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Click here for the full text of this decision FACTS:An attorney ad litem was appointed on May 1, 2002, to represent a minor in a pending lawsuit against International Dairy Queen, Dairy Queen Corp. and four others. The ad litem attended a May 8 mediation, in which the other four defendants settled, and was awarded an agreed-to amount of $41,500 in fees. In September 2002, the ad litem reached a settlement with the two Dairy Queen defendants. The settlement provided for “ad litem fees as approved by the Judge,” and the judge awarded the ad litem $63,770. The two Dairy Queen defendants appeal the award as grossly excessive. They say that the 142.25 hours the attorney ad litem reported, multiplied by an hourly rate of $300 (based on an expert’s testimony that a reasonable hourly rate is between $225 per hour and $300 per hour) equals $43,575. Subtracting the fees paid by the other defendants, the Dairy Queen defendants say they are responsible for only $2,075. HOLDING:Reversed and remanded. The court first notes that Texas Rule of Civil Procedure 173 allows for the appointment of a guardian ad litem in a case like this, and allows the guardian to be paid as part of the case’s costs. The trial court did not, however, designate the attorney ad litem as the guardian in this case. Nor did the court refer to Rule 173 or otherwise appoint a guardian ad litem. The court concedes that it is not being asked to rule on the propriety of a trial court’s appointment of only an attorney ad litem. Turning to the fees awarded to the attorney ad litem, the court notes that the attorney ad litem did not segregate his time between the work he spent on securing the settlement against the first four defendants, and the work he did with the Dairy Queen defendants. The court notes that the ad litem has been awarded a total of $105,270 in fees for both settlements. That calculates to $724.75 per hour for the 145.25 total hours the attorney ad litem reported. The court rejects the defendants’ proposed formula, saying it cannot credit an agreed-to amount paid by other defendants to these defendants, as it seems inconsistent with the parties’ Rule 11 agreement that the defendants would pay the ad litem fees for the claims against them. But the court agrees that a $724.25 hourly rate is unsupported by the evidence. It’s not just that the hourly rate may be excessive, it’s that the rate makes an assumption for which there is no evidence. Without the segregation of hours worked for each settlement, a sound hourly rate cannot be determined. The trial court must ascertain this information on remand “to make an award which does not provide a double recovery for the attorney ad litem, and yet provides the attorney ad litem with the fee appellants agreed to pay him.” OPINION:Gaultney, J.; McKeithen, C.J., Burgess and Gaultney, JJ. DISSENT:Burgess, J. “I would affirm the trial court based simply on the Rule 11 agreement. A deal is a deal!”

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