Date: 11-22-2022

Case Style:

RAHUL K. NATH, M.D. AND USHA NATH V. BAYLOR COLLEGE OF MEDICINE AND TEXAS CHILDREN’S HOSPITAL

Case Number: 269th District Court Harris County, Texas

Judge: Sarah Beth Landau

Court:

First Court of Appeals Houston, Texas

On appeal from the 269th District Court of Harris County

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Defendant's Attorney: Jamila Shukura Mensah, Shauna Johnson Clark, Joy M. Soloway, Patrick W. Mizell
Brooke Noble, Stacey Neumann Vu, Catherine Bukowski Smith

Description:

Houston, Texas – Civil Litigation lawyer represented Plaintiff who sued Defendant claiming interfered with their sale of real property.

To understand the claims, it is necessary to briefly recount the parties’ past
litigation.

The sanctions order that led to Nath I and Nath II

In 2006, Rahul Nath sued Texas Children’s Hospital and Baylor College of
Medicine. See Nath v. Tex. Child.’s Hosp., 446 S.W.3d 355 (Tex. 2014) (Nath I).
The trial court granted summary judgment to the hospitals and sanctioned Nath
personally for litigation abuse, obliging him to pay the hospitals’ attorney’s fees of
$1.4 million. Id. at 361. The hospitals filed abstracts of judgment. Nath appealed
the judgment.

The Texas Supreme Court held that the trial court had not abused its
discretion in sanctioning Nath but that remand was necessary for the trial court to
determine whether the hospitals bore some responsibility for the large amount of
attorney’s fees they incurred, such that Nath should not be responsible for the
entire amount. Id. at 371–72 (“A defending party cannot arbitrarily shift the
entirety of its costs on its adversary simply because it ultimately prevails on a
motion for sanctions. Because the trial court did not discernibly examine [the

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degree to which TCH and BCM’s own behavior caused the expenses for which
recovery is sought], we remand for it to do so.”).

On remand, the trial court sanctioned Nath in the same amount. The
hospitals filed abstracts of judgment on the second judgment. Nath appealed again.
In the second appeal, the hospitals argued that they did not have to establish
the reasonableness of the attorney’s fees because the fees were awarded as a
sanction instead of a traditional fee-shifting. Nath v. Tex. Child.’s Hosp., 576
S.W.3d 707, 710 (Tex. 2019) (per curiam) (Nath II). The Texas Supreme Court
rejected their argument and reversed the second sanction order, holding that the
affidavits submitted by the hospitals in support of their attorney’s fee awards were
conclusory and did not show the reasonableness of either the hourly rate or the
hours worked. Id. The Court remanded a second time for the trial court to
determine a sanction amount that complied with Rohrmoos Venture v. UTSW DVA
Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019), which clarified the evidentiary
standards for shifting attorney’s fees. Id.

Two months after Nath II, the hospitals filed notices of withdrawal of their
abstracts of judgment, but both notices included language warning that the
hospitals anticipated filing replacement abstracts soon. Rahul Nath contended that
the releases’ language was clouding title to his real property, and he demanded that
the phrasing be replaced with unequivocal language of release. Nath noted that

5
neither hospital had an enforceable judgment against him to support the filing of
any abstract of judgment.

According to their pleadings, the Naths had a buyer ready to purchase a nonhomestead piece of real property in the Houston area. They assert that the buyer
backed out because of the cloud on their title caused by the equivocal language in
the abstract withdrawal.

The hospitals contend that the Naths have mischaracterized the status of the
sale transaction and linked no damages to their abstract filings.

This litigation

After the potential buyer backed out, the Naths sued the hospitals for
interfering with the sale of their property. Their November 2019 petition asserted
claims for tortious interference with a contract and conspiracy. Soon after, the
hospitals filed a joint Rule 91a motion to dismiss all claims as having no basis in
law or fact and being barred by the affirmative defenses of judicial proceedings
privilege and justification. The joint Rule 91a motion sought attorney’s fees. On
the same day, the hospitals jointly moved to dismiss pursuant to the Texas Citizens
Participation Act, again seeking attorney’s fees.

The trial court entered two orders on May 20, 2020, one minute apart. One
order granted the joint Rule 91a motion to dismiss. That order contained the
following language: “The Court orders that all of the claims alleged by Plaintiffs

6

[ ] are hereby DISMISSED WITH PREJUDICE.” As for the request for attorney’s
fees, the order stated: “The Court finds that the Defendants[’] request for costs and
reasonable attorneys’ fees under [Rule] 91a.7 should be GRANTED. The Court
will consider evidence as to the reasonableness of such fees and costs.”
The other order granted the hospitals’ joint TCPA motion to dismiss. The
order contained the following language: “The Court finds that the Motion should
be GRANTED in all things. The court therefore orders that all of the claims
alleged by [the Naths] are hereby DISMISSED WITH PREJUDICE.” As for the
request for attorney’s fees, the order stated: “The Court further finds that
Defendants [ ] are entitled to the costs and reasonable attorneys’ fees they incurred
in defending against this legal action. The Court will consider evidence as to the
reasonableness of such fees and costs.”

The Naths filed a notice of appeal. The hospitals immediately filed a motion
in this Court to dismiss the Naths’ appeal for lack of jurisdiction, arguing that the
two dismissal orders were interlocutory. They also filed a motion in the trial court,
moving for summary judgment on their yet-unresolved attorney-fee claims.
The Naths’ argued that one of the two orders entered on May 20 was a final,
appealable judgment, the trial court lost plenary power 30 days after that judgment,
and the hospitals’ joint motion for summary judgment on attorney’s fees filed on
June 30 was presented too late to permit an attorney-fee award. The Naths objected

7

to the hospitals’ summary-judgment motion and filed two counter affidavits: one
from former Justice of the Supreme Court of Texas, Craig Enoch; the other from
local attorney, A.G. Crouch. The Naths contended that, at a minimum, these two
affidavits raised issues of fact to prevent an award of attorney’s fees through
summary judgment, if plenary power existed to award attorney’s fees.
The trial court rejected the Naths’ argument that it had lost plenary power,
overruled their objections to the hospitals’ evidence, sustained the hospitals’
objections to the Naths’ counter-affidavits, and entered a final judgment awarding
more than $1.2 million in attorney’s fees to the hospitals.

2

A short time later, this Court denied the hospitals’ motion to dismiss the
Naths’ appeal for lack of jurisdiction.

We now consider the merits of the appeal.

Identifying the Final Judgment

The Naths’ first issue hinges on a determination of which trial court ruling
was the final judgment. We start there.

In Lehmann v. Har-Con Corp., the Texas Supreme Court held that “a
judgment issued without a conventional trial is final for purposes of appeal if and
only if either [1] it actually disposes of all claims and parties then before the court,
regardless of its language, or [2] it states with unmistakable clarity that it is a final

2 This fee award is separate from the sanction fee award that was the subject of Nath
I and Nath II. Combined, the fee awards total over $2 million.

8

judgment as to all claims and all parties.” 39 S.W.3d 191, 192–93 (Tex. 2001). As
for the second option, the Court clarified that “the language of an order or
judgment can make it final, even though it should have been interlocutory, if that
language expressly disposes of all claims and all parties.” Id. at 200; Farm Bureau
Cnty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015).

