Affirmed as Modified , Remitt i tur Suggested, and Memorandum Opinion filed January 21 , 202 1
.

In The 

## Fourteenth Court of Appeals

N O . 14

- 19

- 00967

- CV NO. 14

- 20

- 00 231

- CV

RAHUL K. NATH , M.D. , Appellant
V.
TEXAS CHILDREN ’ S HOSPIT AL AND BAYLOR COL LEGE OF ME DICINE , Appellee s
On Appeal from th e 215th District Co urt Harris County, Texas Trial Co urt Cause No. 2006

- 10826

MEMORANDUM OPINION Fourteen years after the inception of this lawsuit , Dr. Rahul K. Nath , M.D.
pursues his third an d fourth appeal s in this ca se . I n t his third appeal, Nath asserts the trial court erred by den ying his motion to dismiss brought under the Texas Citizens Participation Act. Nath also contends that he is entitled to an interl ocu tory appeal with resp ect to said denial. We overrule the issues in Nath ’ s2 third appeal.

I n the fourth appeal , Nath raises four issues challenging the sanctions awarded to appellees Texas Chi ldren ’ s Hospital (the “ Hospital ” ) and Baylor Colle ge of Medicin e (together with the Hospit a l, “ Appellees ” )

. Specifi c ally, t he trial court ’ s final judgment award s the H ospital $726,000 in attorney ’ s fees and awards Baylor $644 , 500.16 in attorney ’ s fees. The trial court ’ s final judgme nt also awards the Hospital $489,8 00 in future appellate atto r ne y ’ s fees.
We sustain i n part Nath ’ s challenge to the trial court ’ s future appellate attorney ’ s fees aw a rd. We suggest a remittitur of $ 50,375 , which will result in an award of $439,425 for the Hospital ’ s future appellate a ttorney ’ s fees if accepted. W e overrule the remai ning issues in Nath ’ s fourth appeal.

B ACKGROU ND
I. The Underlying Litigati on and Resulting Sanctions Nath is a plastic surgeon who was employed by Baylor and affiliated with the Hospital. Nath reported to Dr. Sal eh Shenaq, the chief of Ba ylor ’ s pla stic
surgery di vision and Nath ’ s part ner a t the Hospital ’ s obstetrical brachial plexus clinic. Nath ’ s relationship wi th his colleagues (including Shenaq) turne d acrimonious in 2003, when several docto rs complained t hat Nath billed excessively , p erformed unnecessary proc edures, and tr e ated fellow collea gues in an unprofessional m anner.
In Februa ry 2006, N ath filed his original petition against Baylor, the Hospi tal, and Shenaq, claiming the defendants made defam atory statements about Nath that to rtiously interfered with his bu sin ess relationships

. App roximately two months later, Nath filed a first amended petition na ming two additional defendants

. The se defenda n ts ’ addition resulted in a jurisdictiona l dispute that ended in3 September 2008 , wh e n Nath non

- suited the addit ional defendants in his third amended petition. Nath ’ s third amended petition also asserted additional claims
aga inst Baylor and the Hospital.

I n November 2008, Nath filed a fourth amen ded petiti on al leging Sh enaq had been op er a ting on patients while his vision was impaired . Nath filed his fifth amended petition in July 2009 and sought declaratory relief based on Shenaq ’ s alleged health probl ems. In Dec em ber 2009, the Hospital file d traditional and n o evidence summary judgme nt motion s with respect to all of Nath ’ s claims. Baylor filed traditional and no

- evidence summar y judgment motions challenging Nath ’ s claims in January 2010.
After Appelle es fi le d thei r summary judgment mo tions, Nath moved to

c o mpel additional depositio ns , extend the deadline to res pond to the motions, and

co ntinue the summary judgment hearing

— all of which were granted. Nath again moved to continue the summary jud gment hearin g, which was denied. Nath fi led motions to recuse b oth the trial judg e and t he judge assigned to hear the first recusal motion ; both motions were denied.
Nath filed a sixth am ended petition, in which he aband oned al l of h is prior claims and asserted a new claim for intentional infliction of emotional dis tress. Appellees again mov e d for summary judgment ; Nat h did not respond and instead

o bjected to the notice of hearing based on a techni cal d efect. T he trial c o urt
g ranted Ap pell ees ’ summary j udgment motions

. Appellees sought sanctions agai nst Nath under T exas Rule of Civil Pr ocedur e 13 and c hapter 10 of the Te xas Civil Practice and Remedies Code. The trial court held hearings on the motions for sanctio ns and issue d sanctions based
on, among o ther things: (1) “ Nath ’ s improper purpose in fi ling the pleadin gs in this case ” ; (2) “ the b ad faith that [Nath ’ s] act ions manifest ” ; and (3) “ the lack of4 any factual predicate for [Nath ’ s] claims, as previously est ablished by th e court ’ s orders granting t he motions for summary judgment

. ” The trial cou rt explained tha t its findin g of bad faith s temmed from Nath ’ s conduct in seeking information related to Shenaq ’ s h ealth

— conduct for which the trial court had previo usly (and repeated ly ) admonished Nash. T he trial court concluded that Nath ’ s leveraging of this informat ion i n an attempt to obtain a settlement constituted a n improper
p urpose. The trial court sanctioned Nath in the amount of $726,000 in fa vor of the H ospital , represent ing a portion of the Ho spital ’ s reasonable fees in defend ing the suit, and in the amoun t of $644,500.16 in favor o f Baylor, representing a po rtion of Baylor ’ s reasonable fees defend ing the suit. The trial cour t also filed extensive findi ngs of fact and co nclusions of law suppor ting the sanctions orders. Nath appealed.
II. Nat h I
This court u pheld the sanctions awards i n Nath’s 2012 appeal. See Nath v. Tex. Children’s Hosp. , 375 S.W.3d 403 (Tex. App.

— Houston [1 4th Dist.] 2012), rev’d , 446 S.W.3d 355 (Tex. 2 014).
Nath pursued his appe al to the Texas S u preme Court. See Nath v. Tex. Children ’ s Hosp. , 446 S.W.3d 355 (Tex. 2014) ( “ Nath I ” ). “ [ A ] gr e e[ ing ] with the court of app eals that the trial court properly found Nath ’ s pleadin gs sanctionable , ”
t he s upreme c ourt held that “ [s]anctioning Nath for pleadings related to Shenaq ’ s healt h was demonstr a bly just ” and “ supported b y s ome evidence ”

. Id . at 3 61 , 365

. T he s upreme c ourt also held that the trial court d id not abuse its d iscretion by sanctionin g Na th personally , particularly in light of Nath ’ s efforts to seek information about Shenaq ’ s healt h. Id . at 366.5 The s upre me c ourt the n addressed the amount o f sa nctions awarded by the trial court

. See id

. at 3 71

- 72. The s upreme c ourt noted the trial court considered most of the relevant factors in Low v. Henry , 221 S.W.3d 609 (Tex. 2007) , w hich were promulgated t o “ guid[ e ] t h e often intangible proce ss of determi ning a penalty for sanctionable behavior

