Ford Motor Co. v. Garcia

• Decision Date: 30 March 2012
• Docket Number: No. 10–0953.,10–0953.
• Parties: FORD MOTOR COMPANY, Petitioner, v. Richard H. GARCIA, Respondent.
• Court: Texas Supreme Court

363 S.W.3d 573

55 Tex. Sup. Ct. J. 493

FORD MOTOR COMPANY, Petitioner,

v.Richard H. GARCIA, Respondent.

No. 10–0953.

Supreme Court of Texas.

March 30, 2012.

Craig A. Morgan, Austin, Michael W. Eady, Jaime A. Saenz, Joseph A. “Tony” Rodriguez, Rodriguez, Colvin, Chaney & Saenz, L.L.P., Brownsville, Barry Clark Toone, for Ford Motor Company.

Isaac Joel Tawil, Garcia Quintanilla & Palacios, McAllen, for Richard H. Garcia.

Robert E. Ammons, for other interested party Adelita Gonzales.

Justice JOHNSON delivered the opinion of the Court.

This is a dispute over fees awarded to an ad litem appointed in connection with the proposed division of a personal injury settlement between an incapacitated plaintiff and his guardian. The court-appointed attorney requested fees based on an unsworn invoice that specified numerous tasks performed, but did not specify when they were performed, who performed them or the amount of time spent on them. The ad litem testified about who performed some of the tasks, but he did not testify about how much time was spent on the tasks, other than specifying that a minimum of one-quarter hour was invoiced for each one, nor did he testify about any unusual circumstances that made it necessary for persons other than him to perform tasks for which compensation was sought. The trial court awarded the full amount requested and assessed the fees as court costs. The court of appeals affirmed. We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.

I. Background

Jesus Gonzalez was a passenger in a Ford pickup when a tire tread separated and the truck rolled over. The driver was killed and Gonzalez suffered an incapacitating brain injury. Several plaintiffs sued multiple defendants as a result of the accident. Relevant to the issues before us, Gonzalez's wife, Ramona, sued Ford Motor Company individually and as guardian of her husband. After the Gonzalezes and Ford reached a confidential settlement agreement, their attorney filed an “Unopposed Motion for Appointment of Guardian Ad Litem” for Gonzalez because of the conflict of interest between the Gonzalezes regarding division of the settlement. Pursuant to that motion, the trial court appointed attorney Richard Garcia. Garcia concluded that the agreed-upon division of the settlement between Ramona and Gonzalez should be approved by the court, and the court did so.

Ford and Garcia were unable to agree on a fee for his services, so the trial court held a hearing. At the hearing Garcia produced an unverified invoice for $28,260.00 and requested that amount as compensation. The invoice listed sixty-five separate tasks that were completed from December 9, 2008, when Garcia was appointed, to December 19, 2008, when the settlement with Ford was approved. The invoice did not set out who performed the tasks, the dates on which the tasks were performed, the time expended on any task, or a total amount of time spent on all of the tasks. Garcia testified, in relevant part, that (1) his billing rate for this matter was $300.00 per hour, (2) he performed most of the invoiced tasks but not all of them, (3) he did not know how much time it took to perform each invoiced task, and (4) he billed in quarter-hour increments. The trial court awarded the full $28,260.00 and charged the fee to Ford as court costs. The court of appeals affirmed. 363 S.W.3d 618. We granted Ford's petition for review. 54 Tex.Sup.Ct.J. 1578 (Aug. 26, 2011).

Ford argues that Garcia was appointed as a guardian ad litem subject to Rule 173 of the Texas Rules of Civil Procedure; the fee award compensates him for tasks not within the scope of his limited role as guardian ad litem; and even as to tasks within the scope of his limited role, there is neither evidence of how much time was spent on them nor who performed them.¹ Garcia counters that he was appointed as attorney ad litem, not guardian ad litem; as attorney ad litem he was entitled to be compensated for services he performed individually as well as services he was assisted with by “his staff including other lawyers;” and his invoice and testimony were sufficient evidence of reasonableness and necessity to support the compensation award whether he was functioning as an attorney ad litem or guardian ad litem.

We first address the nature of Garcia's role.

