chart showed at least two different types of IV solution. He further acknowledged that there were several instances in Morin’s records indicating that Morin said the pain, redness, and swelling began after the IV, and she never indicated that it was an external burn.

Dr. Owens testified that it was not possible, under any circumstances, that Morin’s injuries were caused by the IV. Dr. Owens stated that there was “no way” an IV could cause an injury like Morin’s. Dr. Owens did acknowledge, however, that certain TV's could cause a progressive injury, as did defense expert Dr. Luis Rios, a hand surgeon.

Dr. Owens admitted that he was ultimately responsible for Morin and the condition of her IV; however, he was not responsible if a scalding IV burned her if he was not told about it and he did not order it. Upon cross examination, Dr. Owens conceded that his sworn requests for admissions, in which he denied ordering the IV, were incorrect. Dr. Owens testified that he has never witnessed medical negligence.

According to the medical records, following the surgery, Morin was “assisted” into a recliner “without difficulty.” Morin’s records stated that Morin was awake and alert when discharged from the hospital following surgery, and no redness, swelling or edema was noted at the IV site.

Following the surgery, Morin returned to Villa Residential at approximately 5:00 or 6:00 p.m. Rodriguez and another employee assisted Morin in alighting from the van and into her bed. According to Rodriguez, Morin appeared very weak and the employees had to carry a great deal of Morin’s weight while walking her to her room. In contrast to the hospital’s medical records, Rodriguez testified that Morin was drowsy and appeared to still be sedated. Rodriguez testified that Morin told Rodriguez that her arm hurt. The employees put Morin straight to bed. That evening, Morin was atypically incontinent. The incident report for the 26th showed that Morin was weak and required assistance, and was observed “frequently” by employees.

Juanita Villarreal, the assistant executive director and licensed vocational nurse at Villa Residential, testified that no one at Villa Residential applied any heat to Morin, whether in the form of a heating pad or bag or other heat source, nor would staff have applied any type of compress to Morin’s arm. Morin could not have burned herself with hot water at Villa Residential because the water is regulated at 122 degrees. Rodriguez also testified that there were no heating devices in Morin’s room or elsewhere at Villa Residential that could possibly have caused the burn. Villarreal reviewed Morin’s belongings when she was discharged from Villa Residential and she saw nothing that could cause a burn.

According to Rodriguez, it was impossible for Morin to have burned herself after the surgery because Morin was asleep from her return from the hospital until the following morning. On February 27th, at approximately 6:00 or 6:30 a.m., attendant Gloria Hernandez noticed that Morin, who usually came to breakfast, had not appeared for breakfast. Hernandez went to get Morin and found her sitting up in bed. Morin again complained of pain in her hand and arm, and Hernandez saw that Morin’s hand was red, warm, and swollen. Hernandez administered Tylenol. Rodriguez did not complete an incident report on the 27th regarding Morin’s complaints of pain in her arm “because everybody hurts when they pull the IV.” That day, a nurse from Valley Baptist Medical Center telephoned and inquired about Morin’s status. When Rodriguez told the nurse that Morin’s arm was hurting, the nurse said, “Well I hope it wasn’t the arm where she had the IV.”

The following day, February 28, Morin’s hand was worse. It was swollen, red, and purplish with a “bruised” appearance. The employees at Villa Residential took her to Dr. Sunil John, whose records indicated that Morin was alert and oriented, and that Morin related that she had experienced pain and swelling in her hand since the IV. John referred Morin to an orthopedic surgeon, Dr. Herman Keillor. Dr. Keillor’s initial notes from examining Morin show:

She allegedly had some type of eye surgery on Tuesday this past week and said there was an IV line in her right wrist. She has had pain and swelling since that time. Now more dramatically the hand has become severely swollen with fluid in the dorsum of the wrist. The skin is dark. It looks much like a burn. On the radial aspect of the wrist there is a white area that looks deep second degree. It is almost as if this had been burned and yet no heat had been applied ... she is very poor historian.

Dr. Keillor testified that he attempted to get Morin to acknowledge that external heat had been applied to her hand in some form, but Morin denied this. Dr. Keillor concluded that Morin’s testimony was “not valid upon examining her the first day[.]”

Dr. Keillor hospitalized Morin and performed two surgical debridements, including the removal of some of the veins in Morin’s arm, and three separate skin grafts to her hand, wrist, and forearm. Morin was hospitalized from February 28, 1998 to March 23, 1998, when she was discharged to a nursing home.

Dr. Keillor, who served on Dolly Vin-sant’s board for quality care, acknowledged that Dolly Vinsant sometimes utilized heated IV fluids. Dr. Keillor stated that fluids could be heated in a microwave. He testified that an internal burn would require the administration of IV fluids heated to approximately 160 to 180 degrees. He said a person would not be able to hold an IV bag heated to those temperatures. He further testified that a burn caused by the administration of heated IV fluids would cause redness, swelling, and blistering at the IV site within twenty to thirty minutes, and this did not occur in Morin’s case. In Dr. Keillor’s opinion, Morin’s burn was caused by an external heat source, specifically, low heat applied one to three days after her surgery, for a duration of six to eight hours. Although Dr. Owens denied any relationship with Dr. Keillor, Dr. Keillor spoke with Dr. Owens, whom he referred to as “a good friend,” about the case on two occasions, and recounted socializing with Dr. Owens at his home.

Villarreal testified that before the surgery Morin enjoyed dancing and singing and was very happy at Villa Residential. Domingo Perez testified that before this incident Morin spoke, walked, and fed and groomed herself. After the burn, Perez couldn’t talk to her. “She complained a lot. She couldn’t — [.]” He said that after the hospitalization, Morin started to speak a “little” better, but then was no longer able to communicate verbally.

At trial, appellee presented the expert testimony of anesthesiologist, Dr. Richard F. Toussiant, Jr. Dr. Toussiant testified that medical personnel use heated IV fluids when administering large quantities of fluids and to keep certain patients, such as elderly or pediatric patients, from becoming hypothermic. He said that medical personnel do not always note in the hospital records when they use heated fluids. Dr. Toussiant testified:

the only way this [burn] could have happened was with the administration of something hot. And given the distribution of the injury in the area of the IV site, I’ve concluded that high temperature fluids were administered through the IV[and] that the administration of excessively heated fluid through an IV causing an injury is below the standard of care.

Dr. Toussiant also testified that the type of injury and progressive nature of the injury indicated the use of heated IV fluids. He opined that a heating pad did not cause the burn because: (1) the injury appeared the morning after the surgery and worsened over time, which was consistent with an internal burn rather than a burn caused by external heat; (2) the pattern of the injury was inconsistent with the type of burn a heating pad would have produced; and (3) a heating pad would not be appropriate treatment for phlebitis. Toussiant said that within reasonable medical probability, the “only” mechanism for the injury was the administration of heated IV fluids. Upon cross-examination, Dr. Toussiant acknowledged that “most” people would show signs and symptoms of such a burn within twenty to thirty minutes.

After reviewing the evidence in a light that tends to support the jury’s finding and disregarding all evidence and inferences to the contrary, we conclude there is more than a scintilla of evidence to support the verdict. Stafford, 726 S.W.2d at 16. Accordingly, we hold the evidence is legally sufficient to support the jury’s finding that Dr. Owens breached the standard of care and that he proximately caused Morin’s burn.

After reviewing the entire record, we also conclude that the jury’s finding is not so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). Morin showed no sign of injury prior to surgery. Neither Dr. Owens nor any other medical personnel recalled Morin’s surgery. Doctors and nurses acknowledged using high-temperature IVs on occasion and such use would not be noted in a patient’s medical records. Morin’s burns occurred on the arm with the IV in the specific area where the IV was placed. Morin complained to Villa Residential employees that her arm hurt immediately upon her return from surgery. The burns were first seen by the staff at Morin’s nursing home when Morin arose from bed the morning following the surgery. The burns appeared progressively worse over time, which is consistent with an internal burn rather than a burn from an external heat source. The staff at the nursing home said the burn did not and could not have occurred at the nursing home. Expert witness Dr. Toussiant testified that, within reasonable medical probability a heated IV was the “only” way Morin’s burns could have happened.

Dr. Owens contends there is no direct evidence that heated IV fluids were administered to Morin, and the circumstantial evidence presented does not establish that he administered any heated IV fluids to Morin. However, the jury is allowed to consider circumstantial evidence, weigh the credibility of the witnesses, and make reasonable inferences from the evidence it chooses to believe. See Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 797 (1951). Given the numerous conflicts in Morin’s medical records and the conflicting testimony from Dr. Owens and other witnesses, we defer to the jury’s determination.

Accordingly, we hold the evidence is factually sufficient to support the jury’s finding that Dr. Owens breached the standard of care and that he proximately caused Morin’s burn. We overrule Dr. Owens’ first issue.

