Affirmed and Memorandum Opinion filed May 30, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00457-CV

CONCERT HEALTH PLAN, INC. a/k/a CONCERT HEALTH PLAN a/k/a

CONCERT HEALTH PLAN INSURANCE COMPANY, Appellant

V.

HOUSTON NORTHWEST PARTNERS, LTD 

d/b/a HOUSTON NORTHWEST MEDICAL CENTER;

MULTIPLAN CORPORATION a/k/a MULTIPLAN, INC.;

and PRIVATE HEALTHCARE SYSTEMS, INC. a/k/a PHCS, Appellees

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2010-21478

M E M O R A N D U M O P I N I O N

In this dispute between a hospital, an insurance company, and a preferred 

provider organization, the insurance company appeals from judgments in favor of 

the hospital and the preferred provider organization. In five issues, the insurance 

company asserts that the trial court erroneously found that it owed the hospital an 
2

additional payment under the terms of the governing agreements and erroneously 

awarded the hospital attorney’s fees. In a sixth issue, the insurance company 

asserts that the trial court erroneously granted summary judgment to the preferred 

provider organization because there was a fact issue regarding whether the 

preferred provider organization negligently re-priced the hospital’s bill, resulting in 

an increased payment amount due to the hospital. We affirm.

BACKGROUND

This dispute involves three entities: (1) a hospital, Houston Northwest 

Partners, Ltd., d/b/a Houston Northwest Medical Center (the ―Hospital‖); 

(2) Concert Health Plan, Inc. a/k/a Concert Health Plan a/k/a Concert Health Plan 

Insurance Company (―Concert‖), an insurance company providing insurance 

coverage to the patient who received medical services at the Hospital in this case; 

and (3) MultiPlan Corporation a/ka/ MultiPlan, Inc. and Private Healthcare 

Systems, Inc. a/k/a PHCS (collectively, ―PHCS‖), a preferred provider 

organization.1 The Hospital entered into a participating provider agreement (the 

―Provider Agreement‖) with PHCS, making the Hospital a preferred provider in 

PHCS’s network. Concert entered into a subscriber services agreement (the 

―Subscriber Agreement‖) with PHCS, pursuant to which Concert agreed to pay 

providers, such as the Hospital, in accordance with the applicable terms and 

conditions of the Provider Agreement between PHCS and the Hospital. 

This dispute arose after a patient covered by Concert was treated at the 

Hospital from May 30, 2007 to June 12, 2007. The parties agree that the terms of 

―Exhibit C‖ to the Provider Agreement, effective January 1, 2007, control the 

 

1 MultiPlan, Inc. was in the process of acquiring Private Healthcare Systems, Inc. during 

the events that form the basis of this lawsuit. Private Healthcare Systems, Inc. is currently a 

wholly-owned subsidiary of MultiPlan, Inc.
3

pricing of the Hospital’s claim in this case. This exhibit is entitled ―Inpatient 

Services – Per Diem Reimbursement.‖ It contains the following definitions, 

policies, and exclusions pertinent to resolution of this dispute:

Billing. Facility [the Hospital] is required to submit a single, 

comprehensive bill using the industry standard Facility Claim form 

(UB-92 or successor form – not HCFA 1500). The standard facility 

claim form must include, at a minimum, the standard billing and 

patient information and the Facility’s total billed charges for the 

services provided by Facility during the Covered Individual’s Facility 

Stay.

***

The following Revenue Code Exclusions are excluded from the 

Inpatient Category Preferred Payment Rates as defined in this Exhibit 

C and will be reimbursed pursuant to the Preferred Payment Rate 

Specified for each Revenue Code Exclusion.

Revenue Code 0250: Pharmacy – General shall be reimbursed at a 

50% discount when billed charges are $250 or more per item and then 

added back to the Preferred Payment Rate for the remainder of the 

claim. When billed charges are less than $250 per item, this exclusion 

does not apply and the charges will be included in the regular per 

diem/per case rate.

***

Revenue Code 0636: Pharmacy – Extension of 025X shall be 

reimbursed at a 50% discount when billed charges are $250 or more 

per item and then added back to the Preferred Payment Rate for the 

remainder of the claim. When billed charges are less than $250 per 

item, this exclusion does not apply and the charges will be included in 

the regular per diem/per case rate.

The Hospital, pursuant to the Provider Agreement, submitted its bill to 

PHCS, using a UB-04 claim form, the successor form to the UB-92 described in 

Exhibit C. The Hospital’s total bill was $96,175.17. As is relevant to this dispute, 

this bill contains several revenue codes possibly subject to the Revenue Code 

Exclusion described above. First, there is a single line identified by revenue code
4

―250‖ and described as ―PHARMACY‖ for 261 ―SERV. UNITS‖ with total 

charges of $13,525.80. The bill also contains several lines identified by revenue 

code ―636.‖ Only one of these ―636‖ coded items is at issue here: it is described 

as ―DAPTOMYCIN 1MG‖ for 3992 ―SERV. UNITS‖ with total charges of 

$6,986.00.

2

 

On June 27, 2007, PHCS ―re-priced‖—or adjusted the price of—the claim 

pursuant to the terms of the Provider Agreement. It provided a ―PPO Claims 

Transmittal‖ form to Concert, indicating billed charges of $96,175.17, a ―PPO 

Discount‖ of $68,771.17, and ―Adjusted Charges‖ of $27,404.00. On August 20, 

2007, the Hospital requested a ―re-price review‖ of this claim, asserting that PHCS

had failed to include reimbursement for the revenue code exclusions described 

above.

3

 In this letter, the Hospital acknowledged that it had received $26,214.26 in 

payment on this claim, with a ―member [patient] liability‖ still outstanding. The 

Hospital sought additional reimbursement of $10,864.03, which included payment 

for the Revenue Code Exclusions, for a total adjusted price of $37,831.53.

