Andria Solomon v. Rosemary Buckle, Nicole D. Ches and HCA Health Services of Texas, Inc. ( 2024 )

Opinion issued March 14, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00349-CV
———————————
ANDRIA SOLOMON, Appellant
V.
ROSEMARY BUCKLE, NICOLE D. CHES, AND HCA HEALTH
SERVICES OF TEXAS, INC., Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2022-05959
O P I N I O N
Andria Solomon appeals from the trial court’s order dismissing her suit for
failing to file the expert report required by the Texas Medical Liability Act.
Rosemary Buckle, Nicole D. Ches, and HCA Health Services of Texas, Inc. cross-
appeal, contending that the trial court erred in not awarding them their attorney’s
fees. As explained below, we affirm the trial court’s judgment in its entirety.
Buckle, Ches, and HCA Health Services have also moved to sanction
Solomon or her counsel for misstatements made in her brief. We deny the motion.
BACKGROUND
Plaintiff’s Lawsuit
Solomon sued Buckle and Ches for negligence. Solomon also sued HCA
Health Services, alleging that it was liable for Buckle’s and Ches’s negligence
because Buckle and Ches acted as agents or employees of HCA Health Services.
According to Solomon’s live pleading, she sought medical treatment from and
was examined by Buckle regarding a knee injury Solomon sustained in a car
accident. Solomon alleges that Buckle afterward submitted an attending physician’s
statement to Solomon’s disability benefits insurer that falsely represented that
Buckle had made certain exams, observations, and findings, and that Solomon’s
insurer then terminated Solomon’s disability benefits based on this false attending
physician’s statement. Ches, not Buckle, signed the attending physician’s statement.
Solomon alleged that Buckle had a duty to ensure that the attending
physician’s statement was accurate and breached this duty because she knew the
statement was false. Solomon further alleged that Ches likewise had a duty to ensure
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the accuracy of this statement and breached this duty by signing the statement based
on the false information supplied by Buckle without verifying its truthfulness.
Defendants’ Motion to Dismiss
Buckle, Ches, and HCA Health Services moved to dismiss Solomon’s lawsuit
under the Texas Medical Liability Act based on Solomon’s failure to serve an expert
report supporting her negligence claim. See TEX. CIV. PRAC. & REM. CODE
§ 74.351(b)(2) (requiring dismissal if expert report not timely served as to health
care liability claims). They also sought attorney’s fees in connection with the
dismissal. See id. § 74.351(b)(1) (requiring award of fees in event of dismissal).
Plaintiff’s Response to Motion to Dismiss
Solomon responded to the motion to dismiss. She argued that her negligence
claim is not subject to the Texas Medical Liability Act because this claim does not
fall within the definitions of “health care liability claim” or “professional or
administrative services.” See id. § 74.001(a)(13), (24) (defining these terms).
As an exhibit, Solomon attached the attending physician’s statement, which
is an insurance-related form created by Solomon’s insurer. In the form, Buckle or
Ches reported that Solomon was seen on April 15, 2021, for knee pain. The form
recited the subjective symptoms and objective signs associated with her knee
condition, stated the diagnostic tests performed, and identified a plan of treatment
that involved a follow-up visit to obtain an MRI. The form also contained various
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representations about Solomon’s physical condition or physical abilities. Among
other things, the form identified how long she could sit, stand, and walk; recorded
how much weight she could carry and how often she could do so; documented her
ability to use her hands to grasp, push, pull, and manipulate objects, as well as her
ability to engage in repetitive movements with her feet; and quantified her ability to
engage in various tasks by specifying whether and how often she could climb,
balance, stoop, kneel, crouch, crawl, and reach above her shoulder. The form is dated
June 25, 2021 (and appears to have been faxed to/from someone four days prior).
Solomon also attached as an exhibit a medical record documenting the April
15 visit with Buckle. This record also indicated an MRI was the plan of treatment.
Trial Court’s Ruling
The trial court granted the motion to dismiss and rendered a take-nothing
judgment on Solomon’s claims. But the trial court did not award attorney’s fees.
DISMISSAL OF THE LAWSUIT
Solomon contends the trial court erred in dismissing her lawsuit under the
Texas Medical Liability Act because her claim is not a “health care liability claim.”