II. ExpeRT Testimony

In his second issue, Dr. Owens complains the trial court abused its discretion by excluding Dr. Cornwell’s testimony that the source of Morin’s burn was external. Dr. Owens contends Dr. Cornwell’s testimony was critical and necessary for his defense. We review a trial court’s decision to strike an expert’s testimony under an abuse-of-discretion standard. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998).

After performing skin-graft surgery on Morin, Dr. Keillor sent a tissue sample to Dr. Cornwell for pathological analysis. In a March 9, 1998, report, Dr. Cornwell made the following diagnosis: “debridement: necrosis with acute inflammation consistent with clinical history of third-degree burn.”

On May 22, 2001, Dr. Owens filed his designation of expert witnesses and included Dr. Cornwell as a treating pathologist. On June 18, 2001, Dr. Cornwell’s deposition was taken.

On June 25, 2001, immediately before jury selection, the trial court considered the parties’ motions in limine. During the pre-trial hearing, the court asked whether anyone wanted to strike any witnesses. Appellee’s attorney stated:

There ... is a Doctor Margie Cornwell who is a pathologist with Valley Baptist Medical Center. She issued a report back at the time of the incident, and the report basically says: Third degree burns. That is an undisputed claim in this case.... Since that time, in the last few months she had come up with additional opinions of source and causation of burn, and she has testified under oath to that.

A colloquy subsequently occurred regarding whether Dr. Cornwell had been designated as an expert witness and whether she was an expert on burns and causation. Dr. Owens’ counsel informed the court that a Daubert/Robinson motion had not been filed and that such a motion was the proper vehicle to object, instead of a motion in limine. The trial court then stated:

[t]he pathologist, if she made the findings two years ago ... and she recalls some things about it.... She is not going to be allowed to change ... her opinion about, or make any different finding[s] about it. If she thought it was all right at that point in time, she should have done it ... instead of waiting two or three years down the road when you’re suing the doctors and the hospital and saying, well, it is different now.

The court subsequently stated:

I don’t think that for purposes of voir dire, it is necessary to get into that with the jury.... I will take care of it at the time of the trial itself, and I will hear that motion outside the presence of the jury again.

A jury was selected and impaneled on June 25, 2001. The next morning, appellee filed a motion to exclude Dr. Cornwell, asserting a Daubert/Robinson challenge. In the motion, appellee claimed that Dr. Cornwell did not meet the six Dau-bert/Robinson factors. On June 27, 2001, the trial court signed an order granting appellee’s motion to exclude Dr. Cornwell’s testimony. In the order, the court stated it had determined Dr. Cornwell did not meet the six Daubert/Robinson factors.

On June 28, 2001, counsel for Dolly Vin-sant Memorial Hospital (“the Hospital”) called Dr. Cornwell as a witness. Because of the prior exclusion order, the trial court was asked whether it wanted to hear Dr. Cornwell’s testimony outside the presence of the jury. The court replied:

I guess. I don’t have any problem hearing it. I think you are only going through qualifications.... I think everybody will stipulate that she is a very good pathologist. I have no problem with her pathology expertise. She has testified in many murder cases, in my court.

The Hospital’s attorney then examined Dr. Cornwell outside the presence of the jury regarding her qualifications as an expert witness. After the jury returned to the courtroom, the Hospital’s attorney asked Dr. Cornwell about her qualifications and the diagnosis she had made in her pathology report. At a bench conference, the Hospital’s attorney asked the court for permission to question Dr. Cornwell regarding the cause of Morin’s burn. The trial court denied the Hospital’s request, and Dr. Cornwell was excused.

Later, the Hospital’s attorney made a formal bill of exception outside the presence of the jury. See Tex.R.App. P. 33.2. Dr. Cornwell opined that the burn was caused by an external heat source, and also testified regarding her qualifications and opinions as an expert.

A ruling on a motion in limine is a tentative ruling and preserves nothing for appeal. See Southwest Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex.App.-Fort Worth 1999, pet. denied). To preserve a complaint regarding the exclusion of evidence, the complaining party must actually offer the evidence during the trial and secure an adverse ruling from the court. Wyler Indus. Works, Inc. v. Garcia, 999 S.W.2d 494, 511 (Tex.App.-El Paso 1999, no pet.); see also Tex.R.App. P. 33.1(a).

The record shows that Dr. Owens obtained a ruling on appellee’s motion in limine prohibiting Dr. Cornwell from testifying regarding the cause of Morin’s burn. However, Dr. Owens did not actually offer the evidence during the trial and secure an adverse ruling from the court. Dr. Owens neither asked the trial court for permission to examine Dr. Cornwell regarding the cause of Morin’s burn, nor did he join in the Hospital’s request to examine Dr. Cornwell regarding the cause of Morin’s burn.

Accordingly, we hold that Dr. Owens did not preserve this issue for our review. See Tex.R.App. P. 33.1. Appellant’s second issue is overruled.

III. Past Medical Expenses

In his third issue, Dr. Owens contends: (1) the evidence is legally and factually insufficient to support the jury’s finding of past medical expenses of $141,000; (2) alternatively, the evidence is legally and factually insufficient to support the jury’s finding of past medical expenses in excess of $60,561.74; and (3) alternatively, the jury’s finding of $141,000 is contrary to the stipulations of the parties.

The jury heard the following evidence regarding Morin’s past medical expenses: (1) testimony from Dr. Keillor; (2) billing records from Harlingen Bone & Joint Clinic totaling $7,719.69; (3) billing records from San Juan Nursing Home totaling $91,291.31; and (4) billing records from Valley Baptist Medical Center totaling $42,821.43.

Dr. Owens argues that only the first three months of Morin’s stay at the San Juan Nursing Home, totaling $10,020.63, is attributable to the treatment of her injury. Dr. Owens’ argument is based on the following testimony from Dr. Keillor:

Q: In your chart I noticed that you wanted her having skilled nursing care after her discharge from Valley Baptist, correct?
A: Yes.
Q: And in your chart, you say she needs two more weeks of skilled nursing care, and this was ten weeks after the jury-I mean, this was ten weeks post injury[,] ten weeks post discharge from Valley Baptist. So she had been at the San Juan Nursing Home for ten weeks and you said she needed ten weeks and you said she needed two more weeks of skilled nursing home. Does that make sense to you?
A: If I said that it was because we were having trouble with the donor site and I didn’t want that to get infected again.
Q: And for that three month period after your treatment, after she was discharged from Valley Baptist that three month period of nursing home care was ... to treat her burn; correct?
A: Yes.
Q: ... Can you tell me what the bill was, for the first three months of nursing home care for Mrs. Morin?
A: $10,020.63.
Q: Was that reasonable and necessary for her care?
A: Again, I don’t know the nursing home standards. But I do know a lot of — there is dressing changes, so, over and above the standard nursing home care she had skilled care. And the skilled care was to work on these wounds.
Q: So the degree of necessary ... care was higher in this place than an ordinary custodial care?
A: Right.

We initially note that the record does not contain a stipulation that would affect the amount of damages. As evidence of a stipulation, Dr. Owens refers us to a colloquy between counsel at the bench during closing argument. However, the exchange between counsel does not show the existence of such an agreement. Moreover, there is no written documentation in the record evidencing a stipulation. See Tex.R. Crv. P. 11 (“no agreement between attorneys or parties ... will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”).

The billing records from San Juan Nursing Home were submitted pursuant to Texas Civil Practice and Remedies Code section 18.001. See Tex. Crv. PRAC. & Rem.Code Ann. § 18.001 (Vernon 1997). Section 18.001(b) touches upon three elements of proving damages for past medical expenses: (1) the amount of the charges for medical services; (2) the reasonableness of the charges; and (3) the necessity of the charges. See Tex. Civ. PRAC. & Rem.Code Ann. § 18.001(b) (Vernon 1997); Walker v. Ricks, 101 S.W.3d 740, 747-48 (Tex.App.-Corpus Christi 2003, no pet.); Barrajas v. VIA Metro. Transit Auth., 945 S.W.2d 207, 209 (Tex.App.-San Antonio 1997, no writ). However, evidence presented in accordance with the statute does not conclusively establish the amount of damages nor does it establish a causal nexus between the accident and the medical expenses. Walker, 101 S.W.3d at 748; Sloan v. Molandes, 32 S.W.3d 745, 752 (Tex.App.-Beaumont 2000, no pet.); Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex.App.-Eastland 1995, no writ); see also Barrajas, 945 S.W.2d at 208 n. 1. A plaintiff may recover only for reasonable and necessary medical expenses specifically shown to result from treatment made necessary by the negligent acts or omissions of the defendant, where such a differentiation is possible. See Texarkana Memorial Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex.1997).

