                In the
           Court of Appeals
   Second Appellate District of Texas
            at Fort Worth
         ___________________________
              No. 02-18-00234-CV
         ___________________________

IN THE ESTATE OF JENNIE M. STOKES, DECEASED



        On Appeal from the Probate Court
               Denton County, Texas
        Trial Court No. PR-2009-00220-02


        Before Kerr, Birdwell, and Bassel, JJ.
       Memorandum Opinion by Justice Kerr
                           MEMORANDUM OPINION

      Plaintiff–Appellee Mayrita J. Roberts Hillman sued multiple defendants for

conspiring to obtain her elderly mother’s property, adding as a defendant Appellee

Clark W. Brazil, M.D., the medical doctor who had long cared for her mother, Jennie

M. Stokes. Hillman filed no chapter 74 expert report under the Texas Medical Liability

Act (TMLA),1 nor did Dr. Brazil move to dismiss on that basis after 120 days had

passed without an expert report, as the statute allowed him to do.2 Instead, Dr. Brazil

participated in merits discovery for some 18 months before moving to dismiss on the

ground that Hillman had in reality lodged a healthcare-liability claim against him

despite her artful pleadings and thus an expert report was required but had not been

timely provided.3

      The trial court denied Dr. Brazil’s motion to dismiss, but we reversed and

rendered in part, holding that Hillman’s claims against him should be dismissed with

      1
       Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001–.507.
      2
       Hillman sued Dr. Brazil in February 2012, and he answered the lawsuit a
month later, in March. Under chapter 74, Hillman then had 120 days to file an expert
report after Dr. Brazil responded to the lawsuit, or until July 2012. See id. § 74.351(a).
Although Dr. Brazil could have moved for dismissal under section 74.351 after the
120-day period came and went without an expert report, he did not do so until
October 2013.
      3
       Dr. Brazil asserted that he could not tell that a healthcare-liability claim was
involved until Hillman was deposed by one of his codefendants and he began to
research the TMLA expert-report issue after hearing Hillman testify. Even so, more
than two months passed before Dr. Brazil moved to dismiss; in the interim, his lawyer
attended six more depositions, including Dr. Brazil’s.


                                            2
prejudice under TMLA section 74.351(b)(2). See Brazil v. Hillman, No. 02-13-00441-

CV, 2014 WL 4770722, at *5 (Tex. App.—Fort Worth Sept. 25, 2014, no pet.) (mem.

op.); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2). We remanded only for

the trial court to decide how much Dr. Brazil should recover in statutorily mandated

“reasonable attorney’s fees and costs of court incurred,” as section 74.351(b)(1)

provides. See Brazil, 2014 WL 4770722, at *5; see also Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(b)(1).

      On remand, the trial court conducted a three-day bench trial on the issue of

attorney’s fees. Almost all the fee testimony was from each side’s expert. One issue

that was disputed throughout the trial was whether the lodestar method 4 applied to

the entire attorney’s-fee award under section 74.351. Relying on the lodestar method,

Dr. Brazil presented evidence and testimony from his expert and trial counsel, both of

whom opined that Dr. Brazil had incurred over $100,000 in attorney’s fees. In

contrast, Hillman’s expert testified that because of TMLA section 74.351(s)’s

discovery-restricting provisions, applying the lodestar method to Dr. Brazil’s

attorney’s fees as a whole was “mixing apples and oranges” and that the reasonable

and necessary amount of attorney’s fees that Dr. Brazil had incurred and that were

recoverable was $38,796.88. The attorney’s-fee trial also included much back and

      4
       By convention, the lodestar method involves multiplying the number of hours
reasonably expended by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424,
433, 103 S. Ct. 1933, 1939 (1983); El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex.
2012).


                                           3
forth over whether Dr. Brazil should recover “reasonable” fees—the statutory

language—as opposed to fees that were “reasonable and necessary.” 5

       At the trial’s conclusion, the trial court ruled from the bench that Dr. Brazil

should recover $44,335.6 The trial court then entered findings of fact and conclusions

of law that referred in passing to the Arthur Andersen factors used to determine the

reasonableness and necessity of attorney’s fees. See Arthur Andersen & Co. v. Perry

Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (op. on reh’g) (setting out eight factors

used to adjust a base lodestar rate up or down). The trial court’s findings and

conclusions did not specifically address the lodestar method, nor did they tether the

trial court’s unilateral decision to add $6,000 to the fee award to any facts or legal

analysis.