. ” Id

. at 620 n .5 . Bu t the s upreme c ourt held the trial court failed to address one Low factor: the d egree to which Appellees’ conduct

cau sed the expenses for which they sou gh t recovery. Nath I , at 3 71

- 72. Specifically, the s upreme c ourt noted that “all th ree parti es litigated a hos t of merits issues for nearly a half

- decade before the Hospital and Bayl or moved for
summary judgment on su ch grounds as limitations.” Id . The s u preme c ourt remanded the case so the trial court could “examine the extent to whic h the Hos pital and Baylor c aused the expenses they accrued in litigating a variety of issues over s everal years.” Id

. at 373.
III. Nath II Back in the trial court, Nath filed se v eral motion s , including a motion to disqualify Appellees ’ counsel and a motion for contin uance. Appellees filed motions to reasse ss sanctions. The trial court held a hearing on Appellees ’ motions

. On January 20, 2015, the trial court granted Appelle e s ’ motions to reas s ess san ctions and later issued supplement al findings of fac t and con clus ions of law in which it determined that n o behavior by either the H ospital or Baylor cause d the expenses for which they

sou ght recovery

. The trial cour t ordered Na th to pay the Hospital $726 ,000 for its
attor ney ’ s fees and pay Baylor $644,500.16 for its attorney ’ s fees. Nath appea led and this court affirmed the trial court ’ s sa nctions award s. See Nath v. Te x. Children ’ s Hosp. , 576 S.W.3d 728 , 743 (Tex. App.

— Hou ston [14th Dist.] 2016 ), re v ’ d , 576 S.W.3d 707 (Tex. 2019) (per cur iam). Nath ag ain pursued6 his appeal to the Te xas Supreme Court. See Nath v. Tex. Children ’ s Hosp. , 576 S.W.3d 7 0 7 (Tex. 2019) (per curiam) ( “ N ath II ” ). Reversing this court’s decisio n, t he s upreme c ourt held that, before fees m ay be shifted as a sanct ion, “there must be some evidence of reasonableness ”. Id . at 709. The s upreme c ourt pointed out that, on remand, Appellee s attempted to prove reasona ble ness “by submitting two additional co nclu sory affidavits”. Id

. at 710. Referencing i ts decision in Rohrmoos Venture v. UTSW DVA Healthcare, LLP , 578 S. W.3d 469 (Tex. 2019), the s upreme c ourt said it previously “explain[ed] the necessity of presenting eit her billing records or other supporti ng e vidence when seeking to shift attorney’s fees to the losi ng party.” Nath II , at 710. The Court then “remand[ed ] the case to the trial court for further proceedings in light of Rohrmo os .” Id

. IV. Proceedings After the Second Remand
Back in the trial cour t, A ppellees filed separate applications for atto rney ’ s fees. Both applications included billing recor ds to substan tiate the claimed fees.
Nath aggressively pursued discovery and motion practice that included (1) not icing corporate representative and no npar ty depositions related to Appellees ’ 2010 decisions t o seek sanctions; (2) filing a cros s - motion for sanctio ns; (3) filing motions to disqualify Appellees ’ counsel; (4) filing special exceptions to App ellees ’ motion s for sanctions; and (5) filing a jur y de mand seeking a retrial of all issues.
N ath also fil e d a motio n to dismiss pursuant to the Texas Ci tizens P articipation Act (the “ TCPA ” ). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001

- .01 1. Nath set his TCPA motion to dismiss for hearing on Decembe r 10, 2019 , the sa me day as the evidentiary hearing on Ap pellees’ fee applications. On December 5, 2019, Nath f iled a premature notice of appeal. In the notice, Nath stated the appeal was deli berately pre mature and filed in the event the trial court7 refu sed to rul e on his TCPA mot ion. This appeal was as signed case number 14

- 19

- 00967

- CV. At the December 10 hearing , the trial court heard arguments on Nath’s TCPA motion and took it under adviseme nt. The tri al court proceeded to hear evidence with respect t o Appellee s’ fee applicatio ns. On December 18, 20 19, th e trial court entered findings of fact and conclusions of law in which it determined that the evidence supported reassessing sanctions ag ainst Nath in the same amounts awarded in 2010 : $726,000 for the H o spit al ’ s attorney ’ s f ees and $644 ,500.16 for Baylor ’ s attorney ’ s fees. On December 27, 2019, the trial co urt signed a final judgment ordering Nath to pay these amounts to Appellees

. The trial cour t ’ s final judgment also awards the Hospital $489,800 for its future appellate a tt orney ’ s fees. With respect to Nath ’ s T CPA motion, t h e final judgme nt states:
S ubse quent to this award of attorneys’ fee s as sanctions, it is further ORDERED, ADJU DGED, AND DEC REED that Plaintiff Rahul K. Nath’s Motion to Dismi ss dated November 18, 2019 is DENIED.
Nath filed a second notice of appeal wi th respect to the trial court’s fin al judgment, which was assigned case number 14

- 20

- 00 231

- CV. By order dated Apr il 16, 2020, and over Nath’s objections, this court consolidated Nath ’ s two appeals.
A NALY SIS
Nath ’ s two appeals presen t a total of seven issu es . H is third appeal focuses

o n issues related to the trial court ’ s dis position o f his TCPA motion to d ismiss and his fourth appeal ad dresses the trial court ’ s sanctions aw ard

. We address these issues s eparately.8 I. Nath ’ s TCPA Motion to Dismiss
Nath raises three issu es with respect to h i s TCPA motion to dismiss:
1. Nath is entitl e d to p ursue an interlocutory appeal of the trial court ’ s denial of his TCPA motion to dismiss while the remainder of the case is st ayed. 2. The trial court erred i n denying N ath ’ s motion to dismiss

. 3. This court should r everse its decision to consolidate Nath ’ s appeals and stay its review of Nath ’ s sec ond appeal until the interloc utory appeal is resolved.
Beca u se they raise similar argum ents, we begin by addressing Nath ’ s f irst and third issues toge ther.
A. Nath I s Not E ntitled to P ursue a n Interlocutory Appea l of the Denial of His TCPA Motion Independ ent From the Remainder of the Final Judgment. In general, Tex a s appellate courts have jur isdiction only with respect t o final judgment s. R us k State Hos p. v. B lack , 392 S.W

