Rita Gonzales v. Southwest Radiology Association & Sam Lo, M.D.

• Court: Court of Appeals of Texas
• Decided: July 7, 2015
• Docket: 01-14-00572-CV
• Status: Published

Opinion

Opinion issued July 7, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00572-CV ——————————— RITA GONZALES, Appellant V. SOUTHWEST RADIOLOGY ASSOCIATION & SAM LO, M.D., Appellees

On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2011-64104

MEMORANDUM OPINION

Rita Gonzales sued Southwest Radiology Association and Sam Lo, M.D.

(collectively, “Southwest Radiology”) for medical malpractice arising out of Dr.

Lo’s alleged failure to properly interpret radiological scans of her back. In a prior interlocutory appeal, a panel of this Court held that Gonzales failed to provide an

expert report that adequately set out the causal connection between Dr. Lo’s

alleged breach of the standard of care and Gonzales’s injuries and remanded the

case to the trial court to determine Southwest Radiology’s reasonable attorney’s

fees and court costs and to dismiss Gonzales’s claims with prejudice. On remand,

the trial court awarded Southwest Radiology $60,565 in attorney’s fees and

$3,739.17 in court costs. In one issue, Gonzales contends that the trial court’s

award of attorney’s fees and court costs was not supported by legally sufficient

evidence.

We affirm.

Background

In 2011, Gonzales sued Dr. Lo and Southwest Radiology for medical

malpractice, alleging that Dr. Lo, a radiologist, did not timely diagnose Gonzales’s

failed spinal fusion and failed to correctly read and interpret the radiological scans

of her spine. Gonzales asserted that Southwest Radiology was vicariously liable

for Dr. Lo’s alleged negligence under the doctrine of respondeat superior.

Gonzales served Southwest Radiology with the expert report of Dr. Randall Patten

pursuant to Civil Practice and Remedies Code section 74.351(a). See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2014) (requiring health care

liability claimant to serve expert report on defendant not later than 120th day after

2 defendant files original answer). Southwest Radiology moved to dismiss the suit,

arguing that the expert report did not set out the applicable standard of care, did not

appropriately address causation, and did not demonstrate that Dr. Patten was

qualified to render an opinion on causation. The trial court denied the motion to

dismiss, and Southwest Radiology filed an interlocutory appeal of this ruling.

On appeal, a panel of this Court reasoned that the expert report did not

contain any factual support for Dr. Patten’s conclusion on causation. See Lo v.

Gonzales, No. 01-12-00987-CV, 2013 WL 1694938, at *6 (Tex. App.—Houston

[1st Dist.] Apr. 18, 2013, no pet.) (mem. op.). We ultimately concluded that “Dr.

Patten’s expert report fails to establish a causal connection between Lo’s alleged

breach of the standard of care and Gonzales’s injuries” and that the trial court

erroneously denied the motion to dismiss Gonzales’s claims. Id. at *7. We

remanded the case to the trial court “for the limited purpose of determining Lo’s

reasonable attorney’s fees and court costs and for entry of an order dismissing

Gonzales’s claims against Lo and Southwest Radiology with prejudice.” Id.

On remand, Southwest Radiology moved for entry of an award of attorney’s

fees and court costs and for dismissal of Gonzales’s claims with prejudice.

Southwest Radiology supported its motion with the affidavit of its counsel, which

stated as follows:

In defending this suit, I, and others on my litigation team, have provided legal services in the defense of Dr. Lo and Southwest

3 Radiology Association, including, but not limited to, a review of the pleadings, preparation of an answer and request for jury trial, preparing and investigating plaintiff’s alleged injuries, medical/legal research; review/summary of medical records; preparation of Defendants’ objections to plaintiff’s expert report(s) and motions to dismiss and attended oral hearings on said motions. Further, I, and others on my litigation team, prepared for the First Court of Appeals, a brief, a reply brief, and a response to motion for rehearing. In that regard, the total legal fees incurred on behalf of Defendants Sam Lo, M.D. and Southwest Radiology Association in the above entitled and numbered cause total a minimum of $60,565.00 through the date of this Affidavit, December 6, 2013. Further, the minimum costs of court incurred on behalf of Defendants Sam Lo, M.D. and Southwest Radiology Association in the above entitled and numbered cause total a minimum of $3,739.17 through the date of this Affidavit, December 6, 2013. The fees charged in this case were both reasonable and necessary for services rendered in the defense of Defendants Sam Lo, M.D. and Southwest Radiology Association in this suit brought by the Plaintiff.

Gonzales did not file a response to this motion.

