In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00316-CV
___________________________
SUZI G. BISHARA, Appellant
V.
TEXAS HEALTH HARRIS METHODIST HOSPITAL FORT WORTH INC.,
D/B/A TEXAS HEALTH HARRIS METHODIST, HURST-EULESS-BEDFORD,
Appellee
On Appeal from the 67th District Court
Tarrant County, Texas
Trial Court No. 067-311176-19
Before Birdwell, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
This is an appeal of a final judgment granting the combined motion to dismiss
and motion for summary judgment of Appellee Texas Health Harris Methodist
Hospital Fort Worth Inc., doing business as Texas Health Harris Methodist, Hurst-
Euless-Bedford (the Hospital). The trial court dismissed with prejudice Appellant Suzi
Bishara’s claims—claims for intentional infliction of emotional distress (IIED),
intrusion on seclusion, and public disclosure of private facts—and awarded the
Hospital court costs and attorney’s fees.
Bishara presents three issues on appeal. In her first issue, she contends that the
trial court erroneously dismissed her IIED claim on the basis that she failed to
produce an expert report because her IIED claim is not a health care liability claim. In
her second issue, Bishara argues that the trial court erroneously granted summary
judgment for the Hospital because (1) a fact issue still exists and (2) expert reports are
not required to prove IIED claims. In her third issue, she argues that the trial court
abused its discretion by awarding attorney’s fees to the Hospital because its affidavit
was conclusory and therefore insufficient to support the award.
We affirm in part and reverse in part. We affirm those portions of the trial
court’s judgment dismissing Bishara’s claims with prejudice and directing her to pay
attorney’s fees. However, because the evidence is insufficient to support the amount
of the attorney’s fees awarded, we reverse the trial court’s judgment as to the amount
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of the award and remand this case to the trial court solely for a redetermination of
reasonable trial attorney’s fees.
I. BACKGROUND
A. Historical Facts
On September 6, 2017, Bishara took her terminally ill husband, Amin Bishara,
to the Hospital. Amin was experiencing weakness associated with pancreatic cancer
that had metastasized to his lung. He was placed in the intensive care unit but
ultimately passed away on September 15, 2017.
During Amin’s stay in the hospital and before his body was removed, Bishara
made several privacy requests. The requests included: (1) that Amin have privacy in
his room, (2) that visitors not have access to him absent permission from the family
or hospital staff, (3) that visitors not be allowed to bypass the nurses’ station and
access Amin’s room, (4) that the medical staff keep his door closed and curtains
drawn, (5) that the medical staff not provide information to visitors regarding Amin’s
patient status, (6) that visitors’ names be documented and that the medical staff
inform Bishara about visitors requesting to see her husband, and (7) that the medical
staff not allow unwanted visitors to view Amin’s body for an extended period of time.
Bishara contends that the medical staff did not abide by these requests despite her
constantly reminding them.
Bishara argues that the Hospital and its staff knew that ignoring her specific
requests would cause her severe emotional distress because the Hospital was aware
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that she was suffering emotionally as she watched Amin pass away. Bishara asserts
that as a result of the Hospital’s conduct, she has suffered severe emotional distress,
including depression, anxiety, sleeplessness, intrusive thoughts, self-doubt, and an
inability to perform normal work-related tasks. Bishara also asserts that because of her
severe emotional distress, she has lost earnings and future earning capacity.
B. Procedural History
Bishara sued the Hospital on September 16, 2019, asserting her IIED and
privacy claims. The Hospital filed an answer denying all of Bishara’s allegations.
The Hospital then filed its combined motion to dismiss and motion for
summary judgment. In this document, the Hospital argued that the trial court should
dismiss Bishara’s suit because she failed to timely file an expert report supporting her
claims against the Hospital, as is required by Chapter 74 of the Texas Medical Liability
Act (TMLA) for health care liability claims. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351. The Hospital also argued that it was entitled to summary judgment because
Bishara’s allegations, taken as true, did not rise to the level of extreme and outrageous
conduct required for an IIED claim and because Bishara did not have standing to
bring the privacy claims. In addition to requesting dismissal, the Hospital requested an
award of attorney’s fees, supported by an affidavit from the Hospital’s primary
counsel.
In the affidavit, the Hospital’s counsel asserts that he is licensed to practice law
in Texas and is serving as the Hospital’s counsel. He explains that he is a partner with
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a law firm that primarily works in civil litigation and works with health care providers
in medical malpractice and other civil liability cases. He adds that he has experience
with representing health care providers in similar cases and is familiar with the
“reasonable and customary charges for legal services rendered.” He concludes that the
reasonable and necessary attorney’s fees for the case total $8,290.00.