. 3d 88, 92 (Tex. 2012). But
statutes aut horizing interlocutory appeals are a narrow exception to this general rule. Bonsmara Nat. Beef Co. v. H a rt of Tex. Cattle Feeders, LLC , 603 S.W.3d 385, 39 0 (Tex . 2020).
Relevant h er e, the Civi l Pract ice and Remed i es Code provides for interlocutory appea l of an order that “ denies a motion to dism iss filed under Sect ion 27.003 ” of the TC PA. See Tex. Civ. P r ac. & Rem. Code Ann. § 51.0 14( a)(12). An interlocut ory appeal under this sec ti on “ stays t he

comm encement of t r ial ” and “ also stays all other proceedin gs in the trial court pending resolution of that appeal. ” Id . at (b). Relying on these provisions, Na t h argues he is entitled to p ursue an interlocutory appea l from the trial cour t ’ s denial of his TC PA motion to d ismiss9 while the remainder of the trial court ’ s final judgment is stayed pending th e resolution of that appeal. Nath contends his interlocutory appeal was p e rfected at the December 10 , 2 019 hearing or , in the alternative, a fter the tr ia l cou rt signed its final judgment.
1. The December 1 0 Hearin g We begin with Nath ’ s contention that his interlocu tory appe al was perfected at the December 10 hearing when the trial court heard argument on Nath ’ s TCPA motio n and took it under adv isement. After the trial court took the motion under advisement , Nath a sserts that hi s counsel (1) demanded a ruli ng on the motion to d ismiss; (2) objected to the trial court ’ s refusal to rule; (3) r e
- ur ged t he objection to the refu sal to rule; and (4) objected to the trial court ’ s re fu sal to rul e o n that objection

. T his exc hange , Nath ar gues, constitutes a deemed de nial of his TCPA motion to dismiss that perfect ed his prematu r ely

- filed appeal and invo ke d a

m andatory stay of further proceedings. See Tex. R. App. P. 27 .1 (a) ( “ In a civil case, a prematurely fi led notice of appeal is effective and deemed filed on the day of, bu t after, the event that begins the period for perfect i ng the appeal. ” ).
But t he cases Nath ci tes do not supp ort this content ion. Two o f these cases involve preser va tion o f error and do not addr ess the “ deemed denial ” of a motion

. See In re W .A.B. , No. 14

- 18

- 00181

- CV, 2019 WL 2181205, at *2 (Tex. App.

— Hou s ton [14th Dist.] May 21, 20 19, no pet.) ( mem. op.) (the app e llant ’ s chal lenge to the trial court ’ s denial of hi s motion for continuance was not prese rved where the recor d did “ not show that [appellant] presented the motion for continuance to the trial cou r t with a request for a ruli ng or otherwis e br ought it to t h e trial court ’ s attention before the final judgment wa s rendered ” ); Quintana v. Cross Fit D allas, L.L.C. , 347 S.W.3d 445, 449 (Tex. App.

— Dallas 2011, no pet.) (error was not preserved where the rec o rd did n ot show the appella nt brought her motions to the10 tr i al court ’ s a ttention or that the trial court ruled on them)

. And i n th e third case Nath cites , the relator filed a petition for writ of mandamus after the trial court took the relat or ’ s chapter 7 4 m otion to dismiss under a dvisement but failed to issue a

r

uling for ap proxi mately nine months. See In re Bay lo r Coll. of Med. , No s

. 01

- 19

- 001 05

- CV , 01

- 19

- 00142

- CV , 2019 WL 3418504, at * 1

- 2 (Tex. App.

— Houston [1st Dist.] July 30, 2019, orig. proceeding) (per curi am) (mem. op.)

. T his case is

no t ana logous to the fac ts presen ted here, where the trial c ourt took Na th ’ s motion under ad visement and ruled on it nine days later. T hese cases do not compel the conclusion that the trial court ’ s action s at the De c ember 10 hearing constitute d a

“ dee med de nial ” of Na th ’ s TC P A motio n to dismiss.

T he TCPA explicitly addresse s when a motion brought pursuant to its provision s is deemed deni ed : when the motion has not been ruled on more than 30 days following the date the hearing on the motion c onclu des. See Tex. Civ. P rac. & Re m. Code Ann . § 27.005(a) ; see also Inwood Forest C mt y. Improvement Ass ’ n v. Arce , 4 85 S.W.3d 65, 72 (Tex. App.

— Houston [14th Dist.] 2015, pet. denied) ( “ the m otions to dismiss were denied by ope ration of law as the TCPA r equires when th e trial cou rt d oes not rule wit hin the 30

- day deadline ” ). Citing this
p rovision, Nath argues that , “ [b ]y proceeding to trial on the merits, the trial court

‘ ruled ’ that [A ppellees ’ ] claims

. . . should not be dism issed

. ” Nath cites no dire ct authority to support th is c ont ention and th is c ourt has fou nd none.
Instead , the T CPA provides that , up on the fil ing of a motion under this section, “ all discovery in the legal action is sus pe n ded until the court has ruled o n the motion to dismiss. ” Tex. Civ. Prac. & Re m. Code An n. § 27.003(c). If the Legi slature had intended for th e f iling of a TCPA motion to dismi ss to stay all proceedings , instead of just discovery , it would have stated so in the relevant provision

. See Cadena Comercial USA Corp. v. Tex. Al cohol ic B e verage Co mm ’n ,11 518 S.W.3d 318, 325

- 26 (Tex. 2017) ( “We presume t he Legislature chooses a
statute ’s language with care, including each word ch osen for a purpose, while purposefully omitting words not chosen. ” ) (internal quotation omitte d). But it did
not and w e dec line to exp and th e p rovision b eyond its plain meaning. Se e i d . at 326 ( “we take statutes as we find them and re frain from re writing the Legisl ature ’s
text ”) ; see also In re SPEX Gr p

. U S LLC , No. 05

- 1 8

- 00208

- CV, 2018 WL 131240 7 , at *3

- 4 (Tex. App.

— Dallas Ma r . 1 4, 2018, orig . proceeding , [mand. dism ’ d] ) (mem. op.) (concluding t hat the TCPA does not “ prohibit a trial court from considering and granting a temporary restraining order or a temporary injunc tion before decid ing a moti on to dismiss brought under the T CPA ” ).
We reje c t N ath ’ s content ions that (1) the trial court ’ s action s a t the December 10 hearing const ituted a “ deemed denia l ” of his TCPA motion, and (2) the trial court denied his TCPA motion b y proceeding to a n e videnti ary hearing regarding Appellees ’ fee applicati o ns

. Th erefore, N ath ’ s prematurely

- filed appeal
was not pe rfected a t the December 10 hear ing and Nath was not entitled to a stay of all proc eedings.
2. The Trial Court ’ s Final Judgment
In addition to aw arding App ellees their attorney ’ s fees , t he trial cour t ’ s December 27, 2 019 final jud gment als o explicitly denie s Nath ’ s TCPA motion to dismiss

. Nath argues that “ [t] he TCPA denial portion of the court ’ s order is reviewable in this interl ocutory appeal be fore the r est of the purported final judgment takes ef fec t. ”
Nath does n ot cite any a uthority to support his p r oposition and this c ourt has found none. Rather , a review of relevant case law sho ws that the denial of a TCPA motio n to dismis s may be consider ed in con j unction with other re lief granted by the tria l court. See, e .g ., Petrob r as A m., Inc. v. Astra Oil Tradi ng NV , No s. 14

- 18

-12 00728

- CV, 14

- 18

- 00793

- CV, 14

- 18

- 00798

- CV, 2020 WL 4873226, at *22

- 25 (Tex. App.

