Andria Solomon v. Rosemary Buckle, Nicole D. Ches and HCA Health Services of Texas, Inc.

Opinion issued March 14, 2024

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-23-00349-CV

———————————

ANDRIA SOLOMON, Appellant

V.

ROSEMARY BUCKLE, NICOLE D. CHES, AND HCA HEALTH

SERVICES OF TEXAS, INC., Appellees

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Case No. 2022-05959

O P I N I O N

Andria Solomon appeals from the trial court’s order dismissing her suit for

failing to file the expert report required by the Texas Medical Liability Act.

Rosemary Buckle, Nicole D. Ches, and HCA Health Services of Texas, Inc. cross-

appeal, contending that the trial court erred in not awarding them their attorney’s

fees. As explained below, we affirm the trial court’s judgment in its entirety.

Buckle, Ches, and HCA Health Services have also moved to sanction

Solomon or her counsel for misstatements made in her brief. We deny the motion.

BACKGROUND

Plaintiff’s Lawsuit

Solomon sued Buckle and Ches for negligence. Solomon also sued HCA

Health Services, alleging that it was liable for Buckle’s and Ches’s negligence

because Buckle and Ches acted as agents or employees of HCA Health Services.

According to Solomon’s live pleading, she sought medical treatment from and

was examined by Buckle regarding a knee injury Solomon sustained in a car

accident. Solomon alleges that Buckle afterward submitted an attending physician’s

statement to Solomon’s disability benefits insurer that falsely represented that

Buckle had made certain exams, observations, and findings, and that Solomon’s

insurer then terminated Solomon’s disability benefits based on this false attending

physician’s statement. Ches, not Buckle, signed the attending physician’s statement.

Solomon alleged that Buckle had a duty to ensure that the attending

physician’s statement was accurate and breached this duty because she knew the

statement was false. Solomon further alleged that Ches likewise had a duty to ensure

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the accuracy of this statement and breached this duty by signing the statement based

on the false information supplied by Buckle without verifying its truthfulness.

Defendants’ Motion to Dismiss

Buckle, Ches, and HCA Health Services moved to dismiss Solomon’s lawsuit

under the Texas Medical Liability Act based on Solomon’s failure to serve an expert

report supporting her negligence claim. See TEX. CIV. PRAC. & REM. CODE

§ 74.351(b)(2) (requiring dismissal if expert report not timely served as to health

care liability claims). They also sought attorney’s fees in connection with the

dismissal. See id. § 74.351(b)(1) (requiring award of fees in event of dismissal).

Plaintiff’s Response to Motion to Dismiss

Solomon responded to the motion to dismiss. She argued that her negligence

claim is not subject to the Texas Medical Liability Act because this claim does not

fall within the definitions of “health care liability claim” or “professional or

administrative services.” See id. § 74.001(a)(13), (24) (defining these terms).

As an exhibit, Solomon attached the attending physician’s statement, which

is an insurance-related form created by Solomon’s insurer. In the form, Buckle or

Ches reported that Solomon was seen on April 15, 2021, for knee pain. The form

recited the subjective symptoms and objective signs associated with her knee

condition, stated the diagnostic tests performed, and identified a plan of treatment

that involved a follow-up visit to obtain an MRI. The form also contained various

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representations about Solomon’s physical condition or physical abilities. Among

other things, the form identified how long she could sit, stand, and walk; recorded

how much weight she could carry and how often she could do so; documented her

ability to use her hands to grasp, push, pull, and manipulate objects, as well as her

ability to engage in repetitive movements with her feet; and quantified her ability to

engage in various tasks by specifying whether and how often she could climb,

balance, stoop, kneel, crouch, crawl, and reach above her shoulder. The form is dated

June 25, 2021 (and appears to have been faxed to/from someone four days prior).

Solomon also attached as an exhibit a medical record documenting the April

15 visit with Buckle. This record also indicated an MRI was the plan of treatment.

