MEMORANDUM OPINION

No. 04-09-00040-CV

IN RE WHITE INTER VIVOS TRUSTS

From the 229th Judicial District Court, Duval County, Texas

Trial Court No. DC-08-64

Honorable Alex William Gabert, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Rebecca Simmons, Justice

Steven C. Hilbig, Justice

Marialyn Barnard, Justice

Delivered and Filed: August 31, 2009

AFFIRMED

In this attorneys’ fees dispute, Appellants Larry and David White (Trustees) appeal the 

trial court’s judgment awarding guardian ad litem fees to Appellee Jon West for services 

prosecuting an appeal. Because West could and did properly present evidence on his claim for 

appellate attorneys’ fees at the trial on the Trustees’ equitable bill of review, we affirm the 

judgment of the trial court. 

BACKGROUND

In the mid-1990s, grantors J.D. and Connie White created irrevocable trusts for their 

grandchildren and appointed their sons, Larry and David White, as trustees. In February 2006, 

the Trustees sought to terminate their minor children’s irrevocable trusts (the Trusts Case). Jon 
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West, the court-appointed guardian ad litem, represented the minor grandchildren—the inter 

vivos trusts’ beneficiaries. In September 2006, the trial court terminated the minors’ trusts and 

awarded West attorneys’ fees for his services at trial. A few days after the Trusts Case judgment 

was signed, West submitted an application for guardian ad litem fees to represent the minors on 

appeal. In November 2006, apparently without notice to the Trustees or an evidentiary hearing, 

the trial court signed an Order Granting Fees to West for $35,000.00, payable by the Trustees, 

for West’s services to prosecute an appeal. The Trustees later claimed not to have notice of this 

Order.

West filed a notice of appeal in December 2006 of the Trusts Case judgment. On 

November 14, 2007, this court reversed the trial court and reinstated the minors’ trusts.

1

Neither party complains of the trial court’s vacating of the original Order Granting Fees. 

The Trustees complain of the trial court’s subsequent award of fees to West in the bill of review 

proceedings. Generally, an appellate court reviews an award of guardian ad litem fees for an 

abuse of discretion. Holt Tex., Ltd. v. Hale, 144 S.W.3d 592, 594–95 (Tex. App.—San Antonio 

2004, no pet.) (citing Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999)); see generally W. 

 

Approximately one year after the Order was signed, West presented the trial court’s Order 

Granting Fees to the Trustees for payment. In response, the Trustees filed an equitable bill of 

review urging the trial court to vacate its Order Granting Fees and dismiss West’s application for 

compensation. West counterclaimed in the bill of review proceeding for the appellate attorneys’ 

fees. After the trial on the bill of review issues, the trial court vacated its original Order Granting 

Fees, but awarded West $27,405.00 for attorneys’ fees in appealing the Trusts Case pursuant to 

West’s counterclaim. The Trustees appeal the attorneys’ fees award. 

STANDARD OF REVIEW

 1 See In re White Intervivos Trusts, 248 S.W.3d 340 (Tex. App.—San Antonio 2007, no pet.). 
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Wendell Hall, Standards of Review in Texas, 38 ST. MARY’S L.J. 47, 226–27 (2006). We give 

appropriate deference to the trial court’s factual determinations, but we review questions of law 

de novo. Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex. App.—San Antonio 

1996, no writ) (citing Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992)). 

PROCEDURES CONTROLLING GUARDIAN AD LITEM COMPENSATION

A trial “court must appoint a guardian ad litem for a party represented by a next friend 

. . . [where] the next friend or guardian appears to the court to have an interest adverse to the 

party.” TEX. R. CIV. P. 173.2(a). The guardian ad litem may file an application for 

compensation with the court. TEX. R. CIV. P. 173.6(b); Land Rover U.K., Ltd. v. Hinojosa, 210 

S.W.3d 604, 607 (Tex. 2006) (citing TEX. R. CIV. P. 173.6(a)). The guardian ad litem bears the 

burden of proving his fees. Magna Donnelly Corp. v. DeLeon, 267 S.W.3d 108, 113 (Tex. 

App.—San Antonio 2008, no pet.) (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 

(Tex. 1991)). “Unless all parties agree to the application, the court must conduct an evidentiary 

hearing to determine the [fees award].” See TEX. R. CIV. P. 173.6(b); Magna Donnelly, 267 

S.W.3d at 112. 

EQUITABLE BILL OF REVIEW

The Trustees contend in their only issue that West’s claims for attorneys’ fees was barred 

by res judicata or claim preclusion because West should have sought his appellate attorney fees 

before the Trusts Case appeal became final. According to the Trustees, West’s original attempt 

to obtain appellate fees through a trial court order without ensuring the fees award was included 

in the final judgment precludes him from obtaining attorneys’ fees based on his counterclaim in 

the bill of review proceeding. In order to determine whether West’s claim was barred by res 
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judicata or claim preclusion, we must examine the effect of the bill of review proceeding on the 

request for fees.