Neither the Rule 91a dismissal order nor the TCPA dismissal order disposed
of all parties and all claims: the hospitals’ attorney-fee claims remained pending.
See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (per curiam)
(unresolved attorney-fee claim prevented summary-judgment order from being
final judgment). Similarly, neither order contained language reflecting it disposed
of all parties and claims. Both orders contemplated future fee awards and left
unresolved the amount of fees to be awarded. Thus, neither order operated as a
final judgment. Farm Bureau, 455 S.W.3d at 163. The trial court’s plenary power
continued. See TEX. R. CIV. P. 329b(d).

The Naths filed a notice of appeal after these two interlocutory orders issued.
Their notice of appeal was premature. TEX. R. APP. P. 27.1. Only when the trial
court granted summary judgment on the attorney-fee issue—more than a month
later—did the trial court enter a final, appealable judgment that disposed of all
parties and all claims. The Naths’ notice of appeal was considered filed on the day
of that final judgment: August 17, 2020. Id. (providing that premature notice of

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appeal is effective and considered filed on day of—but after—event that begins
period for perfecting appeal).

With a final judgment in place, this Court denied the hospitals’ earlier-filed
motion to dismiss the Naths’ appeal.

To recap, the May 20 dismissal orders were interlocutory because they held
that the hospitals were entitled to attorney’s fees but left unresolved the amount of
those fees. It was only when the judgment awarding attorney’s fees was entered on
August 17 that a final judgment existed to allow appellate jurisdiction. The Naths’
premature notice of appeal was considered filed that day. With a final judgment in
place, this Court now has appellate jurisdiction to review the final judgment and
any interlocutory orders subsumed in it.
We overrule the Naths’ first issue.

Rule 91a dismissal

In their second issue, the Naths contend that the trial court erred in
dismissing their claims under Rule 91a because those claims have a basis in law
and fact.

A. Standard of review

We review the merits of a Rule 91a dismissal de novo. Bethel v. Quilling,
Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020).

