## IN THE SUPREME COURT O F TEX AS

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. 11-0818

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### M O T O R 

### C O M P A N Y 

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### S T E W A R T 

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### H A T C H E R 

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. A N D 

### T U R N E R 

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E N I N T H D I S T R I C T O F T E X A S

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P ER CURIAM

This appea l arises from a dispute over the trial court’s sua sponte appointment of a g uardia n ad litem and subsequent fee awa rd to t h e gu ardian ad litem in connec tion with a persona l injury settlement betwee n a minor-plaintiff and For d Motor Company

. Be cause the trial court should have

remove d the g uardia

n ad litem afte r it beca

me clea r that the next friend did not have interests adver se
to the minor, the g uardia

n ad litem’s service s wer e no longe r nece ssary under Rule 173 of the Texas Rules of Civil Procedur e. Therefore, the trial court abused its discretion when it awa rded the
g uardia n ad litem compensa tion for the rendition of unnec es s ary , non-compe nsable service s. Acc ording ly , we reve rse the court of appea ls’ judgme nt in part, and rema nd the case to the trial court for f urther pr ocee dings c onsistent with thi s opinion.I n 1999, I .F. was sever ely injured afte r being ej ec t ed from a minivan during a one-c ar

rollover accide nt. I .F.’ s fathe r was killed in the acc ident. There sa Richar dson, I .F.’ s mother, was
not involved in the acc ident. Richardson, as I .F.’ s next friend, sued For d and Br idge stone/Fire stone 1
North Americ an Tire, L .L .C. in district court in Ora ng e County

. A district judge sitti ng in Montgome ry County was assigne d as t he pretrial j udg e for this case and other simil ar cases. See 2
T E X
. R. J U D
. A D M I N
. 11 (providing for the assig nm en t o f a p re trial judge in case s that involve materia l questions of fac t and law in common with another case pending in another court in another county ). I n 2003, Fire stone and I .F. rea ched a settlement and prese nted the proposed settlement to
t he reg ular judge for approval. Upon approving the Fire stone settlement, the reg ular ju d ge fo u n d
t h at n o g uardia

n ad litem appointment was nece ssary beca use there was no conflict of interest betwee n Richardson and I .F. I n late 2009, For d rea ched a settlement with I .F. That settlement was jointly prese nted to the pretria l judg e for approva l. Acting on his own initi ative, the pretria l judg e appointed attorney J o hn Miluti n to repr esent I .F.’ s interest in the settlement under Texas Rule of Civil P ro ce d u re 1 73. See T E X
. R. C I V
. P. 173.3(a) (providing that the trial court “may appoint a
g uardia n ad litem on the motion of any party or on its own initiative”). Richardson, as next friend of I .F., ini t ially challeng ed Miluti n’s appointment by filing an “Ag ree d Motion to Reconsider Appointment of Guar dian Ad L item,” which included Richardson’s

R i c h a r d s o n w a s d i v o r c e d f r o m I

. F

. ’ s f

a t h e r a t t h e t i m e o f t h e a c c i d e n t a n d w a s n e i t h e r a n h e i r n o r a 1
r e p r e s e n t a t i v e o f h i s e s t a t e .

T h e t r i a l c o u r t j u d g e s i t t i n g i n O r a n g e C o u n t y , w h e r e t h e c a s e w a s o r i g i n a l l y f i l e d a n d r e m a i n e d p e n d i n g , i s 2 h e r e i n a f t e r r e f e r r e d t o a s t h e “ r e g u l a r j u d g e . ” S e e T E X
. R

. J U D
. A D M IN
. 1 1

. 2 ( b )

. 2aff

idavit in opposition to that appointment. I n the aff idavit, Richa

rdson testified that her interests 3

wer e not adver se t o I .F.’ s beca use she made no claims in the l awsuit and had no financ ial interest in the settlement. Miluti n responde d to Ri ch ardson’ s motion by stating, in sum, that he had “inade quate information upon which to deter mine and advise the Court whether [R ichar dson] has

an interest adver se to [I .F.]” due to the plaintiff’s failure to provide him with information that he had
reque sted reg arding the settlement. The pretria l judg e denied Richardson’s motion to rec onsider. Richardson, as next friend of I .F., t h en u n succe ssfully soug ht mandamus relief from the order
ap p o inting Mi lutin as guar dian ad litem. In re Richardson , No. 09-10-0032-CV, 2010 T ex . Ap p . L EXI S 1758, at *1 (Tex. App.—Be aumont Mar. 11, 2010, or ig. pr ocee ding) (mem. op.). Ultimately , the pretria l judge rende red a judgme nt that (1) approve d the For d settlement, (2)
“re approve d” the 2003 Fire stone settlement, subject to a reduc tion of attorney ’s fee s from the forty
perc ent previously approve d in the Fire stone Settlement to one-third, and (3) order ed For d to pay $40,000.00 to Miluti n in g uardia n ad litem fee s and expenses. A divided court of appea ls aff irmed the pretria l judge ’s appointment of Miluti n as g uardia n ad litem, finding th a

t Ri c hardson’ s obliga tion
to pay her daug hter’s m ed i cal expenses coupled with her desire to pay the medical bills with
proce eds from the settlement constituted the conflict nece ssitating the appointment of Milu tin as