Trial Court’s Ruling

The trial court granted the motion to dismiss and rendered a take-nothing

judgment on Solomon’s claims. But the trial court did not award attorney’s fees.

DISMISSAL OF THE LAWSUIT

Solomon contends the trial court erred in dismissing her lawsuit under the

Texas Medical Liability Act because her claim is not a “health care liability claim.”

Standard of Review

In this case, the dispositive issue concerning the dismissal of Solomon’s suit

is whether her claims fall within the scope of the Texas Medical Liability Act. Under

these circumstances, our review is de novo. See Methodist Hosp. v. Halat, 415

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S.W.3d 517, 520 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (noting that district

court’s ruling on motion to dismiss under Texas Medical Liability Act is generally

reviewed for abuse of discretion, but that review is de novo when applicability of

Act to plaintiff’s claims is dispositive issue and appellate court must interpret Act).

Applicable Law

Statutory Interpretation in General

In interpreting a statute, we ascertain and give effect to the intent of the

legislature, which we derive from the words of the statute absent ambiguity. See id.

When statutory terms are defined in the statute itself, we rely on these definitions.

See id. Otherwise, we interpret statutory terms in conformity with their plain and

common meaning, unless the terms have acquired a technical meaning or a contrary

meaning is apparent from the context. See id.; see also Taylor v. Taylor, 608 S.W.3d

265, 267 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (stating that we give

statutory terms their common, ordinary meaning unless the legislature has defined

them, they have technical meanings, or context shows they have other meanings).

We cannot rewrite the statute. Taylor, 608 S.W.3d at 268. Accordingly, we cannot

add terms the legislature omitted or subtract terms the legislature included. Id.

The Texas Medical Liability Act

When a plaintiff asserts a “health care liability claim,” the Texas Medical

Liability Act requires her to serve an expert report on any defendant physician or

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health care provider within 120 days after each defendant’s original answer. TEX.

CIV. PRAC. & REM. CODE § 74.351(a). The expert report must provide “a fair

summary of the expert’s opinions as of the date of the report regarding applicable

standards of care, the manner in which the care rendered by the physician or health

care provider failed to meet the standards, and the causal relationship between that

failure and the injury, harm, or damages claimed.” Id. § 74.351(r)(6). If the Act

applies and the plaintiff fails to timely serve the required expert report, the court

must, on the motion of the affected defendant, dismiss the claim. Id. § 74.351(b).

The scope of the Texas Medical Liability Act is expansive. See Bioderm Skin

Care v. Sok, 426 S.W.3d 753, 758 (Tex. 2014) (observing that “broad language of

the Medical Liability Act evinces legislative intent for the statute to have expansive

application”). The Act defines a “health care liability claim” as “a cause of action

against a health care provider or physician for treatment, lack of treatment, or other

claimed departure from accepted standards of medical care, or health care, or safety

or professional or administrative services directly related to health care, which

proximately results in injury to or death of a claimant, whether the claimant’s claim

or cause of action sounds in tort or contract.” TEX. CIV. PRAC. & REM. CODE

§ 74.001(a)(13).

To be a “health care liability claim” and thus be within the Texas Medical

Liability Act’s scope, three basic elements must be satisfied. Lake Jackson Med. Spa

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v. Gaytan, 640 S.W.3d 830, 840 (Tex. 2022). First, the defendant must be a physician

or health care provider. Id.; see TEX. CIV. PRAC. & REM. CODE § 74.001(a)(12), (23)

(defining terms “health care provider” and “physician” for purposes of Act). Second,

the plaintiff’s claim must concern treatment, lack of treatment, or a departure from

accepted standards of medical care, or health care, or safety or professional or

administrative services directly related to health care. Gaytan, 640 S.W.3d at 840;

see TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10), (13), (19), (24) (defining terms

“health care,” “health care liability claim,” “medical care,” and “professional or

administrative services”); Rogers v. Bagley, 623 S.W.3d 343, 350 (Tex. 2021)

(noting Act does not define “safety” but Court has defined it as “condition of being

‘untouched by danger; not exposed to danger; secure from danger, harm or loss’”).

