REVERSED and REMANDED and Opinion Filed May 24, 2024 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00203-CV IN RE: ESTATE OF JOHNETTA PATRICE MORGAN, DECEASED, On Appeal from the Probate Court No. 3 Dallas County, Texas Trial Court Cause No. PR-15-02866-3 MEMORANDUM OPINION Before Justices Nowell, Goldstein, and Breedlove Opinion by Justice Goldstein This cause involves wrongful death and survival claims brought by the three surviving children and puta tive common law spouse of Patrice Morgan following her death in an automobile collision. Th e trial court approved a mediated settlement agreement and entered final judgment. In five issues, appellants Ulysses Brown and Eric Clark, as next friends of minor child ren J.N.M. and J.M., c ontend that the trial court erred in (1) failing to remove the guardian ad litem appointed to represent J.N.M. and J.M.; (2–4) approving the settleme nt agreement over their objections on various grounds; and (5) awarding attorney’s fees to the admini strator and guardian ad litem. Because we conclude that the guardian ad litem acted outside the scope of–2– her authority by approving the settlement agreement and signing on behalf of the minor children, we reverse and remand for further proceedings. BACKGROUND According to the pleadings in our r ecord, on June 15, 2015, Morgan was driving southbound on Interstate-35E in Dallas, when another driver, Jackqueline Hutton, veered her car into Morgan’s Lane and struck Morgan’s car. Morgan’s car then struck the center concrete barrier, veered back across three lanes of traffic, and came to a stop on the shoulder of the highway with her vehicle still partially in the right lane. Traffic in all three lanes came to a complete stop following the collision. Soon thereafter, Appellee Carl os Sanchez, driving a truc k for his employer, appellee Carruthers Landscape Maintenance, Inc. (Ca rruthers), approached the traffic jam. Sanchez attempted to bypass the traffic jam by veering onto the shoulder. Morgan, seeing the truck driving toward her, exite d her vehicle. She was unable to get to safety, however, and Sanchez’s truck stru ck Morgan, pinning her between the truck and her car, killing her. Morgan was survived by her parents, J ohnson Morgan, Jr. and Patty Andrade, and by her three children, J.N.M, J.M., and J.F., who were respectively ages 7, 5, and 1 at the time of Morgan’s death. On August 12, 2015, J.F.’s father, appellee Nicholas Ford, initiated a probate proceedi ng in the Probate Court No. 3 of Dallas County, Texas, by filing an application for dependent administration and an application for determination of heirship. Ford alleged that he and Morgan were–3– married at common law and that she died in testate. Ford requested that the probate court appoint him as the administrator of appellee the Estate of Johnetta Price Morgan (Estate) and appoint an attorney ad litem to represent any of Morgan’s unknown heirs. On October 8, 2015, the trial court appoint ed Liza Farrow-Gillespie, of the law firm Farrow-Gille spie Heath Wilmoth, LLP (F GHW), as the attorney ad litem for the unknown heirs. Fa rrow-Gillespie filed a genera l denial on behalf of the unknown heirs. On June 28, 2016, Brown, as next fri end of J.N.M., filed an answer in opposition to Ford’s applications for admi nistration and to dete rmine heirship. The next day, Brown filed a motion for appointment of a guardian ad litem. Brown alleged that Ford was in “ open conflict with all 3 minor heirs, including his own son.” Brown contended that “a ll children have an interest adverse to Nicholas Ford and each other.” Brown asserted that th e probate court “must appoint the same guardian ad litem for all similarly situated parties that are repr esented by a guardian or next friend[,]” see T EX
. R. C IV
. P. 173.2(b), and requested th at the probate court appoint the same guardian ad litem for a ll the minor children “to safeguard their interests because they are similarly situated in this case.” On June 29, 2016, the trial court granted the motion and appointed attorn ey Tomi J. Shehan as guardian ad litem for J.N.M., J.M., and J.F. On July 18, Sheh an filed an original answer and general denial on behalf of the children. On Decemb er 16, 2016, the trial court held a hearing–4– on Ford’s application for administratio n and entered an order appointing Liza Farrow-Gillespie as administrator of the Estate. On December 21, 2016, Andrade and Ford filed a lawsuit against Carruthers, Sanchez, and Hutton in the 116th District Court of Dallas County, Texas, asserting claims for negligence and gross negligen ce. On December 30, Brown intervened in that lawsuit as next friend of J.N.M. and asserted a wrongful-death claim against Carruthers and Sanchez. On March 30, 2017, Brown file d a motion in the probate court seeking to transfer the wrongful death and survival lawsuit to the probate court, which the probate court granted in an ag reed order on April 4. On June 9, 2017, Brown, as next friend of J.N. M., and Clark, as next frie nd of J.M., filed an amended petition in the probate court, asserting a wrongful-death claim against Carruthers, Sanchez, and Hutton. On September 18, 2018, Fa rrow-Gillespie filed a moti on to resign her position as administrator of the Estate, and anot her attorney at FG HW, Ellen Williamson, moved to be appointed successor administ rator. The trial court granted the motion and appointed Ellen Williamson successor administrator. On January 30, 2019, Williamson filed a supplemental plea in intervention on behalf of the Estate, asserting wrongful-death claims against Carru thers, Sanchez, a nd Hutton “on behalf of all known and unknown heirs or beneficiar ies entitled to make such claim.” The next day, Brown and Clark amended their pe tition as next friends of J.N.M. and J.M. to add claims for negligence, negligence per se, neglig ent entrustment, and gross–5– negligence against Carruthers and Sanch ez, and a claim for negligence against Hutton. The same day, Ford, individually and as next friend of J.F., and Andrade amended their petition to add similar claims. On June 28, 2019, the probate entered an order appointing Lisa Leffingwell as attorney ad litem for Morgan’s unknown heirs and known heirs whose whereabouts are unknown. The order mistaken ly stated that Shehan, not FarrowGillespie, was the then-current attorney ad litem and purported to remove her from that position. On July 23, the probate cour t entered an amended order removing Tomi Shehan as guardian ad litem for J.N.M., J.M., and J.F., and appointing attorney Leffingwell to that position. Leffingwell ma de an appearance as guardian ad litem on August 14 on behalf of the children. On November 4, the probate court, finding that “the Unknown Heirs of Estate of [Morga n] are in need of an Attorney Ad Litem to represent them in connection with th e Application to Determine Heirship,” entered an order appointing a ttorney Craig Gant as atto rney ad litem for the unknown heirs of the Estate. This order did not e xpressly remove any prior attorney ad litem. 1 On November 11, 2019, Gant filed an answ er and general denial on behalf of the unknown heirs. Throughout the course of the litigation, the parties attended four mediations. In early 2019, the parties settled the clai ms against Hutton for $35,000, and the

