Affirmed and Memorandum Opinion filed April 2 , 2020.

In The 

## Fourteenth Court of Appeals

NO. 14
- 18
- 01062
- CV

PRO
- CARE MEDICAL CENTER AND INJURY MEDICAL GROUP , Appellant V. QUALITY CARRIERS, INC., GULF COAST EXPRESS CARRIERS, INC.,

AND BOBBY NIXON , A p pellee s On Appeal from the 189th District Court

Harris County, Texas Trial Court Cause No. 2014
- 16664

M E M O R A N D U M O P I N I O N In this appeal, a ppellant Pro

- Care Medical C enter and I n jury Medical Group ( “ Pro

- Care ” ) asserts the trial court abus ed its discretio n by awarding Pro

- Care less than its requested amount of at torney ’ s fees. For the reasons below, we affirm

. B ACKGRO UND Appellee Bobby Nixon was driving an eighteen

- wheeler when he became2

involved in an acci dent with two other vehicles. At the time of t h e accident, Nixon was employed by appellees Quali ty Carriers, Inc. and Gulf Coast Expres s Carriers, Inc. (together with Nixon, “ Quality Carriers ” ). Quali ty Carriers sued the vehicles ’ drivers and one vehicle ’ s owner, assert ing claims aris ing from the a cc i dent ; other individua ls inv olved in the accident i ntervened and asserted claims against Quality Carriers. During the course of litigation, Quality Carriers filed a “ Motion fo r Leave to J o in Additional Partie s ” seeking to join Pro

- Care, Fou ndation Surgical Hospital, and C u mberl and Su rgical Hospital as part i es to the suit. 1 Quality Carr iers ass erted that joinder was necessary to secure certain discovery f rom the health care providers. The trial cour t granted Quality Carriers ’ motion for lea ve. Pro

- Care f

i led an answer to Qual ity Ca rriers ’ suit and a moti on to dismiss under Texas Rule of Civil Procedure 91a, p ointing out that Quality Carriers ’ petition did not allege any claims against Pro

- Care. Qu ality Carriers filed an amended petition ass erting cl aims a g ainst Pro

- Care and the other health care providers for conspiracy to commit fraud and violations of the S t ark Law

. 2 Pro

Care withdrew it s original motion to dismiss and filed a second Rule 91a motion to dismiss addressing the pleaded claim s. Pro

- C are ’ s a ttorney, Michael C. Ke lsheimer, filed an affid avit in support of attorney ’ s fee s and asserted that $19,093 .00 in costs and fees had bee n incurred in Pro

- Care ’ s representation

. Kelsheimer ’ s affidavit did not include any exhibits.

1 Foundation Surgical Hospital and Cu mberland Surgical Hospital are not parties to this appeal.

2 The Stark Law prohib it s physicians fr om referring patients to entities with which th e phys ic ia n ha s a fi nancial relationship for certain designated health services payable by Medicare unless the transaction is structured to fit within one of the Stark Law ’ s excepti ons. See 4 2 C.F.R. §§ 411.3 53 ( a), 411 .35 7.3

Approxim ately fou r mo nt h s later, Pro

- Care file d a motion to dismiss under the Texas Medica l L i ability Act ( “ TMLA ” ) , asserting Quality Carr iers failed to comply w ith the TMLA ’ s expert

- report requirement. 3 Kelsheimer filed a second
atto rney ’ s fees affidavit cla imin g th a t $3 0,299. 3 6 in fees and costs ha d been incurred. Kelsheimer ’ s s econd affidav it did not include any exhibits. After responding to Pro

- Care ’ s motions to dismiss, Quality Carriers nonsuited with p rejudice its claims against Pro

- Ca re, Foundation, and Cumberlan d. Th e trial court signed an order granting Quality Carriers ’ nonsuit

. Kelsheimer then filed a third attorney ’ s fees affidavit asserting that $53,194.01 in costs and fees had been incurred. Kelsheimer ’ s third affidavit include d approximately 40 pages of billi n g records. Qualit y Carr iers filed objections to Pro