The trial court dismissed all of Bishara’s claims and directed her to pay
$8,290.00 in attorney’s fees. She filed a motion for new trial, which was overruled by
operation of law, and timely appealed to this court. In her appeal, she does not
challenge the trial court’s dismissal of the privacy claims.
II. MOTION TO DISMISS
In her first issue, Bishara argues that the trial court erroneously dismissed her
suit for failing to file an expert report. She contends that her IIED cause of action is
an intentional tort based on postmortem conduct, not a health care liability claim.
Accordingly, she argues that her claim is not governed by Chapter 74 and that an
expert report is not required.
The Hospital replies that six out of seven of Bishara’s complaints directly relate
to actions that occurred during Amin’s time in the hospital as a patient and that
qualify as medical services. The Hospital also contends that Bishara’s allegations of
privacy violations and IIED are causes of action that have been repeatedly regarded as
health care liability claims.
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A. Standard of Review
When reviewing a trial court’s decision to dismiss a health care liability claim,
we employ an abuse-of-discretion standard. TTHR, L.P. v. Coffman, 338 S.W.3d 103,
106 (Tex. App.—Fort Worth 2011, no pet.). A trial court abuses its discretion if it acts
without reference to any guiding rules or principles—that is, if its act is arbitrary or
unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings,
134 S.W.3d 835, 838–39 (Tex. 2004). However, when determining if a plaintiff’s cause
of action is a health care liability claim, we apply a de novo standard of review. Baylor
Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019).
B. Health Care Liability Claims
The TMLA requires a health care liability claimant to file an expert report
regarding the defendant physician or health care provider within 120 days of the
defendant’s original answer. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).1 The
expert report requirement’s purpose is to identify and deter frivolous claims while not
unduly restricting the plaintiff’s rights. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d
496, 502 (Tex. 2015). If the plaintiff fails to produce such a report within the time
frame, the trial court must, upon a motion by the defendant, (1) award the defendant
1
The recent statutory changes to Section 74.351 and the enactment of
Section 74.353 are not effective until September 1, 2021, and then only for cases filed
on or after that date. Accordingly, this case is governed by the current law. See Act of
May 13, 2021, 87th Leg., R.S., ch. 167, S.B. 232, § 2, sec. 74.351(a), § 3, sec. 74.353,
§§ 4–5 (to be codified at Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351, 74.353).
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attorney’s fees and court costs and (2) dismiss the claims with prejudice. Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(b).
To determine if this provision of the TMLA applies, we must first determine if
Bishara’s claim is considered a health care liability claim. The TMLA defines a “health
care liability claim” as
a cause of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from accepted
standards of medical care, or health care, or safety or professional or
administrative services directly related to health care, which proximately
results in injury to or death of a claimant, whether the claimant’s claim
or cause of action sounds in tort or contract.
Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13). Accordingly, the elements of a
health care liability claim are (1) the defendant is a physician or health care provider,
(2) the claim concerns treatment, lack of treatment, or a departure from standards of
medical or health care, or safety, professional, or administrative services directly
related to health care, and (3) the defendant’s actions were the proximate cause of the
plaintiff’s injury. Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65 (Tex.
2014); see Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13). Further, “the TMLA
creates a rebuttable presumption that a patient’s claims against a physician or health
care provider based on facts implicating the defendant’s conduct during the patient’s
care, treatment, or confinement are [health care liability claims].” Loaisiga v. Cerda,
379 S.W.3d 248, 252 (Tex. 2012).
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The parties do not dispute that the Hospital is a health care provider, nor do
they dispute that the Hospital’s alleged actions were the proximate cause of Bishara’s
alleged injuries. The central issue is whether Bishara’s IIED claim satisfies the second
element of a health care liability claim. Specifically, does it concern treatment, a lack of
treatment, or a departure from standards of medical or health care, or from safety,
professional, or administrative services directly related to health care? See Tex. Civ.
Prac. & Rem. Code Ann. § 74.001(a)(13).
This inquiry focuses on the facts supporting the claim, rather than on what the
plaintiff has labeled the claim, and considers the entire record and context of the suit.
Baylor Scott & White, 575 S.W.3d at 363. A. plaintiff may not use artful pleading to
avoid Chapter 74’s requirements when the essence of the claim is a health care liability
claim. Id. The plaintiff need not cite the TMLA or specifically allege a breach of any of
the duties found in Section 74.001(a)(13) for a claim to be a health care liability claim.
