Affirm in part; Reverse and Remand in part and Opinion Filed March 15, 2024
In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00053-CV
WILLIAM GARLAND SIMONS, Appellant V. MEDICAL HYPERBARICS, INC., Appellee
On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-07223
MEMORANDUM OPINION Before Justices Nowell, Miskel, and Kennedy Opinion by Justice Nowell The trial court granted appellee Medical Hyperbarics, Inc.’s (MHI) traditional
and no-evidence motion for summary judgment on its original verified petition for
damages against appellant William Garland Simons. Simons challenges the trial
court’s subject matter jurisdiction to grant summary judgment and contends the trial
court erred because genuine issues of material fact exist. Simons also asserts the
trial court denied him his constitutional right to a jury trial on attorneys’ fees. We
reverse the trial court’s award of attorneys’ fees and remand for further proceedings.
In all other respects, we affirm the trial court’s judgment. Background
On February 27, 2019, Simons became ill at a restaurant while vacationing in
Cozumel, Mexico. Patrons placed him in a taxicab, and the driver took him to
Cozumel International Hospital (the Cozumel Facility), a facility specializing in
treatment for divers experiencing decompression sickness.
Simons signed an Obligation to Pay Agreement (OTP Agreement), which
explained his obligations regarding payments for his medical care at the Cozumel
Facility. The OTP Agreement provided, in relevant part, that Simons was of sound
mind, fully understood the consequences, and “chose to obligate [himself] to make
payments for the services [he] received and want[ed] to continue receiving services
at this facility.” It further provided:
I am aware of their rates. This is my voluntary promise to pay the charges for the services rendered to me, in case my insurance does NOT cover the charges in full. The benefit of this credit extended to me is issued by MHI, Dallas Texas. . . . The emergency treatment services were rendered at this private facility WITHOUT any coercion. Now at the therapy stages, it is my choice to receive further services at this private facility, rather than seek repatriation for continued therapy.
Simons initialed each paragraph in the OTP Agreement and signed the
“Confirmation by Patient.” Carter Robert witnessed it.
The Cozumel Facility provided care to Simons from February 27, 2019 to
March 2, 2019 at the cost of $24,433.08. Simons paid $9,732.00 and his insurance
–2– carrier filed a partial payment of $1,441.81 to MHI, a Texas-based third-party billing
service that services medial providers around the world.
On March 12, 2020, MHI sent a letter informing Simons he owed the
$13,259.27 balance, and if payment was not received by March 26, 2020, it would
take legal action.
On May 22, 2020, MHI filed its original verified petition for damages to
recover the remaining $13,259.27 owed for Simons’s medical expenses based on
breach of contract, unjust enrichment, and attorneys’ fees. On June 29, 2020,
Simons filed an unverified original answer, specific denial, and affirmative defenses.
Simons filed an unverified amended answer on December 18, 2020.
On November 24, 2021, MHI filed a traditional and no-evidence motion for
summary judgment. MHI argued, in part, that it was entitled to summary judgment
on its sworn account claim because Simons did not file a verified denial. On
December 28, 2021, Simons filed a verification affidavit to “Defendant’s Amended
Answer filed in this case on December 18, 2020.” MHI filed a motion to strike
Simons’s verification as untimely.
On January 13, 2022, Simons filed a verified second amended answer1 and
responses to both MHI’s motion to strike and its summary judgment motion. He
asserted MHI had no standing or capacity to bring suit because it was not assigned
1 MHI did not file a motion to strike or object to Simons’s verified second amended answer.
–3– to collect his medical bills. He challenged the merits of the breach of contract claim,
in part, because he lacked the mental capacity to sign the OTP Agreement given his
medical condition at the time. He also challenged the no-evidence motion for
summary judgment because MHI failed to list any elements of his affirmative
defenses for which there was no evidence.
On April 14, 2022, the trial court granted MHI’s motion to strike Simons’s
December 28, 2021 verification and December 18, 2021 amended answer. On the
same day, in a separate order, the trial court granted MHI’s traditional summary
judgment on its sworn account and breach of contract claims and granted MHI’s no-
evidence summary judgment on Simons’s affirmative defenses. On December 21,
2022, the trial court awarded $32,619.50 in attorneys’ fees, $35,000 in conditional
appellate attorneys’ fees, and $897.70 in costs. This appeal followed.