- Care ’ s evide nce and argued that (1) Pro

- Care could not recover for fees ex pended before Quality Carriers asserted any claims agains t the health care providers; (2) t he billing records wer e so heav ily re d acted it was “ impossible ” to determine whether the

w ork merited a fee recovery ; and (3) the hourly rates we re excessive. The trial court h e ld a hearing on the health care providers ’ motion s to dismiss on F e bruary 9, 2018. 4 Yolanda Godina, one of th e indi v iduals involv ed in the accident, nonsuited her claim s against Quality Carriers; the trial court granted the nonsuit in a signed order. Under the impression that this order disposed of all remaining claims , Pro

Care fi led a motion to m odify the order gran ting Godi na ’ s nonsuit and requested

3 Texas Civil Practice and Reme di es C od e sect ion 74.351 requires tha t a plaintiff as serting a health care liability claim serve an expert report within 120 days of the filing of an answer by an y defendant physi cian or healt h car e provider. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351( a)

.

4 A tr a nsc rip t of this hearing was n ot included wi th the re porter ’ s record. Pro

- Care state s in its appellate brief that , after in quiring with the court reporter, it was notified that “ th e re is no recordin g of the hearing. ”4

that the trial co urt (1) dispose of the health car e pro viders ’ motion s to dismiss, and ( 2) award attorney ’ s fees. The trial court held a hearing on the motion to modify on April 30, 2018. The attor neys for Qualit y Car riers, Cu m berland, and Foundation were prese nt at the hea ring; Pro

- Care ’ s attorney attempted to attend via telephone. Whe n the trial
court was informed th at “ there may be a couple of attorneys on the phone that wanted to participate, ” the trial court sa id , “ I don ’ t want to hear anymore from

a nybody else. ” Afte r the attorneys ’ arguments, the trial court stated: I think you ’ re both full of hoo whee [sic] ; and the fees being charged

— sought to be charged by the p roviders ’ attorneys for t his

— thi s alle g ed m iscarriag e of justice are outrage ous. Both sides are to be tot ally

— I don ’ t want to say, “ condemned ; ” but I have total dis approval of b oth side s and how both sides have conducted them selves in litigation. I ’ m tired of all of you. I ’ m going t o ente r an order tha t ’ s going to be mode st sanctions; and you al l can get o ut of here and go to San A nt onio or go to the Court of Appeals or go wherever you want and try to sell somebody else on these outrageous claims by both sides, okay. At th e conclus ion of the he ar ing , the trial court signed an order granting Pro

- Care ’ s mot ion t o modify Godina ’s nonsuit. The trial cour t granted Pro

- Care ’ s Rule 91a and TMLA motions to dismiss and awarded Pro

- Care $10,000 in attorney ’ s fees.
Pro

- Care appeale d to this court ; we dismissed the appeal for lack of jurisdiction because no final j udgment o r otherwise appealable order had been signed in the underlying proce eding. See Pro

- Care M e d. Ctr. v. Quality Carriers, Inc. , No. 14

- 18

- 00350

- CV, 2018 WL 3469008 ( Tex. App.

— Houst o n [1 4th Dist. ] July 19, 2018, no pet.) (mem. op.) (per cu riam)

. The trial court disposed of the remaining claims and signed a n agreed final judgment on November 12, 2018. Pro

- Care ti mely appealed.5 A NALYSIS In its sole iss ue, Pro

- Care as serts the trial cour t ’ s $10,0 00 attorney ’ s fe es award constitutes an abus e of discre tion. Pro

- Care argues that its evidence establishes the full amount of costs and fees as a matter of law and requests that we render a judgment in its favor for $53,194.01

. The t rial c o urt ’ s Ap ril 3 0, 2018 order granted Pro

- Care ’ s motions to dismiss Quality Carriers ’ claims under Texas Rule of Civil Pro cedure 91a and Texas Civil Practice a nd R emedies Code section 74.351. Rule 91a and section 74 .351 entitl e d Pro

- C are to a n award o f atto r ney ’ s fe es. 5 See Tex. R. Civ. P. 91a; Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
We review an attorney ’ s fees award for an abuse of discretion

. Ridge Oil Co. v. Guinn Invs., Inc. , 148 S.W.3d 143, 163 (Tex. 2004 ); State Farm Lloyds v. Hanson , 500 S. W .3d 84, 97 (T ex. App.