We conclude the evidence is legally and factually sufficient to support the jury’s finding of past medical expenses. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.1998). The business records affidavit for San Juan Nursing Home states that “the service provided was necessary” and the amount charged for the service, “$91,291.31,” was “reasonable at the time and place that the service was provided.”

We note that Dr. Owen did not file counter-affidavits disputing the reasonableness or necessity of the expenses. See Tex. Civ. PRAC. & Rem.Code Ann. § 18.001(e) (Vernon 1997) (“A party intending to controvert a claim reflected by the affidavit must file a counteraffidavit....”). In the absence of a counteraffidavit, we conclude that the business records suffice to support a fact finding regarding the reasonableness and necessity of Morin’s medical expenses. See Tex. Civ. PRAC. & Rem.Code Ann. § 18.001(a) (Vernon 1997) (“Unless a controverting affidavit is filed ... an affidavit is sufficient evidence to support a finding of fact....”).

Rather than filing a counter-affidavit, Dr. Owen relied on evidence developed through the cross-examination of Dr. Keillor. Dr. Keillor’s testimony indicates that Morin’s injuries required three months of skilled nursing care; however, it does not affirmatively establish that the remainder of Morin’s period of skilled nursing care was unnecessary. To the extent that Dr. Keillor’s testimony could be construed to limit Morin’s past medical expenses, we note that it is the jury’s role to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses’ testimony. Wilhelm, 133 S.W.3d at 732. In determining the sufficiency of the evidence, appellate courts must accept the jury’s resolution of any conflicts or inconsistencies in the evidence. Barrajas, 945 S.W.2d at 209.

In this regard, we note that Morin was eighty-six years old at the time of her injury. It is well settled that a tortfeasor takes a plaintiff as he finds her. Coates v. Whittington, 758 S.W.2d 749, 752 (Tex. 1988). From testimony presented at trial, Morin was happy, mobile, and talkative prior to her injury. After her injury, Morin was hospitalized for a period in excess of three weeks, during which she underwent two surgical debridements and a surgical graft. The testimony regarding Morin’s physical state following the injury, although scant, indicates a significant decline in Morin’s capacity. The jury may have inferred that Morin required additional skilled nursing care based on her declining state.

Further, the jury was instructed to determine the damages that would “fairly and reasonably compensate Maria San Juana Morin, for her injuries, if any, that resulted from the occurrence in question.” Unless the record demonstrates otherwise, we presume that the jury followed this instruction in answering the damages question. See, e.g., Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex. 2003). In our evaluation of the evidence, we note that the jury did not uniformly find all items of expenses requested by Morin. Accordingly, Dr. Owens’ third issue is overruled.

TV. Appointment of Ad Litem

In his fourth issue, Dr. Owens contends the trial court abused its discretion in appointing an ad litem to represent Morin’s interests because no conflict of interest existed between Morin and Perez, her next friend.

On May 2, 2001, after finding that an ad litem needed to be appointed to represent Morin’s interests, the trial court signed an order appointing Ernesto Ga-mez, Jr. as Morin’s ad litem. We review the appointment of an ad litem under an abuse of discretion standard. McAllen Med. Ctr. v. Rivera, 89 S.W.3d 90, 94 (Tex.App.-Corpus Christi 2002, no pet.). In reviewing a trial court’s decision under an abuse of discretion standard, we must determine whether the trial court acted without reference to any guiding rales or principles. Id. An abuse of discretion occurs only when the trial court reaches a decision that is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id.

When reviewing an appointment of an ad litem, the court should look to whether the next friend bringing suit on behalf of the plaintiff has interests that may ran adverse to the plaintiff. Brownsville-Valley Reg’l Med. Ctr. v. Gamez, 894 S.W.2d 753, 755 (Tex.1995); McGough v. First Court of Appeals, 842 S.W.2d 637, 640 (Tex.1992); Id. at 95. A trial court may not appoint a guardian ad litem absent a conflict of interest between the [non-compos mentis] and his next friend. Rivera, 89 S.W.3d at 94. Rule 173 of the Texas Rules of Civil Procedure provides, in relevant part:

When a minor ... or a non compos mentis ... is a party to a suit ... and is represented by a next of friend or a guardian who appears to the court to have an adverse interest to such [person] ... the court shall appoint a guardian ad litem for such a person and shall allow him a reasonable fee for his services.

Tex.R. Civ. P. 173. The conflict need not be actual; potential for conflict during trial or settlement negotiations also authorizes the appointment of a guardian ad litem. Rivera, 89 S.W.3d at 95.

On June 5, 2001, Dr. Owens filed a written objection to the appointment of a guardian ad litem to represent Morin’s interests. Dr. Owens asked the trial court to set a hearing and to withdraw the appointment of a guardian ad litem. In support, Dr. Owens attached a portion of Perez’s deposition. At the healing, Morin’s counsel argued that a conflict of interest existed because: (1) Perez may have a stake in any settlement because he might be the only heir to Morin’s estate; and (2) Perez may have caused Morin’s injuries. Dr. Owens pointed out that Morin did not have a will, Perez was not Morin’s heir, and that Morin never alleged that Perez caused her injuries.

Perez’s deposition testimony showed that he is not related to Morin. Perez testified that his parents died when he was young, and Morin raised him. Perez said he refers to Morin as his aunt, although he is not biologically related to her. Because Perez is not biologically related to Morin, he is not Morin’s heir.

Perez also testified that he filed suit only because he is interested in finding out what happened to Morin. He is not making any claims in the lawsuit on his own behalf.

Because appellee failed to prove a conflict of interest between Perez and Morin, we hold the trial court abused its discretion in appointing an ad litem to represent Morin’s interests. Accordingly, we hold the trial court erred in taxing ad litem fees against Dr. Owens. Dr. Owens’ fourth issue is sustained.

We reform the trial court’s judgment by deleting the award of ad litem fees. As reformed, the trial court’s judgment is affirmed.

      . At trial, Villa Residential Care Homes, Inc. and Dolly Vinsant Memorial Hospital were also defendants. The jury found that Villa Residential Care Homes, Inc. was not negligent and that Dolly Vinsant Memorial Hospital was seventy-percent responsible for the negligence that caused Morin's burn. Dolly Vinsant Memorial Hospital is not a party to this appeal.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-90, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

      . At closing argument, Appellee’s counsel asked the jury for $141,000 for past medical expenses and said he left the remaining damages to the jury's discretion. Counsel then reserved the remainder of his time for rebuttal. The following exchange then occurred:
      Defense Counsel: Your Honor, excuse me.
      The interruption, the rules require [appel-lee’s counsel] to answer fully with damages, unless he is not going to talk to the jury about actual.
      The Court: Do you just want to — I thought you were going to tell the jury a figure, an idea.... I thought you were going to tell the jury an idea of damages that you were going to consider....
      Defense Counsel: Additionally, [y]our Hon- or—
      Appellee’s Counsel: I am asking them to pay the full $100,000—
      The Court: Tell the jury that, please.
      Defense Counsel: Can we approach on one other matter?
      (At the bench, on the record) Defense Counsel: We had stipulated to
      $60,000, and not 140. There is no evidence for them.
      Appellee's Counsel: All right. I will bring it up.
      Defense Counsel: You had an agreement with me, if you bring it up—
      (End of bench conference)
      Appellee’s counsel then asked the jury to find "the full amount of the medical bills that were introduced into evidence that were proved up through Doctor Keillor and the other doctors.” Defense counsel objected that appel-lee’s counsel had "gone over the maximum amount” of damages. Defense counsel stated: "He has also violated our agreement on what the actual medical expenses are.” Argument continued, and appellee’s counsel again asked for medical expenses in the amount of $141,000, without objection.

      . The ad litem, Ernesto Gamez, Jr., did not file a brief in this case.


source: Caselaw Access Project

author: BOB McCOY, Justice.

license: Public Domain

text:
    SUPERIOR SNUBBING SERVICES, INC., Appellant, v. ENERGY SERVICE COMPANY OF BOWIE, INC., Appellee.
    No. 2-04-131-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 3, 2005.

      Fisk & Fielder, P.C., Lynn Fielder, Dallas, for Appellant.
    Touchstone, Bernays, Johnston, Beall, Smith & Stollenwerck, L.L.P., S. Todd Parks, Daniel L. Gus, Dallas, for Appellee.
    Panel B: HOLMAN, WALKER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I.Introduction

Superior Snubbing Services, Inc. (“Superior”) appeals from the trial court’s grant of a summary judgment in favor of Energy Service Company of Bowie, Inc. (“Energy”). We will reverse and remand.

