NUMBER 13-09-00153-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

FORD MOTOR COMPANY, Appellant,

v.

RICHARD H. GARCIA, Appellee.

 

On appeal from the 93rd District Court

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Vela

Memorandum Opinion by Justice Benavides

This is an appeal from an order requiring appellant, Ford Motor Company ("Ford"),

to pay the guardian ad litem fees of appellee, Richard H. Garcia, in the amount of $28,260.

In this case, Garcia was appointed guardian ad litem, without objection, for the

incapacitated plaintiff Jesus Gonzalez in the underlying personal injury action. All the

claims in this case were settled by the parties and accepted in the final judgment of the

court below, leaving only the issue of compensation for the guardian ad litem on appeal.
2

At a hearing before the trial judge, Ford contended that the requested fees were not

reasonable under the Texas Rules of Civil Procedure, which provide that "[i]f a guardian

ad litem requests compensation, he or she . . . may be paid a reasonable hourly fee for

necessary services performed." See TEX. R. CIV. P. 173.6(a) (emphasis added). Over its

objection, Ford was ordered to pay the full amount of Garcia's fees.

Ford now argues on appeal that the trial court abused its discretion by ordering

payment of Garcia's fees because: (1) Garcia failed to show evidence that the tasks he

performed were relevant to the purpose for which he was appointed; (2) a substantial

portion of the billed tasks were performed by unidentified individuals on Garcia's staff, for

whom it is impossible to determine a reasonable hourly rate; and (3) Garcia did not present

any evidence to show the actual number of hours he or his staff spent to perform any of

the tasks charged on his invoice. We affirm.

I. BACKGROUND

Jesus Gonzalez suffered a brain injury when his son's Ford Truck rolled over on

Interstate Highway 45. His wife, Ramona, brought the underlying personal injury action

against Ford as his guardian, along with claims on her own behalf. The parties reached

a confidential settlement agreement on the underlying claims, but in order to finalize the

settlement, counsel for the plaintiffs filed an unopposed motion requesting that a guardian

ad litem be appointed to protect Jesus's interests. Garcia was appointed in this capacity.

Following this appointment, the trial court held a hearing to determine if the settlement was

in Jesus's best interest. The court found that it was in his best interest, but deferred

signing the judgment until Garcia's fees could be determined. The entire amount of time

that elapsed from Garcia's appointment to the court's final determination on the settlement

was 10 days.
3

In a hearing on February 18, 2009, the trial court heard evidence and considered

Garcia's compensation. At this hearing, Garcia provided the trial court with an invoice in

which he listed activities that he had performed in his role as guardian ad litem. Based on

that invoice and Garcia's testimony, the trial court ordered the full amount of Garcia's fees,

$28,260, to be included in the court costs charged to Ford. See TEX. R. CIV. P. 173.6(c)

("The Court may tax a guardian ad litem's compensation as costs of court."). Ford now

appeals to this Court. See TEX. R. CIV. P. 173.7(a) ("Any party and a guardian ad litem

may appeal an order awarding the guardian ad litem compensation.").

II. DISCUSSION

A. Standard of Review

We review an award of compensation to a guardian ad litem for an abuse of

discretion. See, e.g., Land Rover U.K., Ltd. v. Hinojosa, 210 S.W.3d 604, 608 (Tex. 2006)

(per curiam). An award of compensation "is in the trial court's sound discretion, and will

not be set aside absent evidence that the trial court clearly abused its discretion." Garcia

v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). The test for abuse of discretion does not

concern whether this Court would have found differently if placed in the position of the trial

court, but rather, whether the trial court's decision was "arbitrary, unreasonable, and

without reference to guiding principles." Mecedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d

664, 666 (Tex. 1996); see also W. Wendell Hall, Standards of Review in Texas, 38 ST.

MARY'S L.J.47, 60-63 (2006) (citing dozens of cases using an identical standard of review).