4

 

PHCS re-priced the claim and submitted to Concert a ―Hospital Claim 

Adjustment Notice,‖ dated September 10, 2007, providing as follows:

We have been requested by a participating provider to review the 

enclosed facility bill and determine if an adjustment should be made 

to the allowed amount. It is our determination that the adjustment is 

appropriate according to your contract with PHCS Network and 

should be made. MultiPlan does not make determinations with 

respect to benefits or eligibility to pay claims.

 

2

Trial testimony established that ―SERV. UNIT‖ is an abbreviation for ―serving unit.‖

3

For ease of reference, we will refer to the specific disputed revenue code exclusions on 

this claim as the ―Revenue Code Exclusions‖ throughout the remainder of this opinion.

4 At trial, the Hospital acknowledged that it had incorrectly calculated the amount due for 

revenue codes 250 and 636 and that the correct additional amount due for these codes was 

$10,255.90.
5

The correct allowable amount for the attached claim is $37658.90

STDU 6 days @ 2080.00 per diem appl[ie]s + SURG 7 days @ 

2132.00 per diem applies + Rev codes 250/636 @ 50% discount for 

each line item $250 or more

Rev code 250 @ 50% discount = $6792.90

Rev code 636(J0878) @ 50% discount = 3493.00

Please adjust your claim accordingly. If you have any questions, need 

clarification or need a copy of the facility bill, feel free to call us . . . . 

You may also contact via email. . . .

(emphasis in original). PHCS also submitted a new PPO Claims Transmittal form 

to Concert. This new claim form indicated that the PPO discount was $58,515.27, 

and the adjusted charges were $37,659.90. The claim form contained the 

following message: ―Re-Repriced Sheet. STDU 6 days @ 2080 per diem appl[ie]s 

+ SURG 7 days @ 2132 per diem applies + Rev codes 250/636 @ 50% discount 

for each line item $250 or more[.]‖ The difference between the original re-priced 

claim and the adjusted re-priced claim was the addition of $10,255.90 for payment 

of the Revenue Code Exclusions.

Concert refused to pay the adjusted claim despite the Hospital’s multiple 

collection efforts, both internally and through retained counsel. The Hospital’s 

counsel notified PHCS in writing on February 10, 2009 that due to the protracted 

delay in Concert’s payment of the adjusted claim, the Hospital could be entitled to 

payment of its full billed charges, less the payment that Concert had already made. 

On June 9, 2009, PHCS notified the Hospital that Concert’s failure to honor the repriced claim resulted in cancellation of Concert’s discount under the Provider 

Agreement. PHCS stated that the unpaid claim had reverted to the Hospital’s total 

billed charges and that it had notified Concert of this ―loss of discount.‖ 

On October 9, 2009, the Hospital filed an arbitration petition against Concert 

with the American Health Lawyer’s Association, seeking approximately $70,000 
6

in economic damages under theories of breach of contract, promissory estoppel, 

and quantum meruit.5 Concert subsequently filed a lawsuit in federal district court 

in Illinois, attempting to enjoin the arbitration and seeking a declaratory judgment 

that it did not owe the Hospital any additional money and attorney’s fees. The 

Hospital filed a motion to dismiss Concert’s lawsuit, which was granted by the 

federal district court in March 2010.

Before the dismissal of Concert’s federal suit, the Hospital demanded 

indemnification from PHCS.

6

 PHCS rejected the Hospital’s pre-litigation demand 

for indemnification. After the federal suit in Illinois was dismissed, Concert 

refused to participate in the pending arbitration. On April 6, 2010, the Hospital

filed suit in district court in Harris County, seeking a declaratory judgment and an 

order compelling Concert to arbitration. After the Hospital filed suit, Concert and 

the Hospital agreed to resolve their dispute in the Harris County district court. The 

Hospital subsequently amended its petition, dropping its arbitration demand and 

declaratory judgment action, and asserting claims for breach of contract, 

promissory estoppel and quantum meruit against Concert. In its live pleading, it 

alleged damages of at least $69,960.91, the difference between the amount it had 

 

5

The Provider Agreement provides for arbitration in this manner in the event of a 

dispute.

6

The Provider Agreement contains the following indemnification clause:

PHCS will indemnify and hold [the Hospital], and its respective directors, 

officers, agents, employees, and representatives, harmless from any and all 

liability, loss, damage, claim, or expense of any kind, including reasonable costs 

and attorneys’ fees, which result from negligent or willful acts or omissions by 

PHCS and its directors, officers, agents, representatives, and employees regarding 

the duties and obligations of PHCS under this Agreement. 
7

been paid for this claim—$26,214.26—and the amount of its original bill—

$96,175.17.7 

On July 13, 2010, Concert filed a third-party petition against PHCS. In its 

live pleading, it asserted claims for negligence and breach of fiduciary duty based 

on PHCS’s handling of the re-pricing of this claim. PHCS sought summary 

judgment on Concert’s claims in June 2011. In its summary-judgment motion, 

PHCS asserted that the only obligation or duty it owed to Concert relating to the 

payment of the claim at issue was to re-price the claim received from the Hospital

and forward the re-priced claim to Concert for payment. PHCS admitted that it 

had made a calculation error in its original re-priced claim, but asserted that it 

promptly corrected the error and timely sent the corrected claim to Concert. 

According to PHCS, once it timely forwarded the corrected claim to Concert, it 

owed Concert no further obligation or duty relating to the claims process; thus, it 

asserted any damages sustained by Concert arose from Concert’s decision to not 

pay the adjusted claim at issue rather than from any act or omission on PHCS’s 

part. 

Concert responded to PHCS’s summary-judgment motion, claiming that 

there was a fact issue regarding whether PHCS’s negligence caused it damages. 

Concert pointed to the following alleged fact issues in an effort to defeat summary 

judgment: the original mistake in re-pricing made by PHCS; the inconsistency 

between the amount sought by the Hospital in its request for a re-price review and 

the amount for which PHCS re-priced the claim, described supra; deposition 

testimony that there were ongoing discussions between Concert and PHCS

 

7 Because PHCS continued to refuse to indemnify the Hospital, the Hospital amended its 

petition to add claims for breach of contract, negligence, and promissory estoppel against PHCS. 

