                         NUMBER 13-10-00305-CV

                         COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

WILFREDO AVILES, M.D. AND
WILFREDO AVILES, M.D., P.A.,                                        Appellants,

                                       v.

ALBERT AGUIRRE AND LOUANN AGUIRRE,
INDIVIDUALLY AND AS NEXT FRIENDS OF
ALBERT AGUIRRE, JR., A MINOR CHILD,                                  Appellees.


                 On appeal from the 370th District Court
                       of Hidalgo County, Texas.


                      MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides
     By one issue, appellants Wilfredo Aviles, M.D. and Wilfredo Aviles M.D., P.A.,
(collectively, “Dr. Aviles”) argue that the trial court erred when it ordered that attorney’s

fees awarded under article 4590i were recoverable only from appellees and not from

appellees’ attorneys. We affirm.

                                       I. BACKGROUND

        Appellees, Albert Aguirre and twenty other plaintiffs (collectively “the Aguirre

plaintiffs”), sued Dr. Aviles for medical negligence.    Specifically, the Aguirre plaintiffs

brought suit against Dr. Aviles for misrepresentation of his physician’s assistant’s

qualifications, because the physician’s assistant falsely claimed that he was a doctor.

Dr. Aviles originally filed a motion to dismiss for failure to file an expert report in 1997

under the previous medical malpractice statute in Texas.      See TEX. CIV. STAT. ANN. art.

4590i, repealed by Acts 2003, 78th Leg., R. S., ch. 204, § 10.09, 2003 TEX. GEN. LAWS

847, 884 (hereinafter “article 4590i”). In 2004, the underlying case was dismissed under

article 4590i, section 13.01, as no expert report was filed.        However, because no

attorney’s fees were awarded at that time, Dr. Aviles appealed.     This Court affirmed the

trial court’s judgment, but the Texas Supreme Court reversed and remanded the case to

the trial court for further proceedings to award reasonable attorney’s fees and costs

incurred by Dr. Aviles.   See Aviles v. Aguirre, 292 S.W.3d 648 (Tex. 2009) (per curiam).

       After the supreme court’s ruling and related mandate, Dr. Aviles filed a motion to

enter an order for reasonable attorney’s fees and costs.           The mandate from the

supreme court did not require, nor did Dr. Aviles’s motion seek, attorney’s fees from any

specific party.   The trial court held a hearing on the issue of attorney’s fees on


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November 9, 2009. The attorney for Dr. Aviles, Ronald Hole, testified and presented

evidence of attorney’s fees in the amount of $144,000.       He also averred to appellate

fees of $8,000, if appealed to the intermediate court, an additional $5,000 if a petition of

review was sought, and $6,000 if the petition for review was granted by the supreme

court. No further testimony was given.       During oral argument, Hole argued that the

attorney’s fees should be assessed against the Aguirre plaintiffs’ attorneys as the

wrongful acting party.

         The trial court’s order granted Dr. Aviles’s motion on May 10, 2010, but ordered

the Aguirre plaintiffs, not the Aguirre attorneys, to pay Dr. Aviles’s attorney’s fees of

$144,000.     Dr. Aviles appealed.

                                     II. STANDARD OF REVIEW

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

standard.    Sandles v. Howerton, 163 S.W.3d 829, 838 (Tex. App.—Dallas 2005, no

pet.).   The trial court abuses its discretion if it acted arbitrarily or unreasonably or

without reference to any guiding rules or principles.      See Walker v. Gutierrez, 111

S.W.3d 56, 62 (Tex. 2003); Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 220

(Tex. App.—Houston [1st Dist.] 2003, pet. denied). We may not reverse a discretionary

ruling simply because we might have reached a different outcome.                  Muller v.

Beamalloy, Inc., 994 S.W.2d 855, 858 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

         It is an abuse of discretion for the trial court to impose sanctions when the

defaulting party has inadequate notice or no notice of the sanctions hearing.         Plano


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Savings & Loan Ass'n v. Slavin, 721 S.W.2d 282, 284 (Tex. 1986). Generally, courts

should presume that pleadings and other papers are filed in good faith.         GTE Comm'n

Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex. 1993). The party seeking sanctions

bears the burden of overcoming this presumption of good faith.        Id. at 731.

                                         III. ANALYSIS

           Dr. Aviles’s sole issue on appeal is that the trial court erred when it ordered that

the attorney’s fees awarded under article 4590i be recoverable only from the Aguirre

plaintiffs and not their attorneys.    See TEX. CIV. STAT. ANN. art. 4590i, repealed by Acts

2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003. This Court recently considered this

issue in Clinica Santa Maria v. Martinez. No. 13-09-00573-CV, 2010 Tex. App. LEXIS

4788 (Tex. App.—Corpus Christi June 24, 2010, pet. denied) (mem. op). In Clinica

Santa Maria, the trial court awarded attorney’s fees and assessed them against the party

only, not the attorney. Id. at *9. On appeal, the appellant argued that the fees should

have been assessed against the attorneys.1 Id.

       We decided in Clinica Santa Maria that even though article 4590i mandated the

award of sanctions and that attorney’s fees can be assessed as such, it gives the trial

court discretion with respect to whom the court should sanction. Id.; see also Gurkoff v.

Jersak, No. 02-07-00101-CV, 2008 Tex. App. LEXIS 2677, at *4 (Tex. App.—Fort Worth

Apr. 10, 2008, pet. denied) (mem. op). An appellate court should not substitute its

judgment for that of the trial court unless the actions of the trial court exceeded the


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         We note that Ronald Hole, the same attorney who argued that attorney’s fees should be
assessed against the attorney, advances the same argument in this case.
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bounds of reasonable discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.

2002). Accordingly, a defendant cannot choose who should pay sanctions; they are

awarded against the offending party as determined by the trial court. See In re SCI Tex.

Funeral Services, Inc., 236 S.W.3d 759, 761 (Tex. 2007).

       Here, we note that the trial court recognized during the hearing that the attorneys

present for the Aguirre plaintiffs were not the attorneys who originally filed the lawsuit.

The trial court also noted that both the medical malpractice statute and the case law

interpreting the statute had changed during the pendency of the underlying suit. The

record also showed that it was not clear until 2003 that this case was a medical

malpractice lawsuit and not a lawsuit under the Texas Deceptive Trade Practices Act;

while the former requires an expert report for the case to continue, the latter does not.

       Further, and as we noted in Clinica Santa Maria, “to insist that the sanctions be

awarded against counsel would have a chilling effect upon attorneys who, in good faith,

pursue their client’s claims.” Clinica Santa Maria, 2010 Tex. App. LEXIS 4788, at *15.

Attorneys cannot be punished for changes in the legislature or for not knowing that the

court would change the law. In light of the foregoing, we cannot say that the trial court

abused its discretion when it determined that the Aguirre plaintiffs, and not the Aguirre

attorneys, were responsible for the attorney’s fees.         It is evident that the court

considered the record as a whole to determine if there was a wrongful party. We will not

overrule this discretionary decision, as it does not appear arbitrary or unreasonable.

See Walker, 111 S.W.3d at 62. We overrule Dr. Aviles’s sole issue.


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      Because this issue is dispositive of the appeal, we need not address the Aguirre

plaintiffs’ issue regarding waiver. See TEX. R. APP. P. 47.1.

                                    IV. CONCLUSION

      Having overruled Dr. Aviles’s sole issue, we affirm the trial court’s ruling.




                                                        ________________________
                                                        GINA M. BENAVIDES,
                                                        Justice


Delivered and filed the
31st day of August, 2011.




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