Pro-Care Medical Center and Injury Medical Group v. Quality Carriers, Inc., Gulf Coast Express Carriers, Inc., and Bobby Nixon ( 2020 )

Affirmed and Memorandum Opinion filed April 2, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-01062-CV
PRO-CARE MEDICAL CENTER AND INJURY MEDICAL GROUP,
Appellant
V.
QUALITY CARRIERS, INC., GULF COAST EXPRESS CARRIERS, INC.,
AND BOBBY NIXON, Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2014-16664
MEMORANDUM OPINION
In this appeal, appellant Pro-Care Medical Center and Injury Medical Group
(“Pro-Care”) asserts the trial court abused its discretion by awarding Pro-Care less
than its requested amount of attorney’s fees. For the reasons below, we affirm.
BACKGROUND
Appellee Bobby Nixon was driving an eighteen-wheeler when he became
involved in an accident with two other vehicles. At the time of the accident, Nixon
was employed by appellees Quality Carriers, Inc. and Gulf Coast Express Carriers,
Inc. (together with Nixon, “Quality Carriers”). Quality Carriers sued the vehicles’
drivers and one vehicle’s owner, asserting claims arising from the accident; other
individuals involved in the accident intervened and asserted claims against Quality
Carriers.
During the course of litigation, Quality Carriers filed a “Motion for Leave to
Join Additional Parties” seeking to join Pro-Care, Foundation Surgical Hospital,
and Cumberland Surgical Hospital as parties to the suit.1 Quality Carriers asserted
that joinder was necessary to secure certain discovery from the health care
providers. The trial court granted Quality Carriers’ motion for leave.
Pro-Care filed an answer to Quality Carriers’ suit and a motion to dismiss
under Texas Rule of Civil Procedure 91a, pointing out that Quality Carriers’
petition did not allege any claims against Pro-Care. Quality Carriers filed an
amended petition asserting claims against Pro-Care and the other health care
providers for conspiracy to commit fraud and violations of the Stark Law.2 Pro-
Care withdrew its original motion to dismiss and filed a second Rule 91a motion to
dismiss addressing the pleaded claims. Pro-Care’s attorney, Michael C.
Kelsheimer, filed an affidavit in support of attorney’s fees and asserted that
$19,093.00 in costs and fees had been incurred in Pro-Care’s representation.
Kelsheimer’s affidavit did not include any exhibits.
1
Foundation Surgical Hospital and Cumberland Surgical Hospital are not parties to this
appeal.
2
The Stark Law prohibits physicians from referring patients to entities with which the
physician has a financial relationship for certain designated health services payable by Medicare
unless the transaction is structured to fit within one of the Stark Law’s exceptions. See 42 C.F.R.
§§ 411.353(a), 411.357.
2
Approximately four months later, Pro-Care filed a motion to dismiss under
the Texas Medical Liability Act (“TMLA”), asserting Quality Carriers failed to
comply with the TMLA’s expert-report requirement. 3 Kelsheimer filed a second
attorney’s fees affidavit claiming that $30,299.36 in fees and costs had been
incurred. Kelsheimer’s second affidavit did not include any exhibits.
After responding to Pro-Care’s motions to dismiss, Quality Carriers
nonsuited with prejudice its claims against Pro-Care, Foundation, and Cumberland.
The trial court signed an order granting Quality Carriers’ nonsuit. Kelsheimer then
filed a third attorney’s fees affidavit asserting that $53,194.01 in costs and fees had
been incurred. Kelsheimer’s third affidavit included approximately 40 pages of
billing records. Quality Carriers filed objections to Pro-Care’s evidence and
argued that (1) Pro-Care could not recover for fees expended before Quality
Carriers asserted any claims against the health care providers; (2) the billing
records were so heavily redacted it was “impossible” to determine whether the
work merited a fee recovery; and (3) the hourly rates were excessive. The trial
court held a hearing on the health care providers’ motions to dismiss on February
9, 2018.4
Yolanda Godina, one of the individuals involved in the accident, nonsuited
her claims against Quality Carriers; the trial court granted the nonsuit in a signed
order. Under the impression that this order disposed of all remaining claims, Pro-
Care filed a motion to modify the order granting Godina’s nonsuit and requested
3
Texas Civil Practice and Remedies Code section 74.351 requires that a plaintiff
asserting a health care liability claim serve an expert report within 120 days of the filing of an
answer by any defendant physician or health care provider. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(a).