Summary Judgment Standard of Review
We review the trial court’s grant of summary judgment de novo. Lujan v.
Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). A traditional motion for summary
judgment requires the moving party to show no genuine issue of material fact exists,
and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lujan, 555
S.W.3d at 84. If the movant carries this burden, the burden shifts to the nonmovant
to raise a genuine issue of material fact precluding summary judgment. Id. In
reviewing the summary judgment, we must credit evidence favoring the non-
–4– movant, indulging every reasonable inference and resolving all doubts in his favor.
Id.
We review a no-evidence summary judgment under the same legal sufficiency
standard used to review a directed verdict. TEX. R. CIV. P. 166a(i); Timpte Indus.,
Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). To defeat a no-evidence summary
judgment, the nonmovant is required to produce evidence that raises a genuine issue
of material fact on each challenged element of its claim. Gish, 286 S.W.3d at 310;
see also TEX. R. CIV. P. 166a(i).
MHI’s Standing and Capacity to Pursue Claims
Simons asserts MHI lacks standing and capacity to pursue its claims because
the “sued-upon claims is without proof of an assignment from any medical
provider,” as “facility: Cozumel” in the OTP Agreement is a generic description of
a medical location. MHI responds Simons (1) confused standing and capacity, (2)
failed to raise capacity as an affirmative defense, and (3) failed to present any
evidence raising a genuine issue of material fact.
A party must have both standing and capacity to sue. Austin Nursing Ctr.,
Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). “A plaintiff has standing when it
is personally aggrieved, regardless of whether it is acting with legal authority; a party
has capacity when it has the legal authority to act, regardless of whether it has a
justiciable interest in the controversy.” Id. at 848–49. While standing is a
jurisdictional issue, lack of capacity is an affirmative defense. 6200 GP, LLC v.
–5– Multi Serv. Corp., No. 05-16-01491-CV, 2018 WL 3154594, at *3 (Tex. App.—
Dallas June 28, 2018, no pet.) (mem. op.).
“Texas law is clear, and this court has previously held numerous times, that a
challenge to a party’s privity of contract is a challenge to capacity, not standing.”
Transcon. Realty Invs., Inc. v. Wicks, 442 S.W.3d 676, 679 (Tex. App.—Dallas
2014, pet. denied); see also 6200 GP, LLC, 2018 WL 3154594, at *3. Simons argues
MHI is not entitled to sue based on the OTP Agreement because there was no privity
of contract; therefore, this is a challenge to capacity, not standing.
Privity is established by proving the defendant was a party to an enforceable
contract with either the plaintiff or someone who assigned the cause of action to the
plaintiff. 6200 GP, LLC, 2018 WL 3154594, at *3. In its most general sense, the
word “assign” or “assignment” means the transfer of property or some right or
interest from one person to another. Id. It is a manifestation by the owner of a right
of his intention to transfer the right to an assignee. Id. To recover on an assigned
cause of action, the party claiming the assigned right must plead and prove that a
cause of action capable of being assigned existed and was assigned to the party
alleging assignment occurred. Id. at *4. Once a cause of action is assigned, “the
assignee becomes the real party in interest with authority to prosecute the suit to
judgment.” Id. (quoting S. Cnty. Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 465 (Tex.
App.—Corpus Christi-Edinburg 2000, no pet.).
–6– MHI attached the affidavit of Eric Munoz, the Claims Administrator and
custodian of business records for MHI, to its motion for summary judgment. Munoz
testified he was familiar with MHI’s record-keeping system, and MHI was a third-
party billing provider for the Cozumel Facility. He further stated, “The Cozumel
Facility assigned its rights to collect for the medical services provided to [Simons]
to MHI at the time the care was provided to Simons.” His testimony was sufficient
to establish an assignment between the parties and subsequent privity of contract for
MHI to sue for recovery of outstanding medical bills. See 6200 GP, LLC, 2018 WL
31544594, at *6 (“A person may testify to a sale and assignment without providing
any documentary evidence.”); see also Ortega v. CACH, LLC, 396 S.W.3d 622, 627
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (in debt collection action, bank
officer’s affidavit testimony that “agreement and account was, on 8/18/2009 sold,
transferred and set over unto CACH, LLC” was not conclusory and established
assignment).
