## In the Court of Appeals Second Appellate Dist rict of Texas at Fort Worth

_________________________ __ No. 02

- 18

- 00234

- CV

___________________________

On Appeal from the Probate Cou rt Denton County, Texas Trial Court No. PR

- 2009

- 00220

- 02

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr 

### I N THE 

### E STATE OF 

### J ENNIE 

### M. S TOKES 

### , D ECEASED2 MEMORANDUM OPIN ION
P laintiff

–

A ppellee Mayrit a J. Roberts Hillman sue d multiple de fendants for

con spiring to obtain her elderly mother ’ s p ro per ty , adding as a defendant Appellee
Clark W. Brazil, M.D., the medical doctor who had long care d for her mother, Jennie
M. Stokes

. Hillman filed no chapter 74 expert report under the Texas Medical Liability
Act ( TMLA) , 1 nor did Dr. Brazil move to dismi s s o n th at basis after 120 days had passed without an expert report , as the statute allowed him to do

. 2 Instead , Dr. Brazil participat ed in merits discovery for some 18 months before moving to dismiss on the ground t hat Hillman had in reality lod g ed a heal thca re

- liability claim against him despite her artful pleadings and thus an expert report was required but had not been timely provide d. 3
The trial co urt denied Dr. Brazil ’ s motion to dismiss, but we reverse d and
rendered in part , ho ldi n g that Hil lman ’ s claims against him should be dismissed with

1 T ex. Civ. Prac. & Rem. Cod e A nn. § § 74.00 1

– .507.

2 Hillman sued Dr. Brazil in February 201 2, and h e a nswered the lawsuit a month later , in March

. Under chapter 74, Hillman then had 120 days to file an exper t re port after Dr. Brazil res ponded to the l awsuit , or until July 2012. See id

. § 74. 35 1(a)

. Although Dr. Brazil could have moved for dismissal unde r s ect ion 74.351 after the 120

- day period cam e and went withou t an e xper t report, he did not do so un til October 2013.

3 D r. Braz il as sert ed tha t he could not tell that a healthcare

- lia bility cla im was invo lved unti l Hillman was deposed by one of his codefe nda nts and he b egan to research the TMLA expert

- report issue after hear ing Hillman testify

. Even so, mor e t han t wo mon ths pa s sed before Dr. Brazil moved to dismiss ; in the interim, his lawyer attended six more depositions , including Dr. Brazil ’ s .3 prejudice un der TMLA section 74.351(b) (2)

. See Brazil v. Hillman , No. 02

- 13

- 00441

- CV, 2 014 WL 477 0722 , at *5 (Tex. App.

— Fort Worth Sept. 25, 2014, no pet.) (mem.
op
. ) ; see also Tex. C i v. Prac. & R em. Code Ann. § 7 4.351( b) (2)

. We remanded only for
the trial court to decide how much Dr. Brazil should recover in statutori ly mandated

“ reasonable att orney ’ s fees and costs of court incurred , ” as section 7 4.351(b)(1) provide s . See Brazil , 2014 WL 477 0722, at * 5 ; see also Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(b)(1)

. On remand , t he trial court conducted a three

- day bench trial on the i s sue of

attorne y ’ s fee s. A lmost all the fee testimony was from each side ’ s expert
. One issue that was disputed throughout the trial was whether the l odestar method 4 applie d to the entire attorn ey ’ s

- fee awa r d under section 74. 351

. Relying on the lodestar method,
Dr. Brazi l presented evidence and testimony from his expert and trial counsel , both of
whom opined that Dr. Brazil had incurred o ver $ 100 ,000 in at t orney ’ s fees. In
contrast, Hillman ’ s expert te st ified that because of TMLA section 74.351(s) ’ s disco very

- 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 w as $38 , 796.88. The a ttorney ’ s

- fee t rial also included much back and

4 By conve nti on, t h e lodestar method involves multiplying the number of hours reasonably expended by a reas onable h ourly rate. See Hensley v. Eckerhart , 46 1 U .S. 424, 433, 103 S. Ct. 1933 , 1939 (1983); El Apple I, Ltd. v. Olivas , 370 S.W.3d 757, 76 1 (Tex. 2012).4 forth over whether Dr. Brazil should recover “ reason able ” fees

— the statutory language

— as opposed to fees that were “ reasonable and necessary. ” 5
At the trial ’ s conclus ion , t he trial court ruled from the bench that Dr. Brazil
sho uld recove r $44,335

