                             NUMBER 13-11-00494-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

JOHN N. MASTIN,                                                              Appellant,


                                            v.

MICHAEL T. JELINEK, M.D.,                                                    Appellee.


                    On appeal from the 275th District Court
                          of Hidalgo County, Texas.


                         MEMORANDUM OPINION
                Before Justices Rodriguez, Garza and Perkes
                  Memorandum Opinion by Justice Garza
       Appellant John N. Mastin challenges the trial court’s judgment awarding $50,000

in attorney’s fees, as well as $17,000 in contingent appellate attorney’s fees, to appellee

Michael T. Jelinek, M.D. Dr. Jelinek raises one issue on cross-appeal. We affirm.
                                     I. BACKGROUND

       Beginning in 2003, Mastin, an attorney, represented the family of Eloisa Casas

and Casas’s estate in a medical negligence lawsuit against Rio Grande Regional

Hospital, Carlos Garcia-Cantu, M.D., and Dr. Jelinek. Within 180 days of filing suit,

Mastin served on the defendants a medical expert report contending that Drs. Garcia-

Cantu and Jelinek were negligent in failing to recognize that antibiotic medications were

not being given to Casas for a period of six days and that this negligence resulted in a

prolonged hospital stay and increased pain and suffering experienced by Casas. See

Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 TEX. GEN. LAWS 2039, 2064 (former

TEX. REV. CIV. STAT. ANN. art. 4590i, § 13.01), repealed by Act of June 2, 2003, 78th

Leg., R.S., ch. 204, § 10.09, 2003 TEX. GEN. LAWS 847, 884 (current version at TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351 (West 2011)).

       On March 9, 2004, Dr. Jelinek moved to dismiss the claims against him, alleging

that the expert report was inadequate in that it “wholly failed to explain any causal

connection between the alleged deviation from the applicable standard of care and

[Casas’s] alleged injuries.” The motion requested “sanctions against the Plaintiffs to

include:   (1) reasonable attorney’s fees and costs incurred by this Defendant; (2)

forfeiture of all applicable cost bonds; and (3) the dismissal of this action against this

Defendant with prejudice to the re-filing of such claims.” The trial court denied the

motion; however, several months later, the Casases non-suited their claims against

both individual doctors.

       The case against the hospital proceeded to trial and the plaintiffs prevailed. The

hospital and Dr. Jelinek then each filed appeals. In his appeal, Dr. Jelinek asserted that

the trial court erred by denying his motion to dismiss and by failing to award sanctions.


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We affirmed. Jelinek v. Casas, No. 13-06-00088-CV, 2008 Tex. App. LEXIS 5647, at

*25–29 (Tex. App.—Corpus Christi July 29, 2008) (mem. op.), rev’d, 328 S.W.3d 526

(Tex. 2010). The Texas Supreme Court, however, granted Dr. Jelinek’s petition for

review and a majority of the Court reversed the trial court’s judgment. 328 S.W.3d at

538–41.1 With respect to Dr. Jelinek, the majority found that the Casases’ expert report

was “conclusory” as to causation because “[i]t offers no more than a bare assertion that

Dr. Jelinek’s breach resulted in increased pain and suffering and a prolonged hospital

stay.” Id. at 540; but see id. at 543 (Jefferson, C.J., dissenting) (noting that in other

cases finding an inadequate medical expert report, “the trial court could not have

evaluated the claim’s merit without speculating about actions the defendant could have

taken to prevent injury,” but that “[n]o such speculation is required here” because the

expert report “states that had the antibiotics been administered from July 17 through

July 23, Eloisa Casas would have suffered less”). The Court remanded the cause “for

an award of attorney’s fees and costs under former article 4590i § 13.01(e) against the

Casases and their counsel.” Id. at 540.

       On remand, Dr. Jelinek filed a “Motion to Enter Order in Compliance with

Mandate” in which he requested that he be awarded “attorney’s fees, costs and a

dismissal in accordance with the directive of the Supreme Court of Texas.” The trial

court rendered an order commanding Mastin and his law office to pay attorney’s fees to

Dr. Jelinek in the amount of $50,000.              The order also provided for the following

appellate attorney’s fees, contingent on Dr. Jelinek’s success at each stage of the

proceedings: $6,000 for an appeal to this Court; $5,000 if a petition for review is filed

       1
          We also affirmed the trial court’s award of damages to the Casas family. Jelinek v. Casas, No.
13-06-00088-CV, 2008 Tex. App. LEXIS 5647, at *10–25 (Tex. App.—Corpus Christi July 29, 2008)
(mem. op.), rev’d, 328 S.W.3d 526 (Tex. 2010). The Texas Supreme Court reversed that part of the trial
court’s judgment as well. 328 S.W.3d at 532–38. The Casases are not parties to this appeal.