T h e c o u r t o f a p p e a l s s t a t e d t h a t F o r d “ j o i n e d ” R i c h a r d s o n ’ s m o t i o n t o r e c o n s i d e r . 3 5 0 S

. W

. 3 d 3 6 9 , 3 7 7

. F o r d 3
s t a t e s i n t h i s C o u r t , h o w e v e r , t h a t i t n e i t h e r j o i n e d n o r a g r e e d t o t h a t m o t i o n , b u t s i m p l y t o l d R i c h a r d s o n t h a t i t w o u l d n o t o p p o s e i t

. 3g uardia

n ad litem. 350 S.W .3d 369, 377–78. The court of appeals also aff irmed the ad litem fee

awa rd. Id. at 381. 4
For d arg ues that the trial court abused its discretion under Texas Rule of Civil Procedur e 173 by appointing a g uardia

n ad litem whe n there was no appar ent conflict of interest betwee n I .F. and Richardson. For d also complains of the amount of the g uardia n ad litem’s fee awa

rd and the taxi ng of the e ntire aw ard a g ainst Ford.
We initially note that For d prese rved its issues surrounding the g uardia n ad litem fee awa

rd. Richardson and For d initially filed a joint motion r equesting that the pretria l judg e approve For d’s proposed settlement, in which both parties notified the pretrial judge that a g uardia n ad litem appointment was unwar

rante d in this case . When Richardson challeng ed the g uardi an ad litem appointment by mandamus revie w, For d fi l ed a letter in that proce eding , aver ring that the appointment was “neither appropriate nor permitted.” 2010 Tex. App. L EXI S 1758, at *8. More importantly , For d objected to the fee s at the settlement pr o ve-up hear ing, and the trial court overr uled
For d’s objections. See T E X
. R. A P P
. P. 33.1(a) ; see also Jocson v. Crabb , 133 S.W .3d 268, 270 (Tex. 2004) (per curia m) (“The final fee hear ing is an appropr iate forum to asser t any objections to the fee
reque st and obtain a ruling .”).

T h e c o u r t o f a p p e a l s d e a l t w i t h t w o s e p a r a t e a p p e a l s i n t h i s c a s e . I

. F

. ’ s a t t o r n e y s a l s o a p p e a l e d t h e t r i a l c o u r t ’ s 4
r e d u c t i o n o f t h e i r f

e e s a s s o c i a t e d w i t h t h e 2 0 0 3 F i r e s t o n e s e t t l e m e n t

. 3 5 0 S

. W

. 3 d a t 3 7 3

. T h e c o u r t o f a p p e a l s r e v e r s e d t h e p r e t r i a l j u d g e ’ s o r d e r o n t h a t i s s u e , h o l d i n g t h a t t h e p r e t r i a l j u d g e a b u s e d h i s d i s c r e t i o n b y d i s r e g a r d i n g t h e r e g u l a r j u d g e ’ s 2 0 0 3 o r d e r t h a t a p p r o v e d t h e F i r e s t o n e s e t t l e m e n t a n d t h e a t t o r n e y ’ s f e e s a n d e x p e n s e s p a i d t o I

. F

. ’ s a t t o r n e y s f r o m t h a t s e t t l e m e n t

. I

d

. a t 3 8 1

. R i c h a r d s o n , a s I

. F

. ’ s n e x t f r i e n d , p e t i t i o n e d t h i s C o u r t f o r r e v i e w a s t o t h a t p o r t i o n o f t h e c o u r t o f a p p e a l s ’ j u d g m e n t , b u t w e d e n y h e r p e t i t i o n . T h u s , w e a d d r e s s o n l y t h e g u a r d i a n a d l i t e m i s s u e p r e s e n t e d b y F o r d ’ s p e t i t i o n . 4Texas Rule of Civil Procedur e 173 g overns the proce dure for appointing and compensa ting

a g uardi an ad litem. See T E X
. R. C I V
. P. 173. The trial court must appoint a g uardia n ad litem pursuant to Rule 173 when there appea rs to be a conflict of interest betw een the minor and next fr i end. T E X
. R. C I V
. P. 173.2. Once appointed, the g uardia n ad litem has a limit ed role in th e litigation and may

be compe nsated only

for c erta in ty

pes of a ctivities. Ford Motor Co. v. Garcia , 363 S.W .3d 573, 579 (Tex. 2012). “The context of t he appointment and duties assigne d to the ad litem deter

mine the nature of the ap p ointment and the duties of the ad litem.” Id. at 577. The
g uardia n ad li tem’s i nitial role is to “dete rmi n e an d ad v ise the court whether a party ’s nex t friend

