in the Guardianship of Tyler Murray, an Incapacitated Person ( 2021 )

NUMBER 13-19-00646-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE GUARDIANSHIP OF TYLER MURRAY,
AN INCAPACITATED PERSON
On appeal from the County Court at Law No. 1
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellants, James Murray (James), Guardian of the Person and Estate of Tyler
Owen Murray (the ward), and Prosperity Bank, USA as Trustee (trustee) of the Section
1301 Management Trust for the benefit of Tyler Owen Murray, appeal a trial court order
partially restoring the ward and terminating the guardianship of the ward’s estate. By four
issues, appellants assert that the trial court erred by: (1) appointing a guardian ad litem
without justification; (2) not terminating the guardian ad litem thereafter; (3) awarding the
guardian ad litem attorney’s fees, which were not reasonable or necessary, and (4)
ordering the trustee to pay attorney’s fees from the trust. We affirm in part and reverse
and remand in part.
I. BACKGROUND
Prior to his incapacitation, the ward was a medical doctor completing his internship
in California. On November 7, 2015, while riding his bicycle, a truck collided with him, and
he sustained life-threatening injuries. The ward was in a coma for approximately eighteen
months when he suddenly, and unexpectedly, regained consciousness.
James, the ward’s father, acting as the ward’s next friend, sued the driver of the
truck. The case was settled, and the entire net proceeds of the settlement were placed in
a management trust at Prosperity Bank pursuant to § 1301 of the Texas Estates Code.
See TEX. EST. CODE ANN. § 1301.002. Prosperity Bank was named as trustee.
On December 29, 2015, James filed an application of guardianship seeking to
have himself appointed as guardian of the ward’s person and estate, which the trial court
granted on January 21, 2016. On August 11, 2017, James filed an “Application to
Establish 1301 Management Trust for [the ward],” which the trial court ordered
established on December 22, 2017.
On July 24, 2019, the Texas Department of Family and Protective Services
(Department) notified the trial court that allegations of abuse, neglect, or exploitation were
made against James and that an investigation was pending. The next day, the trial court
appointed Jacob Harvey as guardian ad litem to represent the ward’s interests.
On August 7, 2019, James filed an application to stay Harvey’s appointment as the
ward’s guardian ad litem contending that the Department “jumped the gun” in notifying
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the court of a pending investigation without completing the investigation and without
notifying the court of the Department’s completed findings. James requested that the trial
court enter an order “instructing the Guardian Ad Litem to cease all investigative work in
his capacity as Ad Litem until further notice and not to incur any more expenses or legal
fees until instructed otherwise by the Court.” One week later, the Department notified the
trial court that based on its investigation, the allegations of medical and physical neglect
were unsubstantiated.
On November 1, 2019, Harvey provided the trial court with an extensive, detailed
guardian ad litem report regarding his investigation. Harvey also filed an “Application for
Partial Restoration of the Ward and Termination of the Guardianship of the Estate.” In his
application, Harvey requested that the trial court partially restore the ward to the extent
that he has regained sufficient mental capacity and to terminate the guardianship of the
estate as it was no longer necessary. He provided the trial court with the most recent
annual report detailing the improvement of the ward’s mental capacity and cognition along
with the most recent annual account from the trustee, wherein the trustee explained that
the guardianship of the estate was no longer needed. Harvey also requested that he be
awarded reasonable and necessary attorney’s fees for legal services and expenses as
guardian ad litem in accordance with § 1155.151 of the estates code. See id. § 1155.151.
The trial court held a hearing on November 26, 2019, terminated the guardianship of the
estate pursuant to Harvey’s request, partially restored the ward, granted James a limited
guardianship over the ward’s person, and awarded Harvey attorney’s fees as guardian
ad litem in the amount of $11,150 from the ward’s trust. See id.
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James appealed and requested findings of fact and conclusions of law. In relevant
part, the trial court found the following:
....
2. An annual account and annual report on the condition and location
of the ward covering January 2016 to January 2017 was filed with
the court on April 20, 2017, but both reports were due on January 21,
2017.
....
4. An annual report was filed on May 10, 2018, for the period covering
January 2017 to January 2018, but the report was due January 21,
2018.
