Rahul K. Nath M.D. v. Texas Children's Hospital and Baylor College of Medicine

Affirmed as Modified, Remittitur Suggested, and Memorandum Opinion filed
January 21, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00967-CV
NO. 14-20-00231-CV
RAHUL K. NATH, M.D., Appellant
V.
TEXAS CHILDREN’S HOSPITAL AND BAYLOR COLLEGE OF
MEDICINE, Appellees
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2006-10826
MEMORANDUM OPINION
Fourteen years after the inception of this lawsuit, Dr. Rahul K. Nath, M.D.
pursues his third and fourth appeals in this case. In this third appeal, Nath asserts
the trial court erred by denying his motion to dismiss brought under the Texas
Citizens Participation Act. Nath also contends that he is entitled to an
interlocutory appeal with respect to said denial. We overrule the issues in Nath’s
third appeal.
In the fourth appeal, Nath raises four issues challenging the sanctions
awarded to appellees Texas Children’s Hospital (the “Hospital”) and Baylor
College of Medicine (together with the Hospital, “Appellees”). Specifically, the
trial court’s final judgment awards the Hospital $726,000 in attorney’s fees and
awards Baylor $644,500.16 in attorney’s fees. The trial court’s final judgment also
awards the Hospital $489,800 in future appellate attorney’s fees.
We sustain in part Nath’s challenge to the trial court’s future appellate
attorney’s fees award. We suggest a remittitur of $50,375, which will result in an
award of $439,425 for the Hospital’s future appellate attorney’s fees if accepted.
We overrule the remaining issues in Nath’s fourth appeal.
BACKGROUND
I. The Underlying Litigation and Resulting Sanctions
Nath is a plastic surgeon who was employed by Baylor and affiliated with
the Hospital. Nath reported to Dr. Saleh Shenaq, the chief of Baylor’s plastic
surgery division and Nath’s partner at the Hospital’s obstetrical brachial plexus
clinic. Nath’s relationship with his colleagues (including Shenaq) turned
acrimonious in 2003, when several doctors complained that Nath billed
excessively, performed unnecessary procedures, and treated fellow colleagues in
an unprofessional manner.
In February 2006, Nath filed his original petition against Baylor, the
Hospital, and Shenaq, claiming the defendants made defamatory statements about
Nath that tortiously interfered with his business relationships. Approximately two
months later, Nath filed a first amended petition naming two additional defendants.
These defendants’ addition resulted in a jurisdictional dispute that ended in
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September 2008, when Nath non-suited the additional defendants in his third
amended petition. Nath’s third amended petition also asserted additional claims
against Baylor and the Hospital.
In November 2008, Nath filed a fourth amended petition alleging Shenaq
had been operating on patients while his vision was impaired. Nath filed his fifth
amended petition in July 2009 and sought declaratory relief based on Shenaq’s
alleged health problems. In December 2009, the Hospital filed traditional and no-
evidence summary judgment motions with respect to all of Nath’s claims. Baylor
filed traditional and no-evidence summary judgment motions challenging Nath’s
claims in January 2010.
After Appellees filed their summary judgment motions, Nath moved to
compel additional depositions, extend the deadline to respond to the motions, and
continue the summary judgment hearing — all of which were granted. Nath again
moved to continue the summary judgment hearing, which was denied. Nath filed
motions to recuse both the trial judge and the judge assigned to hear the first
recusal motion; both motions were denied.
Nath filed a sixth amended petition, in which he abandoned all of his prior
claims and asserted a new claim for intentional infliction of emotional distress.
Appellees again moved for summary judgment; Nath did not respond and instead
objected to the notice of hearing based on a technical defect. The trial court
granted Appellees’ summary judgment motions.
Appellees sought sanctions against Nath under Texas Rule of Civil
Procedure 13 and chapter 10 of the Texas Civil Practice and Remedies Code. The
trial court held hearings on the motions for sanctions and issued sanctions based
on, among other things: (1) “Nath’s improper purpose in filing the pleadings in
this case”; (2) “the bad faith that [Nath’s] actions manifest”; and (3) “the lack of
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any factual predicate for [Nath’s] claims, as previously established by the court’s
orders granting the motions for summary judgment.” The trial court explained that
its finding of bad faith stemmed from Nath’s conduct in seeking information
related to Shenaq’s health — conduct for which the trial court had previously (and
repeatedly) admonished Nash. The trial court concluded that Nath’s leveraging of
this information in an attempt to obtain a settlement constituted an improper
purpose.
The trial court sanctioned Nath in the amount of $726,000 in favor of the
Hospital, representing a portion of the Hospital’s reasonable fees in defending the
suit, and in the amount of $644,500.16 in favor of Baylor, representing a portion of
Baylor’s reasonable fees defending the suit. The trial court also filed extensive
findings of fact and conclusions of law supporting the sanctions orders. Nath
appealed.
II. Nath I
This court upheld the sanctions awards in Nath’s 2012 appeal. See Nath v.
Tex. Children’s Hosp., 375 S.W.3d 403 (Tex. App.—Houston [14th Dist.] 2012),
rev’d, 446 S.W.3d 355 (Tex. 2014).
Nath pursued his appeal to the Texas Supreme Court. See Nath v. Tex.
Children’s Hosp., 446 S.W.3d 355 (Tex. 2014) (“Nath I”). “[A]gree[ing] with the
court of appeals that the trial court properly found Nath’s pleadings sanctionable,”
the supreme court held that “[s]anctioning Nath for pleadings related to Shenaq’s
health was demonstrably just” and “supported by some evidence”. Id. at 361, 365.
The supreme court also held that the trial court did not abuse its discretion by
sanctioning Nath personally, particularly in light of Nath’s efforts to seek
information about Shenaq’s health. Id. at 366.
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The supreme court then addressed the amount of sanctions awarded by the
trial court. See id. at 371-72. The supreme court noted the trial court considered
most of the relevant factors in Low v. Henry, 221 S.W.3d 609 (Tex. 2007), which
were promulgated to “guid[e] the often intangible process of determining a penalty
for sanctionable behavior.” Id. at 620 n.5. But the supreme court held the trial
court failed to address one Low factor: the degree to which Appellees’ conduct
caused the expenses for which they sought recovery. Nath I, at 371-72.