                                                   3
with the Texas Supreme Court; and $6,000 if full briefing on the merits is requested by

the Texas Supreme Court.

        This appeal followed.

                                            II. DISCUSSION

A.      Standard of Review and Applicable Law

        A trial court’s award of attorney’s fees is reviewed for an abuse of discretion.

Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 775 (Tex. App.—Corpus Christi

2007, no pet.) (op. on reh’g) (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998);

Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990) (per

curiam)). A trial court abuses its discretion when it acts arbitrarily and unreasonably or

without reference to guiding rules and principles. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

        Section 13.01 of former article 4590i of the Texas Revised Civil Statutes allowed

a defendant in a medical malpractice suit to seek dismissal of the suit and reasonable

attorney’s fees, to be assessed against a claimant or a claimant’s attorney, in cases

where the claimant failed to provide an adequate medical expert report. Act of May 30,

1977, 65th Leg., R.S., ch. 817, 1977 TEX. GEN. LAWS 2039, 2064 (repealed 2003).2 A

trial court abuses its discretion if it dismisses a claim under former section 13.01(e)

without awarding attorney’s fees to the defendant.                    Abilene Diagnostic Clinic v.

Downing, 233 S.W.3d 532, 535 (Tex. App.—Eastland 2007, pet. denied); see Estrello v.

Elboar, 965 S.W.2d 754, 759 (Tex. App.—Fort Worth 1998, no pet.). While the award of

        2
           The successor statute to section 13.01, Texas Civil Practice and Remedies Code section
74.351, is applicable only to actions filed on or after September 1, 2003. Act of June 2, 2003, 78th Leg.,
R.S., ch. 204, § 10.09, 2003 TEX. GEN. LAWS 847, 884, 898–99 (current version at TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351 (West 2011)). The prior statute therefore applies to this case. We note that this
Court has recently concluded that the successor statute “does not allow attorney’s fees and costs to be
assessed against the claimant’s attorney.” Robinson v. Garcia, No. 13-11-00263-CV, 2012 Tex. App.
LEXIS 4788, at *12 (Tex. App.—Corpus Christi June 14, 2012, pet. filed).

                                                    4
attorney’s fees is mandatory in the appropriate circumstances, former section 13.01(e)

gives the trial court the choice of whether to award fees “against the claimant or the

claimant's attorney.” Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 TEX. GEN.

LAWS 2039, 2064 (former TEX. REV. CIV. STAT. ANN. art. 4590i, § 13.01(e)) (repealed

2003).

B.       Analysis

         Mastin argues that the trial court erred in its award of attorney’s fees because (1)

Dr. Jelinek waived his right to seek attorney’s fees from Mastin because he only asked

for attorney’s fees to be assessed against the Casases, (2) Mastin was not a party to

the underlying lawsuit, and (3) the relief was not supported by the pleadings or

evidence.

         Mastin first contends that Dr. Jelinek waived his ability to have fees assessed

against Mastin. Waiver is defined as an intentional relinquishment of a known right or

intentional conduct inconsistent with claiming that right.       Jernigan v. Langley, 111

S.W.3d 153, 156 (Tex. 2003). Waiver is ordinarily a question of fact, but when the

surrounding facts and circumstances are undisputed, the question becomes one of law.

Id. at 156–57.

         Dr. Jelinek’s original 2004 motion for sanctions and dismissal asked specifically

for attorney’s fees to be assessed “against the Plaintiffs.”       Mastin argues that this

constituted a waiver of the right to recover fees from the plaintiff’s attorneys—i.e., from

him and his law firm. See Gurkoff v. Jersak, No. 02-07-101-CV, 2008 Tex. App. LEXIS

2677, at *10 (Tex. App.—Fort Worth Apr. 10, 2008, pet. denied) (mem. op.) (finding no

abuse of discretion where trial court awarded no attorney’s fees, despite “mandatory”

nature of former section 13.01(e), because defendant requested fees only from


                                              5
plaintiff’s attorneys, not from the plaintiffs themselves, and “the trial court always had

the discretion to not award fees against” the attorneys).