1 We glean from the trial court’s final judgment that the result of these orders was (1) to remove FarrowGillespie as attorney ad litem for the unknown heirs a nd replace her with Gant, and (2) to remove Shehan as guardian ad litem for the children and replace her with Leffingwell.–6– probate court ordered Hutton to deposit those funds into the courts’ registry. As to Carruthers and Sanchez, the first three mediations did not result in settlement. 2 The fourth and final mediation was requested by Carruthers in a written motion filed on November 5, 2019. The trial court grante d the motion and ordered the parties to mediate before Mediator Aric Stock on or before February 2, 2020. On January 9, 2020, Brown and Clark filed a motion to rec onsider the order, asserting that they were “opposed to any more mediations in general, and in particular are opposed to mediating with Aric Stock” due to “an exchange betwee n Mr. Stock and one of the Plaintiffs.” The fourth mediation was held on January 30, 2020. In attendance were Andrade, Ford, a Carruthers representa tive, Williamson, Leffingwell, and Gant. Neither Brown and Clark, as next frie nds, nor their legal counsel attended. Ultimately, the attendees signed an agr eement (Settlement Ag reement) purporting to settle the case for $1.1 m illion, to be divided among th e three children, Andrade, and Ford. Leffingwell, as guardian ad litem , signed on behalf of all three children. According to counsel for Brown and Clark, he was presented with the Settlement Agreement after the mediation, but he de clined to sign it on his clients’ behalf. On January 31, 2020, Carruthers and Sa nchez filed a motion to approve the Settlement Agreement. On February 3, Br own and Clark filed an objection to the motion to approve on grounds that they did not agree to the settlement. Brown and

2 It is unclear from the record whether the guardian ad litem or attorney ad litem attended the first three mediations.–7– Clark argued that Leffingwell, as guardia n ad litem for the children, (1) was not authorized to enter into a settlement agre ement on the children’s behalf; (2) failed to confer with Brown and Clark; (3) agreed to terms that granted money to a party who was not entitled to settlement funds; (4) agr eed to payment into the Estate of only attorney’s fees; and (5) failed to withdraw as guardian ad litem for J.N.M. and J.M. when the law required her withdrawal. Th e same day, Brown and Clark filed a motion to remove Leffingwell as guardian ad litem for J.N.M. and J.M. The next day, they filed affidavits di sclaiming any right to the Esta te and any interest in the wrongful-death claims asserted by their children. On February 13, Brown and Clark f iled: (1) an amended objection arguing that they never consented to the appointme nt of a guardian ad litem in connection with the wrongful-death litigation and that the guardian ad litem breached her role by entering into a settlement with Ford base d on his claims as an heir to the Estate; 3 (2) a response to Carruthers and Sanchez’ s motion to approve the settlement on the same grounds as their objection and amende d objection to the settlement; and (3) an objection to “the administrator’s attempt to settle [J.N.M and J.M.’s] share of their mother’s estate for an amount that would produce little or no benefit to the children.” That same day, Ford filed a sworn disclaim er of interest, in which he disclaimed

3 Ford signed the settlement agreement on behalf of himself individually and as next friend of J.F.–8– “any and all right, title and interest in and to any property which [he] otherwise might be entitled to receive from [the Estate] by will or intestacy.” On February 14, 2020, Carruthers and Sanchez filed a reply to Brown and Clark’s response to the motion to approv e the settlement. Carruthers and Sanchez argued that (1) the guardian ad litem was aut horized to settle on behalf of the children as no party requested, and th e trial court did not impose, a limitation on the guardian ad litem’s authority; (2) the trial court was compelled to approve the settlement pursuant to this Court’s decision in Grunewald v. Technibilt Corp. , 931 S.W.2d 593, 596 (Tex. App.—Dallas 1996, writ denied), and (3) that a conflict had arisen between Brown and Clark and their child ren due to Brown and Clark’s opposition to the settlement and attempts to have th e guardian ad litem removed. The same day, Williamson, filed on behalf of the Estate an adoption and joinder of Carruthers and Sanchez’s reply. On February 19, the trial court entere d (1) an order denying Brown and Clark’s motion to remove Leffingwell as guardian ad litem and (2) an order granting Carruthers and Sanchez’s motion to approve the settlement. 4 On February 17, 2020, Leffingwell filed a guardian ad litem’s report. 5 In the report, Leffingwell stated that she atte nded the January 30 me diation and believed the settlement to be in the best interest of the children. She noted that the liability

4 The trial court also entered an order granting th e administrator’s motion to approve the settlement, but no such motion appears in our record.
5 The record reflects no other report of the Guardian Ad Litem filed since the appointment and specifically no finding by a Guardian Ad Litem of a conflict between Brown and Clark and their minor children until an after the fact se ttlement assertion of motions filed.–9– issues in the case were “hotly disputed” and that the certainty of settlement “far outweigh[ed] the continued risks of litiga tion and ultimately trial.” She further advised that “conflicts appare nt to all continue to exist between the three minor children and their next friends, as eviden ced by the recent Motions in this case.” 6 The court scheduled a hearing for Februa ry 2, 2022, on Ford’s application to determine heirship. On Ja nuary 27, 2022, Brown and Cl ark filed a supplemental response to Carruthers and Sanchez’s moti on to enforce settlement, a supplemental response “to defendants’ attempt to settle the children’s cases without parental consent,” and a supplemental objection to a non-jury hearing on the issue of heirship. Brown and Clark argued that the settlement violated their constitutional rights as the parents of J.N.M and J.M. On February 1, Carruthers and Sanchez filed a motion to enter final judgment. At the hearing, Gant testified that Morgan had no other heirs besides the three children. Counsel for Ford stated that Ford was no longer seeking to be adjudicated an heir of Morgan. Th e trial court, having heard no objection to Ford’s intent to nonsuit his claim, determin ed that there were no fact disputes with respect to heirship.

