Jocson v. Crabb , 2006 Tex. App. LEXIS 4531 ( 2006 )

196 S.W.3d 302 (2006)

Maria JOCSON, M.D. and Woman's Hospital of Texas, Inc., Appellants,
v.
Joe CRABB, Appellee.

No. 01-01-01242-CV.

Court of Appeals of Texas, Houston (1st Dist.).

May 25, 2006.

Charles David Brown, Nancy J. Locke, Katherine D. MacKillop, Fulbright & Jaworski L.L.P., Richard A. Sheehy, Sheehy, Serpe & Ware, Martin L. Kern, Houston, for appellants.

David W. Holman, Godwin Pappas Langley Ronquillo, LLP, Houston, for appellee.

Panel consists of Justices TAFT, KEYES, and HANKS.

OPINION ON REHEARING

GEORGE C. HANKS, JR., Justice.

Joe Crabb, appellee, filed a motion for rehearing. We deny the motion. However, we withdraw our opinion of October 13, 2005 and issue the following opinion in its stead.

After a confidential settlement, the trial court awarded Joe Crabb $117,150 in guardian ad litem fees and an additional $55,000 for appellate attorneys fees. In three issues, Maria Jocson, M.D. and Woman's Hospital of Texas, Inc. ("the hospital") argue that the trial court abused its discretion in awarding Crabb $120,077.75^[1] in guardian ad litem fees in the underlying medical malpractice suit. In our original opinion, we held that Jocson and the hospital 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 we affirmed the award. Jocson v. Crabb, 98 S.W.3d 273 (Tex.App.-Houston [1st Dist.] 2003). The Supreme Court of Texas subsequently granted Jocson and the hospital's petition for review, reversed this Court's judgment, and ordered review of the appeal on the merits. Jocson v. Crabb, 133 S.W.3d 268 (Tex.2004). We reverse and render.

Background

On April 30, 1998, Adrienne and David Draper, individually and as next friend of their daughter, Leila, sued Texas Woman's Hospital, Dr. Jocson, and other healthcare providers for damages allegedly sustained as a result of medical malpractice during Leila's birth. They claimed that their daughter suffered brain damage during delivery. On December 12, 1998, after approximately eight months of pretrial activity, the trial court appointed Crabb guardian ad litem for the Drapers' daughter.

On October 1, 2001, after the Drapers reached a confidential settlement with all the defendants in the case,^[2] the trial court conducted a hearing on Crabb's request for guardian ad litem fees. Dr. Jocson and the hospital objected to Crabb's request, on the grounds that the requested fees were excessive, and sought compensation for work beyond the limited scope of Crabb's duties as an ad litem. The trial court overruled the objections and awarded Crabb the entire amount of the fees requested.

Ad Litem Fees

In three issues, Dr. Jocson and the hospital argue that (1) the trial court abused its discretion in its award of ad litem fees to Crabb for his work in the trial court, (2) there is legally and factually insufficient evidence to support the award of ad litem fees to Crabb, and (3) the trial court abused its discretion in the award of ad litem fees to Crabb on appeal.

Standard of Review

Rule 173 vests the trial court with the authority to appoint a guardian ad litem for a party represented by a next friend or guardian provided: "(1) the next friend or guardian appears to the court to have an interest adverse to the party, or (2) the parties agree." TEX.R. CIV. P. 173.2. When the conflict of interest no longer exists, the trial court should remove the ad litem. Brownsville-Valley Reg'l Med. Ctr., Inc. v. Gamez, 894 S.W.2d 753, 755 (Tex.1995); J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87, 97 (Tex.App.-Houston [1st Dist.] 1998, pet. denied).

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. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 794 (Tex. 1987). We will not overturn a fee award absent evidence showing an abuse of discretion. Id. A trial court abuses its discretion in awarding ad litem fees if there is no evidence or insufficient evidence to support the award. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999). The burden is on the guardian ad litem, not the parties, to ensure that his services do not exceed the limited scope of a guardian ad litem's role in the litigation. Goodyear Dunlop Tires N. Am., Ltd. v. Gamez, 151 S.W.3d 574, 584 (Tex.App.-San Antonio 2004, no pet.).