II. Garcia's Role

Relying on City of Houston v. Woods, 138 S.W.3d 574, 582 (Tex.App.-Houston [14th Dist.] 2004, no pet.), Garcia contends the fee award is proper because the trial court's appointment order states he was appointed “to serve as Attorney Ad Litem in this litigation as independent counsel for the benefit of Plaintiff Jesus Gonzalez in connection with effectuating Plaintiffs' settlement with Defendant Ford Motor Company.” Working from that premise, he maintains that he was properly compensated both for “his services in fulfilling his role as independent counsel to the ward, and his role as an officer and advisor to the trial court.” He cites Woods for the proposition that an attorney ad litem is to “perform the same services as any attorney, giving legal advice, doing research and conducting litigation for an incapacitated party,” and that all the activities on his invoice were proper because they were directed toward determining both whether (1) the proposed settlement was generally appropriate for Gonzalez and (2) the division and structure of the settlement was appropriate given the conflict of interest between Gonzalez and Ramona. We disagree that Garcia was entitled to be compensated for tasks that were not compensable as a guardian ad litem under Rule 173, even though some of those tasks might have been compensable had he truly been appointed as attorney ad litem.²

First, Woods, a case involving fees for representation of minors, does not support his position. Garcia references only part of a passage in Woods in which the court of appeals distinguished the role of a guardian ad litem from that of an attorney ad litem. The full passage gives context to the statement on which he relies:

Guardian ad litems and attorney ad litems serve different roles in the representation of minors. A guardian ad litem is not an attorney for the child, but an officer appointed by the court to assist in properly protecting the child's interests. An attorney ad litem, on the other hand, performs the same services as any other attorney—giving advice, doing research, and conducting litigation. Id. at 582 (citations omitted). The court also noted that the source of fees for attorneys ad litem is different from that for guardians ad litem:

A guardian ad litem is entitled to a reasonable fee for his services to be taxed as costs.... However, there is no provision to tax attorney fees as costs to the opposing party. Indeed, attorney fees may not be recovered unless provided for by statute or by contract between the parties. More specifically, no statute provides for the recovery of attorney fees in a negligence action. Instead, attorneys in personal injury cases are compensated out of the funds recovered by the plaintiff on a contingency basis.

Id. at 582–83 (citations omitted). Although attorneys representing personal injury plaintiffs in negligence suits are not always compensated on a contingency fee basis as the Woods court suggested, the court was correct that while a guardian ad litem's fee may be taxed as court costs pursuant to the rules of procedure, see, e.g., Tex.R. Civ. P. 173.6(c), there is no provision for shifting a plaintiff's attorney's fee to the defendant absent a statute or contract allowing for shifting them. See 1/2 Price Checks Cashed v. United Auto. Ins. Co., 344 S.W.3d 378, 382 (Tex.2011) (“Texas adheres to the American Rule for the award of attorney's fees, under which attorney's fees are recoverable in a suit only if permitted by statute or by contract.”).³ Here, Garcia does not base his claim for attorney's fees on either a statute or contract. And in Woods, the court of appeals held that the trial court abused its discretion by assessing attorney ad litem fees as costs to be paid by the defendant where the attorney represented minor plaintiffs in a negligence suit for personal injuries—the opposite of what Garcia contends for here. 138 S.W.3d at 583.

Second, a guardian ad litem's duties under the circumstances covered by Rule 173 are those of an officer of the court assisting in properly protecting the incapacitated person's interests when a conflict of interest has arisen between the incapacitated person and the guardian or next friend. The duty of such a guardian ad litem is not the duty of a plaintiff's attorney generally representing the incapacitated person in regard to the cause of action. See Land Rover U.K., Ltd. v. Hinojosa, 210 S.W.3d 604, 607 (Tex.2006) (per curiam) (“[A] guardian ad litem ... should not duplicate the work performed by the plaintiff's attorney.”); see also Am. Gen. Fire & Cas. Co. v. Vandewater, 907 S.W.2d 491, 493 n. 2 (Tex.1995) (per curiam). The context of the appointment and duties assigned to the ad litem determine the nature of the appointment and the duties of the ad litem. The burden to ensure that a guardian ad litem's services do not exceed the scope of the role assigned by the trial court is on the ad litem. See Goodyear Dunlop Tires N. Am., Ltd. v. Gamez, 151 S.W.3d 574, 582 (Tex.App.-San Antonio 2004, no pet.). An improper designation of the ad litem by the trial court is not controlling as to the nature of the appointment. See Brownsville–Valley Reg. Med. Ctr., Inc. v. Gamez, 894 S.W.2d 753, 755 n. 4 (Tex.1995) (“The trial court's improper designation of the ad litem ‘is not of controlling import.’ ”) (citation omitted).

Garcia does not claim that he was appointed because Ramona, acting as Gonzalez's guardian, and the attorney she hired, failed to properly represent Gonzalez's interests and Gonzalez needed a separate attorney to prosecute his personal ...