6 On March 6, Brown and Clark filed a notice of app eal, seeking to challenge the trial court’s denial of their motion to remove the guardian ad litem. We dism issed that appeal for want of jurisdiction because no final judgment had been entered and there was no statutory authority for our exercise of jurisdiction over the interlocutory orders of the trial court. See In re Estate of Morgan , No. 05-20-00328-CV, 2020 WL 6156016, at *2 (Tex. App.—Dallas Oct. 21, 2020, no pet.) (mem. op.).–10– On February 4, 2022, the trial court en tered final judgment. Brown and Clark filed a motion for new trial, which was de nied by operation of law. This appeal followed. DISCUSSION Brown and Clark present five issues on appeal. In their first issue, Brown and Clark assert that the trial court erred in failing to remove th e guardian ad litem on the ground that no conflict existed between the children and their next friends. In their second through fourth issues, Brown a nd Clark argue that the trial court erred in approving the Settlement Agreement because they did not agree to it, the guardian ad litem exceeded her authority in signing it on behalf of the children, the guardian ad litem breached her fiduciary duty by set tling the children’s claim for far less than the value of the claim, and the settlement was not in the children’s best interest. In their fifth issue, Brown and Clark aver that the trial court erred in awarding attorney’s fees to the administrator and guardian ad litem on insufficient evidence.
I. S TANDARD OF R EVIEW We review a trial court’s appointmen t and removal of a guardian ad litem, approval of a settlement agreem ent, and award of attorney’s fees to a guardian ad litem and estate administrato r for abuse of discretion. See McGough v. First Court of Appeals , 842 S.W.2d 637, 640 (Tex. 1992) (r eviewing appointment of guardian ad litem for abuse of discretion); Davenport v. Garcia , 834 S.W.2d 4, 24 (Tex. 1992) (same for removal of guardian ad litem); Webre v. Black , 458 S.W.3d 113, 116 (Tex.–11– App.—Houston [1st Dist.] 2015, no pet.) (approval of settlement subject to abuse of discretion); Brownsville-Valley Reg’l Me d. Ctr., Inc. v. Gamez , 894 S.W.2d 753, 756 (Tex. 1995) (amount of fees to guardian ad litem reviewed for abuse of discretion); Barrett v. Parchman , 675 S.W.2d 289, 291 (Tex. App.—Dallas 1984, no writ) (amount of fees awarded to administrator of estate reviewed for a buse of discretion). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Jelinek v. Casas , 328 S.W.3d 526, 539 (Tex. 2010). A trial court has no discretion in determining what the law is or applying the law to the facts; thus , a clear failure by the trial court to analyze or apply the law correctly will c onstitute an abuse of discretion. Condom Sense, Inc. v. Alshalabi , 390 S.W.3d 734, 748 (Tex. App.—Dalla s 2012, no pet.). With respect to factual matters, a trial court abuses its discretion if, under the record, it reasonably could have reached only one decision and failed to do so. Id. A trial court does not abuse its discretion if there is some eviden ce of a substantive and probative character to support the decision. Id.
II. A PPLICABLE L AW From the inception the record reflects a conflation of the role of a guardian ad litem, the role of an attorney ad litem, and a wholesale failure to adhere to the procedural construct of each . The record, therefore, n ecessitates providing a limited framework of the applicable rules that gui de our analysis and inform our decision. A. Guardians Ad Litem–12– In Texas, minors “are considered to be under a legal disability and are therefore unable to sue or be su ed in their individual capacities.” Austin Nursing Ctr., Inc. v. Lovato , 171 S.W.3d 845, 849 (Tex. 2005). Mi nors also lack “the legal capacity to employ an attorney or anyone else to watch ove r her interests.” Byrd v. Woodruff , 891 S.W.2d 689, 704 (Tex. App.—Da llas 1994, writ dism’d). Thus, minors “are required to appear in court thr ough a legal guardian, a ‘next friend,’ or a guardian ad litem.” See Lovato , 171 S.W.3d at 849; see also T EX
. R. C IV
. P. 44 (governing next friends); T EX
. R. C IV
. P. 173 (governing guard ians ad litem). A minor’s next friend appears in court “in a re presentative capacity only, and the minor remains the real party in interest.” Byrd , 891 S.W.2d at 704. “Although the minor is the real plaintiff, the bringing of a suit by next friend does not change the minor’s status.” Id. “The minor is non sui juris and remains altogether under the court’s protection.” Id. In certain circumstances, a court may a ppoint a guardian ad litem to represent the child in a lawsuit. See Brownsville-Valley Reg’l Med. Ctr., Inc. v. Gamez , 894 S.W.2d 753, 756 (Tex. 1995) (“The term ‘ad litem’ means ‘for the suit.’”). “The appointment of a guardian ad litem implicat es two distinct interests: that of the parents in raising their minor children and that of the state to protect children.” In re KC Greenhouse Patio Apartments, LP , 445 S.W.3d 168, 174 (Tex. App.—Houston [1st Dist.] 2012, no pet.). “Parental author ity over decisions involving parents’ minor children derives from the liberty interest c ontained in the Fourteenth Amendment to–13– the United States Constitution.” Id. (citing Troxel v. Granville , 530 U.S. 57, 65 (2000), and Meyer v. Nebraska , 262 U.S. 390, 399 (1923)). Included in a parent’s right to make decisions for his or her child is the right to bring a lawsuit on the child’s behalf. See T EX
. F AM
. C ODE A NN
. § 151.001(a)(7). This exclusive right may not be exercised by a third party absent an appropriate court order. KC Greenhouse , 445 S.W.3d at 174; see also Patterson v. Planned Pare nthood of Houston & Se. Tex., Inc. , 971 S.W.2d 439, 446 (Tex. 1998) (Gonzalez, J., concurring) (“ Under Texas law . . . , only the parents or guardians of a mi nor may represent their legal interests.”). The law presumes that parents act in the best interest of their ch ildren, and their right to make decisions for their children is one of “constitutional dimension.” Troxel , 530 U.S. at 65, 68; see also Sw. Bell Tel. Co. v. Garza , 164 S.W.3d 607, 622 (Tex. 2004); KC Greenhouse , 445 S.W.3d at 174. The other interest is that of the stat e in protecting children from harm under the doctrine of parens patriae

. See KC Greenhouse , 445 S.W.3d at 175 (citing Farmers Group, Inc. v. Lubin , 222 S.W.3d 417, 423 (Tex. 2007)). “The State of Texas has the authority and dut y to guard the well being of children, even if so doing requires limiting the freedom and author ity of parents over their children.” Id. (quoting Alvarez v. Tex. Dep’t of Protective & Regulatory Servs. , No. 03-02-00008- CV, 2002 WL 31599225, at *1 (Tex. App.—A ustin Nov. 21, 2002, no pet.) (mem. op.)). Thus, in limited circumstances, a trial court, acting on behalf of the State as parens patriae , must “step in” and enter orders to protect the child’s well-being. See–14– id. One such circumstance is when a parent sues both individually and on behalf of his or her minor child and there is an appa rent conflict of interest between the two. Texas Rule of Civil Procedure 173 aut horizes a trial court to appoint a guardian ad litem only when such an appare nt adverse interest appears to exist. See
T EX
. R. C IV
. P. 173.2(a)(1) 7 ; Byrd , 891 S.W.2d at 705. Rule 173 thus “balances the interests of the parent and the state and id entifies the circumstance that creates [the trial court’s] responsibility[.]” KC Greenhouse , 445 S.W.3d at 174. The appointment of a guardian ad litem is necessary in such circumstances because a parent who has conflicting interests with his or her child “cannot be pres umed to act in the child’s best interest in the lawsuit.” Id. ; cf. Troxel , 530 U.S. at 68 (parents presumed to act in child’s best interest). Under Rule 173.3, a trial court may appoint a guard ian ad litem on a party’s motion or sua sponte and may do so only by written order. See T EX
. R. C IV
. P. 173.3(a), (b). Rule 173.4 defines the role and duties of a guardian ad litem. A guardian ad litem’s role is that of an officer of and advisor to the court. See T EX
. R. C IV
. P. 173.4(a); see also Land Rover U. K., Ltd. v. Hinojosa , 210 S.W.3d 604, 607 (Tex. 2006) (“A guardian ad litem is not an attorney for the child but an officer appointed by the court to assist in protecti ng the child’s interests when a conflict of interest arises between the child and the child’s guardian or next friend.”). Once

