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Click here for the full text of this decision FACTS:The city of Houston appeals from the trial court’s award of guardian and attorney ad litem fees to David H. Melasky incurred in his representation of a minor plaintiff’s personal injury claims against the city. HOLDING:Affirmed in part. Reversed and remanded in part. The city complains the trial court abused its discretion in awarding guardian ad litem fees for work performed in the role as plaintiff’s attorney; the trial court abused its discretion in refusing to remove the guardian ad litem after the conflict between the next friend and the minor ended; the trial court abused its discretion in assessing the guardian ad litem fees as costs against the city because it was the successful party; and the trial court abused its discretion in appointing an attorney ad litem and assessing attorney fees as costs against the city. The city contends the guardian ad litem exceeded his authority and performed many functions that were the duties of the plaintiffs’ attorney, i.e., he filed numerous motions for continuance, separately designated expert witnesses for the minor without authority, supplemented the plaintiff’s petition and moved for a new trial. The city argues, therefore, that the trial court abused its discretion by awarding attorney fees for the work performed by the guardian ad litem in the role of a plaintiff’s attorney. The work performed by Melasky as guardian ad litem of which the city complains includes filing a number of motions for continuance, separately designating expert witnesses, moving for a new trial, and supplementing the plaintiff’s petition. With the exception of supplementing the petition, all other work of which the city complains was performed by Melasky prior to his appointment as attorney ad litem. In the absence of a record on the guardian ad litem fee hearings, the court does not know what evidence was presented supporting the guardian ad litem’s fee for work performed prior to the appointment of the attorney ad litem and, therefore, the court presumes the evidence is sufficient to support such award. The city also argues the trial court abused its discretion by refusing to remove the guardian ad litem after a conflict between Mary Woods and Darrell Woods (two of the plaintiffs) had ended and by awarding guardian ad litem fees after Mary settled her claim with the city. The city contends that once Mary’s claims had been settled, she no longer had a conflict of interest with Darrell. Once the conflict between the next friend and minor ends, the trial court should remove the guardian ad litem. The court finds that the conflict between Mary, as next friend, and Darrell had not ended. Therefore, the trial court did not abuse its discretion in not removing the guardian ad litem after Mary had mediated and settled her claims with the city. The city also asserts that because it was the “successful party” in this matter, it should not have been assessed the guardian ad litem fees in the absence of good cause. The city argues that although the trial court granted a new trial, it, nonetheless, is the “successful party” because it has never been found liable for Darrell’s injuries because his claims were non-suited. The city was the successful party. However, the trial court may for good cause stated on the record otherwise tax costs. Therefore, even if the city is considered a successful party, the trial court may award costs against it for good cause. In its order, the trial court based its good cause finding on the city’s financial ability to pay costs and fees. However, without the record of the evidentiary hearing, the court presumes the evidence supports a finding of good cause. A guardian ad litem is entitled to a reasonable fee for his services to be taxed as costs. Texas Rule of Civil Procedure 173. Upon a finding of good cause, such fee can be assessed against the other party, even if that party was the “successful party.” However, there is no provision to tax attorney fees as costs to the opposing party. Indeed, attorney fees may not be recovered unless provided for by statute or by contract between the parties. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75 (Tex. 1992). More specifically, no statute provides for the recovery of attorney fees in a negligence action. Gulf States Utils. Co. v. Low, 79 S.W.3d 561 (Tex. 2002). Instead, attorneys in personal injury cases are compensated out of the funds recovered by the plaintiff on a contingency basis. The court finds the trial court abused its discretion in awarding attorneys’ fees assessed as costs against the city. OPINION:Hudson, J.; Yates, Anderson and Hudson, JJ.

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