                          NUMBER 13-10-00641-CV

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

MIGUEL HERNANDEZ, M.D.,                                                Appellant,


                                        v.

JULIOUS EBROM,                                                          Appellee.


                  On appeal from the 389th District Court
                        of Hidalgo County, Texas.


                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza
      This is an appeal from an award of attorney’s fees in a medical malpractice

action brought by appellee, Julious Ebrom, against appellant, Miguel Hernandez, M.D.

The trial court awarded $40,000 in fees to Dr. Hernandez, with half of the award

assessed against Ebrom and half assessed against Ebrom’s attorneys, appellees
Richard Hunnicutt and The Law Offices of David McQuade Leibowitz (―Leibowitz‖). We

dismiss the appeal.

                                   I. BACKGROUND

      The factual and procedural background of this case was set forth as follows in

Hernandez v. Ebrom, No. 13-06-053-CV, 2010 Tex. App. LEXIS 3397 (Tex. App.—

Corpus Christi May 6, 2010, no pet.) (mem. op.):

      Ebrom filed suit against two defendants, Dr. Hernandez and McAllen Bone
      & Joint Clinic, alleging medical malpractice. . . . Ebrom provided a letter
      submitted by Uwe Pontius, M.D., Ph.D., as his expert report. The report
      was originally attached to Ebrom’s responses to requests for disclosure.
      Dr. Hernandez filed a motion to dismiss, alleging that Ebrom failed to
      timely file a proper expert report. On January 19, 2005, Ebrom notified the
      defendants that he intended to rely upon the letter that was filed in
      response to the requests for disclosure as his required statutory expert
      report.

      McAllen Bone & Joint Clinic and Dr. Hernandez later filed an amended
      motion to dismiss, stating that the expert report did not identify either
      defendant by name and was conclusory with respect to causation. The
      trial court granted the Clinic’s motion, but denied Dr. Hernandez’s motion
      to dismiss. Thereafter, the trial court entered an agreed order of nonsuit
      as to Dr. Hernandez who then filed a notice of appeal. This Court issued
      a memorandum opinion dismissing the appeal as moot. [Hernandez v.
      Ebrom, 289 S.W.3d 332, 333 (Tex. App.—Corpus Christi 2007) (mem.
      op.).] The supreme court reversed this Court’s opinion and remanded the
      case to this Court for a determination on the merits. [Hernandez v.
      Ebrom, 289 S.W.3d 316 (Tex. 2008).] Even though Ebrom has nonsuited
      his claims against Dr. Hernandez, we are required to reach the merits of
      Dr. Hernandez’s motion to dismiss because Dr. Hernandez has sought
      attorney’s fees pursuant to section 74.351(b)(1), which he is only entitled
      to if Ebrom’s report did not comply with the statutory requirements. See
      TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1) (Vernon Supp. 2009).

2010 Tex. App. LEXIS 3397, at *1-3. We concluded that ―[b]ecause the report did not

name Dr. Hernandez and was conclusory with respect to causation, the trial court

should have granted Dr. Hernandez’s motion [to] dismiss.‖ Id. at *13. We remanded




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the case to the trial court to dismiss Ebrom’s suit against Dr. Hernandez with prejudice

and to assess reasonable attorney’s fees. Id. at *14.

       After this Court issued its mandate, Dr. Hernandez filed a ―Motion to Enter Order

in Compliance with Mandate,‖ asking the trial court to enter an order

       that Defendant Miguel Hernandez, M.D. be awarded reasonable attorney’s
       fees, including contingent appellate attorney’s fees; dismissal of this action
       with prejudice; and that all costs herein be assessed against Plaintiff and
       his attorneys, as mandated by Chapter 74 of the Texas Civil Practice &
       Remedies Code and the Thirteenth Court of Appeals.

The trial court set the matter for hearing.