“A bill of review is an independent equitable action brought by a party to a former action 

seeking to set aside a judgment, which is no longer appealable or subject to motion for new 

trial.” Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). The judgment may be set aside 

“for sufficient cause.” TEX. R. CIV. P. 329b(f); Baker, 582 S.W.2d at 406. The complainant files 

a petition “to invoke the equitable powers of the court.” Baker, 582 S.W.2d at 408; In re K.M.S., 

68 S.W.3d 61, 66 (Tex. App.—Dallas 2001), pet. denied, 91 S.W.3d 331 (Tex. 2002) (per 

curiam). Generally, the bill of review complainant must prove “‘(1) a meritorious defense to the 

cause of action alleged to support the judgment, (2) which he was prevented from making by the 

fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of 

his own.’” Baker, 582 S.W.2d at 406–07 (quoting Alexander v. Hagedorn, 148 Tex. 565, 568–

69, 226 S.W.2d 996, 998 (1950)). If the complainant establishes prima facie proof of a 

meritorious defense, the court conducts a trial at which the merits of the underlying issue are

effectively relitigated. Caldwell v. Barnes, 154 S.W.3d 93, 98 (Tex. 2004); Baker, 582 S.W.2d 

at 409. During the bill of review trial, “the parties . . . revert to their original status as plaintiff 

and defendant with the burden on the original plaintiff to prove his or her case.” Caldwell, 154 

S.W.3d at 98; accord Baker, 582 S.W.2d at 407–08. The bill of review defendant—the original 

plaintiff—must prove, and may offer evidence to support, “his original cause of action.” Meece 

v. Moerbe, 631 S.W.2d 729, 729 (Tex. 1982) (citing Baker, 582 S.W.2d at 409). At the end of 

the proceeding, if the fact-finder decides the complainant (the original defendant) has proved his 

case to set aside the judgment, the trial court may vacate the prior judgment. See Baker, 582 

S.W.2d at 409. And if the bill of review defendant (the plaintiff in the original proceeding) 
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proves his original case, the trial court may “substitute a new judgment which properly 

adjudicates the entire controversy.” In re J.B.A., 127 S.W.3d 850, 851 (Tex. App.—Fort Worth 

2004, no pet.); cf. Jordan v. Jordan, 907 S.W.2d 471, 472 (Tex. 1995) (per curiam) (citing 

Tesoro Petrol. v. Smith, 796 S.W.2d 705, 705 (Tex. 1990) (per curiam)).

APPELLATE ATTORNEYS’ FEES

Because West served as the guardian ad litem in the Trusts Case, upon proper 

application, West was entitled to be paid. See TEX. R. CIV. P. 173.6(b); Land Rover, 210 S.W.3d 

at 607; Youngstown Area Jewish Fed’n v. Dunleavy, 223 S.W.3d 604, 608 (Tex. App.—Dallas 

2007, no pet.) (“A guardian ad litem is entitled to a reasonable fee for his services . . . .”). West

submitted an application for compensation for appellate fees to the Trusts Case trial court. The 

Trustees assert they told West in a telephone conference that they objected to his fees request. If 

so, the Trusts Case trial court was required to hold an evidentiary hearing before awarding fees. 

See TEX. R. CIV. P. 173.6(b); Magna Donnelly, 267 S.W.3d at 112. After the Trusts Case 

concluded, the Trustees (1) timely filed a bill of review challenging the Order Granting Fees as 

void for lack of an evidentiary hearing, and (2) moved for summary judgment on the issue that 

West’s counterclaim for fees was barred by res judicata. The trial court denied the Trustees’ 

motion and ordered a trial on the Trustees’ bill of review issues: (1) the Order Granting Fees, and

(2) West’s attorneys’ fees claim. 

At trial, the Trustees bore the burden to prove, and the opportunity to submit evidence to 

show, the prior Order Granting Fees was improperly rendered. See Baker, 582 S.W.2d at 409; 

Meece, 631 S.W.2d at 729; see also Caldwell, 154 S.W.3d at 97–98. The Trustees submitted 

their evidence and the original Order was vacated. But in return, West bore the burden to 

prove—and submitted evidence to support—his claim for appellate attorneys’ fees. See 
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Caldwell, 154 S.W.3d at 98; Baker, 582 S.W.2d at 409 (burdening the bill of review defendant 

with “proving his original cause of action . . . [to ensure] the original, underlying cause of action 

is supported by the weight of the evidence”). Because the Trustees were granted a trial on the 

propriety of the Order Granting Fees and West’s fees claim, West could and did present evidence 

to support his claim for appellate attorneys’ fees. See Caldwell, 154 S.W.3d at 97–98; Baker, 

582 S.W.2d at 409.

CONCLUSION

Appellee Jon West’s claim for appellate attorneys’ fees was not barred by res judicata 

because West was entitled to present evidence at Appellants Larry and David White’s equitable 

bill of review trial in support of his original cause of action for guardian ad litem appellate 

attorneys’ fees. Accordingly, we affirm the judgment of the trial court.

Rebecca Simmons, Justice