— Houston [14th Dist.] Aug. 2 0, 2020, pet. fi le d) (m em. op.) ; Roach v. Ingram , 557 S.W.3d 203, 211

- 12, 216

- 18, 22 8

- 32 (Tex. App.

— Ho uston [14th D ist.] 2018, pet. denied). We reject Nat h ’ s argument that th e trial court ’ s denial of his TCPA motion is reviewable in an interlocu tory appe al before the rest of the f in al jud gment takes effect.
3. Con soli dation of Nath ’ s A ppeals
After Nath filed his second notice of a ppeal , Appel lees filed a motion to consolidate both appeals, whi ch this c our t granted. Arguing that this decision should be rev ersed , Nath cont ends that c on solidation was inappropriate because he ha s “ a sta tutory right t o first pursue an interlocu t ory appeal of the denial of his T CPA motion to di smiss. ” To support this contention, Nath raises the same argument discussed above,

n amely, that his prematur ely

- filed appeal was perfected at the December 10 hear ing. F or the reasons disc ussed above, we conclude Nath ’ s appeal was not
pe rfected at th e December 10 hearing.
We re ject Nath ’ s argument regarding the consolidation o f his app e als.
B. The Trial Court Did No t Err by Denying Nath ’ s TCPA M otion to Dismiss. A sserting that th e trial court should deny N ath ’ s TCPA mot ion, Appellees raise d the following arguments in their TCPA response :

• N ath ’ s TCPA motion to dismiss was out side the scope o f the Texas Supre me Cour t ’ s limited remand

.

• The TCPA does not apply to Ap pellees ’ sanctions motions because the motions were filed in 2010 and the TC PA did not become law13 until 2011.

• A motion for sanctions is not a “ legal action ” subject to dismissal unde r the TCPA.

• Altern atively, i f the court were to find that the TCPA applies, A p pellee s m et their burden of presen ting a prim a fa cie case with respect to t he el ement s of their sanctions request s

. Nath challenges t hese bases on appeal and, in response , Appell e es contend each
g round is s u fficient to affirm the trial court ’ s denial of N ath ’ s T CPA motion. Because we conc lude Nath ’ s TCP A motion to dismiss was ou tside the scope of remand as set out in Nath I and Nath II , we do not reach th e other grounds raised in Appellees ’ joint response.
W hen an appellate court remands a case and limits a subseque nt tria l to a particular issue, the tri al court may only determine that par t icular issue. Hudson v. Wakefield , 711 S.W.2d 628, 630 (Tex. 1986); Russell v. Russell , 478 S.W.3d 36, 42 (Te x. App.

— Ho u ston [14th Dist.] 2015, no pet.). On remand, “the trial co urt has no authority to take any ac tion that is inconsistent with or beyond the scope of that which is necessary to give full effect to the appellate court’s judgment a n d mandate.” Phil lips v. Br a mlett , 407 S.W.3d 229, 234 (Tex. 2013). Moreover, the
appe llate c ourt’s judgment is final “n ot on ly in reference to the matters actu a lly litigated, but as to all other matters that the parties might have litigated and had deci d ed in the cause.” Scott Pe l ley P.C. v. Wynne , 578 S.W.3d 694, 699 (Tex. App.

— Dallas 2 019, no pet.) (internal quotation o mitte d). In interpreting the mandate of an appellate court, the c ourt should look not only to the mandate itself but also to the cour t ’ s opinion

. Huds on , 711 S. W

. 2d at 630.
The facts in Johnson

- Todd v. Morgan , No s . 09

- 17

- 001 68

- CV, 09

- 17

- 00194

- CV, 2018 WL 6684562 (Tex. App.

— B e aumont Dec. 20, 2018, pet. denied) ( mem

. op.) , are similar to those presented here. In the first appeal in the J ohnson

- Todd14 litigation, the appell ate court i nstructed the lower court to dismiss the plaintiff’s claims an d award the defendant damages and c o sts. Id . at *2. On remand, the plaint i ff filed a motion for sanctions and the defendant filed a TCPA motion to dismiss the plaintiff’s san ctions motion. Id

. The trial court denied the defendant ’ s TCPA motion and the defenda nt appealed. Id

. On appea l , the court held that its “instructions in the prior appeal did not allow the trial court to consider [the defen d ant’s] post

- remand motion t o dismi ss

. . . un der the TCPA”

. Id

. Instead, the trial court only was instruc te d to award the defendant damages a nd costs

. Id . T herefore, the trial co u rt “ had no authority to consider [the defendant’s] post

- remand motion to dismiss.” Id

. Like the fir st John son
- Todd ap peal, the Texa s Supreme Court ’ s decision s in Nath I and Nath II si gnificantly limited t he issues r emain ing to be determined in the underlying p r oceeding. In Nath I , the s upreme c ourt concluded the trial court
p roperly found that Nath ’ s p leadi ngs were sanc tionable and did not abuse its discretion by imposi ng those sanctions upon Nath personally

. Nath I , at 361, 365

- 66. The s upreme c ourt remande d the case solely to per mit the trial court to

“ exam ine the extent t o which the Hospital and Ba ylor caused the ex penses they accrued in litigating a variety of is sues over several years.” Id . at 373.
And i n Nat h II , the s upreme c ourt remanded the case to the t rial court “for further proceedings in light of Rohrmoos

. ” Na t h II , at 710. T he s upreme c ourt addressed sh ifting attorney ’ s fees at le ngth in Rohrmoos and reiterated its intention that “ t he fact finder ’ s starting point for calculating an attorney ’ s fee award is d etermining the reasonable h ours worked multiplied by a reasonable hourl y rate ”

. 578 S.W.3d at 4 98

- 99. Although “ [c] ontempora neous billing records are not required to prove that the requested fees a re reasonabl e an d necessary ” , such records “ are str o ngly encouraged to prove the reasonableness and necess ity o f15 requested fees w hen those ele ments are conte sted. ” Id . at 502 (emphasis in original).
Refer encing these prin ciples , the s u preme c ourt in Na th II stated: On [ the first] remand, the Hospital and B aylor attempted to prove the
r easonableness of the awarde d fees by submit ting two ad ditiona l
con clus ory affidavits. Although we expressed confidence in Nath I that the reas onab l eness of the sanction m ig ht be resolved o n the existing record or through a dd itional affidavit s, the subsequent affidavits here merely reference the fe es without substantiating eith er the reasonable hours worked or the reasonable hourly rate. Rohrmoos exp lains the necessity of presenting either billing records or other supporti ng evidence when see king to shift attorney ’ s fees to the losi ng party. Concl usory affid avits containing me re generalities about the fees for working on Nath ’ s frivolous claims are legally insufficient to justify the sanc tion awarded here.