The trial court entered a take nothing judgment in PHCS’s favor, from which the Hospital has 

not appealed.
8

regarding re-pricing of claims; and deposition testimony that Concert had 

requested copies of the contracts governing the relationships between the parties 

from PHCS and had not been provided them. The trial court granted PHCS’s 

summary-judgment motion on Concert’s causes of actions against it on July 27, 

2011.

A bench trial on the Hospital’s claims against Concert and PHCS was held 

on October 24 and 25, 2011. Before the bench trial, the parties stipulated to 

numerous facts. Relevantly, the parties stipulated to the following:

The discount rates at issue in the case are controlled by Exhibit C to the 

Provider Agreement between PHCS and the Hospital. This agreement is 

a legally valid and enforceable contract.

Under the terms of the Subscriber Agreement, Concert is obligated to 

submit payments to the Hospital in accordance with the terms and 

conditions of the Provider Agreement.

Pursuant to the Subscriber Agreement, PHCS is authorized to perform repricing services for Concert.

The Hospital timely submitted a ―clean claim‖ to PHCS in June of 2007, 

with total charges of $96,175.17 for medical services provided to 

Concert’s insured to be paid by Concert pursuant to the Provider 

Agreement. On June 27, 2007, PHCS initially determined that 

$27,404.00 was the adjusted, or re-priced, amount under the Provider 

Agreement for which Concert was responsible.

Around July 11, 2007, Concert processed the claim by paying $26,214.26 

to the Hospital and identifying the patient as responsible for $1,189.74 

under the terms of its policy with its insured.8

On August 20, 2007 the Hospital formally and promptly appealed this 

claim by providing written notice of appeal to PHCS. In this notice, the 

 

8 Concert identified the patient as responsible for $753.24 in ―co-insurance‖ and $436.50 

as an ―amount not covered‖ on the Explanation of Benefits (―EOB‖) it provided to the Hospital 

on July 11, 2007. 
9

Hospital pointed out in detail that an additional $10,864.039 was owed by 

Concert on the Hospital’s claim for treating Concert’s insured because 

the amount Concert should have paid was $37,831.53.

PHCS notified Concert in writing on September 10, 2007 that the correct 

allowable amount on this claim was $37,659.90. This notification was 

delivered by facsimile to Concert on September 11, 2007.

At the two-day bench trial, the Hospital presented the testimony of the only 

medical billing expert, Jaima Pravel. Pravel was the Hospital’s Director of 

Revenue Analysis and had formerly been the manager of its disputed claims 

division. She testified that the average lay person would not be capable of 

calculating the proper amounts due under a patient’s health insurance policy. 

According to Pravel, the Hospital submitted the appropriate ―single comprehensive 

bill using the industry standard claim form,‖ the UB-04 bill described above, as 

required by Exhibit C to the Provider Agreement. Pravel testified that on the UB04, there were several line items containing revenue codes 250 and 636. She stated 

that for any of these line items in excess of $250, the Hospital should be 

reimbursed for fifty percent of the amount charged. She acknowledged that if the 

Revenue Code Exclusions were priced per ―serving unit‖ on the UB-04 claim form

or per item as reflected on the itemized statement rather than the UB-04, then the 

initial re-pricing provided by PHCS to Concert would have been correct. 

Marcy Fuller, Executive Vice President and General Counsel for MultiPlan, 

Inc., also testified. She acknowledged that PHCS had made a mistake in the initial 

re-pricing of this claim. According to Fuller, PHCS expeditiously corrected the 

mistake and timely notified Concert of the adjusted re-pricing. She further testified 

that she reported to Concert, on behalf of the Hospital, that Concert’s discount 

 

9 As noted supra, at trial the Hospital acknowledged that it had miscalculated the amount 

due for the Revenue Code Exclusions and that the actual amount due for these codes was 

$10,255.90.
10

under the Provider Agreement had been cancelled because Concert had failed to 

pay in full the adjusted re-priced claim.

Johny Antony, Vice President of Operations and Underwriting for Concert, 

explained that Concert paid almost one hundred percent of claims initially repriced by PHCS. He testified that, during the relevant time period of this litigation, 

Concert paid ―very few claims on the second or third or fourth 

re[-]pricings.‖ He stated that Concert paid the first re-priced claim with no 

knowledge of whether that re-priced claim was correct. According to Antony, if 

the first re-pricing had been $37,659—the amount of the adjusted re-priced 

claim—Concert would have paid that amount. He testified that, when Concert 

received the adjusted re-priced claim, it 

reviewed the contract and determined that the first repricing sheet was 

indeed the correct repricing sheet, the amount, based on the specific 

contract language in the contract and that intent, while good in nature 

or whatever, was not supported by the contract. The contract was 

very specific in how the repricing -- in what the repricing amount 

should have been and was calculated correctly the first time.

Finally, lead counsel for the Hospital, Randall Payne, testified regarding 

reasonable and necessary attorney’s fees and expenses associated with this case, 

including the collection efforts his firm pursued on behalf of the Hospital, the 

attempted arbitration, defending the suit Concert filed in the Illinois federal district 

court, and potential appellate attorney’s fees. He stated that, in his professional 

judgment, the total reasonable and necessary fees and costs attributable to this 

matter through the end of trial were $112,559.19. Payne further testified that he 

had handled many appeals in Texas state courts of appeal. He stated that it was his 

professional judgment that a reasonable and customary attorney’s fee for appeal to 

a court of appeals would be an additional $30,000.00 to $40,000.00. He explained 
11

that additional attorney’s fees of $25,000.00 to $35,000.00 would be reasonable, 

customary, and usual for an appeal to the Supreme Court of Texas.

