Savannah Robinson v. Samuel T. Garcia Jr., M.D.

NUMBER 13-11-00263-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SAVANNAH ROBINSON, Appellant,

v.

SAMUEL T. GARCIA JR., M.D., Appellee.

On appeal from the County Court at Law No. 5
of Hidalgo County, Texas.

OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Justice Rodriguez
This is an appeal from a judgment in a healthcare liability case assessing

attorney's fees against the claimant and the claimant's attorney. By a single issue,

appellant Savannah Robinson argues that the trial court erred in assessing attorney's

fees against her, the claimant's attorney, under chapter 74 of the civil practices and
remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West 2011). We

reverse and render.

I. Background

In the underlying healthcare liability suit, Robinson's client sued appellee Samuel

T. Garcia Jr., M.D. and two other defendants1 for medical malpractice in connection with

the death of her client's mother from a pulmonary embolism. Robinson's client

eventually agreed to dismissal of the malpractice suit when it was discovered that the

deceased had a blood clot filter in her main vein. Garcia pursued his claim for attorney's

fees under section 74.351(b), but the trial court did not award Garcia fees. This Court

affirmed the trial court's fee determination, holding that the evidence of Garcia's attorney's

fees was insufficient. Garcia v. Gomez, 286 S.W.3d 445, 449 (Tex. App.—Corpus

Christi 2008), rev'd, 319 S.W.3d 638 (Tex. 2010). The Texas Supreme Court reversed

our holding, however, determining that Garcia had adequately proved his fees. Garcia v.

Gomez, 319 S.W.3d 638, 642-43 (Tex. 2010).

On remand to the trial court, Garcia filed a motion to enter an order in compliance

with the supreme court's mandate, requesting that the trial court award him attorney's

fees and dismiss the case per the supreme court's mandate. After a hearing, the trial

court entered an order granting Garcia's motion and awarding Garcia $31,000 in

attorney's fees. The fees were assessed against both the claimant and Robinson, the

claimant's attorney. Robinson appeals from that order.

1
The other two defendants, Richard Ochoa and Doctor's Hospital at Renaissance, Ltd., are not
parties to this appeal.
2
 II. Discussion

By one issue on appeal, Robinson contends that the trial court erred in assessing

Garcia's attorney's fees award against her. Robinson argues that chapter 74 of the civil

practices and remedies code, the current medical malpractice statute, does not authorize

the assessing of fees against the claimant's attorney. Robinson also argues that the

judgment assessing fees against her is void and unenforceable because she was never

made a party to the case. We agree with Robinson's first argument.

A. Standard of Review

The amount of attorney's fees incurred by a party and the reasonableness of those

fees is a matter within the discretion of the trial court. See Dail v. Couch, 99 S.W.3d 390,

391 (Tex. App.—Corpus Christi 2003, no pet.) (noting that an award of attorney's fees is

generally reviewed under an abuse of discretion standard); Great Global Assurance Co.

v. Keltex Props., 904 S.W.2d 771, 776 (Tex. App.—Corpus Christi 1995, no writ) (holding

that the trial court has discretion to set the amount of reasonable attorney's fees); see

also Doctors Hosp. at Renaissance, Ltd. v. Ramirez, No. 13-07-00608-CV, 2008 WL

2744629, at *2 (Tex. App.—Corpus Christi July 10, 2008, no pet.) (mem. op.). In this

case, however, the amount of fees awarded to Garcia by the trial court is not at

issue—what Robinson questions is whether the trial court was authorized under chapter

74 to assess those fees against the claimant's attorney. And when a trial court's ruling

involves the interpretation of a statute, we review that ruling de novo. City of Garland v.

Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000).

When called on to interpret a statute, courts should ascertain and give effect to the

Legislature's intent as expressed by the language of the statute. Entergy Gulf States,
3
Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); State v. Shumake, 199 S.W.3d 279,

284 (Tex. 2006) ("[W]hen possible, we discern [legislative intent] from the plain meaning

of the words chosen."). Words and phrases are read in context and construed according

to the rules of grammar and common usage. TEX. GOV'T CODE ANN. § 311.011(a) (West

2005). "[E]very word in a statute is presumed to have been used for a purpose, and a

cardinal rule of statutory construction is that each sentence, clause and word is to be

given effect if reasonable and possible." Tex. Workers' Comp. Ins. Fund v. Del Indus.,

Inc., 35 S.W.3d 591, 593 (Tex. 2000) (citing Perkins v. State, 367 S.W.2d 140, 146 (Tex.