* * *
Because the sta ndard for fee

- shifting awards in Rohrmoos likewise
a

pplies to fee

- sh ifting sanc tions, we reverse t he court of appeals ’ judgment affirming the sanctions award and, without hearing oral argument, re mand the case to the trial court for further proceed ings in light of Rohrmoos

. Nath II , at 710.
Nath ’ s TCPA mo tion to dis miss was beyond the scope o f what w as necessary to give full effect to s upreme c ourt ’ s instructions in Nath I and Nath II

. See Phill ips , 407 S.W.3d at 234

. Specifically, Nath ’ s TCP A motion did not address (1) if and how Appellees ’ co nduct in t he underlying litigation co ntributed to their attorney ’ s fees , or (2) the reasonableness and necessity of Appellees ’ claimed fees. See Nath I , a t 373; N ath II , at 710. I nstead, Nat h ’s TCPA motion focused on Appellees ’ “Sanction s Motions ” and the propriet y of sanctioni ng Nath ’ s con duct in the litigat ion

— a n iss ue separate from the calculation of and16 evidence necessary to support the requested at torney ’ s fees

. T herefore , the trial court had no authority to consider N ath ’ s TCPA m otion to dismiss. See Phil lips , 407 S.W. 3d at 234 ; Hu dson , 711 S.W. 2d at 630 ; see also, e.g., Johnson

- Todd , 2018 WL 6684562 , at *2.
W e overrule Nat h ’ s issue regarding the trial cou rt ’ s d enial of his TCPA motion to dismiss.
II. T he Trial Court ’ s Final Judgment
Nath rai ses four issues in his fourth ap peal:
1. After i t denied Nath ’ s TCP A motion to dismiss, t he trial court erred by proceeding to trial on the me rits in violation of th e automati c stay

. 2. The trial court abused its disc retion by de nying Nath ’ s jury demand. 3. The trial cou rt abused its discretion by awarding $1.37 million in
sa nctions to Appellees. 4. The trial court erred by awarding the Hospital its future appellate attorn ey ’ s fees.
Nath ’ s first issue incorporates the arguments previo usly raised in his appeal from the trial court ’ s denial of his TCPA motion. As we concluded ab ove , these contentions lack merit. We overrule Nath ’ s first issue and proceed to address the remaining three issues.
A. The Trial Court Did Not Err in De nying Nath ’ s Jury De mand.
After the Texas S u preme Court rem anded the case in Nath II , Nath filed i n the t rial court a jury demand “ as to all issues ”

. Ap pellees filed a motion to strike Nath ’ s jury demand and the trial court granted the motion to strike in an order signed December 2, 2 019. Asserting the trial cou rt ab used its discretion by granting Appelle es ’ motion to strike, Nath argues that “ [ u]nder Nath II a nd Rohrmoos , [he] is entitled to have a jury determine the amount (if any) of17 reaso nab le and necessary comp ensatory attor ney ’ s fees awarded against him. ”
B ut ne ither Nath II nor Rohr moos state that a tt orney ’ s fee s sought as sanctions must be tried to a jury. See Nath II , at 708

- 10; Rohrmoos , 578 S.W.3d at 483

- 505. Moreover , t he Texas Supr eme Court previously has held that a party complaining about an award of a ttorney’s fees as sanc tions does not ha ve the right to a jury trial on the amount of the sanction. See Brantley v. Etter , 677 S.W.2d 503, 504 (Tex. 1984) (per curiam). In Brantley , the plaintiff was awarde d monetary san ctions for attorney’s fees bec ause of t he defendant’s fai lure to comply with d iscovery orders. Id . The defendant appealed and the court of appeals affi rmed the judgment with respect to the imposition of sanctions but con cluded the defendant “was entitled to a jury trial on the is sue of attorney’s fees”. Id

. Reversing this determ inati on, t he s upreme c ourt stated: There is, however, language in the opinion of the court of appeals from which it could be inferred that one c omplaining of the award o f attorney ’ s f ees as sanctions has the right to a jur y trial to de termine the amount of such atto rney ’ s fees. We do not think it was the intent of the court of appe als to provide for this, but as their opinion is susceptible to su ch interpretation, we exp ressly hold th at the amount of atto rney ’ s fees awarde d as sanction s for discovery abuse is s olely within the sound discretion of the trial judge , only to be set asid e upon a showing of clear abuse of that discretion.
Id . (emphasis added); see also Cantu v. Comm ’ n for La wyer Discipline , No. 13

- 1 6

- 00 3 32

- CV , 202 0 WL 70 64806 , at *41 (Tex. App.

— Corpu s Chr isti Dec. 3, 2020, no pet. h.) (mem. op.) (citing Brant l e y to support conclusion that the appel lant “ did not have a constitutional rig ht to a jury to determine his sanction i n a disc iplinary
pro ceedi ng ” ); Melasky v. Warner , No . 09

- 11

- 00447

- CV, 20 12 WL 5960 310, at * 4 (Tex. App.

— Beaumont Nov. 29, 2012, pet. denied) (mem. op.) (“When the trial court imposes sanctions, a party is not entitle d to a jury determination concerning the amount the trial co urt m ay choose to a ward as sanct ions.”).18 Nath does not c ite any authority that warrant s deviating from this prece de nt ; instead, the ca ses on which Nath relies exa mine issues different from the o ne prese nted here. See Tr anscon t ’ l Ins. C o. v. Crump , 330 S.W.3d 211, 22 7

- 232 (T ex. 2010) ( examining “ w hether a j udge o r ju ry decides attorney ’ s fees under Texas Labor Code § 408.221(c) ” ); Smith v. Patrick W.Y. Tam Trust , 296 S.W.3d 545, 547

- 49 (Tex. 2009) (concluding t here was no e vidence to sup port th e jury ’ s

r efusal to award any at torney ’ s fe es); C HCA Woman ’ s Hosp ., L.P . v. Uwaydah , No. 01

- 18

- 00220

- CV , 2020 WL 4299567, at * 9 (Tex. App.

— Houston [1st Dist.] July 28, 2020, no p et.) (mem. op.) ( after concludi ng the trial c ourt, as fact finde r, erred by re ndering a take

- n othing judgment on the defe ndant ’ s coun terclaim f or brea ch of contract, the court remanded for a new trial on the issue of attorney ’ s fees) ; and Pisharodi v. Columbia Valley Healthcare Sys., L. P. , No. 13

- 18

- 00364

- CV , 2020 WL 2 213951, at * 7

- 10 (Tex. A pp.

— Co rpus Christi May 7, 202 0, n o pet.) ( the nonmovant , whose su it was dismissed pursuant to the TCPA, was entitled to a jury determination as to the amount of the mov ant ’ s statutory “ reasonable
att orney ’ s fees ” under the TCPA).
We ove rrule Nath ’s i ss ue c hallen ging the trial court ’ s deni al of his jury demand.
B. Sufficien t E vidence Supports the Trial Court ’ s Sa nctions Award s . Challengi ng the sa nctions awards i n the trial court ’ s final judgment , Nath
arg ues (1) the t rial court abused its di scretion in re fusing to al low Nath to present evidenc e regarding his person al actions du ring the litigation, and (2) Appellees ’ “heavily redacted timesheets and billing records are not legally sufficient evidence ” to su pport the award s. We r eject both arguments.
1. Evidence R egardi ng Nath ’ s Involv ement in th e Litigation According to Na th, he “repeatedly requested that the trial court allow him to19 present evidence, on cross - examination and through his expert witness, conc erning to what extent [he] engaged in conduct warranting sancti ons .” Nath argues that the trial court’s exclusi on of thi s evidence “runs afoul of the Texas Supreme Court’s decision in Nath I and was in error.” We review a complaint regarding the admission or exclusion of evidence under an abuse of discretion st andard

. Mand ell v. Mandell , 214 S.W.3d 682, 691 ( Tex. App.