. 6 The trial court then entered findings of fact and conclusio ns of law that refer red in passing to the Arthur Anders e n fact ors used to determin e the
reasonable ness and necessity of attorney ’ s fees. See A rthur 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 f indings and
conclusions did not specifically address the l odestar me thod , nor did th ey tether the
trial court ’ s unilateral decision to add $6,000 to the fee award to any fact s or legal analysis

. The Texas S upreme C ourt has recently provided new guidance to litigants and

courts on h ow to assess attorney ’ s fees i n cases in volving a fee

- shif ting statute or

5 It wa s th e opinion of Dr. Brazil ’ s expert , for example, that his task was to determine reason able and necessa ry fees, wholly ap art from TMLA section 7 4.351(b)(1) ’ s use of the single word “ reasonable. ” Main taining a distinction between the two concepts contin ued through Dr. Brazil ’ s appellate briefing in which he noted, for example , that “ the attorney ’ s fees provisions of the TMLA do [ ] not r equire that the fees be both reasonable a nd necessary, but rather, only reasonable. ”

6 T he trial court relied largely on H ill man ’ s expert ’ s opinion but s ubtract ed , without explana tion, t he $461.88 in co ur t costs for Hillman ’ s dep osition that her expert had approved

. The n , f rom the bench t he trial court add ed an extra $6,000 in attorney ’ s fees for reasons it did not explain , s ayi ng only that “ the breakdown on that [$44,335] is $21,335, whi c h is an additio nal 20 hours of time [that is, $6, 000] f or [Dr. Brazil ’ s attorney] that [Hillman ’ s expert] did not allow that the Court does allow

. The [$] 20,000 for the appeal and, in additio n, the [$] 3,000 for the [Hillman] deposition, which comes to a t otal of $44,335. ”5 contract
. See Roh rmoos Venture v. UTSW DVA Health care , LLP , No. 16

- 0006,
2019 WL 1873428, at *8

– 26 (Tex. Apr. 26, 2019)

. There, t he supreme court recognized that “ Texas law has develope d wit h references to the Arthur Andersen

m ethod (someti mes referred to as the ‘ t raditional ’ method) and the lodestar method for proving th e reasonableness and n ecessity of att orney ’ s fees

. ” Id. at * 1 3

. But despite
the differen t termin ology

— which Texas cour ts have long kept separate

— the s upreme

c ourt clarified tha t “ the lodestar method developed as a ‘ short h and version ’ of the
Arthur Andersen factor s an d was never intended to be a separate test or method

. ” Id. Moreover, Rohrmoos Venture also instructs that “ reasonable ” fees are the same a s

“ reaso nable and neces sar y ” 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 rea sonable and nec essary. ” Id

. The element s 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 no n

- prevailing party. ” Id.
Becaus e this r ecent s upreme c o urt author ity has mate rially affected and provided guid ance to central question s in the un derlying trial for attorney ’ s fees here , 7

7 We recognize that while perhaps the ultimate question might be whether and to what extent Dr. Braz il can recover fees associated with merits discovery , our disposition here doe s not require or even permit us to resolve t hat qu estion at this p oint ; the parties

— and this court

— first need th e trial court to reconsider and determine Dr. Brazil ’ s “ r eas onab le attorney ’ s fees and costs of court incurred, ” as section 74.351(b)(1) prov ide s, in light of Rohrmoos V enture

. See In re H.B. , N o. 2

- 06

-6 we reverse the judgment and remand the case for anot her trial to det ermine an
appr op riate award to D r. Brazi l on his claim f or fees. See To ledo v. KBMT Operating Co.,
LLC , No. 09

- 17

- 00 265

- CV, 2019 WL 2455270, at *1 , * 6 (Tex. App.

— Beaumont June 13, 2019, no p et. h.) (reversing and remanding judgment for atto rney ’ s fees in l ight of

“ the Texas Supreme Court ’ s recen t clarification in Rohrmoos Venture v. UTSW DVA Healthcare, LLP ” )

. Accordingly , we reverse and rema nd for a new trial

.

/s/ Elizabeth Kerr Elizabeth Kerr Justice
Delive red: August 28, 2019

102

- CV, 2006 WL 3438193, at *2 (Tex. App.

— Fort Worth N ov. 30, 2006, no pet.) (mem. op. on reh ’ g ) ( “ Courts are not author ized to render advisory opinions on issues not necessary to a disposition o f a n appeal. ” )

.