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:Ronald Hirn, his wife Dawn and their two young sons Ryan and Tyler were injured in a rollover accident in the family’s 1995 Land Rover Discovery. Ronald, Dawn and Tyler survived, but Ryan did not. The Hirns sued the vehicle manufacturer, Land Rover U.K Ltd. and Land Rover North America Inc.; the parent company of the manufacturer, Ford Motor Company; and the dealership, Gunn Infinity Inc. d/b/a Gunn Range Rover (collectively Land Rover). The Hirns also sued the tire manufacturer, Continental General Tire Inc., and the tire retailer, The Tire Corral Inc. (collectively Continental). Ronald and Dawn brought individual claims as well as claims on behalf of Ryan’s estate and Tyler. As the plaintiffs negotiated a settlement with Continental, the parties recognized a probable conflict of interest between the parents and Tyler. The trial court granted an agreed motion to appoint a guardian ad litem and appointed Juan Hinojosa. As part of its settlement with the plaintiffs, Continental paid Hinojosa $45,000 for his work as guardian ad litem. A few months later, the trial court held a hearing to finalize the Hirns’ settlement with Land Rover. Hinojosa requested $100,000 for his work as guardian ad litem. Land Rover argued that $100,000 was excessive and offered Hinojosa $25,000. The court entered a judgment requiring Land Rover to pay Hinojosa $100,000 in fees. The trial court denied Land Rover’s motion to modify, reform or correct the judgment. Land Rover appealed, arguing that the trial court abused its discretion in awarding Hinojosa excessive guardian ad litem fees. The court of appeals affirmed, and Land Rover petitioned the Texas Supreme Court for review. Hinojosa relied on his testimony at the hearing finalizing the Hirns’ settlement with Land Rover to support the reasonableness of his fee. He testified that his experience and reputation as an attorney and a state legislator command a substantial fee. He explained that this case was one of the most complex product liability cases that he had ever seen and that evaluating whether the unique settlement terms were in his client’s best interest required specialized knowledge and experience. Hinojosa opined that, although the settlement amount by Land Rover was somewhat low, his services benefited his client, because Land Rover agreed to provide Ronald Hirn with assurances that Land Rover would investigate the design to the fuel system. Hinojosa also claimed that he turned down other cases while representing Tyler: a pharmaceutical case involving a $75,000 non-refundable retainer and a case in Starr County involving a likely $50,000 fee. Hinojosa said that he talked to someone from the plaintiffs’ lawyer’s office almost every day “to discuss strategy and prepare for trial.” Specifically, he helped engineer a trial strategy to address the fact that one defendant, Continental, had settled with the Hirns. Hinojosa did not keep detailed time records. He estimated that after the Continental settlement, he spent 10 hours per week for 15 weeks representing Tyler’s interests, or between 140 and 150 hours total. At a billing rate of $500 per hour, he testified that the total hourly fee was between $70,000 and $75,000. Hinojosa testified that $100,000 included compensation for other cases he had to refuse. HOLDING:Reversed and remanded. Under Texas Rule of Civil Procedure 173, when a minor is represented by a next friend or guardian who appears to the court to have an interest adverse to such minor, the trial court shall appoint a guardian ad litem for such person and shall allow him a reasonable fee for his services to be taxed as a part of the costs. A guardian ad litem, the Texas Supreme Court explained, is not an attorney for the child but an officer appointed by the court to assist in protecting the child’s interests when a conflict of interest arises between the child and the child’s guardian or next friend. As the personal representative of a minor, a guardian ad litem is required to participate in the case only to the extent necessary to protect the minor’s interest and should not duplicate the work performed by the plaintiff’s attorney, the court stated. An appointed guardian ad litem may request a reasonable fee for services performed. The amount of the guardian ad litem’s fee is left to the trial court’s discretion and will not be overturned absent evidence that the trial court abused its discretion. To determine a reasonable fee for a guardian ad litem’s services, a trial court weighs the following factors: 1. the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; 2. the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; 3. the fee customarily charged in the locality for similar legal services; 4. the amount involved and the results obtained; 5. the time limitations imposed by the client or by the circumstances; 6. the nature and length of the professional relationship with the client; 7. the experience, reputation, and ability of the lawyer or lawyers performing the services; and 8. whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. A reasonable hourly rate multiplied by the number of hours spent performing necessary services within the guardian ad litem’s role yields a reasonable fee, the court stated. Additional sums are rarely appropriate, the court stated, particularly since the guardian ad litem serves as an advisor to the court and will enjoy the protection of qualified judicial immunity. Before recent revisions to Texas Rule of Civil Procedure 173, a guardian ad litem could obtain additional payment if extended service as guardian ad litem substantially interfered with his usual practice. But the court found that exceptional circumstances justifying a higher payment were not present in this case. In addition, the court noted that some of the time Hinojosa testified he included in his 150-hour estimate was not compensable. Hinojosa, the court stated, testified that he provided extensive advice to the plaintiffs’ attorney that was beyond the formal role of a guardian ad litem, including almost daily consultations about trial strategy. Such services may indeed benefit a minor, the court declared, but they are within the duties of the lawyer representing the minor in the litigation and not additional fees to be assigned as costs payable to a guardian ad litem. Finally, the court noted Hinojosa’s failure to submit billing records, which the court said are helpful in considering a guardian ad litem’s fee. The court concluded that $100,000 is not a reasonable fee for the services Hinojosa provided as guardian ad litem. OPINION:Per curiam.

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

Benefits of a Digital Membership:

  • Free access to 1 article* 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 © 2021 ALM Media Properties, LLC. All Rights Reserved.