Standard of Review
In this case, the dispositive issue concerning the dismissal of Solomon’s suit
is whether her claims fall within the scope of the Texas Medical Liability Act. Under
these circumstances, our review is de novo. See Methodist Hosp. v. Halat, 415
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S.W.3d 517, 520 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (noting that district
court’s ruling on motion to dismiss under Texas Medical Liability Act is generally
reviewed for abuse of discretion, but that review is de novo when applicability of
Act to plaintiff’s claims is dispositive issue and appellate court must interpret Act).
Applicable Law
Statutory Interpretation in General
In interpreting a statute, we ascertain and give effect to the intent of the
legislature, which we derive from the words of the statute absent ambiguity. See id.When statutory terms are defined in the statute itself, we rely on these definitions.
See id. Otherwise, we interpret statutory terms in conformity with their plain and
common meaning, unless the terms have acquired a technical meaning or a contrary
meaning is apparent from the context. See id.; see also Taylor v. Taylor, 608 S.W.3d
265, 267 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (stating that we give
statutory terms their common, ordinary meaning unless the legislature has defined
them, they have technical meanings, or context shows they have other meanings).
We cannot rewrite the statute. Taylor, 608 S.W.3d at 268. Accordingly, we cannot
add terms the legislature omitted or subtract terms the legislature included. Id.
The Texas Medical Liability Act
When a plaintiff asserts a “health care liability claim,” the Texas Medical
Liability Act requires her to serve an expert report on any defendant physician or
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health care provider within 120 days after each defendant’s original answer. TEX.
CIV. PRAC. & REM. CODE § 74.351(a). The expert report must provide “a fair
summary of the expert’s opinions as of the date of the report regarding applicable
standards of care, the manner in which the care rendered by the physician or health
care provider failed to meet the standards, and the causal relationship between that
failure and the injury, harm, or damages claimed.” Id. § 74.351(r)(6). If the Act
applies and the plaintiff fails to timely serve the required expert report, the court
must, on the motion of the affected defendant, dismiss the claim. Id. § 74.351(b).
The scope of the Texas Medical Liability Act is expansive. See Bioderm Skin
Care v. Sok, 426 S.W.3d 753, 758 (Tex. 2014) (observing that “broad language of
the Medical Liability Act evinces legislative intent for the statute to have expansive
application”). The Act 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
§ 74.001(a)(13).
To be a “health care liability claim” and thus be within the Texas Medical
Liability Act’s scope, three basic elements must be satisfied. Lake Jackson Med. Spa
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v. Gaytan, 640 S.W.3d 830, 840 (Tex. 2022). First, the defendant must be a physician
or health care provider. Id.; see TEX. CIV. PRAC. & REM. CODE § 74.001(a)(12), (23)
(defining terms “health care provider” and “physician” for purposes of Act). Second,
the plaintiff’s claim must concern treatment, lack of treatment, or a departure from
accepted standards of medical care, or health care, or safety or professional or
administrative services directly related to health care. Gaytan, 640 S.W.3d at 840;
see TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10), (13), (19), (24) (defining terms
“health care,” “health care liability claim,” “medical care,” and “professional or
administrative services”); Rogers v. Bagley, 623 S.W.3d 343, 350 (Tex. 2021)
(noting Act does not define “safety” but Court has defined it as “condition of being
‘untouched by danger; not exposed to danger; secure from danger, harm or loss’”).
Third, the defendant’s conduct must proximately cause the plaintiff’s injury or death.
Gaytan, 640 S.W.3d at 840; see TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13)
(incorporating proximate cause and injury or death into “health care liability claim”).
When assessing whether the plaintiff asserts a “health care liability claim,”
we focus on the underlying nature of the claim, not its label. Gaytan, 640 S.W.3d at
836. To ascertain the claim’s underlying nature, we look to the entire record,
including pleadings, motions and responses, and relevant evidence. Id. at 836, 839–
40.
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We are not bound by the way in which the plaintiff characterizes a claim in
her pleadings if they do not accurately reflect the claim’s underlying nature. See
Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012) (stating facts underlying claim
are determinative of Act’s applicability, “not the form of, or artfully-phrased
language in, the plaintiff’s pleadings describing the facts or legal theories asserted”).