1963)). "Our ultimate goal, however, is to understand the Legislature's intent and apply

that intent according to the statute's purpose." Marks v. St. Luke's Episcopal Hospital,

319 S.W.3d 658, 663 (Tex. 2010) (citing TEX. GOV'T CODE ANN. § 312.005 (West 2005);

City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995)).

B. Analysis

We believe that resolution of the issue in this case first requires a comparison of

the current and former medical malpractice statutes. The attorney's fee provision in the

former medical malpractice statute—former article 4590i, section 13.01(e) of the Texas

Revised Civil Statutes, which was in effect until repealed in 2003 by the current

healthcare liability statute—provided that if an expert report is not timely filed, the trial

court shall "enter an order awarding as sanctions against the claimant or the claimant's

attorney . . . the reasonable attorney's fees and costs of court incurred by that defendant."

See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 13.01(e), 1995 Tex. Gen. Laws 985,

986 (emphasis added), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09,

2003 Tex. Gen. Laws 847, 884. By contrast, section 74.351(b) in the current healthcare
4
liability statute provides that

[i]f, as to a defendant physician or health care provider, an expert report has
not been served within [120 days], the court, on the motion of the affected
physician or health care provider, shall . . . enter an order that . . . awards to
the affected physician or health care provider reasonable attorney's fees
and costs of court incurred by the physician or health care provider . . . .

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b). Although the current provision mandates

an award of attorney's fees and costs to a physician who prevails in having a claimant's

case dismissed for failure to timely file an expert report, it does not specify who is

responsible for paying the mandatory fees. See id.; see also Fulp v. Miller, 286 S.W.3d

501, 512-13 (Tex. App.—Corpus Christi 2009, no pet.). Thus, the removal of the

language "against the claimant or the claimant's attorney" does not provide clear

guidance as to who is responsible for the payment of the physician's fees.

Instead, we find guidance in a comparison of section 74.351(b) to other statutes

providing for an award of attorney's fees and the rules and statutes providing for the

assessment of sanctions. In general, a party may recover attorney's fees from an

opposing party when provided for by statute or contract. Intercont'l Group P'ship v. KB

Home Lone Star, L.P., 295 S.W.3d 650, 653 (Tex. 2009) ("Under the American Rule,

litigants' attorney's fees are recoverable only if authorized by statute or by a contract

between the parties."). The statutes providing for the recovery of attorney's fees in

certain causes of action either do not specifically state who is responsible for payment of

fees or, where they do so state, the statute mentions only the party. See, e.g., TEX. CIV.

PRAC. & REM. CODE ANN. § 37.009 (West 2008) (providing that in a declaratory judgment

action, "the court may award costs and reasonable and necessary attorney's fees as are

equitable and just"); id. § 38.001 (West 2008) ("A person may recover reasonable
5
attorney's fees from an individual or corporation, in addition to the amount of a valid claim

and costs, if the claim is for: (1) rendered services; (2) performed labor; (3) furnished

material; (4) freight or express overcharges; (5) lost or damaged freight or express; (6)

killed or injured stock; (7) a sworn account; or (8) an oral or written contract."); id. §

81.004(b) (West 2011) (providing that if a plaintiff prevails in a cause of action of sexual

exploitation by a mental health services provider, he or she "may recover . . . reasonable

attorney fees"); TEX. LAB. CODE ANN. § 21.259(a) (West 2006) (providing that in an

employment discrimination case, "a court may allow the prevailing party . . . a reasonable

attorney's fee as part of the costs"). Regardless of whether those statutes specifically

state who is responsible for the payment of fees, the general practice is that fees are

assessed against the party, not the party's attorney.