10

B. The hospitals’ contention that the Rule 91a dismissal order “must” be
affirmed due to waiver

In their joint brief, the hospitals assert that the Naths failed to respond to all
grounds supporting Rule 91a dismissal, thereby compelling us to affirm the
dismissal without considering the merits of any appellate argument. They argue
that the Naths’ appellate brief failed to counter their arguments for dismissal based
on judicial-proceedings privilege, justification, and collateral attack.
The hospitals’ assertion is not well taken. In footnote four on page 39 of the
Naths’ appellate brief, the Naths explicitly incorporate their arguments on these
three matters into the section of their brief appealing the Rule 91a dismissal. We
reject the hospitals’ contention that any waiver has occurred or that we must affirm
dismissal of all claims without reaching the merits of any. We next consider
whether the trial court erred in granting the Rule 91a dismissal.
C. Rule 91a in the context of an asserted affirmative defense
Rule 91a permits a party to move to dismiss a cause of action for lacking a
basis in law or fact. TEX. R. CIV. P. 91a.1. A cause of action has no basis in law “if
the allegations, taken as true, together with inferences reasonably drawn from
them, do not entitle the claimant to the relief sought.” Id. A cause of action has no
basis in fact “if no reasonable person could believe the facts pleaded.” Id.
Believability is analyzed as a legal-sufficiency review. City of Dallas v. Sanchez,
494 S.W.3d 722, 724 (Tex. 2016).
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In ruling on a Rule 91a motion, a court “may not consider evidence . . . and
must decide the motion based solely on the pleading of the cause of action.” TEX.
R. CIV. P. 91a.6. This works as a limitation on the court’s factual inquiry when
deciding if a claim has a basis in fact, but it does not likewise limit the court’s legal
inquiry when deciding if a claim has a basis in law. Bethel, 595 S.W.3d at 655. A
trial court deciding whether a claim has a “basis in law” may also consider the
defendant’s pleadings to determine whether a pled affirmative defense applies to
the plaintiff’s pled facts to deprive the plaintiff’s claim of any legal basis. Id.
Claims are subject to dismissal for having no basis in law when the
plaintiff’s allegations, taken as true, together with inferences reasonably drawn
from them, do not entitle the plaintiff to the relief sought because a pled
affirmative defense applies. Bethel, 595 S.W.3d at 656. Some affirmative defenses
cannot be established by relying only on the plaintiff’s pled facts and the
defendant’s pled affirmative defense. When outside evidence is necessary to
evaluate the applicability of the affirmative defense, dismissal under Rule 91a is
improper. Id.
D. The Naths’ claims have no basis in law due to the hospitals’ pled
affirmative defense of judicial-proceedings privilege
As traditionally understood, the judicial-proceedings privilege prohibits
communications during a judicial proceeding from serving as the basis of a civil
action for libel or slander. Landry’s Inc. v. Animal Legal Def. Fund, 631 S.W.3d
12
40, 46 (Tex. 2021) (citing James v. Brown, 637 S.W.2d 914, 916–17 (Tex. 1982)
(per curiam)). The privilege covers communications made with negligence and
even malice. Id. The privilege functionally immunizes against any claim “that
contains allegations of reputational harm from a communication in a judicial
proceeding.” Rossa v. Mahaffey, 594 S.W.3d 618, 628 (Tex. App.—Eastland 2019,
no pet.); see Wilkinson v. USAA Fed. Sav. Bank Tr. Servs., No. 14-13-00111-CV,
2014 WL 3002400, at *6 (Tex. App.—Houston [14th Dist.] July 1, 2014, pet.
denied) (mem. op.) (“The judicial proceedings privilege is ‘tantamount to
immunity’; where there is an absolute privilege, no civil action in damages for oral
or written communications will lie, ‘even though the language is false and uttered
or published with express malice.’”) (quoting Hernandez v. Hayes, 931 S.W.2d
648, 650 (Tex. App.—San Antonio 1996, writ denied).
The immunity extends beyond libel and slander suits to cover other torts,
like business-disparagement and tortious-interference claims, when those claims
are based on an allegedly defamatory communication in a judicial proceeding.
Howard v. Matterhorn Energy, LLC, 628 S.W.3d 319, 333–34 (Tex. App.—
Texarkana 2021, no pet.). Court have even extended the privilege to cover the
filing of a lis pendens3
to announce that a claim on real property is being litigated.
3 The lis pendens statute, found in Chapter 12 of the Property Code, gives litigants a
method to constructively notify anyone taking an interest in real property that a
claim is being litigated against the property. In re Collins, 172 S.W.3d 287, 292
13
Bayou Terrace Inv. Corp. v. Lyles, 881 S.W.2d 810, 818 (Tex. App.—Houston [1st
Dist.] 1994, no writ). Thus, for example, when a party asserts claims for tortious
interference with contract and business disparagement based on the filing of a lis
pendens that caused a property sale to fall through, the judicial proceedings
privilege bars the claims. Howard, 628 S.W.3d at 333–34 (involving
counterclaims).
The Naths and the hospitals agree that the judicial-proceedings privilege
covers claims based on the filing of a lis pendens. They diverge on whether the
privilege extends to the filing of an abstract of judgment. No party has located a
Texas case that resolves the question. We did not find one either.
The Naths focus their argument on the alleged wrongful nature of the
hospitals’ filings and cite in support the dissenting opinion in Prappas v.
Meyerland Cmty. Improvement Ass’n, 795 S.W.2d 794, 800 (Tex. App.—Houston
[14th Dist.] 1990, writ denied) (Brown, C.J., dissenting). In Prappas, the majority
(Tex. App.—Fort Worth 2005, orig. proceeding). A notice of lis pendens may be
filed during the pendency of a suit involving (1) title to real property, (2) the
establishment of an interest in real property, or (3) the enforcement of an
encumbrance against real property. TEX. PROP. CODE § 12.007(a). The purpose of
a lis pendens is twofold: (1) to protect the filing party’s alleged rights to the
property in dispute in the lawsuit and (2) to put those interested in the property on
notice of the lawsuit. See David Powers Homes, Inc. v. M.L. Rendleman Co., Inc.,
355 S.W.3d 327, 336 (Tex. App.—Houston [1st Dist.] 2011, no pet.); World Sav.
Bank, F.S.B. v. Gantt, 246 S.W.3d 299, 303 (Tex. App.—Houston [14th Dist.]
2008, no pet.); see also TEX. PROP. CODE § 13.004; In re Collins, 172 S.W.3d at
293 & n.14. A lis pendens does not prevent a subsequent sale; it merely puts the
purchaser on notice of the land’s status. See Collins v. Tex. Mall, L.P., 297 S.W.3d
409, 418 (Tex. App.—Fort Worth 2009, no pet.).
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held that the judicial-proceedings privilege extends to the filing of a lis pendens
even if it was filed maliciously: “the nature of an absolute privilege” is that it “does
not turn on the presence or absence of good faith,” so the presence of malice is
immaterial. Id. at 797, 799. In his dissent, Chief Justice Brown argued that the
deliberate filing of a wrongful instrument should not receive absolute protection,
but his view did not carry the day. Id. at 800 (Brown, C.J., dissenting).
If a maliciously filed lis pendens is protected by an absolute privilege, as the
Prappas court held, then we fail to see why the alleged wrongful character of an
abstract of judgment would limit the privilege that applies to that instrument, as the
Naths would have us hold. Whether the judicial-proceedings privilege applies to
abstracts of judgment must be resolved by evaluating the type of instrument at
hand, not the alleged wrongful nature of its filing. See id. at 797, 799.
The hospitals argue that judicial protections over the filing of a lis pendens
naturally extend to the filing of an abstract of judgment because an abstract of
judgment “is conduct during or related to litigation, the very type of conduct to
which the privilege was meant to attach.”
There are a handful of cases that discuss the judicial-proceedings privilege’s
shield over those who file lis pendens and how it protects them from suits for
damages. Those opinions justify the extension of the privilege, at least in part, by
pointing out that there are statutory remedies available to people against whom
15
wrongful lis pendens have been filed. Howard, 628 S.W.3d at 334 n.7 (stating that
privilege does not preclude statutory remedies); Lyles, 881 S.W.2d at 818
(applying judicial-proceedings privilege against appellants while noting that there
are “other avenues of relief if, as they claim, the lis pendens was wrongfully