II.Factual Background

On December 12, 1996, Mitchell Energy Corporation (“Mitchell”) entered into a Master Service Agreement contract with Superior for certain work to be performed by Superior for Mitchell. Paragraph seven of the contract states that the “contractor,” Superior, will indemnify the “company,” Mitchell, and its contractors, which include Energy, for claims of injury to Superior’s employees in connection with the work to be performed under the contract. On March 8, 2000, one of Superior’s employees, Daryll Faulk (“Faulk”), sustained an injury in the course of his employment while performing services under the contract. Superior was a subscriber under the Workers’ Compensation Act at the time of the injury. Subsequently, Faulk sued Energy and others for his injuries, resulting in a settlement between Faulk, Energy, and Mitchell. Energy and Mitchell then filed suit against Superior seeking indemnity under the contract for the amount of the defense of the suit and the settlement of Faulk’s claims. In answering the suit, Superior asserted that Energy’s claims were barred by the exclusive remedy provisions of the Texas Labor Code and that the contract was unenforceable under the Texas Oilfield Anti-Indemnity Act. The trial court granted summary judgment for Energy against Superior on the contractual indemnity issue and rendered a judgment that was severed from the Mitchell suit, resulting in this appeal.

In two issues, Superior complains that the trial court erred in granting Energy summary judgment because (1) Energy’s indemnity claims are barred under the exclusive remedy provisions of section 417.004 of the Texas Labor Code and (2) the contract is unenforceable under the Texas Oilfield Anti-Indemnity Act.

III.Law and Application to Facts

A. Statutory Construction

Section 417.004 of the Texas Labor Code provides,

In an action for damages brought by an injured employee ... against a third party liable to pay damages for the injury ... under this chapter that results in a ... settlement by the third party, the employer is not hable to the third party for reimbursement or damages based on the ... settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability.

Tex. Lab.Code ANN. § 417.004 (emphasis supplied).

In its first point, Superior argues that it did not execute a “written agreement with the third party [Energy] to assume the liability.” Rather, Superior contends it entered into a contract with Mitchell, and therefore Energy cannot claim indemnity against Superior due to the prohibition contained in section 417.004 of the labor code. While it is undisputed there is no written contract between Superior and Energy, Energy responds that because it is a third party beneficiary under the contract between Superior and MitcheU, it is entitled to step into the shoes of Mitchell and enforce the contract, thereby transforming the agreement into a “written agreement with the third party [Energy] to assume the liability.”

There is no spotted dog or white horse case on point interpreting the specific language of section 417.004 regarding the meaning of “the third party.”

B. Standard of Review

In reviewing a traditional motion for summary judgment, the reviewing court must resolve every doubt and indulge every reasonable inference in the nonmov-ant’s favor. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). All evidence favorable to the nonmovant will be taken as true. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex.2002). Determining the proper construction of a statute and the propriety of a ruling on a motion for summary judgment are both questions of law. Berry v. State Farm Mut. Auto. Ins. Co., 9 S.W.3d 884, 890 (Tex.App.-Austin 2000, no pet.) (citing Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989)). Statutory interpretation presents a question of law subject to de novo review. Conseco Fin. Servicing Co. v. J & J Mobile Homes, Inc., 120 S.W.3d 878, 883 (Tex.App.-Fort Worth 2003, pet. denied). When the undisputed facts and the applicable law permit but one lawful decision, the appellate court is called on to insure that the proper decision is reached. Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 157 (Tex.1993).

C. Statutory History

As is often the case, a review of the historical development of this statute is helpful in ascertaining its meaning. Turning back the pages of time some forty years, we learn that in 1963 Texas’s workers’ compensation statute was amended to read, in pertinent part,

If an action for damages on account of injury to or death of an employee of a subscriber is brought by such employee ... against a person other than the subscriber ... and if such action results ... in a settlement by such other person, the subscriber ... shall have no liability to reimburse or hold such other person harmless on such ... settlement ... in the absence of a written agreement expressly assuming such liability, executed by the subscriber prior to such injury or death.

Act of May 20, 1968, 58th Leg., R.S., ch. 487, § 3, 1963 Tex. Gen. Laws 1132 (repealed 1989) (emphasis supplied). In Ear land v. Gulf, Colorado & Santa Fe Railway Company, 411 S.W.2d 591, 593 (Tex. App.-Beaumont 1967, no writ), the court explained the purposes and effect of this amendment:

This section was amended in 1963 ... to provide that the subscriber under the Compensation Act would have no liability to reimburse or hold harmless a third person against whom a judgment had been obtained by an employee, in the absence of a written agreement expressly assuming such liability. It is argued that as much as this was not provided for before 1963, that the law was changed in 1963 and, consequently, at the time this cause of action arose [the injury occurred in 1956] the third party could not recover from the subscriber. We have found no Texas case passing directly upon this point. We hold that the 1963 amendment to article 8306 section 3, did not change the law, and the right of action for indemnity and contribution based upon a written agreement existed before such an amendment.

Id. In 1989, the statutory wording changed and for the first time included the “third party” language in this indemnification section. The statute read,

If an action for damages is brought by an injured employee ... against a third party liable to pay damages for the injury ... and the action results in a judgment against the third party or a settlement by the third party, the employer is not liable to the third party for any reimbursement or damages based on the judgment or settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability.

Act of Dec. 3, 1989, 71st Leg., C.S., ch. 1, § 4.04, 1989 Tex. Gen. Laws 32, 33 (amended 1993) (emphasis supplied). When the statute was amended and recodi-fied in 1993 as section 417.004 of the labor code, the third-party language remained intact. Tex. Lajb.Code Ann. § 417.004.

The inclusion of the third party language is important. Under the pre-1989 statutory wording, a third party beneficiary was clearly included as an indem-nitee because all that was required for inclusion was that the employer execute a written agreement expressly assuming the indemnification liability, as occurred in the Superior-Mitchell contract. The legislature, however, saw fit to add the third party language restricting the breadth of the indemnification obligation. When legislative intent can be gathered from a reasonable interpretation of the language of a statute, it is not permissible to resort to interpretation by implication, Commonwealth v. United N. & S. Dev. Co., 140 Tex. 417,168 S.W.2d 226, 229 (1942), which is permitted only to supply obvious intent not expressly stated and never to contradict or add to a statute, id. at 229; Compass Bank v. Bent Creek Invs., 52 S.W.3d 419, 422 (Tex.App.-Fort Worth 2001, no pet.). Expressly addressing a person, thing, consequence, or class is tantamount to expressly excusing of all others for the purpose of statutory construction. State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238, 241 (1943); Lenhard v. Butler, 745 S.W.2d 101, 103 (Tex.App.-Fort Worth 1988, writ denied).

Therefore, combining the plain meaning of the present statute with the legislative inclusion of more restrictive language in the statute leads to the conclusion that nonsignatories, such as third party beneficiaries, are not included as permissible indemnitees under section 417.004 of the Texas Labor Code. See Tex. Lab.Code Ann. § 417.004; Tex. Gov’t Code Ann. § 312.005 (Vernon 1998) (providing that a court shall consider legislative intent and the former law in interpreting a statute). Accordingly, we sustain Superior’s first issue. We reverse the trial court’s judgment and remand the cause to the trial court.

      . Now Devon Energy Operating, L.P.

      . Tex. Lab.Code Ann. § 417.004 (Vernon 2003).

      . Tex. Civ. Prac. & Rem.Code Ann. § 127.003 (Vernon 2003).

      . "Around the turn of the century, a Texas law firm had a case in which a white horse owned by the client's taxi service reared in the street, causing an elderly woman to fall and injure herself. The partner handling the case asked a young associate to find a case on point. The associate came back several hours later with a case involving an elderly lady who had fallen in the street after a taxi company's black horse had reared in front of her. When the associate took this case to the partner, the partner said, 'Nice try, son. Now go find me a white horse case.' ” Hilland v. Arnold, 856 S.W.2d 240, 242 n. 1 (Tex.App.-Texarkana 1993, no writ).

      . Having sustained this issue, we need not consider Superior's second issue. See Tex. R.App. P. 47.1.


author: TIM TAFT, Justice.

text:
    In re Honorable Robert JENEVEIN, Former Judge, County Court at Law No. 3 Dallas County, Texas.
    No. A-2003-1.
    Special Court of Review, Appointed by the Supreme Court.
    June 12, 2003.
    Special Court of Review consists of Justices YATES, TAFT, and WRIGHT.

       The Honorable Leslie Brock Yates, Justice, Court of Appeals, Fourteenth District of Texas at Houston, presiding by appointment.

       The Honorable Tim Taft, Justice, Court of Appeals, First District of Texas at Houston, participating by appointment.

       The Honorable Jim Wright, Justice, Court of Appeals, Eleventh District of Texas at East-land, participating by appointment.

   OPINION

TIM TAFT, Justice.

