Cahill v. Lyda
| Decision Date | 05 February 1992 |
| Docket Number | No. D-1597,D-1597 |
| Parties | Marjorie CAHILL, Petitioner, v. D.M. LYDA, et al., Respondent. |
| Court | Texas Supreme Court |
John W. Stayton, Jr. and D.L. Hughes, Austin, for petitioner.
Jack Nelson Webernick and Donna L. Stump, Georgetown, for respondent.
ON APPLICATION FOR WRIT OF ERROR TO THE COURT OF APPEALS FOR
THE THIRD DISTRICT OF TEXAS
In this cause, we determine that an attorney ad litem is entitled to recover reasonable attorney's fees and expenses for representing unknown heirs on appeal. Marjorie Cahill ("Cahill") sued the record owners and unknown heirs of a fifteen acre tract of land ("the Rhodes tract") adjacent to her property to establish title by adverse possession. Service of citation was by publication and the trial court appointed an attorney ad litem to represent the unknown heirs. By agreement of the parties, a receiver appointed by the trial court sold the Rhodes tract and deposited the proceeds of the sale into the registry of the court.
Following a non-jury trial, the trial court held that Cahill had failed to establish her adverse possession claim and awarded title to the record owners and unknown heirs. Pursuant to further trial court orders, the attorney ad litem's fees were paid through trial from the shares of the proceeds awarded to the unknown heirs. In an unpublished opinion, the court of appeals reversed and rendered judgment, holding that Cahill had established title by adverse possession as a matter of law. The court of appeals assessed costs against the unknown heirs cited by publication and refused to award the attorney ad litem his fees on appeal.
Subsequently, this Court held that Cahill had not established title by adverse possession as a matter of law, and reversed and remanded the cause to the court of appeals to consider Cahill's factual sufficiency point of error. 802 S.W.2d 643. We also noted our disapproval of the court of appeals' failure to award the attorney ad litem his fees on appeal. Id. On remand, the court of appeals held that the trial court's failure to find that Cahill had established title by adverse possession was not against the great weight and preponderance of the evidence. 814 S.W.2d 390. The court of appeals again refused to award the attorney ad litem his fees because, among other things, the record contained no evidence concerning the amount of the attorney ad litem's fees and an award of fees would exceed the scope of the mandate issued by this Court. Id.
Rule 244 of the Texas Rules of Civil Procedure 1 requires that a trial court appoint an attorney ad litem to represent defendants served with citation by publication who fail to file an answer or appear before the court. Tex.R.Civ.P. 244. Rule 244 also requires that the attorney ad litem be paid a reasonable fee for his services, which is to be taxed as part of the costs. Id. The attorney ad litem must exhaust all remedies available to his client and, if necessary, represent his client's interest on appeal. Executors of the Estate of Tartt v. Harpold, 531 S.W.2d 696, 698 (Tex.Civ.App.--Houston [14th Dist.] 1975, writ ref'd n.r.e.).
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