Savannah Robinson v. Samuel T. Garcia Jr., M.D.Savannah Robinson v. Samuel T. Garcia Jr., M.D.
Case Information
*1 NUMBER 13-11-00263-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG SAVANNAH ROBINSON, Aрpellant,
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 *2 remedies code. . § 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 defendants
[1]
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
feеs 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 ,
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.
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 аrgues 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 mаde 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 ,
When callеd 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,
*4
Inc. v. Summers ,
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 feе 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 сlaimant or the claimant's attorney . . . the reasonable attorney's fees and costs of court incurred by that defendant." 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 *5 liability statute provides that
[i]f, as to a defendant physician or health carе 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 рhysician or health care provider . . . . C IV P RAC . & R EM . C ODE . § 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 аlso 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 fоr 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. , T . § 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 *6 attorney's fees from an individual or corporation, in addition to the amount of a valid сlaim 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"); T EX . L AB . C ODE . § 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 рayment of sanctions. EX . R. C IV . 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."); T R. C IV P. 215.1, 215.2(b)(2), (8) (providing that if a party fails to оbey 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); T . § 10.004(a) (West 2002) ("A court that determines that a person has signed a [frivolous] pleading or motion . . . may impose a sanction оn the person [who signed the pleading or motion], a party represented by the person, or both."). The rules and statutes also provide that sanctions *7 may not be imposed against a party or attorney until there is notice and a hearing. R. C IV P. 13, 215.1(d), 215.2(b), 215.3; T EX . C IV . P RAC . & R EM . C ODE . § 10.003 (West 2002) ("The court shall provide a party who is the subject of a motion for sanctions . . . nоtice 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. T . § 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 ,
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 G OV ' T ODE
*9
A . § 311.011(a); Entergy Gulf States ,
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 discretionаry 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 opiniоn 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. R. PP P. 47.1.
Notes
[1] The other two defendants, Richard Ochoa and Doctor's Hospital at Renaissance, Ltd., are not parties to this appeal.
[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,
[3] In Fulp. v. Miller , we concluded, in relevant part, that the exрert 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.