5. The court issued a demand letter on December 10, 2018, for an
annual account for the period covering January 2017 to January
2018. The annual account was filed January 8, 2019.
6. The court issued a demand letter on April 4, 2019, for both the annual
account and annual report for the period covering January 2018 to
January 2019. The annual account was filed on April 23, 2019, but it
was due January 21, 2019.
The court issued a second demand letter on July 25, 2019, for an
annual report covering January 2018 to January 2019. The report
was filed on July 30, 2019.
7. The Department notified the court on July 24, 2019, of a complaint
intake against the guardian, James. The allegations in the intake
were financial exploitation, medical and physical neglect by James
against the ward.
8. An order appointing a guardian ad litem was issued on July 25, 2019
to represent the best interests of the ward.
....
10. An application and proposed order to stay the appointment of the
guardian ad litem was filed on August 7, 2019.
11. The Department found that the allegations of physical and medical
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neglect were invalid on August 12, 2019. “Per APS policy, financial
exploitation was not investigated due to guardianships being
required to submit annual accountings to the court.”
12. An annual account covering December 2017 to December 2018 was
filed on August 16, 2019, but it was due February 25, 2019.
13. In Harvey’s report filed November 1, 2019, he detailed several areas
of concern regarding James’s role as the guardian, including “failure
to apply for approval before agreeing to or signing a settlement,
numerous instances of not filing Annual Account and Annual Reports
by the deadlines, failure to specify separately the amounts requested
for education and maintenance of [the ward] and the maintenance of
his property in Application for Annual Expenditures, grossly
exceeding the monthly allowance approved without requesting
additional approval or giving explanation for excess expenditures,
failure to apply for approval for contract for services and/or
expenditures for personal care and transportation for Ward, not filing
Medicaid once Trust was established, failure to file initial accounting
by Trustee and a late filing of annual account by Prosperity Bank,
Trustee.”
....
15. On November 26th, 2019, Harvey presented the most recent annual
accounts filed by Guardian and Trustee, which sufficiently showed
the absence of need and purpose of the guardianship of estate.
....
17. Harvey agreed with the Department’s assessment regarding
physical and medical neglect. The investigation of financial
exploitation was also found to be invalid. However, Harvey did
discover issues of non-compliance that were necessary to bring to
the court’s attention.
II. APPOINTMENT OF GUARDIAN
By their first issue, appellants assert that “the trial court abused its discretion in
appointing a guardian ad litem prior to receipt of the findings and report from [the
Department].”
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A. Standard of Review & Applicable Law
In a guardianship proceeding, the court may appoint a guardian ad litem to
represent the interests of an incapacitated person in a guardianship proceeding. TEX. EST.
CODE ANN. § 1054.051. 1 A guardian ad litem is “a person appointed by a court to
represent the best interests of an incapacitated person in a guardianship proceeding,” id.
§ 1002.013, is “an officer of the court,” “investigate[s] whether a guardianship is
necessary for the proposed ward,” and “evaluate[s] alternatives to guardianship and
supports and services available to the proposed ward that would avoid the need for
appointment of a guardian.” Id. § 1054.054.
We review a trial court’s guardianship determination for an abuse of discretion. In
re Guardianship of A.E., 552 S.W.3d 873, 876 (Tex. App.—Fort Worth 2018, no pet.). A
trial court abuses its discretion if it acts without reference to any guiding rules or principles,
that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex.
2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A trial court also abuses
its discretion by ruling without supporting evidence or by misapplying the law to
undisputed facts. See Fuller v. State Farm Cnty. Mut. Ins. Co., 156 S.W.3d 658, 660 (Tex.
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Appellants cite Texas Rule of Civil Procedure 173.1 for the proposition that although the estates
code provides that a judge may appoint a guardian ad litem to represent the interest of an incapacitated
person, “the courts have historically engrafted the requirements of Rule 173 . . . requiring there to be an
apparent conflict of interest into [the estate codes] section.” However, Rule 173 governs the procedure for
appointing a guardian ad litem in civil litigation when there is an apparent adverse interest between a minor
and the next friend or guardian. See TEX. R. CIV. P. 173.2. It expressly provides that Rule 173 “does not
apply to an appointment of a guardian ad litem governed by statute or other rules.” Id. R. 173.1. Thus, the
role of the guardian ad litem in civil lawsuits is not governed by the Texas Estates Code. See Goodyear
Dunlop Tires North Am., Ltd. v. Gamez, 151 S.W.3d 574, 584 n.8 (Tex. App.—San Antonio 2004, no pet.).
