In Re Mitchell, 342 S.W.3d 186

Background

Kathryn Jo Norris, an incapacitated person with Down syndrome, has Kathryn's sisters disputing guardianship appointments.
The probate court appointed a guardian ad litem and an attorney ad litem for Kathryn in a contested guardianship matter.
An agreement among the guardian ad litem, attorney ad litem, and Patricia and Maryanne led the court to order that each party pay her own fees and that fees not be paid from Kathryn's estate.
The court subsequently ordered deposit of $17,500 by each sister into the court registry to cover the guardian ad litem and attorney ad litem fees; later orders repeated and expanded this requirement.
The December 2, 2010 order noted the matter could be appealable by mandamus; a later nunc pro tunc order removed that designation.
Relators filed a mandamus petition; the court granted temporary relief preventing enforcement of the deposits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion in requiring deposits for guardian and attorney ad litem fees	Mitchell and Norris contend the fees must be paid by Kathryn's estate or county, not by contesting sisters.	The court relied on party agreement and § 622 security for costs authority to require deposits.	Yes, the court abused its discretion; deposits improper under statutes; mandamus granted.
Whether § 622 security for costs applies to this guardianship proceeding	Relators argue § 622 does not authorize requiring sisters to post security for costs they cannot ultimately bear.	Court relied on § 622 to justify security for costs in guardianship contests.	No, § 622 does not authorize against the sisters when they bear no ultimate responsibility.
Whether § 665A and § 669 determine who pays guardian ad litem and attorney ad litem fees	The wards' estate or county should pay these fees, not the contesting relatives.	The court should allocate fees among parties; statutes may permit security deposits.	The estate or county must pay; contesting sisters cannot be required to pay these fees.
Whether the mandamus is an adequate remedy and the order is final enough for review	Relators lack adequate appellate remedy for interim deposits and would suffer financial prejudice.	Finality and adequacy of review may be achieved via appeal from a final order in a guardianship proceeding.	Mandamus is appropriate; the relief is adequate because the deposit orders are non-final and improper.

Key Cases Cited

In re Prudential Ins. Co. of America, 148 S.W.3d 124 (Tex. 2004) (trial court cannot misconstrue the law when applying it to facts)
Overman v. Baker, 26 S.W.3d 506 (Tex. App.-Tyler 2000) (attorney ad litem fees generally borne by estate or county)
In re Guardianship of Marburger, 329 S.W.3d 923 (Tex. App.-Corpus Christi 2010) (estate/county pay rule for guardian ad litem fees)
In re Guardianship of Humphrey, No. 12-06-00222-CV, 2008 WL 2445503 (Tex. App.-Tyler 2008) (addressed guardianship costs and related rulings)
In re Guardianship of Soberanes, 100 S.W.3d 405 (Tex. App.-San Antonio 2002) (cost allocation in guardianship matters)
Navar v. Fitzgerald, 14 S.W.3d 378 (Tex. App.-El Paso 2000) (bond/fees in probate contexts)
TransAmerican Nat. Gas Corp. v. Mancias, 877 S.W.2d 840 (Tex. App.-Corpus Christi 1994) (mandamus relief for erroneous security posting)
Johnson v. Smith, 857 S.W.2d 612 (Tex. App.-Houston [1st Dist.] 1993) (mandamus relief for improper cost/security orders)
De Ayala v. Mackie, 193 S.W.3d 575 (Tex. App.-El Paso 2006) (finality standards for guardianship orders)