Third, the defendant’s conduct must proximately cause the plaintiff’s injury or death.

Gaytan, 640 S.W.3d at 840; see TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13)

(incorporating proximate cause and injury or death into “health care liability claim”).

When assessing whether the plaintiff asserts a “health care liability claim,”

we focus on the underlying nature of the claim, not its label. Gaytan, 640 S.W.3d at

836. To ascertain the claim’s underlying nature, we look to the entire record,

including pleadings, motions and responses, and relevant evidence. Id. at 836, 839–

40.

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We are not bound by the way in which the plaintiff characterizes a claim in

her pleadings if they do not accurately reflect the claim’s underlying nature. See

Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012) (stating facts underlying claim

are determinative of Act’s applicability, “not the form of, or artfully-phrased

language in, the plaintiff’s pleadings describing the facts or legal theories asserted”).

Instead, we consider the operative facts underlying the plaintiff’s claim that are

relevant to her alleged injury, rather than how she describes the facts or legal theories

in her pleadings. Collin Creek Assisted Living Ctr. v. Faber, 671 S.W.3d 879, 885

(Tex. 2023). If the operative facts could support a “health care liability claim,” then

the Texas Medical Liability Act applies, and an expert report is required. See id.

Analysis

The parties’ dispute centers on the second of the three elements of a “health

care liability claim,” namely, whether Solomon’s claim concerns treatment, lack of

treatment, or a departure from accepted standards of medical care, or health care, or

safety or professional or administrative services directly related to health care. See

Gaytan, 640 S.W.3d at 840 (identifying this as second of three elements defining

“health care liability claim”). In particular, the parties disagree as to whether

Solomon’s claim—that Buckle and Ches gave false information to her insurer,

resulting in discontinuation of disability benefits—comes within the definition of

“professional or administrative services,” which are defined by the Texas Medical

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Liability Act as “those duties or services that a physician or health care provider is

required to provide as a condition of maintaining the physician’s or health care

provider’s license, accreditation status, or certification to participate in state or

federal health care programs.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(24).

In Baylor Scott & White, Hillcrest Medical Center v. Weems, our Supreme

Court effectively resolved the dispute before us. 575 S.W.3d 357 (Tex. 2019).

In Weems, the plaintiff sued a hospital for intentional infliction of emotional

distress, alleging that a nurse knowingly and intentionally recorded false information

in someone else’s medical record. Id. at 361. In the record, the nurse described a

patient’s injury as a gunshot wound to the head resulting from having been shot at

point-blank range. Id. The nurse based this description of the injury on the accounts

of the patient and an emergency medical technician. Id. According to the plaintiff,

this description was false, inasmuch as he maintained the patient had not even been

shot, and the falsehood resulted in him being indicted for aggravated assault and

incarcerated for almost two years as of the filing of his lawsuit. Id. at 361–62.

The plaintiff failed to timely serve an expert report, and the hospital moved to

dismiss his suit under the Texas Medical Liability Act. Id. at 362. The plaintiff

maintained that the Act did not apply because he was not asserting a medical

malpractice claim, but the trial court disagreed and dismissed his lawsuit. Id.

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Eventually, Weems ended up in our Supreme Court, which held that the

plaintiff’s claim was a “health care liability claim” and that the plaintiff’s failure to

timely file an expert report required the dismissal of his lawsuit. Id. at 363–66.

The Court began its analysis by observing that when a plaintiff brings a claim

against a health care provider based on facts implicating the health care provider’s

conduct during the course of a patient’s care, treatment, or confinement, the

plaintiff’s claim is presumptively a “health care liability claim” subject to the expert-

report requirement imposed by the Act. Id. at 363. When this is the case, the plaintiff

bears the burden to rebut this presumption, and, if the plaintiff fails to do so, then

dismissal of his lawsuit is mandatory. See id. In Weems, this presumption applied

because the plaintiff’s claim that the nurse falsified a medical record was based on

the nurse’s alleged conduct during the course of a patient’s care and treatment. Id.