Here, James filed an application for the guardianship of the ward’s person and estate as well as an
application for a § 1301 management trust—both probate matters governed by the Texas Estates Code.
See TEX. EST. CODE ANN. §§ 1251.001; 1301.002. Therefore, appellants’ reliance on Rule 173 is misplaced.
See TEX. R. CIV. P. 173.1.
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App.—Fort Worth 2005, no pet.). But discretion is not abused when the trial court bases
its decision on conflicting evidence and some evidence of substantive and probative
character supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.
2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh’g). When
our review is for abuse of discretion, findings of fact and conclusions of law help us review
the propriety of the trial court’s ruling by providing us with an explanation for the ruling. In
re J.P.C., 261 S.W.3d 334, 336–37 (Tex. App.—Fort Worth 2008, no pet.).
B. Discussion
1. Initial Appointment
Appellants argue that the trial court abused its discretion in appointing a guardian
ad litem prior to the Department’s conclusion of its investigative findings. Specifically,
appellants assert that the trial court incorrectly found that the Department’s policy required
the Department to inform the trial court of a pending investigation whereas the policy
requires the Department to notify the trial court “upon conclusion of the investigation.”
The estates code broadly provides that “it is within the discretion of the trial court
to appoint a guardian ad litem,” which appellants acknowledge. See TEX. EST. CODE ANN.
§ 1054.051. That is, the trial court’s discretion to appoint a guardian ad litem is not
contingent on the whether the Department followed its internal policies. “[T]he court may
appoint a guardian ad litem to represent the interests of an incapacitated person in a
guardianship proceeding,” and the record shows that the trial court was informed of an
allegation regarding abuse, neglect, or exploitation, which prompted an investigation from
the Department. See id.
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The trial court specifically found:
The receipt of a Notice of potential physical and medical neglect along with
financial exploitation was concerning and the Court felt it had the duty to
investigate any and all potential neglect, exploitation, nonreporting and non-
compliance of a guardianship underneath its jurisdiction. Therefore, a
guardian ad litem was appointed to represent the best interests of the Ward.
The investigation of financial exploitation was also found to be invalid.
However, the guardian ad litem did discover issues of non-compliance that
were necessary to bring to the Court’s attention.
The Department’s conclusion that the allegation was “invalid” has no bearing on the trial
court’s initial finding that the ward would be well-served by the appointment of a guardian
ad litem due to the allegations alleged. The trial court explained: “I’m the one that put this
guardianship in place and I’ve got these allegations of neglect and exploitation staring me
in the face. . . had they had been true . . . and I waited for a final investigation, [the ward]
may be worse off than what [he was] in the beginning.” The trial court further stated, “[A]t
the time I felt like I [did not have] any other alternative except to do something proactive
to look into this.” Moreover, when the Department notified the trial court of the allegations,
the trial court was aware that James had been consistently late in filing annual reports
and annual accounts. Because “it is within the discretion of the trial court to appoint a
guardian ad litem,” we conclude that the trial court did not act without reference to any
guiding rules or principles or act arbitrarily or unreasonably in appointing a guardian ad
litem. See TEX. EST. CODE ANN. § 1054.051; Low, 221 S.W.3d at 614. We overrule
appellants’ first issue.
2. Request to Terminate
By their second issue, appellants assert the trial court erred in not terminating the
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guardian ad litem once the Department’s investigation failed to substantiate the abuse
allegations. Appellants rely on Rule 173 as authority to support their argument that “the
trial court should remove the guardian ad litem when the evidence presented fails to
confirm that a conflict of interest exists.” However, Rule 173 governs the appointment of
a guardian ad litem in civil litigation and is inapplicable to this case. See Goodyear Dunlop
Tires North Am., Ltd. v. Gamez, 151 S.W.3d 574, 584 n.8 (Tex. App.—San Antonio 2004,
no pet.).
Nonetheless, the trial court has the ultimate responsibility for protection of the
ward’s best interest. See In re Guardianship of Glasser, 297 S.W.3d 369, 376 (Tex.
