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Click here for the full text of this decision FACTS:Following the divorce of Susan Diamond and Richard San Soucie, the court appointed Patricia Keane, a licensed attorney, to serve as guardian ad litem for the San Soucie children. Keane was initially appointed in 2001 and was reappointed in 2003. From 2000-2004, Diamond also pursued a separate civil suit against San Soucie in the 101st District Court (the 101 suit). The conservatorship case was initially tried in 2002 but was vacated and remanded on appeal based on Diamond’s pretrial objection to the visiting judge who presided at trial. The case was tried again in 2006, and a jury verdict named San Soucie sole managing conservator of the children. The parties agreed to submit the attorney’s fees issue to the court. After a hearing, the court made detailed findings of fact and conclusions of law and awarded attorney’s fees to San Soucie and Keane pursuant to Texas Family Code �106.002. HOLDING:Affirmed. The evidence sufficiently addresses the factors the Texas Supreme Court set out in 1997′s Arthur Anderson & Co. v. Perry Equipment Corp. and supports the trial court’s conclusion that the fees were reasonable and necessary. San Soucie provided redacted billing records to Diamond in discovery. The records reflected the time expended and the hourly rate at which the time was billed, but the description of the services performed was completely redacted. For more than five years, Diamond did not object or otherwise seek the trial court’s assistance in obtaining more detailed records. Prior to trial, San Soucie supplemented the discovery with billing records for the two months immediately preceding trial. The supplemental records were redacted in the same fashion as those previously produced. On the day of the hearing, Diamond objected that the billing records contained insufficient detail. The court noted that the objection was not timely and overruled it subject to cross-examination. On cross-examination, however, Diamond focused only on whether fees incurred on appeal and in the 101 case had been segregated from the fees in the conservatorship case. Not a single question was asked about the nature or necessity of specific services rendered in the conservatorship case. The court admitted into evidence five years’ worth of billing statements substantiating the amount of fees claimed. If attorney’s fees relate solely to a claim for which such fees are nonrecoverable, a claimant must segregate recoverable from unrecoverable fees. San Soucie’s counsel testified he wrote off the fees charged for work in the 101 case. The billing records reflect these write-offs and discounts. Counsel also testified that the appeal of the judgment entered by the visiting judge was handled by another attorney. Although he provided some peripheral services in connection with the appeal, the fees for such services were not capable of being segregated. Diamond not only failed to cross-examine on this point but offered no evidence to refute that the services rendered in connection with the appeal were not recoverable. Moreover, the trial court discounted the fees from $299,968.76 to $269,073.45, and found that the approximate $40,000-$50,000 discount San Soucie’s counsel applied to the bill exceeded the total amount that would have been charged in the 101 case. The court further found that the $269,073.45 was segregated from the total bill for all legal services provided to San Soucie. The record does not reflect the exact nature of the 101 case. Even if fees were required to be segregated, fees were written off and further adjusted by the trial court. Diamond failed to establish that these adjustments were insufficient. Diamond also contends the fees incurred in the first trial of this matter are not recoverable. Diamond argues that counsel should not be compensated for the fees incurred during the two years a visiting judge presided, because the judge was ultimately found to lack jurisdiction. But the appellate disposition of the first judgment has no bearing on whether the attorney’s fees incurred at trial were reasonable. The award was not premised on a statutory or common law basis overturned on appeal. The first and second trial of the conservatorship occurred in the same case. When the visiting judge refused to recuse herself, San Soucie’s counsel had no reasonable alternative but to proceed with the representation of his client in the litigation. The evidence in the record supports the trial court’s finding that the total amount of all fees were reasonable and necessary. Diamond challenges these findings and asserts the trial court erred when it awarded fees the ad litem incurred attending trial. Because the ad litem is required to participate to the extent necessary to protect the ward, she “should be allowed considerable latitude in determining what depositions, hearings, conferences or other activities are necessary to that effort,” wrote the court, quoting the Texarkana Court of Appeals’ 1993 decision in Roark v. Mother Frances Hospital. The trial court did not err by including the time Keane spent at trial in the total amount of fees awarded. OPINION:Richter, J.; O’Neill, Richter and Francis, J.J.

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