in the Guardianship of George v. Garcia, an Incapacitated Person
04-15-00824-CV
| Tex. App. | Apr 26, 2017Background
- Cynthia Garcia filed for appointment of guardian of the person and estate for her father Dr. George V. Garcia (diagnosed with advanced Alzheimer’s) and sought appointment of an attorney ad litem.
- The trial court appointed Julio A. Garcia Jr. as attorney ad litem and Mary G. Capello as guardian ad litem/guardian of the person; both submitted multiple fee applications that the court approved in full.
- Garcia (attorney ad litem) sought and received multiple interim attorney-fee awards totaling tens of thousands of dollars.
- Capello submitted four verified fee applications claiming attorney-hourly rates for work performed both as attorney and as guardian; the trial court awarded the full amounts requested.
- Appellant Fred Norris objected, moved to discharge/replace the ad litems/guardian, and appealed the orders approving fees; reporter’s records for two hearings were not included in the appellate record.
- The Fourth Court of Appeals affirmed most rulings but reversed and remanded the orders awarding Capello $42,459.50 in guardian/guardian-ad-litem fees, concluding statutory limits and separation-of-services rules were violated as a matter of law.
Issues
| Issue | Norris's Argument | Appellees' Argument | Held |
|---|---|---|---|
| 1) Were Capello’s fee awards proper where she billed attorney rates for guardian duties? | Capello billed attorney rates for non-legal guardian work; fees are illegal/excessive and must be reduced/disgorged. | Trial court found fees reasonable, necessary, and consistent with local rates; approved in full. | Reversed in part: attorney may not charge legal-rate fees for guardian-of-person duties; fees must be recalculated consistent with Tex. Estates Code §§1155.002, 1155.052. |
| 2) Did failure to file reporter’s records for hearings waive appellate complaints about appointments and many fee awards? | Lack of reporter’s records prevents reviewing the evidence; normally appellate complaints dependent on hearings are waived. | Appellees argued the record is incomplete and should be presumed to support the trial court. | Affirmed in part: waiver applies to challenges dependent on omitted reporter’s records (e.g., appointments, Garcia’s fee awards); but not dispositive for Capello where clerk’s-filed verified fee applications establish legal error. |
| 3) Did the trial court abuse discretion in refusing to discharge/replace appointed ad litems/guardian? | Norris argued appointments were improper and requested replacement. | Trial court found appointments necessary and supported by record. | Overruled on appeal (no reversible error) because absence of reporter’s records prevents review; presumption of sufficient evidence supports trial court. |
| 4) Were Garcia’s attorney-ad-litem fees improper or excessive? | Norris contended Garcia’s fees were illegal/excessive/duplicative and exceeded scope. | Trial court approved Garcia’s fee applications in full as reasonable and necessary. | Issues regarding Garcia’s fees were not sustained on appeal due to lack of reporter’s records; appellate review denied. |
Key Cases Cited
- Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793 (Tex. 1987) (appellant bears burden to bring record showing trial error; absent reporter’s record, presumption of sufficient evidence)
- Murray v. Devco, Ltd., 731 S.W.2d 555 (Tex. 1987) (same presumption when reporter’s record is missing)
- Marion v. Davis, 106 S.W.3d 860 (Tex. App.—Dallas 2003, pet. denied) (points of error dependent on evidence cannot be reviewed without full reporter’s record)
- Favaloro v. Comm’n for Lawyer Discipline, 13 S.W.3d 831 (Tex. App.—Dallas 2000, no pet.) (failure to bring reporter’s record waives review of attorney-fee award issues dependent on evidence)
- Goodyear Dunlop Tires N. Am., Ltd. v. Gamez, 151 S.W.3d 574 (Tex. App.—San Antonio 2004, no pet.) (work by guardian ad litem beyond ad litem role is noncompensable)
- Jocson v. Crabb, 133 S.W.3d 268 (Tex. 2004) (trial court must follow statutory limits when setting public-fiduciary compensation)
- City of Houston v. Woods, 138 S.W.3d 574 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (remand for recalculation of fees consistent with statutory requirements)