After the parties rested, the trial court requested that Concert file a post-trial 

brief on the cancellation-of-discount issue, which the Hospital had addressed in a 

trial brief. After considering the briefing filed by the Hospital and Concert, the 

trial court signed its final judgment on February 13, 2012. In its judgment, the trial 

court ordered that the Hospital recover $10,692.40 from Concert, which 

represented ―actual economic damages, i.e. the amount Concert underpaid [the 

Hospital] on the claim at issue in this case,‖ plus pre-judgment interest of 

$2,673.00 and costs of court. It further awarded the Hospital $80,000.00 in 

attorney’s fees through trial, plus post-judgment interest on the total amount 

awarded to the Hospital. The trial court further ordered that the Hospital was 

entitled to recover $35,000.00 in appellate attorney’s fees from Concert if the 

Hospital prevailed on an appeal filed by any party at the court of appeals. Finally, 

the court ordered that the Hospital was entitled to recover $30,000.00 in appellate 

attorney’s fees from Concert if the Hospital prevailed on a petition for review filed 

by any party at the Supreme Court of Texas. After the trial court overruled 

Concert’s motion to reconsider and for new trial, this appeal timely ensued.10 

ANALYSIS

A. The Judgment in Favor of the Hospital

In its first five issues, Concert challenges the trial court’s judgment in favor 

of the Hospital. In its first issue, Concert asserts that, as a matter of law, it paid all 

that it owed to the Hospital under the terms of the Provider Agreement. Concert 

 

10 The trial court signed findings of fact and conclusions of law on July 12, 2012. 

Although filed after the expiry of the trial court’s plenary power, we may consider these findings 

and conclusions because Concert properly requested them. See Busch v. Hudson & Keyse, LLC, 

312 S.W.3d 294, 298 (Tex. App.—Houston [14th Dist.] 2010, no pet.). 
12

challenges the sufficiency of the evidence to support the trial court’s finding that it 

owed an additional $10,692.40 to the Hospital in issue two. In its third issue, 

Concert argues that the Hospital was not entitled to attorney’s fees because it 

cannot prevail on its breach of contract claim. Concert contends that the trial court 

abused its discretion in awarding the amount of attorney’s fees it awarded to the 

Hospital in issue four. Finally, in its fifth issue, Concert challenges the sufficiency 

of the evidence to support the trial court’s award of attorney’s fees to the Hospital. 

1. The Award of $10,692.40 to the Hospital

In its first two issues, Concert challenges the damages award to the hospital. 

Its first challenge is a legal challenge, in which it asserts that, under the terms of 

the contract, it paid all that it owed to the Hospital as a matter of law. To resolve 

this issue, we consider the law regarding contract interpretation. 

a. Contract Interpretation

In construing a contract, our primary concern is to ascertain the parties’ 

intent as expressed in the writing. Seagull Energy E & P, Inc. v. Eland Energy, 

Inc., 207 S.W.3d 342, 345 (Tex. 2006). When a written contract is so worded that 

it can be given a certain or definite legal meaning or interpretation, it is not 

ambiguous, and courts construe it as a matter of law. Am. Mfrs. Mut. Ins. Co. v. 

Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). A contract is ambiguous when its 

meaning is uncertain and doubtful or is reasonably susceptible to more than one 

interpretation. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.

1996). An ambiguity does not arise merely because the parties’ respective 

interpretations of it are conflicting. Columbia Gas Transmission Corp. v. New Ulm 

Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). For an ambiguity to exist, both 

interpretations must be reasonable. Id. If the contract is not ambiguous, the court 

must enforce it as written. Id. 
13

Here, as noted above, the dispute between the parties centers on the repricing of the Revenue Code Exclusions. These revenue codes are to be 

reimbursed ―pursuant to the Preferred Payment Rate specified‖ for each exclusion. 

The Revenue Code Exclusions are defined similarly, providing that the Hospital 

―shall be reimbursed at a 50% discount when billed charges are $250 or more per 

item and then added back to the Preferred Payment Rate for the remainder of the 

claim.‖ Concert equates the term ―item‖ in these definitions with the ―serving 

units‖ detailed on the UB-04 claim form.11 It contends that, when the total charges 

for the Revenue Code Exclusions are divided by the serving units, none of the 

Revenue Code Exclusions exceeds $250 per serving unit or ―item‖; thus, it claims 

the Hospital is entitled to no reimbursement for any of these revenue codes.

12

 The 

Hospital notes that revenue code 250 shows total charges of $13,525.80 and that 

one of several items coded as revenue code 636 shows total charges of $6,986.00. 

Accordingly, the Hospital contends that both of these charges should be 

reimbursed at the fifty percent discount for these revenue code exclusions because

they are more than $250 ―per item‖ as defined in the Provider Agreement. 

 

11 As noted above, there are several items of revenue code 636 on the bill at issue here; 

however, only the billing of one of these particular revenue codes, described supra, is disputed 

by the parties.

12 Although Concert insists that the contract is not ambiguous, it appears to be asserting a 

latent ambiguity. A court may determine that a contract is ambiguous even if neither party 

makes the claim. Reliance Ins. Co. v. Hibdon, 333 S.W.3d 364, 369 (Tex. App.—Houston [14th 

Dist.] 2011, pet. denied) (op. on reh’g). An ambiguity in a contract may be either latent or 

patent. Nat’l Union Fire Ins. Co. of Pittsburgh v. CBI Inds., Inc., 907 S.W.2d 517, 520 (Tex. 

1995) (per curiam). A patent ambiguity is evident on the face of the contract; a latent ambiguity 

arises when a contract is unambiguous on its face, but in its application, an ambiguity appears by 

reason of some collateral matter. See id. If a latent ambiguity arises from the application of a 

contract to its subject matter, then evidence is admissible to determine the true intent of the 

parties as expressed in the agreement. Id. As discussed below, however, we conclude that the 

Provider Agreement is not ambiguous, either on its face or latently.
14

As detailed supra, under the terms of Exhibit C to this agreement, the 

Hospital is required to ―submit a single comprehensive bill using the industry 

standard Facility Claim form.‖ At the bench trial, the Hospital’s expert, Jaima 

Pravel, testified that the claim form submitted to PHCS in this case, the UB-04 

described above, is the successor form to the UB-92 identified in Exhibit C to the 

Provider Agreement. Concert does not dispute that the UB-04 is the successor 

form to the UB-92. 