After a hearing, the trial court granted Southwest Radiology’s motion and

dismissed Gonzales’s claims with prejudice. The trial court also awarded

Southwest Radiology $60,565 in attorney’s fees and $3,739.17 in court costs.

Gonzales filed a motion for reconsideration and new trial with respect to the

attorney’s fees award, arguing that Southwest Radiology presented insufficient

evidence to support the amount of the award. Gonzales argued that Southwest

Radiology’s affidavit in support of the fee award did not address the eight Arthur

4 Andersen factors generally used to determine the reasonableness of attorney’s fees.

She also argued that the affidavit

fails to identify the work that was undertaken, fails to identify when the work was done and fails to identify the time spent on each activity. The evidence does not provide any indication of the fees customarily charged other than a conclusory statement from counsel that the fees charged were customary and reasonable.

Gonzales further argued that the evidence did not establish that Southwest

Radiology actually incurred the requested attorney’s fees. Gonzales requested that

the trial court reconsider the amount of the attorney’s fees award. The motion did

not specifically address the amount of court costs awarded to Southwest

Radiology.

In response, Southwest Radiology argued that the record contained sufficient

evidence to support the attorney’s fees award. Southwest Radiology pointed out

that “the trial court had before it a proper Affidavit from defense counsel setting

out the reasonable and necessary costs for the handling of the case along with

attorney’s fees that were incurred.” Southwest Radiology further argued, “In

addition, counsel for Defendants provided to the Court the necessary backup

information substantiating the amount of attorney’s fees and court costs incurred in

the handling of this matter in camera.” There is no indication that these unredacted

billing records were formally entered into evidence at the hearing before the trial

court, and no reporter’s record exists of this hearing.

5 Gonzales’s motion for reconsideration was overruled by operation of law,

and this appeal followed.

Sufficiency of Evidence of Attorney’s Fees and Costs

In her sole issue, Gonzales argues that the trial court’s award of attorney’s

fees and court costs to Southwest Radiology was not supported by legally

sufficient evidence.

Civil Practice and Remedies Code section 74.351(b) provides:

If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that: (1) 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; and (2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b); Garcia v. Gomez, 319 S.W.3d

638, 643 (Tex. 2010) (“Section 74.351(b) requires the award of the reasonable

attorney’s fees incurred by a physician who is not served with a timely expert

report.”); Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009) (“If a timely and

sufficient report is not served, the trial court must award the provider its attorney’s

fees and costs and dismiss the case with prejudice.”) (emphasis added). “Under the

statute, the fees awarded must be both ‘reasonable’ and ‘incurred.’ A reasonable

6 fee is one that is not excessive or extreme, but rather moderate or fair. A fee is

incurred when one becomes liable for it.” Garcia, 319 S.W.3d at 642 (construing

section 74.351(b)). A defendant may support its request for attorney’s fees by

affidavit; expert testimony in court is not required. Ramchandani v. Jimenez, 314

S.W.3d 148, 154 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

The burden is on the defendant physician or health-care provider to prove

his fees and their reasonableness. Awoniyi v. McWilliams, 261 S.W.3d 162, 166

(Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Stewart Title Guar. Co. v.

Sterling, 822 S.W.2d 1, 10 (Tex. 1991)). 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. Robinson v. Garcia, 398 S.W.3d 297, 299 (Tex. App.—Corpus

Christi 2012, pet. denied); see also Beaumont Bank, N.A. v. Buller, 806 S.W.2d

223, 226 (Tex. 1991) (stating that legal sufficiency of evidence is “a relevant

consideration” in determining whether trial court abused its discretion).

Here, Southwest Radiology supported its request for attorney’s fees and

costs with the affidavit of its lead counsel. Counsel averred:

In defending this suit, I, and others on my litigation team, have provided legal services in the defense of Dr. Lo and Southwest Radiology Association, including, but not limited to, a review of the pleadings, preparation of an answer and request for jury trial, preparing and investigating plaintiff’s alleged injuries, medical/legal research; review/summary of medical records; preparation of Defendants’ objections to plaintiff’s expert report(s) and motions to dismiss and attended oral hearings on said motions. Further, I, and

7 others on my litigation team, prepared for the First Court of Appeals, a brief, a reply brief, and a response to motion for rehearing. In that regard, the total legal fees incurred on behalf of Defendants Sam Lo, M.D. and Southwest Radiology Association in the above entitled and numbered cause total a minimum of $60,565.00 through the date of this Affidavit, December 6, 2013. Further, the minimum costs of court incurred on behalf of Defendants Sam Lo, M.D. and Southwest Radiology Association in the above entitled and numbered cause total a minimum of $3,739.17 through the date of this Affidavit, December 6, 2013. The fees charged in this case were both reasonable and necessary for services rendered in the defense of Defendants Sam Lo, M.D. and Southwest Radiology Association in this suit brought by the Plaintiff.