Specifically, the supreme court noted that “all three parties litigated a host of
merits issues for nearly a half-decade before the Hospital and Baylor moved for
summary judgment on such grounds as limitations.” Id. The supreme court
remanded the case so the trial court could “examine the extent to which the
Hospital and Baylor caused the expenses they accrued in litigating a variety of
issues over several years.” Id. at 373.
III. Nath II
Back in the trial court, Nath filed several motions, including a motion to
disqualify Appellees’ counsel and a motion for continuance. Appellees filed
motions to reassess sanctions.
The trial court held a hearing on Appellees’ motions. On January 20, 2015,
the trial court granted Appellees’ motions to reassess sanctions and later issued
supplemental findings of fact and conclusions of law in which it determined that no
behavior by either the Hospital or Baylor caused the expenses for which they
sought recovery. The trial court ordered Nath to pay the Hospital $726,000 for its
attorney’s fees and pay Baylor $644,500.16 for its attorney’s fees.
Nath appealed and this court affirmed the trial court’s sanctions awards. See
Nath v. Tex. Children’s Hosp., 576 S.W.3d 728, 743 (Tex. App.—Houston [14th
Dist.] 2016), rev’d, 576 S.W.3d 707 (Tex. 2019) (per curiam). Nath again pursued
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his appeal to the Texas Supreme Court. See Nath v. Tex. Children’s Hosp., 576
S.W.3d 707 (Tex. 2019) (per curiam) (“Nath II”). Reversing this court’s decision,
the supreme court held that, before fees may be shifted as a sanction, “there must
be some evidence of reasonableness”. Id. at 709. The supreme court pointed out
that, on remand, Appellees attempted to prove reasonableness “by submitting two
additional conclusory affidavits”. Id. at 710. Referencing its decision in
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019),
the supreme court said it previously “explain[ed] the necessity of presenting either
billing records or other supporting evidence when seeking to shift attorney’s fees
to the losing party.” Nath II, at 710. The Court then “remand[ed] the case to the
trial court for further proceedings in light of Rohrmoos.” Id.IV. Proceedings After the Second Remand
Back in the trial court, Appellees filed separate applications for attorney’s
fees. Both applications included billing records to substantiate the claimed fees.
Nath aggressively pursued discovery and motion practice that included
(1) noticing corporate representative and nonparty depositions related to
Appellees’ 2010 decisions to seek sanctions; (2) filing a cross-motion for
sanctions; (3) filing motions to disqualify Appellees’ counsel; (4) filing special
exceptions to Appellees’ motions for sanctions; and (5) filing a jury demand
seeking a retrial of all issues.
Nath also filed a motion to dismiss pursuant to the Texas Citizens
Participation Act (the “TCPA”). See Tex. Civ. Prac. & Rem. Code Ann.
§§ 27.001-.011. Nath set his TCPA motion to dismiss for hearing on December
10, 2019, the same day as the evidentiary hearing on Appellees’ fee applications.
On December 5, 2019, Nath filed a premature notice of appeal. In the notice, Nath
stated the appeal was deliberately premature and filed in the event the trial court
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refused to rule on his TCPA motion. This appeal was assigned case number 14-19-
00967-CV.
At the December 10 hearing, the trial court heard arguments on Nath’s
TCPA motion and took it under advisement. The trial court proceeded to hear
evidence with respect to Appellees’ fee applications.
On December 18, 2019, the trial court entered findings of fact and
conclusions of law in which it determined that the evidence supported reassessing
sanctions against Nath in the same amounts awarded in 2010: $726,000 for the
Hospital’s attorney’s fees and $644,500.16 for Baylor’s attorney’s fees. On
December 27, 2019, the trial court signed a final judgment ordering Nath to pay
these amounts to Appellees. The trial court’s final judgment also awards the
Hospital $489,800 for its future appellate attorney’s fees. With respect to Nath’s
TCPA motion, the final judgment states:
Subsequent to this award of attorneys’ fees as sanctions, it is further
ORDERED, ADJUDGED, AND DECREED that Plaintiff Rahul K.
Nath’s Motion to Dismiss dated November 18, 2019 is DENIED.
Nath filed a second notice of appeal with respect to the trial court’s final judgment,
which was assigned case number 14-20-00231-CV. By order dated April 16, 2020,
and over Nath’s objections, this court consolidated Nath’s two appeals.
ANALYSIS
Nath’s two appeals present a total of seven issues. His third appeal focuses
on issues related to the trial court’s disposition of his TCPA motion to dismiss and
his fourth appeal addresses the trial court’s sanctions award. We address these
issues separately.
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I. Nath’s TCPA Motion to Dismiss
Nath raises three issues with respect to his TCPA motion to dismiss:
1. Nath is entitled to pursue an interlocutory appeal of the trial court’s
denial of his TCPA motion to dismiss while the remainder of the case
is stayed.
2. The trial court erred in denying Nath’s motion to dismiss.
3. This court should reverse its decision to consolidate Nath’s appeals
and stay its review of Nath’s second appeal until the interlocutory
appeal is resolved.
Because they raise similar arguments, we begin by addressing Nath’s first and third
issues together.
A. Nath Is Not Entitled to Pursue an Interlocutory Appeal of the
Denial of His TCPA Motion Independent From the Remainder of
the Final Judgment.
In general, Texas appellate courts have jurisdiction only with respect to final
judgments. Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012). But
statutes authorizing interlocutory appeals are a narrow exception to this general
rule. Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d
385, 390 (Tex. 2020).
Relevant here, the Civil Practice and Remedies Code provides for
interlocutory appeal of an order that “denies a motion to dismiss filed under
Section 27.003” of the TCPA. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(12). An interlocutory appeal under this section “stays the
commencement of trial” and “also stays all other proceedings in the trial court
pending resolution of that appeal.” Id. at (b).