— Houst on [ 14t h Dist.] 2007, no pet.) (citing City of Brownsville v. Alvarado , 897 S.W.2d 750, 753 (Tex. 1995)). A trial court abuses its discre tion when it acts in an unreasonable or arbitrary man ner, o r witho ut reference to any guiding rules or prin c iples. Me rrill v . Sprint Waste Servs

. LP , 527 S.W.3d 663, 669 (Tex. App.

— Houston [14th Dist.] 2017, no pet. ). “ [W]e must uphold the trial
court ’ s e videntiary ruling if there is any leg itimate basis fo r the ruling

. ” Id

. As we disc usse d abo ve with resp ec t to Nath ’ s chall enge to the denial of his TCPA motion, on remand the trial court ’ s authority is limited to those determinations necessary to give f ull effect to the appellate court ’ s judgment and mand ate. See Phi llip s , 407 S.W.3d a t 234; Hudson , 71 1 S.W. 2d at 630. I n Na th I , the Texa s Supreme Court remanded this case with respect to a single issue: to determine the extent to which Appellees caused the expenses they s ought to

recover a s attorney ’ s fe es. Nath I , at 373. And in Nat h II , the s uprem e c ourt remanded this ca se for a second time f or “ further proceedings in light of Rohr moos ” , which “ explain[ed] the necessity of presenting either billing records or oth er supporting evidence w hen seeking to shi ft attorn ey ’ s fees ”

. Nath II , at 710.
T he trial court did not abu se its discretion by concluding that evidence regarding Nath ’ s personal actions during the litigation was irrelevant to th e determi nations remaini ng after Nath I and Nath II . Moreover , in N ath I , the

s upreme c ourt e x amine d evid ence ad dres sing “ whe ther th e sanction was visited on20 the true offender. ” Nath I , at 366. “ [R]eject[ing] Nath ’ s argum ent and conclud [ ing] the trial court did not abuse its discretion in labeling Nath the true of fender ” , th e s upre me c ourt held:
Nath ’ s co nduct surroun ding She naq ’ s he alth appears to be less about pursuing a legal redress for an injury (th e province of the attorney) and more about seeking irrelevan t personal information (an extraju dicial desire of th e clie nt ). While litigation is c ontenti ou s by definiti on and o ften uti lized to compel a desired end, we agree with the trial court tha t , on these facts, using a legal mechanism to force damaging, irrele vant information into the public domain and thereby
c ompel a mor e favorable settlement constitu tes an improp er purpo se. Id

. Against this backdrop , it was reasonable for the trial court to c onclude that evidence regarding Nath ’ s involvement in the litig ation was not relevant to the issues remaining to be resolve d.
We overrule Nath ’ s cha llenge t o the trial c ourt ’ s e xclusion of evidence addressing his personal actions during the litigation

. 2. Redacted Portions of Appellees ’ Billing Records
Citi ng collec t ively to hundreds of pages of billing records attache d as

ex hibi ts to Appellees ’ fee ap plicatio ns , Nath cont ends that App ell e es ’ “ heavily redacted tim esheets and billing records are not legally sufficient evidence to support the award

. ” Appellees filed approxi mately 350 page s of bi lling records with their fee appli cations . The billing re cor ds also wer e admitted into evidence at the hearing on Appellees ’ fee applications. Some of the e n tries in the Hospital ’ s b illing records are fully r edacted an d provide no information about the ir contents; simila rly, some o f the entries included in Bay l or ’ s billing r ecords have a li ne running through the included information

.21 A t the hearing, Pat rick Miz ell (one of the Hospital ’ s attorneys) testified as follows w ith respect to the redacted entries in the Hospital ’ s billing records : So we have in 2010 when I did this or iginally, I segregated fees which were not direc tly attributable to Nath ’s claims and so when you see it blacked out from left to right all the way across, that is for entries that we a re not seeking f ees

. . . . (emp h asis added). And Shauna C l ark (one of Baylor ’ s attorneys) te stified that these “ strik e t hroughs ” in certain entries in Baylor ’ s billing records re present

“ portions of the fees for which Baylor is not seekin g reimbursements t hrough sanctio ns. ”
As thi s te stimony shows , the redac te d entries of which Nath complains represent fees Appellees a re not seeking to recoup as sanction s

. None theless , Nath asserts that “ simply because [ App ellees] a re not seeking those amounts in this case does not me an that th e infor mation in those redacted r e cords was n ot relevant and admissible. ” Nath does not cite any case law or other authority to support t hi s contention. We reje ct Nath ’ s argument

. Nath I and Nath II re manded this case for a determination regar ding Appellees ’ r ole s in caus ing the fees th ey sought t o recove r as sanctions and whether those fees wer e reasonable

. See Nath II , at 710 ; Nath I , at 373. Because t he redacted entries do not represent f ees Appellees sought to

recover , the y do not render the evidence lega lly insufficient to supp ort the trial

co urt ’ s sanctions award

. Rather , consid ered in ligh t of R ohrmoos , the unredacted billing records constitute legally sufficient evidence supporting th e trial court ’ s sanctions awa rd. I n Rohrmoos , the s upreme c ourt stat ed that it in tended fo r the “ lodestar analysis to apply to any s ituation in w hich an objective ca lculation of reasonable hours worked times a reasonable rate can be employed ” to determine the amount of22 attorney ’ s fee s to b e awarded. 578 S .W.3d at 497

- 98. “ [ T]here is a presump tion that the ba se lod estar calculation , when supported by sufficient evidence, reflects the re a sonable and necessary attorney ’ s fees that can be shifted to the non

prevailing party. ” Id . at 49 9.

