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

Opinion issued July 7, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00572-CV
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
Radiology.
We overrule Gonzales’s sole issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
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