Luis F. Arango, M.D. v. Nora Brummett ( 2003 )

NUMBER 13-02-326-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LUIS F. ARANGO, M.D., Appellant,

v.

NORA BRUMMETT, Appellee.

On appeal from the 370th District Court of Hidalgo County, Texas.

MEMORANDUM O P I N I O N

Before Justices Hinojosa, Yañez, and Garza Opinion by Justice Garza

This appeal challenges a trial court's award of attorney's fees pursuant to the Medical Liability and Insurance Improvement Act. We affirm.   

Background

The lawsuit underlying this appeal was filed by Nora Brummett ("Brummett") against Dr. Luis Arango ("Arango") for negligent medical treatment. Before trial, Arango filed a motion to dismiss and a demand for sanctions pursuant to the Medical Liability and Insurance Improvement Act, see Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(e)(1) (Vernon Supp. 2003), on the grounds that Brummett had not provided an expert report within the 180-day period required by the Act, see id. at § 13.01(d). Brummett responded by filing a notice of nonsuit.

The trial court ordered the dismissal of Brummett's complaint and sanctioned her by awarding attorney's fees to Arango. It awarded $1,000 in actual trial costs and then made the following prospective awards: $1,500 if the case is appealed to an intermediate court of appeals; $1,000 if a petition for review is filed with the Supreme Court of Texas; and an additional $1,000 if Arango wins at the Texas Supreme Court.

Arango now appeals to this Court, claiming that the trial court abused its discretion in awarding attorney's fees because (1) the amount awarded is arbitrary and unreasonable and (2) the court acted without reference to guiding rules and principles. According to Arango, the evidence presented to the trial court on this issue established reasonable attorney's fees in the amount of $4,678, rather than $1,000, for handling the lawsuit through dismissal. Arango further argues that the trial court's prospective award of appellate attorney fees was likewise unreasonably low.

Standard of Review

In Texas, a party may not recover attorney's fees unless expressly permitted by statute or by contract between the parties. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999) (citing Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996)). Statutes providing that a party "shall be awarded attorney fees" are not discretionary. See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). Although awarding attorney's fees is mandatory in such instances, courts are afforded discretion in determining their amount. Great Global Assurance Co. v. Keltex Properties, 904 S.W.2d 771, 776 (Tex. App.-Corpus Christi 1995, no pet.) ("A court has discretion to fix the amount of attorney's fees."); see also Hagedorn v. Tisdale, 73 S.W.3d 341, 353 (Tex. App.-Amarillo 2002, no pet.) ("The amount of an award of an attorney's fee is within the discretion of the trial court."); Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 556 (Tex. App.-Austin 1999, pet. denied) (same); World Help v. Leisure Lifestyles, 977 S.W.2d 662, 683 (Tex. App.-Fort Worth 1998, pet. denied) (same); Budd v. Gay, 846 S.W.2d 521, 524 (Tex. App.-Houston [14th Dist.] 1993, no writ.) (same). A trial court's award of attorney's fees is thus reviewed for abuse of discretion. Bocquet, 972 S.W.2d at 21; Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990) (per curiam); Haggar Apparel Co. v. Leal, 100 S.W.3d 303, 315 (Tex. App.-Corpus Christi 2002, pet. filed); First Fed. Sav. & Loan Ass'. v. Ritenour, 704 S.W.2d 895, 902 (Tex. App.-Corpus Christi 1986, writ ref'd n.r.e.). A trial court abuses its discretion when it acts arbitrarily and unreasonably and without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). When reviewing matters reserved for the trial court's discretion, a court of appeals may not substitute its own judgment for that of the trial court. See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989). Applicable Law

The determination of reasonable attorney's fees is a question for the trier of fact. See, e.g., Gonzalez v. Nielson, 770 S.W.2d 99, 102 (Tex. App.-Corpus Christi 1989, writ denied). Factors to be considered in determining the amount of reasonable attorney's fees include: 1) the time and labor required, novelty and difficulty of the question presented, and the skill required to properly perform the legal service; 2) the likelihood that the acceptance of employment precluded other employment by the lawyer; 3) the fee customarily charged in the locality for similar services; 4) the amount involved and the results obtained; 5) the time limitations imposed by the client or by the circumstances; 6) the nature and length of the professional relationship with the client; 7) the experience, reputation, and ability of the lawyer performing the services; and 8) whether the fee is fixed or contingent. Llanes v. Davila, No. 13-02-129-CV, 2003 Tex. App. LEXIS 392 at *17 (Corpus Christi Jan. 16, 2003, pet. denied); see also Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). While these factors may be considered, the court is not required to receive evidence on all of them. See, e.g., Tisdale, 73 S.W.3d at 353. The court is also free to look at the entire record, the evidence presented on reasonableness, the amount in controversy, the common knowledge of the participants as lawyers and judges, and the relative success of the parties. Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877, 896 (Tex. App.-San Antonio 1996, writ denied).

Analysis

Arango's argument on appeal is essentially that the trial court had no discretion to award less attorney's fees than the amount he sought to establish because Brummett did not put on any evidence or testimony challenging the reasonableness of that amount. We disagree. As we have already explained, the proper amount of attorney's fees to be awarded is within the trial court's discretion. See, e.g., Dail v. Couch, 99 S.W.3d 390, 391-92 (Tex. App.-Corpus Christi 2003, no pet.). Although Arango's evidence and testimony was uncontradicted by testimony from Brummett or her witnesses, the trial court had the sound discretion to decide that such fees were nevertheless unreasonable, incredible, unwarranted, or that some other justification existed for reducing them. See, e.g., Ragsdale, 801 S.W.2d at 882. Arango has not demonstrated that the trial court arbitrarily or unreasonably decided to award less attorney's fees than the amount for which he prayed. Likewise, he has not established that the decision was made without reference to guiding rules and principles. Because we have no authority to substitute our judgment for that of the trial court, Arango's sole issue on appeal is OVERRULED.

The trial court's judgment is AFFIRMED.

__________________________

DORI CONTRERAS GARZA,

Justice

Opinion delivered and filed

this 29^th day of August, 2003.