Loaisiga, 379 S.W.3d at 255. Instead, the claim is considered a health care liability claim
if the facts underlying it could support liability for a breach of any of the duties listed
in Section 74.001(a)(13). Baylor Scott & White, 575 S.W.3d at 363. If the alleged
conduct is an inseparable aspect of medical or health care services, then the claim is a
health care liability claim. TTHR, 338 S.W.3d at 107. Intentional torts can be health
care liability claims when the underlying conduct is related to the provision of medical
services. Loaisiga, 379 S.W.3d at 252–53. Additionally, when the essence of the
allegations constitutes a health care liability claim, the entire suit is governed by
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Chapter 74 and cannot be split into health care claims and non-health care claims.
Yamada v. Friend, 335 S.W.3d 192, 195–96, 197 (Tex. 2010).
C. Analysis2
Bishara argues that her claim is based on the Hospital’s actions that occurred
after Amin’s death, specifically that the Hospital allowed unwanted visitors to view his
body for an extended period of time. Bishara contends that because the complained-
of conduct occurred after Amin’s death, it does not relate to medical care. The
Hospital responds that acts occurring postmortem may still fall within the scope of
Chapter 74 and insists that they do so here.
Bishara points to Hare v. Graham, No. 2-07-118-CV, 2007 WL 3037708, at *3
(Tex. App.—Fort Worth Oct. 18, 2007, pet. denied) (mem. op.), and Salazar v. Dickey,
No. 04-08-00022-CV, 2010 WL 307852, at *4 (Tex. App.—San Antonio Jan. 27, 2010,
pet. denied) (mem. op.), in support of her assertion that conduct occurring
postmortem does not relate to health care because a cadaver cannot be a patient for
the purposes of rendering medical care. In both cases, the alleged misconduct
2
In her brief to this court, Bishara does not challenge the dismissal of her
privacy claims. Instead, she insists that she included the allegations of privacy
violations in her petition merely to support her IIED claim and argues that they “are
still available for a jury to consider on whether the [Hospital] acted with intent or even
recklessness on the post[]mortem[] IIED claim.” Because we uphold the dismissal of
her IIED claim and suit, we do not further address her discussion of the privacy-
violation allegations and the federal Health Insurance Portability and Accountability
Act, Pub. L. No. 104–191, 110 Stat. 1936 (1996) (codified in scattered sections of
42 U.S.C.). See Tex. R. App. P. 47.1.
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occurred postmortem and was not connected to any medical services performed or
treatment administered when the patient was still alive. Christus Health Gulf Coast v.
Carswell, 505 S.W.3d 528, 537 (Tex. 2016). There is thus a key difference between the
facts of Hare and Salazar and the facts of the present case.
As noted, the alleged acts of misconduct in Hare and Salazar were not
connected to any premortem care or treatment of the patients. Id. Here, the Hospital’s
alleged conduct on which the IIED claim is based primarily took place while Amin
was still alive. Although Bishara now insists that she included facts regarding the
premortem privacy violations merely as evidence to support her IIED claim, it is clear
that her claim is based on all the allegations in the petition. Considering the entire
context of the claim, we hold that Bishara’s IIED claim is a health care liability claim
because the complained-of conduct relates to the Hospital’s treatment of Amin during
his time as a patient. See Christus Health, 505 S.W.3d at 537; Loaisiga, 379 S.W.3d at
252–53. Bishara may not carve out a singular claim outside the TMLA’s scope when
the underlying facts relate to Amin’s time as a patient. See Baylor Scott & White,
575 S.W.3d at 363; Loaisiga, 379 S.W.3d at 252–53. Additionally, Bishara may not
recast her claim in an effort to avoid Chapter 74’s requirements. See Baylor Scott &
White, 575 S.W.3d at 363.
Because Bishara’s claim is a health care liability claim, it is governed by
Chapter 74. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Accordingly, it is
subject to Section 74.351. See id. Bishara was therefore required to timely file an expert
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report within 120 days of the Hospital’s original answer. See id. Bishara failed to file
the required expert report. Consequently, the trial court correctly dismissed the suit
with prejudice. See id. § 74.351(b)(2). We overrule Bishara’s first issue.
III. MOTION FOR SUMMARY JUDGMENT
In her second issue, Bishara argues that the trial court erroneously granted the
Hospital’s motion for summary judgment because (1) a fact issue exists and (2) expert
reports are not required, as her IIED claim is an intentional tort rather than a health
care liability claim. Our above holdings that the IIED claim is a health care liability
claim and that the trial court properly dismissed the suit under Chapter 74 are
dispositive of this issue; we therefore do not reach the merits of Bishara’s second
issue. See Tex. R. App. P. 47.1.