The UB-04 form submitted to PHCS contains a column labeled ―serv. units‖

where the Hospital provided the number of these units for each described revenue 

code. Because the contractually-required facility claim form provides for 

documentation of the number of ―serving units‖ for each revenue code, had the 

parties desired to base its revenue code reimbursement on these units, they could 

have done so.13 By using the term ―item,‖ however, the plain language of the 

contract indicates that the parties did not intend to base reimbursement of these 

revenue codes on ―serving units.‖ 

Accordingly, we conclude that the only reasonable interpretation of the 

Provider Agreement is that revenue codes 250 and 636 should be reimbursed at a 

fifty percent discount when billed charges on the UB-04 are $250 or more per item, 

not per serving unit. Disregarding the column labeled ―serv. unit,‖ the only 

revenue code items labeled 250 or 636 on the UB-04 bill at issue in excess of $250 

per item are those described above. These two revenue code items were accounted 

 

13 We note that several of the descriptions for non-disputed revenue code 636 items 

include what appear to be dosage indicators. For instance, one item of revenue code 636 is 

described as ―KETOROLAC 15MG‖; another is described as ―LORAZEPAM 2MG.‖ If we 

begin dividing the billed charges for each revenue code by ―serving units,‖ which are not 

included in the definition for these revenue code exclusions, why would we not further factor 

these charges by the dosage information included in the descriptions of each item? If possible, 

when interpreting a contract, we should avoid a construction that is unreasonable, oppressive, 

inequitable, or absurd. Hibdon, 333 S.W.3d at 370. 
15

for and included in PHCS’s adjusted re-pricing of the Hospital’s claim submitted 

to Concert, which Concert admittedly did not pay in full. Thus, the trial court did 

not err in concluding that Concert breached the Provider Agreement. The Hospital 

was therefore entitled to economic damages in the amount of $10,692.40—the 

difference between what Concert paid the Hospital and what it owed under the 

terms of the Provider Agreement. Accordingly, Concert did not establish that it 

paid all that it owed to the Hospital as a matter of law. We overrule its first issue.

b. “Sufficiency” of the Evidence

In its second issue, Concert asserts that the evidence is legally and factually 

insufficient to support the trial court’s award of $10,692.40 in damages to the 

Hospital. However, in its argument regarding this issue, it asserts as follows:

The clear language of Exhibit C shows that no further amount is 

due as indicated by the first repricing from PHCS. In addition, there 

is testimony of Ms. Pravel that no more would be due under the terms 

of Exhibit C if the ―per item‖ language was applied.

In the original version of Exhibit C, a different provision was 

made for repricing of charges for Revenue Codes 250 and 636, 

aggregating those charges rather than addressing them per item. If the 

parties’ intention was to have an aggregation of these charges, as is 

the position of [the Hospital] in this case, there would have been no 

need to change the language from the first Exhibit C with respect to 

those Revenue Codes. [The Hospital] is asking the Court to rewrite 

the Agreement, not interpret it. The first repricing statement from 

PHCS to Concert plainly follows the language of the Agreement as 

amended. The second can only survive by changing the language of 

the Agreement.

However, Ms. Pravel further testified that there were no 

amendments of the Agreement from the time that it was placed into 

effect in January 2007 until two years after these charges were 

incurred so there was no modification of the contract from the 

language that is contained in the amended Exhibit C.
16

The evidence in this case is legally and factually insufficient to 

support the finding of the court that there was an additional 

$10,692.40 due and owing.

As is evidenced by reviewing the argument supporting its issue, Concert is 

not attacking the sufficiency of the evidence to support the trial court’s finding. 

Rather, Concert attempts to support its proffered contract interpretation by 

introducing evidence and testimony. Only when a contract is first determined to be 

ambiguous may we consider the parties’ interpretation and extraneous evidence to 

determine the true meaning of the agreement. Nat’l Union Fire Ins. Co. of 

Pittsburgh v. CBI Inds., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (per curiam). As 

discussed above, we have already determined that the Provider Agreement is not 

ambiguous. Thus, we do not consider evidence regarding interpretation of the 

Provider Agreement.14 See id. For these reasons, we overrule Concert’s second 

issue. 

 

14 If we were to consider evidence regarding interpretation of the Provider Agreement, we 

would review the trial court’s findings of fact. A trial court’s findings of fact are reviewed for 

sufficiency of the evidence under the same legal standards as apply to jury verdicts. Ortiz v. 

Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam). Findings may be overturned only if they 

are so against the great weight and preponderance of the evidence as to be clearly wrong and 

unjust. Id. Unchallenged factual findings are binding on a court of appeals unless the contrary is 

established as a matter of law or there is no evidence to support the finding. McGalliard v. 

Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). The trial court made the following unchallenged 

findings of fact, supported by the record, which also support its judgment. 

19. On June 22, 2007 (i.e., ten days after the patient was discharged), 

Concert received the Hospital’s clean claim for treating the patient from May 30th 

to June 12, 2007; and on or before June 27, 2007 Concert’s claims processing/repricing agent (i.e., PHCS) received the Hospital’s clean claim for treating the 

patient.

20. PHCS initially made an erroneous determination that only 

$27,404.00 was the allowed amount owed to the Plaintiff under the Participating 

Provider Agreement for which Concert was responsible to pay Plaintiff via its 

initial re-pricing of the claim on June 27, 2007.

21. On or about July 11, 2007, Concert processed the Plaintiff’s claim 

and underpaid it when it [paid] only $26,214.26 and stating that the patient was 
17

2. Attorney’s Fees

In its third, fourth, and fifth issues, Concert challenges the trial court’s award 

of attorney’s fees to the Hospital. In its third issue, Concert complains that the 

 

responsible for $1,189.74 (i.e. $753.24 as Co-Insurance and $436.50 as Amount 

Not Covered); and the Explanation of Benefits incorrectly stated that the total 

amount due to Plaintiff was only $27,404.00 - the original/initial re-priced amount 

provided by PHCS.

