### NUMBER 13

- 13

- 00219

- CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

LUMBERMENS MUTUAL CASUALTY COMPANY , Appellant,

v.

NOE PORTILLO , Appellee.

On appeal from the 398th District Court of Hidalgo County, Texas

.



## ABATEMENT ORDER

Before Justice s Garza, Benavides, and Perkes

Order Per Curiam

On June 5, 2014, this Court issued a memorandum opinion in this cause. On June

11, 2014, appellant, Lumbermens Mutual Casualty Company (“Lumbermens”), filed a

Motion for Approval of Application for Attorney’s Fees with an attached affidavit by

Lumbermens’s counsel and billing records

. In its motion, counsel for Lumbermens asks

this court to grant an order which finds that counsel’s attorney’s fees incurred related to2

this appeal are reasonable and necessary. See T EX

. L AB

. C ODE A NN . § 408.222 (West,

Westlaw through 2013 3d C.S.) (mandating that the amount of att orney’s fees for

defending an insurance carrier in a workers’ compensation action must be approved by

either the Texas Department of Insurance’s Workers’ Compensation Division (“the

Division”) or “court,” and determined by either the Division or court to be reasonable and

necessary). On June 27, 2014, a ppellee, Noe Portillo, filed a response with the Court

stating that he was unopposed to Lumbermens’s motion

. We agree with Lumbermens’s position that the labor code allows for the recovery

of attorney’s fees in connection with defending an insurance career in a workers’

compensation claim, after (1) the fee is approved by the Division or “ court ” and (2) a

determination of whether the fee is reasonable and necessary is made. See id. Although

the statute does not specify which “court” may make such a finding under section 408.222,

we do not believe that this Court is the “court” to make such a determination because

such a determination requires the evaluation and weighing of evidence

. See Old Republic

In s. Co. v. Warren , 33 S.W.3d 428, 434

– 35 (Tex. App.

— Fort Worth, pet. denied)

(declining to determine the propriety and the reasonableness of the fees with no motion

for attorney’s fees having previously been filed at the trial court ) . Instead, we conclude

that the approval and determination of the propriety and reasonableness of

Lumbermens’s counsel’s attorney’s fees is more appropriate for the trial court , which will

sit as the factfinder to evaluate and weigh the evidence, and ultimately answer the

pendin g dispositive questions of fact

. See id.

Given the foregoing , we ABATE this matter and REMAND it to the trial court for

the limited purpose of holding a hearing to make a determination of whether3

Lumbermens’s counsel’s attorney’s fees incurred on and between April 17, 2013 and

June 9, 2014 (1) should be approved; and (2) that such fees are reasonable and

necessary using the guidelines set forth in the labor code

. See T EX

. L AB

. C ODE A NN . §

408.222. The trial court shall make and file a ppropriate findings of fact and conclusions

of law and cause them to be included in a clerk's record; cause the hearing to be

transcribed and included in a reporter's record; and have these records forwarded to the

Clerk of this Court within twenty days fr om the date of this order. If the trial court requires

additional time to comply, the trial court should so notify the Clerk of this Court.

IT IS SO ORDERED.

PER CURIAM

D elivered and filed the 3rd day of July

, 2014

.