— Houston [14th Dist.] 2016, pet. den ied). A trial court abuses its discretion when it rules arbitrarily, unreasonably, or without regard to guiding legal principles. Bocquet v. Herring , 972 S.W.2d 19, 21 (Tex. 1998).
An award of att o rney ’ s fees m ust be supported by evidence that the fe es a re reasonable and necessary; the re asonableness of fees generally is a fact issue. G arcia v. Gomez , 319 S.W.3d 638, 642 (Tex. 2010); Stewart Title Guar. Co. v. Sterling , 822 S.W.2d 1 , 10 (Tex . 1991 )

. A reasonab le fee is one that i s not excessive or extre me, but instead is moderate or fair. Garcia , 319 S.W.3d at 642

. Factors that trial courts should consider whe n determining the reasonableness of a

5 The Texas Supreme Court r ec entl y ga ve f inal approval to an amendment of Rule 91a making an award of attorney ’ s fees discretionary , rather than mandatory. See Final Approval of Amen dments to Texas Rule of Civil Proced ure 91a.7, Nov. 1 2, 2019 (Tex. Misc. Docket No. 19

- 9 108). Becau se thi s am endm ent to Rule 91a applies only to civ il actions com menced on or after September 1, 2019, it is inapplicable to the underlying suit filed in 2017

.6

fee include: the time, labor, and skill req uire d t o p rop erly perform the legal

ser vice; the novel ty and difficu lty of the questions involved and the results obtained ; th e nature and length of the professional relationship with the client; and the experience, reputation, and ability of th e la wyer pe rform i n g t he servi ces. See Arthur Andersen & Co. v. Perry Equip. Co rp. , 945 S.W.2d 812, 818 (Tex. 1997).

“ To determine an appropriate fee award, the t rial judge is entitled to look at the entire record and to view the matter in light of the amou nt in con trove r s y, the nature of the case, and his or her personal experience a s a lawyer and judge. ” Cole Chem. & Distrib., Inc. v. Gowing , 228 S.W.3d 684, 690 (Tex. App.

— Houston [14th Dist.] 2005, no pet.).
Here , t he trial court did n ot abuse its disc retion by awar d i ng Pro

- Care less than its requested amount of attorney ’ s fees

. Kelsheimer filed three affidavits and 40 pages o f billing records to support his contention that Pro

- Care incurred $ 53,194.01 in costs and fee s for its representation in the u nderlying proc e e ding

. Whether these fees wer e reasonable, however, was a con sideration l eft to the trial court in its role as factfinder. The billing records show that 11 timekeepers worked on the matter with hourly rates ranging from $ 175 to $ 700 . As Q uality Ca rrier s poin te d out in its objections to Pro

- Care ’ s fees evidence, ce rtain billing records are heavily redacted

— some entries were completely redacted and do not show who worked on th e matter, how long they worked, or what ta sks were completed.
The trial cour t was per mitted to consider these billing records in con junction with th e nature of the underlying p roceeding which, based on the record, did not proceed past the motion

- to

- dismiss stage

. Pro

- Care filed three m otions to dismiss Quality Carriers ’ clai ms : tw o un der Rule 91a and one under the TMLA. The first Rule 91a motion was filed b efore Quality Carriers asserted any claims against Pro

Care and sought a dismissal on that basis ; t his motion was wit hdraw n after Quality7