The record also contains an initialed copy of the OTP Agreement, which lists
“Facility: Cozumel” and states, “The benefit of this credit extended to me is issued
by MHI, Dallas Texas.” The itemized bill MHI sent Simons lists many different
facilities it “provid[es] services for.” The list includes “COZUMEL, Q. Roo,
Mexico, Ph: 52.987.872.1430.” The address and phone number of “COZUMEL”
matches the information in the OTP Agreement. Finally, the itemized bill states at
–7– the bottom, “BENEFITS ASSIGNED – PLEASE PAY FROM THIS INVOICE
DIRECTLY TO: [MHI Dallas address].” (Emphasis in original.)
Simons failed to provide any summary judgment evidence raising a genuine
issue of material fact as to the validity of the assignment of Simons’s medical bills
from the Cozumel Facility to MHI. To the extent he argues the Cozumel Facility
should not be considered a legal entity because it is not a business organization but
a “facility,” he provided no legal authority or evidence for this proposition.
Simons’s first issue is overruled.
Sworn Account
In his second issue, Simons argues the trial court erred by granting summary
judgment on MHI’s sworn account claim. MHI responds Simons did not file a sworn
denial sufficient to rebut Texas Rule of Civil Procedure 185 or, in the alternative, it
established its sworn account claim as a matter of law. See TEX. R. CIV. P. 185.
The essential elements to prove a sworn account are: (1) a sale and delivery
of merchandise or performance of services; (2) the amount of the account is just, that
is, that the prices were charged in accordance with an agreement or were customary
and reasonable prices; and (3) the amount is unpaid. Daniels v. Lavery, No. 05-06-
00216-CV, 2007 WL 549223, at *4 (Tex. App.—Dallas Feb. 23, 2007, no pet.)
(mem. op.). When an action is founded on an open account on which a systematic
record has been kept and is supported by an affidavit, the account shall be taken as
prima facie evidence of the claim, unless the party resisting the claim files a sworn
–8– denial under oath. TEX. R. CIV. P. 185; Woodhaven Partners, Ltd. v. Shamoun &
Norman, L.L.P., 422 S.W.3d 821, 832 (Tex. App.—Dallas 2014, no pet.). An
opponent that does not properly file a written denial under oath will not be permitted
to dispute the receipt of the services or the correctness of the charges. Id. A sworn
general denial does not constitute a denial of the account and is insufficient to
remove the evidentiary presumption created by a properly worded and verified suit
on an account. Id. The defendant’s written denial must state more than a broad
generalization that he “specifically denies” the sworn account allegations; instead,
the verified affidavit must address the facts on which the defendant intends to rebut
the plaintiff’s affidavit. Id.
Simons’s second amended answer and verified denial was more than a general
denial and specifically denied the sworn account allegations. See, e.g., Prof’l Servs.
Techs., LLC v. Whipple, No. 04-20-00273-CV, 2021 WL 3174259, at *3 (Tex.
App.—San Antonio July 28, 2021, no pet.) (mem. op.) (concluding affidavit
specifically denying “the amount Plaintiff claims is owed” on the sworn account
directly controverted defendant’s sworn account as required by rules 185 and
93(10)). To the extent MHI argues otherwise, we disagree and address Simons’s
arguments attacking the summary judgment.
Simons first argues the trial court erred by granting summary on the sworn
account because the claim was not properly assigned to MHI; we have previously
disposed of this argument. Simons next contends rule 185 does not apply because
–9– the rule does not cover transactions between third parties or parties who are strangers
to a transaction. See Harris v. Jackson & Walker, L.L.P., No. 05-93-01795-CV,
1995 WL 23008, at *3 (Tex. App.—Dallas Jan. 20, 1995, no writ) (mem. op.) (“A
‘stranger to the account’ may controvert and disprove the sworn account without
filing a written, sworn denial). Because MHI was assigned the claim, it is not a third
party or stranger to the transaction. Simons is not a stranger to the transaction
because the OTP Agreement reflects his name, signature, date of birth, and social
security number, and the itemized invoice reflects his name and date of birth.