22. On August 20, 2007 the Plaintiff appealed Concert’s decision to 

pay only $26,214.26 to the Plaintiff on the claim for treating the Patient, by giving 

written formal notice of appeal to PHCS, and which pointed out that an additional 

$10,864.03 was due and owing by Concert on the Plaintiffs claim for treating the 

Patient because the proper amount a/k/a the ―Preferred Payment Rate‖ (i.e., the 

amount Concert should have paid), Concert should have paid was $37,831.53.

23. On September 10, 2007, PHCS notified Concert in writing, by 

―Hospital Claim Adjustment Notice‖ dated September 10, 2007, that PHCS had 

made an error on PHCS’s original/initial re-pricing of the claim and that 

$37,659.90 was the correct amount Concert should have paid on the Plaintiff’s 

claim.

24. On September 10, 2007 Concert received the ―Hospital Claim 

Adjustment Notice‖ which gave notice that Plaintiff had requested an adjustment 

and an additional payment of $10,692.40 (i.e., the difference between the amount 

Concert originally paid - $26,214.26 - and the $37,659.90 adjusted/correct amount 

owed by Concert, according to PHCS/Multiplan’s second/corrected re-pricing 

sheet dated September 10, 2007, less the patient’s $743.24 co-insurance portion).

25. On September 10, 2007, simultaneously with the issuing of 

Multiplan/PHCS’[s] ―Hospital Claim Adjustment Notice,‖ PHCS issued its repricing sheet to Concert, wherein Concert was again advised that the adjusted 

amount allowed/Concert owed was $37,659.90.

26. On September 11, 2007 Concert received a faxed copy of 

PHCS/Multiplan’s Hospital Claim Adjustment Notice dated September 10, 2007, 

wherein Plaintiff agreed with PHCS, to the effect that the true amount which 

Concert owed was$37,659.90.

27. Concert never made any additional payment on Plaintiffs claim for 

treating the patient, other than the initial payment of $26,214.26 which Concert 

paid on July 11, 2007.

28. After first crediting all payments, lawful offsets and credits, 

Concert still owes $10,692.40 to the Plaintiff for treating the Patient; and Concert 

has materially breached its contracts by its unjustified failure and refusal to pay 

the Plaintiff the additional $10,692.40 which Concert owes.
18

award of attorney’s fees must be reversed because the Hospital cannot prevail on 

its breach of contract claims. We have already determined that the trial court 

properly found that Concert breached its contract with the Hospital by failing to 

pay the adjusted re-priced claim. Accordingly, we overrule Concert’s third issue, 

and turn to its fourth and fifth issues.

a. Standard of Review

Generally, we review a trial court’s award of attorney’s fees for an abuse of 

discretion. Bocquet v. Herring, 972 S.W.2d 19, 20–21 (Tex. 1998); Ragsdale v. 

Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990). Factors that a 

factfinder should consider when determining the reasonableness and necessity of a 

fee award include: (1) the time and labor required, the novelty and difficulty of the 

questions involved, and the skill required to perform the legal service properly; 

(2) the likelihood that the acceptance of the particular employment will preclude 

other employment by the lawyer; (3) the fee customarily charged in the locality for 

similar legal services; (4) the amount involved and the results obtained; (5) the 

time limitations imposed by the client or by the circumstances; (6) the nature and 

length of the professional relationship with the client; (7) the experience, 

reputation, and ability of the lawyer or lawyers performing the services; and 

(8) whether the fee is fixed or contingent on results obtained or uncertainty of 

collection before the legal services have been rendered. See Arthur Andersen & 

Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

b. No Abuse of Discretion in Making the Award

In its fourth issue, Concert asserts that the trial court abused its discretion in 

awarding $80,000 in attorney’s fees for the trial of this case, as well as awarding 

appellate attorney’s fees. A party may recover reasonable attorney’s fees in a 

breach of contract case. See Tex. Civ. Prac. & Rem. Code § 38.001(8). The 
19

Hospital sued Concert for breach of contract and prevailed on its claim.15 Concert 

has provided no relevant authority to support its argument that the Hospital was not

entitled to recover any attorney’s fees under this statutory authority.16 In fact, an 

 

15 In its conclusions of law, the trial court stated:

Concert materially breached its contracts and those breaches of contract 

proximately caused [the Hospital] actual economic damages in the amount 

of $10,692.40 (the amount Concert underpaid [the Hospital] on the claims 

at issue in this case), which [the Hospital] is entitled to recover from 

Concert.

[The Hospital] is entitled to recover reasonable and necessary attorneys’ 

fees from Concert, pursuant to Civ. Prac. & Rem. Code § 38.001. . . .

16 Concert argues that when a creditor makes an excessive demand on a debtor, the 

creditor is not entitled to attorney’s fees for subsequent litigation required to recover the debt. 

Concert asserts that the Hospital demanded almost $70,000 in damages—the amount due if 

Concert’s discount under the Provider Agreement were cancelled—yet the trial court awarded it 

only $10,692.40. Concert contends the Hospital’s demands were excessive when compared to 

the damages awarded, as opposed to the damages sought. Concert further claims that it has 

―indicated a willingness to pay an additional amount if the Agreement warranted it‖ since 

November 2009, shortly after the Hospital filed its petition in arbitration seeking this 

undiscounted amount in damages. It relies on Collingsworth v. King, 155 Tex. 93, 98–99, 283 

S.W.2d 30, 33 (1955), and Warrior Constructors, Inc. v. Small Business Investment Co. of 

Houston, 536 S.W.2d 382, (Tex. App.—Houston [14th Dist.] 1976, no writ), to support this 

argument. We first note that both these cases involve simple suits to recover on notes, whereas 

this case involves a more complicated breach of contract claim. But even if these legal 

authorities are applicable to this case, they are readily distinguishable.