Relying on these provisions, Nath argues he is entitled to pursue an
interlocutory appeal from the trial court’s denial of his TCPA motion to dismiss
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while the remainder of the trial court’s final judgment is stayed pending the
resolution of that appeal. Nath contends his interlocutory appeal was perfected at
the December 10, 2019 hearing or, in the alternative, after the trial court signed its
final judgment.
1. The December 10 Hearing
We begin with Nath’s contention that his interlocutory appeal was perfected
at the December 10 hearing when the trial court heard argument on Nath’s TCPA
motion and took it under advisement. After the trial court took the motion under
advisement, Nath asserts that his counsel (1) demanded a ruling on the motion to
dismiss; (2) objected to the trial court’s refusal to rule; (3) re-urged the objection to
the refusal to rule; and (4) objected to the trial court’s refusal to rule on that
objection. This exchange, Nath argues, constitutes a deemed denial of his TCPA
motion to dismiss that perfected his prematurely-filed appeal and invoked a
mandatory stay of further proceedings. See Tex. R. App. P. 27.1(a) (“In a civil
case, a prematurely filed notice of appeal is effective and deemed filed on the day
of, but after, the event that begins the period for perfecting the appeal.”).
But the cases Nath cites do not support this contention. Two of these cases
involve preservation of error and do not address the “deemed denial” of a motion.
See In re W.A.B., No. 14-18-00181-CV, 2019 WL 2181205, at *2 (Tex. App.—
Houston [14th Dist.] May 21, 2019, no pet.) (mem. op.) (the appellant’s challenge
to the trial court’s denial of his motion for continuance was not preserved where
the record did “not show that [appellant] presented the motion for continuance to
the trial court with a request for a ruling or otherwise brought it to the trial court’s
attention before the final judgment was rendered”); Quintana v. CrossFit Dallas,
L.L.C., 347 S.W.3d 445, 449 (Tex. App.—Dallas 2011, no pet.) (error was not
preserved where the record did not show the appellant brought her motions to the
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trial court’s attention or that the trial court ruled on them). And in the third case
Nath cites, the relator filed a petition for writ of mandamus after the trial court took
the relator’s chapter 74 motion to dismiss under advisement but failed to issue a
ruling for approximately nine months. See In re Baylor Coll. of Med., Nos. 01-19-
00105-CV, 01-19-00142-CV, 2019 WL 3418504, at *1-2 (Tex. App.—Houston
[1st Dist.] July 30, 2019, orig. proceeding) (per curiam) (mem. op.). This case is
not analogous to the facts presented here, where the trial court took Nath’s motion
under advisement and ruled on it nine days later. These cases do not compel the
conclusion that the trial court’s actions at the December 10 hearing constituted a
“deemed denial” of Nath’s TCPA motion to dismiss.
The TCPA explicitly addresses when a motion brought pursuant to its
provisions is deemed denied: when the motion has not been ruled on more than 30
days following the date the hearing on the motion concludes. See Tex. Civ. Prac.
& Rem. Code Ann. § 27.005(a); see also Inwood Forest Cmty. Improvement Ass’n
v. Arce, 485 S.W.3d 65, 72 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)
(“the motions to dismiss were denied by operation of law as the TCPA requires
when the trial court does not rule within the 30-day deadline”). Citing this
provision, Nath argues that, “[b]y proceeding to trial on the merits, the trial court
‘ruled’ that [Appellees’] claims . . . should not be dismissed.” Nath cites no direct
authority to support this contention and this court has found none.
Instead, the TCPA provides that, upon the filing of a motion under this
section, “all discovery in the legal action is suspended until the court has ruled on
the motion to dismiss.” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(c). If the
Legislature had intended for the filing of a TCPA motion to dismiss to stay all
proceedings, instead of just discovery, it would have stated so in the relevant
provision. See Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n,
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518 S.W.3d 318, 325-26 (Tex. 2017) (“We presume the Legislature chooses a
statute’s language with care, including each word chosen for a purpose, while
purposefully omitting words not chosen.”) (internal quotation omitted). But it did
not and we decline to expand the provision beyond its plain meaning. See id. at
326 (“we take statutes as we find them and refrain from rewriting the Legislature’s
text”); see also In re SPEX Grp. US LLC, No. 05-18-00208-CV, 2018 WL
1312407, at *3-4 (Tex. App.—Dallas Mar. 14, 2018, orig. proceeding, [mand.
dism’d]) (mem. op.) (concluding that the TCPA does not “prohibit a trial court
from considering and granting a temporary restraining order or a temporary
injunction before deciding a motion to dismiss brought under the TCPA”).
We reject Nath’s contentions that (1) the trial court’s actions at the
December 10 hearing constituted a “deemed denial” of his TCPA motion, and
(2) the trial court denied his TCPA motion by proceeding to an evidentiary hearing
regarding Appellees’ fee applications. Therefore, Nath’s prematurely-filed appeal
was not perfected at the December 10 hearing and Nath was not entitled to a stay
of all proceedings.
2. The Trial Court’s Final Judgment
In addition to awarding Appellees their attorney’s fees, the trial court’s
December 27, 2019 final judgment also explicitly denies Nath’s TCPA motion to
dismiss. Nath argues that “[t]he TCPA denial portion of the court’s order is
reviewable in this interlocutory appeal before the rest of the purported final
judgment takes effect.”
Nath does not cite any authority to support his proposition and this court has
found none. Rather, a review of relevant case law shows that the denial of a TCPA
motion to dismiss may be considered in conjunction with other relief granted by
the trial court. See, e.g., Petrobras Am., Inc. v. Astra Oil Trading NV, Nos. 14-18-
11
00728-CV, 14-18-00793-CV, 14-18-00798-CV, 2020 WL 4873226, at *22-25
(Tex. App.—Houston [14th Dist.] Aug. 20, 2020, pet. filed) (mem. op.); Roach v.
Ingram, 557 S.W.3d 203, 211-12, 216-18, 228-32 (Tex. App.—Houston [14th
Dist.] 2018, pet. denied).