filed.”); see Campbell v. Martell, No. 05-19-01413-CV, 2021 WL 1731754, at *11
(Tex. App.—Dallas May 3, 2021, no pet.) (mem. op.);
4
see also TEX. PROP. CODE
§ 12.008 (mechanism to cancel a lis pendens); TEX. CIV. PRAC. & REM. CODE
§ 12.002 (providing remedy when person makes, presents, or uses a document
with, among other requirements, knowledge that document is fraudulent court
record or fraudulent lien or claim).
An abstract of judgment, likewise, is a part of a judicial proceeding in that it
is a necessary step to convert a money judgment into a judicial lien that may later
be executed against real property to satisfy a judgment. TEX. PROP. CODE § 52.001
4 But see County Inv., LP v. Royal W. Inv., LLC, 513 S.W.3d 575, 579–81 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied) (applying judicial-proceedings
privilege to bar a statutory fraudulent-lien claim under Section 12.002 of the Texas
Civil Practice and Remedies Code that is based on a wrongful lis pendens). The
Dallas Court of Appeals later rejected the reasoning in County Investments and
held that the privilege against tort damages for wrongful lis pendens does not also
insulate against statutory claims for fraudulent liens or the recovery of statutorily
provided damages. See Campbell v. Martell, No. 05-19-01413-CV, 2021 WL
1731754, at *11 (Tex. App.—Dallas May 3, 2021, no pet.) (mem. op.). This Court
has also recognized that a “lis pendens may form the basis of a fraudulent lien
claim” under Section 12.002 of the Civil Practice and Remedies Code. James v.
Calkins, 446 S.W.3d 135, 150 (Tex. App.—Houston [1st Dist.] 2014, pet. denied),
abrogated on other grounds, Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021).
16
(properly recorded and indexed abstract of judgment creates lien on judgment
debtor’s non-exempt real property in county); cf. Porterfield v. Deutsche Bank
Nat’l Trust Co., No. 04-20-00151-CV, 2021 WL 4976560, at *5 (Tex. App.—San
Antonio October 27, 2021, pet. filed) (mem. op. on reh’g) (discussing abstracts of
judgment).
Further, the wrongful filing of an abstract of judgment—like a lis pendens—
may lead to a statutory-remedy claim. See MFG Fin., Inc. v. Hamlin, No. 03-19-
00716-CV, 2021 WL 2231256, at *5 (Tex. App.—Austin June 3, 2021, pet.
denied) (mem. op.) (involving Chapter 12 claim based on allegedly fraudulent
abstract of judgment); see also TEX. CIV. PRAC. & REM. CODE § 12.002(b). Under
Section 12.002, a person who files a fraudulent abstract of judgment may be liable
for the greater of $10,000 or actual damages, plus court costs, reasonable
attorney’s fees, and even exemplary damages. TEX. CIV. PRAC. & REM. CODE
§ 12.002(b).
In their live petition, the Naths allege that they own a vacant lot in West
University Place and that the hospitals filed abstracts of judgment in the Harris
County real property records, which attached to their lot. They assert that the
hospitals needed to unequivocally withdraw their abstracts when the Texas
Supreme Court reversed the trial court’s sanction award after Nath I and again after
Nath II but that the hospitals, instead, filed purported withdrawals that publicly
17
announced the hospitals “anticipated that a new abstract of judgment shall issue
forthwith upon remand of the case to reassess the amount of sanctions to be
awarded to and entry of judgment for [the hospitals], whereupon the new abstract
of judgment shall be filed.”
The Naths contend that the title company discovered the abstracts, allegedly
causing the buyer to back out of purchasing the Naths’ property for over
$2 million. On these facts, they sued the hospitals for tortious interference with the
land sale contract, asserting that the hospitals “knew or had reason to know of the
pending sale, and willfully and intentionally interfered with the sale by refusing to
unequivocally withdraw the abstracts.” They also asserted a claim for conspiracy
and violation of 42 U.S.C. § 1983, arguing that the hospitals conspired with the
trial court judge to “interfere or prevent the sale of the West University property
and then later divide it between themselves.”
All the Naths’ dismissed claims were based on the filing of abstracts of
judgment and the equivocal withdrawal of those abstracts. The hospitals answered
with the affirmative defenses of privilege and immunity. Because the judicialproceedings privilege protects against tort claims5
arising out of the filing of an
5 The judicial-proceedings privilege applies to Section 1983 claims, as it does to
other torts. See Fisher v. Lint, 868 N.E.2d 161, 170 (Mass. App. Ct. 2007)
(affirming dismissal of 1983 claim because officer’s statements that formed the
basis of the claim against him were protected by the absolute judicial-proceeding
privilege); see also Imbler v. Pachtman, 424 U.S. 409, 417 (1976) (stating that
18
abstract of judgment, the trial court did not err in granting a Rule 91a dismissal of
the Naths’ claims.
We overrule the Naths’ second issue.
TCPA
The Naths’ third issue addresses dismissal under the TCPA. First, they argue
that the TCPA does not apply to federal Section 1983 claims. Second, they argue
that they presented a prima facie case for each cause of action, including their
Section 1983 claim.
A. The TCPA
The TCPA is found in Chapter 27 of the Civil Practice and Remedies Code,
which is titled, “Actions involving the Exercise of Certain Constitutional Rights.”
TEX. CIV. PRAC. & REM. CODE § 27.001–.011. The TCPA is “sometimes referred to
as an anti-SLAPP law—the acronym standing for strategic lawsuit against public
participation.” KTMB Operating Co. v. Toledo, 492 S.W.3d 710, 713 n.6 (Tex.
2016). Its stated purpose “is to encourage and safeguard the constitutional rights of
persons to petition, speak freely, associate freely, and otherwise participate in
Section 1983—which provides that every person who acts under color of state
law to deprive another of a constitutional right shall be answerable to that person
in a suit for damages—is “a species of tort liability”); id. at 417–18 (holding that
absolute prosecutorial immunity applies to 1983 claims and, in doing so, noting
other avenues to hold prosecutors responsible for misconduct); cf. Correllas v.
Viveiros, 572 N.E.2d 7, 13 (Mass. 1991) (absolute privilege from defamation
claim based on testimony at criminal trial “would be of little value if the individual
were subject to liability under a different theory”).
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government to the maximum extent permitted by law and, at the same time, protect
the rights of a person to file meritorious lawsuits for demonstrable injury.” TEX.
CIV. PRAC. & REM. CODE § 27.002; In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015)
(purpose of TCPA is to protect “citizens who petition or speak on matters of public
concern from retaliatory lawsuits that seek to intimidate or silence them”).
The TCPA serves its purpose by creating a “set of procedural mechanisms
through which a litigant may require, by motion, a threshold testing of the merits
of legal proceedings or filings that are deemed to implicate the expressive interests
protected by the statute, with the remedies of expedited dismissal [and] costshifting,” as well as possible sanctions. Serafine v. Blunt, 466 S.W.3d 352, 369
(Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring); see, generally,
TEX. CIV. PRAC. & REM. CODE § 27.003–.009; see also id. § 27.009(a)(1–2) (as
amended, statute makes the award of “court costs and reasonable attorney’s fees”
mandatory and the award of sanctions discretionary).
This statute has been relied on by parties to obtain dismissal of all kinds of
claims, from a tortious-interference claim by homeowners against their HOA’s
attorney, Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App.—Houston [1st Dist.]
2014, pet. denied), to the filing of a lis pendens that clouds title to property, James,
446 S.W.3d at 139.
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Here, the hospitals invoked the TCPA to obtain dismissal of the Naths’
claims against them, including the Naths’ Section 1983 claim.
B. Preemption
The Naths argue that federal law preempts state-court TCPA dismissal of a
federal Section 1983 claim brought in state court. The parties agree that no Texas
case has decided this issue. The hospitals point us to a California decision, holding
that California’s anti-SLAPP statute may be used to dismiss a Section 1983 claim
brought in state court. See Gonzales v. Butts, No. B143428, 2001 WL 1338409
(Cal. App. 2d Dist. Oct. 31, 2001) (unpublished) (holding that California antiSLAPP statute is procedural—i.e., not substantive—and its application does not
conflict with the purpose or effect of the federal statute to require preemption).
We have found others. A second California case holds similarly, Patel v.