By contrast, the rules and statutes governing the imposition of sanctions expressly

provide that a party's attorney can be held responsible for the payment of sanctions.

See TEX. R. CIV. P. 13 ("If a pleading, motion or other payer is signed in violation of this

rule, the court, upon motion or upon its own initiative, after notice and hearing, shall

impose an appropriate sanction under [rule 215.2(b)], upon the person who signed it, a

represented party, or both."); TEX. R. CIV. P. 215.1, 215.2(b)(2), (8) (providing that if a

party fails to obey various discovery orders, a trial court may, after notice and hearing,

order "the disobedient party or the attorney advising him" to pay discovery expenses,

court costs, and/or attorney's fees); TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(a) (West

2002) ("A court that determines that a person has signed a [frivolous] pleading or motion .

. . may impose a sanction on the person [who signed the pleading or motion], a party

represented by the person, or both."). The rules and statutes also provide that sanctions
6
may not be imposed against a party or attorney until there is notice and a hearing. See

TEX. R. CIV. P. 13, 215.1(d), 215.2(b), 215.3; TEX. CIV. PRAC. & REM. CODE ANN. § 10.003

(West 2002) ("The court shall provide a party who is the subject of a motion for sanctions

. . . notice of the allegations and a reasonable opportunity to respond."). When the

sanctions are sought by a trial court on its own initiative, the party seeking to avoid

sanctions must prove that sanctions should not be imposed. TEX. CIV. PRAC. & REM.

CODE ANN. § 10.002(b) (West 2002). When a party files a motion for sanctions against

an opposing party, the party filing the motion must prove the allegations of sanctionable

conduct. GTE Comms. Sys. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993). In either

situation, though, the party seeking to avoid sanctions is entitled under the rules, statutes,

and for due process reasons to present evidence and argument as to why sanctions

should not be imposed. Davila v. World Car Five Star, 75 S.W.3d 537, 544 (Tex.

App.—San Antonio 2002, no pet.).

It is true that the attorney's fees mandated under section 74.351(b) are sometimes

referred to as sanctions. See, e.g., Crites v. Collins, 284 S.W.3d 839, 840 (Tex. 2009);

Fox v. Hinderliter, 222 S.W.3d 154, 157-58 (Tex. App.—San Antonio 2006, pet. stricken).

But whether we label the mandatory section 74.351(b) fees and costs as sanctions is

irrelevant—the imposition of those fees does not require the same notice and hearing

required before the imposition of rule 13 and chapter 10 sanctions. And unlike the rules

and statutes governing sanctions, section 74.351(b) does not expressly refer to a party's

attorney being responsible for the payment of the fees mandated by that section.

Rather, by removing the phrase "against a claimant or a claimant's attorney" from the

current statute, we believe the Legislature made the attorney's fee provision in section
7
74.351 more like an award of attorney's fees under the various statutes entitling prevailing

parties to attorney's fees from the other party rather than a rule 13 or chapter 10 sanction.

In other words, by amending section 74.351(b) to read like a statutory attorney's fees

provision, we believe the Legislature intended for fees to be assessed against the

claimant only, as is the case with all other attorney's fees statutes.2 See Marks, 319

S.W.3d at 663; see also TEX. GOV'T CODE ANN. § 311.011(a).

In sum, reading the language of section 74.351(b) in context and giving effect to all

of the words in the statute, we conclude that section 74.351(b) does not allow attorney's

fees and costs to be assessed against the claimant's attorney. 3 See TEX. GOV'T CODE