Gonzales did not file a written response to this motion. The trial court held a

hearing on Southwest Radiology’s motion, at which Southwest Radiology

presented its affidavit and submitted its unredacted billing records to the trial court

in camera. Gonzales has not filed a reporter’s record of this hearing, and there is

no indication that Gonzales presented an opposing affidavit or live testimony

controverting the amount of attorney’s fees and costs, and Gonzales has not, either

in the trial court or on appeal, challenged a specific portion of the fee award as

unreasonable. See Garcia, 319 S.W.3d at 641 (noting, in holding that defendant

had produced some evidence justifying fee award, that plaintiff did not “question

the reasonableness of the amount of any of these fees”).

When there is no reporter’s record made and the trial court does not make

findings of fact, “we assume that the trial court heard sufficient evidence to make

8 all necessary findings in support of its judgment.” Nicholson v. Fifth Third Bank,

226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.). An

appellant may challenge the legal sufficiency of evidence supporting the trial

court’s judgment against her, but she “cannot prevail in any evidentiary challenge

without first meeting [her] burden of presenting a sufficient record on appeal.” Id.;

see also Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam)

(“The burden is on the appellant to see that a sufficient record is presented to show

error requiring reversal.”).

Here, Gonzales did not file a written response to Southwest Radiology’s

motion for entry of attorney’s fees and costs, and she presented no evidence

contradicting Southwest Radiology’s affidavit, whether by affidavit of her own

counsel or by live testimony at the hearing before the trial court. The record

indicates that the trial court examined Southwest Radiology’s unredacted billings

records in camera and questioned Southwest Radiology about those records, but

Gonzales failed to bring forth a reporter’s record, and the trial court did not make

findings of fact. We therefore assume that the trial court heard sufficient evidence

to make all of the findings necessary to support its judgment awarding attorney’s

fees and costs. See Nicholson, 226 S.W.3d at 583; see also Brown Mech. Servs.,

Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 n.1 (Tex. App.—Houston [1st

9 Dist.] 2012, no pet.) (holding that failure to obtain reporter’s record “makes it

impossible to establish that the trial court abused its discretion”).

Gonzales further contends on appeal that there was no evidence that the

attorney’s fees awarded by the trial court were actually incurred by Southwest

Radiology. Specifically, she argues that “[w]ithout evidence of the nature of the

attorneys’ fees in this matter, either hourly, contingent or flat rate, there is no

evidence that the amounts sought were actually incurred” and that “without

evidence that billing was actually generated and paid, there can be no evidence that

the attorney’s fees were incurred.”

An attorney’s fee “is incurred when one becomes liable for it.” Garcia, 319

S.W.3d at 642; see also Aviles v. Aguirre, 292 S.W.3d 648, 649 (Tex. 2009) (per

curiam) (“Dr. Aviles was personally liable in the first instance for both defense

costs and any potential judgment. That he had previously contracted with an

insurer to pay some or all of both does not mean he incurred neither.”). The

Fourteenth Court of Appeals has held that affidavit testimony from the defendant-

hospital’s attorney stating that the hospital incurred $12,037.26 in fees “constitutes

some evidence that the hospital actually incurred $12,037.26 in attorney’s fees.”

Awoniyi, 261 S.W.3d at 166. In light of the fact that the plaintiff “presented no

evidence to contradict such testimony,” our sister court overruled the plaintiff’s

10 issue on appeal challenging the sufficiency of the evidence that the defendant-

hospital actually incurred the awarded attorney’s fees. Id.

Here, the affidavit presented by Southwest Radiology in support of its

motion for entry of attorney’s fees and costs stated: “[T]he total legal fees incurred

on behalf of Defendants Sam Lo, M.D. and Southwest Radiology Association in

the above entitled and numbered cause total a minimum of $60,565.00 through the

date of this Affidavit, December 6, 2013.” Gonzales presented no evidence

contradicting Southwest Radiology’s assertion that it had incurred $60,565 in

attorney’s fees. We conclude that the record contains some evidence that

Southwest Radiology incurred the amount of attorney’s fees awarded by the trial

court. See id.

We therefore conclude that some evidence supports the trial court’s award of

attorney’s fees and costs, and, thus, the court did not abuse its discretion in

awarding $60,565 in attorney’s fees and $3,739.17 in court costs to Southwest

We overrule Gonzales’s sole issue.

11 Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes Justice

Panel consists of Justices Keyes, Bland, and Massengale.