Chavez, 48 Cal. App. 5th 484 (Cal. App. 5th Dist. 2020). And a Nevada Supreme
Court decision does as well, John v. Douglas Cty. Sch. Dist., 219 P.3d 1276 (Nev.
2009) (holding that Nevada’s anti-SLAPP statute is procedural, neutral in
application, and does not offend federal rights or frustrate congressionally created
substantive rights). But we also found an Oklahoma intermediate-court case
holding the opposite as to that state’s anti-SLAPP statute. See Thacker v. Walton,
499 P.3d 1255, 1263 (Ok. Ct. Civ. App. 3d Div. 2020). There, the Oklahoma court
21
held that its anti-SLAPP statute’s dismissal procedures do substantively affect the
federal law and are thus preempted by federal law. Id. at 1263.
The Oklahoma court quoted from the Fifth Circuit’s explanation of its earlier
decision not to apply the Texas TCPA in federal courts: “Because the TCPA’s
burden-shifting framework imposes additional requirements beyond those found in
Rules 12 and 56 and answers the same question as those rules, the state law cannot
apply in federal court.” Id. at 1263 n.13 (quoting Klocke v. Watson, 936 F.3d 240,
245 (5th Cir. 2019)).
In our view, the Fifth Circuit’s decision to not apply the TCPA in federal
court does not determine whether a state court can apply the TCPA to a federal
claim being presented in that state court. The analysis that applies to these two
issues is distinct.
As explained by the Fifth Circuit, when a case is in federal court, the “Erie
line of authorities holds that substantive state law must be applied in federal courts
in diversity cases . . . but state procedural law yields to the applicable Federal
Rules.” Klocke, 936 F.3d at 244. While it can be difficult to determine whether a
state law is procedural or substantive, according to the Fifth Circuit, a “federal
court exercising diversity jurisdiction should not apply a state law or rule if (1) a
Federal Rule of Civil Procedure ‘answer[s] the same question’ as the state law or
22
rule and (2) the Federal Rule does not violate the Rules Enabling Act.” Id. (quoting
Abbas v. Foreign Policy Grp. LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015)).
According to the Fifth Circuit, the TCPA dismissal statute “answers the
same question” as Federal Rules of Civil Procedure 12 and 56, namely, “what are
the circumstances under which a court must dismiss a case before trial?” But the
TCPA “imposes additional requirements beyond those found in Rules 12 and 56”
to answer that question. Id. at 245. It does so by “demand[ing] judicial weighing of
evidence” to determine whether a plaintiff can meet each element of his claim. Id.
The “Federal Rules in question are ‘sufficiently broad to control the issue before
the [federal] court’” and already supply a “comprehensive framework governing
pretrial dismissal and judgment.” Id. at 247 (quoting Carbone v. Cable News
Network, Inc., 910 F.3d 1345, 1351, 1355 (11th Cir. 2018)).
Because the case analyzed by the Fifth Circuit was in federal court under
diversity jurisdiction, federal procedural rules were supposed to apply, and the
federal rules answered the same question that the state law addressed, the Fifth
Circuit determined that federal courts should use federal dismissal procedures
instead of state dismissal procedures. See id. With that in mind, we turn to this
state-court case.
Whether a Texas statute is unavailable in Texas courts to dispose of a federal
claim presents a very different question than the Fifth Circuit confronted. The
23
matter is not resolved by asking whether state and federal rules answer the same
question. The question, instead, is whether the state law is procedural or
substantive, or, more to the point, whether applying the state law would frustrate
the federal law such that enforcement of the state law will frequently and
predictably produce different outcomes based only on whether the claim is brought
in state or federal court. See Felder v. Casey, 487 U.S. 131, 138 (1988); Rogers v.
Bagley, 623 S.W.3d 343, 353 (Tex. 2021).
The Felder case involved a Wisconsin statute that required written notice of
a claim against a state governmental subdivision, agency, or officer to be given to
the government within 120 days of the alleged injury. 487 U.S. at 136. The
claimant also had to submit an itemized statement of relief sought. Id. at 136–37.
The governmental subdivision, agency, or officer had 120 days to grant or deny the
relief requested. Id. at 137. If the claim was denied, the claimant had only six
months to bring suit. Id. The United States Supreme Court held that the state law
was preempted because it undermined the “uniquely federal remedy” available
under Section 1983. Id. at 141. The Wisconsin statute placed a hurdle to recovery
that was not a neutral or uniform procedural rule but a substantive burden on those
who sought redress from misuse of governmental authority. Id. The burdens the
Wisconsin law placed on federal Section 1983 claims were inconsistent with the
federal statute and thus preempted by it. Id.
24
The Texas Supreme Court reached the opposite result in Bagley. There, the
question was whether Section 1983 claims against a state mental health facility and
its employees arising from a death were health care liability claims under the Texas
Medical Liability Act and, if so, whether Section 1983 preempted the TMLA’s
requirement to timely serve an expert report. Bagley, 623 S.W.3d at 347. After
determining that the claims were health care liability claims, the Court turned to
preemption. Id. at 353. It held that the TMLA expert-report requirement was not
preempted because the statute “merely requires an advance summary of the same
evidence Bagley would have to present to prevail at trial, regardless of whether he
sued in federal or state court.” Id. at 355 (analogizing to Chapter 90 expert-report
requirements for claimants alleging silica-related injuries, which were held to be
procedural and not preempted in In re GlobalSanteFe Corp., 275 S.W.3d 477 (Tex.
2008)).
The TMLA did not create another substantive hurdle or conflict or interfere
with federal law; it only affected the timing of when proof must be disclosed,
according to the Court. Id. Nor did the statute target claims against the
government. It applied equally to nongovernment defendants. Id. That a Section
1983 claim might be dismissed under the TMLA did not make the two laws
inconsistent. Id. The Court’s focus was broader: “whether the state statute would
‘frequently and predictably produce different outcomes in § 1983 litigation based
25
solely on whether the claim is asserted in state or federal court.’” Id. (quoting
Felder, 487 U.S. at 138). Because the expert-report requirement would not,
according to the Texas Supreme Court, it was not preempted. Id. at 356.
In our view, the TCPA procedures that require a claimant to make a prima
facie showing on their claims early in the litigation are more like the requirements
in Bagley and GlobalSanteFe than the one in Felder. To be sure, a claimant must
point to clear and specific evidence that establishes a prima facie6
case for each
essential element of their claim much sooner in a state court where a TCPA
dismissal motion is filed than the claimant would have to in federal court without a
TCPA dismissal procedure. But the statute does not add to the proof that the
claimant ultimately must establish. See Bagley, 623 S.W.3d at 354 (TMLA expertreport requirement does not require anything different from plaintiffs than would
have been required in federal court, it only requires the information be established
sooner in the litigation).
As stated, the ultimate question for preemption is whether applying the state
law would hinder the federal law such that enforcement of the state law will
“frequently and predictably” produce different outcomes based only on whether
the claim is brought in state or federal court. See Felder, 487 U.S. at 138; Bagley,
6 Prima facie means “[s]ufficient to establish a fact or raise a presumption unless
disproved or rebutted.” Keeton v. Tex. Racing Com’n, No. 03-03-00049-CV, 2003
WL 21939996, at *8 (Tex. App.—Austin Aug. 14, 2003, pet. denied) (quoting
Black’s Law Dictionary 1209 (7th ed. 1999)).
26
623 S.W.3d at 353. The Naths do not address this question in their brief. The
hospitals offer that applying the TCPA will not regularly produce different results
for Section 1983 claims brought in state court versus federal court. They point out
that the TCPA’s prima-facie-showing burden simply accelerates the timeframe in
which the claimant must produce evidence in support of the elements of their claim
without adding to that burden, and they note that the TCPA has a procedure for
nonmovants to request discovery to respond to a TCPA motion and meet that
