ACCEPTED
04-14-00358-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/10/2015 12:28:48 PM
KEITH HOTTLE
CLERK
NO. 04 - 14 - 00358 - CV
IN THE FOURTH COURT OF APPEALS, FILED IN
4th COURT OF APPEALS
San Antonio, Texas SAN ANTONIO, TEXAS
09/10/15 12:28:48 PM
JUANITA SPRUTE, M.D. and JEFFERSON FAMILY PRACTICE
KEITH E. HOTTLE
ASSOCIATES, Clerk
Appellants and Cross-Appellees
vs.
FILED IN
4th COURT OF APPEALS
ARNOLD L. LEVEY, SAN ANTONIO, TEXAS
09/10/15 12:28:48 PM
KEITH E. HOTTLE
Appellee and Cross-Appellant Clerk
On Appeal from Cause No. 2013-CI-07246
in the 45th District Court of Bexar County, Texas,
the Honorable Larry Noll Presiding
____________________________________________________________
APPELLEE AND CROSS-APPELLANT’S MOTION FOR REHEARING
AND EN BANC RECONSIDERATION
TO THE HONORABLE JUDGE OF SAID COURT:
Pursuant to TEX. RULE APP. P., Rule 49, APPELLEE AND CROSS-APPELLANT,
ARNOLD L. LEVEY (“LEVEY”) files this Motion for Rehearing and En Banc
Reconsideration of the Court’s opinion in this case. In support Levey shows:
INTRODUCTION
Levey maintains his position regarding each point raised in the appeal, but realizing that
the Court after fully considering both briefs, oral arguments and its own research and analysis,
decided the issues as reflected in the Court’s Opinion affirming the case. Accordingly, Levey
does not intend to argue each point again here and waste the Court’s time on matters that the
Levey v. Sprute Jefferson Family Practice Motion for Rehearing and En Banc Reconsideration Page 1
Court already has thoroughly considered. Rather, Levey’s purpose now is to briefly focus on
just the award of attorney’s fees made by the trial Court and upheld by this Court. In this regard
Movant feels that there are two related issues—lack of evidence and false evidence--- that
affect this case as to the award of attorney’s fees. Levey believes that although both of these
matters were considered in his brief or inthe original opinion of the Court, there was not enough
emphasis placed on them by either Levey or the Court. Levey failed to point out to this court
precisely, forcefully and succinctly the complete lack of evidence in the record as to attorney’s
fees or the extent of the wrongfulness of the actions of the opposing side regarding the
attorney’s fees issues. A second look at these issues would be helpful and in the interest of
justice.
The first question to be raised is whether the trial judge can arbitrarily make an award of
attorney’s fees based only upon his intuition and by considering what was done in similar cases,
where there was a total lack of any evidence formally introduced into the record.
The other issue is whether a party seeking the award of attorney’s fees (particularly when
it is considered as a sanction for the failure to obtain the expert reports), who has submitted
evidence in the form of affidavits which are clearly and demonstratively not true, should be
denied any award of attorney’s fees and sanctioned themselves for attempting to obtain an
award in this way.
DISCUSSION AND ARGUMENT
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(B)(1) appears to mandate the award
of attorney’s fees and costs, when expert reports are not served timely—such statute having no
exceptions based upon equity or otherwise. However, even under a statute which provides for a
mandatory award of attorney’s fees, there must be evidentiary support. Bocquet v. Herring 972
Levey v. Sprute Jefferson Family Practice Motion for Rehearing and En Banc Reconsideration Page 2
W.W. 2d 19, 20 (Tex. 1998). In the case of Garcia v. Gomez, 319 S.W. 3d 638 (Tex. 2010),
even those in the majority opinion in that case acknowledged that there had to be some evidence
of the reasonableness of the attorney’s fees award and not an arbitrary award by the trial judge in
a health care case.
While Judge Noll might have had much experience in these cases, he did not have the
right to reach an opinion on the reasonableness of attorney’s fees and determine that they were
actually incurred, without any evidence being introduced supporting the award of the fees. He
apparently realized that the “evidence” which he was provided did not even appear to be
legitimate and decided to basically ignore it; however the problem with this was that once the
affidavits were disregarded, there was no other evidence to consider and support his award.
The affidavits of counsel, Alexander P. Rodriguez, III, were never admitted into evidence.
There was no coherent evidence in the record whatsoever which had been admitted pursuant to
the rules of evidence. The fact that the amount awarded was much less than the amounts
contained in the affidavits of counsel does not mean that it was supported by actual, admissible
evidence. Despite the fact that counsel had every opportunity to introduce evidence, under oath
and subject to the right of cross-examination, he chose not to do so. So even if an award of
attorney’s fees were considered to be mandatory, the amount of that award, based upon the
evidence, would have to be zero. There was just no evidence regarding attorney’s fees properly
admitted into evidence. The affidavits in question were simply attached to the court reporter’s
record as Exhibits 1 and 2 and were never offered into evidence.
