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Click here for the full text of this decision FACTS:In the underlying suit, the mother of two minor children sued a construction firm. The court’s original opinion reversed and rendered for the construction company, and affirmed the trial court’s take nothing judgment against another company. The court writes separately now, on motion for rehearing en banc, in the mother’s favor to address the children’s attorney ad litem’s query over the status of the fees he had been awarded under the original ruling for the mother against Price. As the prevailing party on appeal, Price is not required to pay the trial court costs, which include the $55,298 in attorney ad litem fees. The court’s supplemental opinion in the matter is being used to address: 1. whether the judgment awarding the attorney ad litem fee is void as alleged by Price on appeal; and 2. if not, whether “good cause” exists under Texas Rule of Civil Procedure 141 to assess any portion of the ad litem fee against Price, the prevailing party on appeal. HOLDING:Motion for rehearing en banc granted. Though the trial court’s judgment awarding attorney ad litem fees was styled as a judgment nunc pro tunc, the court nonetheless finds that it was a valid modified judgment. It is also clear, the court determines, that the trial court’s second judgment in this matter was intended to vacate the first judgment. Therefore, the second judgment awarding the attorney ad litem fee vacated the prior judgment and is a valid modified judgment. The court then finds no evidence to support the ad litem’s contention that good cause exists to award fees anyway, that is, the trial court did not consider any when making its award. So, the court remands to the trial court for an evidentiary hearing to determine: 1. whether the minor or adult plaintiffs have the ability to pay the ad litem fee; and 2. if not, whether good cause exists under Rule 141 to tax all or part of the ad litem fee against Price as the prevailing party. OPINION:Speedlin, J., delivered the opinion of the court. CONCURRENCE:Stone, J. “I concur in the Supplemental Opinion which remands the cause to the trial court for consideration of the award of ad litem fees because I believe the ad litem should serve with reasonable assurance of payment for services rendered. This concurrence, however, does not change my previously expressed dissent from the denial of the [mother's] motion for reconsideration en banc.”

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