7 We focus on Chapter 173 as this was the basis for the initial motion to appoint a guardian ad litem. No party has sought the appointment of a guardian ad litem under another statute or other rule, and no party argues that a different statute or other rule applies in this case.–15– appointed, the guardian ad litem “must dete rmine and advise the court whether a party’s [i.e., a child’s] next fri end or guardian has an intere st adverse to the [child].”
T EX
. R. C IV
. P. 173.4(b). 8 Although the rule does not pr ovide a time limit for making that determination and advising the court, the Texas Supreme Court has stated that doing so is a guardian ad litem’s “initial role.” See Ford Motor Co. v. Stewart, Cox, & Hatcher, P.C. , 390 S.W.3d 294, 297 (Tex. 2013). If th e trial court finds that there is no conflict, or that there used to be a conflict but it has ceased to exist, the trial court should remove the guardian ad litem. Gamez , 894 S.W.2d at 755.
In KC Greenhouse , our sister court noted that “[t]he Texas S upreme Court has not defined what constitutes an adverse in terest under rule 173 but there are a number of reoccurring situations.” 445 S.W.3d at 168. Courts “most commonly apply the rule to adverse interests relating to the division of settlement proceeds.” Id. This court has made the same obser vation: “A conflict of inte rest between the minor and next friend often arises in a settlement si tuation where the parties vie for different portions of a fixed settlement amount.” Byrd , 891 S.W.2d at 705. To protect the child’s interest in that scenario, Rule 173.4 provides that a guardian ad litem may participate “in mediation or a similar pr oceeding to attempt to reach a settlement” and must participate “in any proceeding before the court whose purpose is to determine whether a [child]’s next friend or guardian has an interest adverse to the

8 The record is devoid of any evidence that either of the appointed guardians ad litem made this determination and so advised the trial court as part for their initial role upon appointment.–16– party, or whether a settlement of the [child]’s claim is in the [child]’s best interest.”
T EX
. R. C IV
. P. 173.4(d). However, “[w]hen an offe r has been made to settle the claim of a [child] represented by a next fri end or guardian, a guardian ad litem has the limited duty to determine and advise the court whether the settlement is in the [child]’s best interest.” T EX
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. P. 173.4(c). Besides these limited duties, a guardian ad litem is not generally authorized to participate in litigation. See Hinojosa , 210 S.W.3d 604, 607 (“As the personal representative of a minor, a gua rdian ad litem is required to participate in the case only to the extent necessary to protect th e minor’s interest and should not duplicate the work performed by the plaintiff’s atto rney.”). However, Rule 173.4(d) provides an exception: “A guardian ad litem . . . must not participate in disc overy, trial, or any other part of the litigation unless: (A) furthe r participation is necessary to protect the [child]’s interest that is adverse to th e next friend’s or gua rdian’s, and (B) the participation is directed by the court in a written order stating sufficient reasons.”
T EX
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. P. 173.4(d). Where a court order is silent as to the scope of the guardian ad litem’s duties, appellate courts must c onsider the context of the appointment to “determine the nature of the appoint ment and the duties of the ad litem.” Stewart, Cox, & Hatcher , 390 S.W.3d at 297.–17– B. Attorneys Ad Litem The trial court is required to, and in this case did, appoint an attorney ad litem “in a proceeding to declare heirship to re present the interests of heirs whose names or locations are unknown. “ T EX
. E STATES C ODE A NN . § 202.009(a). 9 The role of a guardian ad litem is often co nfused with that of an attorney ad litem. See, e.g. , Ford Motor Co. v. Garcia , 363 S.W.3d 573, 578 (Tex. 2012) (construing trial court order to appoint a guardian ad litem desp ite language in the order expressly appointing an “attorney ad litem”). An attorney ad litem “performs the same services as any other atto rney—giving advice, doing research, and conducting litigation.” City of Houston v. Woods , 138 S.W.3d 574, 582 (Tex. App.— Houston [14th Dist.] 2004, no pet.). Conversely, a guard ian ad litem’s duty “is not the duty of a plaintiff’s attorney genera lly representing the incapacitated person in regard to the cause of action.” Garcia , 363 S.W.3d at 577. Thus, unlike a guardian ad litem, who cannot participat e in litigation absent a court order, an attorney ad litem must participate in litigation, as that is the entire purpose of his or her appointment. 10 Among the powers of an attorney ad litem is the power to enter into

9 The trial court “may expand the appointment of the attorney ad litem appoi nted under Subsection (a) to include representation of an heir who is an in capacitated person on a finding that the appointment is necessary to protect the interests of the heir.” T EX
. E STATES C ODE A NN . § 202.009(b). The trial court did not expand the duties of the attorney ad litem in this matter to represent the known minor heirs.
10 Some statutes authorize, and some ma ndate, such attorney-ad-litem appointments. See, e.g. , T EX
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. § 107.012 (requiring the appointment of an attorney ad litem to represent the interests of a child in “a suit filed by a governmental entity requesti ng termination of the parent -child relationship or to be named conservator of a child”); id. § 107.021(a) (giving trial courts discretion whether to appoint an attorney ad litem “[i]n a suit in which the best interest s of a child are at issue, other than a suit filed by a–18– a settlement agreement on behalf of the client. See Wakefield v. Ayers , No. 01-14- 00648-CV, 2016 WL 4536454, at *4 (Tex. A pp.—Houston [1st Dist.] Aug. 30, 2016, no pet.) (enforcing settle ment agreement signed by a ttorney but not client because attorney’s acts within the scope of employment are considered the client’s acts) (citing Gavenda v. Strata Energy, Inc. , 705 S.W.2d 690, 693 (Tex. 1986)).
III. A NALYSIS A. Removal of the Guardian Ad Litem In their first issue, Brown and Clark cont end that the trial court erred in failing to remove Leffingwell as guardian ad litem for J.N.M. and J.M. Appellees respond that Brown and Clark waived their right to challenge the appoint ment and have no standing to complain about it on appeal. As a threshold issue, we reject appell ees’ argument that Brown and Clark were required to bring a mandamus proceeding to challenge the trial court’s refusal to remove the guardian ad litem. Ru le 173.7 provides that “Any party may seek mandamus review of an orde r appointing a guardian ad lite m or directing a guardian ad litem’s participation in the litigation.” T EX
. R. C IV
. P. 173.7(a) (emphasis added). The rule does not say that a party “must” file a mandamus proceeding or that the availability of mandamus re lief precludes an appeal. See id. We conclude Brown and

governmental entity requesting termina tion of the parent-child relationship or appointment of the entity as conservator of the child”).–19– Clark may challenge the trial court’s denial of their mo tion to remove the guardian ad litem on direct appeal. We now tu rn to the merits of that issue.
In Stewart, Cox, & Hatcher , on which both parties rely, the supreme court considered a similar issue. In that case, minor child I.F. was injured and her father killed in an automobile accident. Stewart, Cox, & Hatcher , 390 S.W.3d at 296. I.F.’s mother, Richardson, sued Br idgestone/Firestone and Ford Motor Company as I.F.’s next friend in Orange County. Id. Bridgestone/Firestone se ttled with Richardson in 2003, and the Orange County judge (the “regular judge” under T EX
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. 11) approved the settlement. The regular judge also found that a guardian ad litem was unnecessary because there was no c onflict of interest between Richardson and I.F. See id. In 2009, Ford settled with Richar dson, and the parties submitted the settlement agreement to the pretrial judge 11 for approval. The pretrial judge sua sponte appointed a guardian ad litem to repr esent I.F.’s interests in the settlement. Id. Richardson attested by affidavit that her interests did not conflict with I.F.’s because she had no claims in the suit or financial interest in the settlement. See id. The guardian ad litem responded that he did not have enough information “upon which to determine and advise” the pretri al judge whether Richardson’s interests were adverse to I.F.’s. Id. Richardson asked the pretrial judge to reconsider the appointment and, when the pretrial judge refused, sought mandamus review. Id.