This is a review of the State Commission on Judicial Conduct’s (the Commission’s) Order of Public Censure against respondent, the Honorable Robert Jenevein, former Judge of County Court at Law Number 3 in Dallas County. The review was conducted by a special court of review, a panel of three justices of the Texas courts of appeals appointed by the Chief Justice of the Texas Supreme Court to sit as a trial court to hear allegations of judicial misconduct in a trial de novo. See Tex. Gov’t Code Ann. § 33.034(a), (c), (e) (Vernon Supp.2003). We address whether a special court of review has jurisdiction to review a decision of the Commission after formal proceedings have been conducted before a special master. We hold that we do not have jurisdiction.

Facts and Procedural History

On July 28, 2000, respondent held a news conference in his courtroom. Respondent used the news conference to read a press release that he had prepared. The purpose of the press release was to explain why respondent would not be presiding in a ease that was pending in the County Courts of Dallas County. The explanation related to certain allegations that an attorney in the pending case had made. In the press release, respondent stated that it was his intention to file a grievance against the attorney in connection with the allegations. Later, in response to inquiries that had been made of him, respondent sent an e-mail to approximately 100 persons, in which e-mail respondent again explained the situation and the reasons for his recu-sal.

A complaint was filed with the Commission, which resulted in formal proceedings before the Honorable Mike Westergren on September 24, 2002. On October 17, 2002, Judge Westergren signed findings of a violation of the Code of Judicial Conduct. On December 4, 2002, the Commission made its findings based on Judge Wester-gren’s formal proceedings. The Commission found that respondent’s press conference and e-mail violated both Article V, Section l-a(6)(A) of the Texas Constitution and Canon 2B of the Texas Code of Judicial Conduct. The Commission issued an Order of Public Censure on January 17, 2003.

By letter dated January 22, 2003, respondent requested the appointment of a special court of review to hear the matter de novo. Supreme Court Chief Justice Thomas R. Phillips appointed such a special court of review by letter dated February 6, 2003. On April 14, 2003, this Special Court of Review convened to hear the matter de novo.

Jurisdiction

This case comes to us in an unusual procedural posture. Generally, an investigation of the Commission that finds merit in a complaint of judicial misconduct follows one of two paths: (1) informal pro ceedings, in which the judge may be afforded a personal appearance before the Commission, or (2) formal proceedings before a special master. See In re Thomo, 873 S.W.2d 477, 483-84 (Tex.Rev. Trib.1994) (setting out comprehensively the procedures for handling judicial-misconduct complaints). Judges dissatisfied with the Commission’s decision after informal proceedings may appeal to a special court of review composed of three eourts-of-appeals justices appointed by the Chief Justice of the Texas Supreme Court. See id. at 483. The special court of review functions as a trial court, providing a trial de novo from which there is no further appeal. See Tex. Gov’t Code ANN. § 33.034(e), (i) (Vernon Supp.2003). Judges dissatisfied with the Commission’s decision after formal proceedings may appeal to a review tribunal composed of seven courts-of-appeals justices appointed by the Chief Justice of the Texas Supreme Court. See In re Thomo, 873 S.W.2d at 484. The review tribunal functions as an appellate court that reviews the proceedings before the special master; further review may be sought from the Texas Supreme Court. See id.

The procedure here is a hybrid. The Commission prosecuted respondent in formal proceedings, but respondent has sought and obtained a trial de novo before a special court of review. This raises a jurisdictional question we must first address before proceeding: Does the Texas judicial discipline system provide for a special court of review after formal proceedings? Even though no party has questioned our jurisdiction, an appellate court is obligated to determine the threshold question of jurisdiction. See Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95 S.W.3d 511, 514 (Tex.App. — Houston [1st Dist] 2002, pet. denied).

Viewing the charts that accompanied the publication of the Rules for Removal or Retirement of Judges, particularly Exhibit C, it appears that no appeal was contemplated from the Commission’s order of public censure entered after formal proceedings. See Rules for the Removal or Retirement of Judges, 56 Tex.B.J. 823, 829-31 (1993), Exhibits A-C (reproduced at the end of this opinion). Nevertheless, section 33.034(a) of the Texas Government Code provides that “[a] judge who receives from the commission any type of sanction is entitled to a review of the commission’s decision as provided by this section.” Tex. Gov’t Code Ann. § 33.034(a) (Vernon Supp. 2003) (emphasis added). However, “sanction” is defined for purposes of Chapter 33 of the Texas Government Code (entitled State Commission on Judicial Conduct) as including only a private or public admonition, a warning, a reprimand, or a requirement that a person obtain additional training or education. See Tex. Gov’t Code Ann. § 33.001(a)(10) (Vernon Supp.2003). Thus, “sanction” has a technical, legal meaning in the area of judicial misconduct that does not include “censure.” Indeed, “censure” is defined separately as an order of denunciation issued by the Commission under Article V, Section l-a(8) of the Texas Constitution or an order issued by a review tribunal under Article V, Section 1-a(9) of the Texas Constitution. Tex. Gov’t Code Ann. § 33.001(a)(1) (Vernon Supp. 2003). Article V, Sections l-a(8) and 1-a(9) of the Texas Constitution refer to censure only within the context of formal proceedings, while sanctions are contemplated under Section l-a(8) in the context of informal proceedings. Tex. Const, art. V, §§ l-a(8), l-a(9). Therefore, we conclude that an appeal to a special court of review is provided only after informal proceedings and not after formal proceedings resulting in a public censure.

The published cases demonstrate that the practice has been consistent with the view that only special courts of review follow informal proceedings and only review tribunals follow formal proceedings. See In re Davis, 82 S.W.3d 140 (Tex. Spec.Ct.Rev.2002) (special court of review following informal proceedings); In re Jones, 55 S.W.3d 243 (Tex. Spec.Ct.Rev.2000) (same); In re Bell, 894 S.W.2d 119 (Tex.Spec.Ct.Rev.1995) (same); In re Jimenez, 841 S.W.2d 572 (Tex. Spec.Ct.Rev.1992) (same); In re Sheppard, 815 S.W.2d 917 (Tex.Spee.Ct.Rev.1991) (same); cf. In re Barr, 13 S.W.3d 525 (Tex.Rev.Trib.1998) (review tribunal following formal proceedings); In re Lowery, 999 S.W.2d 639 (Tex.Rev.Trib.1998) (same); In re Thoma, 873 S.W.2d 477 (Tex.Rev.Trib.1994) (same).

We acknowledge that it may seem counterintuitive that a judge would have a right to appeal, by special court of review, for lesser sanctions, but have no right to appeal for the more serious censure. Nevertheless, the right to appeal is not of constitutional magnitude, but is derived entirely from statute. See Rushing v. State, 85 S.W.3d 283, 285 (Tex.Crim. App.2002). That which the Legislature may withhold altogether, it may withhold in part. Id. at 285-86. Thus, our lawmakers may deny the right to appeal entirely, the right to appeal only some things, or the right to appeal all things only under some circumstances. Id. Here, the Legislature has provided an appeal by special court of review only for the Commission’s sanctions assessed as a result of informal proceedings. The Rules for the Removal or Retirement of Judges have provided an appeal by a review tribunal after formal proceedings only for recommendations of removal or retirement. See Tex. R. Rem’l/ Ret. Judg. 12(a) (West 2003). These Rules have not provided for any appeal when the Commission recommends a public censure after formal proceedings. We do note, however, that a judge assessed a censure will have been given a public hearing before either the Commission or a special master. See Rules for the Removal or Retirement of Judges, 56 Tex.B.J. at 831 (Exhibit C).

Accordingly, we hold that we do not have jurisdiction to review by trial de novo the Commission’s Order of Public Censure after formal proceedings. Because we do not have jurisdiction, we can only dismiss this appeal. See Walker Sand, 95 S.W.3d at 514.

Conclusion

We dismiss this appeal.

EXHIBIT B Review of Commission Decision by Special Court

EXHIBIT C Formal Proceedings

      . Article V, Section l-a(6)(A) provides, in pertinent part:
      Any Justice or Judge of the courts established by this Constitution or created by the Legislature as provided in Section 1, Article V, of this Constitution, may, subject to the other provisions hereof, be removed from office for ... willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or causes public discredit upon the judiciary or administration of justice. Any person holding such office may be disciplined or censured, in lieu of removal from office, as provided by this section. Tex Const, art. V, § l-a(6)(A).

      . Cannon 2B provides, in pertinent part:
      A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; ....
      Tex. Gov't Code Ann. T. 2, Subt. G, App. B, Cannon 2B (Vernon 1998).

      . In Rule 1(f) of the Rules for the Removal of Retirement of Judges, “censure” is defined as being more severe than the remedial sanctions issued prior to a formal hearing. See Tex. R. Rem'l/Ret. Judg. 1(f) (West 2003).