The supreme court issued final orders amending rule 173, effective February 1, 2005, in all pending cases. The amended rule specifies the very limited scope of the guardian ad litem's duties that are compensable. The rule provides, in pertinent part:

(a) Court Officer and Advisor. A guardian ad litem acts as an officer and advisor to the court.

(b) Determination of Adverse Interest. A guardian ad litem must determine and advise the court whether a party's next friend or guardian has an interest adverse to the party.

(c) When Settlement Proposed. When an offer has been made to settle the claim of a party represented by a next friend or guardian, a guardian ad litem has the limited duty to determine and advise the court whether the settlement is in the party's best interest.

(d) Participation in Litigation Limited. A guardian ad litem:

(1) may participate in mediation or a similar proceeding to attempt to reach a settlement;

(2) must participate in any proceeding before the court whose purpose is to determine whether a party's next friend or guardian has an interest adverse to the party, or whether a settlement of the party's claim is in the party's best interest;

(3) must not participate in discovery, trial, or any other part of the litigation unless:

(A) further participation is necessary to protect the party's interest that is adverse to the next friend's or guardian's, and

(B) the participation is directed by the court in a written order stating sufficient reasons.

TEX.R. CIV. P. 173.4. The supreme court's comment to this newly revised rule references specifically to the case before us on remand. The comment, citing to the supreme court's opinion in this case, notes that an ad litem will not be compensated for unnecessary work and no reason exists for the guardian ad litem to participate in the conduct of the litigation or to review the discovery or the litigation file except to the limited extent that it may bear on the division of settlement proceeds. The comment reads, in part, as follows:

[T]he responsibility of the guardian ad litem as prescribed by the rule is very limited, and no reason exists for the guardian ad litem to participate in the conduct of the litigation in any other way or to review the discovery or the litigation file except to the limited extent that it may bear on the division of settlement proceeds. See Jocson v. Crabb, 133 S.W.3d 268 (Tex.2004) (per curiam). A guardian ad litem may, of course, choose to review the file or attend proceedings when it is unnecessary, but the guardian ad litem may not be compensated for unnecessary expenses or services.

TEX.R. CIV. P. 173.7 cmt. 3^[3] (emphasis added).

Fees Awarded

At the October 2, 2000 hearing, Crabb testified regarding his ad litem fee request. Crabb testified that he has been a licensed attorney for more than 30 years and has served as a guardian ad litem between 30 and 50 times. He testified that this was an extremely complex medical malpractice case because "the medical professionals differed in their opinion." Crabb submitted a 42-page fee invoice that reflected extensive involvement in the case in the amount of 585.75 hours of work billed at $200 an hour and totaled $117,150. The request 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.^[4] Crabb also sought fees for reading the transcripts from at least 10 additional depositions and for his attendance at more than 10 hearings in this case. In addition, Crabb testified that he had independently, without leave of court, retained legal counsel for the purpose of creating a trust for the Drapers' child. Crabb sought an additional $2,927.75 to pay the firm of Crain, Caton & James for its services concerning the trust. Finally, Crabb asked the trial court for the following appellate fees: $30,000 in the event that an unsuccessful appeal was filed and pursued in the court of appeals, $10,000 in the event that a petition for review was filed and denied in the Texas Supreme Court, and $15,000 in the event that the supreme court granted a petition for review and affirmed the award. The trial court awarded Crabb all the fees that he requested.

In their first two issues, Dr. Jocson and the hospital argue that the trial court abused its discretion in the award of ad litem fees to Crabb for work done in the trial court because there was no evidence or insufficient evidence to support the award. Specifically they contend that (1) the trial court erred in compensating Crabb for work beyond that required in his limited role as guardian ad litem and (2)Crabb was essentially doing work that was the responsibility of the Drapers' lawyer. We agree.

