                            NUMBER 13-07-00608-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


DOCTORS HOSPITAL
AT RENAISSANCE, LTD.,                                                      Appellant,

                                          v.

ELIDA RAMIREZ, INDIVIDUALLY, AND
AS REPRESENTATIVE OF THE ESTATE
OF ENRIQUETA GOMEZ, ET AL.,                                                Appellees.


              On appeal from the County Court at Law No. 4
                       of Hidalgo County, Texas.


                         MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Vela
                 Memorandum Opinion by Justice Garza

      Appellant, Doctors Hospital at Renaissance, Ltd. (“Doctors Hospital”), appeals from

a judgment dismissing a health care liability claim brought by appellees, Elida Ramirez,

individually, and as representative of the estate of Enriqueta Gomez, Cruz Gomez, Diana
Contreras, Guadalupe Salazar, Joe Gomez, Josefa Gomez, Juan Gomez, Leo Gomez,

Manuela G. Reyna, Pablo Gomez, Pedro Gomez, and Virginia Gonzalez (collectively

“Ramirez”). Specifically, Doctors Hospital takes issue with the trial court’s failure to award

it attorney’s fees upon the dismissal of Ramirez’s claim. By one issue, Doctors Hospital

contends that the trial court abused its discretion in refusing to award it reasonable

attorney’s fees pursuant to section 74.351 of the civil practice and remedies code. See

TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(b) (Vernon Supp. 2007). We reverse and

remand to the trial court to determine the appropriate amount of attorney’s fees.

                             I. FACTUAL AND PROCEDURAL BACKGROUND

        The underlying action arose from a slip and fall accident where Enriqueta Gomez,

now deceased, sustained a hip fracture, which immobilized her and allegedly led to her

death.1 On March 30, 2007, Ramirez filed their second amended original petition asserting

claims for, among other things, premises liability based in negligence, negligence under

the Texas Medical Liability and Insurance Improvement Act (“MLIIA”), loss of consortium,

wrongful death, and a survival action. Doctors Hospital responded by filing a plea in

abatement and an original answer on May 3, 2007. In this filing, Doctors Hospital

contended that Ramirez failed to provide it with notice and authorization of their health care

liability claim as required by sections 74.051 and 74.052 of the civil practice and remedies

code, see id. §§ 74.051, 74.052 (Vernon 2005), and it denied all of Ramirez’s allegations.

        On May 16, 2007, Ramirez provided Doctors Hospital with notice of their intent to

file the expert report of Robert Montgomery, M.D. See id. § 74.351(a). On July 27, 2007,
        1
          Originally, Ram irez brought suit against El Patio Adult Day Care, Inc., but later joined Retam a Manor
Nursing Center, South Texas Health System d/b/a McAllen Medical Center, Doctors Hospital at Renaissance,
Ltd. (“Doctors Hospital”), and LifeCare Hospitals of South Texas, Inc. Only Doctors Hospital is a party to this
appeal.
                                                       2
Ramirez filed another notice of intent to file a second expert report compiled by Darryl L.

Stinson, M.D. See id. Doctors Hospital objected to both notices. Ramirez did not file an

expert report.

         Doctors Hospital subsequently filed a motion to dismiss Ramirez’s suit on August

1, 2007. In its motion to dismiss, Doctors Hospital contended that Ramirez failed to comply

with the 120-day statutory period for producing expert reports. See id. The trial court

conducted a hearing on August 15, 2007, and ultimately granted Doctors Hospital’s motion

to dismiss on September 10, 2007.2 In granting Doctors Hospital’s motion to dismiss, the

trial court awarded $5,000 in attorney’s fees for a successful appeal in this Court, $3,000

in attorney’s fees if a petition for review is filed with the Texas Supreme Court, and $4,000

in attorney’s fees if the Texas Supreme Court grants the petition for review. However, the

trial court did not award reasonable and necessary attorney’s fees for handling the matter

up to dismissal. The trial court also severed all causes of action asserted by Ramirez and

Doctors Hospital into a separate cause number and explicitly noted that the order was a

“final applicable [sic] order.” Doctors Hospital timely filed its notice of appeal on October

5, 2007.

                                            II. STANDARD OF REVIEW

         We review the trial court’s order dismissing Ramirez’s health care liability claims and

          2
            On appeal, Ram irez argues that the trial court im properly granted the m otion to dism iss filed by
Doctors Hospital because Doctors Hospital waived the application of the Texas Medical Liability and Insurance
Im provem ent Act (“MLIIA”) and its 120-day expert report requirem ent. See T EX . C IV . P RAC . & R EM . C OD E A N N .
§ 74.351(a) (Vernon Supp. 2007). Specifically, Ram irez alleges that Doctors Hospital willfully, knowingly, and
intentionally failed to provide m edical records on four occasions which prevented them from producing their
expert reports within 120 days of filing suit. However, we need not address this contention because Ram irez
did not file a notice of cross-appeal taking issue with the propriety of the trial court’s grant of Doctors Hospital’s
m otion to dism iss. See T EX . R. A PP . P. 25.1(c) (“A party who seeks to alter the trial court’s judgm ent or other
appealable order m ust file a notice of appeal.”). The sole issue in this case pertains to the trial court’s award
of attorney’s fees.
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refusing to grant Doctors Hospital attorney’s fees under an abuse of discretion standard.

