
                              NO. 07-10-0361-CV

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL E

                                MAY 13, 2011

                       ______________________________


                   COVENANT HEALTH SYSTEM, D/B/A COVENANT
                 MEDICAL CENTER, AND D/B/A COVENANT HEART &
                 VASCULAR INSTITUTE AND D/B/A COVENANT HEART
                   INSTITUTE AND D/B/A COVENANT WELL HEART
                             SERVICES, APPELLANT

                                     V.

                 LINDA BARNETT AND ROBERT BARNETT, APPELLEES


                      _________________________________

               FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2010-550,709; HONORABLE RUBEN GONZALES REYES, JUDGE

                       _______________________________

Before CAMPBELL and PIRTLE, JJ. and BOYD, S.J.[1]

                      CONCURRING AND DISSENTING OPINION

        I agree with the majority in its conclusion that  Appellees'  claims
are health care liability claims and that the trial court erred  in  denying
Appellant's motion to dismiss under Chapter 74 of the Texas  Civil  Practice
and Remedies Code.  I respectfully disagree, however, with the  decision  to
remand this matter back to the trial court for the  purpose  of  determining
Appellant's request for an award of attorney's fees.

                          Waiver of Attorney's Fees

      By its prayer, contained within both its original  and  reply  briefs,
Appellant requests this Court to remand this cause to the trial court for  a
determination  of  attorney's  fees  to  be  awarded  pursuant  to   section
74.351(b)(1) of the Texas Civil Practice  and  Remedies  Code.   Other  than
contending that the penalties contained in  that  section  are  "mandatory,"
neither of Appellant's two briefs contain any discussion  whatsoever  as  to
why a remand is necessary or appropriate.  Rule 38.1(h) of the  Texas  Rules
of Appellate Procedure requires that the body of Appellant's  brief  contain
a succinct, clear, and accurate statement of the arguments made  in  support
of any relief requested.  Failure to advance an  argument,  cite  authority,
make record references or otherwise brief an issue effects a waiver of  that
issue on appeal.  Assisted Living Concepts, Inc. v. Stark,  No.  07-10-0228-
CV, 2010 Tex. App. LEXIS 9326, at *11 (Tex.App.--Amarillo Nov. 23, 2010,  no
pet.) (reversing the trial court for failure to grant a  Chapter  74  motion
to dismiss and then denying a request to remand on the issue  of  attorney's
fees where the appellant failed to brief the issue); Sunnyside  Feedyard  v.
Metro. Life Ins. Co., 106  S.W.3d  169,  173  (Tex.App.--Amarillo  2003,  no
pet.).  Accordingly, I would find that Appellant waived the issue.
                       No Evidence of Attorney's Fees
      Even if the issue was not waived, a review of the record in this  case
reveals that Appellant offered no evidence of attorney's  fees,  reasonable,
incurred or otherwise.  The courts of  this  State  have  consistently  held
that an award of attorney's fees must be supported  by  competent  evidence,
Torrington Co. & Ingersoll-Rand Corp. v. Stutzman, 46 S.W.3d 829, 852  (Tex.
2000), and  an  award  of  attorney's  fees  without  sufficient  supporting
evidence is an abuse of discretion.   Sharp  v.  Broadway  Nat'l  Bank,  784
S.W.2d 669, 672 (Tex. 1990).

      Furthermore, due to this complete  absence  of  evidence  of  a  vital
fact, any award of attorney's  fees  would  be  subject  to  reversal  on  a
subsequent appeal.  King Ranch, Inc. v. Chapman, 118 S.W.3d 742,  751  (Tex.
2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 15 L.Ed.2d  711  (2004).
Because this Court is required to render the judgment that the  trial  court
should have rendered, as to the issue of attorney's fees, I would  render  a
take-nothing judgment.  See Tex. R. App. P. 43.2(c).

                           No Right to Relitigate

      To overcome the complete lack of evidence, as  I  read  the  majority,
Appellant has the right to return  to  the  trial  court  for  the  "limited
purpose" of affording them a second chance to offer evidence  of  attorney's
fees.  In doing so, the majority ignores the precedent of this  Court.   See
Assisted Living Concepts, Inc., 2010 Tex. App.  LEXIS  9326.   The  majority
finds support for this unconventional procedure  in  three  cases,  each  of
which is either distinguishable from the facts of this case or founded  upon
an invalid syllogism.

      In Gingrich v. Scarborough, No. 09-09-0211-CV, 2010  Tex.  App.  LEXIS
3139 (Tex.App.--Beaumont Apr. 29, 2010, no pet.) (mem. op.),  the  appellate
court cites section 74.351(b) of the Texas Civil Practice and Remedies  Code
as the basis for remanding the question of  attorney's  fees  to  the  trial
court for an award of attorney's fees  when,  in  reality,  that  particular
section says nothing about remands.   To  the  contrary,  section  74.351(b)
specifically speaks to the judgment  a  trial  court  should  enter  at  the
conclusion of an original hearing on a motion to dismiss.

      Likewise, the second case relied upon by  the  majority,  Thoyakulathu
v. Brennan, 192 S.W.3d 849 (Tex.App.--Texarkana 2006, no pet.),  is  equally
non-precedential because, from a reading of that opinion, you are unable  to
determine whether the appellant  offered  evidence  of  attorney's  fees  in
conjunction with their motion  to  dismiss.   Finally,  the  majority  cites
Garcia  v.  Gomez,  319  S.W.3d  638  (Tex.  2010),   which   is   factually
distinguishable from this case.  In Garcia, unlike  the  case  at  bar,  the
appellant did offer evidence of reasonable attorney's fees.  When the  trial
court granted the motion to dismiss but failed  to  award  attorney's  fees,
the  health  care  provider  appealed.   The  court  of  appeals   affirmed,
concluding that the trial court had not abused its discretion in failing  to
award attorney's fees because  the  record  contained  no  evidence  of  the
reasonable  fees  incurred  by  the  appellant  in  defense  of  the  claim.
"Because there [was] some evidence in [that] case that attorney's fees  were
both incurred and reasonable," the Supreme Court remanded the  case  to  the
trial court so that it could exercise  its  discretion  in  determining  the
appropriate  award.   Id.  at  643.   While  the  dissent  in   Garcia   may
characterize that opinion as  giving  the  appellant  "a  second  chance  to
satisfy his burden  of  proof,"  the  majority  opinion  never  specifically
authorizes the trial court to allow the presentation of new evidence on  the
issue.  Id.

      Where, as  here,  no  evidence  of  attorney's  fees  was  offered  in
conjunction with the section 74.351(b) motion  to  dismiss,  to  remand  for
further proceedings gives Appellant a "second bite at the  apple."   Because
further proceedings are not necessary for the rendition of the judgment  the
trial  court  should  have  rendered,  I  would   follow   the   traditional
jurisprudence of this State and the  precedent  of  this  Court,  and  would
reverse and render rather than reverse and remand.



                                          Patrick A. Pirtle
                                                 Justice
-----------------------
[1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting  by
assignment.  Tex. Gov(t Code Ann. ( 75.002(a)(1) (West 2005).