        We disagree that waiver has been demonstrated here.                       Although the 2004

motion for sanctions and dismissal did not explicitly request that fees be assessed

against Mastin, it was replete with references to former section 13.01(e), and it explicitly

set forth the statute’s provision that fees may be assessed against both the plaintiff and

plaintiff’s counsel.    Moreover, the 2011 “Motion to Enter Order in Compliance with

Mandate”—which is the motion that was granted by the judgment on appeal here—

requested an award of “attorney’s fees, costs and a dismissal in accordance with the

directive of the Supreme Court of Texas”; the supreme court’s 2010 mandate directed

the trial court to “award . . . attorney’s fees and costs consistent with this Court’s

opinion”; and its opinion, in turn, stated that the cause was to be remanded “for an

award of attorney’s fees and costs under former article 4590i § 13.01(e) against the

Casases and their counsel.” Jelinek, 328 S.W.3d at 540. Finally, we note that “for

implied waiver to be found through a party’s actions, intent must be clearly

demonstrated by the surrounding facts and circumstances.” Jernigan, 111 S.W.3d at

156. We cannot say that the record “clearly demonstrate[s]” Dr. Jelinek’s intent to waive

his right under former section 13.01(e) to collect attorney’s fees from Mastin. 3 We also

reject, on these grounds, Mastin’s argument that the trial court’s award of attorney’s

fees was unsupported by Dr. Jelinek’s pleadings. See TEX. R. CIV. P. 301.




        3
          This contrasts with the fact pattern considered in Gurkoff. See Gurkoff v. Jersak, No. 02-07-
101-CV, 2008 Tex. App. LEXIS 2677 (Tex. App.—Fort Worth Apr. 10, 2008, pet. denied) (mem. op.). In
that case, the defendant sought attorney’s fees against only the plaintiff’s attorneys—and not against the
deceased plaintiff’s estate—because the trial court’s jurisdiction over the estate was unclear. See id. at
*6. Accordingly, unlike here, there was no dispute in Gurkoff as to whether the defendant intended to
waive his right to collect attorney’s fees against a particular party.

                                                    6
       Mastin next argues that the award of attorney’s fees against him was erroneous

because he was never made a party to the underlying suit, and “[a] trial court cannot

enter a binding judgment against a party unless the court has personal jurisdiction over

that party.”   Again, we disagree.   The award of attorney’s fees against a plaintiff’s

attorney under former section 13.01(e) is in the form of a sanction. Act of May 30,

1977, 65th Leg., R.S., ch. 817, 1977 TEX. GEN. LAWS 2039, 2064 (former TEX. REV. CIV.

STAT. ANN. art. 4590i, § 13.01(e)) (repealed 2003) (stating that, if the expert report

requirement is not met, the court must “enter an order as sanctions” dismissing the case

and granting the defendant its costs and attorney’s fees); see Am. Transitional Care

Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).         And, it is well-

established that a trial court possesses the inherent authority to sanction an attorney’s

behavior. See, e.g., Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 732 (Tex. 1997).

       Finally, Mastin contends that the trial court’s award was unsupported by the

evidence. He contends, specifically, that there was no evidence showing that the fees

should have been assessed against him, rather than against the Casases. Dr. Jelinek

contends, on the contrary, that there was no evidence showing that the fees should

have been assessed against the Casases, rather than against Mastin. Our review of

the record—in particular, the transcript of the March 22, 2011 hearing at which the trial

court heard arguments on Dr. Jelinek’s motion to enforce the supreme court’s

mandate—sheds little light on the issue.       The bulk of the testimony offered by the

attorneys concerned the reasonableness of the fees allegedly incurred by Dr. Jelinek. It

did not concern the issue of who should be ordered to pay the fees. In any event, we

note that the Texas Supreme Court has indicated that the failure to comply with the




                                           7
medical expert report requirement4 is, by and of itself, conduct amenable to sanctions.

In Palacios, the Court noted that, in enacting former section 13.01(e),

        [t]he Legislature has determined that failing to timely file an expert report,
        or filing a report that does not evidence a good-faith effort to comply with
        the definition of an expert report, means that the claim is either frivolous,
        or at best has been brought prematurely. . . . This is exactly the type of
        conduct for which sanctions are appropriate.

46 S.W.3d at 877; see Clinica Santa Maria v. Martinez, No. 13-09-573-CV, 2010 Tex.

App. LEXIS 4788, at *14, *16 (Tex. App.—Corpus Christi June 24, 2010, pet. denied)

(mem. op.) (noting that former section 13.01(e) “gave the trial court discretion with

respect to whom the court should sanction” and stating that “we will not disturb the trial

court’s ruling with respect to who should pay the fees.”). Under these circumstances,

we conclude that the trial court’s assessment of attorney’s fees against Mastin, rather

than against his clients, was supported by the evidence appearing in the record.