11 The suit was assigned to a Montgomery County district judge under Rule 11 of the Rules of Judicial Administration. See id . (citing T EX
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. A DMIN . 11 (providing for the assignment of a “pretrial judge” in cases that involve “common material issues of fact and law”)).–20– In the court of appeals, Richardson ar gued that the pretrial judge erred in appointing a guardian ad litem because, as sh e attested in her affidavit, she had no claim for damages. In re Richardson , No. 09-10-00032-CV, 2010 WL 877558, at *3 (Tex. App.—Beaumont Mar. 11, 2010, no pet.). The court of appeals rejected this argument, holding that “[t]he lack of an as serted claim does not mean that a guardian ad litem appointment is prohibited.” Id. The court explained that “[e]ven if a claim has not been asserted, a parent’s responsib ilities, impacted by an injury to a child, continue.” Id. (citing T EX
. F AM
. C ODE A NN
. § 151.001). Additionally, the court noted that the pretrial judge’s basis for appoint ing a guardian ad litem appeared to stem from Richardson and her attorney’s c onduct regarding the prior settlement agreement with Bridgestone/Firestone. Id. Although Richardson denied the allegation and argued that it did not create a conflict even if it were true, the court of appeals held that the pretrial judge did not abuse his discretion. Id. The court explained that even if a next friend’s acts “may not be sufficient to justify removal of a next friend” and “may be shown not to reflect an actual adverse interest, the language of Rule 173 authorizes the appoint ment [of a guardian ad litem] when the next friend ‘appears to the court to have an interest adverse to the party.’” Id. (quoting T EX
. R. C IV
. P. 173.2(a)(1)). The year after the Richardson court denied mandamus relie f, the case returned to the court on direct appeal. Stewart, Cox & Hatcher, P.C. v. Ford Motor Co. , 350 S.W.3d 369, 377 (Tex. App.—Beaumont 2011), review granted, judgment rev’d ,–21– 390 S.W.3d 294 (Tex. 2013). In its cross-a ppeal, Ford Motor Company complained that the pretrial judge erred in appoint ing the guardian ad lite m and taxing the ad litem’s costs against Ford. Id. at 376–77. As it did in Richardson , the court of appeals again held that the pretrial j udge did not abuse his discretion. Id. at 177. The court reasoned that although Richardson attested to having no claims of her own, there was an “apparent” conflict between her and I. F. because I.F. incurred medical expenses and “a child’s pare nts are legally obligated to pay their child’s medical expenses.” Id. (citing T EX
. F AM
. C ODE A NN
. § 151.001(a)(3)). The supreme court rejected this conclusion. Stewart, Cox, & Hatcher, P.C. , 390 S.W.3d at 298. The Court held that “a parent’s obligation to provide her child with medical care, standing alone, does not create a conflic t of interest within the confines of Rule 173.” Id. The Court also rejected the ad litem’s argument, made in the trial court and advanced in both the ma ndamus proceeding and direct appeal, that circumstances surrounding the prior se ttlement with Bridgestone/Firestone authorized the pretrial judge to appoi nt the ad litem. The Court explained: As to the initial conflict-of-interest determination, Richardson testified in her affidavit that she was not i nvolved in the accident, she was not asserting any claims in this lawsu it on her own behalf, she was not an heir or representative of the estate of I.F.’s father, she had no financial interest in that estate’s recovery , and she understood and agreed that she had no right to the proceeds of any settlement of the litigation. In [the guardian ad litem’s] response, he primarily took issue with the regular judge’s prior approval of the Firestone settlement in 2003 and the amount of attorney’s fees awarde d pursuant to the contingency fee agreement in that settlement. Howeve r, those issues have no bearing on–22– the guardian ad litem’s initial role in determining whether Richardson’s interests were adverse to I.F.’s in the context of the Ford settlement. Stewart, Cox, & Hatcher, P.C. , 390 S.W.3d at 298. The Court concluded that the pretrial judge abused his discretion in failing to remove the guardian ad litem. Here, Brown, as next frie nd of J.M., requested the appointment of a guardian ad litem pursuant to Texas Rule of Civil Procedure 173, relative to Ford’s filing of the heirship and an administration applica tion. The identified adverse interest was that of Ford as against the three minor heirs, all similarly situated. The Court appointed a guardian ad litem for all three minor children. Rather than perform the mandated conflict analysis, see T EX
. R. C IV
. P. 173.4(b), the guardian ad litem filed a general denial on behalf of the three mi nor children, erroneously assuming the role of an attorney. See T EX
. R. C IV
. P. 173.4(d)(3). 12 In fact, at no time until after the Settlement Agreement did any guardian ad litem advise th e court of a conflict or adverse interest as between Clark and Brow n and the minor children. Further, there was no specific order delineating the respons ibilities of the guardian ad litem as to the probate proceedings, no expansion of the guardian ad litem’s responsibilities upon the transfer of the personal injury lawsu it, and no evidence in the record as to why the next friends were displaced for pu rposes of the mediated settlement when the guardian ad litem appeared not to have pa rticipated in the prior three mediations.

12 The attorney ad litem, appointed to represent the unknown heirs appropr iately filed a general denial.–23– Brown and Clark filed their motion to remove Leffingwe ll as guardian ad litem after Carruthers and Sa nchez filed their motion to enforce the Settlement Agreement that resulted from the fourth me diation in the personal injury portion of the proceedings. The only evidence before th e trial court supporting the existence of a conflict of interest betw een Brown and J.N.M. or Clark and J.M. was in the guardian ad litem’s post-settlement report f iled on February 17, 2020. In the report, Leffingwell noted that it was Brown who ha d initially requested the appointment of a guardian ad litem on the ground that the ch ildren had an adverse interest to Ford and “each other.” Leffingwell a dvised the trial court that “conflicts apparent to all continue to exist between the three mi nor children and their next friends, as evidenced by the recent Motions 13 in this case.” We discern Leffingwell’s argument to be that by opposing the settlement, whic h Leffingwell believed to be in the best interest of the children, Brown and Clark were taking a position adverse to J.N.M. and J.M. Sanchez and Carruth ers reiterated the same argument in their response to Brown and Clark’s motion: [T]he Next Friends and their attorney . . . have a financia l interest in the amount and division of the settlement proceeds. This is evidenced by Plaintiffs’ strong opposition to a settle ment distributing a quarter of one million dollars each to both [J.M.] and [J.N.M.]. Plaintiffs’ [ sic ] assert in their Response that “the prop osed settlement of Ms. Morgan’s estate’s claim would not produce but a pittance of money for Ms. Morgan’s children and holds much more value if the case were it to be submitted to a jury.” Plaintiffs would prefer to subject the Minors to the

