*1 fоr the pur- of commencement of suit Tay- of abatement. See Russell v.
poses
lor, 121 Tex.
(1932)(suit not be where will commenced process does not intend that plaintiff J., Rickhoff, by separate concurred served). Further, immediately issued and opinion. Trinity previ- had record reflects Green, J., by separate opin- dissented ously declaratory judgment filed a similar ion. County action Williamson which was want prosecution
dismissed for 1995.
Trinity proof had the burden of in its motion to allegations
establish Corp., Flowers v.
abate. Steelcraft cоnclude Trinity has failed to establish that in denying
trial court abused its discretion plea
its in abatement. INC.,
BORDEN, Appellant,
Sergio MARTINEZ, Morales, Alvino Gonzalez, Jr.,1
and Arnulfo
Appellees.
No. 04-99-00204-CV. Texas, Appeals
Court
San Antonio.
March below, Rudy Riojas, party appeal. 1. Plaintiff in the case not a to this *2 Mainz, Martinez, $75,000 Morales, Jr., Thornton, Edward C. Sum- mers, Biechlin, Brown, L.C., Dunham trial court awarded all to Gonzales. The Antonio, appellant. ad litem additional fees San three Borden does any subsequent appeals. Vela, Jaime, Jr., Eduardo Oscar A. Alvi- fees, but chal- appellate not contest the Morales, Gonzalez, Jr., *3 no Ben Arnulfo ren- lenges the fees awarded for sеrvices Laredo, Gonzalez, of Law Offices Arnulfo up dered to the settlement. Edwards, Terry, Perry Michael G. L.L.P., Haas, Christi, Corpus Sergio Keko
Martinez, Lardo, for appellee. of Review Standard guardian review the award of Justice, RICKHOFF,
Sitting: TOM under an abuse of discretion ad litem fees STONE, Justice, CATHERINE PAUL W. Martinez, standard. v. GREEN, Garcia Justice. 219, 222 The of an ad amount STONE, Opinion by: CATHERINE litem award is the trial court’s sound
Justice. discretion, and will not be set aside absent evidence of the trial court’s clear abuse of аppeal This limited concerns the propri- Id. A trial court abuses its discretion. ety of the trial court’s award of discretion if there is no evidence or insuffi ad litem fees in an underlying personal to Dal injury support cient evidence the award. multiple grounds, case. On Bulen, challenges Trucking worth Co. v. 924 S.W.2d reasonableness award. In the absence of (Tex.App.-Texarkana evidence discretion, writ). show the trial court abused its reviewing may The court draw judgment we affirm the court. jus upon knowledge common of the lawyers
tices and experience their Background judges light to view the matter in of the Factual PROCEDURAL controversy. evidence and the amount in a milk displayed truck which necessarily Id. A trial court does not logo, crossed over the center line in awarding abuse its discretion fees to a highway on a wet and collided with a truck if court-appointed ad litem under driven Victor Manuel Casares Hernan- facts, appellate judge the same an would Hernandez, dez. along pas- with his two differently, decide the matter or if the trial sengers, Riojas Maria Hortencia Rivera a in judgment. court commits mere error and Maribel Salmas sustained Co., Valley Bottling Cocar-Cola Inc. v. Mo 27, 1996, injuries. fatal September On lina, 146, 148 claimants, (Tex.App.-Cor twenty-one including eleven mi- denied). nors, pus a Christi writ wrongful filed death and survival against action triple Borden for the fatali-
ty. 19, 1997, September On the trial court Discussion appointed three ad litem rep- of the Texas Rules of Rule 173 Civil resent the interests of the minors. The governs guardian ap- Procedure appointed Sergio Martinez as ad li- trial court pointments. permits Rule a minors, tem for the two Hernandez Alvino a appoint a litem when minors, for the Morales five Martinez represented by guardian a minor is next Riojas Arnulfo mi- Gonzalez for the five appears friend who to have an interest parties nors. The reached a settlement minor. P. 19, adverse to that of the the amount of million June $7.5 Tex.R.Civ. litem to a 173. Guardians ad are entitled Following evidentiary hearing 1998. an fees, fee for their services to the issue reasonable $200,000 P. part trial court three taxed as a of the costs. allocated to the Tex.R. Civ. guardians ad litem as follows: 173. minor, appoint guardian must a court eight use the same factors