Accordingly, rule 185 applies.
Simons next summarily challenges MHI’s itemized invoice because it does
not describe with reasonable certainty the items sold. We disagree. Rule 185 states,
“No particularization or description of the nature of the competent parts of the
account or claim is necessary unless the trial court sustains special exceptions to the
pleadings.” Simons did not file special exceptions asking for particularity regarding
the “items sold,” and he has not identified how or why the itemized invoice is
deficient in describing the “items sold.” See, e.g., S. Mgmt. Servs., Inc. v. SM Energy
Co., 398 S.W.3d 350, 355 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (rejecting
appellant’s complaints that accounting did not specify exactly what services were
provided because it included unexplained abbreviations and appellant did not
specially except). Instead, the invoice provides the dates of service, the services
–10– rendered (i.e.: chest x-ray, USG vascular, bubble echocardiogram, labs,
room/board), and the hours and rates charged for each service rendered.
Although Simons filed a sworn denial, MHI was entitled to summary
judgment on its sworn account because it produced legal and competent summary
judgment evidence establishing the validity of its claim as a matter of law. MHI
included a sworn affidavit from its Claims Administrator, the OTP Agreement, the
itemized invoice for services rendered, and the request for payment letter sent to
Simons. See TEX. R. CIV. P. 185.
Simons did not bring forth any evidence raising a fact issue precluding
summary judgment. His affidavit provides unsupported conclusory statements
regarding the fraudulent nature of the charges and that the charges are “not just and
true and not the usual, customary, and reasonable prices charged.” See, e.g., Adcock
v. Cal-Maine Foods, Inc., No. 03-22-00418-CV, 2024 WL 201963, at *3 (Tex.
App.—Austin Jan. 19, 2024, no pet.) (mem. op.) (concluding statements that do not
provide “specific factual bases on which the conclusion was drawn” are conclusory).
Affidavits containing conclusory statements that fail to provide the underlying facts
supporting those conclusions are not proper summary judgment evidence. Padilla
v. Metro. Transit Auth. of Harris Cnty., 497 S.W.3d 78, 86 (Tex. App.—Houston
[14th Dist.] 2016, no pet.). Accordingly, the trial court did not err by granting
summary judgment as a matter of law on MHI’s sworn account claim.
–11– In reaching this conclusion, we need not consider whether the trial court erred
by striking Simons’s first amended answer and verification. TEX. R. APP. P. 47.1.
Simons’s second issue is overruled.
Breach of Contract
In his third issue, Simons argues the trial court erred in granting summary
judgment on MHI’s breach of contract claim because fact issues exist as to whether
there was a meeting of the minds for an enforceable contract and whether the
Cozumel Facility fully performed the OTP Agreement.
A breach of contract action requires proof of four elements: (1) formation of
a valid contract; (2) performance by the plaintiff; (3) breach by the defendant; and
(4) damages as a result of the breach. S & S Emergency Training Sols., Inc. v. Elliott,
564 S.W.3d 843, 847 (Tex. 2018). Simons has not challenged elements three and
four.
To the extent Simons relies on the absence of a valid assignment to support
privity of contract, we have rejected this argument. The majority of Simons’s
remaining argument consists of a copy of his affidavit attached to his summary
judgment response, in which he asserted he never agreed to the charges because he
was without mental capacity to enter into the contract. He claimed by the time he
arrived at the Cozumel Facility, he had lost his motor skills, his vision was blurred,
and he had “tremendous pain in my spine giving me a feeling that my neck had
collapsed.” He believed he suffered from “the bends or nitrogen narcosis” and could
–12– not read or understand the OTP Agreement. Because of his mental and physical
condition, he maintained there was no meeting of the minds to form a valid contract
with the Cozumel Facility, agents of the facility, or MHI.
Texas law has long presumed that a party to a contract has the mental capacity
to enter into the contract. McKeehan v. McKeehan, 355 S.W.3d 282, 295 (Tex.