13 The “recent Motions” were not identified, but th e record reflects that the only motions filed immediately before Leffingwell’s report were in opposition to her appointment and to the settlement agreement.–24– risk of a take nothing judgment at a ju ry trial rather than agree to each minor receiving a quarter of one million dollars. We reject the assertions made by Leffing well, Sanchez and Carru thers. A conflict might arise if Brown and Clark’s refusal to accept the settlement was because they wanted more for themselves and less for their children. See Byrd , 891 S.W.2d at 705 (“A conflict of interest between the minor a nd next friend often ar ises in a settlement situation where the parties vi e for different portions of a fixed settlement amount.”). But the record is replete with evidence th at Brown and Clark wanted more for their children and nothing for themselves. Brown a nd Clark each filed affidavits attesting that they (1) were the fathers of J.N.M. a nd J.M. respectively; (2) were not heirs to or representatives of the Estate; (3) were not involved in the incident resulting in, or asserting any claims arising from, Morgan’s death; (4) had no fi nancial interest in the Estate’s recovery; and (5) were not entitled to any proceed s from any settlement in the litigation. Brown and Clark also cont ested Ford’s claim of heirship and, in their response to Carruthers and Sanchez’ s motion to enforce the Settlement, argued that the settlement “granted money to a party that is not entitled to any.” 14 While it is true that a party who refu ses to accept a settle ment offer risks a take-nothing judgment after a trial on the mer its, it is also true that the refusal may result in a larger recovery. Reasonable mi nds may differ as to whether Brown and Clark’s opposition to the settleme nt was in their children’s best interest, but that is

14 We do not opine on whether these arguments have a ny merit. The trial court will be free to resolve them on remand.–25– not the question before us. See KC Greenhouse , 445 S.W.3d at 179 (issue of whether mother’s refusal to prosecu te her daughter’s claim wa s “not determinative in deciding whether to appoint a guardian ad litem.”). We must decide whether Brown and Clark’s litigation strategy was sufficient to create a conflict of interest with their respective children. We concl ude that seeking a larger recovery than the amount in a settlement offer is not evidence of an a dverse interest for the purposes of Rule 173. We agree with our sister court that “‘[e ]ven if the guardian ad litem were a more effective representative for the ward, the ri ghts of parents, next friends and guardians cannot be set aside’ through rule 173.” Id. (quoting Davenport v. Garcia , 834 S.W.2d 4, 24 (Tex. 1992) (Hech t, J., concurring)). We now turn to Brown and Clark’s asser tion that the trial court should have removed the ad litem before the case was mediated to se ttlement. We decline to so hold. A trial court should remove a guardian ad litem when “the ev idence presented” fails to confirm the existence of a conflict of interest. Stewart, Cox, and Hatcher , 390 S.W.3d at 297. Brown requested the appointment during the initial probate proceedings; there was no intervening revi ew or determination by the court, the guardian ad litem, or any party of a pur ported conflict, and no party sought the guardian ad litem’s removal befo re the fourth mediation. Nothing in the text of Rule 173 suggests that a trial court must act sua sponte in removing an ad litem. Here, the record is silent as to whet her there was any action by the guardian ad litem that rose to the level of displacement of the next fri end or retained legal counsel prior to the–26– fourth mediation. The trial court was not presented with any evidence of a conflict until Brown and Clark filed their motion to remove the ad litem, which was after the fourth mediation. We therefore decline to hold that the trial court abused its discretion by failing to remove the guardian ad litem before the fourth mediation. We conclude that the trial court e rred in denying Brown and Clark’s motion to remove the guardian ad litem. We sust ain Brown and Clark’s first issue only to that extent. B. Approval of Settlement Agreem ent and Entry of Judgment In their second through fourth issues, Brown and Clark assert that the trial court erred in approving the Settlement Agreement and entering judgment thereon because: (Issue 2) Leffingwell exceeded th e authority given her in the order appointing her as guardian ad litem; (Issue 3) Leffingwell breached her fiduciary duty to the children in recommending the Settlement Agreement; and (Issue 4) the Settlement Agreement was not in the childre n’s best interest. Because our resolution of Issue 2 is dispositive, we do not reach Issues 3 and 4. 1. Whether the Guardian ad Litem Exceeded her Authority in Signing the Settlement Agreement Brown and Clark argue that Leffingwell exceeded the scope of her authority when she “supplanted the rights of the minor s’ fathers” and “act ed as the minors’ representative or as their ‘attorney ad litem’” by signing the Settlement Agreement on their children’s behalf. We agree. U nder Rule 173, a guard ian ad litem “may participate in mediation or a similar pro ceeding to attempt to reach a settlement.”–27– T EX
. R. C IV
. P. 173.4(d)(1). Additionally, “[w]hen an offer has been made to settle the claim of a party represented by a next friend or guardian, a guardian ad litem has the limited duty to determine and advise the cour t whether the settlement is in the party’s best interest.” T EX
. R. C IV
. P. 173.4(c). The trial court may expand the guardian ad litem’s role in litigation, but only when “necessary to protect [the child’s] interest that is adverse to the next friend’s or guardian’s” and must do so “in a written order stating sufficient reasons.” T EX
. R. C IV
. P. 173.4(d)(3). Here, Leffingwell did not merely participate in mediation and recommend approving the Settlement Agreement to the tr ial court, she purported to bind J.N.M. and J.M. to the Settlement Agreement as their legal representative. We must therefore consider whether any court order gave her this authority. See id. Where a court order is silent as to the scope of th e guardian ad litem’s dutie s, appellate courts must consider the context of the appoint ment to “determine the nature of the appointment and the duties of the ad litem.” Stewart, Cox, & Hatcher , 390 S.W.3d at 297. The trial court’s first orde r appointing a guardian ad litem was entered on June 29, 2016. The order stated that the trial court “considered the foregoing Motion for Appointment of Guardian Ad Litem on behalf of all the children.” The referenced motion was filed by Brown the day before th e order. In the motion, Brown claimed that a guardian ad litem was needed because Ford, who sought to be named heir and administrator of Morgan’s estate, was “in an open conflict of intere st with all 3 minor–28– heirs, including his own son.” The order granted the motion and appointed Shehan as the guardian ad litem for all three childre n. The order was silent on the scope of Shehan’s authority, any duties assigned to her, and any deadlines she had with respect to those duties. Our record contai ns no filings by Shehan other than an original answer on July 18, 2016. 15 Over three years later, on July 23, 2019, the trial court entered an order removing Shehan as guardian ad litem a nd replacing her with Leffingwell. By this point, the trial cour t had transferred in the wrongful-death and survival claims by Ford, Andrade, Br own, and Clark against Carruthers and Sanchez. However, the record contains no request by any party to remove Shehan, appoint a replacement for her, or broa den the scope of the guardian ad litem’s authority. 16 On August 15, 2019, Leffingwell f iled an entry of appearance as guardian ad litem. Neither the June 29, 2016 order nor the July 23, 2019 order authorized the guardian ad litem to sign the Settlement Ag reement on behalf of J.M or J.N.M. The final judgment found that Leffingwell, the guardian ad litem, was “legally empowered and authorized to sign, on behalf of the Minor Plaintiffs . . . the Release and Settlement Agreement[.]” Appellees a dvance several argumen ts in support of