App.—San Antonio 2009, no pet.). In determining whether to remove the ward’s guardian
ad litem, the trial court’s only consideration is the ward’s best interest. See id. Appellants
point to nothing in the record suggesting the trial court considered anything other than the
ward’s best interest when it did not rule on James’s request to terminate the guardian ad
litem. In fact, Harvey’s investigation revealed that there were ways to streamline the
guardianship, and the ultimate result of his investigation effected a partial restoration of
the ward and a termination of the guardianship of the ward’s estate. See id. Therefore,
there was some evidence of substantive and probative character to support the trial
court’s decision in not terminating Harvey’s appointment, and we find the trial court did
not abuse its discretion. See Unifund, 299 S.W.3d at 97. We overrule appellants’ second
issue.
III. FEES
The trial court awarded Harvey “reasonable and necessary attorney’s fees for legal
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services” and costs pursuant to § 1155.151 of the estates code for a total of $11,150.2
Appellants argue that the trial court abused its discretion in awarding Harvey, as guardian
ad litem, “attorney’s fees” because he was not appointed to serve as the ward’s attorney.
A. Standard of Review & Applicable Law
Generally, we review the trial court’s approval of fees incurred by a guardian ad
litem for an abuse of discretion. See Guardianship of A.B., No. 11-19-00185-CV, __
S.W.3d __, __, 2021 WL 1918715, at *3 (Tex. App.—Eastland May 13, 2021, pet. filed);
Epstein v. Hutchison, 175 S.W.3d 805, 807 (Tex. App.—Houston [1st Dist.] 2004, pet.
denied). “A trial court abuses its discretion when its decision is contrary to the law.”
Epstein, 175 S.W.3d at 807. We “reverse the trial court’s ruling only if the trial court acted
without reference to any guiding rules and principles, such that its ruling was arbitrary or
unreasonable.” Guardianship of A.B., 2021 WL 1918715, at *3 (internal citations omitted).
“The trial court abuses its discretion if there is insufficient evidence to support the
allowance.” City of Houston v. Woods, 138 S.W.3d 574, 580 (Tex. App.—Houston [14th
Dist. 2004, no pet.).
“A guardian ad litem is entitled to reasonable compensation for services provided
in the amount set by the court, to be taxed as costs in the proceeding.” TEX. EST. CODE
ANN. § 1054.055. “In a guardianship proceeding, the cost of any guardians ad litem,
attorneys ad litem, court visitors, mental health professionals, and interpreters appointed
under this title shall be set in an amount the court considers equitable and just.” Id. §
2
The trial court’s order recites: “IT IS FURTHER ORDERED that reasonable and necessary
attorney’s fees for legal services and costs provided by [Harvey] to the Ward as Guardian ad Litem, in the
total amount of $11,150.00 is hereby approved and is to be paid from the funds from the Ward’s 1301
Management Trust as per Texas Estate Code 1155.151.”
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1155.151(a–1). These costs “shall . . . be paid . . . out of the management trust, if a
management trust has been created for the benefit of the ward under Chapter 1301 and
the court determines it is in the ward’s best interest . . . .” Id. § 1155.151(a).
B. Discussion
According to Harvey’s guardian ad litem report, Harvey interviewed the ward,
James, three investigators for the Department, the trustee, the ward’s mother, home
health wound specialists, and the ward’s physical therapy team, among others. He also
reached out to several other facilities that currently see and treat the ward, and reviewed
all the medical reports, all financial transactions since January 2018, the annual reports,
reimbursements to James, and monthly expenditures, among others. While Harvey is an
attorney, the evidence provides that he performed the duties required of a guardian ad
litem. We agree with Harvey that he was entitled to reasonable compensation for his role
as guardian ad litem pursuant to § 1054.055 and § 1155.151(a–1), but Harvey requested,
and the trial court awarded, “reasonable and necessary attorney’s fees for legal services
and expenses” in addition to § 1155.151 compensation as guardian ad litem. However,
an attorney who serves as guardian and who also provides legal services in connection
with the guardianship is not entitled to compensation for the guardianship services or
payment of attorney’s fees for the legal services unless the attorney files a detailed
description of the services performed segregating guardianship services and legal
services. See id. § 1155.052.