Instead, we consider the operative facts underlying the plaintiff’s claim that are
relevant to her alleged injury, rather than how she describes the facts or legal theories
in her pleadings. Collin Creek Assisted Living Ctr. v. Faber, 671 S.W.3d 879, 885
(Tex. 2023). If the operative facts could support a “health care liability claim,” then
the Texas Medical Liability Act applies, and an expert report is required. See id.Analysis
The parties’ dispute centers on the second of the three elements of a “health
care liability claim,” namely, whether Solomon’s claim concerns treatment, lack of
treatment, or a departure from accepted standards of medical care, or health care, or
safety or professional or administrative services directly related to health care. See
Gaytan, 640 S.W.3d at 840 (identifying this as second of three elements defining
“health care liability claim”). In particular, the parties disagree as to whether
Solomon’s claim—that Buckle and Ches gave false information to her insurer,
resulting in discontinuation of disability benefits—comes within the definition of
“professional or administrative services,” which are defined by the Texas Medical
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Liability Act as “those duties or services that a physician or health care provider is
required to provide as a condition of maintaining the physician’s or health care
provider’s license, accreditation status, or certification to participate in state or
federal health care programs.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(24).
In Baylor Scott & White, Hillcrest Medical Center v. Weems, our Supreme
Court effectively resolved the dispute before us. 575 S.W.3d 357 (Tex. 2019).
In Weems, the plaintiff sued a hospital for intentional infliction of emotional
distress, alleging that a nurse knowingly and intentionally recorded false information
in someone else’s medical record. Id. at 361. In the record, the nurse described a
patient’s injury as a gunshot wound to the head resulting from having been shot at
point-blank range. Id. The nurse based this description of the injury on the accounts
of the patient and an emergency medical technician. Id. According to the plaintiff,
this description was false, inasmuch as he maintained the patient had not even been
shot, and the falsehood resulted in him being indicted for aggravated assault and
incarcerated for almost two years as of the filing of his lawsuit. Id. at 361–62.
The plaintiff failed to timely serve an expert report, and the hospital moved to
dismiss his suit under the Texas Medical Liability Act. Id. at 362. The plaintiff
maintained that the Act did not apply because he was not asserting a medical
malpractice claim, but the trial court disagreed and dismissed his lawsuit. Id.
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Eventually, Weems ended up in our Supreme Court, which held that the
plaintiff’s claim was a “health care liability claim” and that the plaintiff’s failure to
timely file an expert report required the dismissal of his lawsuit. Id. at 363–66.
The Court began its analysis by observing that when a plaintiff brings a claim
against a health care provider based on facts implicating the health care provider’s
conduct during the course of a patient’s care, treatment, or confinement, the
plaintiff’s claim is presumptively a “health care liability claim” subject to the expert-
report requirement imposed by the Act. Id. at 363. When this is the case, the plaintiff
bears the burden to rebut this presumption, and, if the plaintiff fails to do so, then
dismissal of his lawsuit is mandatory. See id. In Weems, this presumption applied
because the plaintiff’s claim that the nurse falsified a medical record was based on
the nurse’s alleged conduct during the course of a patient’s care and treatment. Id.
The Court then turned its attention to whether the gravamen of the plaintiff’s
claim concerned a “claimed departure from accepted standards of medical care, or
health care, or safety or professional or administrative services directly related to
health care.” Id. at 364 (quoting statutory definition of “health care liability claim”).
And the Court concluded that, at a minimum, the plaintiff’s “record-falsification
claim is premised on an alleged departure from accepted standards of ‘professional
or administrative services directly related to health care.’” Id. (quoting same).
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In support of this conclusion, the Court reasoned that “maintenance of
accurate medical records” falls within the “professional or administrative services”
part of the definition of “health care liability claim.” See id.; see also TEX. CIV. PRAC.
& REM. CODE § 74.001(a)(13), (24). Among other things, the Court explained that
this is so because rules enacted by the Texas Medical Board require licensed
physicians to maintain accurate medical records regarding assessments, clinical
impressions, and diagnoses. Weems, 575 S.W.3d at 365. If a physician violates these
rules, the Board can revoke the physician’s license. Id. Stated succinctly, because
the making and maintenance of accurate medical records “is a service health care
providers and physicians must provide as a condition of maintaining their respective
licenses,” the making and maintaining of these records qualifies as “professional or
administrative services” under the Act. Id.; see also TEX. CIV. PRAC. & REM. CODE
§ 74.001(a)(24) (defining “professional or administrative services” to include “those
duties or services that a physician or health care provider is required to provide as a
condition of maintaining the physician’s or heath care provider’s license,
accreditation status,” and certain governmental certifications).