We reject Nath’s argument that the trial court’s denial of his TCPA motion
is reviewable in an interlocutory appeal before the rest of the final judgment takes
effect.
3. Consolidation of Nath’s Appeals
After Nath filed his second notice of appeal, Appellees filed a motion to
consolidate both appeals, which this court granted. Arguing that this decision
should be reversed, Nath contends that consolidation was inappropriate because he
has “a statutory right to first pursue an interlocutory appeal of the denial of his
TCPA motion to dismiss.”
To support this contention, Nath raises the same argument discussed above,
namely, that his prematurely-filed appeal was perfected at the December 10
hearing. For the reasons discussed above, we conclude Nath’s appeal was not
perfected at the December 10 hearing.
We reject Nath’s argument regarding the consolidation of his appeals.
B. The Trial Court Did Not Err by Denying Nath’s TCPA Motion to
Dismiss.
Asserting that the trial court should deny Nath’s TCPA motion, Appellees
raised the following arguments in their TCPA response:
• Nath’s TCPA motion to dismiss was outside the scope of the Texas
Supreme Court’s limited remand.
• The TCPA does not apply to Appellees’ sanctions motions because
the motions were filed in 2010 and the TCPA did not become law
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until 2011.
• A motion for sanctions is not a “legal action” subject to dismissal
under the TCPA.
• Alternatively, if the court were to find that the TCPA applies,
Appellees met their burden of presenting a prima facie case with
respect to the elements of their sanctions requests.
Nath challenges these bases on appeal and, in response, Appellees contend each
ground is sufficient to affirm the trial court’s denial of Nath’s TCPA motion.
Because we conclude Nath’s TCPA motion to dismiss was outside the scope of
remand as set out in Nath I and Nath II, we do not reach the other grounds raised in
Appellees’ joint response.
When an appellate court remands a case and limits a subsequent trial to a
particular issue, the trial court may only determine that particular issue. Hudson v.
Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); Russell v. Russell, 478 S.W.3d 36,
42 (Tex. App.—Houston [14th Dist.] 2015, no pet.). On remand, “the trial court
has no authority to take any action that is inconsistent with or beyond the scope of
that which is necessary to give full effect to the appellate court’s judgment and
mandate.” Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013). Moreover, the
appellate court’s judgment is final “not only in reference to the matters actually
litigated, but as to all other matters that the parties might have litigated and had
decided in the cause.” Scott Pelley P.C. v. Wynne, 578 S.W.3d 694, 699 (Tex.
App.—Dallas 2019, no pet.) (internal quotation omitted). In interpreting the
mandate of an appellate court, the court should look not only to the mandate itself
but also to the court’s opinion. Hudson, 711 S.W.2d at 630.
The facts in Johnson-Todd v. Morgan, Nos. 09-17-00168-CV, 09-17-00194-
CV, 2018 WL 6684562 (Tex. App.—Beaumont Dec. 20, 2018, pet. denied) (mem.
op.), are similar to those presented here. In the first appeal in the Johnson-Todd
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litigation, the appellate court instructed the lower court to dismiss the plaintiff’s
claims and award the defendant damages and costs. Id. at *2. On remand, the
plaintiff filed a motion for sanctions and the defendant filed a TCPA motion to
dismiss the plaintiff’s sanctions motion. Id. The trial court denied the defendant’s
TCPA motion and the defendant appealed. Id.
On appeal, the court held that its “instructions in the prior appeal did not
allow the trial court to consider [the defendant’s] post-remand motion to dismiss
. . . under the TCPA”. Id. Instead, the trial court only was instructed to award the
defendant damages and costs. Id. Therefore, the trial court “had no authority to
consider [the defendant’s] post-remand motion to dismiss.” Id.
Like the first Johnson-Todd appeal, the Texas Supreme Court’s decisions in
Nath I and Nath II significantly limited the issues remaining to be determined in
the underlying proceeding. In Nath I, the supreme court concluded the trial court
properly found that Nath’s pleadings were sanctionable and did not abuse its
discretion by imposing those sanctions upon Nath personally. Nath I, at 361, 365-
66. The supreme court remanded the case solely to permit the trial court to
“examine the extent to which the Hospital and Baylor caused the expenses they
accrued in litigating a variety of issues over several years.” Id. at 373.
And in Nath II, the supreme court remanded the case to the trial court “for
further proceedings in light of Rohrmoos.” Nath II, at 710. The supreme court
addressed shifting attorney’s fees at length in Rohrmoos and reiterated its intention
that “the fact finder’s starting point for calculating an attorney’s fee award is
determining the reasonable hours worked multiplied by a reasonable hourly rate”.
578 S.W.3d at 498-99. Although “[c]ontemporaneous billing records are not
required to prove that the requested fees are reasonable and necessary”, such
records “are strongly encouraged to prove the reasonableness and necessity of
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requested fees when those elements are contested.” Id. at 502 (emphasis in
original).
Referencing these principles, the supreme court in Nath II stated:
On [the first] remand, the Hospital and Baylor attempted to prove the
reasonableness of the awarded fees by submitting two additional
conclusory affidavits. Although we expressed confidence in Nath I
that the reasonableness of the sanction might be resolved on the
existing record or through additional affidavits, the subsequent
affidavits here merely reference the fees without substantiating either
the reasonable hours worked or the reasonable hourly rate. Rohrmoos
explains the necessity of presenting either billing records or other
supporting evidence when seeking to shift attorney’s fees to the losing
party. Conclusory affidavits containing mere generalities about the
fees for working on Nath’s frivolous claims are legally insufficient to
justify the sanction awarded here.
* * *
Because the standard for fee-shifting awards in Rohrmoos likewise
applies to fee-shifting sanctions, we reverse the court of appeals’
judgment affirming the sanctions award and, without hearing oral
argument, remand the case to the trial court for further proceedings in
light of Rohrmoos.
Nath II, at 710.
Nath’s TCPA motion to dismiss was beyond the scope of what was
necessary to give full effect to supreme court’s instructions in Nath I and Nath II.