15 The trial court’s docket sheet, filed as part of our record, reveals that Shehan’s only other filing in the trial court was a vacation letter on June 19, 2017.
16 The record before us is silent on the nature and scope of Shehan’s participation prior to her replacement, as there is no filing of a guardian ad litem re port or indication of the level of participation, if any, by Shehan in the prior mediations.–29– the guardian ad litem’s authority to bind the minor plaintiffs. We consider each argument in turn. 2. Whether the Guardian ad Litem Displaced Brown and Clark as Next Friends Appellees first argue that, once appoint ed, Leffingwell “replaced” the next friends and had the “sole authority to enter into settlement agreements” on the children’s behalf. In s upport, appellees cite In re Richardson , 2010 WL 877558, at *2, and Moses v. Wal-Mart Stores Tex. LLC , No. 4:20-CV-00882, 2022 WL 420537, at *1 (S.D. Tex. Jan. 27, 2022 ). Appellees’ reliance on th ese cases is misplaced.

a. Pre-2005 Rule 173 Prior to 2005, when Rule 173 was am ended, a guardian ad litem had broad authority from the moment he or she was appointed. Critically, under the preamendment version of Rule 173, (1) the mere appearance of a conflict between a next friend and a child not only authori zed, but mandated, the appointment of a guardian ad litem; and (2) once appointed, th e guardian ad litem “displaced” the next friend, meaning the ad litem took away th e decision-making authority of the next friend. See Newman v. King , 433 S.W.2d 420, 421 (Tex. 1968) (holding, in context of expounding upon the rules and statutes authorizing a name change application, that “displacement of the next friend wi th a court appointed guardian ad litem, although mandatory when authorized, is au thorized only when it ‘appears to the court’ that the next friend has an interest ‘adverse to the minor’”); see also Grunewald v. Technibilt Corp. , 931 S.W.2d 593, 595 (Tex. App.—Dallas 1996, writ–30– denied) (“Once appointed, the guardian ad litem displaces the next friend and becomes the personal representative of th e individual who is subject to a legal disability.”). This pre-2005 amendment framework had “significant consequences.” See Byrd , 891 S.W.2d at 706 n.9. In Byrd , for example, we noted that such consequences could include a trial court accepting a “g uardian ad litem’s recommendation to settle [an] infant’s claim over counsel’s and parent’s wishes to the contrary.” Id. (citing Roberts v. Parrish , 567 S.W.2d 581, 584 (Tex. App.—W aco 1978, writ ref’d n.r.e.)). We went further in Grunewald , holding that a child’s parents had no standing to appeal a trial court’s approval of a settle ment agreement because the duly appointed guardian ad litem who recommended the settle ment had “displaced” the parents and had the sole authority over the child’s claims in the lawsuit, including the right of appeal. Grunewald , 931 S.W.2d at 596. b. Post-2005 Amendment Rule 173 The 2005 amendment to Rule 173 retain ed the first part of the rule. See T EX
. R. C IV
. P. 173.2(a) (“The court must appoint a guardian ad litem for a party represented by a next friend or guardian only if : (1) the next friend or guardian
appears to the court to have an interest advers e to the party, or (2) the parties agree.” (emphasis added)). Ho wever, under the current versi on of Rule 173, a guardian ad litem does not enjoy broad authority upon appointment. Rather, the guardian ad litem’s “initial” duty upon appointment is to advise the court whether there is a–31– conflict between an incapacitated pa rty and his or her next friend. Stewart, Cox, & Hatcher , 390 S.W.3d at 297 (citing T EX
. R. C IV
. P. 173.4(b)). Rule 173 contemplates that the trial court will then hear evidence about whether th e conflict exists to warrant continued participation by the guardian ad litem. See id. (“The trial court should remove the guardian ad litem when the evidence presented fails to confirm that a conflict of interest exists.” (emphasis a dded)). After that, the guardian ad litem may serve a broader role, such as “participat[ing] in discovery, trial, or any other part of the litigation,” but only when necessary to prot ect the child’s interest and, even then, only when “directed by the court in a wr itten order stating sufficient reasons.” See
T EX
. R. C IV
. P. 173.4(d)(3). Thus, under the post-amendment version of Rule 173, a guardian ad litem does not automatically “displace” a next fri end. The comments to Rule 173 make this clear: 3. The rule contemplates that a guardian ad litem will be appointed when a party’s next friend or guard ian appears to have an interest adverse to the party because of the division of settlement proceeds. In those situations, the responsibility of the guardian ad lite m as prescribed by the rule is very limited, and no r eason exists for the guardian ad litem to participate in the conduct of th e litigation in any other way or to review the discovery or the litigati on file except to the limited extent that it may bear on the division of settlement proceeds. A guardian ad litem may, of course, choose to revi ew the file or attend proceedings when it is unnecessary, but the guardian ad litem may not be compensated for unnecessary expenses or services. 4. Only in extraordinary circumstan ces does the rule contemplate that a guardian ad litem will have a broader role. Even then, the role is limited to determining whether a party’s next friend or guardian has an interest adverse to the party that should be considered by the court under Rule–32– 44. In no event may a guardian ad litem supervise or supplant the next friend or undertake to represent th e party while serving as guardian ad litem. T EX
. R. C IV
. P. 173, cmts. 3, 4 (emphasis added) (int ernal citations omitted). For the purposes of settlement, Rule 173 limits th e guardian ad litem to attending mediation and, if a settlement offer is made, advising the court whethe r it is in the child’s best interest. See T EX
. R. C IV
. P. 173.4(c), (d). But the guardian ad litem cannot bind a child to a settlement agreement absent a court order expressly authorizing the guardian ad litem to do so. Here, the order appointing Shehan and the order replacing Shehan with Leffingwell are silent as to the guardian ad litem’s authority. The record does not reflect that the trial court heard or received evidence about whether a conflict exists as to Clark and Brown in the heirship pr oceeding or the personal injury lawsuit to warrant enhanced participati on by the guardian ad litem or displacement of the next friends. Therefore, the guardian ad litem di d not displace Brown and Clark and could not bind J.N.M. and J.M. to the Settle ment Agreement. To the extent Richardson , Moses , or any pre-2005 cases may call for a diffe rent result, on the record before us, and the deficiencies noted, we decline to follow them as either distinguishable or inapplicable as herein discussed. 3. Whether Brown and Clark Waived their Right to Complain About the Guardian ad Litem’s Involvement Appellees next argue that Brown and Cl ark waived their right to challenge Leffingwell’s appointment and involvement in the fourth mediation. Appellees–33– argue that it was Brown who requested a guardian ad litem and he cannot now be heard to complain about the ad litem’s involvement. See T EX
. R. C IV