“ Sufficient eviden ce includes, at a minimum, evidence of (1) p articular

s ervices performed, (2) who performed th ose services, (3) approximately whe n the services were performed , (4) the reasonable amount of time required t o perform t he services, and ( 5) the reasonable hourl y rate for each p erson performing such servi ces. ” Id . a t 498. “ G eneral, conclusory testimony devoid of any real substance wil l not support a fee award. ” Id . at 501. Although billing records are not req uired to meet th ese requireme nts, such records “ are strongly encoura ged to prove the

reason ab l e ness and necessity of requ ested fees when those ele me nts are contested. ” Id . at 502 (emphasis in original)

. Th e evidence and testimony admitted at the hearing on Appellees ’ fee applications satisfy thi s standar d. T he Hospital filed as an exhibit 1 7 2 pa ges of billi ng records showing the legal work perfo rmed with respect to Nath ’ s case against the Hospital

. E ach entry in the bi lling records includes (1) the dat e the work was performed , (2) th e person wh o perform ed the work , (3) a description of the w ork , (4) the tim e spent , and (5) the amount charged. T he end of each billing invoice also list s the timekeep ers that worked on the matter, the hours they spent, and the total amou nt charge d for each person. The bil ling records show that this work was per form ed from Marc h 6, 2006 ( a pproxi mately two weeks aft er Nath filed his original petition) through November 22, 2010 (after the trial court ruled

on Nath ’ s motions f or new trial ). At the December 10 hearing , Mizell testified that t he total fees charged t o th e Hospital d uring this period were $1,000.04 3. 61

. Mizell said that, “ based on23 [his] analysi s of the invoices and the segregation [he] performed, ” $802,498 was

“ directly attributable to the Hospital ’ s def ense of Nath ’ s clai ms aga inst it[.] ” Mizell sai d th e Hospital w as seeking fees of $726,000, which was the original sanctions amount awarded by the trial cour t in 2010.
Mizell also provided a summary of the lega l work performed with respect to Nath ’ s cla ims over this four

- yea r p eriod. According to Mizell , he did not “ believe [the Hospital ’ s attorneys] c aused any of the fees or contribut ed to the fees in the sense that we did anything to prolong the litigation or do anything that c aused any of the se fees, other than defendi ng the claims by Dr. Nath. ” Baylo r filed as a n exhibit 182 pages of billing records showing the legal work performed on Nath ’ s case against Baylor. Each entry in the billing records includes (1 ) the date the work was performed, (2) the person who performe d the work, (3) the time s pent, a nd (4) a de s cription of the work. The end of eac h billing invoice also list s (1) the timekeeper s that worked on the case , (2) the amount of
t ime each timekeep er spent working on the matter , (3) each time keeper ’ s rate, and (4) th e total fee for each timeke eper. The b illing records show that this work was performed from March 1, 2006 through June 24, 2020. At the December 10 hearing, Clark testified that the tot al amount charged to Baylor for this time p eriod was $688,260.13. C lark tes tified that $644 , 50 0.16 was

“ di rectly attributable to Baylor ’ s defens e against Dr. Nath ’ s claims in this lawsuit[.] ”
Like Mizell, Clark also provided a summary of the legal work pe rformed for Baylor with respect to Nath ’ s c laims. When asked whe the r Baylor “ cause d or contrib uted to any portion of the fees it [sought] as san ctions in this case ” , Clark responded, “ Absolutely not. ”24 Considered in light of Rohrmoos ’ s standards and this c ase ’ s lengthy history , this testimony and A ppellees ’ billing records are leg ally su ffici ent evi dence to
sup port the trial court ’ s sanctions award s. We overrule Nath ’ s legal

- sufficien c y challenge

. C. The Hospital ’ s Future Appella te Attorney ’ s Fees Award is Not Supported by Legally Sufficient Ev idence.
In his final issu e, Nath asserts the trial c ourt abused its discretion by awarding the Hospital f uture appellate attorney ’ s fees , arguing (1) the Hospital

“ failed to plead for an award of future appellate fee s, and (2) “ [n]o evidence ” supports th e appellate attorney ’ s fees award.
1. The Hospital ’ s Ple a dings
At th e December 1 0 hearing, Mizell testified r egarding the Hospital ’ s request for its future appellate attorney ’ s fees. In its final judgment, the trial cou rt awarded the H ospital $489,800 in fu ture appellate fees “ condit ion ed upon the Hospital p re vailing on a ny appeal o f this case by Nath. ” Nath c ontends on appeal that the Hospital ’ s failure “ to ever p lead for future ap pellate attorney ’ s fees ” is fatal to i ts recovery

. Under Texas Rule of Civ il Procedure 301, the trial court ’ s ju dgment must

co nf orm to the p le adings. Tex. R. Civ. P. 3 01. But iss ues not raised in the
p leadings can be tried by express or implied consent o f the p arties. Tex. R. Civ. P. 67; see also Flowers v. Flowers , 407 S.W.3 d 452, 457 (Tex. App.

— Houst on [14th Di st.] 2013, no pe t.). The un pleaded issue may be deemed tried by con sent when evidence on the issue i s developed without objection under circumstances indicating both parties under stood the issue was being contested. See Ingram v. Deere , 288 S

. W.3d 886, 8 93 (Tex. 2009) ; Adeleye v. D r iscal , 544 S.W.3d 467, 484 (Tex. App.

— H ou ston [14th Dist.] 2018, no pet.). “ The trial court has broad25 discretion to determine whether an unpleaded iss ue was tried by consen t. ” Adeleye , 54 4 S.W.3d at 484.
Durin g M i zell ’ s tes timony on the Ho spit al ’ s future appellate attorney ’ s fees, N ath did not object to this evidence as being outside the Hospital ’ s pleadings. Therefore, it was within the tri al court ’ s discretion to conclude that the is sue of the Hospital ’ s future appellate attorney ’ s fe es was tried b y consent. See Ingram , 288 S.W.3d at 89 3; Adeleye , 544 S.W.3d at 484; see also, e.g., Mansfield v. Mansfield , No. 04

- 18

- 00551

- CV , 2019 WL 6138984, at * 4 (Tex. App.

— San Antonio Nov. 20, 2019 , pet. denied) ( “ Because [th e appellan t ’ s] attorney did not object to the absence of any pleadings when th e trial court addressed the issue of an award of appellate attorney ’ s fees, we hold the issue was tried by c onse nt. ” ); Sheen v. Sheen , No. 03

- 18

- 00358

- CV , 2 019 WL 2554570, at *5 (Tex. App.

— Austin June 2 1, 2019, no pe t.) (mem. op.) (is sue of appellate attor ney ’ s fees was tried by consent whe n the appellee ’ s attorney “ testified regarding his trial and appellate fees without o bjection ” ). With respect to this line of testimony, t he only obje ction Nath rai se d addressed the foundation for Mizell ’ s opinion : Obj ection, Your Honor. Lack of foundation on the part of this witness with regard to what appellate fees may or ma y not be with regard t o any matter or thi s mater. There ’ s not been a proper foundation wit h
re gard to th is witness. This objection was not suf ficient to m ake the trial court aware of the issue Nath now raises on appeal, i.e. , whether appell ate att orney ’ s fees were ou tside the scope of the Hospital ’ s pleadings

. See Tex. R. App. P. 33.1(a)

. We ov errule Nat h ’ s a r gument that the Hospital failed to plead for an award of future appellate attorne y ’ s fees.26 2. Evidentiary Sufficiency Nath argues that the re is “ no e vidence ” to support th e trial court ’ s awar d of the Hospital ’ s futur e appella te attorney ’ s fees

.