Courts Rule of Civil Proce attor ad litem under Texas the reasonableness of to determine Birchfield, 718 S.W.2d dure 173. Hall v. appropriate ney’s to ascertain feеs 1986), rev’d Garcia, (Tex.App.-Texarkana ad litem fee. 361, 364 grounds, 747 S.W.2d on other eight factors are: The (Tex.1987). The of the exis determination (cid:127) required, the novel- the time and labor requires ex tence of a conflict of interest in- difficulty questions of the ty and judicial discretion. Gibson ercise of volved, per- required to and the skill (Tex.Civ. Blanton, properly; form the service writ). 1972, no App.-Houston [1st Dist.] (cid:127) acceptance likelihood ... that the parties are parents When the natural рre- particular employment -will suit, judicial may exercise dis *4 lawyer; employment clude other that a poten if the believes cretion (cid:127) in the lo- customarily charged the fee during a and could arise tial conflict exists services; cality legal for similar prosecution of negotiation of settlement or (cid:127) and the results the amount involved suit, costs can be and the ad litem obtained; Coleman v. against taxed the defendants. (cid:127) imposed by the time limitations (Tex.Civ. 860, Donaho, 864 559 S.W.2d circumstances; client or 1977, writ App.-Houston [14th Dist.] (cid:127) profes- length nature and dism’d). conflict of interest be When the client; relationship with the sional the next friend ceas the minor and tween (cid:127) ability experience, reputation, es, court should remove the trial lawyers performing lawyer
of the or Broumsville-Valley litem. guardian ad services; Gamez, v. 894 S.W.2d Reg. Med. Ctr. (Tex.1995); v. General (cid:127) Estate 755 contingent the fee is fixed or whether ofCatlin (Tex. 447, 452 Corp., Motors 936 S.W.2d uncertainty of results obtained or оn 1996, writ); no [14th Dist] App. services collection before — Houston Lopez, v. Valley Gas Co. Rio Grande have been rendered. (TexApp. Corpus S.W.2d — Id.; Rigging see v. York Crane Simon writ). 1995, no Christi (Tex.1987); Co., Mis Alderete, R.R. v. souri Pac. Co. any Here, conflict argues Borden no (Tex.App.-San Antonio and the sur- Hernandez between Norma writ). attained ceased when Norma viving spouse the Hernandez majority. Counsel Sergio Martinez provided representation full plaintiffs Martinez The trial court awarded such, cоn- Borden behalf. As Norma’s 114 hours in ad litem fees for representation continued tends Martinez’s of the two representation in the spent regard improper. With and fee award was (approximately claimants Hernandez Jr., Hernandez, similarly Borden to Victor $394.74/hr). com Raising primary two of interest existed that no conflict argues first, that the trial argues plaints, and sub- appointment justify Martinez’s Mar awarding fees for time court erred the suit Shortly after fee award. sequent Norma Hernandez’s spent tinez filed, that Vic- parties discovered was second, majority, attained after she Jr., son out of Hernandez’s tor was Victor appointing erred .in the trial court trial court asserts the wedlock. Borden litem for Victor Her guardian ad Martinez ap- making a needless erred nandez, Jr. rep- ably was Jr. pointment because Victor had attorney, his mother by an resented complaints Borden’s We review law either a common standing to sue as a no interest. Where in terms of cоnflict of no 'conflict of and thus legal spouse, adverse interests friend exhibits next evidentiary hearing Leigh Bishop, interest arose. See 678 tinez testified at the (Tex.App.-Houston lawyer practicing [14th that as a seventeen 1984, writ)(holding the trial court years, hourly ranged Dist.] basic from his rate its discretion in appointing abused hour. He further testified per $200-$350 requested where father spent depositions, hearings, that time placed that entire settlement award preclud- in the instant case and mеdiations benefit, registry ap- the court for son’s in his crimi- expending ed him from efforts attorney’s accrued pointment unnecessary practice. nal law fees, potential and minor lost interest on light evidence trial court of the monies); Martin, settlement Jones v. considered, we cannot hold that the trial 467, 472 (Tex.Civ.App.-Texarkana court’s award an abuse of constituted dis- 1972, no writ)(dispensing with Although cretion. a trial does not court appointment parent where natural in awarding hаve unbridled discretion at- exhibited no adverse to those of interests fees, torney’s maintained a Martinez com- child). billing statement for both bined Norma Despite complaint on appeal, Jr., precluding and Victor the trial court the record shows that no efforts were As segregating specific from fees. made Borden to remove Martinez as such, it is reasonable that the *5 guardian ad litem for either Her- Norma past spent considered time on Norma’s generally nandez Victor Jr. See Coleson in prior attaining majority to her (Tex. Bethan, v. 711-12 any making its fee determination. App.