App.—Austin 2011, pet. denied); Harrell v. Hochderffer, 345 S.W.3d 653, 661–62
(Tex. App.—Austin 2011, no pet.). The fact that a party raises the issue of
incompetence does not, alone, obligate the summary-judgment movant to prove
mental competence or disprove the possibility of incompetence. McKeehan, 355
S.W.3d at 295. Rather, to raise a question of fact sufficient to overcome the
presumption that Simons had the requisite mental capacity to complete and sign the
OTP Agreement—i.e., to defeat MHI’s motion for summary judgment on the ground
he lacked the mental capacity to enter into a contract—Simons had to present
competent summary-judgment evidence showing he lacked “sufficient mind and
memory at the time of execution to understand the nature and effect of [his] act.” Id.
“While circumstantial evidence may be offered to raise an issue of material
fact, such evidence must transcend mere suspicion. Evidence that is so slight as to
make any inference a guess is in legal effect no evidence.” Harrell, 345 S.W.3d at
661 (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)) (citations
omitted). Here, the inference of mental incapacity suggested by Simons’s loss of his
motor skills, blurred vision, and pain in his spine does not rise above mere suspicion,
–13– as such difficulties “can be explained by physical disability just as easily as mental
incapacity.” Id. Likewise, his conclusory statement he “suffered from the bends or
nitrogen narcosis,” absent medical testimony or other evidence suggesting the
conditions render someone mentally incapacitated, does not give rise to the inference
he did not understand the OTP Agreement when he signed it. See, e.g., McKeehan,
355 S.W.3d at 295–96 (absent medical evidence suggesting brain radiation treatment
renders someone mentally incapacitated, the mere statement in an affidavit did not
create a fact issue regarding mental capacity to sign contract). Thus, Simons failed
to bring forth evidence creating a material fact issue of his mental capacity to enter
into the OTP Agreement.
Simon also implies he was never made aware of the claimed rates for medical
services, and the charges were not usual, customary, or reasonable. When a contract
fails to state an exact price, the law presumes the parties to the contract intended a
reasonable price. Seabourne v. Seabourne, 493 S.W.3d 222, 229 n.9 (Tex. App.—
Texarkana 2016, no pet.) (citing Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 241 (Tex.
2016)).
While the OTP Agreement does not specifically provide for medical rates,
“the failure to specify a price does not necessarily render the contract so indefinite
as to be unenforceable.” Crisp Analytical Lab, L.L.C. v. Jakalam Props, Ltd., 422
S.W.3d 85, 90 (Tex. App.—Dallas 2014, pet. denied). Simons initialed the OTP
Agreement in which he voluntarily promised to pay the charges for the services
–14– rendered. The record contains the itemized invoice for Simons’s services, the
demand letter for the services, and Munoz’s affidavit confirming the debt owing was
just and lawful after applying offsets, payments, and credits. Simons’s affidavit
contains only conclusory statements the charges were unreasonable without any
supporting controverting evidence explaining why the rates were unreasonable or
unusual, and without providing contrary evidence of reasonable rates. Thus, he
failed to raise a genuine issue of material fact regarding the formation of the contract
based on a lack of a specified reasonable price for the medical services received.
Simons also asserts a genuine issue of material fact exists regarding MHI’s
performance of the contract. Specifically, he argues there is a fact issue as to
“whether or not there was at least one attending physician for the times billed for
physicians.” In his affidavit, he states the fee for “a doctor on duty” was unfounded
because there was only an “unskilled worker referred to as a ‘tender’ watching
[him].” Thus, he was charged “$325 per hour for a total of sixteen hours in four
visits for a hyperbaric doctor who was not there.” The assertion that there was only
an “unskilled tender” watching him does not create a fact issue regarding whether a
“hyperbaric doctor” was on duty.
To the extent he implies the Cozumel Facility did not perform under the
contract, he admitted a “USG Vascular,” also called a bubble test, was performed on
him. The itemized bill also indicates he received a chest x-ray. The OTP Agreement
states, “[e]mergency treatment services were rendered.” Simons has not raised a
–15– genuine issue of material fact regarding the Cozumel Facility’s performance of the
contract (i.e.: providing medical services). Simons’s third issue is overruled.