See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001);

see also Dail v. Couch, 99 S.W.3d 390, 391 (Tex. App.–Corpus Christi 2003, no pet.)

(noting that an award of attorney’s fees is generally reviewed under an abuse of discretion

standard). A trial court abuses its discretion when it acts arbitrarily and unreasonably,

without reference to guiding rules or principles, or misapplies the law to the established

facts of the case. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985).

                                        III. ANALYSIS

         By its sole issue on appeal, Doctors Hospital contends that the trial court abused

its discretion by refusing to award it reasonable and necessary attorney’s fees for handling

the matter up to the date of dismissal. Specifically, Doctors Hospital argues that section

74.351 of the civil practice and remedies code mandates that the trial court award

reasonable attorney’s fees and costs of court incurred by the physician or health care

provider in conjunction with the dismissal of the health care liability claim for failure to

comply with the expert report requirements. See TEX . CIV. PRAC . & REM . CODE ANN . §

74.351; see also Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006)

(holding that with few exceptions, a party cannot recover attorney’s fees unless permitted

by statute or contract).

         Conversely, Ramirez asserts that Doctors Hospital did not prove that any attorney’s

fees were owed or that it was entitled to attorney’s fees under the Anderson test. See

Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). Ramirez



                                              4
also argues that although the MLIIA calls for the dismissal of a claim for failure to comply

with the expert report requirements, the Texas Rules of Civil Procedure does not authorize

the dismissal of a claim by a “motion to dismiss.”3

a. Applicable Law

         Section 74.351(a) provides that:

         [i]n a healthcare liability claim, a claimant shall, not later than the 120th day
         after the date the original petition was filed, serve on each party or the party’s
         attorney one or more expert reports, with a curriculum vitae of each expert
         listed in the report for each physician or health care provider against whom
         a liability claim is asserted.4

TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a). Section 74.351(b) states that in the event

that a plaintiff does not comply with the 120-day time period, the trial court, on the motion

of the affected physician or health care provider, “shall . . . 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

prejudice to the refiling of the claim.” Id. § 74.351(b) (emphasis added).

b. Discussion

         As previously mentioned, the trial court failed to award Doctors Hospital attorney’s

fees for services provided up to the point of dismissal. At the August 15, 2007 hearing,

         3
          On appeal, Ram irez adm its that “this question (which procedural vehicle is best used to dism iss a
MLIIA claim ) is not well presented here, and indeed is m oot within the current context because neither party
to this appeal contests the dism issal of Doctors’ [sic] Hospital.” Notwithstanding Ram irez’s claim , the Texas
Suprem e Court has recognized the use of a m otion to dism iss in this context. See Lewis v. Funderburk, No.
06-0518, 2008 Tex. LEXIS 312, at **9-10 (Tex. Apr. 11, 2008) (O’Neill, J., concurring). Furtherm ore, as we
have previously noted, Ram irez has not filed a notice of cross-appeal taking issue with the propriety of the trial
court’s granting of Doctors Hospital’s m otion to dism iss. See T EX . R. A PP . P. 25.1(c).

         4
         The parties do not dispute that the underlying claim s were health care liability claim s or that section
74.351 applies in considering the trial court’s award of attorney’s fees. See T EX . C IV . P RAC . & R EM . C OD E A N N .
§§ 74.001(a)(13) (Vernon 2005), 74.351.



                                                            5
Ronald Hole, counsel for Doctors Hospital, testified as to the issue of attorney’s fees. Hole

testified that he was familiar with the usual and customary terms and fees associated with

handling medical negligence cases in Hidalgo County, Texas. Hole further testified that

he personally worked on this case from the beginning and that a reasonable and necessary

fee for handling the case up to the point of dismissal was $9,840. Hole noted that in

deriving this figure, he charged $200 per hour for forty-nine hours of work. In addition,

Hole stated that: (1) if the case was to be appealed to this Court, a reasonable and

necessary fee would be $10,000; (2) if a petition for review was filed with the Texas

Supreme Court, then a reasonable and necessary fee would be $6,000; and (3) if the

petition was granted by the Texas Supreme Court, a reasonable and necessary fee would

be $8,000.     Ramirez neither cross-examined Hole nor presented any testimony

controverting his attorney’s fee calculations.