       The Texas Supreme Court has recently provided new guidance to litigants and

courts on how to assess attorney’s fees in cases involving a fee-shifting statute or

       5
        It was the opinion of Dr. Brazil’s expert, for example, that his task was to
determine reasonable and necessary fees, wholly apart from TMLA section
74.351(b)(1)’s use of the single word “reasonable.” Maintaining a distinction between
the two concepts continued through Dr. Brazil’s appellate briefing in which he noted,
for example, that “the attorney’s fees provisions of the TMLA do[] not require that
the fees be both reasonable and necessary, but rather, only reasonable.”
       6
        The trial court relied largely on Hillman’s expert’s opinion but subtracted,
without explanation, the $461.88 in court costs for Hillman’s deposition that her
expert had approved. Then, from the bench the trial court added an extra $6,000 in
attorney’s fees for reasons it did not explain, saying only that “the breakdown on that
[$44,335] is $21,335, which is an additional 20 hours of time [that is, $6,000] for [Dr.
Brazil’s attorney] that [Hillman’s expert] did not allow that the Court does allow. The
[$]20,000 for the appeal and, in addition, the [$]3,000 for the [Hillman] deposition,
which comes to a total of $44,335.”

                                           4
contract. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No. 16-0006,

2019 WL 1873428, at *8–26 (Tex. Apr. 26, 2019). There, the supreme court

recognized that “Texas law has developed with references to the Arthur Andersen

method (sometimes referred to as the ‘traditional’ method) and the lodestar method

for proving the reasonableness and necessity of attorney’s fees.” Id. at *13. But despite

the different terminology—which Texas courts have long kept separate—the supreme

court clarified that “the lodestar method developed as a ‘short hand version’ of the

Arthur Andersen factors and was never intended to be a separate test or method.” Id.

Moreover, Rohrmoos Venture also instructs that “reasonable” fees are the same as

“reasonable and necessary” fees, observing that the distinction between the two

phrasings is “immaterial.” Id. at *12. “When a claimant wishes to obtain attorney’s

fees from the opposing party, the claimant must prove that the requested fees are

both reasonable and necessary.” Id. The elements of both “reasonableness” and

“necessity” are “questions of fact to be determined by the fact finder and act as limits

on the amount of fees that a prevailing party can shift to the non-prevailing party.” Id.

      Because this recent supreme court authority has materially affected and

provided guidance to central questions in the underlying trial for attorney’s fees here,7


      7
       We recognize that while perhaps the ultimate question might be whether and
to what extent Dr. Brazil can recover fees associated with merits discovery, our
disposition here does not require or even permit us to resolve that question at this
point; the parties—and this court—first need the trial court to reconsider and
determine Dr. Brazil’s “reasonable attorney’s fees and costs of court incurred,” as
section 74.351(b)(1) provides, in light of Rohrmoos Venture. See In re H.B., No. 2-06-

                                            5
we reverse the judgment and remand the case for another trial to determine an

appropriate award to Dr. Brazil on his claim for fees. See Toledo v. KBMT Operating Co.,

LLC, No. 09-17-00265-CV, 2019 WL 2455270, at *1, *6 (Tex. App.—Beaumont June

13, 2019, no pet. h.) (reversing and remanding judgment for attorney’s fees in light of

“the Texas Supreme Court’s recent clarification in Rohrmoos Venture v. UTSW DVA

Healthcare, LLP”).

      Accordingly, we reverse and remand for a new trial.




                                                      /s/ Elizabeth Kerr
                                                      Elizabeth Kerr
                                                      Justice

Delivered: August 28, 2019




102-CV, 2006 WL 3438193, at *2 (Tex. App.—Fort Worth Nov. 30, 2006, no pet.)
(mem. op. on reh’g) (“Courts are not authorized to render advisory opinions on issues
not necessary to a disposition of an appeal.”).


                                           6