Affirmative Defenses
Simons next challenges MHI’s no-evidence motion for summary judgment on
his affirmative defenses because MHI failed to identify any elements for which there
was no evidence. MHI concedes it did not comply with rule 166a(i). See TEX. R.
CIV. P. 166a(i) (“The motion must state the elements to which there is no
evidence.”). However, a plaintiff is not required to move for summary judgment on
the defendant’s affirmative defenses and has no obligation to negate those defenses.
See Marx v. FDP, LP, 474 S.W.3d 368, 377 (Tex. App.—San Antonio 2015, pet.
denied) (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)). The
defendant’s mere pleading of affirmative defenses does not prevent the rendition of
summary judgment for a plaintiff who conclusively establishes each element of its
cause of action as a matter of law. Id. at 378. To the contrary, a defendant relying
upon an affirmative defense must bring forward sufficient summary judgment
evidence to raise an issue of fact on each element of the defense to avoid summary
judgment. Id.
The trial court properly granted summary judgment as a matter of law on
MHI’s sworn account and breach of contract claims. Simons neither supported his
affirmative defenses through summary judgment evidence in his response nor filed
his own motion for summary judgment. Accordingly, despite MHI’s failure to
–16– comply with rule 166a(i), the trial court’s order granting a no-evidence summary
judgment on Simons’s affirmative defenses did not cause the rendition of an
improper judgment requiring reversal. See TEX. R. APP. P. 44.1(a); see also Pinnacle
Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d 93, 103 (Tex. App.—Dallas
2009, pet. denied) (granting no-evidence summary judgment did not result in entry
of improper judgment because trial court properly granted traditional summary
judgment). We overrule Simons’s fourth issue.
Attorneys’ Fees
In his final issue, Simons argues the trial court denied him his constitutional
due process right to a jury trial on attorneys’ fees; therefore, the award of attorneys’
fees must be reversed.
The Texas Constitution provides:
In the trial of all causes in the district courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature. TEX. CONST. art. 5, § 10.
MHI sought “attorneys’ fees in accordance with Ch. 38 of the Tex. Civ. Prac.
& Rem. Code (to be proven at a later time)” as part of its general request for relief
in its summary judgment motion. The trial court’s order granting summary
judgment stated, “Plaintiff is entitled to an award of reasonable and necessary
attorneys’ fees and costs in an amount to be determined by hearing.” –17– MHI then filed an application for attorneys’ fees and costs, in which it
requested $32,619.50 in attorneys’ fees, $35,000 in conditional appellate attorneys’
fees, and $894.70 in costs. It attached (1) an attorney affidavit explaining the
reasonable and necessary fees, (2) the biographies of attorneys that worked the file,
and (3) the redacted itemized billing statements. Simons filed a response in which
he refused to stipulate to fees and requested the fee issue “be submitted to a fact
finder in a conventional trial.” He further argued the fees sought were unreasonable
because they totaled three times the actual damages award.
The court held a hearing in which Simons emphasized his request for a jury
trial on attorneys’ fees and reminded the court he made his original request for a jury
trial in 2020 and paid the fee. MHI’s counsel stated, “I believe if [Simons] is
insisting on a jury for the sole issue of attorneys’ fees, he would be entitled to that.
I don’t think it’s a good idea. . . . I don’t disagree that [he’s] entitled to a jury, but I
think it’s a bad idea.” The trial court stated, “If at the conclusion of the hearing I
believe that we should pursue these claims in front of a jury, then I’ll so rule.”
Darla Gabbitas, MHI’s attorney, testified as an expert on fees. Simons
objected to her testimony because no jury was impaneled. The court overruled the
objection and the hearing continued. At the conclusion of the hearing, the trial court
asked Simons’s attorney, “Before I rule, are you wanting to continue on with your
request for a jury trial on fees?” He said he had not changed his position, objected
to the entire hearing, and reminded the court MHI’s attorney “admitted that he
–18– doesn’t have a leg to stand on.” The trial judge’s phone starting ringing, and she
abruptly ended the hearing without ruling. The court signed an order on December
21, 2022 awarding MHI’s requested fees and costs in their entirety.