burden, when needed. See TEX. CIV. PRAC. & REM. CODE § 27.006(b).
We agree and conclude that the TCPA’s prima-facie-showing requirement is
not preempted by Section 1983. The Naths’ Section 1983 claim is subject to the
same TCPA summary-dismissal procedures as their other claims. We evaluate
these claims next.
C. The TCPA burden-shifting procedures
The TCPA involves shifting burdens. The movant has the initial burden to
show by a preponderance of the evidence that the nonmovant has asserted a “legal
action” that is adequately connected to the movant’s exercise of the right of free
speech, right to petition, or right of association. See TEX. CIV. PRAC. & REM. CODE
§ 27.005(b). Neither party disputes that the hospitals met this burden.
When the movant meets their burden, the burden shifts to the nonmovant.
The nonmovant has the burden to establish by clear and specific evidence a prima
27
facie case for each essential element of the claim. Id. § 27.005(c). “Clear and
specific” has been described as evidence that is “unaided by presumptions,
inferences, or intendments.” Better Bus. Bureau of Metro. Houston, Inc. v. John
Moore Servs., Inc., 441 S.W.3d 345, 355 (Tex. App.—Houston [1st Dist.] 2013,
pet. denied) (quoting Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726
(Tex. App.—Houston [14th Dist.] 2013, pet. denied)). Conclusory statements and
bare, baseless opinions are not probative and do not meet the requirement of clear
and specific evidence of a prima-facie case. Lipsky, 460 S.W.3d at 592–93.
Dismissal may be required, despite the nonmovant’s evidence proffered to
meet their burden, if the movant establishes a defense. TEX. CIV. PRAC. & REM.
CODE § 27.005(d). Because meeting the burden of establishing a defense prevails
over the nonmovant makings their showing, it is permissible to begin with
analyzing whether a valid defense is established. See Berry v. Bay, Ltd., No. 13-18-
00438-CV, 2020 WL 486486, at *3 (Tex. App.—Corpus Christi Jan. 30, 2020, no
pet.) (mem. op.).
The trial court considers the pleadings and any supporting and opposing
affidavits to evaluate whether each party has met its burden. TEX. CIV. PRAC. &
REM. CODE § 27.006(a); Lipsky, 460 S.W.3d at 587. The trial court also “may
allow specified and limited discovery relevant to the motion” to dismiss. TEX. CIV.
PRAC. & REM. CODE § 27.006(b); see In re SSCP Mgmt., Inc., 573 S.W.3d 464,
28
472–73 (Tex. App.—Fort Worth 2019, orig. proceeding) (acknowledging that
“some merits-based discovery” may be necessary for nonmovant to respond to
TCPA dismissal motion). A trial court considers the pleadings and evidence in the
light most favorable to the nonmovant. Porter-Garcia v. Travis Law Firm, P.C.,
564 S.W.3d 75, 84 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).
We review de novo a trial court’s ruling on a TCPA motion to dismiss. John
Moore Servs., 441 S.W.3d at 353.
D. The judicial-proceeding privilege negates all the Naths’ claims
The Naths asserted claims for violation of Section 1983 protections, for
tortious interference with existing contract, and for tortious interference with
prospective contracts.
As discussed above while affirming the trial court’s grant of Rule 91a
dismissal of the Naths’ claims, the judicial-proceedings privilege is an absolute
privilege against tort liability arising out of the filing of an abstract of judgment,
including a claim brought under Section 1983. See Fisher, 868 N.E.2d at 167–68.
All the Naths’ claims arise out of the hospitals’ filing of abstracts of judgment and
equivocally withdrawing those abstracts. Thus, the trial court did not err in
granting the hospitals’ TCPA motion to dismiss.
29
We overrule the Naths’ third issue. We turn now to their fourth issue,
challenging the summary-judgment award of attorney’s fees in the August 2020
final judgment.
Evidentiary Rulings and Summary Judgment on Fee Award
In their fourth issue, the Naths challenge the trial court’s evidentiary rulings
related to the hospitals’ requests for attorney’s fees that led to summary judgment
for the hospitals. The Naths argue that the trial court erred in sustaining the
hospitals’ evidentiary objections to their counter-affidavits and that they presented
sufficient evidence to raise a fact issue on the reasonableness of the hospitals’ fee
awards.
The hospitals respond that (1) the trial court properly granted their
objections to the Naths’ counter-affidavits as being conclusory and containing
impermissible legal conclusions and (2) that properly excluding the counteraffidavits’ challenged content left the question of the reasonableness of their fee
claim conclusively decided in their favor.
A. Standards of review
We apply an abuse-of-discretion standard when determining whether a trial
court erred in an evidentiary ruling. Owens–Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35, 43 (Tex. 1998); Harris Cnty. v. Inter Nos, Ltd., 199 S.W.3d 363,
367 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The admission or exclusion of
30
evidence is within the trial court’s discretion. City of Brownsville v. Alvarado, 897
S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion when it rules
without regard to any guiding rule or principle. Malone, 972 S.W.2d at 43. We
uphold the trial court’s ruling if there is any legitimate basis for it. Id.
We review de novo a trial court’s ruling on a motion for summary judgment.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). A party moving for traditional summary judgment has the burden to
prove there is no genuine issue of material fact and the movant is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); SeaBright Ins. Co. v. Lopez,
465 S.W.3d 637, 641 (Tex. 2015).
To determine whether there is a fact issue, we review the evidence in the
light most favorable to the nonmovant, crediting favorable evidence if reasonable
jurors could and disregarding contrary evidence unless reasonable jurors could not.
See Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005)). A matter is conclusively established if reasonable people could
not differ as to the conclusion to be drawn from the evidence. See City of Keller,
168 S.W.3d at 823.
“A reasonable attorney’s fee is one that is not excessive or extreme, but
rather moderate or fair.” Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016)
(quoting Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010) (internal quotation
31
marks removed)). The determination of a reasonable fee rests within the trial
court’s discretion. Id. Thus, we review the trial court’s order on attorney’s fees for
an abuse of discretion. See, e.g., Avila v. Larrea, 506 S.W.3d 490, 494 (Tex.
App.—Dallas 2015, pet. denied).
In reviewing an appellate attorney’s fee award, we consider the record and
may draw on our knowledge as appellate justices and attorneys. Urquhart v.
Calkins, No. 01-17-00256-CV, 2018 WL 3352919, at *4 (Tex. App.—Houston
[1st Dist.] July 10, 2018, pet. denied) (mem. op.); see Keith v. Keith, 221 S.W.3d
156, 169 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (appellate court has
authority in looking at entire record to draw on common knowledge of justices and
their legal experience).
B. Law on reasonableness of attorney’s fees
“When a claimant wishes to obtain attorney’s fees from the opposing party,
the claimant must prove that the requested fees are both reasonable and necessary.”
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 489 (Tex.
2019). “Both elements 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 nonprevailing party.” Id. The factfinder’s starting point for calculating an attorney’s
fee award is determining the reasonable hours worked multiplied by a reasonable
32
hourly rate, following the lodestar analysis. Id. at 498 (discussing El Apple I, Ltd.
v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012)).
Sufficient evidence includes evidence of “(1) particular services performed,
(2) who performed those services, (3) approximately when the services were
performed, (4) the reasonable amount of time required to perform the services, and
(5) the reasonable hourly rate for each person performing such services.” Id. at 498
(citing El Apple, 370 S.W.3d at 762–63). “This base lodestar figure should
approximate the reasonable value of legal services provided in prosecuting or
defending the prevailing party’s claim through the litigation process.” Id.; cf.
Blanchard v. Bergeron, 489 U.S. 87, 93 (1989) (explaining that a fee-shifting
statute “contemplates reasonable compensation . . . for the time and effort
expended by the attorney for the prevailing [party], no more and no less”).
This base lodestar calculation usually includes at least these considerations
from Arthur Andersen: (1) the time and labor required, (2) the novelty and