Solomon’s record-falsification claim is indistinguishable from the one the
plaintiff made in Weems. Like the plaintiff in Weems, Solomon claims that the
defendants created a false record—Buckle intentionally so and Ches negligently—
concerning her medical treatment and assessment that adversely affected her outside
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the context of her medical treatment and assessment, and Weems is therefore
dispositive of the status of Solomon’s claim as a “health care liability claim.” See
Weems, 575 S.W.3d at 366 (noting that “statutory definition of a health care liability
claim does not distinguish between departures that are intentional or merely
negligent” in holding that claim at issue was “health care liability claim”).
Accordingly, Solomon was required to serve an expert report under the Act. Id.
Solomon maintains that her record-falsification differs from the one in Weems
because hers involves false statements made in an insurance form, rather than false
statements in a medical record. But this is a distinction without a difference. Just as
physician licensing is conditioned on the making and maintenance of accurate
medical records, Texas law prohibits physicians from engaging in “unprofessional
or dishonorable conduct that is likely to deceive or defraud the public.” TEX. OCC.
CODE §§ 164.052(a)(5), 164.053(a). The Texas Medical Board is statutorily
authorized to take disciplinary action against a physician who engages in this kind
of conduct. Id. § 164.051(a)(1). The Board has enacted a corresponding rule in
which it provides a nonexclusive list of acts that violate the statute. 22 TEX. ADMIN.
CODE § 190.8(2). Notably, the acts listed as violations by the Board demonstrate that
false statements to insurers may qualify as unprofessional and dishonorable conduct
subjecting physicians to discipline. See id. § 190.8(2)(J) (stating that billing
statement to “a third party payer that the licensee knew or should have known” was
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“false, fraudulent, misrepresents services provided, or otherwise does not meet
professional standards” constitutes unprofessional and dishonorable conduct).
Here, Solomon claims that Buckle saw her on a single occasion on April 15,
2021. Solomon further claims that the insurance form corresponding to this lone visit
is false because it recites clinical impressions or diagnoses for which Solomon was
not medically assessed by Buckle, as the visit solely concerned Solomon’s knee
injury. In short, Solomon alleges the form mispresented the services Buckle
provided, and that Buckle intentionally misrepresented these services. This
allegation, if true, qualifies as unprofessional and dishonorable conduct, which a
physician, like Buckle, must refrain from engaging in as a condition of maintaining
her license. See id. Hence, Solomon’s claim based on this underlying conduct is a
“health care liability claim” under the Texas Medical Liability Act. See Weems, 575
S.W.3d at 363–66; see also TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13), (24).
And it is immaterial that Solomon makes no reference to the relevant statutes or
Texas Medical Board rule that prohibits the underlying conduct she complains of in
her petition. See Rogers, 623 S.W.3d at 350 (stating that any claim premised on facts
that could support claim for departures from accepted standards of professional or
administrative services is health care liability claim “regardless of whether the
plaintiff alleges the defendant is liable for breach of any of those standards”).
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Solomon also maintains that her record-falsification claim differs from the
one in Weems because false statements made in an insurance form, as opposed to
false statements made in a medical record, do not directly relate to health care, as
required by the Texas Medical Liability Act’s definition of “health care liability
claim.” See TEX. CIV. PRAC. & REM. CODE § 74.001(13) (requiring that “professional
or administrative services” be “directly related to health care” to constitute “health
care liability claim”); see also Tex. W. Oaks Hosp. v. Williams, 371 S.W.3d 171,
184–86 (Tex. 2012) (explaining that legislature added “directly related to health
care” to Act at same time that it added “professional or administrative services” such
that former modifies latter).
Once again, Weems forecloses Solomon’s position. In Weems, the Court held
that maintenance of medical records is directly related to health care, reasoning in
part that this is so because “medical records must be created during the patient’s
care” and affect the patient’s future care. Weems, 575 S.W.3d at 365. This same
reasoning equally applies to the insurance form at issue. While the form itself was
completed a little more than a month after Solomon’s lone appointment with Buckle,
the information recorded in the form is ostensibly based on the patient assessment
made by Buckle at the appointment and reports a treatment plan to the insurer. That
is, all the information contained in the form purports to be based on the medical
services rendered to Solomon as part of her care and refers to future care. Hence, the
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allegedly false statements made in the insurance form are every bit as directly related
to health care as the allegedly false statements at issue in Weems. See id. (specifying
that “directly related” means “an uninterrupted, close relationship or link between
the things being considered”); see also TEX. CIV. PRAC. & REM. CODE
§ 74.001(a)(10) (defining “health care” as “any act or treatment performed or
furnished, or that should have been performed or furnished, by any health care
provider for, to, or on behalf of a patient during the patient’s medical care, treatment,
or confinement”). Whether Solomon ever saw Buckle again or continued to be
Buckle’s patient when the insurance form was prepared and sent to Solomon’s
insurer is immaterial to whether the form is directly related to Solomon’s health care.