IV. ATTORNEY’S FEES
In her third issue, Bishara argues that the trial court erred by awarding
attorney’s fees because the Hospital’s affidavit was highly conclusory and was
insufficient to support the award. The Hospital argues that (1) Bishara failed to
preserve the issue, and (2) the affidavit was sufficient to support the award. We will
consider each argument in turn.
A. Preservation of Error
Generally, to preserve a complaint for appellate review, a party must present to
the trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling, if not apparent from the context. Tex. R. App. P. 33.1(a)(1)(A);
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see also Tex. R. Evid. 103(a)(1). This rule extends to complaints regarding error in
awarding attorney’s fees. Gipson-Jelks v. Gipson, 468 S.W.3d 600, 604 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). However, when there is no jury trial, complaints
regarding the sufficiency of the evidence supporting attorney’s fees may be raised for
the first time on appeal. Tex. R. App. P. 33.1(d); Gipson-Jelks, 468 S.W.3d at 604.
Here, Bishara contests the sufficiency of the evidence supporting the attorney’s
fees by asserting that the attached affidavit is conclusory and insufficient to support
the award. Accordingly, we may review whether the attorney’s fees awarded were
reasonable in light of the evidence presented. See Tex. R. App. P. 33.1(d); Gipson-Jelks,
468 S.W.3d at 604; see also Dinkins v. Calhoun, No. 02-17-00081-CV, 2018 WL 2248572,
at *8 (Tex. App.—Fort Worth May 17, 2018, no pet.) (mem. op.).
B. Standards of Review
We review a trial court’s decision to award attorney’s fees for an abuse of
discretion. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990). If
attorney’s fees are proper under the law, the trial court does not have discretion to
deny them. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(1); Garcia v. Gomez,
319 S.W.3d 638, 640 (Tex. 2010).
We review the amount of attorney’s fees awarded under a legal sufficiency
standard. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 490
(Tex. 2019). We may sustain a legal sufficiency challenge—that is, a no-evidence
challenge—only when (1) the record bears no evidence of a vital fact, (2) the rules of
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law or of evidence bar the court 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 establishes conclusively the opposite of a vital fact. Shields
Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017); see also Ford Motor Co. v.
Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh’g); Uniroyal Goodrich Tire Co. v.
Martinez, 977 S.W.2d 328, 334 (Tex. 1998) (op. on reh’g). In determining whether
there is legally sufficient evidence to support the finding under review, we must
consider evidence favorable to the finding if a reasonable factfinder could, and
disregard evidence contrary to the finding unless a reasonable factfinder could not.
Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v.
Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
C. Law and Analysis
1. The Statute Mandates Attorney’s Fees
Under the TMLA, the defendant physician or health care provider is entitled to
recover “reasonable attorney’s fees and costs of court incurred” when the plaintiff
fails to file an expert report within the statutory deadline. Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(b)(1). The trial court’s duty to dismiss the case and award
attorney’s fees is mandatory. Garcia, 319 S.W.3d at 640. The Hospital has conclusively
established that it is entitled to an award of attorney’s fees incurred while defending
against Bishara’s suit. However, the Hospital must also establish that the requested
attorney’s fees are reasonable. See Rohrmoos, 578 S.W.3d at 487.
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2. Insufficient Evidence Supports the Reasonableness of the Award
To recover attorney’s fees, the prevailing party has the burden to prove that
(1) legal authority permits the recovery of attorney’s fees, and (2) the requested
attorney’s fees are reasonable and necessary. Rohrmoos, 578 S.W.3d at 487. Whether an
award of attorney’s fees is reasonable is a question of fact; we review the
reasonableness of the amount of the attorney’s fees awarded for sufficiency of the
evidence. Sundance Minerals, L.P. v. Moore, 354 S.W.3d 507, 513 (Tex. App.—Fort
Worth 2011, pet. denied). A reasonable fee should not be excessive but should instead
be fair. Garcia, 319 S.W.3d at 640. When evaluating the reasonableness of an
attorney’s fee, courts should consider the Arthur Andersen factors, including:
(1) the time and labor required, the difficulty of the legal issue, the skill
required;
(2) the likelihood that accepting the employment will preclude the
attorney from other employment;
(3) the fee customarily charged for similar services;
(4) the amount involved and the results;
(5) the time limitations;
(6) the nature and length of relationship with client;
(7) the experience, reputation, and ability of the lawyer; and
(8) whether the fee is fixed or contingent.
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). While
the factors are instructive, evidence for each factor is not required to decide
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reasonableness. Sundance Minerals, 354 S.W.3d at 514. Additionally, Texas law does not
require detailed billing records to support an award of attorney’s fees, but the
information may be instructive and is strongly encouraged. Rohrmoos, 578 S.W.3d at
502. A party requesting an award of attorney’s fees bears the burden of documenting
the hours expended on the litigation and the value of those hours so that the trial
court may have access to sufficient information to make a meaningful evaluation of
the requested amount. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761–62 (Tex. 2012).