The Court then turned its attention to whether the gravamen of the plaintiff’s

claim concerned a “claimed departure from accepted standards of medical care, or

health care, or safety or professional or administrative services directly related to

health care.” Id. at 364 (quoting statutory definition of “health care liability claim”).

And the Court concluded that, at a minimum, the plaintiff’s “record-falsification

claim is premised on an alleged departure from accepted standards of ‘professional

or administrative services directly related to health care.’” Id. (quoting same).

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In support of this conclusion, the Court reasoned that “maintenance of

accurate medical records” falls within the “professional or administrative services”

part of the definition of “health care liability claim.” See id.; see also TEX. CIV. PRAC.

& REM. CODE § 74.001(a)(13), (24). Among other things, the Court explained that

this is so because rules enacted by the Texas Medical Board require licensed

physicians to maintain accurate medical records regarding assessments, clinical

impressions, and diagnoses. Weems, 575 S.W.3d at 365. If a physician violates these

rules, the Board can revoke the physician’s license. Id. Stated succinctly, because

the making and maintenance of accurate medical records “is a service health care

providers and physicians must provide as a condition of maintaining their respective

licenses,” the making and maintaining of these records qualifies as “professional or

administrative services” under the Act. Id.; see also TEX. CIV. PRAC. & REM. CODE

§ 74.001(a)(24) (defining “professional or administrative services” to include “those

duties or services that a physician or health care provider is required to provide as a

condition of maintaining the physician’s or heath care provider’s license,

accreditation status,” and certain governmental certifications).

Solomon’s record-falsification claim is indistinguishable from the one the

plaintiff made in Weems. Like the plaintiff in Weems, Solomon claims that the

defendants created a false record—Buckle intentionally so and Ches negligently—

concerning her medical treatment and assessment that adversely affected her outside

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the context of her medical treatment and assessment, and Weems is therefore

dispositive of the status of Solomon’s claim as a “health care liability claim.” See

Weems, 575 S.W.3d at 366 (noting that “statutory definition of a health care liability

claim does not distinguish between departures that are intentional or merely

negligent” in holding that claim at issue was “health care liability claim”).

Accordingly, Solomon was required to serve an expert report under the Act. Id.

Solomon maintains that her record-falsification differs from the one in Weems

because hers involves false statements made in an insurance form, rather than false

statements in a medical record. But this is a distinction without a difference. Just as

physician licensing is conditioned on the making and maintenance of accurate

medical records, Texas law prohibits physicians from engaging in “unprofessional

or dishonorable conduct that is likely to deceive or defraud the public.” TEX. OCC.

CODE §§ 164.052(a)(5), 164.053(a). The Texas Medical Board is statutorily

authorized to take disciplinary action against a physician who engages in this kind

of conduct. Id. § 164.051(a)(1). The Board has enacted a corresponding rule in

which it provides a nonexclusive list of acts that violate the statute. 22 TEX. ADMIN.

CODE § 190.8(2). Notably, the acts listed as violations by the Board demonstrate that

false statements to insurers may qualify as unprofessional and dishonorable conduct

subjecting physicians to discipline. See id. § 190.8(2)(J) (stating that billing

statement to “a third party payer that the licensee knew or should have known” was

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“false, fraudulent, misrepresents services provided, or otherwise does not meet

professional standards” constitutes unprofessional and dishonorable conduct).

