X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:After a confidential settlement, the trial court awarded Joe Crabb $117,150 in guardian ad litem fees and an additional $55,000 for appellate fees. In three issues, Maria Jocson M.D. and Woman’s Hospital of Texas Inc. argue that the trial court abused its discretion in awarding Crabb $120,077.75 in guardian ad litem fees in the underlying medical malpractice suit. In this court’s original opinion, the court held that the appellants waived their complaints by failing to provide an adequate record for review and by failing to pursue their objections during the course of pre-trial discovery, and the court affirmed the award. The Texas Supreme Court granted the appellants’ petition for review, reversed this court’s judgment, and ordered this court to review the appeal on the merits. HOLDING:The court holds that the trial court abused its discretion in awarding the ad litem fees to Crabb, reverses the judgment of the trial court regarding the award of ad litem fees, and renders judgment that Crabb be reimbursed $2,927.75 for Crain, Caton & James’ legal fees. Texas Rule of Civil Procedure Rule 173 authorizes the trial court to award an ad litem a reasonable fee for his services, and the determination of the amount of compensation awarded to an ad litem lies within the sound discretion of the trial court. The court does not determine whether the old rule or new rule applies to this appeal because both versions require the presence of a conflict to justify a guardian’s fee. A trial court abuses its discretion if it appoints a guardian ad litem in the absence of a conflict or if the trial court does not discharge the guardian ad litem when the conflict has ended. During the ad litem hearing, Crabb repeatedly testified that it was the continued “presence of money” involved that created a conflict of interest and justified the fees that he charged as the guardian ad litem in this case. Crabb testified that, “anytime you have money involved there is a conflict of interest. No matter how noble someone may be, money taints everything.” Crabb argues that the entire guardian ad litem fee submitted was reasonable under Rule 173 and the trial court did not err in awarding this fee. Generalized testimony regarding the “continued presence of money” in a suit is not legally sufficient evidence to support a trial court’s finding that there was a conflict of interest requiring a guardian ad litem’s services. In this case, there was no evidence offered at the hearing regarding the division of settlement proceeds, the date when the final settlement was reached, how much time Crabb spent performing the duties of a guardian ad litem after this date or any other evidence necessary for the trial court to conclude that the entire fee amount or any portion thereof requested by Crabb was incurred because of a conflict of interest in the division of the settlement proceeds. Despite the testimony presented at the hearing, the trial court awarded Crabb the entire amount of the ad litem fees that he submitted. The fees awarded were not identified by either Crabb or Williamson as having been incurred as a result of a conflict regarding the division of the settlement proceeds in this action. The award included, but was not limited to, $19,000 for reviewing 378 letters, $5,250 for reviewing 105 deposition notices and $35,900 for attending more than 50 depositions. The trial court also awarded fees to Crabb for reading the transcripts from at least 10 additional depositions and for his attendance at more than 10 hearings in this case. The court finds that the testimony and evidence presented at the hearing was legally insufficient to support the award, and the trial court abused its discretion in awarding these fees. Rule 173.6 provides that guardians ad litem may be “reimbursed for reasonable and necessary expenses incurred.” Although he did not obtain leave of court to incur the legal fees paid to Crain, Caton & James, Crabb provided legally sufficient evidence to establish that these fees were necessary to effectuate the settlement of the minor child. Crabb testified that he sought the expertise of Crain, Caton & James to assist him in creating a trust for the minor child. The court holds that the trial court did not abuse its discretion in awarding the fees incurred by Crabb for services rendered by Crain, Caton & James. OPINION:Hanks, J.; Taft, Keyes and Hanks, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.