We review the “denial of a jury demand for an abuse of discretion.” Interest
of A.L.M.-F., 593 S.W.3d 271, 282–83 (Tex. 2019). A trial court abuses its
discretion when a “decision is arbitrary, unreasonable, and without reference to
guiding principles.” Id. The distinction between a jury trial that is permissive under
the law and one that is available as a matter of right is more than mere semantics.
Id. at 283. When a jury trial is available as a matter of right, a timely request is
presumptively reasonable and ordinarily must be granted absent evidence that
granting the request would “(1) injure the adverse party, (2) disrupt the court’s
docket, or (3) impede the ordinary handling of the court’s business.” Id.
Each party pays their own attorneys’ fees unless a statute or contract dictates
otherwise. In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 809 (Tex. 2017) (orig.
proceeding). “When fee-shifting is authorized, whether by statute or contract, the
party seeking a fee award must prove the reasonableness and necessity of the
requested attorney’s fees.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578
S.W.3d 469, 484 (Tex. 2019). “In general, the reasonableness of statutory attorney’s
fees is a jury question.” City of Garland v. Dallas Morning News, 22 S.W.3d 351,
367 (Tex. 2000); see TEX. CONST. art. V, § 10; Pisharodi v. Columbia Valley
Healthcare Sys., L.P., 622 S.W.3d 74, 87 (Tex. App.—Corpus Christi–Edinburg
–19– 2020, no pet.). However, any award of fees, including attorneys’ fees, “is limited
by the wording of the statute or contract that creates an exception to the American
Rule.” JCB, Inc. v. Horsburgh & Scott Co., 597 S.W.3d 481, 491 (Tex. 2019) (under
the American rule, attorneys’ fees are not awarded unless a statute or contract
authorizes them); Pisharodi, 22 S.W.3d at 88.
Section 38.001(b) permits the recovery of attorneys’ fees but does not dictate
how to determine the attorneys’ fee amount, except that the award must be
“reasonable.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(b) (“A person may
recover reasonable attorney’s fees from an individual or organization . . . in addition
to the amount of a valid claim and costs, if the claim is for . . . (7) a sworn account;
or (8) oral or written contract”). Thus, the statute is silent on the “critical judge-or-
jury question.” See Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 229 (Tex. 2010)
(observing that labor code section 408.221 does not state explicitly that the court
alone is to determine the amount of attorney’s fees, nor does it expressly forbid a
jury from deciding the matter). When faced with a similar silent fee-shifting
provision in Crump, the Supreme Court of Texas construed the statute as entitling
the parties to have the jury determine the disputed issue of the reasonableness of the
attorneys’ fees. Id. In doing so, the court construed the statute in a manner that did
not disturb the presumption of constitutional compliance to a right to a jury trial on
attorneys’ fees. Id.; see also Pisharodi, 622 S.W.3d at 89 (citing In re Allcat Claims
Serv., L.P., 356 S.W.3d 455, 468 (Tex. 2011) (“When construing statutes we
–20– presume the Legislature intended them to comply with the Texas Constitution.”).
Similarly, because section 38.001(b) does not dictate the manner to determine the
amount of attorneys’ fees, providing only that the award must be “reasonable,”
reasonableness remains a fact issue that a jury, upon proper request, may resolve.
Crump, 330 S.W.3d at 230–31; Pisharodi, 622 S.W.3d at 90.
A defendant must object in the trial court to the submission of attorneys’ fees
to the judge or risk waiver of the right to have the jury decide the issue. Jefferson
Cnty. v. Nguyen, No. 09-13-00505-CV, 2015 WL 4597560, at *25 (Tex. App.—
Beaumont July 31, 2015, no pet.) (mem. op.). Courts have held that a party’s failure
to timely object to the submission of attorneys’ fees to the court waives its complaint
on appeal, even when the right to a jury trial has previously been perfected. Id.