Here, Solomon claims that Buckle saw her on a single occasion on April 15,

2021. Solomon further claims that the insurance form corresponding to this lone visit

is false because it recites clinical impressions or diagnoses for which Solomon was

not medically assessed by Buckle, as the visit solely concerned Solomon’s knee

injury. In short, Solomon alleges the form mispresented the services Buckle

provided, and that Buckle intentionally misrepresented these services. This

allegation, if true, qualifies as unprofessional and dishonorable conduct, which a

physician, like Buckle, must refrain from engaging in as a condition of maintaining

her license. See id. Hence, Solomon’s claim based on this underlying conduct is a

“health care liability claim” under the Texas Medical Liability Act. See Weems, 575

S.W.3d at 363–66; see also TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13), (24).

And it is immaterial that Solomon makes no reference to the relevant statutes or

Texas Medical Board rule that prohibits the underlying conduct she complains of in

her petition. See Rogers, 623 S.W.3d at 350 (stating that any claim premised on facts

that could support claim for departures from accepted standards of professional or

administrative services is health care liability claim “regardless of whether the

plaintiff alleges the defendant is liable for breach of any of those standards”).

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Solomon also maintains that her record-falsification claim differs from the

one in Weems because false statements made in an insurance form, as opposed to

false statements made in a medical record, do not directly relate to health care, as

required by the Texas Medical Liability Act’s definition of “health care liability

claim.” See TEX. CIV. PRAC. & REM. CODE § 74.001(13) (requiring that “professional

or administrative services” be “directly related to health care” to constitute “health

care liability claim”); see also Tex. W. Oaks Hosp. v. Williams, 371 S.W.3d 171,

184–86 (Tex. 2012) (explaining that legislature added “directly related to health

care” to Act at same time that it added “professional or administrative services” such

that former modifies latter).

Once again, Weems forecloses Solomon’s position. In Weems, the Court held

that maintenance of medical records is directly related to health care, reasoning in

part that this is so because “medical records must be created during the patient’s

care” and affect the patient’s future care. Weems, 575 S.W.3d at 365. This same

reasoning equally applies to the insurance form at issue. While the form itself was

completed a little more than a month after Solomon’s lone appointment with Buckle,

the information recorded in the form is ostensibly based on the patient assessment

made by Buckle at the appointment and reports a treatment plan to the insurer. That

is, all the information contained in the form purports to be based on the medical

services rendered to Solomon as part of her care and refers to future care. Hence, the

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allegedly false statements made in the insurance form are every bit as directly related

to health care as the allegedly false statements at issue in Weems. See id. (specifying

that “directly related” means “an uninterrupted, close relationship or link between

the things being considered”); see also TEX. CIV. PRAC. & REM. CODE

§ 74.001(a)(10) (defining “health care” as “any act or treatment performed or

furnished, or that should have been performed or furnished, by any health care

provider for, to, or on behalf of a patient during the patient’s medical care, treatment,

or confinement”). Whether Solomon ever saw Buckle again or continued to be

Buckle’s patient when the insurance form was prepared and sent to Solomon’s

insurer is immaterial to whether the form is directly related to Solomon’s health care.

See Christus Health Gulf Coast v. Carswell, 505 S.W.3d 528, 535–36 (Tex. 2016)

(holding claim that hospital engaged in fraudulent conduct to conceal medical

malpractice committed with respect to deceased patient was directly related to health

care even though fraudulent conduct occurred after patient’s treatment or care).

Finally, in closing, we note that our conclusion that Solomon’s claim is a

“health care liability claim” subject to the Texas Medical Liability Act is reinforced

by the likelihood that the claim would require her, the defense, or both to put on

expert testimony at trial. See Weems, 575 S.W.3d at 365–66 (“The necessity of

expert testimony to prove or refute the merits of a claim against a physician or health

care provider is sufficient to establish that the claim is a health care liability claim.”).

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Solomon states in her reply brief in this court that she was seen by “Buckle during

an appointment that lasted approximately 10 minutes.” Solomon argues that this was

her only appointment with Buckle, and that Buckle told her “an MRI was needed

before a determination could be made” about her knee injury, so “a physical exam

was not completed” at the brief appointment. Solomon claims the clinical

impressions or diagnoses made in the insurance form are false because the physical

exam required to make them did not take place, and Buckle obviously knew as much.