See Phillips, 407 S.W.3d at 234. Specifically, Nath’s TCPA motion did not
address (1) if and how Appellees’ conduct in the underlying litigation contributed
to their attorney’s fees, or (2) the reasonableness and necessity of Appellees’
claimed fees. See Nath I, at 373; Nath II, at 710. Instead, Nath’s TCPA motion
focused on Appellees’ “Sanctions Motions” and the propriety of sanctioning
Nath’s conduct in the litigation — an issue separate from the calculation of and
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evidence necessary to support the requested attorney’s fees. Therefore, the trial
court had no authority to consider Nath’s TCPA motion to dismiss. See Phillips,
407 S.W.3d at 234; Hudson, 711 S.W.2d at 630; see also, e.g., Johnson-Todd,
2018 WL 6684562, at *2.
We overrule Nath’s issue regarding the trial court’s denial of his TCPA
motion to dismiss.
II. The Trial Court’s Final Judgment
Nath raises four issues in his fourth appeal:
1. After it denied Nath’s TCPA motion to dismiss, the trial court erred
by proceeding to trial on the merits in violation of the automatic stay.
2. The trial court abused its discretion by denying Nath’s jury demand.
3. The trial court abused its discretion by awarding $1.37 million in
sanctions to Appellees.
4. The trial court erred by awarding the Hospital its future appellate
attorney’s fees.
Nath’s first issue incorporates the arguments previously raised in his appeal from
the trial court’s denial of his TCPA motion. As we concluded above, these
contentions lack merit. We overrule Nath’s first issue and proceed to address the
remaining three issues.
A. The Trial Court Did Not Err in Denying Nath’s Jury Demand.
After the Texas Supreme Court remanded the case in Nath II, Nath filed in
the trial court a jury demand “as to all issues”. Appellees filed a motion to strike
Nath’s jury demand and the trial court granted the motion to strike in an order
signed December 2, 2019. Asserting the trial court abused its discretion by
granting Appellees’ motion to strike, Nath argues that “[u]nder Nath II and
Rohrmoos, [he] is entitled to have a jury determine the amount (if any) of
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reasonable and necessary compensatory attorney’s fees awarded against him.”
But neither Nath II nor Rohrmoos state that attorney’s fees sought as
sanctions must be tried to a jury. See Nath II, at 708-10; Rohrmoos, 578 S.W.3d at
483-505. Moreover, the Texas Supreme Court previously has held that a party
complaining about an award of attorney’s fees as sanctions does not have the right
to a jury trial on the amount of the sanction. See Brantley v. Etter, 677 S.W.2d
503, 504 (Tex. 1984) (per curiam). In Brantley, the plaintiff was awarded
monetary sanctions for attorney’s fees because of the defendant’s failure to comply
with discovery orders. Id. The defendant appealed and the court of appeals
affirmed the judgment with respect to the imposition of sanctions but concluded
the defendant “was entitled to a jury trial on the issue of attorney’s fees”. Id.Reversing this determination, the supreme court stated:
There is, however, language in the opinion of the court of appeals
from which it could be inferred that one complaining of the award of
attorney’s fees as sanctions has the right to a jury trial to determine
the amount of such attorney’s fees. We do not think it was the intent
of the court of appeals to provide for this, but as their opinion is
susceptible to such interpretation, we expressly hold that the amount
of attorney’s fees awarded as sanctions for discovery abuse is solely
within the sound discretion of the trial judge, only to be set aside
upon a showing of clear abuse of that discretion.
Id. (emphasis added); see also Cantu v. Comm’n for Lawyer Discipline, No. 13-16-
00332-CV, 2020 WL 7064806, at *41 (Tex. App.—Corpus Christi Dec. 3, 2020,
no pet. h.) (mem. op.) (citing Brantley to support conclusion that the appellant “did
not have a constitutional right to a jury to determine his sanction in a disciplinary
proceeding”); Melasky v. Warner, No. 09-11-00447-CV, 2012 WL 5960310, at *4
(Tex. App.—Beaumont Nov. 29, 2012, pet. denied) (mem. op.) (“When the trial
court imposes sanctions, a party is not entitled to a jury determination concerning
the amount the trial court may choose to award as sanctions.”).
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Nath does not cite any authority that warrants deviating from this precedent;
instead, the cases on which Nath relies examine issues different from the one
presented here. See Transcont’l Ins. Co. v. Crump, 330 S.W.3d 211, 227-232
(Tex. 2010) (examining “whether a judge or jury decides attorney’s fees under
Texas Labor Code § 408.221(c)”); Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d
545, 547-49 (Tex. 2009) (concluding there was no evidence to support the jury’s
refusal to award any attorney’s fees); CHCA Woman’s Hosp., L.P. v. Uwaydah,
No. 01-18-00220-CV, 2020 WL 4299567, at *9 (Tex. App.—Houston [1st Dist.]
July 28, 2020, no pet.) (mem. op.) (after concluding the trial court, as fact finder,
erred by rendering a take-nothing judgment on the defendant’s counterclaim for
breach of contract, the court remanded for a new trial on the issue of attorney’s
fees); and Pisharodi v. Columbia Valley Healthcare Sys., L.P., No. 13-18-00364-
CV, 2020 WL 2213951, at *7-10 (Tex. App.—Corpus Christi May 7, 2020, no
pet.) (the nonmovant, whose suit was dismissed pursuant to the TCPA, was entitled
to a jury determination as to the amount of the movant’s statutory “reasonable
attorney’s fees” under the TCPA).
We overrule Nath’s issue challenging the trial court’s denial of his jury
demand.
B. Sufficient Evidence Supports the Trial Court’s Sanctions Awards.
Challenging the sanctions awards in the trial court’s final judgment, Nath
argues (1) the trial court abused its discretion in refusing to allow Nath to present
evidence regarding his personal actions during the litigation, and (2) Appellees’
“heavily redacted timesheets and billing records are not legally sufficient
evidence” to support the awards. We reject both arguments.