Compensable Fees

The trial court abused its discretion in awarding Crabb's fee request under both the version of Rule 173 in place at the time of the hearing and the newly amended Rule 173. Accordingly, we need not determine whether the former Rule 173 or the new rule applies to this appeal. Both versions mandate that an ad litem may only be compensated for fees that are (1) incurred as a result of an actual or potential conflict of interest and (2) reasonable. See TEX.R. CIV. P. 173.4; Gamez, 151 S.W.3d at 583 (discussing the mandates of rule 173 before February 1, 2005). A trial court abuses its discretion if it awards ad litem fees for work unrelated to an actual or potential conflict of interest or for work more appropriately performed by the plaintiff's attorney. Gamez, 151 S.W.3d at 583.

During the ad litem hearing, Crabb repeatedly testified that his extensive involvement in this case was necessary because of an ongoing potential conflict of interest between the Drapers and their minor child over "money." When asked to specifically identify the potential conflict that required his services, Crabb testified that, "anytime you have money involved there is a conflict of interest. No matter how noble someone may be, money taints everything." When questioned regarding whether his role as guardian ad litem should be limited in scope to a specific time period, Crabb responded:

Counselor, I do not know when you can say that terrorists are going [to] attack the World Trade Center and I do not know when a conflict is going to develop. There is always the potential for a conflict to develop and my appointment was to protect the interests of the child.^[5]

Accordingly, Crabb testified that all of the work referenced in his fee invoices was necessary to protect the minor child's best interests. The trial court agreed with Crabb's analysis, concluded that, under these circumstances, "there's no way that [Crabb] would know what the conflict is unless he was aware of what was going on at all times in this case," and awarded Crabb his entire fee request. We hold that the trial court's award was an abuse of discretion.

Generalized testimony regarding the continued presence of "money" in a lawsuit cannot support a trial court's finding of a potential conflict of interest requiring the extensive involvement of the guardian ad litem in the lawsuit. If this were the case, in every personal injury suit, a guardian ad litem would be entitled to compensation for reviewing virtually every piece of paper that crosses his desk and for extensively participating in pretrial discovery based on the possibility of a large damage award. This is not the law in Texas. See TEX.R. CIV. P. 173.4; Gamez, 151 S.W.3d at 583.

When, as here, the minor's parent, guardian or next friend may have a conflict of interest in settlement proceeds, the guardian ad litem may only be compensated for fees that are incurred as a result of this conflict. TEX.R. CIV. P. 173.2; Byrd v. Woodruff, 891 S.W.2d 689, 707 (Tex.App.-Dallas 1994, writ denied). Specifically, the guardian ad litem may be compensated only for work related to the evaluation of the proposed settlement and for advising the court as to the fairness of the settlement to the minor. Byrd, 891 S.W.2d at 707. In reviewing a proposed settlement, the guardian ad litem's duty includes evaluating the damages suffered by the minor, the adequacy of the settlement, the proposed apportionment and manner of distribution of the settlement proceeds, and the amount of attorney's fees charged by the plaintiff's attorney. Id. (stating that guardian ad litem appropriately participated in the settlement conference, reviewed the evidence, examined the legal issues and consulted with the minor and her parents). The guardian ad litem is not to serve as the attorney for the minor and duplicate tasks already being performed competently by plaintiff's attorneys. Gamez, 151 S.W.3d at 584. Furthermore, it is not necessary or appropriate for a guardian ad litem to review discovery motions and depositions and to participate in pretrial discovery and hearings without regard to their relevance, or irrelevance, to the potential conflict of interest regarding the settlement proceeds. See TEX.R. CIV. P. 173.4; Gamez, 151 S.W.3d at 584.

In this case, Crabb specifically testified under oath at the fee hearing that he had "no idea" what percentage of his time he spent dealing with the settlement and settlement-related issues in this case. Crabb did not testify as to how much time he spent performing the duties specifically relating to the review of the settlement or its proceeds, the final division of settlement proceeds between the Drapers and the minor child, the date when the final settlement was reached. In addition, he did not provide any other similar testimony necessary for the trial court to conclude that the entire fee amount requested by Crabb was incurred because of a potential or actual conflict of interest in the division of the settlement proceeds.