       At the hearing, Dr. Hernandez’s attorney, Ronald G. Hole, testified as to the

reasonableness and necessity of the attorney’s fees incurred by Dr. Hernandez and

estimated the total to be $40,200 through the time of the hearing on Dr. Hernandez’s

―Motion to Enter Order in Compliance with Mandate.‖ Hole submitted an Affidavit of

Attorney’s Fees, supporting his oral testimony, that was admitted into evidence by the

trial court. Upon conclusion of the hearing, the trial court awarded $40,000 in attorney’s

fees to Dr. Hernandez, allocating fifty percent of that amount to Ebrom and fifty percent

to Ebrom’s attorneys. Immediately following the trial court’s ruling, Hole responded that

he would prepare an order to reflect the trial court’s award. The trial court signed the

order prepared by Hole on October 19, 2010. This appeal followed.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

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

standard.   Truck Ins. Exch. v. Mid-Continent Cas. Co., 320 S.W.3d 613, 623 (Tex.

App.—Austin 2010, no pet.). A trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner without reference to any guiding rules or principles. Walker v.



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Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003) (quoting Downer v. Aquamarine Operators,

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

       Standing is a component of subject matter jurisdiction and may be raised for the

first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445

(Tex. 1993). ―Texas courts have long held that an appealing party may not complain of

errors that do not injuriously affect it or that merely affect the rights of others.‖

Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). As a general rule of

Texas law, to have standing a plaintiff must demonstrate an interest in a conflict distinct

from that of the general public, such that the defendant’s actions have caused the

plaintiff some particular injury. McWherter v. Agua Frio Ranch, 224 S.W.3d 285, 290

(Tex. App.—El Paso 2005, no pet.) (citing Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.

1984)). A party must show that its interest has been prejudiced before it has standing to

appeal. Id. An appealing party cannot complain of errors that do not injuriously affect

its rights or that merely affect the rights of others. Id. (citing Buckholts Indep. Sch. Dist.

v. Glaser, 632 S.W.2d 146, 150 (Tex. 1982)). A party of record is normally entitled to

appeal; however, the party’s own interest must be prejudiced before it has standing to

appeal.   Id.    The appellant bears the burden of making a prima facie showing of

prejudice. Id.

                                        III. ANALYSIS

       Dr. Hernandez complains that the trial court abused its discretion in failing to

award one hundred percent of the fees against the ―culpable parties,‖ which he deems

to be Hunnicutt and Leibowitz. See Gurkoff v. Jersak, 278 S.W.3d 776, 777 (Tex. 2009)

(Brister, J., dissenting from denial of petition for review) (―[A] defendant cannot choose



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who should pay sanctions; sanctions must be assessed against the offending party.‖).

Ebrom did not appear at the hearing and has not filed a brief in this matter; thus, Ebrom

is not heard to complain in this appeal. Leibowitz has filed a brief representing its own

interests.

       Dr. Hernandez argues that it was the responsibility of Hunnicutt and Leibowitz to

produce a proper expert report and that their client, Ebrom, should not be punished for

their failure to meet this requirement:

       The Plaintiff entrusted his case to Mr. Hunnicutt and his firm, to prosecute
       his lawsuit. In doing so, it was the attorneys who were responsible for
       meeting the strict statutory burdens placed on health care liability
       claimants—one such burden being the expert report requirement. The
       statute was not complied with.

       Hunnicutt and Leibowitz assert that Dr. Hernandez lacks standing on appeal to

complain about the trial court’s order because he is, in essence, making the argument

that Ebrom would be making had he participated in this appeal. They point out that

there is nothing in the record to show that Ebrom lacks assets from which to pay

attorney’s fees. Nor has any evidence been produced at any time showing that Ebrom

lacks such assets as to make efforts to recover attorney’s fees from him futile.

       We agree with Hunnicutt and Leibowitz that Dr. Hernandez has failed to show

that he was prejudiced by the trial court’s ruling. An injury to Ebrom does not equate to

an injury to Dr. Hernandez. Dr. Hernandez has not made a prima facie showing that he

was in any way injured by the trial court’s order assessing half of the attorney’s fees

award to Ebrom and half to Ebrom’s attorneys. Without such a showing, Dr. Hernandez

lacks standing to pursue this appeal. See McWherter, 224 S.W.3d at 290.




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                                   IV. CONCLUSION

       Because Dr. Hernandez has failed to demonstrate that he has standing to pursue

this appeal, and because standing is a component of subject matter jurisdiction, see

Tex. Ass’n of Bus., 852 S.W.2d at 445, we dismiss this appeal for lack of subject matter

jurisdiction.



                                                      DORI CONTRERAS GARZA
                                                      Justice

Delivered and filed the
14th day of July, 2011.




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