Diana Brower v. Claude D. Hearn. M.D., Harry L. Braeuer, M.D., and Bay Area Surgical Associates ( 2009 )

Affirmed and Memorandum Opinion filed February 10, 2009

Affirmed and Memorandum Opinion filed February 10, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00967-CV

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DIANA BROWER, Appellant

V.

CLAUDE D. HEARN, M.D., HARRY L. BRAEUER, M.D., AND BAY AREA SURGICAL ASSOCIATES, Appellees

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2007-20829

M E M O R A N D U M   O P I N I O N

In this medical malpractice case, appellant, Diana L. Brower, did not file an expert report; therefore, the trial court dismissed Brower=s claims against appellees, Claude D. Hearn, M.D., Harry L. Braeuer, M.D., and Bay Area Surgical Associates.^[1] The court subsequently awarded appellees attorneys= fees of $3,270.80.^[2] In two issues, Brower challenges the award of attorneys= fees, arguing (1) the court no longer had plenary power when it signed the order awarding fees, and (2) the court abused its discretion in relation to the amount of the award.  Because our disposition is based on clearly settled law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Procedural Background

On February 26, 2007, Brower filed a petition alleging appellees were negligent in failing to detect a mass on Brower=s thyroid during surgery, thus necessitating additional surgery to remove the previously undetected mass. Appellees answered with a general denial and multiple defenses.  On July 23, 2007, pursuant to the Texas Medical Liability Act (Athe Act@), appellees filed a motion to dismiss with prejudice because Brower had failed to file an expert report within 120 days of filing her lawsuit.  In the motion, appellees requested attorneys= fees.

On July 23, the trial court signed an order dismissing Brower=s claims with prejudice.  The order contained the following handwritten and typed notation:  AIt is further ORDERED that Defendants may be entitled to an award of reasonable attorneys= fees in the amount . . . to be determined . . . at a hearing on August 20, 2007.@

On August 20, the following events occurred:  (1) the court held the scheduled hearing; (2) Brower filed a response to appellees= motion to dismiss and filed a motion to non-suit her claim, and (3) appellees filed attorney Michael A. DeScioli=s affidavit and attached invoices for legal work.^[3]  In his affidavit, DeScioli averred that the amounts on the invoices totaled $4,700.18, with an additional $299.22 as the estimated reasonable fee for preparation of the affidavit and appearance at the hearing on fees.  The work was billed at $250 per hour for a partner, $200 per hour for an associate, and $90 per hour for a nurse paralegal and law clerk.  DeScioli opined these were reasonable fees.

Brower then filed a brief in support of her motion for non-suit Aand/or@ denial of attorneys= fees.  She stated that, on the morning of the July 23 hearing, she had informed appellees of her intention to non-suit the case.  She further objected to an award of attorneys= fees on the grounds that (1) the requested amount of $5,000 was suspect, (2) the invoices were not attached to appellees= motion to dismiss, (3) Brower had not received DeScioli=s affidavit until counsel approached the bench at the August 20 hearing, (4) DeScioli=s affidavit was insufficient support for the requested fees because Brower was contesting the fees, and (5) appellees failed to submit proper testimony before the Afinality of the judgment signed on July 23, 2007.@

On September 5, 2007, the court signed an order overruling Brower=s objections to DeScioli=s affidavit and invoices and awarding appellees $5,000 in attorneys= fees.  Brower then filed a motion to reconsider the order granting attorneys= fees and a Arequest for motion for new trial.@  Appellees responded, arguing, in part, that Brower=s motion for new trial was untimely because it was filed more than thirty days after the July 23, 2007 Ajudgment@ was signed.  On October 1, 2007, the trial court held a hearing; and, on October 17, 2007, signed an amended and supplemental order granting attorneys= fees and expenses in a total amount of $3,270.80.  Brower appealed.

Discussion

A.        The Trial Court=s Power to Render the October 17, 2007 Order

In issue one, Brower argues the trial court erred and abused its discretion in rendering the September 5 and October 17, 2007 orders awarding attorneys= fees because the trial court=s plenary power had expired prior to rendition of those orders.  Brower asserts the court=s plenary power expired on August 23, 2007, thirty days after its July 23, 2007 order dismissing Brower=s lawsuit.

A trial court has plenary power over its judgment until it becomes final.  Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex. 1978).  A trial court also retains plenary power over a final judgment for thirty days after signing the judgment.  See Tex. R. Civ. P. 329b(d). That thirty‑day period may be extended by filing a motion for new trial or motion to modify, correct, or reform the judgment.  See id. 329b(e), (g).  Thus, the validity of Brower=s argument rests on whether the July 23 order was a final judgment.

A judgment is final Aif it disposes of all pending parties and claims . . . .@  Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  To determine whether a judgment disposes of all pending claims and parties, we may look to the record in the case.  See id.  There must be some Aclear indication that the trial court intended the order to completely dispose of the entire case.@  Id. at 205.   We determine the trial court=s intention A>from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties.=@  Id. at 203 (citation omitted).

In their motion to dismiss, appellees requested an award of reasonable attorneys= fees and costs of court, although they did not designate a specific amount.^[4] In its July 23 order dismissing Brower=s claims, the trial court specifically noted that appellees might be entitled to reasonable attorneys= fees in an amount to be determined at a subsequent hearing.  From the language of this order and the record as a whole, we conclude the trial court did not intend its July 23 order to be a final judgment in the case.

The trial court=s September 5, 2007 order was therefore rendered while the court had plenary power over the case.  If one assumes the September 5, 2007 order constituted the final judgment in the case, the trial court=s plenary power was extended by Brower=s motion for reconsideration and motion for new trial.  See Tex. R. Civ. P. 329b(e).