In Collingsworth, the plaintiff sued to recover principal, interest, and attorney’s fees on 

vendor’s lien notes. 283 S.W.2d at 30. In Warrior Constructors, a creditor brought suit against 

a partial guarantor to collect on a defaulted note. 536 S.W.2d at 383. In both of these cases, the 

creditor sought more than what was owed under the terms of the agreements at issue. See 

Collingsworth, 283 S.W.2d at 33 (―This record shows that the correct sum due, if calculated 

correctly, would have been paid but for the fact that . . . an officer of the Harlingen Bank . . . had 

been directed to collect 10% additional as collection costs. . . . [This] demand was excessive and 

. . . petitioners were not chargeable with attorney’s fees.‖); Warrior Constructors, 536 S.W.2d at 

387 (explaining that demand was made on Warrior Constructors for ―no less than complete 

payment of the total unpaid balance of principal, interest, and attorney’s fees,‖ but that Warrior 

Constructors was liable for $10,000 less in principal than the demanded amount and thus, 

Warrior Constructors was not liable for attorney’s fees for creditor’s subsequent litigation to 

recover debt because creditor’s demand was excessive).

Here, the record establishes that the Hospital notified PHCS, Concert’s admitted agent for 

re-pricing, on August 20, 2007, that it believed an error had been made in PHCS’s re-pricing of 

this claim. The parties stipulated that this notification was promptly provided. PHCS in turn 
20

award of attorney’s fees is mandatory under section 38.001 if there is proof of the 

reasonableness of the fees. Hassell Constr. Co. v. Stature Commercial Co., 162 

S.W.3d 664, 668 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Absent any 

relevant legal authority to the contrary, we cannot say the trial court abused its 

discretion in awarding attorney’s fees to the Hospital. We overrule Concert’s 

fourth issue.

 

provided Concert with the claim adjustment notice on September 10, 2007, notifying Concert 

that PHCS had adjusted the claim and that Concert owed an additional $10,692.40 on this claim. 

The Hospital first made numerous in-house attempts to collect only the additional amount due 

under the adjusted claim from Concert. The Hospital initially engaged counsel to attempt to 

recover the additional amount due on this claim in April 2008; counsel made several attempts to 

recover the additional amount due under the adjusted claim, although counsel mentioned that the 

amount due ―exclud[ed] any applicable prompt payment penalties, interest and attorney’s fees.‖

Concert responded on January 5, 2009, stating that no further amounts were due on this 

claim and that the Hospital’s request for additional benefit coverage for the claim was denied. 

On January 29, 2009, counsel for the Hospital notified PHCS’s claims department that Concert 

had rejected the Hospital’s request to reprocess the claim. On February 10, 2009, counsel for the 

Hospital corresponded with PHCS and requested that PHCS notify it when Concert ―remits the 

balance due and owing on this account.‖ In this letter, counsel for the Hospital detailed both the 

Hospital’s and counsel’s numerous efforts to collect the amount that Concert had underpaid on 

this claim. In this letter to PHCS, counsel for the Hospital indicated that it believed that Concert 

could be liable for the entire amount due under the original bill, less the amount that Concert had 

already paid, plus attorney’s fees because of Concert’s failure to promptly pay the adjusted 

claim. On September 9, 2009, PHCS notified counsel for the Hospital that it had ―exhausted all 

efforts in assisting [the] firm in collecting the underpayment due‖ the Hospital and stated, ―After 

careful consideration, we determined it necessary to cancel the discount applied to the claim. 

Additionally, Concert Health Plan has been notified of the loss of discount.‖ 

As is clear from the above, the Hospital did not make an ―excessive‖ demand on Concert 

such that Concert should not be liable for any attorney’s fees. The Hospital repeatedly attempted 

to collect only the additional amount due under the adjusted re-priced claim from September 

2007 until it filed its petition in arbitration in October of 2009. At that point, both the Hospital 

and PHCS agreed that Concert was no longer entitled to the benefit of the discount pursuant to 

the Provider Agreement, and the Hospital sought the full amount of the original bill, less the 

amount that Concert had paid. The issue of whether Concert was entitled to the discount under 

the Provider Agreement was contested all the way through trial and post-trial briefing. 

Accordingly, the cases cited by Concert regarding a creditor’s ―excessive‖ demand are readily 

distinguishable from the facts of this case and do not support Concert’s position that the Hospital 

is not entitled to attorney’s fees.
21

c. “Sufficiency” of the Evidence

In its fifth issue, Concert asserts that the evidence is legally and factually 

insufficient to support the trial court’s award of attorney’s fees.17 In support of this 

issue, Concert argues as follows: 

[T]he evidence in this case is legally and factually insufficient to 

support a finding of $80,000 in attorney’s fees since it fails to break 

down the fees based on time periods and tasks on which the time was 

spent. Thus it is not possible from this record to determine how much 

of Plaintiff[’]s fees were expended to further a theory of recovery that 

was denied by the trial court. 

Here [Concert] submits that the lack of evidence showing how much 

of the efforts of [the Hospital’s] attorneys were directed to a claim that 

was rejected by the trial court means that there is no evidence to 

support the trial court’s finding of $80,000 in attorney’s fees since 

most of [the Hospital]’s attorney’s fees may have been directed to an 

attempt to recover a claim which was ultimately rejected.

Similarly, it its motion to reconsider and for new trial, Concert argued:

The evidence in this case is legally and factually insufficient to 

support a finding of $80,000 in attorneys fees since it fails to break 

down the fees based on time periods and tasks on which the time was 

spent. Thus it is not possible from this record to determine how much 

of Plaintiff[’]s fees were expended on a theory of recovery and for 

damages denied by this Court.

Although the word ―segregation‖ is not used, Concert is actually making a 

segregation argument regarding the attorney’s fees rather than a sufficiency 

challenge to the reasonableness of the fees. 