Likewise, the billing invoices used by Crabb during his testimony do not support the trial court's award. During the hearing, Crabb did not identify which entries reflected his work relating to the settlement proceeds. Only three of the more than 1000 sparsely worded entries even mention the settlement.^[6] Specifically, the invoice descriptions of "correspondence" and "telephone calls" upon which Crabb relies as evidence of his work as the guardian ad litem are vague and not informative as to either the subject matter of communication or the relationship of the nonattorney correspondents to this litigation.^[7]

The record from the hearing establishes that Crabb cannot identify many of the invoice entries for reviewing deposition notices and other documents as being related to the settlement or even prove that they were reasonable. Before the hearing, Jocson and the hospital subpoenaed Crabb's files, but he refused to produce them on the basis that he was not relying on any documents in his fee request other than his invoice. As a result, when he was asked at the hearing to justify nine hours billed on one day for reviewing 36 pieces of paper, Crabb could not identify what documents he reviewed. Crabb also admitted that it was his standard practice to bill one quarter of an hour for each document he reviewed, even if it was only for a notice of a deposition, a certificate from a court reporter, or a letter containing a single sentence. In light of Crabb's testimony and the absence of supporting documentation, the trial court could not have determined the reasonableness of these requested fees or how they were related to a potential conflict of interest regarding the settlement proceeds.

Finally, Crabb's testimony regarding the role of Jimmy Williamson, the Drapers' counsel, does not support the trial court's award. In light of Crabb's testimony that the Drapers received excellent representation and that no actual conflict of interest ever developed between the parties regarding the handling of this case or the settlement proceeds, Crabb's extensive involvement in the case beyond his role regarding the settlement proceeds was unwarranted. Under these circumstances, we hold 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.

As a result of Crabb's testimony that he has "no idea" what percentage of his time he spent dealing with settlements and settlement-related issues, his failure to produce documents supporting the sparse billing invoice descriptions or provide testimony as to which billing invoice entries were related to the settlement, we are left solely with the invoices themselves as evidence of whether the work referenced was related to the potential conflict of interest in the settlement proceeds in this case. See Alford v. Whaley, 794 S.W.2d 920, 925 (Tex.App.-Houston [1st Dist.] 1990, no writ)(in determining whether to affirm an award of ad litem fees, the court of appeals may "draw on their own knowledge and experiences as lawyers and judges to view the matter in light of the testimony, the record and the amount in controversy.") Based on our review of the record, we hold that the only fees that are compensable on the record before us are those documented by the billing invoices as follows:

1. Attendance at mediation/"mini-trials"
4/16/99   Receive and review Court letter referring to mediation             .25
06/21/99  Receive and review letter Williamson on mediation to counsel       .25
08/05/99  Receive and review Court Notice Mediation                          .25
02/11/00  Mediation                                                        11.00
05/26/00  Pre-trial conference                                              4.25

05/30/00  Trial                                                            6.75[8]
08/21/00  Review trial materials                                           1.25
08/22/00  Mini-trial                                                       8.25
08/23/00  Mini-trial                                                       8.00
08/24/00  Mini-trial                                                       9.00
2. Conferences in person or by telephone with the Drapers
01/16/00  Conference David and Adrienne Draper                             1.75
05/22/00  Conference with Draper                                            .50
06/11/00  Conference with Drapers                                          1.25
06/14/00  Telcon with Adrienne Draper                                       .25
06/21/00  Telcon with David Draper                                          .25
06/22/00  Telcon with David Draper                                          .25
09/05/00  Telecon with Adrian Draper                                        .25
3. Work involving the approval of the settlement and reviewing settlement
documents.
06/15/00  Receive and review Notice of Minor's Settlement Hearing           .25
06/20/00  Receive and review Notice of Minor's Settlement                   .25
09/11/00  Receive and review expenses and settlement statement              .75
09/12/00  Receive and review proposed Agreement, Release, Indemnification
and Judgment                                                      .50
4. Work on setting up the trust and life insurance for the minor[9]
06/07/00  Review structure                                                  .75
05/18/00  Research life insurance companies                                2.00
05/23/00  Research life carriers for structure                             1.75
06/07/00  Review structure                                                  .75
06/12/00  Telcon Bank of America Trust Dept./Attorney                       .50
06/12/00  Telcon Compass Bank Trust Dept.                                   .25
06/12/00  Review structure                                                 1.75
06/12/00  Research 142 Trust                                                .75
06/15/00  Research life carriers                                           2.25
06/21/00  Telcon Bank of America Trust                                      .25
06/22/00  Review trust material                                            1.50
09/05/00  Receive and review letter from Ringler to Locke/Surety Bond       .50
09/05/00  Telcon with Helen Wils                                            .25
09/06/00  Conference with Helen Wils                                       2.00
09/06/00  Telecon with Helen Wils                                           .25
09/06/00  Conference with Helen Wils                                        .50
09/07/00  Telecon with Helen Wils                                           .25
09/07/00  Conference with Helen Wils                                        .50
09/08/00  Conference with Helen Wils                                       1.50
09/08/00  Review draft of trust                                             .50
09/11/00  Receive and review proposed trust as filed                       1.50
09/12/00  Conference with Helen Wils                                        .25