Carriers f iled its amended petiti on. P r o
- C are then filed a second Rul e 91 a motion challeng ing the two claims Quality Carriers asserted against Pro

- Care as well as Quality Carriers ’ standing to pursue its claims. Before th e second motion w as ruled on, Pro

- Care filed a third motion to di s mis s u nder the TMLA asserting that Quality Carriers did not satisfy the TMLA ’ s expert

- report requirement

. Each of
t hese motion s (together totaling approximately 25 p ages ) prese nted st raightforward arguments that did not require a discussion or analysis o f co mp le x l egal issues. The trial court, in its r ole as factfinder, was ent itled to evaluate the complexity a nd necessity of these legal services in light of the $53,194.01 in claimed costs and fees. Given the scope of this evidence , we conclude the tr ia l co ur t did not abuse its discretion by awarding Pro

- Care $10,000 in fees

. See In re S.E.W. , No. 01

- 18

- 00310

- CV, 2019 WL 1560795, at * 4

- 5 (Tex. App.

— Houston [1st Dist.] Apr. 11, 2019, no p e t. ) (mem. op.) (trial court did not abuse its discretion by awar di ng l es s tha n the requested amo unt of attorn ey ’ s fe es ); Weaver v. Jamar , 383 S.W.3d 805, 813

- 14 (Tex. App.

— Houston [14th Dist.] 2012, no pet.) (same); Dumler v. Quality Work by Davi dson , No. 14

- 0 6

- 00536

- CV, 2008 WL 89961, a t * 6

- 7 (Tex. App.

— Houston [14th Di st.] J an . 1 0, 2008, n o pet.) ( mem. op.) ( same).
A ssert ing the trial court ’ s attorney ’ s fees award was based “ upon a whim, ” Pro

- Care argues that the trial court took no notice of the documen tary evide nce in the record

. But the record does not support th is con te nt ion

. Kelsheimer ’ s third affidavit and bill ing records were filed appro ximately four months before the trial court signed the order awarding Pro

- Care attorney ’ s fees. At the April 3 0, 2018 hearing on Pr o
- Care ’ s motion to modify , the trial court re ferr ed t o t he fees sought by Pro

- Care and the othe r health care providers as “ outrageous, ” s uggesting it was famil iar with the amounts sought to be recovered and the purported justification s therefor

. Moreover , the trial court held a hearing on Pro

- Car e ’ s mo ti on s to dismiss8

on Februar y 9, 2018 ; both motion s explicitly requested an award of attorney ’ s fe es. According to Pro

- Care, no record was taken of this hearing. Without a reporter ’ s
re cord from this hearin g, we presume the evide nce at the hearing w as rel ev an t an d supports the trial court ’ s judgment awa rding attorney ’ s fe es. See In re M.K.M.L. , No. 14

- 17

- 00010

- CV, 2018 WL 1476340, at * 4 (Tex. App.

— Houston [14th Dist.] Mar. 27, 2018, no p et.) (mem. op.); Bro wer v. Hearn , No. 14

- 07

- 00967

- CV, 2009 WL 1 02 2017 4, a t * 3 (Tex. App.

— Houston [14th Dist.] Feb. 10, 2009, no pet.) (mem. op.).
Pro

- Care also asserts the trial court erred when it “ refused to hear testimony or argument from Pro

- Care ’ s co unsel ” at the April 3 0, 2018 hearing. But Pro

- Care do es not sta te wha t ad diti onal testimony or argument it would have provided w ith respect to its request for attorney ’ s fees. Given the scope of evidence before the trial court and the hearing held on Pro

- Care ’ s motions to di smiss , we can n ot conclude that th is action re nder ed t he t rial court ’ s attorney ’ s f ees award an abuse of discre tion.
We overrule Pro

- Care ’ s sole issue on appeal.
C ONCLUSION We affirm the tr ial court ’ s November 12, 2018 final judgmen t.

/s/ Meagan Hassan J us tice

P anel consists of Justices Christopher , Bourliot , and Hass an
.