 

17 Concert relies on El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012), as legal 

authority, although it notes that the ―legal and factual situation is different‖ in El Apple I. El 

Apple I is an employment discrimination and retaliation case pursuant to the Texas Commission 

on Human Rights Act in which the Supreme Court of Texas utilized the lodestar method for 

calculating the appropriate attorney’s fees. Id. at 758. Because the lodestar method is not the 

method used for calculating the appropriate attorney’s fees in a breach-of-contract case, this case 

is not instructive to our analysis.
22

Attorney’s fees that relate solely to a claim for which fees are unrecoverable

must be segregated. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 

(Tex. 2006). All the claims advanced by the Hospital against Concert involve 

breach of the Provider Agreement. As such, reasonable attorney’s fees are

recoverable for all of the Hospital’s claims. See Tex. Civ. Prac. & Rem. Code 

§ 38.001(8). Additionally, counsel for the Hospital testified regarding each of the 

Arthur Andersen factors identified supra, and Concert has not challenged the fees 

on any of these bases.18 Accordingly, we overrule Concert’s fifth issue.

 

18 Randall Payne, lead counsel for the Hospital, testified that he had nearly thirty years’ 

experience in civil cases and was board certified in civil trial law. He stated that, in considering 

whether the fees charged in this case were reasonable, he considered the time and labor required 

to handle the work, the novelty and difficulty of the questions involved, the skill and requisite 

experience to perform the legal services properly, the likelihood that the acceptance of this 

matter would preclude the attorneys involved from other employment, the fees customarily 

charged in Harris County for the type of legal services performed, the likelihood of recovery, and 

the length of representation of the Hospital by his firm. See Arthur Andersen & Co. v. Perry 

Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). According to Payne, the Hospital had to 

engage Illinois counsel to assist in defending against the federal lawsuit filed by Concert; the 

firm the Hospital engaged spent 55.25 hours for total attorney’s fees of $16,621.25, which Payne 

testified was a reasonable and necessary fee. Payne stated that the amount of reasonable and 

necessary attorney’s fees charged by his firm to the Hospital prior to trial was $79,903.75. 

Payne explained that representing the Hospital at trial would cost the Hospital 

approximately $10,000.00 more in attorney’s fees, which he stated he believed was a reasonable 

and necessary amount. He testified that the arbitration fee paid by the Hospital was $2,550.00 

and that, when he added in deposition costs, the total costs incurred by the Hospital were 

$5,960.89. As noted above, Payne testified that the Hospital’s total reasonable and necessary 

attorney’s fees for trial would be $112,559.19. He further testified that reasonable and necessary 

attorney’s fees for an appeal to the court of appeals would be $30,000.00 to $40,000.00 and for 

an appeal to the Supreme Court of Texas, $25,000.00 to $35,000.00 would be a reasonable and 

necessary fee. 

The trial court found that the reasonable and necessary legal fees for services performed 

on behalf of the Hospital through the trial of this case were $80,000; that if any party files an 

appeal to the court of appeals, the reasonable and necessary attorney’s fees which would be 

performed on the Hospital’s behalf would be an additional $35,000; and that if any party files a 

petition for review with the Supreme Court of Texas, the reasonable and necessary attorney’s 

fees performed on behalf of the Hospital would be an additional $30,000. None of these findings 

are challenged on appeal, and they are all supported by Payne’s testimony. See McGalliard, 722 
23

B. The Summary Judgment in Favor of PHCS

In Concert’s sixth and final issue, it claims that a fact issue regarding 

whether PHCS was negligent in re-pricing the claim from which this lawsuit arises 

prevents summary judgment in favor of PHCS. Concert asserts that the only basis 

for summary judgment in favor of PHCS was PHCS’s claim that its negligence did 

not harm Concert because Concert caused its own damages by failing to pay the 

adjusted re-priced claim.19 Concert contends that PHCS erred in providing the 

adjusted re-priced claim and that this error led to the Hospital’s lawsuit and to 

damages to Concert. Concert has rested its success on this issue on overturning the 

breach-of-contract finding in favor of the Hospital: ―However, as seen from the 

issues presented above [the issues related to the Hospital], the error was in the 

second repricing and that error clearly led to this lawsuit and to damages to 

Concert.‖ 

We have determined that there was no error in the second re-pricing 

provided by PHCS and have overruled each of Concert’s issues related to the 

Hospital. The trial court properly concluded that Concert breached the Provider 

Agreement by failing to pay the Hospital the additional amount it owed pursuant to 

 

S.W.2d at 696 (providing that unchallenged fact findings are binding on courts of appeal unless, 

as is applicable here, no evidence supports them).

19 The trial court granted summary judgment without specifying the grounds upon which 

it relied. On appeal, Concert must establish that each independent summary-judgment ground 

asserted against its claims does not provide a basis for affirming the trial court’s summary 

judgment. Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P., 391 S.W.3d 596, 611 

(Tex. App.—Houston [14th Dist.] 2012, no pet.). In a negligence action, a plaintiff must show 

that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, and (3) 

the breach proximately caused the plaintiff's injuries. D. Houston, Inc. v. Love, 92 S.W.3d 450, 

454 (Tex. 2002). PHCS asserted in its summary-judgment motion that it was not negligent 

because it did not breach any duty it owed to Concert. On appeal, Concert has not attacked this 

independent ground for summary judgment. Because Concert has not challenged this 

independent basis for the trial court’s summary judgment, its issue lacks merit. See Parkway 

Dental Assocs., P.A., 391 S.W.3d at 611. 
24

the adjusted claim. Because Concert asserts no other basis for reversing the 

summary judgment in favor of PHCS, we overrule its sixth and final issue.

CONCLUSION

We have overruled Concert’s five issues relating to the judgment in favor of 

the Hospital. We have also overruled Concert’s final issue regarding the summary 

judgment in favor of PHCS. Having overruled each of Concert’s issues, we affirm 

the trial court’s judgment.

/s/ Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.