       No sanction is issued unless the judge has been Informed of the nature ol the complaint and given an opportunity to respond. Further, no public sanction is issued unless the judge has been afforded an opportunity to appear,
      NOTES: 1) The Commission may suspenda judgefromoffieewithorwilhoutpaylmmediatelyuponindiotmentbystateorfederalgrand jury for a felony offense or misdemeanor charge involving official misconduct. In other cases, after giving fudge nolle» *nd an opportunity to appear, the Commission may recommend to the Supreme Court suspensión of a |udge pending final disposition of charge.
      2) All above proceedings are confidential. Ajudge at his request may elect to have any hearing open to thepublloor to persons designated by the judge. When a public sanction is issued all matters related to the sanction and considered by the Commission become public.


text:
    Gary MCCLANAHAN, Appellant, v. MOUNTAIN EDGE MINING COMPANY; Hon. James L. Kerr, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2004-SC-0429-WC.
    Supreme Court of Kentucky.
    March 17, 2005.
    Robert J. Greene, Kelsey E. Friend Law Firm, Pikeville, Counsel for Appellant.
    Jeffrey D. Damron, Baird, Baird, Baird & Jones, P.S.C., Pikeville, Counsel for Ap-pellee.
   OPINION OF THE COURT

As amended effective July 15, 2002, KRS 342.316(3)(b)4. and (13) set forth a “consensus” procedure regarding evidence in coal workers’ pneumoconiosis claims. Relying on KRS 342.316(3)(b)4.f., the Workers’ Compensation Board (Board) and the Court of Appeals have affirmed an Administrative Law Judge’s (ALJ’s) finding that there was a consensus between x-ray interpreters who found opacities within the same profusion category but in different lung zones. Appealing, the claimant maintains that the interpreters were not in consensus because they found opacities in different lung zones. We affirm.

KRS 342.316(13) provides that “the consensus procedure shall apply to all claims which have not been assigned to an [ALJ] prior to July 15, 2002.” On August 12, 2002, the claimant filed an application for benefits in which he alleged a last exposure on July 11, 2001. He supported the application with a report from Dr. Baker, who interpreted an x-ray taken on July 24, 2002, as revealing pneumoconiosis, ILO category 1/0. The employer submitted a report from Dr. Broudy, who interpreted an October 10, 2002, x-ray as being negative for the disease.

On November 15, 2002, the Commissioner of the Department of Workers’ Claims determined that the parties’ reports were not in consensus. The Commissioner then referred the matter to a panel of B-readers that was composed of Drs. Ramakrishnan, Pope, and Lockey. Both Dr. Ramakrishnan and Dr. Pope interpreted an October 10, 2002, x-ray as revealing opacities in category 0/1 profusion, but their reports differed regarding the lung zones in which they found the opacities. Dr. Ramakrishnan found them in the upper right and left lung zones and the mid-right lung zone, while Dr. Pope found them in the lower right and left zones. Dr. Lockey interpreted the x-ray as revealing no opacities or other abnormalities that were consistent with pneu-moconiosis. The Commissioner determined that there was a consensus, after which the claim was assigned to an ALJ for further proceedings.

In a decision rendered on July 2, 2003, the ALJ noted the claimant’s argument that the reports of Drs. Ramakrishnan and Pope differed regarding the lung zones in which they found opacities and, therefore, were not in consensus. The ALJ explained, however, that KRS 342.316(3)(b)4.f. did not require opacities to be found in the same lung zones but only required them to be found in a profusion that was no more than one level apart. On that basis, the ALJ determined that the reports were in consensus as defined by the statute, that the evidence was insufficient for an award under KRS 342.732, and that the claim must be dismissed. After the claimant’s petition for reconsideration was denied, he appealed.

KRS 342.316(3)(b)l. requires chest x-rays to be interpreted using the ILO classification system and the results to be reported using the latest ILO classification form. As is apparent from the ILO forms in evidence, an x-ray interpreter who finds small opacities that are consistent with pneumoconiosis is asked to characterize their shape and size, to indicate the lung zones in which they are found, and to classify their profusion. Profusion is classified on a twelve-point grid that includes four major categories (0, 1, 2, 3), each of which is subdivided into three minor categories. It is classified once, for the entire x-ray.

The claimant’s reliance on a dictionary definition of the word “consensus” is misplaced. Workers’ compensation is statutory, and KRS 342.316(3)(b)4.f. defines the term “consensus” as it applies to x-ray evidence in occupational disease claims. That definition is as follows:

“Consensus” is reached between two (2) chest x-ray interpreters when their classifications meet one (1) of the following criteria: each finds either Category A, B, or C progressive massive fibrosis; or findings with regard to simple pneumo-coniosis are both in the same major category and within one (1) minor category (ILO category twelve (12) point scale) of each other.

Contrary to the claimant’s argument, KRS 342.316(3)(b)4.f. refers only to the major and minor ILO profusion categories. It does not require the interpreters to find opacities in the same lung zones. Drs. Ramakrishnan and Pope both reported a profusion of category 0/1; therefore, a consensus was reached.

The decision of the Court of Appeals is affirmed.

All concur.


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Benjamin C. HALL, Respondent.
    No. 2004-SC-1103-KB.
    Supreme Court of Kentucky.
    March 17, 2005.
   OPINION AND ORDER

The Kentucky Bar Association (KBA) brought these actions against Respondent, Benjamin C. Hall of Pikeville, Kentucky. The first charge, File No. 11244, alleges violations of SCR 3.130-1.3 (lack of diligence), SCR 3.130-1.16(d) (improper termination of representation), SCR 3.130-3.2 (failing to expedite litigation), SCR 3.130-1.15(b) (failing to return property of a client), and SCR 3.130-8.1(b) (failing to respond to a disciplinary authority).

The second charge, File No. 11269, alleges violations of SCR 3.130-1.3 (lack of diligence), SCR 3.130-1.4(a) (lack of communication), SCR 3.130-3.2 (failing to expedite litigation), SCR 3.130-1.16(d) (improper termination of representation), and SCR 3.130-8.1(b) (failing to respond to a disciplinary authority).

File No. 11244

The foregoing ethical violations alleged in File No. 11244 arose in connection with Respondent’s representation of Paul Maynard. On August 22, 2003, Maynard paid Respondent $250.00 to file a motion to hold his ex-wife in contempt for failure to comply with certain matters in his dissolution of marriage case. On August 29, 2003, Maynard paid Respondent an additional $250.00 towards the attorney’s fee. Respondent failed to file a motion on behalf of Maynard after being paid to do so, and Maynard was forced to hire another attorney for $350.00 to file the appropriate motion and paperwork. Mr. Maynard contacted Respondent to request his money back, but he never received a refund of the unearned fee from Respondent.

File No. 11269

The foregoing ethical violations in connection with File No. 11269 arose from Respondent’s representation of Bert Roe. On July 22, 2002, Roe paid Respondent $1,200.00 to file a Chapter 7 bankruptcy petition on his behalf. Respondent prepared the petition and sent it to Roe in January 2003, six months after the payment of the attorney’s fee. Roe reviewed the petition and telephoned Respondent with corrections. Respondent did not send a second bankruptcy petition to Roe for his review until April 2003.

When Respondent finally did send a second petition to Roe, Roe’s name was misspelled. Roe promptly telephoned Respondent informing him of the mistake. Respondent explained to Roe that he had to file his case “on line” and was not sure how to accomplish such a fifing. In August 2003, Roe went to Respondent’s office, and both he and Respondent went to the Bankruptcy Court Clerk’s Office and filed the petition.

Later in August 2003, Roe received a Notice of Dismissal from the Bankruptcy Court indicating that his case would be dismissed for failure to pay the fifing fee. Roe promptly spoke with Respondent, who explained to Roe that the fifing fees were not paid, but that Respondent would take care of the matter. Later, an Order of Dismissal was entered for failure to pay the filing fees.

Roe repeatedly tried to contact Respondent, but Respondent did not return his telephone calls. In November 2003, Roe called Respondent and spoke with his wife. She apologized to Roe and explained to him that she would send back the file, along with a check for $800.00 representing the unearned fee. Roe never received either the fee or the file.

Procedural Factual Findings of Default

On December 29, 2003, Respondent was served by certified mail with copies of the bar complaint lodged against him by Complainants, Maynard and Roe. When he failed to respond to the bar complaint, Respondent was personally served by the Pike County Deputy Sheriff on February 10, 2004, with reminder letters.

The charges issued by the Inquiry Commission on May 13, 2004, in File Nos. 11244 and 11269 were personally served on Respondent by the Pike County Deputy Sheriff on May 25, 2004, and May 26, 2004, respectively.