-Fort writ)(outlining Worth event, no abuse of discretion exists where procedures for removal of ad li- any Borden failed to alert the trial court to tem); Jones, 481 at (recogniz- S.W.2d 472 objection repre- to Martinez’s continued ing that in any the absence of motion for request sentation or to his removal. objections qualifications, mistrial or Alvino Morales appointment prop- was er). Borden never cross-examined Mar- The trial court awarded Morales tinez on these at evidentiary ($579.15/hr) issues the 129.5 for hours of ser such, hearing on the issue of fees. As the vice as ad litem fees for the five Martinez trial court considered the Mar- evidence minors. presented tinez based upon the Garcia arguments as to Morales’ Specifically, reasonableness factors. Mar- significantly award do not differ from tinez pointed agency respondeat rеgard those Borden raises with to Mar- superior concerning imposition issues the attorneys tinez. These two shared offices liability Borden, which hired the that and Borden contends their services as independent contractor that collided with guardians ad paralleled litem one another. the decedents’ truck. ar- Martinez further objects Borden to the number of hours gued disputes that over insurance issues spent preparation Morales for evi- the independent arosе between the contractor dentiary hearing to defend his ad litem carriers, and Borden’s disputes, these award. Borden relies on a number of coupled attorneys, with new made settle- which ad fees cases reduced litem where ment difficult. Martinez maintained that support the record failed to the award. even after the tender of settlement monies Gamez, Simon, 794; at See 894 Borden, by problems persisted distri- with 754-57; Co., Trucking at Dalworth S.W.2d
bution among the minors. He asserted at 731. S.W.2d disputes аmong that arose litems again by once an abuse of discre themselves as to an allocation Guided equitable tion, second-guess money. engage we decline to problems He discussed the which arose in of the hours creating ing trust which was court’s review acceptable parties spent reviewing to all involved. Mar- Morales documents and for the
preparing
evidentiary hearing.
spent
See hours were
for
preparation
Molina,
evidentiary
Further,
476 Anton, they can pick supra
friends one conclude Mends the settlement. See at 172-7 they trust. 3.2 Mr. Gonzalez testified that at one point, considering the addition of law new When it to how much deciding comes his yers, skills as a mediator neces were guardians paid ad litem should be for their sary. Appellant acknowledged positive services, only trial judges given have been that If contribution resulted. these efforts guidance more slightly they than have were whether determinative to a settle been given deciding appoint. whom to resulted, may ment his wards have re See, 173; Garcia, e.g., Tex.R. P. Crv. 988 at all nothing ceived but for these efforts. at 222. Lawyers possessing great S.W.2d again, And “guardian while litem is experience and rare cannot found be attorney not an for child but an officer Compensation cheaply. should be based appointed by the court to assist in proper guardians actually on the role ad litem interests,” ly protecting child’s Vande play process. in the Although that role water, 2, at a guardian 907 n. S.W.2d 493 has frequently simplistically been and de- may negli to minor held liable for advocating fined ascertaining performing gently the duties described minor, the best interest of the the exact abovе, Byrd v. 891 Woodruff, see S.W.2d subject role guardian’s nature of is 1994, 708 (Tex.App. writ — Dallas considerable See debate. Charles T. dism’d agr.). Jr., Comment, Cromley, Guardian “[A]s What, then, Ad Litem I’m in a Rather Posi- is the ad litem to Difficult tion.”, Ohio N.U. do? Commentators have noted that L.Rev. 567-68 attorney and a (1998). distinction between an frequently misunder- Texas, judges See, Anton, e.g., supra stood or ignored. have that been instructed 167-68, at 189-90. This is because the must “participate in the to the extent meaning no real par- distinction has minor,” necessary protect American minds, often,- guardians’ in the ties’ or Vandewater, Gen. Fire