        We overrule Mastin’s issues.

C.      Cross-Appeal

        On cross-appeal, Dr. Jelinek contends that the trial court erred in failing to award

the total amount of attorney’s fees that he requested.                  He notes that an award of

attorney’s fees is mandatory under former section 13.01(e) if no adequate medical

expert report is timely filed. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977

TEX. GEN. LAWS 2039, 2064 (former TEX. REV. CIV. STAT. ANN. art. 4590i, § 13.01(e))

(repealed 2003). Dr. Jelinek notes that his attorney, Ronald G. Hole, testified that

$70,786.50 was a reasonable and necessary amount of fees for handling the case up


        4
          Mastin correctly notes that the trial court, this Court, and three justices of the Texas Supreme
Court believed that the expert report requirement had, in fact, been satisfied with respect to the Casases’
claims against Dr. Jelinek. However, a majority of the Texas Supreme Court concluded otherwise, and
we are bound by their judgment. See City of Mission v. Cantu, 89 S.W.3d 795, 809 n.21 (Tex. App.—
Corpus Christi 2002, no pet.) (“As an intermediate appellate court, we are bound to follow the expression
of the law as stated by the Texas Supreme Court.”).

                                                    8
until the day of the hearing; that $6,000 is a reasonable and necessary amount for an

appeal to this Court; that $5,000 is a reasonable and necessary amount for a petition for

review in the Supreme Court; and $6,000 is a reasonable and necessary amount to

argue the merits in the Supreme Court should a petition for review be granted. Dr.

Jelinek claims that this testimony was clear and uncontroverted and so must be taken

as true as a matter of law. See McMillin v. State Farm Lloyds, 180 S.W.3d 183, 210

(Tex. App.—Austin 2005, pet. denied) (holding that, “where trial counsel’s testimony

concerning attorney’s fees is clear, positive and direct, and uncontroverted, it is taken

as true as a matter of law” and “in such instances, appellate courts will reverse a denial

or minimization of attorney’s fees and render judgment for attorney’s fees in the amount

proved”).

       We cannot conclude that Hole’s testimony as to the reasonableness of the fee

amounts was uncontroverted. Mastin cross-examined Hole on a range of issues and he

testified that Hole “has in my opinion abused the discovery process during the course of

this particular case.” Mastin contends that he “reached out to [Hole] at least five times

in an attempt to set a mutually agreeable time and date for [Dr.] Jelinek’s deposition”;

that he received no response from Hole; that he then filed notices of intention to depose

Dr. Jelinek; and that Hole moved to quash those notices on the grounds that Mastin did

not contact Hole to determine whether Hole was available on the noticed dates. Mastin

further testified:

       I can say during my extensive litigation experience only one other case
       have I ever experienced an attorney that is as obstructive as Mr. Hole. I
       have during the course of handling probably a couple of thousand cases
       collectively have not faced or had as many sanctions filed against my
       clients or myself as in this one particular case that Mr. Hole did. I find his
       conduct abusive. I find it non cooperative. And part of during the course
       of the litigation in this case Mr. Hole did in my opinion everything he could
       to prolong it, extract it, delay it, and to cause cost to all other parties in the

                                               9
       case, and cost to his own client in this particular case, or the insurance
       company for the client. . . . Mr. Hole could get the trophy for the person
       who causes the most time and expense and abuses the discovery process
       to my experience . . . .

       Considering this testimony, we conclude that the trial court was well within its

discretion to determine that a reasonable and necessary amount of attorney’s fees in

this case was less than the amount testified to by Hole. See Mercier, 214 S.W.3d at

775 (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41–42 (Tex. 1989))

(noting that, when reviewing matters reserved for the trial court’s discretion, we may not

substitute our own judgment for that of the trial court); see also Clinica Santa Maria,

2010 Tex. App. LEXIS 4788, at *12 (“[E]ven if there is no direct testimony to contradict

the amount testified to, a trial court still has the discretion to award a lesser amount if it

has any reason to determine that the award was unreasonable or unwarranted.”). Dr.

Jelinek’s issue on cross-appeal is overruled.

                                      III. CONCLUSION

       The trial court’s judgment is affirmed.


                                                  _______________________
                                                  DORI CONTRERAS GARZA,
                                                  Justice

Delivered and filed the
21st day of March, 2013.




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