Respondent never filed a response to the bar complaints served upon him by the Complainants Maynard and Roe. Respondent never filed a response to the charges issued against him in File Nos. 11244 and 11269. With respect to the charge issued against him in File No. 11269, Respondent did file a motion requesting an extension of time and requesting appointment of counsel. His motion was, in effect, partially denied by the Inquiry Commission in that Respondent was given leave to file a proper motion requesting an appointment of counsel pursuant to SCR 3.300, and was given an extension of time until August 1, 2004, to respond to the charge. Notwithstanding the leave granted by the Inquiry Commission, Respondent never filed a response to the charge.

ACCORDINGLY, IT IS HEARBY ORDERED:

(1) Respondent, Benjamin C. Hall, is suspended from the practice of law in the Commonwealth of Kentucky for 181 days to run concurrently for both File Nos. 11244 and 11269.

(2) Pursuant to SCR 3.390, Respondent shall, within ten (10) days from the entry of this Opinion and Order, notify in writing all courts in which he may have matters pending, and all clients for whom he is actively involved, of his inability to provide further legal services, and furnish the Director of the Kentucky Bar Association with a copy of all such letters.

(3) In accordance with SCR 3.450, Respondent shall pay all costs associated with these disciplinary proceedings against him, including the amount of $277.28 and for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

ENTERED: March 17, 2005.

/s/ Joseph E. Lambert

Chief Justice


author: JOHNSTONE, Justice.

text:
    FAYETTE COUNTY BOARD OF EDUCATION, Appellant, v. M.R.D., by and through His Next Friends, K.D. and K.D., Appellees.
    No. 2003-SC-0448-DG.
    Supreme Court of Kentucky.
    March 17, 2005.

      Robert L. Chenoweth, Chenoweth Law Office, Frankfort, William H. Fogle, Fogle & Maze, PSC, Mt. Sterling, Counsel for Appellant.
    Edward E. Dove, Lexington, Counsel for Appellees.
   JOHNSTONE, Justice.

This matter was initiated on behalf of Appellee, M.R.D., for a due process hearing against Appellant, Fayette County Board of Education (FCBE). At the heart of this matter is the assertion that the FCBE failed to provide adequate educational programming to M.R.D., a learning disabled student. A due process hearing was conducted, after which the hearing officer ruled largely in the FCBE’s favor, granting only minimal relief to M.R.D. based on a single procedural error. That decision was appealed to the Exceptional Children Appeals Board (ECAB), which affirmed the decision of the local hearing officer in its entirety. M.R.D. then initiated a civil action in Fayette Circuit Court; the circuit court affirmed the ECAB decision. M.R.D. sought review by the Court of Appeals. Conducting a modified de novo review of the case, the Court of Appeals reversed, finding that the FCBE had not provided M.R.D. adequate educational programming and ordering that the cost of his private education be reimbursed. This Court granted discretionary review. Because it applied the wrong standard of review in this matter, we reverse the decision of the Court of Appeals and reinstate the judgment of the Fayette Circuit Court.

Factual and Procedural Background

M.R.D. was formally diagnosed with a learning disability in 1993, during his fourth grade year in Fayette County Schools, and determined eligible for special education services. Consequently, an individualized educational plan (IEP) was developed to address M.R.D.’s educational needs for his fifth grade year. Over the next four academic years — that is, M.R.D.’s fifth through eighth grade years — M.R.D.’s IEP was annually revised. For some years M.R.D. was educated in the regular education classroom with supplemental services provided. Other years he was pulled out of the regular education classroom to receive additional help in the school’s resource room. For at least one year, M.R.D. was in the resource room full-time. The record reflects that M.R.D.’s parents were conscientious in their involvement in his education, and regularly requested and attended meetings with his teachers. The evidence also reveals that the school conducted annual reviews of both M.R.D.’s progress and his IEP as required by law. Finally, it should be noted that M.R.D.’s parents obtained extensive outside assistance for their son during these years in the form of private tutoring, speech therapy, and summer educational programs.

Though an IEP had been developed at the end of M.R.D.’s eighth grade year for the following school year, his parents decided instead to enroll M.R.D. in the GOW School, a private, residential education facility in New York. M.R.D.’s parents did not seek the FCBE’s approval for this placement. However, during his ninth grade year at the GOW School, M.R.D.’s parents consented to a re-evaluation for special education services in the hopes that he might return to Henry Clay High School in Fayette County. The FCBE sent a speech and language therapist to the GOW School to gather data, and several meetings of the Admissions and Release Committee were held to develop a revised IEP. The FCBE specifically rejected the GOW School as the appropriate placement for M.R.D. M.R.D.’s parents, however, were not satisfied with the results of these meetings, and determined that the GOW School was the proper placement for M.R.D. He remained enrolled in the GOW School for the remainder of his high school years.

M.R.D.’s parents then initiated this action by requesting an administrative due process healing to address issues surrounding M.R.D.’s education. The request was based upon the following allegations: (1) that the FCBE had failed to provide M.R.D. with a free and appropriate education, required by federal and Kentucky law; (2) that the FCBE had failed to develop an appropriate IEP; (3) that the FCBE had failed to timely identify M.R.D.’s disability; and (4) that the FCBE had failed to conduct timely evaluations and to provide related services. M.R.D.’s parents requested both compensatory educational services and reimbursement for the costs associated with M.R.D.’s enrollment at the GOW School. The local hearing officer ruled in favor of the school district, concluding that, under relevant case law, M.R.D. had been afforded a free and appropriate education and that his IEP provided adequate educational opportunities. As such, M.R.D.’s requests for compensatory education and for reimbursement of private school tuition and related costs were denied.

M.R.D.’s parents sought review by the Exceptional Children Appeals Board, raising three issues: (1) whether M.R.D. had been provided a free and appropriate education by Fayette County Schools; (2) whether M.R.D.’s parents were entitled to reimbursement for the cost of sending M.R.D. to the GOW School; and (3) whether M.R.D.’s parents had missed the limitations period in requesting reimbursement for expenses. The ECAB affirmed the decision of the local hearing officer in its entirety, and again denied M.R.D.’s request for reimbursement.

An appeal from the ECAB’s opinion was filed in Fayette Circuit Court. The Fayette Circuit Court concluded that the decision of the ECAB was supported by substantial evidence in the record, and affirmed. M.R.D. next sought review by the Court of Appeals. Relying on federal case law interpreting the Individuals With Disabilities Education Act (IDEA), the Court of Appeals conducted a modified de novo review of the record; that is, the court independently re-examined the evidence to determine whether the administrative decision was correct. The Court of Appeals concluded that the FCBE had not complied with IDEA in providing educational programming to M.R.D., and ordered that his parents be reimbursed for the expenses incurred in sending him to the GOW School. This Court granted discretionary review.

Background of Relevant Law

The Individuals with Disabilities Education Act (IDEA) provides federal funds to assist state and local educational agencies in educating disabled children. The award of these funds is predicated on the state’s compliance with certain goals and procedures. The Kentucky General Assembly has enacted a number of statutes to implement the IDEA requirements.

Both the IDEA and the corresponding Kentucky regulations require schools to make available to disabled children a “free and appropriate education” (FAPE). The primary vehicle for delivery of a FAPE is the development and implementation of an IEP. The IEP is a written document developed by the child’s parents, the child’s teachers, and local school division representatives, in which the specific educational services to be provided, the annual goals, and the objective criteria for evaluation are delineated. A central tenet of the IDEA is the belief that disabled children should be taught with non-disabled children to the maximum extent possible; this belief is expressed in the IDEA’S requirement that the disabled child be placed in the “least restrictive environment” (LRE) consistent with the child’s needs.

Procedural safeguards exist for the benefit of the student. Under the IDEA, parents who complain about the adequacy of their child’s IEP may request a due process hearing to be conducted by the local educational agency. Appeal of this decision may be taken by the state educational agency, which is required to conduct an impartial review of the local educational agency’s decision. In Kentucky, a local hearing officer conducts this initial due process hearing, which may then be appealed to the Exceptional Children Appeals Board. The IDEA mandates that, after exhausting the state’s administrative procedures, the parents may bring a civil suit in either federal district court or in a state court “of competent jurisdiction.” Kentucky law requires the appeal be taken to the circuit court.

Standards of Judicial Review in IDEA actions

Though Kentucky regulations provide that a decision of the ECAB may be appealed to either state circuit or federal district court, the regulation is silent as to the type of review to be conducted by this initial reviewing court. Corresponding federal regulation, however, is more detailed: IDEA requires that this initial reviewing court (whether federal or state) review the records of the administrative proceedings, hear additional evidence if requested by a party, and base its decision on the preponderance of the evidence. The Fayette Circuit Court in this matter conducted its review pursuant to KRS 13B.150, and relied on the long line of Kentucky cases stating that circuit courts review decisions of administrative agencies to determine whether they were supported by “substantial evidence.” Though the FCBE had previously raised the issue of whether the federal standard of review as set forth in 20 U.S.C. § 1415(i)(2)(B) was inconsistent with the type of judicial review required by Kentucky law, that claim was abandoned and is not now before us for determination.