Implicit in this claim is a contention that, under accepted standards of medical care,

a physician could not render the clinical impressions or diagnoses that Buckle

purported to make in the form based on the limited treatment or care Solomon

received from Buckle. Whether Buckle’s clinical impressions or diagnoses could be

made under these circumstances most likely presents a question for a physician. See,

e.g., Methodist Hosp. v. German, 369 S.W.3d 333, 339 (Tex. App.—Houston [1st

Dist.] 2011, pet. denied) (noting that standard of care and breach of standard of care

is usually proved through expert testimony with respect to health care providers).

The trial court did not err in dismissing Solomon’s suit for failure to timely

serve an expert report. We overrule the sole appellate issue presented by Solomon.

ATTORNEY’S FEES

Buckle, Ches, and HCA Health Services contend that the trial court erred in

not awarding them their attorney’s fees under the Texas Medical Liability Act.

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Standard of Review

Whether a party is entitled to recover attorney’s fees under a given statute, as

opposed to what amount of fees is recoverable, is generally a question of law we

review de novo. See Willacy Cty. Appraisal Dist. v. Sebastian Cotton & Grain, 555

S.W.3d 29, 37–38 (Tex. 2018) (characterizing entitlement to fees under particular

statute as question of statutory construction that is reviewed de novo on appeal).

Applicable Law

When a physician or health care provider successfully moves for dismissal

under the Texas Medical Liability Act, the trial court “shall” enter an order that

“awards to the affected physician or heath care provider reasonable attorney’s fees

and costs of court incurred” by them. TEX. CIV. PRAC. & REM. CODE § 74.351(b)(1).

Thus, an award of fees and costs is mandatory when an expert report is required by

the Act and not timely served. Garcia v. Gomez, 319 S.W.3d 638, 640 (Tex. 2010).

Of course, even when a statute, like this one, provides for an award of attorney’s

fees, the party invoking the statute must demonstrate its entitlement to the award it

seeks. See, e.g., Rohrmoos Venture v. UTSW DVA Healthcare, 578 S.W.3d 469,

488–89 (Tex. 2019) (explaining that party who seeks attorney’s fees under fee-

shifting statute must prove fees sought are reasonable and necessary as well as any

additional requisite to recovery of fees imposed by fee-shifting statute at issue);

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Osterberg v. Peca, 12 S.W.3d 31, 55–56 (Tex. 2000) (holding that party seeking fees

under statute waived right to appeal from judgment on issue of attorney’s fees).

Analysis

In conjunction with their motion to dismiss, Buckle, Ches, and HCA Health

Services submitted an affidavit made by counsel and billing records in support of

their claim for attorney’s fees. The trial court did not award them any attorney’s fees.

On appeal, Buckle, Ches, and HCA Health Services ask us to hold that they are

entitled to the amount of attorney’s fees they sought as a matter of law and modify

the trial court’s judgment to include an award of fees in the requested amount.

However, if a trial court refuses to award any attorney’s fees whatsoever when

a statute mandates an award, the proper remedy on appeal ordinarily is remand of

the cause to the trial court for a new trial on the amount of reasonable and necessary

attorney’s fees because reasonableness and necessity are questions of fact for a

factfinder, unless the evidence is conclusive on these questions. See Kroesche v.

Wassar Logistics Holdings, No. 01-20-00047-CV, 2023 WL 1112002, at *29 (Tex.

App.—Houston [1st Dist.] Jan. 31, 2023, pet. denied) (mem. op.) (holding so in

context of statute requiring fee award when party recovers damages in contract).