“ When reviewing a t rial court ’ s a ward of attorney ’ s fees, we must ensure the record contains sufficient evidence to support suc h an award. ” Yowell v. Granite Operating Co. , __ S.W.3d __ , 2020 WL 2502141, at *12 (Tex. May 15, 2020) (a pplying R ohr moos t o an issue challenging the sufficiency of the evidence to support an award of contingent appellat e fees). “ The party seeking attorney s ’ fees bears the burden of proof and must supply enou gh facts to support the reasonab leness of the amou nt awarded. ” Id

. Specifica lly , t o recover contingent appellate fees, the party wit h the burden of proof must “ provide opinion testimony about the services it reasonably believes will be ne cessary to defend the appeal and

a reas onable hourl y rate for thos e services. ” Id

. at *13.
At the December 10 hearing, Mizell testified that he represe nted the H o spital on both pr ior appeals in this case

. Mizell also said he has handled “ approx imately 35 , 40 appeals ove r [his] career. ” Mizell test ified that h e had argued in the court o f appeal s on ten separate occasions , including in t he appeal that prece ded Nath I

. Mizell provided the follow ing testimony about the fees that would be incurred in each s tage of the appe llat e process if Nath pursue s an appeal :

• Appeal to t he intermediate court of app eal s : Mizel l opined that an ap peal throug h this stage woul d incur $196,700 in attorney ’ s fees. Included in this number were the following estimates for attorn eys ’ work on the matter : (1) Stacey Vu working 70 hour s at $850 / hour; (2) Kathy Sm ith workin g 70 ho urs at $760/hour; and (3) Brooke Noble working 200 hours at $420/hour.

• Petitio n for review to the Texas S u preme Court : Mizell opined that a n appea l through this s tage would incur $96,950 in attorney ’ s fees. In clude d in this number were the fo llowing est imates for attorney s ’27 work on the matter: (1) Vu working 25 hours at $850/hour; (2) Smith working 25 hours at $7 60/hour; and ( 3) Nob le work ing 135 hours at $420/hour.

• Merits br iefing at the Texas S u prem e Court : Mizell opined that an ap peal through this stage would incur $96,950 in attor ney ’ s fees. I ncluded in th is number were the following estimates for attorneys ’ work on the m atter: ( 1) Vu working 25 hours at $850/hour; (2) Smith working 2 5 hours at $760/ho ur; and (3) Noble working 1 3 5 hours at $420/hour

.

• Oral argument at the Texa s Supreme Court : Mizell opined that an appeal through this stage would incur $48,825 in attor ney ’ s f ees. Included in this number were the foll owing e stimates for attorn eys ’ work o n the matter: (1 ) Vu worki n g 22.5 hours at $850/hour; (2) Smith working 22 .5 hours at $760/hour; and (3) Nob le working 30 hours at $420/hour.
These est imates are the sa me as t hose included in Mizell ’ s affidavit, which was filed as an exhibit to the Hospit al ’ s attorney ’ s f ee applica tion. The combined total for these part s of the app ellate process equal $439,425 in future appellate attorney ’ s fees. Mizell testified that these f ees “ are in ke eping with similar top

flight appellate lawyer rates in Houston, H arris County and in the Sta te of Texas

. ”
The trial court ’ s final judgmen t awarded the Hospital $489, 800 1 in future appellate attorney ’ s fees

— $50,375 more than the a mou nts Mizell testified to at the evidentiary hearing. The record does not contain any evidence to supp ort this

a dditional amount

. Therefore, a lthough the evide nce is legally sufficient to support a finding of some amount of future appellat e attorne y ’ s f ees, it is legally insufficient to support the ent ire a mount awarded in the trial court ’ s final judgment

. See, e. g., Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat ’ l Dev. &

1 T he trial court ’ s future appellate attorney ’ s fees aw ard is app ortioned as follows: (1) $196,7 00 in the event of an appeal to the intermedi ate court of appeals ; (2) $99 ,200 in the event of a petition for review to the Texas Supreme Court; (3) $ 96 ,9 50 i n the event of merits b r iefing at the Texas Supreme Cour t; and (4) $96,950 in the event oral argum ent is granted at the Texas Suprem e Court.28 Research Corp. , 299 S.W.3d 106, 123

- 24 (Tex. 2009); Corral

- Lerma v. Border Demol ition & Envtl. Inc. , 467 S.W.3d 109, 127

- 18 (Tex. App.

— El Paso 2015, pet. d enied)

. An appellate court p ossesses t he inherent power in a civil case to suggest a

r emittitur under Rule 46.3 of the Texas Rule s of Appellate Procedure whe n an appellant complai n s there is insufficient evidence to support an award and the appellate cour t agrees but concludes there is suf fici ent evidence to support a lesser award. Tex. R. App. P. 46.3; see, e.g., Enzo Invs., LP v. White , 468 S.W.3d 635, 654

- 55 (Tex. A pp.

— Housto n [ 14 th Di st.] 2015, pet. denied). Accordingly, we suggest to the Hospital a remit titur o f $ 50,375 , which will resul t in a future appellate attorney ’ s fee award of $439,425 if accepted. See Tex. R. App. P. 46.3.
C O NCLUSION
In his thir d ap peal , case number 14

- 19

- 00967

- CV, Nath asserted three issues raising two arguments: ( 1) he was entitled t o an interlocut ory appeal with respect
to the trial court ’ s denial of his TCPA motion t o d ismiss, and (2) the trial court erred by den ying his TCPA motion. We overrul e these issues

. In his fourth appeal, case number 14

- 20

- 00 23 1

- CV , Nath raised fo u r iss ues asserting th e trial cou rt (1) erred by proceeding to t rial on the merits; (2) abused its discretion by denying Nath ’ s jury demand; (3) abused its discretion by awar ding $1 .37 million in sanctions to App e llees ; and (4) erred by awarding the Hospital its future appellat e attorney ’ s fees. We overrule Nath ’ s first, second , and third issues.
We sustain Nath ’ s fourth issue in part with respect to t he insufficiency of th e evide nce to support the awar d of $489, 800 to the Hospital fo r its future appellate
att orney ’ s fees. W e suggest a remittitur of $ 50,375 . If the Hospital files in this Court a remitt itur of $ 50,375 within fifteen days after the issuance of our opinion,29 w e will reform the trial court ’ s judgment to award $439,425 in future appellate attorney ’ s fees and affir m the judgm ent as reformed. If the suggested remitt itur is not filed, we will remand to the trial court the issues of the amount of, and liability for, the Hospital ’ s attorne y ’ s fees. See Tex. R. App. P. 44.1(b); see also, e. g., Range v. Calvary Christian Fellowsh ip , 530 S.W.3d 818, 843 (Tex. App.

— H ouston [14 th Dist.] 2017, pet. denied). Accordingly, su bject to the Hospital ’ s acceptance of our suggestion of remi ttitur, we affirm the judgment as modified

.

/ s / Me agan Hassan Just ice

Panel consists of Justices Wise , Bourliot , and Ha ssan.