. P. 173.2(a)(2) (authorizing and requiring appointment of a guardian ad litem if “t he parties agree”). Appellees further contend that the Settleme nt Agreement is valid under Rule 11, and Brown and Clark’s withdrawal of consen t does not “negate the validity of the agreement.” See Gaskin v. Gaskin , No. 2-06-039-CV, 2006 WL 2507319, at *4 (Tex. App.—Fort Worth Aug. 31, 2006, pet. denied) (mem. op.). We reject these arguments. While it is true that Brown was the party who sought the appointment of a guardian ad lit em, that fact does not prevent Brown and Clark from objecting that the ad litem ex ceeded her authority. Brown initially requested an ad litem to reso lve an apparent conflict of interest between Ford and the minor children during the heirship proceedings. Without the mandated review by the guardian ad litem affirming an advers e interest of Brown and Clark as against their minor children, a hearing confirming th e adverse interest, or an order enhancing the role of the guardian ad litem beyond that of an officer and advisor to the court in an heirship proceeding, the scope of aut hority is subject to challenge. There is a complete dearth of evidence, and the parties cite us to none, as to any agreement beyond the heirship proceeding, or the natu re and scope of any prior activity by the guardian ad litem rising to the level of disp lacing the next friends and retained legal counsel. We conclude on this record that Brown and Clark did not waive their right–34– to complain that the guardian ad litem pur ported to bind their minor children to a settlement agreement that they did not agree to. Appellees misplace their reliance on Gaskin. The Gaskin court considered a husband’s claim that a medi ated settlement agreement in a divorce proceeding was a bargained-for exchange. Gaskin , 2006 WL 2507319, at *4. Q uoting an earlier case, the court explained: Ordinarily, settlement agreements arising from mediation are not binding where one party withdraws c onsent to the agreement, unless the other party successfully sues to enforce the settlement agreement as a contract that complies with rule 11 of the Texas Rules of Civil Procedure. Unilateral withdrawal of consent does not, however, negate the enforceability of a mediated settlement agreement in a divorce proceeding, and a separate suit for enforcement of a contract is not necessary. Rather, section 6.602 creat es a procedural short cut for the enforcement of mediated settlement agreements in divorce cases. Thus, a mediated settlement agreement that meets the requirements of section 6.602(b) is binding, and a party is entitled to judgment on the agreement notwithstanding rule 11 or another rule of law. Id. (emphasis added). Appelle es rely on the italicized portion of the quote but misapprehend its import on the facts before us, premising the entirety of the argument upon the erroneous assertion that “Leffingwell had the exclusive authority [to negotiate and sign the settlement ] on behalf of the Minors.” The Gaskin court ultimately held that there was nothing in the record that “indicate[d] that the [settlement agreement] was not ente red into voluntarily and knowingly.” Id. The record here, however, is clear and unequivo cal that neither Brown nor Clark entered into the settlement voluntarily or knowingly. Brown and Clark objected to the fourth–35– mediation and the resulting Settlement Agreement and did not execute the Settlement Agreement as next friends. This record does not support the guardian ad litem’s purported displacement of the next friends; therefore Gaskin is inapposite. For these reasons, we conclude that Brown and Clark did not waive their right to complain about Leffingwell’s authority to enter into the Settlement Agreement on their children’s behalf. 4. Whether Brown and Clark Have Standing to Challenge the Settlement Agreement on Appeal Appellees next argue that Brown and Cl ark lacked standing to challenge the Settlement Agreement. They re ly on this Court’s opinion in Grunewald , 931 S.W.2d at 596. As we explained above, Grunewald was decided before Rule 173 was amended. Under the modern version of Rule 173, a guardian ad litem does not displace a next friend and cannot participat e in litigation beyond the limitations of the rule unless expressly ordered by th e trial court in a written order. See T EX
. R. C IV
. P. 173.4(c), (d). There is no order; therefore Brow n and Clark are secure in their roles as next friends with standing to challenge the Se ttlement Agreement. 5. Whether Rule 173.7(c) Preclu des Brown and Clark from Challenging the Settlement Agreement or Judgment In a related argument, appellees asse rt that Rule 173.7(c) precludes Brown and Clark from challenging the Settlement Agreement and the judgment entered thereon. We acknowledge that “[a]ppe llate proceedings to review an order pertaining to a guardian ad litem do not affect the finality of a settlement or–36– judgment.” T EX
. R. C IV
. P. 173.7(c). However, the gravam en of Brown and Clark’s argument is that final judgment was ente red based on a settleme nt agreement to which they did not consent. Under Texas law, settlement agreements are contracts and thus governed by principles of contract law. Angel v. Tauch , 642 S.W.3d 481, 488 (Tex. 2022). It is axiomatic that in order to be bound by a contract, one must be a party to it. See Amedisys, Inc. v. Kingw ood Home Health Care, LLC , 437 S.W.3d 507, 513 (Tex. 2014) (explaining that courts cannot “bind[] parties to contracts to which they never agreed”). Absent proper authority, a third party cannot bind a person to a settlement agreement. See First Tr. Corp. TTEE FBO v. Edwards , 172 S.W.3d 230, 239 (Tex. App.—Dallas 2005, pet. deni ed) (“[A] person is not boun d by a release executed by a third party unless he authorized the third party to act for him.”); Suarez v. Jordan , 35 S.W.3d 268, 272 (Tex. Ap p.—Houston [14th Dist.] 2000, no pet.) (concluding that trial court erred in entering fina l judgment on settlement agreement where signatory son had no actual or apparent authority to sign settlement agreement on behalf of father who was party to the suit). The trial court’s order approving the Settlement Agreement and final judgment purport to bind J.N.M. and J.M. to a contract that was signed by neither their next friends nor their attorney. As we explained above, the guardian ad litem also had no authority to bind J.N.M. and J.M. to the Settlement Agreement. We therefore conclude that on this record, Rule 173.7(c) does not preclude Brown and–37– Clark from challenging the trial court’s approval of the Settlement Agreement and final judgment based thereon on the ground th at no authorized representative of their minor children agreed to the settlement or final judgment. 6. Summary We conclude that the trial court erre d in approving the Settlement Agreement and entering judgment thereon. We sustai n Brown and Clark’s second issue and do not reach their third or fourth issues. C. Administrator’s and Guardian ad Litem’s Fees In their fifth issue, Brown and Clark assert that the trial court erred in awarding attorney’s fees because there wa s inadequate evidentiary support for the award. Appellees respond that Brown and Cl ark lack standing to challenge the fee award because they were not ordered to pa y the fees and therefore suffered no injuryin-fact. See Cadle Co. v. Lobingier , 50 S.W.3d 662, 669–70 (T ex. App.—Fort Worth 2001, pet. denied). We do no t reach this issue. Becau se we are reversing and remanding this cause for further proceedings, the trial court will have an opportunity to revisit the issue of the administrato r’s and guardian ad litem’s fees, and the evidence supporting said fees, in light of this opinion and applicable precedent. See Stewart, Cox, & Hatcher, P.C. , 390 S.W.3d at 298–99.–38– CONCLUSION We reverse the trial court’s judgment an d remand this cause to the trial court for further proceedings consis tent with this opinion.

220203F.P05 /Bonnie Lee Goldstein / BONNIE LEE GOLDSTEIN JUSTICE–39– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN RE: ESTATE OF JOHNETTA PATRICE MORGAN, DECEASED
No. 05-22-00203-CV On Appeal from the Probate Court No. 3, Dallas County, Texas Trial Court Cause No. PR-15-02866- 3. Opinion delivered by Justice Goldstein. Justices Nowell and Breedlove participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. It is ORDERED that appellants ULYSSE S BROWN and ERICK CLARK recover their costs of this appeal from appellees CARR UTHERS LANDSCAPE MAINTENANCE, INC., CARLOS SANC HEZ, and ELLEN WILLIAMSON, ANDMINISTRATOR FOR THE ESTA TE OF JOHNETTA PATRICE MORGAN. Judgment entered this 24th day of May 2024.