4
A transcript of this hearing was not included with the reporter’s record. Pro-Care states
in its appellate brief that, after inquiring with the court reporter, it was notified that “there is no
recording of the hearing.”
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that the trial court (1) dispose of the health care providers’ motions to dismiss, and
(2) award attorney’s fees.
The trial court held a hearing on the motion to modify on April 30, 2018.
The attorneys for Quality Carriers, Cumberland, and Foundation were present at
the hearing; Pro-Care’s attorney attempted to attend via telephone. When the trial
court was informed that “there may be a couple of attorneys on the phone that
wanted to participate,” the trial court said, “I don’t want to hear anymore from
anybody else.” After the attorneys’ arguments, the trial court stated:
I think you’re both full of hoo whee [sic]; and the fees being charged
— sought to be charged by the providers’ attorneys for this — this
alleged miscarriage of justice are outrageous. Both sides are to be
totally — I don’t want to say, “condemned;” but I have total
disapproval of both sides and how both sides have conducted
themselves in litigation. I’m tired of all of you. I’m going to enter an
order that’s going to be modest sanctions; and you all can get out of
here and go to San Antonio or go to the Court of Appeals or go
wherever you want and try to sell somebody else on these outrageous
claims by both sides, okay.
At the conclusion of the hearing, the trial court signed an order granting Pro-Care’s
motion to modify Godina’s nonsuit. The trial court granted Pro-Care’s Rule 91a
and TMLA motions to dismiss and awarded Pro-Care $10,000 in attorney’s fees.
Pro-Care appealed to this court; we dismissed the appeal for lack of
jurisdiction because no final judgment or otherwise appealable order had been
signed in the underlying proceeding. See Pro-Care Med. Ctr. v. Quality Carriers,
Inc., No. 14-18-00350-CV, 2018 WL 3469008 (Tex. App.—Houston [14th Dist.]
July 19, 2018, no pet.) (mem. op.) (per curiam). The trial court disposed of the
remaining claims and signed an agreed final judgment on November 12, 2018.
Pro-Care timely appealed.
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ANALYSIS
In its sole issue, Pro-Care asserts the trial court’s $10,000 attorney’s fees
award constitutes an abuse of discretion. Pro-Care argues that its evidence
establishes the full amount of costs and fees as a matter of law and requests that we
render a judgment in its favor for $53,194.01.
The trial court’s April 30, 2018 order granted Pro-Care’s motions to dismiss
Quality Carriers’ claims under Texas Rule of Civil Procedure 91a and Texas Civil
Practice and Remedies Code section 74.351. Rule 91a and section 74.351 entitled
Pro-Care to an award of attorney’s fees.5 See Tex. R. Civ. P. 91a; Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(a).
We review an attorney’s fees award for an abuse of discretion. Ridge Oil
Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex. 2004); State Farm Lloyds v.
Hanson, 500 S.W.3d 84, 97 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
A trial court abuses its discretion when it rules arbitrarily, unreasonably, or without
regard to guiding legal principles. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.
1998).
An award of attorney’s fees must be supported by evidence that the fees are
reasonable and necessary; the reasonableness of fees generally is a fact issue.
Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010); Stewart Title Guar. Co. v.
Sterling, 822 S.W.2d 1, 10 (Tex. 1991). A reasonable fee is one that is not
excessive or extreme, but instead is moderate or fair. Garcia, 319 S.W.3d at 642.
Factors that trial courts should consider when determining the reasonableness of a
5
The Texas Supreme Court recently gave final approval to an amendment of Rule 91a
making an award of attorney’s fees discretionary, rather than mandatory. See Final Approval of
Amendments to Texas Rule of Civil Procedure 91a.7, Nov. 12, 2019 (Tex. Misc. Docket No. 19-
9108). Because this amendment to Rule 91a applies only to civil actions commenced on or after
September 1, 2019, it is inapplicable to the underlying suit filed in 2017.
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fee include: the time, labor, and skill required to properly perform the legal
service; the novelty and difficulty of the questions involved and the results
obtained; the nature and length of the professional relationship with the client; and
the experience, reputation, and ability of the lawyer performing the services. See
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
“To determine an appropriate fee award, the trial judge is entitled to look at the
entire record and to view the matter in light of the amount in controversy, the
nature of the case, and his or her personal experience as a lawyer and judge.” Cole
Chem. & Distrib., Inc. v. Gowing, 228 S.W.3d 684, 690 (Tex. App.—Houston
[14th Dist.] 2005, no pet.).