The other consideration regarding the attorney’s fees is even more troubling. This
involves the authenticity of the affidavits upon which opposing counsel based its claim for
attorney’s fees both in the trial court and before this court in the appeal of the award made by the
Levey v. Sprute Jefferson Family Practice Motion for Rehearing and En Banc Reconsideration Page 3
trial judge. There were three affidavits executed by Alexander P. Rodriguez,III, an attorney
with the firm representing the opposing parties. Mr. Rodriguez, who was not named as the lead
attorney but was the only attorney from the firm appearing in court and was the one who signed
almost all of the pleadings. Although none of these affidavits were ever actually introduced into
evidence, the first one claiming total fees of $16,630.52 was referred to in open court on
November 5, 2013. (RR p.28, line 16) . A copy was shown to Levey and possibly the judge,
but never was introduced into evidence. There was some discussion by counsel but he did not
testify about the facts contained in the affidavit under oath. Then on November 21, 2013 at the
next hearing, Mr. Rodriguez had two affidavits, totaling $31,683 which apparently were
intended as a replacement for the first affidavit which was never mentioned again. See Exhibits
1 and 2 to RR) These all covered basically the same period of time and the same legal work
allegedly performed, all of these were made under oath, but the two filed approximately two
weeks after the first, totaled approximately twice as much. The affidavits of November 21,
2015 were not introduced into evidence properly but were given to the court reporter to attach to
the record as exhibits. They were not even admitted under the business records exception. Rule
803(6), Rule 902(10)(b), Tex. R. Evid. Such an affidavit would require giving 14- days notice.
Levey never had a chance to cross-examine Mr. Rodriguez on the contents of any of these
affidavits nor the other attorneys and paralegals who allegedly worked on the case. This Court
in its original opinion acknowledged that there was a big discrepancy in the amounts claimed in
the different affidavits and suggested that the trial court might have had a basis to not accept
such evidence andcut back on the amount of the award as it did. Levey contends that there is no
possibility that all of these affidavits could be true—they are just too inconsistent. It really
seems to Levey that opposing counsel or their clients simply decided arbitrarily that they wanted
Levey v. Sprute Jefferson Family Practice Motion for Rehearing and En Banc Reconsideration Page 4
to obtain a larger award from him and then created and filed affidavits to accomplish this
purpose . Since the purpose of filing the allegedly bogus affidavits was to obtain a larger award
of attorney’s fees against Levey, and since these affidavits were so questionable, Levey
contends that the opposing parties and attorneys be denied any award of attorney’s fees as a
sanction, if nothing else. See Texas Disciplinary Rules of Professional Conduct, Rule 3.03 ---
Candor to a Tribunal, specifically prohibiting the making false statements to a court. The
opinion in the Garcia case suggested that sanctions could offset any award for attorney’s fees.
In that opinion the Court was referring to discovery sanctions, but the same principle would
apply to any sanctions that would be appropriate. Filing false affidavits certainly would merit
the imposition of sanctions by this Court under the inherent power of the Court.
Movant contends that there was no evidence before the court regarding attorney’s fees—
as to reasonableness and the fact that they were actually incurred--- and that if the affidavits were
found to be evidence that such evidence should be disregarded due to lack of credibility and
inconsistency.
Levey intended to compare line- by- line the first affidavit with the other two for the
Court, but decided not to do so because the first affidavit was never offered into evidence nor
included as an exhibit attached to the record as the others were. Only the total amount was
acknowledged in open court but the discrepancy is obvious and no explanation was even offered
to the Court for the discrepancy.
Levey v. Sprute Jefferson Family Practice Motion for Rehearing and En Banc Reconsideration Page 5
PRAYER
WHEREFORE, PREMISES CONSIDERED, LEVEY prays that this
Motion for Rehearing and En Banc Reconsideration be granted and upon final hearing that the
Court’s judgment be modified and for such other relief as may be warranted.
Respectfully Submitted,
Arnold L. Levey
SBN 12250000
P.O. Box 460064
San Antonio, Texas 78246
210 – 685 – 8383 (tel)
210—579-6493 (fax)
Arnold.levey@gmail.com(email)
/S/ Arnold L. Levey
Attorney for Appellee and Cross-Appellant
CERTIFICATE OF SERVICE
This is to certify that on September 8, 2015, a true and correct copy of Motion
for Extension was served on the following counsel:
LISA A. ROCHELEAU
ALEXANDER RODRIGUEZ, III.
BOONE & ROCHELEAU, P.L.L.C.
101 Reunion Place, Suite 600
San Antonio, Texas 78216
Attorney for Appellants and Cross-Appellees
/S/ Arnold L. Levey
Arnold L. Levey
Levey v. Sprute Jefferson Family Practice Motion for Rehearing and En Banc Reconsideration Page 6
Levey v. Sprute Jefferson Family Practice Motion for Rehearing and En Banc Reconsideration Page 7
Juanita Sprute, M.D. and Jefferson Family Practice Associates v. Arnold L. Levey
Combined Opinion