In making a factual determination, the trial court may base its decision on conflicting or

otherwise questionable evidence without abusing its discretion and only abuses its

discretion if there is no evidence whatsoever to support its decision. WCM Group, Inc. v.

Brown, 305 S.W.3d 222, 229 (Tex. App.–Corpus Christi 2009, pet. dism'd by agr.). If the
4

trial court made its determination based on some reasonable basis and used some guiding

principles, it necessarily acted within its permissible discretion, and we must affirm. See

id.

B. Applicable Law

In determining a reasonable fee for a guardian ad litem's services, a trial court

should employ the factors used to determine the reasonableness of attorney's fees. Land

Rover, 210 S.W.3d at 607; Garcia, 988 S.W.2d at 222. If these factors form the basis of

the trial court's decision, then it clearly was employing a set of standard guiding principles.

These factors include:

(1) the time and labor required, the novelty and difficulty of the questions

involved, and the skill required to perform the legal service properly;

(2) the likelihood . . . that the acceptance of the particular employment will

preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers

performing the services; and

(8) whether the fee is fixed or contingent on results obtained or

uncertainty of collection before the legal services have been rendered. 

Id. at 607. Moreover, in calculating the guardian ad litem fee, a simple formula can be

employed: "A reasonable hourly rate multiplied by the number of hours spent performing

necessary services within the guardian ad litem's role yields a reasonable fee." Id. at 608.

C. Ford's Issues on Appeal

Ford argues three distinct evidentiary insufficiencies that it claims require this Court
5

to find an abuse of discretion. In determining whether an abuse of discretion occurred in

each of these issues, it is imperative to note that this Court is instructed by the Supreme

Court of Texas to "draw upon the common knowledge of the justices and [our] experience

as lawyers and judges to view the matter in light of the evidence and the amount in

controversy." Id. at 607.

By its first issue, Ford contends that there was no evidence to show that the tasks

that Garcia performed were relevant to the purpose for which he was appointed. We

disagree. It is quite true that a guardian ad litem is appointed only in a limited role in all but

exceptional circumstances and is prevented from receiving compensation for the

performance of activities that fall outside that limited role. See generally TEX. R. CIV. P.

173. Ford argues that many of the documents that were listed as "Received and

Reviewed" on Garcia's invoice were beyond the scope of the purpose of his appointment,

and therefore, he should not be compensated for reviewing those documents. The trial

court, however, heard testimony specifically concerning the billing of many of these

documents, which almost uniformly led to an exchange similar to the following:

Q: Okay . . . . Why would you review that?

A: Because I received it, and I looked [at it] and read every document

that I received in connection with this case.

Q: Is that your understanding, that you're supposed to review every

document that was provided to you?

A: That's what I do as an attorney.

This testimony was enough for the trial court to find that it would be "negligent on the part

of any lawyer not to go back and look at the first original petition, the amended petitions,

[etc.] because by their very nature, they were amended for a reason." The testimony

convinced the court, "that it is part of the duty of an ad litem to go back and see that
6

perhaps his ward wasn't left out in any of these [documents]." Here, the trial court had at

least some reasonable basis to believe that all of the documents reviewed were relevant

to Garcia's appointment and that reviewing those documents was necessary to perform his

duty as a guardian ad litem. Therefore, we overrule Ford's first issue. 

As Ford notes in its briefs, the Supreme Court of Texas has reversed compensation

awards for guardians ad litem when their billed tasks fall outside the limited role prescribed

by Rule 173, but none of those instances involved the simple reviewing of documents, and

thus, we find the holdings in those cases to be inapplicable to the facts of this case. See

Land Rover, 210 S.W.3d at 609 (reversing the award because it included compensation

for clients that were refused because of the appointment, as well as for non-compensable

time billed for assisting the plaintiff's counsel); Brownsville-Valley Regional Medical Ctr. v.

Gamez, 894 S.W.2d 753, 757 (Tex. 1995) (reversing the award because it included

services provided post-judgement, after the appointment was effectually terminated).