Although attorney ad litem fees are also taxable as court costs pursuant to
§ 1155.151(a–1), the estates code mandates that the attorney ad litem file “a detailed
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description of the services performed segregating guardianship services and legal
services” to be entitled to compensation. Id. Here, no invoice, bill, affidavit, itemized
statement, or document was admitted into evidence detailing a description of the services
performed segregating guardianship services from legal services to justify the trial court’s
award of attorney’s fees. See id. The trial court did not hold an evidentiary hearing
regarding Harvey’s request for attorney’s fees, and Harvey did not testify at the November
26, 2019 hearing detailing any legal services he may have provided. See Bocquet v.
Herring, 972 S.W.2d 19, 21 (Tex. 1998) (“To determine whether attorney[’s] fees are
reasonable, the trial court must consider the Arthur Andersen factors.”); Interest of D.Z.,
583 S.W.3d 284, 297 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (op. on reh’g)
(“Mother’s previous attorney did not testify about her attorney’s fees at the hearing, and
the trial court did not admit Mother’s attorney’s affidavit or billing records”; therefore,
“Mother’s evidence ‘lacks the substance required to uphold a fee award’ and thus is
legally insufficient.”). The only testimony addressing Harvey’s request for “reasonable and
necessary attorney’s fees for legal services” is the following:
[James]: And so, now we’re talking about paying [Harvey]
money that should never—really should have never
been incurred in the first place.
The Court: Well, point taken. Anything else?
[James]: I’m sorry. I don’t have the amount of your fee. Do you
know it?
[Harvey]: Yeah, it’s listed in the order.
The Court: $11,150.
[James]: Wow. 11,000. Really? Can I see—you were going to
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give me a breakdown at one time. Did where did that—
I didn’t get that. Oh, no, I’ve never seen that. Can I be
given an opportunity to review this?
The Court: Yes, sir.
[James]: I’m not going to take up the Court’s time. I don’t know
where we’re going to go from here.
The Court: Right. I understand.
[James]: Because I’m going to be talking to the Trustee and
seeing if maybe we can do something to prevent this.
Okay.
The Court: That’s fine. Well, with that I guess this hearing is
closed.
Based on this record, there is no evidence that Harvey performed any services outside
his role as guardian ad litem. With no invoice or testimony before us, we are unable to
justify or review the trial court’s award of reasonable and necessary attorney’s fees for
legal services. See Rio Grande Valley Gas Co. v. Lopez, 907 S.W.2d 622, 625 (Tex.
App.—Corpus Christi–Edinburg, 1995 no pet.) (finding that the trial court abused its
discretion in awarding attorney’s fees when the evidence consisted of testimony that the
amount was reasonable and an affidavit that the amount requested was reasonable);
Guardianship of Alford, 596 S.W.3d at 360 (reviewing “an itemized billing describing every
action billed for in detail and set the amount of time spent on each item and costs incurred
for every action in accordance with his charged rate” in an appeal for attorney’s fees
awarded to an attorney ad litem); see also Owens-Collins v. Drexler, No. 01-19-00520-
CV, WL 7062322, at *5 (Tex. App.—Houston [1st Dist.] Dec. 03, 2020, pet. denied) (mem.
op.) (“[W]e will reverse only if no evidence supports the factfinder’s finding or its finding
13
is so contrary to the great weight and preponderance of the evidence as to be manifestly
erroneous or unjust.”). Accordingly, we sustain appellants’ issues concerning the amount
of reasonable and necessary attorney’s fees for legal services awarded to Harvey.
We reverse the trial court’s judgment signed on November 26, 2019, insofar as it
awards a total of $11,150 in reasonable and necessary attorney’s fees for legal services
and costs to Harvey and remand for further proceedings and a re-calculation of the fees
in a manner consistent with this opinion. On remand, the trial court should reconsider
compensating Harvey as guardian ad litem pursuant to § 1054.055 and § 1155.151(a–1).
See TEX. EST. CODE ANN. §§ 1155.055, 1155.152. The trial court’s judgment is affirmed
in all other respects.
IV. CONCLUSION
We affirm the trial court’s judgment in part and reverse and remand in part.
JAIME TIJERINA
Justice
Delivered and filed on the
19th day of August, 2021.
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