See Christus Health Gulf Coast v. Carswell, 505 S.W.3d 528, 535–36 (Tex. 2016)
(holding claim that hospital engaged in fraudulent conduct to conceal medical
malpractice committed with respect to deceased patient was directly related to health
care even though fraudulent conduct occurred after patient’s treatment or care).
Finally, in closing, we note that our conclusion that Solomon’s claim is a
“health care liability claim” subject to the Texas Medical Liability Act is reinforced
by the likelihood that the claim would require her, the defense, or both to put on
expert testimony at trial. See Weems, 575 S.W.3d at 365–66 (“The necessity of
expert testimony to prove or refute the merits of a claim against a physician or health
care provider is sufficient to establish that the claim is a health care liability claim.”).
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Solomon states in her reply brief in this court that she was seen by “Buckle during
an appointment that lasted approximately 10 minutes.” Solomon argues that this was
her only appointment with Buckle, and that Buckle told her “an MRI was needed
before a determination could be made” about her knee injury, so “a physical exam
was not completed” at the brief appointment. Solomon claims the clinical
impressions or diagnoses made in the insurance form are false because the physical
exam required to make them did not take place, and Buckle obviously knew as much.
Implicit in this claim is a contention that, under accepted standards of medical care,
a physician could not render the clinical impressions or diagnoses that Buckle
purported to make in the form based on the limited treatment or care Solomon
received from Buckle. Whether Buckle’s clinical impressions or diagnoses could be
made under these circumstances most likely presents a question for a physician. See,
e.g., Methodist Hosp. v. German, 369 S.W.3d 333, 339 (Tex. App.—Houston [1st
Dist.] 2011, pet. denied) (noting that standard of care and breach of standard of care
is usually proved through expert testimony with respect to health care providers).
The trial court did not err in dismissing Solomon’s suit for failure to timely
serve an expert report. We overrule the sole appellate issue presented by Solomon.
ATTORNEY’S FEES
Buckle, Ches, and HCA Health Services contend that the trial court erred in
not awarding them their attorney’s fees under the Texas Medical Liability Act.
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Standard of Review
Whether a party is entitled to recover attorney’s fees under a given statute, as
opposed to what amount of fees is recoverable, is generally a question of law we
review de novo. See Willacy Cty. Appraisal Dist. v. Sebastian Cotton & Grain, 555
S.W.3d 29, 37–38 (Tex. 2018) (characterizing entitlement to fees under particular
statute as question of statutory construction that is reviewed de novo on appeal).
Applicable Law
When a physician or health care provider successfully moves for dismissal
under the Texas Medical Liability Act, the trial court “shall” enter an order that
“awards to the affected physician or heath care provider reasonable attorney’s fees
and costs of court incurred” by them. TEX. CIV. PRAC. & REM. CODE § 74.351(b)(1).
Thus, an award of fees and costs is mandatory when an expert report is required by
the Act and not timely served. Garcia v. Gomez, 319 S.W.3d 638, 640 (Tex. 2010).
Of course, even when a statute, like this one, provides for an award of attorney’s
fees, the party invoking the statute must demonstrate its entitlement to the award it
seeks. See, e.g., Rohrmoos Venture v. UTSW DVA Healthcare, 578 S.W.3d 469,
488–89 (Tex. 2019) (explaining that party who seeks attorney’s fees under fee-
shifting statute must prove fees sought are reasonable and necessary as well as any
additional requisite to recovery of fees imposed by fee-shifting statute at issue);
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Osterberg v. Peca, 12 S.W.3d 31, 55–56 (Tex. 2000) (holding that party seeking fees
under statute waived right to appeal from judgment on issue of attorney’s fees).
Analysis
In conjunction with their motion to dismiss, Buckle, Ches, and HCA Health
Services submitted an affidavit made by counsel and billing records in support of
their claim for attorney’s fees. The trial court did not award them any attorney’s fees.
On appeal, Buckle, Ches, and HCA Health Services ask us to hold that they are
entitled to the amount of attorney’s fees they sought as a matter of law and modify
the trial court’s judgment to include an award of fees in the requested amount.
However, if a trial court refuses to award any attorney’s fees whatsoever when
a statute mandates an award, the proper remedy on appeal ordinarily is remand of
the cause to the trial court for a new trial on the amount of reasonable and necessary
attorney’s fees because reasonableness and necessity are questions of fact for a
factfinder, unless the evidence is conclusive on these questions. See Kroesche v.