1. Evidence Regarding Nath’s Involvement in the Litigation
According to Nath, he “repeatedly requested that the trial court allow him to
18
present evidence, on cross-examination and through his expert witness, concerning
to what extent [he] engaged in conduct warranting sanctions.” Nath argues that the
trial court’s exclusion of this evidence “runs afoul of the Texas Supreme Court’s
decision in Nath I and was in error.”
We review a complaint regarding the admission or exclusion of evidence
under an abuse of discretion standard. Mandell v. Mandell, 214 S.W.3d 682, 691
(Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing City of Brownsville v.
Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). A trial court abuses its discretion
when it acts in an unreasonable or arbitrary manner, or without reference to any
guiding rules or principles. Merrill v. Sprint Waste Servs. LP, 527 S.W.3d 663,
669 (Tex. App.—Houston [14th Dist.] 2017, no pet.). “[W]e must uphold the trial
court’s evidentiary ruling if there is any legitimate basis for the ruling.” Id.As we discussed above with respect to Nath’s challenge to the denial of his
TCPA motion, on remand the trial court’s authority is limited to those
determinations necessary to give full effect to the appellate court’s judgment and
mandate. See Phillips, 407 S.W.3d at 234; Hudson, 711 S.W.2d at 630. In Nath I,
the Texas Supreme Court remanded this case with respect to a single issue: to
determine the extent to which Appellees caused the expenses they sought to
recover as attorney’s fees. Nath I, at 373. And in Nath II, the supreme court
remanded this case for a second time for “further proceedings in light of
Rohrmoos”, which “explain[ed] the necessity of presenting either billing records or
other supporting evidence when seeking to shift attorney’s fees”. Nath II, at 710.
The trial court did not abuse its discretion by concluding that evidence
regarding Nath’s personal actions during the litigation was irrelevant to the
determinations remaining after Nath I and Nath II. Moreover, in Nath I, the
supreme court examined evidence addressing “whether the sanction was visited on
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the true offender.” Nath I, at 366. “[R]eject[ing] Nath’s argument and
conclud[ing] the trial court did not abuse its discretion in labeling Nath the true
offender”, the supreme court held:
Nath’s conduct surrounding Shenaq’s health appears to be less about
pursuing a legal redress for an injury (the province of the attorney)
and more about seeking irrelevant personal information (an
extrajudicial desire of the client). While litigation is contentious by
definition and often utilized to compel a desired end, we agree with
the trial court that, on these facts, using a legal mechanism to force
damaging, irrelevant information into the public domain and thereby
compel a more favorable settlement constitutes an improper purpose.
Id. Against this backdrop, it was reasonable for the trial court to conclude that
evidence regarding Nath’s involvement in the litigation was not relevant to the
issues remaining to be resolved.
We overrule Nath’s challenge to the trial court’s exclusion of evidence
addressing his personal actions during the litigation.
2. Redacted Portions of Appellees’ Billing Records
Citing collectively to hundreds of pages of billing records attached as
exhibits to Appellees’ fee applications, Nath contends that Appellees’ “heavily
redacted timesheets and billing records are not legally sufficient evidence to
support the award.”
Appellees filed approximately 350 pages of billing records with their fee
applications. The billing records also were admitted into evidence at the hearing
on Appellees’ fee applications. Some of the entries in the Hospital’s billing
records are fully redacted and provide no information about their contents;
similarly, some of the entries included in Baylor’s billing records have a line
running through the included information.
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At the hearing, Patrick Mizell (one of the Hospital’s attorneys) testified as
follows with respect to the redacted entries in the Hospital’s billing records:
So we have in 2010 when I did this originally, I segregated fees which
were not directly attributable to Nath’s claims and so when you see it
blacked out from left to right all the way across, that is for entries
that we are not seeking fees . . . .
(emphasis added). And Shauna Clark (one of Baylor’s attorneys) testified that
these “strike throughs” in certain entries in Baylor’s billing records represent
“portions of the fees for which Baylor is not seeking reimbursements through
sanctions.”
As this testimony shows, the redacted entries of which Nath complains
represent fees Appellees are not seeking to recoup as sanctions. Nonetheless, Nath
asserts that “simply because [Appellees] are not seeking those amounts in this case
does not mean that the information in those redacted records was not relevant and
admissible.” Nath does not cite any caselaw or other authority to support this
contention.
We reject Nath’s argument. Nath I and Nath II remanded this case for a
determination regarding Appellees’ roles in causing the fees they sought to recover
as sanctions and whether those fees were reasonable. See Nath II, at 710; Nath I, at
373. Because the redacted entries do not represent fees Appellees sought to
recover, they do not render the evidence legally insufficient to support the trial
court’s sanctions award.
Rather, considered in light of Rohrmoos, the unredacted billing records
constitute legally sufficient evidence supporting the trial court’s sanctions award.
In Rohrmoos, the supreme court stated that it intended for the “lodestar analysis to
apply to any situation in which an objective calculation of reasonable hours
worked times a reasonable rate can be employed” to determine the amount of
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attorney’s fees to be awarded. 578 S.W.3d at 497-98. “[T]here is a presumption
that the base lodestar calculation, when supported by sufficient evidence, reflects
the reasonable and necessary attorney’s fees that can be shifted to the non-
prevailing party.” Id. at 499.
“Sufficient evidence includes, at a minimum, evidence of (1) particular
services performed, (2) who performed those services, (3) approximately when the
services were performed, (4) the reasonable amount of time required to perform the
services, and (5) the reasonable hourly rate for each person performing such
services.” Id. at 498. “General, conclusory testimony devoid of any real substance
will not support a fee award.” Id. at 501. Although billing records are not required
to meet these requirements, such records “are strongly encouraged to prove the
reasonableness and necessity of requested fees when those elements are contested.”
Id. at 502 (emphasis in original).