Here, the trial court did not abuse its discretion by awarding Pro-Care less
than its requested amount of attorney’s fees. Kelsheimer filed three affidavits and
40 pages of billing records to support his contention that Pro-Care incurred
$53,194.01 in costs and fees for its representation in the underlying proceeding.
Whether these fees were reasonable, however, was a consideration left to the trial
court in its role as factfinder. The billing records show that 11 timekeepers worked
on the matter with hourly rates ranging from $175 to $700. As Quality Carriers
pointed out in its objections to Pro-Care’s fees evidence, certain billing records are
heavily redacted — some entries were completely redacted and do not show who
worked on the matter, how long they worked, or what tasks were completed.
The trial court was permitted to consider these billing records in conjunction
with the nature of the underlying proceeding which, based on the record, did not
proceed past the motion-to-dismiss stage. Pro-Care filed three motions to dismiss
Quality Carriers’ claims: two under Rule 91a and one under the TMLA. The first
Rule 91a motion was filed before Quality Carriers asserted any claims against Pro-
Care and sought a dismissal on that basis; this motion was withdrawn after Quality
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Carriers filed its amended petition. Pro-Care then filed a second Rule 91a motion
challenging the two claims Quality Carriers asserted against Pro-Care as well as
Quality Carriers’ standing to pursue its claims. Before the second motion was
ruled on, Pro-Care filed a third motion to dismiss under the TMLA asserting that
Quality Carriers did not satisfy the TMLA’s expert-report requirement. Each of
these motions (together totaling approximately 25 pages) presented straightforward
arguments that did not require a discussion or analysis of complex legal issues.
The trial court, in its role as factfinder, was entitled to evaluate the complexity and
necessity of these legal services in light of the $53,194.01 in claimed costs and
fees. Given the scope of this evidence, we conclude the trial court did not abuse its
discretion by awarding Pro-Care $10,000 in fees. See In re S.E.W., No. 01-18-
00310-CV, 2019 WL 1560795, at *4-5 (Tex. App.—Houston [1st Dist.] Apr. 11,
2019, no pet.) (mem. op.) (trial court did not abuse its discretion by awarding less
than the requested amount of attorney’s fees); Weaver v. Jamar, 383 S.W.3d 805,
813-14 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (same); Dumler v. Quality
Work by Davidson, No. 14-06-00536-CV, 2008 WL 89961, at *6-7 (Tex. App.—
Houston [14th Dist.] Jan. 10, 2008, no pet.) (mem. op.) (same).
Asserting the trial court’s attorney’s fees award was based “upon a whim,”
Pro-Care argues that the trial court took no notice of the documentary evidence in
the record. But the record does not support this contention. Kelsheimer’s third
affidavit and billing records were filed approximately four months before the trial
court signed the order awarding Pro-Care attorney’s fees. At the April 30, 2018
hearing on Pro-Care’s motion to modify, the trial court referred to the fees sought
by Pro-Care and the other health care providers as “outrageous,” suggesting it was
familiar with the amounts sought to be recovered and the purported justifications
therefor. Moreover, the trial court held a hearing on Pro-Care’s motions to dismiss
7
on February 9, 2018; both motions explicitly requested an award of attorney’s fees.
According to Pro-Care, no record was taken of this hearing. Without a reporter’s
record from this hearing, we presume the evidence at the hearing was relevant and
supports the trial court’s judgment awarding attorney’s fees. See In re M.K.M.L.,
No. 14-17-00010-CV, 2018 WL 1476340, at *4 (Tex. App.—Houston [14th Dist.]
Mar. 27, 2018, no pet.) (mem. op.); Brower v. Hearn, No. 14-07-00967-CV, 2009
WL 10220174, at *3 (Tex. App.—Houston [14th Dist.] Feb. 10, 2009, no pet.)
(mem. op.).
Pro-Care also asserts the trial court erred when it “refused to hear testimony
or argument from Pro-Care’s counsel” at the April 30, 2018 hearing. But Pro-Care
does not state what additional testimony or argument it would have provided with
respect to its request for attorney’s fees. Given the scope of evidence before the
trial court and the hearing held on Pro-Care’s motions to dismiss, we cannot
conclude that this action rendered the trial court’s attorney’s fees award an abuse
of discretion.
We overrule Pro-Care’s sole issue on appeal.
CONCLUSION
We affirm the trial court’s November 12, 2018 final judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Christopher, Bourliot, and Hassan.
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