Cas. Co. v. displaces minds. A guardian ad litem (Tex.1995) (emphasis S.W.2d 493 n. (typically minor’s friend the minor’s next added), and “the that parents), becoming the minor’s personal should be allowed considerable latitude in representative. Byrd, determining what ... activities are neces such, 705. As most guardians attempt effort,” sary Roark Mother possible secure the best results for their (Tex. Hosp., Frances just parents as the minors or their wards — dеnied). they But App. Tyler writ — if not they disquali- would were themselves are told “[a] also fied and conflict of interest. This age beyond goes who his role assumes the exceedingly can be an difficult task when attorney plaintiffs duties of is not entitled money there is more table than assisting work compensation for done litigants contemplated. many ever Roark, 862 acting plaintiffs counsel.” *8 guardians ad Although S.W.2d at 647. not entitled to There is evidence that attempted litem in to secure the compensation performing the work of this possible their attorney, an is best results wards. guardian nevertheless They time and la- perform typically per expended exhorted to duties considerable bor, by attorneys e.g., conducting foregoing employment. other There formed a — in- investigation into facts of is also evidence issues thorough case, counsel, complex unsettled. The contacting determining volved were and case, they guardians steps law testified pertinent rеviewing to the and about Anton, supra at 192-93. 2. a checklist duties. See This article includes useful to guide performing their instances, took to ensure that there was a favorable some for services unrelated was settlement for them beyond wards and ensure proper performance or paid way that the settlement was out in a legal obligations. ad litem’s Although most beneficial to the wards. A guardian duty ad litem’s sole is to act there is evidence that the guardians under- personal representative as the of minor stood the distinction an serving between as protect and the minor’s in a law interests litem, attorney they and as a ad party. suit which the minor is a did not they hesitate to take the actions American Gen. Fire & Cas. Co. v. Vande necessary believed were for the best inter- (Tex.1995). water, 491, n. 2 907 S.W.2d est of their wards. their While some of I duty believe the value of that is reason might fitting actions be characterized as ably compensated per at the rate оf $150 category attorney func- mediator hour. Pac. R.R. Al See Missouri Co. v. tions, functions, opposed derete, 151-52 (Tex.App. judge position “[t]he is a better 1996, writ)(Green, J., San Antonio con appellate than an to determine Thus, curring dissenting). and I would role where the of an ad litem ends and that hold that the trial court abused its discre plaintiffs Roark, begins.” counsel tion when it awarded ad litem fees S.W.2d at 647. hourly amounts that calculate to rates of It only logical for each trial $358, I would also еxclude $395 $579. select trust in personal injury ease from spent consideration time highly competent lawyers. Once not properly legal responsi was within the lawyers these are in mix it is unreason- bilities of the ad litem. See Roark expect able not to them to utilize their Hosp., Mother Frances hard-earned skills even if it requires them denied) 647 (Tex.App.-Tyler writ beyond to cross classic role of (guardian proper ad litem who exceeds litem, do, they when in my judg- responsibilities not cоmpensa entitled to they ment should compensated. work). tion for extra I concur in the majority opinion. GREEN, Justice, PAUL W. dissenting.
Although a trial court a great has deal of
discretion in awarding fees a guardian litem, that does not mean unbounded
discretion. There is a reasonableness lim-
it. Because the majority apparently
places no bounds on a trial court’s discre- Sergio In the E. ESTATE OF Martinez fees, tion to award I AYALA, Deceased. respectfully must dissent. No. 13-98-506-CV. A guardian ad litem is entitled to a reasonable fee for his Texas, services. See Tex.R. Appeals Court of 173.; Civ. P. Garcia v. Corpus Christi. The fee March 2000. amount should be by following determined the same factors used in determining Rehearing July Overruled attorney’s
reasonableness of an fee award.
See id. applying When the standard fac- case, clear, me,
tors this it is at least to
that the ad litem fees awarded
are unreasonable and excessive. More-
over, lawyers, the time recorded