Simons filed his request for a jury trial and paid his fee. He objected to the
trial court considering the fee issue in his response to MHI’s application for fees and
objected throughout the hearing on MHI’s application for fees. MHI’s counsel
conceded Simons was entitled to a jury trial on attorneys’ fees and argued, “it’s a
bad idea.” His opinion on Simons’s constitutional right to a jury trial on attorneys’
fees, absent any legal authority, was irrelevant.
Because Simons was entitled to a jury trial on attorneys’ fees as a matter of
right, his timely request was presumptively reasonable and should have been
granted. Interest of A.L.M.-F., 593 S.W.3d at 283. The record does not contain any
evidence that granting his request would (1) injure MHI, (2) disrupt the court’s
–21– docket, or (3) impede the ordinary handling of the court’s business. Id. The trial
court abused its discretion by denying Simons’s timely request for a jury trial on
attorneys’ fees.
In reaching this conclusion, we reject MHI’s argument that Simons was not
entitled to a jury trial on fees because its application for fees constituted a motion
for summary judgment on fees. See In re Estate of Hutchins, 391 S.W.3d 578, 585
(Tex. App.—Dallas 2012, no pet.) (stating courts look to substance of the motion to
determine the relief sought and not merely its title). When construing whether a
motion is a traditional or no-evidence motion for summary judgment despite titled
otherwise, courts consider, in part, whether the party cited and applied a traditional
or no-evidence standard of review. See, e.g., Luna v. Garcia, No. 02-23-00209-CV,
2023 WL 7400927, at *3 (Tex. App.—Fort Worth Nov. 9, 2023, pet. denied) (mem.
op.); McArdle v. Stahl, No. 03-04-00817-CV, 2006 WL 1648988, at *1 n.1 (Tex.
App.—Austin June 15, 2006, no pet.) (mem. op.). MHI’s application for fees does
not contain any summary judgment standard of review. Neither the parties nor the
trial court indicated the application should be considered a summary judgment
motion during the hearing. Rather, the trial court stated she was undecided on
whether a jury trial was necessary.
Despite these facts, MHI relies on our holding in Arnold v. Addison, No. 05-
20-00001-CV, 2021 WL 5984875, at *14 (Tex. App.—Dallas Dec. 17, 2021, no
pet.) (mem. op.) in which we concluded the appellees’ motion for “determination of
–22– fees” was a summary judgment motion because the motion “specifically cited
authority and evidence purportedly establishing appellees’ right to recover
reasonable and necessary attorneys’ fees and the amount of the fees sought.” Id. In
that case, the party challenging attorneys’ fees did not raise a constitutional
challenge to a timely requested jury trial on attorneys’ fees. Moreover, MHI raised
this argument for the first time on appeal, and we decline to abrogate Simons’s right
to a jury trial under the Texas Constitution by after-the-fact, creative lawyering. See
TEX. CONST. art. V, § 10.
The denial of a party’s constitutional right to trial by jury constitutes reversible
error. See McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex.1995); Asafi v.
Rauscher, No. 14-10-00606-CV, 2011 WL 4031015, at *9, n.10 (Tex. App.—
Houston [14th Dist.] Sept. 13, 2011, pet. denied) (mem. op.). As such, we need not
address the application for fees, and therefore, provide no opinion on its merits. TEX.
R. APP. P. 47.1. We sustain Simons’s fifth issue, reverse the trial court’s award of
$32,619.50 in attorneys’ fees, $35,000.00 for conditional appellate attorneys’ fees,
and $897.70 in costs, and remand for further proceedings.
–23– Conclusion
We reverse the trial court’s award of attorneys’ fees and remand for further
proceedings. In all other respects, we affirm the trial court’s judgment.
/Erin A. Nowell// 230053f.p05 ERIN A. NOWELL JUSTICE
–24– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILLIAM GARLAND SIMONS, On Appeal from the 298th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-20-07223. No. 05-23-00053-CV V. Opinion delivered by Justice Nowell. Justices Miskel and Kennedy MEDICAL HYPERBARICS, INC., participating. Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s judgment awarding $32,619.50 in attorneys’ fees, $35,000.00 for conditional appellate attorneys’ fees, and $897.70 in costs. In all other respects, the trial court’s judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 15th day of March, 2024.
–25–