Accordingly, the trial court had plenary power when it rendered the October 17, 2007 order dismissing the case and awarded appellants= attorneys= fees.  Therefore, we overrule Brower=s first issue.^[5]

B.        The Amount of the Award

In issue two, Brower argues the trial court erred and abused its discretion when it awarded $3,270.80 in attorneys= fees.  Her primary complaint rests on the assumptions (1) the trial court awarded the entire amount of fees appellees incurred in defending the case, and (2) the Act does not authorize an award of the entire amount.  Brower asserts that she objected relative to the reasonableness and necessity of appellees= legal fees, and further argues the trial court abused its discretion because appellees failed to attach an invoice for attorneys= fees to their motion to dismiss. Accordingly,  Brower argues she did not have an opportunity to inquire further into the matter.^[6]  Brower has not presented a sufficient record or authority to support her arguments.

Attorneys= fees and costs of court are mandatory under the Act when a health care liability claimant fails to file an expert report.  See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(b)(1).  Nevertheless, nothing in the Act modifies the general rule that a party seeking attorneys= fees must present evidence of attorneys= fees.  See Tibbetts v. Gagliardi, 2 S.W.3d 659, 665 (Tex. App.CHouston [14th Dist.] 1999, pet. denied) (stating same with regard to prior act).

We review a trial court=s award of attorneys= fees under the Act for an abuse of discretion.  See Sandles v. Howerton, 163 S.W.3d 829, 838 (Tex. App.CDallas 2005, no pet.) (applying abuse of discretion standard under prior act).  Under an abuse of discretion standard, legal and factual insufficiency issues are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion.  See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).

Turning now to Brower=s arguments, we first observe that the record does not support Brower=s contention that the trial court awarded the entire amount of fees appellees incurred.  DeScioli=s uncontroverted affidavit and the attached invoices established fees in the amount of $5,000, but the court awarded only $3,270.80.

Although Brower would have this court discredit the invoices because appellees did not attach them to their motion to dismiss and provided them only later, Brower provides no authority for this argument and therefore has waived it.  See Tex. R. App. P. 38.1(h) (stating appellant=s brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to the record); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337B38 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (overruling issue when parties cited no part of the record and made no specific argument in support of issue).

Second, Brower correctly states the Act does not authorize all fees expended in defending a medical malpractice case.  See, e.g., Awoniyi v. McWilliams, 261 S.W.3d 162, 167 (Tex. App.CHouston [14th Dist.] 2008, no pet.) (holding fees for conducting discovery not authorized because discovery is stayed until expert report filed).  However, without a reporter=s record of the two hearings on attorneys= fees, we are unable to discern the basis on which the trial court reduced its original award or the hours or work for which the trial court ultimately did award fees.  We therefore must presume there was sufficient evidence before the trial court to support its award of attorneys= fees in the amount of $3,270.80.    See Thomas v. Thomas, 902 S.W.2d 621, 626 (Tex. App.CAustin 1995, writ denied) (stating same in context of declaratory judgment case).

Finally, Brower contends she should have been given an opportunity to inquire further into the matter of attorneys= fees.  The October 17, 2007 order, however, indicates that, as of that date, the trial court had (1) held a hearing on the issue of fees, (2) requested  Afurther briefing in connection with Defendant=s [sic] request for attorney=s fees,@ and (3) in response to Brower=s motion and request, held a second hearing regarding attorneys= fees.  In its October 17, 2007 order, the court stated, A[Brower] also contends that the affidavit is insufficient because it is controverted.  Initially, this Court ruled that [Brower] did not come forward with any evidence to indicate that the Defendants= fees and costs were unreasonable or unnecessary.@  The court then further stated, AAt the October 1, 2007 hearing, [Brower] argued and pointed out that the issue of the reasonable fees was indeed controverted in the previous filings.@  After the October 1, 2007 hearing, the trial court reduced the amount of its original award.  The record before this court does not support Brower=s claim the trial court improperly precluded her from adequately inquiring about, or controverting, attorneys= fees.

Accordingly, we overrule Brower=s second issue and affirm the judgment.

/s/        Charles W. Seymore

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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^[1]  See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(a), (b)(2) (Vernon Supp. 2008).

^[2]  See id. ' 74.351(b)(1).

^[3]  The appellate record contains only a clerk=s record.  Brower states that, at the hearing on July 23, 2007, she orally indicated she intended to non-suit her claim.  In one of its orders, the trial court acknowledged the possibility Brower might have made an oral indication of a non-suit, but the court also correctly observed such indication occurred after appellees had filed their motion to dismiss, including their claim for attorneys= fees.

^[4]  This request sufficed to assert a Aclaim@ for attorneys= fees.  See Falls County Water Control & Improvement Dist. No. 1 v. Haak, 220 S.W.3d 92, 94 (Tex. App.CWaco 2007, no pet.).  Brower=s request for a non-suit was made after appellees= claim for fees and could not affect appellees= pending claim.  See Tex. R. Civ. P. 162.

^[5]  In their response in opposition to Brower=s motion for new trial, appellees argued Brower=s motion was untimely because it was filed more than thirty days after the July 23, 2007 Ajudgment.@  Brower argues, given this Ajudicial admission,@ this court should vacate the September 5, 2007 order.  Appellees= argument was not a factual representation and therefore did not constitute a judicial admission.  See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (stating assertions of fact, not pleaded in alternative, in live pleadings of party are regarded as formal judicial admissions; and clear and unequivocal judicial admission has conclusive effect and bars admitting party from later disputing admitted fact).

^[6]  Brower also implies her request for a non-suit precluded the trial court from awarding attorneys= fees.  She presents no authority in support of this contention, and it is contrary to the procedural posture of the case and Texas Rule of Civil Procedure 162.  See note 4, above.