The evidence and testimony admitted at the hearing on Appellees’ fee
applications satisfy this standard. The Hospital filed as an exhibit 172 pages of
billing records showing the legal work performed with respect to Nath’s case
against the Hospital. Each entry in the billing records includes (1) the date the
work was performed, (2) the person who performed the work, (3) a description of
the work, (4) the time spent, and (5) the amount charged. The end of each billing
invoice also lists the timekeepers that worked on the matter, the hours they spent,
and the total amount charged for each person. The billing records show that this
work was performed from March 6, 2006 (approximately two weeks after Nath
filed his original petition) through November 22, 2010 (after the trial court ruled
on Nath’s motions for new trial).
At the December 10 hearing, Mizell testified that the total fees charged to
the Hospital during this period were $1,000.043.61. Mizell said that, “based on
22
[his] analysis of the invoices and the segregation [he] performed,” $802,498 was
“directly attributable to the Hospital’s defense of Nath’s claims against it[.]”
Mizell said the Hospital was seeking fees of $726,000, which was the original
sanctions amount awarded by the trial court in 2010.
Mizell also provided a summary of the legal work performed with respect to
Nath’s claims over this four-year period. According to Mizell, he did not “believe
[the Hospital’s attorneys] caused any of the fees or contributed to the fees in the
sense that we did anything to prolong the litigation or do anything that caused any
of these fees, other than defending the claims by Dr. Nath.”
Baylor filed as an exhibit 182 pages of billing records showing the legal
work performed on Nath’s case against Baylor. Each entry in the billing records
includes (1) the date the work was performed, (2) the person who performed the
work, (3) the time spent, and (4) a description of the work. The end of each billing
invoice also lists (1) the timekeepers that worked on the case, (2) the amount of
time each timekeeper spent working on the matter, (3) each timekeeper’s rate, and
(4) the total fee for each timekeeper. The billing records show that this work was
performed from March 1, 2006 through June 24, 2020.
At the December 10 hearing, Clark testified that the total amount charged to
Baylor for this time period was $688,260.13. Clark testified that $644,500.16 was
“directly attributable to Baylor’s defense against Dr. Nath’s claims in this
lawsuit[.]”
Like Mizell, Clark also provided a summary of the legal work performed for
Baylor with respect to Nath’s claims. When asked whether Baylor “caused or
contributed to any portion of the fees it [sought] as sanctions in this case”, Clark
responded, “Absolutely not.”
23
Considered in light of Rohrmoos’s standards and this case’s lengthy history,
this testimony and Appellees’ billing records are legally sufficient evidence to
support the trial court’s sanctions awards.
We overrule Nath’s legal-sufficiency challenge.
C. The Hospital’s Future Appellate Attorney’s Fees Award is Not
Supported by Legally Sufficient Evidence.
In his final issue, Nath asserts the trial court abused its discretion by
awarding the Hospital future appellate attorney’s fees, arguing (1) the Hospital
“failed to plead for an award of future appellate fees, and (2) “[n]o evidence”
supports the appellate attorney’s fees award.
1. The Hospital’s Pleadings
At the December 10 hearing, Mizell testified regarding the Hospital’s
request for its future appellate attorney’s fees. In its final judgment, the trial court
awarded the Hospital $489,800 in future appellate fees “conditioned upon the
Hospital prevailing on any appeal of this case by Nath.” Nath contends on appeal
that the Hospital’s failure “to ever plead for future appellate attorney’s fees” is
fatal to its recovery.
Under Texas Rule of Civil Procedure 301, the trial court’s judgment must
conform to the pleadings. Tex. R. Civ. P. 301. But issues not raised in the
pleadings can be tried by express or implied consent of the parties. Tex. R. Civ. P.
67; see also Flowers v. Flowers, 407 S.W.3d 452, 457 (Tex. App.—Houston [14th
Dist.] 2013, no pet.). The unpleaded issue may be deemed tried by consent when
evidence on the issue is developed without objection under circumstances
indicating both parties understood the issue was being contested. See Ingram v.
Deere, 288 S.W.3d 886, 893 (Tex. 2009); Adeleye v. Driscal, 544 S.W.3d 467, 484
(Tex. App.—Houston [14th Dist.] 2018, no pet.). “The trial court has broad
24
discretion to determine whether an unpleaded issue was tried by consent.”
Adeleye, 544 S.W.3d at 484.
During Mizell’s testimony on the Hospital’s future appellate attorney’s fees,
Nath did not object to this evidence as being outside the Hospital’s pleadings.
Therefore, it was within the trial court’s discretion to conclude that the issue of the
Hospital’s future appellate attorney’s fees was tried by consent. See Ingram, 288
S.W.3d at 893; Adeleye, 544 S.W.3d at 484; see also, e.g., Mansfield v. Mansfield,
No. 04-18-00551-CV, 2019 WL 6138984, at *4 (Tex. App.—San Antonio Nov.
20, 2019, pet. denied) (“Because [the appellant’s] attorney did not object to the
absence of any pleadings when the trial court addressed the issue of an award of
appellate attorney’s fees, we hold the issue was tried by consent.”); Sheen v. Sheen,
No. 03-18-00358-CV, 2019 WL 2554570, at *5 (Tex. App.—Austin June 21,
2019, no pet.) (mem. op.) (issue of appellate attorney’s fees was tried by consent
when the appellee’s attorney “testified regarding his trial and appellate fees
without objection”).
With respect to this line of testimony, the only objection Nath raised
addressed the foundation for Mizell’s opinion:
Objection, Your Honor. Lack of foundation on the part of this witness
with regard to what appellate fees may or may not be with regard to
any matter or this mater. There’s not been a proper foundation with
regard to this witness.
This objection was not sufficient to make the trial court aware of the issue Nath
now raises on appeal, i.e., whether appellate attorney’s fees were outside the scope
of the Hospital’s pleadings. See Tex. R. App. P. 33.1(a).
We overrule Nath’s argument that the Hospital failed to plead for an award
of future appellate attorney’s fees.
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2. Evidentiary Sufficiency
Nath argues that there is “no evidence” to support the trial court’s award of
the Hospital’s future appellate attorney’s fees.