Wassar Logistics Holdings, No. 01-20-00047-CV, 2023 WL 1112002, at *29 (Tex.
App.—Houston [1st Dist.] Jan. 31, 2023, pet. denied) (mem. op.) (holding so in
context of statute requiring fee award when party recovers damages in contract).
While Buckle, Ches, and HCA Health Services implicitly contend their
evidence of attorney’s fees is conclusive, they have not briefed this issue. They have
neither provided substantive argument nor supporting authority for the proposition
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that the evidence of their fees is conclusive, such that we could modify the trial
court’s judgment in their favor and affirm as modified, as they request we do on
appeal. Accordingly, Buckle, Ches, and HCA Health Services have waived their
contention that they conclusively proved their entitlement to attorney’s fees in the
amount requested. See TEX. R. APP. P. 38.1(i) (requiring brief to “contain a clear and
concise argument for the contentions made, with appropriate citations to authorities
and to the record”); Guimaraes v. Brann, 562 S.W.3d 521, 538 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied) (“Failure to cite appropriate legal authority or
to provide substantive analysis of the legal issues presented results in waiver of a
complaint on appeal.”); Jackson Walker, LLP v. Kinsel, 518 S.W.3d 1, 18–19 (Tex.
App.—Amarillo 2015) (stating appellate court had no obligation to parse forty pages
of record cited by party in search of evidence supporting appellate complaint or flesh
out party’s skeletal argument and holding that party therefore waived appellate
complaint due to inadequate briefing), judg’t aff’d, 526 S.W.3d 411 (Tex. 2017).
In situations like this one, in which the record contains some evidence
supporting an award of attorney’s fees but the amount recoverable has not been
conclusively proved, we usually would remand to the trial court for it to decide the
appropriate amount of attorney’s fees to award in the first instance. See Kroesche,
2023 WL 1112002, at *29. But there is a wrinkle: in their brief as cross-appellants,
Buckle, Ches, and HCA Health Services have requested that we modify the trial
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court’s judgment to include their requested attorney’s fees, but they have not
requested in the alternative that we reverse the trial court’s judgment and remand.
And because they have not requested remand, we therefore affirm. See Stevens v.
Nat’l Educ. Ctrs., 11 S.W.3d 185, 186 (Tex. 2000) (per curiam) (denying petition
for review because appropriate remedy for ostensible error was a new trial but
petitioner sought reversal and rendition alone rather than reversal and remand); Jay
Petrol. v. EOG Res., 332 S.W.3d 534, 538 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied) (explaining that appellate court cannot grant relief not requested, so that
if appellant seeks reversal and rendition we cannot reverse and remand instead).
In sum, the trial court erred in not awarding attorney’s fees. But we cannot
correct this error because Buckle, Ches, and HCA Health Services have neither
shown that they conclusively proved the amount of their fees nor asked us to reverse
and remand this cause to allow them to prove the amount of their attorney’s fees.
SANCTIONS
In their responsive brief as appellees, Buckle, Ches, and HCA Health Services
included a motion for sanctions, in which they requested that we impose unspecified
sanctions on Solomon or her counsel for various misstatements of fact in her brief.
The lone legal authority that Buckle, Ches, and HCA Health Services cited in
support of their motion is Rule 52.11 of the Texas Rules of Appellate Procedure.
This rule does not apply, as it concerns original proceedings in the Supreme Court
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of Texas and the intermediate appellate courts. Blair v. Blair, 642 S.W.3d 150, 162
(Tex. App.—El Paso 2021, no pet.). This is an appeal, not an original proceeding.
Apart from their citation of an inapplicable rule, Buckle, Ches, and HCA
Health Services have not identified, even in a general way, the legal framework—
standard of review and applicable law—that applies to their motion. See TEX. R.
APP. P. 10.1(a)(2) (requiring motion to “state with particularity the grounds on which
it is based”); see also Guimaraes, 562 S.W.3d at 538 (citing authority for proposition
that appellate court does not have duty to research law and fashion legal argument
for parties). Therefore, we will not impose sanctions on Solomon or her counsel.
CONCLUSION
We affirm the trial court’s judgment.
We deny Buckle, Ches, and HCA Health Services’s motion for sanctions.
Gordon Goodman
Justice
Panel consists of Justices Goodman, Countiss, and Farris.
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