By its second issue, Ford argues that the trial court abused its discretion by ordering

payment of fees for services that were performed by people other than Garcia himself

because these people were unidentified in the invoice, and there was no evidence to show

a reasonable hourly rate for anyone other than Garcia. Here again, we look for any

evidence on which the trial court could have reasonably based its order. The trial court

specifically referenced several of the reasonableness factors as a reason for its decision,

noting that it was taking into account, "the complexity of a case such as this," "a reduction

in [Garcia's] hourly billable rate of $500 down to 300," and the practical ability of making

a proper recommendation to the court "on a short timeline . . . [of] 10 days." Based on the

evidence heard on each of these factors, the court could have determined that the fee was

reasonable, despite the anonymity of the other individuals on Garcia's staff. Moreover, the
Garcia’s testimony at the hearing indicated that, before his appointment as guardian ad litem in this 1

case, he practiced law for nearly thirty-five years, sat as a county court at law judge for sixteen years, and

held other public positions including municipal court judge, county judge of Hidalgo County, Texas, mayor of

the City of Edinburg, Texas, and Commissioner of the Texas Adult Probation Commission. It also indicated

that Garcia had experience in ad litem proceedings, both in presiding as a judge, and serving as a guardian

and attorney ad litem in courts across South Texas.

7

court specifically heard evidence that in addition to Garcia, Isaac Tawil, Garcia's colleague

and legal counsel during the hearing, spent a substantial amount of time reviewing and

talking with Garcia about the case, and also noted other individuals, with whom the court

was familiar, that were known to have worked on the case. This testimony gave the trial

judge at least some indication as to the identity of the other attorneys for whom Garcia was

billing, and based on this testimony, the judge could have determined the fee was

reasonable. The court noted, "we have a reduction in an hourly billable rate of $500 down

to 300, which I can only surmise . . . is because there were other lawyers that perhaps

cannot command the $500 per hour fee because of the lack of experience [when

compared to Garcia]." We believe there was sufficient evidence to find that the rate 1

charged for other "unidentified" people was reasonable, and therefore, we overrule Ford's

second issue.

By its third issue, Ford argues that the trial court abused its discretion because there

was no evidence showing the amount of time that Garcia or his staff actually spent on each

of the sixty-five tasks that were listed on his invoice. The invoice itself does not list the time

expended on each task, nor the total amount of hours billed, but the trial court heard

testimony that we believe is sufficient to support its order. It heard testimony that the billing

rate was $300 per hour and that the total amount billed was $28,260. When divided out,

this means that Garcia billed for a total of 94.2 hours. When the total number of hours

billed is mathematically determinable in this way, the trial court need not hear direct
8

evidence of the total number of hours billed. Rather, because the trial court individually

considered both the total fee and each individual task listed on Garcia’s invoice, we can

assume that the trial court computed the total number of hours being billed and, thereafter,

referenced the invoice to determine if it was a reasonable number of hours to complete the

sixty-five tasks listed. Cf. Lesikar v. Moon, 237 S.W.3d 361, 376-77 (Tex. App.–Houston

[14th Dist.] 2007) (upholding an award of attorney’s fees despite the fact the attorney “was

not able break down in detail how much time was spent attending each hearing or

preparing each pleading”). After noting that the invoice clearly did not contain dates or

times, the trial court noted that "it could have been better documented, certainly. But to

go back and document would, of course, entail more hours, more fees in a case where the

fees are already being contested." Here, the trial court had some evidence to determine

the total number of hours billed, and some evidence to support the finding that the tasks

listed on the invoice required 94.2 hours to complete, and therefore, we overrule Ford's

third issue.

III. CONCLUSION

Finding no abuse of discretion by the trial court below, we affirm the order granting

the guardian ad litem, Garcia, compensation for his services in the amount of $28,260.00.

______________________________

GINA M. BENAVIDES,

Justice

Delivered and filed the

7th day of October, 2010.