. . . has an interest adver se to the party .” T E X
. R. C I V
. P. 173.4(b). The trial court should remove the
g uardia n ad litem when the evidenc e prese nted fails to confirm that a conflict of interest exis ts. Cf. Brownsville-Valley Reg’l Med. Ctr. v. Gamez , 894 S.W .2d 753, 755 (Tex. 1995) (“When the conflict of interest no longe r exis ts, the trial court should remove the g uardia n ad litem.”). Rule 173 authorizes the trial court to awa rd an ad litem a rea sonable fee for nec essar y service s perf

ormed.
T E X
. R. C I V
. P. 173.6. The trial court has no discretion to awa rd a g uardia

n ad litem c ompensation for service s rende red afte r it has become clea r t h at no conflict of interest exis ts, beca use such service s would no longe r be nece ssary under Rule 173. See Garcia , 363 S.W .3d at 582 (“O nly those tasks direc tly and materia lly bear ing on the conflict of interest betwee n [t he g uardia n] and [t he war d]
reg arding division of the settlement wer e nece ssary .”). We r eview the amount a g uardia n ad litem is awar ded as compensation for a n abuse of

discretion, which oc curs whe n the trial cour t rules (1) arbitra rily , unrea sonably , or without rega rd t o g uiding leg al principles, or (2) without supporting evidenc e. Id. at 578.

5I n this case , Miluti n was not specific ally assig ned any duties by t h e p re t ri al judge

. The

context of his a

ppointment, however , indicates that Milutin was appointed for the limit ed purpose of deter mining and advising the pretria l judge as to whether there was a conflict of interest betwee n I .F. and Richardson, and i f s o , whether the For d settlement was in I .F.’ s best interest. As to the initial conflict-of

-intere st deter

mination, Richardson testified in her aff idavit that sh e was not involved in the acc ident, she was not asser ting any claims in this lawsuit on her own behalf , she was
not an heir or repr esenta tive of the estate of I .F.’ s fathe r, she had no financ ial interest in that estate’ s

rec overy , and she understood and ag ree d that she had no rig ht to the proce eds of a ny settlement of the litigation. I n Miluti n’s response , he primarily took issue with the reg ular judge ’s prior approva l

o f t h e Firestone settlement in 2003 and the amount of attorney ’s fee s awa rded pursuant to th e conting ency fee ag ree ment in that settlemen t

. Ho wever, those issues have no bear ing on the
g uardia n ad litem’s initial role in deter mining whether Richardson’s interests wer e adver se to I .F.’ s in the context of the For d settlement. See T E X
. R. C I V
. P. 173 cmt. 3. There fore , the pretria l judge should have remove d Miluti n afte r considering Richard s o n’s aff idavit, the circ umstances surrounding Richardson’s re p resentation of I .F., and Miluti n’s response beca use there was no

ev idence that Richardson had an interest adver se to I .F. The court of appea ls err ed when i t h el d otherwise. See 350 S.W .3d at 377–78 (c oncluding that Richardson’s oblig ation as a pa rent to pay
I .F’ s medical e x penses pr esente d a conf lict of interest that require d the appointment of a g uardia n ad litem under Rule 173). We hold that a pare nt’s obliga tion to provide her child with medical car e, standing alone, doe s not crea te a c onflict of intere st within t he conf ines of Rule 173.

6Be cause the pretria l judge should have remove d Miluti n at t h e t i m e he considere d

Richardson’s motion to reco n sider and Miluti n’s response , we hold that any service s rende red by Miluti n afte r that time wer e not nec essar y and thus not compensa

ble under Rule 173. See T E X
. R. C I V
. P. 173.6(a) (providing that a g uardia n ad l i t em m ay be compensa ted for nece ssary service s perf ormed). There fore , the pretria l judge abused his discretion when he awa rded compensa tion for Miluti n’s non-ne cessa

ry service s, which included Miluti n’s time spent defe nding his a ppointment in the mandamus proce eding

. See G arcia , 363 S.W .3d at 582 (holding that a trial c ourt abuses its discretion when it awa

rds compensa tion for a g uardia n ad litem’s non-nec essar y activities). Whil e the evidenc e is le g ally insufficient to suppor t the full amount awa

rded to Miluti n, it is sufficie nt to show that he nece ssarily spent some amount of time initially advising the pretria l judge as to whether there was a conflict of interest betwee n Richardson and I .F. Acc ording ly , we g rant For d’s petition for review and, with o u t h ea ri n g oral arg ument, reve rse the court of appea ls’ judgme nt in part and

rema nd the case to the pretria l judge to deter mine Miluti n’s fee awa

rd, consistent with this opinion.
See T E X
. R. A P P
. P. 59.1.

OPI NI ON DEL I VERED: J anuar y 25, 2013

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