Holt Texas, Ltd. D/B/A Holt Company of Texas v. Oscar Hale, Jr. ( 2004 )

DISSENTING OPINION No. 04-02-00795-CV HOLT TEXAS, LTD., Appellant v. Oscar HALE, Jr., Appellee From the 49th Judicial District Court, Webb County, Texas Trial Court No. 2000-CVT-000539-D1 Honorable Manuel R. Flores, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Dissenting opinion by: Alma L. López, Chief Justice

Sitting: Alma L. López, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 12, 2004

In my opinion, deciding whether the trial court abused its discretion in awarding Hale $50,000.00 for ad litem fees rests on the answers to the following two questions. First, is a trial court permitted to place added value on the services of an ad litem whose actions saved a settlement that was in the best interests of the minor children? Second, does a trial court abuse its discretion in finding an ad litem's services to be more valuable because the ad litem's bilingual skills played a critical role in preserving a settlement?

I believe the answers to these questions are contained in the guiding rules and principles a trial court is to consider in determining a reasonable and appropriate ad litem fee. With regard to an ad litem's actions in saving a settlement, the guiding rules and principles permit a trial court to consider the time and labor required and the results obtained. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). Similarly, in regard to the critical need for a bilingual attorney, the trial court is permitted to consider the skills required to perform the legal services properly and the ability of the lawyer performing the services. See id. Since the guiding rules and principles permit the trial court to add value to an ad litem's fee for actions taken in saving a settlement and for necessary bilingual skills, the question then becomes whether this court is permitted to second-guess the amount of the value that is added. I believe the answer is no.

"A trial court does not necessarily abuse its discretion in awarding fees to a court-appointed guardian ad litem if under the same facts, an appellate judge would decide the matter differently." Borden, Inc. v. Martinez, 19 S.W.3d 469, 471 (Tex. App.--San Antonio 2000, no pet.). Although the majority in this case would have decided the amount of the fees differently, appellate judges are not fact-finders and are not free to second-guess a factual determination made by a trial court under an abuse of discretion standard of review. See id. at 473-74 (declining to second-guess trial court's review of hours and details).

At the hearing, Hale testified that his work included meeting with the minor children, who were three years old and five years old, respectively, and interviewing their mother and their paternal grandparents. Hale investigated to determine if the children had any additional needs, such as medical conditions, that would require additional money through their minor years. Hale made two trips to Mexico at which time he discussed the proposed settlement with the family. Hale testified that a great deal of distrust was present between the plaintiffs and their own attorneys, particularly with regard to representations being made about fees, costs, and expenses. Hale testified that the plaintiffs initially decided to reject the settlement offer because they believed they were entitled to receive a greater percentage of the settlement. The plaintiffs were [also] troubled by the placement of the money in an annuity and wanted the money delivered to their bank account in Mexico. Hale advised the plaintiffs regarding his role and that delivering the money to a bank account would not be in the children's best interest. Hale explained to the plaintiffs that the children's money should be invested until they turn eighteen because the children's mother would have sufficient money from the settlement to maintain and support the children through their minor years. Hale explained to the plaintiffs the consequences of not accepting the overall settlement and the risk of going to trial. Hale believed that these explanations had not been provided by the plaintiffs' own attorneys because of the language barrier. Hale testified that his role as attorney ad litem served to maintain the settlement agreement.

In determining the amount of the ad litem fee, guiding rules and principles permitted the trial court to consider Hale's testimony regarding the crucial role he played in obtaining the plaintiffs' approval of the settlement and, in particular, explaining the necessity that the children's funds be placed in an annuity. See Phillips Petroleum Co. v. Welch, 702 S.W.2d 672, 675 (Tex. App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.) (noting that settlement might not have been accomplished without ad litem's efforts in affirming ad litem fee of $166,667.00). Guiding rules and principles also permitted the trial court to consider that Hale's bilingual skills were necessary in finalizing the settlement in a manner that was in the best interest of the children. Moreover, the trial court's findings demonstrate that it was guided by these rules and principles in determining the amount of the fee. The trial court expressly found that Hale's "legal experience and Spanish speaking ability were useful and necessary skills that were utilized by the Ad Litem in advocating for and on behalf of the best interest of the minor children and were contributing factors to the final resolution of the case." The trial court also expressly found that Hale's "responsibilities were significant considering the multi-million dollar settlement, the initial disagreement over the division of the funds, the minor children's ages, and the extended exposure to liability." With regard to this extended exposure, the majority appears to discount any weight given to this factor, asserting that "Hale's exposure to future liability is unlikely and speculative." In Borden, however, this court was not so quick to discount the importance of this factor, noting, "we recognize that with the appointment of the guardian ad litem comes extended exposure to liability. A guardian ad litem stands in a precarious position as the statute of limitations for malpractice actions is tolled until the minor attains majority plus any applicable limitations period thereafter." 19 S.W.3d at 474.

In view of the foregoing, I would hold that the trial court did not act without reference to guiding rules and principles and, therefore, did not abuse its discretion in awarding Hale $50,000.00 as fees for his ad litem services. Because the majority holds to the contrary, I respectfully dissent.

I also dissent to the majority's conclusion that the trial court abused its discretion in awarding Hale fees for hours related to his dispute over his ad litem fees. By not requiring a party to pay the ad litem for the time the ad litem is required to expend in upholding an award, parties will be encouraged to take the $125.00 gamble to appeal the award. I disagree with this approach, and I find that I am not the only appellate judge in disagreement.

The Eastland court has held that fees incurred in defending the original fee awarded by the ad litem are fees resulting from the appointment and services provided by the guardian ad litem. DeSai v. Islas, 884 S.W.2d 204, 206 (Tex. App.--Eastland 1994, writ denied); see also Rio Grande Valley Gas Co. v. Lopez, 907 S.W.2d 622, 626 (Tex. App.--Corpus Christi 1995, no writ) (reversing award of appellate fees to ad litem for defense of fee only because fee was not conditioned upon success). Without analysis, the Texas Supreme Court reinstated the conditional appellate attorney's fees awarded to an ad litem when the sole issue presented in that appeal was whether the ad litem's fee was excessive. Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 793-94 (Tex. 1987); see also Dallas Area Rapid Transit v. Williams, No. 05-96-01485-CV, 1998 WL 436917, *7 n.11 (Tex. App.--Dallas Aug. 4, 1998, pet. denied) (not designated for publication) (citing DeSai and Simon to affirm conditional award of attorney's fees on appeal "since such fees are properly awarded when a guardian is forced to defend its fee on appeal"). Because an appeal of ad litem fees is related to the suit for which the ad litem was appointed, I would hold that a trial court does not abuse its discretion in awarding conditional appellate attorneys' fees to an ad litem who seeks to defend his fees.

Alma L. López, Chief Justice