While Buckle, Ches, and HCA Health Services implicitly contend their

evidence of attorney’s fees is conclusive, they have not briefed this issue. They have

neither provided substantive argument nor supporting authority for the proposition

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that the evidence of their fees is conclusive, such that we could modify the trial

court’s judgment in their favor and affirm as modified, as they request we do on

appeal. Accordingly, Buckle, Ches, and HCA Health Services have waived their

contention that they conclusively proved their entitlement to attorney’s fees in the

amount requested. See TEX. R. APP. P. 38.1(i) (requiring brief to “contain a clear and

concise argument for the contentions made, with appropriate citations to authorities

and to the record”); Guimaraes v. Brann, 562 S.W.3d 521, 538 (Tex. App.—

Houston [1st Dist.] 2018, pet. denied) (“Failure to cite appropriate legal authority or

to provide substantive analysis of the legal issues presented results in waiver of a

complaint on appeal.”); Jackson Walker, LLP v. Kinsel, 518 S.W.3d 1, 18–19 (Tex.

App.—Amarillo 2015) (stating appellate court had no obligation to parse forty pages

of record cited by party in search of evidence supporting appellate complaint or flesh

out party’s skeletal argument and holding that party therefore waived appellate

complaint due to inadequate briefing), judg’t aff’d, 526 S.W.3d 411 (Tex. 2017).

In situations like this one, in which the record contains some evidence

supporting an award of attorney’s fees but the amount recoverable has not been

conclusively proved, we usually would remand to the trial court for it to decide the

appropriate amount of attorney’s fees to award in the first instance. See Kroesche,

2023 WL 1112002, at *29. But there is a wrinkle: in their brief as cross-appellants,

Buckle, Ches, and HCA Health Services have requested that we modify the trial

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court’s judgment to include their requested attorney’s fees, but they have not

requested in the alternative that we reverse the trial court’s judgment and remand.

And because they have not requested remand, we therefore affirm. See Stevens v.

Nat’l Educ. Ctrs., 11 S.W.3d 185, 186 (Tex. 2000) (per curiam) (denying petition

for review because appropriate remedy for ostensible error was a new trial but

petitioner sought reversal and rendition alone rather than reversal and remand); Jay

Petrol. v. EOG Res., 332 S.W.3d 534, 538 (Tex. App.—Houston [1st Dist.] 2009,

pet. denied) (explaining that appellate court cannot grant relief not requested, so that

if appellant seeks reversal and rendition we cannot reverse and remand instead).

In sum, the trial court erred in not awarding attorney’s fees. But we cannot

correct this error because Buckle, Ches, and HCA Health Services have neither

shown that they conclusively proved the amount of their fees nor asked us to reverse

and remand this cause to allow them to prove the amount of their attorney’s fees.

SANCTIONS

In their responsive brief as appellees, Buckle, Ches, and HCA Health Services

included a motion for sanctions, in which they requested that we impose unspecified

sanctions on Solomon or her counsel for various misstatements of fact in her brief.

The lone legal authority that Buckle, Ches, and HCA Health Services cited in

support of their motion is Rule 52.11 of the Texas Rules of Appellate Procedure.

This rule does not apply, as it concerns original proceedings in the Supreme Court

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of Texas and the intermediate appellate courts. Blair v. Blair, 642 S.W.3d 150, 162

(Tex. App.—El Paso 2021, no pet.). This is an appeal, not an original proceeding.

Apart from their citation of an inapplicable rule, Buckle, Ches, and HCA

Health Services have not identified, even in a general way, the legal framework—

standard of review and applicable law—that applies to their motion. See TEX. R.

APP. P. 10.1(a)(2) (requiring motion to “state with particularity the grounds on which

it is based”); see also Guimaraes, 562 S.W.3d at 538 (citing authority for proposition

that appellate court does not have duty to research law and fashion legal argument

for parties). Therefore, we will not impose sanctions on Solomon or her counsel.

CONCLUSION

We affirm the trial court’s judgment.

We deny Buckle, Ches, and HCA Health Services’s motion for sanctions.

Gordon Goodman

Justice

Panel consists of Justices Goodman, Countiss, and Farris.

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