2
In his brief, citing Hernandez v. Ebrom, No. 13-10-00641-CV, 2011 WL 2739501 (Tex.
App.—Corpus Christi July 14, 2011, pet. denied) and Clinica Santa Maria v. Martinez, No. 13-09-00573-CV,
2010 WL 2543943 (Tex. App.—Corpus Christi June 24, 2010, pet. denied), Garcia contends that this Court
"has upheld § 74.351 attorneys' fees awards against the attorneys, as well as the claimants[,] in numerous
cases." We disagree with Garcia's characterization of the holdings in these cases. In Hernandez, the
issue before us was whether the defendant doctor had standing to appeal a judgment that assessed fees
against both the claimant and the claimant's attorney; the doctor argued on appeal that the trial court erred
in failing to assess all of the fees and costs against the claimant's attorney. 2011 WL 2739501, at *2-3.
We held that the doctor had no standing to appeal the trial court's attorney's fees judgment as he was not
harmed by the manner in which the court assessed the fees. Id. at *3. We drew no conclusions and
issued no holding regarding the trial court's authority to assess fees against the claimant's attorney; that
issue was not before us in the appeal. Id. at *2-3. In Clinica Santa Maria, we concluded, under article
4590i, the former medical malpractice statute, that the trial court did not abuse its discretion in not
assessing fees against the claimant's attorney. 2010 WL 2543943, at *6. In so holding, we noted that the
statute "gave the trial court the discretion with respect to whom the court should sanction" and that we
would "not disturb the trial court's ruling with respect to who should pay the fees." Id. at *5. The statute to
which we referred in Clinica Santa Maria, however, was the former statute that expressly provided for the
assessing of fees against a claimant's attorney, and we cannot conclude that it precludes our holding in this
case that the current statute allows the trial court no such discretion.
3
In Fulp. v. Miller, we concluded, in relevant part, that the expert report filed by the claimant in that
case was deficient and, accordingly, that the trial court erred in denying appellant's motion to dismiss the
claim. 286 S.W.3d 501, 513 (Tex. App.—Corpus Christi 2009, no pet.). On appeal, appellant added the
claimant's attorney as a party and asked that the Court assess section 74.351(b) fees against both the
claimant and the claimant's attorney. Id. at 512. The claimant's attorney filed a motion to dismiss for lack
of jurisdiction, arguing that the Court did not have jurisdiction over him because he was not a party to the
underlying proceedings. Id. We granted claimant's attorney's motion, concluding that because the trial
court had not yet entered an order dismissing the case, appellant's request for attorney's fees was
premature and not ripe for our review. Id. at 513. In so concluding, we further noted the following:
We express no opinion as to which party, [the claimant or the claimant’s attorney], is
responsible for the payment of an attorney's fees award once [the claimant]’s health care
8
ANN. § 311.011(a); Entergy Gulf States, 282 S.W.3d at 443; see also TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(b). The trial court therefore erred in entering judgment

assessing fees against Robinson. See City of Garland, 22 S.W.3d at 357. We sustain

her appellate issue.4

III. Conclusion

We reverse the judgment of the trial court assessing fees against Robinson and

render judgment that Garcia take nothing from Robinson.

NELDA V. RODRIGUEZ
Justice

Delivered and filed the
14th day of June, 2012.

liability claim is dismissed with prejudice for failure to timely serve a compliant expert
report. That is a determination to be made by the trial court.
Id. at 513 n.7.
We believe that, when read in context with the preceding sentence in the footnote and the issues
before the Court in Fulp, there is no conflict with our holding today. In Fulp, the issue of who is responsible
for paying section 74.351(b) fees was not before the Court—the case had not yet been dismissed by the
trial court and fees had not yet been awarded. Id. at 513. For these reasons, the fees and costs issue
was premature, and we "expressed no opinion" on the matter. Id. at 513 n.7. In further noting that the
issue of who is responsible for section 74.351(b) fees "is a determination to be made by the trial court," we
were stating that the trial court must make a ruling on fees and costs before we could address the issue. In
other words, by stating that it was a determination for the trial court, we did not intend to suggest that the
issue was a discretionary one for the trial court under the statute; rather, we were merely stating that there
was an outstanding ruling still to be made by the trial court before the issue of who is responsible for fees
under the statute would be squarely before us on appeal. As such, we cannot conclude that our footnote in
Fulp conflicts with our holding in this opinion that the current statute, as a matter of law, does not allow the
recovery of fees and costs against a claimant's attorney, i.e., that it is not a discretionary matter for the trial
court.
4
Having sustained Robinson's issue on the foregoing grounds, we need not address her additional
arguments that the judgment against her is void because she was never made a party to the case. See
TEX. R. APP. P. 47.1.
9