       In Arthur Anderson & Co., the Texas Supreme Court intimated eight factors to

consider when determining the reasonableness of attorney’s fees. 945 S.W.2d at 818.

These factors are:

       (1) the time and labor required, the novelty and difficulty of the questions
       involved, and the skill required to perform the legal service properly;

       (2) the likelihood . . . that the acceptance of the particular employment will
       preclude other employment by the lawyer;

       (3) the fee customarily charged in the locality for similar legal 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;



                                              6
       (7) the experience, reputation, and ability of the lawyer or lawyers performing
       the services; and

       (8) whether the fee is fixed or contingent on results obtained or uncertainty
       of collection before the legal services have been rendered.

Id. Contrary to Ramirez’s assertions, Hole’s testimony established several of the Anderson

prongs, including: (1) the time and labor required; (2) the fee customarily charged in the

locality for similar legal services; and (3) amount involved and results obtained. See id.;

see also Falls County Water Control & Improvement Dist. No. 1 v. Haak, 220 S.W.3d 92,

94 (Tex. App.–Waco 2007, no pet.) (holding that the trial court is not required to receive

evidence on all eight factors outlined in Arthur Anderson & Co. and that the trial court may

also consider 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 in determining the issue of attorney’s fees); Hays & Martin,

L.L.P. v. Ubinas-Brache, 192 S.W.3d 631, 636 (Tex. App.–Dallas 2006, pet. denied).

Based on the foregoing, we conclude that the trial court had sufficient evidence before it

to determine reasonable attorney’s fees within the context of section 74.351. See TEX . CIV.

PRAC . & REM . CODE ANN . § 74.351(b).

       Where an expert report does not satisfy the statutory requirements, the trial court

has no discretion but to (1) grant the dismissal of the lawsuit, and (2) award reasonable

attorney’s fees and costs. See Palacios, 46 S.W.3d at 877 (“if the plaintiff fails within the

time allowed either to provide the expert reports and curriculum vitae, or to nonsuit . . . the

trial court must sanction the plaintiff by dismissing the case with prejudice, awarding costs

and attorney’s fees to the defendant . . . .”) (analyzing the predecessor to the current



                                              7
version of the MLIIA, former article 4590i, section 13.01(d) of the Texas Revised Civil

Statutes); see also Trevino v. Carrizales, No. 13-05-556-CV, 2006 Tex. App. LEXIS 7236,

at *1 (Tex. App.–Corpus Christi Aug. 17, 2006, no pet.) (“Although the trial court has

discretion to set the amount of reasonable attorney’s fees, the court may not, in

circumstances such as these, completely deny a duly filed motion for attorney’s fee’s [sic]

and costs of court.” (Internal citations omitted.)). Moreover, section 74.351(b) provides that

the trial court “shall . . . enter an order” awarding “reasonable attorney’s fees and costs of

court incurred by the physician or health care provider . . . .” TEX . CIV. PRAC . & REM . CODE

ANN . § 74.351(b). The term “shall” imposes a mandatory duty on the trial court. See TEX .

GOV’T CODE ANN . § 311.016(2) (Vernon 1998); see also Mitchell v. Hancock, 196 S.W. 694,

700 (Tex. Civ. App.–Fort Worth 1917, no writ) (“[T]he ordinary meaning of ‘shall’ or ‘must’

is of mandatory effect . . . .”). Therefore, the trial court was not permitted to deny Doctors

Hospital attorney’s fees for handling the matter up to the point of dismissal. See TEX . CIV.

PRAC . & REM . CODE ANN . § 74.351(b).

       Because Hole testified as to the reasonableness of attorney’s fees in this matter and

because section 74.351 mandates reasonable attorney’s fees upon a failure to comply with

the expert report requirements, we conclude that the trial court abused its discretion in

refusing to award Doctors Hospital attorney’s fees for handling the matter up to the point

of dismissal. See id. § 74.351(b); see also Vanderwerff v. Beathard, 239 S.W.3d 406, 409

(Tex. App.–Dallas 2007, no pet.) (“Attorney’s fees and costs of court are mandatory under

the MLIIA when a claimant fails to file an expert report on a health care liability claim.”).

Accordingly, we sustain Doctors Hospital’s sole issue and remand to the trial court to



                                              8
determine reasonable attorney’s fees up to the time of dismissal.

                                     IV. CONCLUSION

       We reverse the judgment of the trial court as it pertains to attorney’s fees, and we

remand to the trial court to determine the appropriate amount of attorney’s fees.



                                                ______________________________
                                                DORI CONTRERAS GARZA,
                                                Justice

Memorandum Opinion delivered and
filed this the 10th day of July, 2008.




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