difficulty of the questions involved, (3) the skill required to perform the legal
service properly, (4) the fee customarily charged in the locality for similar legal
services, (5) the amount involved, (6) the experience, reputation, and ability of the
lawyer or lawyers performing the services, (7) whether the fee is fixed or
contingent on results, (8) the uncertainty of collection before the legal services
have been rendered, and (9) the results obtained. Rohrmoos, 578 S.W.3d at 500
33
(citing Arthur Andersen & Co. v. Perry Equipm’t Corp., 945 S.W.2d 812, 818
(Tex. 1997)).
“Reasonableness and necessity are not dependent solely on the contractual
fee arrangement between the prevailing party and its attorney.” Rohrmoos, 578
S.W.3d at 498; see Pennsylvania v. Del. Valley Citizens’ Council, 478 U.S. 546,
565 (1986) (explaining that fee-shifting statutes are not “intended to replicate
exactly the fee an attorney could earn through a private fee arrangement with his
client”).
There is a strong presumption that the base lodestar amount is reasonable,
but that presumption can be overcome. Rohrmoos, 578 S.W.3d at 502 (citing
Perdue v. Kenny A. ex. rel. Winn, 559 U.S. 542, 553–54 (2010)). That is where the
second step of the lodestar method comes in. See id.
In the second step, the factfinder must determine whether evidence of other
considerations overcomes the presumption and requires an adjustment to reach a
reasonable fee. Id. at 501. Arthur Andersen lists considerations that may justify an
adjustment, but any factor already incorporated into the base calculation—at step
one—does not apply in step two to rebut the presumption that the base calculation
reflects a reasonable and necessary fee. Id. (citing Arthur Andersen, 945 S.W.2d at
818).
34
When fee shifting is authorized, the party seeking the fee award must prove
that the requested attorney’s fees are reasonable and necessary. Id. at 484. General,
conclusory testimony lacking any real substance will not support a fee award. Id. at
501. Sufficient evidence is required, and the proponent for the award has the
burden to provide it. Id. at 502.
Sufficient evidence includes, at a minimum, evidence of (1) the particular
services performed, (2) who performed those services, (3) around when the
services were performed, (4) the reasonable amount of time required to perform the
services (which might not equal the actual amount of time expended), and (5) the
reasonable hourly rate for each person performing such services. Id.; see El Apple,
370 S.W.3d at 762–63.
C. The “conclusiveness” argument
The hospitals argue that “a declaration that provides sufficient evidence to
conduct a lodestar analysis conclusively establishes the amount of a party’s
reasonable and necessary fees,” citing Felix v. Prosperity Bank, No. 01-14-00997-
CV, 2015 WL 9242048, at *4 (Tex. App —Houston [1st Dist.] Dec. 17, 2015, no
pet.) (mem. op.).
They are incorrect for two reasons. First, Felix does not contain such a
holding. Instead, it holds that the movant’s affidavits were insufficient, leaving this
Court unable to “meaningfully review the fee request.” Id. There is no implication
35
that a different affidavit would have conclusively established a fee amount that
would bind the trial court to conclude that the fee request was reasonable and
necessary.
Second, their argument ignores the second step of the lodestar analysis. Even
after the claimant produces evidence to establish a presumptively reasonable
“base” fee amount, the opposing party may present evidence related to different
considerations to argue for a reduction of the fee award. See Rohrmoos, 578
S.W.3d at 501. Likewise, the trial court may consider other compelling factors to
reduce the requested fee amount to a reasonable figure. See id. at 502 (quoting the
Supreme Court’s observation, in Purdue, 559 U.S. at 553–54, that the “lodestar
method was never intended to be conclusive in all circumstances”; “there is a
‘strong presumption’ that the [base] lodestar figure is reasonable,” which may be
overcome).
The hospitals appear to ground their “conclusiveness” argument in the lack
of a qualifying counter-affidavit, arguing that their uncontroverted affidavits
established reasonableness as a matter of law, as though there is no judicial role but
to award the requested amount, relying on Hunsucker v. Fustok, 238 S.W.3d 421,
431 (Tex. App.—Houston [1st Dist.] 2007, no pet.). But the cases do not go so far.
Hunsucker—which relied on Ragsdale v. Progressive Voters League, 801 S.W.2d
880, 882 (Tex. 1990) (per curiam)—held that a trial court abused its discretion in
36
awarding no attorney’s fees given that the claimant had filed an affidavit in support
of a fee award and that affidavit was uncontroverted. Hunsucker, 238 S.W.3d at
432.
According to Hunsucker, the attorney “established the amount of attorney’s
fees as a matter of law,” but the opinion also explains that the attorney did so
because their affidavit was “clear, direct, positive,” and not controverted. Id. The
significance of that language comes from the case the opinion cites: Ragsdale.
There, the Texas Supreme Court explained that an uncontroverted affidavit does
not necessarily require a finding of reasonableness as a matter of law:
In order for the court to award an amount of attorneys’ fees as a
matter of law, the evidence from an interested witness must not be
contradicted by any other witness or attendant circumstances and the
same must be clear, direct and positive, and free from contradiction,
inaccuracies and circumstances tending to [cause] suspicion thereon.
The court, as a trier of fact, may award attorneys’ fees as a matter of
law in such circumstances, especially when the opposing party has the
means and opportunity of disproving the testimony or evidence and
fails to do so. . . . In [some situations,] the evidence may be
uncontradicted, but the trial judge could find some of the claimed fees
to be unreasonable, unwarranted, or some other circumstance which
would make an award of the uncontroverted claim wrong.
Ragsdale, 801 S.W.2d at 882 (emphasis added).
To be sure, summary judgment on attorney’s fees is possible. See Gaughan
v. Nat’l Cutting Horse Ass’n, 351 S.W.3d 408, 423 (Tex. App.—Fort Worth 2011,
pet. denied). But the hospitals’ argument that their affidavits compel an award in
the amount they requested, if uncontroverted, goes beyond what the case law
37
supports. The trial court is not bound in this way. The trial court remains
empowered to consider whether the “attendant circumstances” and “circumstances
tending to [cause] suspicion” require an adjustment to the requested amount.
Ragsdale, 801 S.W.2d at 882.
D. The trial court’s ruling to grant the hospitals’ objections to the Naths’
counter-affidavits
The Naths filed two counter-affidavits to challenge the hospitals’ evidence
of reasonableness of attorney’s fees. The counter-affidavits were from Craig T.
Enoch, former Justice of the Supreme Court of Texas, and A.G. Crouch, a 50-year
practicing attorney.
1. Couch counter-affidavit
The hospitals objected that the Crouch counter-affidavit “consists entirely of
improper legal conclusions” and was conclusory. The trial court sustained the
objections. We conclude the trial court did not abuse its discretion in doing so.
In his affidavit, Couch opined on whether a judgment was valid and on the
legal effect of invalidity. He opined on when a judgment becomes final and the
legal effect of that determination. And he opined on whether and how fees are
available on a Section 1983 claim. These are legal conclusions that do not raise a
fact question on the reasonableness and necessity of the fees sought. See Cammack
the Cook, L.L.C. v. Eastburn, 296 S.W.3d 884, 895 (Tex. App.—Texarkana 2009,
pet. denied). Following these legal conclusions, Couch added a single sentence at
38
the end of the affidavit that states, in a conclusory fashion, “The fees applied for
are unsupported and have no viable color of being reasonable or necessary under
the Rohrmoos test.” The affidavit does not discuss the Rohrmoos test or explain the
factual basis for that opinion. The hospitals’ objections were properly sustained.
See id.
2. Enoch counter-affidavit
The hospitals also objected to Enoch’s counter-affidavit as conclusory,
arguing that he “fail[ed] to tie any of his proffered reasons to the underlying facts
of this case.” They state that Enoch’s declaration “makes it abundantly clear that
he did not review Defendants’ billing records.” Further, “Enoch offers no factual
basis for his conclusion” that the number of billable hours was unreasonable. And
finally, “Enoch offers no factual support for his conclusion” that the hourly rates
charged were, as they interpret his affidavit, “‘about 60%’ too high.”
The hospitals presented their “conclusory” objections to Enoch’s affidavit by