To support the requested amount of attorney’s fees, parties frequently rely on
the testimony or affidavit of the attorney of record. See Rohrmoos, 578 S.W.3d at 476;
El Apple, 370 S.W.3d at 759; Garcia, 319 S.W.3d at 641. In Garcia, the Supreme Court
of Texas held that an attorney’s testimony about his experience and his estimate of a
reasonable and necessary fee was “some evidence of a reasonable fee.” 319 S.W.3d at
642. However, as the Rohrmoos court later clarified, cursory testimony or a conclusory
affidavit is not sufficient evidence to support the award’s amount, even though it is
“enough [evidence] to present the issue to the court.” 578 S.W.3d at 497 (emphasis
omitted) (quoting El Apple, 370 S.W.3d at 762). The Rohrmoos court explicitly stated
that Garcia is not a guide on the standard for whether evidence is legally sufficient to
support an award of attorney’s fees. Id.
Bishara challenges the sufficiency of the evidence that the Hospital offered to
support its requested attorney’s fees by asserting that the statements contained in the
affidavit are conclusory. Affidavits supporting requests for attorney’s fees must be
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developed by an individual with personal knowledge. See Souder v. Cannon, 235 S.W.3d
841, 849 (Tex. App.—Fort Worth 2007, no pet.). A conclusory statement is one that
does not provide the underlying facts to support the conclusion and is not considered
competent evidence. Atmos Energy Corp. v. Paul, 598 S.W.3d 431, 467 (Tex. App.—
Fort Worth 2020, no pet.).
The Hospital’s attorney asserts in the affidavit that $8,290.00 is a reasonable
and necessary attorney’s fee and bases this on his experience representing health care
providers in similar suits. He provides no specific details regarding the computation of
the amount requested and states only that he is familiar with customary charges for
similar legal services. The affidavit contains no information regarding exactly what
legal work was done for the Hospital, the time spent, the expertise required, or his
normal hourly rate. While not all this information is necessarily required to sufficiently
support a finding that an award of attorney’s fees is reasonable, such details are
strongly encouraged. Rohrmoos, 578 S.W.3d at 502. Additionally, without any of this
information, there is little to no basis for the court to effectively evaluate whether the
requested attorney’s fees are reasonable considering the legal work performed. See El
Apple, 370 S.W.3d at 763.
The Hospital asserts that a similar affidavit was held sufficient in Roberts v.
Irigoyen, suggesting that the affidavit filed in this case should therefore also be
sufficient. No. 13-99-011-CV, 2000 WL 35721238, at *4 (Tex. App.—Corpus Christi–
Edinburg May 4, 2000, no pet.) (not designated for publication). Unpublished
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opinions have no precedential value. Tex. R. App. P. 47.7(b). Additionally, while we
respect our sister courts’ decisions, we are not bound by them. P.C. ex rel. C.C. v. E.C.,
594 S.W.3d 459, 464 (Tex. App.—Fort Worth 2019, no pet.). Finally, the Roberts
opinion came out well before the Supreme Court of Texas handed down El Apple and
Rohrmoos, which have provided more specific guidance regarding the evaluation of
requested attorney’s fees. Rohrmoos, 578 S.W.3d at 497; El Apple, 370 S.W.3d at 761–
62.
While the Hospital is entitled to an award of attorney’s fees, in light of El Apple
and the Supreme Court of Texas’s statements in Rohrmoos, we agree with Bishara that
the Hospital’s affidavit is legally insufficient to support the amount awarded.
Accordingly, we sustain Bishara’s third issue.
V. CONCLUSION
We affirm in part and reverse in part. Having overruled Bishara’s first issue,
which is also dispositive of her second issue, we affirm that portion of the trial court’s
judgment dismissing her suit. We also affirm the trial court’s decision to award
attorney’s fees to the Hospital. However, having sustained Bishara’s third issue, we
reverse the trial court’s judgment as to the amount of the attorney’s fees awarded and
remand this case to the trial court solely for a redetermination of reasonable and
necessary trial attorney’s fees incurred. See Long v. Griffin, 442 S.W.3d 253, 255–56
(Tex. 2014) (per curiam); El Apple, 370 S.W.3d at 764; Fiamma Statler, LP v. Challis,
No. 02-18-00374-CV, 2020 WL 6334470, at *19 (Tex. App.—Fort Worth Oct. 29,
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2020, pet. denied) (mem. op.).
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: July 22, 2021
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