What remains as the primary issue for our consideration is whether the Court of Appeals applied the correct standard of review in considering M.R.D.’s appeal. At the outset of its opinion, the Court of Appeals states that it is required to review the case pursuant to a “modified de novo review” of the entire administrative record. Citing Renner v. Schools of Ann Arbor, the Court of Appeals explains that it must “independently re-examine the evidence to determine whether the administrative determination and the circuit court decision affirming it were correct.” The Court of Appeals’ reliance on Renner for the correct standard of judicial appellate review in IDEA actions is misplaced.

As explained above, IDEA requires that the initial reviewing court review the records of the administrative proceedings, hear additional evidence if requested by a party, and base its decision on the preponderance of the evidence. It is this standard of review that the U.S. Supreme Court, in Bd. of Ed. Hendrick Hudson Dist. v. Rowley, interpreted as a “modified de novo review.” Rowley and its progeny make clear that the modified de novo review is to be conducted by the initial reviewing court in IDEA actions. The Court of Appeals in this matter, however, is not the initial reviewing court — -the Fay-ette Circuit Court was the initial reviewing court.

The IDEA is silent as to the manner of judicial review to be conducted at the appellate level, and we must therefore look to prevailing state law on the matter. CR 52.01 requires that, in appeals of administrative agency decisions, appellate courts review the determinations of the circuit courts for clear error. It should be noted that the federal appellate courts apply the same standard of review in IDEA actions: in reviewing a district court’s ruling in an IDEA action, a clearly erroneous standard of review is applied to findings of fact, while conclusions of law are reviewed de novo. Thus, the Court of Appeals erred in conducting a modified de novo review of the decision of the Fay-ette Circuit Court in this matter. The Court of Appeals should have reviewed the lower court’s findings of fact only for clear error pursuant to CR 52.01 and reviewed its conclusions of law de novo.

Application of the Standard of Review

M.R.D. argues that he was denied the free and appropriate education (FAPE) guaranteed by the IDEA and Kentucky law. Specifically, M.R.D. claims that the school failed to provide an appropriate IEP, which operated to deny him the required FAPE. M.R.D. further asserts that the GOW School was the appropriate placement for M.R.D. and that M.R.D.’s parents are entitled to reimbursement for their costs in sending M.R.D. to the GOW School. The Fayette Circuit Court concluded that substantial evidence was present in the record to support the ECAB’s finding that “some educational benefit” was conferred to M.R.D., that he was progressing academically, and that the proposed IEP was formulated to provide a free and appropriate education. The ECAB decision was affirmed in its entirety-

Was M.R.D. provided a free and appropriate education?

The IDEA and corresponding Kentucky regulation entitle disabled students to a free and appropriate education (FAPE). The U.S. Supreme Court has explained that a FAPE “consists of education instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’ from the instruction.” The IDEA does not charge the school district, however, with the obligation to maximize each student’s potential; rather the IDEA requires only that the school district provide a “basic floor of opportunity,” “sufficient to confer some educational benefit upon the handicapped child.” The IDEA’S “basic floor of opportunity” is achieved, in part, through the establishment of an IEP pursuant to 20 U.S.C. § 1401(a)(18)(D). The IEP must be reasonably calculated to provide some educational benefit to the handicapped child.

Evidence in the record reveals that M.R.D. maintained a “B” grade average during the years at issue, and the ECAB’s decision notes that no evidence was presented to indicate that M.R.D. was being “given” these passing grades. Further evidence was presented that M.R.D.’s IEP was properly reconsidered every year. M.R.D.’s fifth grade teacher testified that fifth grade was successful for him; a private expert secured by M.R.D.’s parents also noted M.R.D.’s progress during his fifth grade year and attributed this progress in part to the IEP. Though M.R.D.’s parents expressed dissatisfaction with his progress during sixth grade, M.R.D. was provided an IEP for that year and was promoted to seventh grade. M.R.D.’s seventh grade teacher testified that M.R.D. was making educational progress during that year. M.R.D.’s eighth grade teacher gave similar testimony that M.R.D. had progressed on all of his IEP objectives for that year.

As both the Fayette Circuit Court and the ECAB noted, it is difficult to determine whether M.R.D. progressed due to the education provided by the FCBE, or due to the extensive private assistance procured by his parents. However, there is ample evidence in the record that M.R.D. was provided with the requisite “basic floor of opportunity” and that his IEP was reasonably calculated to confer educational benefit. In fact, the yearly revisions of M.R.D.’s IEP demonstrate a concerted effort to customize M.R.D.’s placement with his educational needs. Based on this and additional evidence indicating M.R.D.’s educational advancements during the years in question, we conclude that it was not clearly erroneous for the Fayette Circuit Court to determine that the FCBE was fulfilling its statutory duties in educating M.R.D.

Are M.R.D.’s parents entitled to tuition reimbursement ?

If the parents of a disabled student unilaterally place their child in a private program pending the outcome of the administrative and judicial review process, the parents may seek retroactive reimbursement for the educational expenses and related services under the IDEA. However, the parents must prove not only that the public education offered violated IDEA, but also that the private school placement would satisfy the requirements of IDEA. This burden is not met when the parents merely establish that the private school placement was superior to the services publicly provided; the parents must prove that the public school was unable to provide the appropriate education.

Based on our discussion supra, the holding of the Fayette Circuit Court concluding that M.R.D. had been provided a free and appropriate education was supported by ample evidence in the record and therefore will not be overturned by this Court as clearly erroneous. As M.R.D. failed to establish that the FCBE did not provide him adequate educational programming, we need not discuss whether the GOW School could have provided him a FAPE under the IDEA. Therefore, the decision of the Fayette Circuit Court denying M.R.D.’s parents reimbursement for their expenses is affirmed.

Conclusion

For the foregoing reasons, the decision of the Court of Appeals is hereby reversed and the opinion of the Fayette Circuit Court is reinstated.

All concur.

      . 20 U.S.C. §§ 1400 et seq.

      . KRS 157.224; 707 KAR 1:280 et seq.

      . 20 U.S.C. § 1412(a)(1)(A) (2000); 707 KAR 1:290.

      . 20 U.S.C. § 1414(d) (2000); 707 KAR 1:320.

      . Id.

      . 20 U.S.C. § 1412(a)(5)(A) (2000).

      . 20 U.S.C. § 1415(f) (2000).

      . 20 U.S.C. § 1415(g) (2000).

      . 707 KAR 1:340 § 7 and 707 KAR 1:340 § 8.

      . 20 U.S.C. § 1415(0(2) (2000).

      . 707 KAR 1:340 § 8(2).

      . 20 U.S.C.A. § 1415(i)(2)(B) (2000).

      . See e.g. Jones v. Cabinet for Human Resources, 710 S.W.2d 862, 866 (Ky.App.1986) ("When substantial evidence exists in the record to support an administrative agency's action, the circuit court has no authority to overturn it.”)

      . 185 F.3d 635, 642 (6th Cir.1999).

      . 20 U.S.C. § 1415(i)(2)(B) (2000).

      . 458 U.S. 176, 206, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690, 712 (1982).

        .See e.g. McLaughlin v. Holt Public Schools Bd. of Educ., 320 F.3d 663, 669 (6th Cir. 2003).

      . See also Johnson v. Galen Health Care, Inc., 39 S.W.3d 828, 833 (Ky.App.2001) (“Our task is to determine whether or not the circuit court’s findings upholding the Cabinet are clearly erroneous.”)

      . McLaughlin, 320 F.3d at 669. See also Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 850 (6th Cir.2004).

      . 20 U.S.C. § 1412(a)(1)(A) (2000); 707 KAR 1:290.

      . Bd. of Ed. Hendrick Hudson Dist. v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 3042, 73 L.Ed.2d 690, 701 (1982).

      . Rowley, 458 U.S. at 200, 102 S.Ct. at 3048, 73 L.Ed.2d at 708.

      . Id.

      . See Louisville & Nashville R. Co. v. Kentucky Railroad Commission, 300 S.W.2d 777, 779 (Ky.1956).

      . Babb v. Knox County Sch. Sys., 965 F.2d 104, 107 (6th Cir.1992), cert. denied, 506 U.S. 941, 113 S.Ct. 380, 121 L.Ed.2d 290 (1992).

      . Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993).

        .Gillette v. Fairland Bd. of Educ., 932 F,2d 551, 554 (6th Cir.1991).