excerpting sentences or, at times, portions of sentences from the affidavit and
requesting the trial court to rule on each excerpt in isolation. For example, they
sought to have the trial court find this statement conclusory: “I note both the
excessively high billable rates for several of the attorneys, and the unusually high
number of attorneys working on Texas Children’s and Baylor College’s various
efforts.”
39
Such excerpting from the longer affidavit took Enoch’s statements out of
context in several ways. First, the excerpt spliced off the beginning of that
sentence. The sentence began with the phrase, “Applying the eight-factor test to
fees charged for the necessary services . . . .” Removing from view the basis for the
affiant’s conclusion might cause the excerpted statement to appear conclusory but
reading fragments in isolation is not how a court evaluates whether an affidavit is
conclusory. See Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 501 (Tex.
2015) (in context of statutes, requiring that document be read as a whole, “reading
all its language in context, and not reading individual provisions in isolation”);
BNSF Ry. Co. v. Chevron Midcontinent, L.P., 528 S.W.3d 124, 127 (Tex. App.—
El Paso 2017, no pet.) (in context of a deed, stating that court will read a document
“as one cohesive document” and will not “cherry-pick phrases and read them in
isolation”); see also United States v. Conley, 4 F.3d 1200, 1208 (3d Cir. 1993) (in
criminal law context, “statements in an affidavit may not be read in isolation—the
affidavit must be read as a whole”).
The hospitals excerpted another part of a sentence from Enoch’s affidavit
and labeled it and the following sentence conclusory. Enoch stated,
I conclude that the top rates charged before discounts ($1085, $1025,
and $920 for Texas Children’s and $995 and $750 for Baylor College)
are not reasonable for fee shifting to be appropriate here. An hourly
rate not to exceed about 60% of these fees would be reasonable based
on the experience level of the attorneys involved in this case and the
level of work required.
40
But that first sentence began with the phrase, “Based on my knowledge of the
matters in this dispute. . . .” Thus, the hospitals’ excerpt left off the stated basis for
Enoch’s conclusion.
Their excerpts also left off Enoch’s explanation of how he developed his
knowledge of the matters in dispute. Looking at the affidavit as a whole, Enoch
explained that he has an “extensive litigation and appellate background” that
allowed him to “become familiar with attorneys’ billable rates in various regions of
Texas, including Houston.” He also discusses his personal familiarity with past
litigation between Nath and the hospitals, which makes him “familiar with the
skills required” to represent these parties in this dispute. He then explains that
“[b]ased on [his] knowledge of the matters in this dispute, [he has] concluded that
the top rates charged before discounts . . . are not reasonable . . . .” By cherrypicking phrases from the affidavit and having them evaluated in isolation, the
hospitals distorted Enoch’s statements.
Another example of such a distortion can be seen in the hospitals’ claim that
Enoch proposed that their fees were 60% too high. In fact, in context, Enoch
opined that a reasonable rate, factoring in the complexity of the matter (of which
he had past, personal knowledge) and the experience of these lawyers, is 60% of
the rate charged, meaning the fees sought were 40% too high, not 60%. In a case
41
involving over a million dollars in fees to obtain summary dismissal, the difference
is significant.
The percent error is not the only problem with this excerpt. Additionally,
there is material explanation surrounding Enoch’s conclusions that is missing.
Enoch did not opine without context or foundation that the rates were
unreasonable. He led his opinion with this explanation that was omitted from the
hospitals’ excerpt:
Because of my extensive litigation and appellate background, I have
become familiar with attorneys’ billable rates in various regions of
Texas, including Houston. Once again a client may choose to engage
the services of law firms with high billable rates, but the standard to
be followed is what would be the fee customarily charged by
attorneys in the locality for similar legal services,[
7
] and considering
the skill required (factors 1 and 3 above). I have been involved in
various matters in litigation between Dr. Nath and Texas Children’s
and Baylor College. I am familiar with the issues, which are not
complex, but heavily competed over by the attorneys, consequently I
am familiar with the skill required. Based on my knowledge of the
matters in dispute . . . [the rates charged were not reasonable].
Yet, the excerpts were ruled on, individually, without the material surrounding,
contextual language.
7
Just because a party chose an aggressive litigation strategy does not mean that
party has a right to shift the full fee underlying that strategic choice. Instead, the
test is what was necessary and reasonable in the market for the level of complexity
involved, considering the experience level of the attorneys, and other factors. See
Rohrmoos, 578 S.W.3d at 498.
42
We hold that the trial court abused its discretion in ruling on cherry-picked
clauses from Enoch’s counter-affidavit and finding them conclusory in isolation.
We do not reach the issues of the reasonableness of these fees8 because we have
concluded that the trial court erred in its analysis of Enoch’s affidavit and are
remanding for the trial court to consider the Enoch counter-affidavit in its entirety,
with each phrase and sentence read in the context of the whole.
In sum, we hold that the trial court’s rulings as to the Crouch counteraffidavit are not erroneous. Crouch’s affidavit states his conclusions about how the
law should apply to the issues presented in the litigation. Such legal statements are
not a proper basis to challenge the reasonableness and necessity of the attorney’s
fees requested. But we sustain the Naths’ fourth issue as it relates to the trial
court’s analysis of Enoch’s affidavit. We remand for the trial court to consider the
Enoch counter-affidavit as a whole, with each phrase and sentence read in the
context of the whole. That ruling will inform the trial court’s analysis of the
hospitals’ motion for summary judgment on attorney’s fees, should they pursue
such a motion on remand.
8 The trial court negated the evidentiary value of the counter-affidavit with its
rulings. The court then awarded every dollar of attorney’s fees the hospitals
requested. The hospitals were awarded over $300,000 for past attorney’s fees for a
case dismissed in the preliminary stages of the litigation. The hospitals were
awarded close to $900,000 in future appellate fees contingent on the Naths
appealing the judgment. These future appellate fees are triple the past fees for
defending matter-of-law arguments limited to the issues before the trial court on
summary dismissal.
43
Jury Trial on Attorney’s Fees
The Naths contend that, to the extent that a fact issue exists on the
reasonableness and necessity of the fees sought, they were entitled to a jury trial on
the hospitals’ fee claim. The hospitals respond that the Naths do not have a right to
a jury trial on a fee claim where the fee claim is the only remaining issue.
We conclude that this issue is mooted by the remand for additional review of
the evidence and a reconsideration of whether summary judgment was proper.
Recusal
Finally, in their last issue, the Naths contend that the trial court erred in
ruling on a recusal motion that they claim they never presented.
In their motion for new trial, the Naths requested the trial court recuse from
the matter:
This motion gives the Court the opportunity to extract itself from the
untenable position of having to grade the paper of its back hallway
suitemate by granting this motion, signing an order of recusal, and
allowing the presiding administrative judge to assign the case to a
retired or otherwise disinterested judge to review it from scratch
without the appearances that overshadow the case presently . . . .
(Emphasis added.)
The basis for the Naths’ claim of error is factually unsupported by the
record. Their motion sought a recusal. They may have anticipated being granted a
new trial first, but their motion requested a recusal all the same.
44
Because the record contradicts their claim of error, we overrule the Naths’
final issue.

Outcome: We remand for additional consideration of the hospitals’ claim that the
Enoch affidavit is conclusory, with analysis of the affidavit as a whole, in the
context of its explanatory language.

Plaintiff's Experts:

Defendant's Experts:

Comments: