Court of Appeals of Texas, Second District, Fort Worth
In the Estate of Jennie M. Stokes, Deceased
Appeal from the Probate Court Denton County, Texas Trial
Court No. PR-2009-00220-02
Kerr, Birdwell, and Bassel, JJ.
ELIZABETH KERR JUSTICE.
Mayrita J. Roberts Hillman sued multiple defendants for
conspiring to obtain her elderly mother's property,
adding as a defendant Appellee Clark W. Brazil, M.D., the
medical doctor who had long cared for her mother, Jennie M.
Stokes. Hillman filed no chapter 74 expert report under the
Texas Medical Liability Act (TMLA),  nor did Dr. Brazil move to
dismiss on that basis after 120 days had passed without an
expert report, as the statute allowed him to
Instead, Dr. Brazil participated in merits discovery for some
18 months before moving to dismiss on the ground that Hillman
had in reality lodged a healthcare-liability claim against
him despite her artful pleadings and thus an expert report
was required but had not been timely provided.
trial court denied Dr. Brazil's motion to dismiss, but we
reversed and rendered in part, holding that Hillman's
claims against him should be dismissed with prejudice under
TMLA section 74.351(b)(2). See Brazil v. Hillman,
No. 02-13-00441-CV, 2014 WL 4770722, at *5 (Tex. App.-Fort
Worth Sept. 25, 2014, no pet.) (mem. op.); see also
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2). We
remanded only for the trial court to decide how much Dr.
Brazil should recover in statutorily mandated
"reasonable attorney's fees and costs of court
incurred," as section 74.351(b)(1) provides. See
Brazil, 2014 WL 4770722, at *5; see also Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(b)(1).
remand, the trial court conducted a three-day bench trial on
the issue of attorney's fees. Almost all the fee
testimony was from each side's expert. One issue that was
disputed throughout the trial was whether the lodestar
method applied to the entire attorney's-fee
award under section 74.351. Relying on the lodestar method,
Dr. Brazil presented evidence and testimony from his expert
and trial counsel, both of whom opined that Dr. Brazil had
incurred over $100, 000 in attorney's fees. In contrast,
Hillman's expert testified that because of TMLA section
74.351(s)'s discovery-restricting provisions, applying
the lodestar method to Dr. Brazil's attorney's fees
as a whole was "mixing apples and oranges" and that
the reasonable and necessary amount of attorney's fees
that Dr. Brazil had incurred and that were recoverable was
$38, 796.88. The attorney's-fee trial also included much
back and forth over whether Dr. Brazil should recover
"reasonable" fees-the statutory language-as opposed
to fees that were "reasonable and
trial's conclusion, the trial court ruled from the bench
that Dr. Brazil should recover $44, 335. The trial court
then entered findings of fact and conclusions of law that
referred in passing to the Arthur Andersen factors
used to determine the reasonableness and necessity of
attorney's fees. See Arthur Andersen & Co. v.
Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (op.
on reh'g) (setting out eight factors used to adjust a
base lodestar rate up or down). The trial court's
findings and conclusions did not specifically address the
lodestar method, nor did they tether the trial court's
unilateral decision to add $6, 000 to the fee award to any
facts or legal analysis.
Texas Supreme Court has recently provided new guidance to
litigants and courts on how to assess attorney's fees in
cases involving a fee-shifting statute or contract. See
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No.
16-0006, 2019 WL 1873428, at *8-26 (Tex. Apr. 26, 2019).
There, the supreme court recognized that "Texas law has
developed with references to the Arthur Andersen
method (sometimes referred to as the 'traditional'
method) and the lodestar method for proving the
reasonableness and necessity of attorney's fees."
Id. at *13. But despite the different
terminology-which Texas courts have long kept separate-the
supreme court clarified that "the lodestar method
developed as a 'short hand version' of the Arthur
Andersen factors and was never intended to be a separate
test or method." Id. Moreover, Rohrmoos
Venture also instructs that "reasonable" fees
are the same as "reasonable and necessary" fees,
observing that the distinction between the two phrasings is
"immaterial." Id. at *12. "When a
claimant wishes to obtain attorney's fees from the
opposing party, the claimant must prove that the requested
fees are both reasonable and necessary." Id.
The elements of both "reasonableness" and
"necessity" are "questions of fact to be
determined by the fact finder and act as limits on the amount
of fees that a prevailing party can shift to the
non-prevailing party." Id.
this recent supreme court authority has materially affected
and provided guidance to central questions in the underlying
trial for attorney's fees here,  we reverse the judgment and
remand the case for another trial to determine an appropriate
award to Dr. Brazil on his claim for fees. See Toledo v.
KBMT Operating Co., LLC, No. 09-17-00265-CV, 2019 WL
2455270, at *1, *6 (Tex. App.-Beaumont June 13, 2019, no pet.
h.) (reversing and remanding judgment for attorney's fees
in light of "the Texas Supreme Court's recent
clarification in Rohrmoos Venture v. UTSW DVA Healthcare,
we reverse and remand for a new trial.
Tex. Civ. Prac. & Rem. Code Ann.
Hillman sued Dr. Brazil in February
2012, and he answered the lawsuit a month later, in March.
Under chapter 74, Hillman then had 120 days to file an expert
report after Dr. Brazil responded to the lawsuit, or until
July 2012. See id. § 74.351(a). Although Dr.
Brazil could have moved for dismissal under section 74.351
after the 120-day ...