09/12/00  Receive and review Motion/Order Trust filed by Williamson         .75
09/12/00  Conference with Helen Wils                                       1.25
09/12/00  Conference with Williams and Rusnak on Trust                      .50
09/13/00  Review changes in proposed trust                                  .25

The total number of compensable hours is 71.50. Crabb testified that his hourly rate was $200. We hold that Crabb's compensable fees totaled $14,300. We also hold that fees paid to the outside law firm to establish the trust are compensable. Rule 173.6 and its predecessor provision, rule 176, provide that guardians ad litem may be "reimbursed for reasonable and necessary expenses incurred. . . ." TEX.R. CIV. P. 173.6. Although he did not obtain leave of court to incur the legal fees paid to the law firm of 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. Accordingly, we hold that the trial court did not abuse its discretion in awarding the fees incurred by Crabb for services rendered by Crain, Caton & James.

We sustain issues one and two and render judgment awarding Crabb ad litem fees of $2,927.75 for reimbursement of the Crain, Caton & James's fees and $14,300 for reimbursement of his fees. Because of our holding on these issues, we need not address the issue relating to the award of ad litem fees on appeal.^[10]

Conclusion

We hold that the trial court abused its discretion in its award of ad litem fees to Crabb. We reverse the judgment of the trial court regarding the award of ad litem fees, and we render judgment that Crabb be reimbursed $2,927.75 for Crain, Caton & James's fees and $14,300 as fees for his services as guardian ad litem in this case and that no appellate fees be awarded in this case.

NOTES

[1] In addition to the $117,150 in guardian ad litem fees that Crabb was awarded, the trial court ordered that Crabb be reimbursed for the $2,927.75 in expenses that he incurred when he consulted a law firm that specializes in creating trusts.

[2] The settlement is final, and the Drapers are not parties to this appeal.

[3] Crabb argues that the new rule does not apply to him because it did not go into effect until after the resolution of this case in the trial court. During oral argument, the parties agreed that the new rule would control the trial court's actions in the event that we remanded the case to the trial court. The parties disagreed, however, as to its application in this appeal.

[4] Crabb testified that it was necessary for him to attend the depositions in person to evaluate each witness's demeanor. Dr. Jocson and the hospital routinely objected to Crabb's presence at the depositions as being beyond the scope of his duties as an ad litem.

[5] The hearing was conducted a few weeks after the September 11th attacks on the World Trade Center.

[6] Attached to this opinion are two of the invoice's forty-two pages that contain representative samples of the types of entries found throughout the invoice.

[7] Crabb testified that any handwritten notes supporting these entries were destroyed after the invoices were created.

[8] Although identified as a "trial" in the invoice, the record reflects that Crabb attended "mini-trials" or summary jury trials as the guardian ad litem in this case. This case was settled by all parties before trial.

[9] As noted above, the billing invoices do not describe the subject matter of the telephone calls or the relationship of the persons involved in the calls to this litigation. However, the record reflects that Helen Wils and Larry George were attorneys at the Crain, Caton & James law firm working on tax and trust matters and the fees for Crabb's telephone calls and meetings with them are included in this total.

[10] The award of appellate fees was contingent upon an unsuccessful appeal in the court of appeals by Jocson and the hospital.