“When reviewing a trial court’s award of attorney’s fees, we must ensure the
record contains sufficient evidence to support such an award.” Yowell v. Granite
Operating Co., __ S.W.3d __, 2020 WL 2502141, at *12 (Tex. May 15, 2020)
(applying Rohrmoos to an issue challenging the sufficiency of the evidence to
support an award of contingent appellate fees). “The party seeking attorneys’ fees
bears the burden of proof and must supply enough facts to support the
reasonableness of the amount awarded.” Id. Specifically, to recover contingent
appellate fees, the party with the burden of proof must “provide opinion testimony
about the services it reasonably believes will be necessary to defend the appeal and
a reasonable hourly rate for those services.” Id. at *13.
At the December 10 hearing, Mizell testified that he represented the Hospital
on both prior appeals in this case. Mizell also said he has handled “approximately
35, 40 appeals over [his] career.” Mizell testified that he had argued in the court of
appeals on ten separate occasions, including in the appeal that preceded Nath I.
Mizell provided the following testimony about the fees that would be
incurred in each stage of the appellate process if Nath pursues an appeal:
• Appeal to the intermediate court of appeals: Mizell opined that an
appeal through this stage would incur $196,700 in attorney’s fees.
Included in this number were the following estimates for attorneys’
work on the matter: (1) Stacey Vu working 70 hours at $850/hour;
(2) Kathy Smith working 70 hours at $760/hour; and (3) Brooke
Noble working 200 hours at $420/hour.
• Petition for review to the Texas Supreme Court: Mizell opined that an
appeal through this stage would incur $96,950 in attorney’s fees.
Included in this number were the following estimates for attorneys’
26
work on the matter: (1) Vu working 25 hours at $850/hour; (2) Smith
working 25 hours at $760/hour; and (3) Noble working 135 hours at
$420/hour.
• Merits briefing at the Texas Supreme Court: Mizell opined that an
appeal through this stage would incur $96,950 in attorney’s fees.
Included in this number were the following estimates for attorneys’
work on the matter: (1) Vu working 25 hours at $850/hour; (2) Smith
working 25 hours at $760/hour; and (3) Noble working 135 hours at
$420/hour.
• Oral argument at the Texas Supreme Court: Mizell opined that an
appeal through this stage would incur $48,825 in attorney’s fees.
Included in this number were the following estimates for attorneys’
work on the matter: (1) Vu working 22.5 hours at $850/hour;
(2) Smith working 22.5 hours at $760/hour; and (3) Noble working 30
hours at $420/hour.
These estimates are the same as those included in Mizell’s affidavit, which was
filed as an exhibit to the Hospital’s attorney’s fee application. The combined total
for these parts of the appellate process equal $439,425 in future appellate
attorney’s fees. Mizell testified that these fees “are in keeping with similar top-
flight appellate lawyer rates in Houston, Harris County and in the State of Texas.”
The trial court’s final judgment awarded the Hospital $489,800 1 in future
appellate attorney’s fees — $50,375 more than the amounts Mizell testified to at
the evidentiary hearing. The record does not contain any evidence to support this
additional amount. Therefore, although the evidence is legally sufficient to support
a finding of some amount of future appellate attorney’s fees, it is legally
insufficient to support the entire amount awarded in the trial court’s final
judgment. See, e.g., Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. &
1
The trial court’s future appellate attorney’s fees award is apportioned as follows:
(1) $196,700 in the event of an appeal to the intermediate court of appeals; (2) $99,200 in the
event of a petition for review to the Texas Supreme Court; (3) $96,950 in the event of merits
briefing at the Texas Supreme Court; and (4) $96,950 in the event oral argument is granted at the
Texas Supreme Court.
27
Research Corp., 299 S.W.3d 106, 123-24 (Tex. 2009); Corral-Lerma v. Border
Demolition & Envtl. Inc., 467 S.W.3d 109, 127-18 (Tex. App.—El Paso 2015, pet.
denied).
An appellate court possesses the inherent power in a civil case to suggest a
remittitur under Rule 46.3 of the Texas Rules of Appellate Procedure when an
appellant complains there is insufficient evidence to support an award and the
appellate court agrees but concludes there is sufficient evidence to support a lesser
award. Tex. R. App. P. 46.3; see, e.g., Enzo Invs., LP v. White, 468 S.W.3d 635,
654-55 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). Accordingly, we
suggest to the Hospital a remittitur of $50,375, which will result in a future
appellate attorney’s fee award of $439,425 if accepted. See Tex. R. App. P. 46.3.
CONCLUSION
In his third appeal, case number 14-19-00967-CV, Nath asserted three issues
raising two arguments: (1) he was entitled to an interlocutory appeal with respect
to the trial court’s denial of his TCPA motion to dismiss, and (2) the trial court
erred by denying his TCPA motion. We overrule these issues.
In his fourth appeal, case number 14-20-00231-CV, Nath raised four issues
asserting the trial court (1) erred by proceeding to trial on the merits; (2) abused its
discretion by denying Nath’s jury demand; (3) abused its discretion by awarding
$1.37 million in sanctions to Appellees; and (4) erred by awarding the Hospital its
future appellate attorney’s fees. We overrule Nath’s first, second, and third issues.
We sustain Nath’s fourth issue in part with respect to the insufficiency of the
evidence to support the award of $489,800 to the Hospital for its future appellate
attorney’s fees. We suggest a remittitur of $50,375. If the Hospital files in this
Court a remittitur of $50,375 within fifteen days after the issuance of our opinion,
28
we will reform the trial court’s judgment to award $439,425 in future appellate
attorney’s fees and affirm the judgment as reformed.
If the suggested remittitur is not filed, we will remand to the trial court the
issues of the amount of, and liability for, the Hospital’s attorney’s fees. See Tex.
R. App. P. 44.1(b); see also, e.g., Range v. Calvary Christian Fellowship, 530
S.W.3d 818, 843 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
Accordingly, subject to the Hospital’s acceptance of our suggestion of remittitur,
we affirm the judgment as modified.
/s/ Meagan Hassan
Justice
Panel consists of Justices Wise, Bourliot, and Hassan.
29