Garza v. Slaughter

• Court: Court of Appeals of Texas
• Citation: 331 S.W.3d 43
• Docket Number: No. 14–09–00506–CV.,14–09–00506–CV.
• Parties: Nelda GARZA and David Martinez, Appellantsv.Janice Pouncy SLAUGHTER, Appellee.
• Decision Date: 21 October 2010

331 S.W.3d 43

Nelda GARZA and David Martinez, Appellants
v.
Janice Pouncy SLAUGHTER, Appellee.

No. 14–09–00506–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Oct. 21, 2010.Rehearing Overruled Feb. 3, 2011.

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Patrick D. Mahoney, Houston, TX, for Appellants.Janice Pouncy Slaughter, Houston, TX, for Appellee.Panel consists of Justices ANDERSON, FROST, and SEYMORE.

OPINION CHARLES W. SEYMORE, Justice.

Appellants, Nelda Garza and David Martinez, appeal from the judgment below, contending that the trial court erred in its disposition of attorney ad litem fees. We modify the trial court's judgment and affirm the judgment as modified.

I. Background

In 2001, appellee, Janice Pouncy Slaughter, inherited certain real estate. She filed suit to quiet title, claiming appellants held deeds to the property that were void. Appellants were served by publication, and the trial court appointed Patrick D. Mahoney as appellants' attorney ad litem. See Tex. R. Civ. P. 244 (requiring court to appoint attorney ad litem on behalf of defendants when service is by publication). The trial court's appointment order contained the following language: “The fees and expenses of the attorney ad litem shall be paid by the plaintiff and taxed as costs in this case.”

Slaughter and Mahoney met to discuss the case, at which time Mahoney demanded Slaughter advance $5000 for ad litem services. Slaughter filed a motion requesting that Mahoney be dismissed and an affidavit of indigency.¹ Appellants filed a motion for costs in which they requested that the court (1) order Slaughter to deposit funds into the court's registry to cover Mahoney's fees, (2) grant Mahoney a lien on the property, or (3) dismiss Mahoney as attorney ad litem. The court signed an order denying Slaughter's motion and directing her to make periodic payments into the court's registry “to secure payment for Ad Litem's fees at the conclusion of this lawsuit.”

Following a bench trial,² the court signed a final judgment in which it voided appellants' deeds and determined that $7500 was the amount of reasonable and necessary attorney's fees for Mahoney's services. The court did not order any party to pay these fees and did not assess costs against any party. Appellants filed motions requesting that the court increase its determination of reasonable ad litem fees to $11,454.91 and assess the fees as costs to be paid by Slaughter. Subsequently, the court signed an amended final judgment in which it assessed $7500 in

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attorney ad litem fees as costs but did not specify which party was responsible for paying costs. The court also signed an order permitting Slaughter to withdraw the money she deposited in the court's registry. This appeal ensued.

II. Analysis

In their first issue, appellants contend the evidence is legally and factually insufficient to support the court's determination of $7500 as reasonable attorney ad litem fees. In their second issue, appellants contend the trial court erred by failing to require Slaughter to pay Mahoney's ad litem fees. Appellants also request that this court award appellate ad litem fees.

In her brief, Slaughter argues, among other things, that the trial court erred by ordering her to deposit money into the registry of the court as ad litem fees and by denying her affidavit of indigency. She contends the trial court should have dismissed Mahoney as appellants' attorney ad litem. Appellants argue that we should not consider these issues because Slaughter did not timely file a notice of appeal. See Tex.R.App. P. 25.1(c) (providing that a party may not seek more favorable relief on appeal without perfecting an appeal). We agree. To the extent Slaughter requests more favorable relief than the trial court awarded, we dismiss her issues. See Tex.R.App. P. 42.3.

A. Amount of Attorney's Fees

We begin with appellants' contention that the evidence is legally and factually insufficient to support the trial court's finding of $7500 in reasonable attorney's fees. Appellants filed a motion for new trial in which they argued, “The trial court erred in awarding $7,500 as the attorney ad litem fee because Plaintiff did not object to the evidence or offer any rebuttal evidence.” According to appellants, there is competent, uncontroverted evidence supporting a finding of $11,167.91. We conclude that the trial court did not err in assessing attorney's fees in the amount of $7500.

When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). We must credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. See id. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. The fact finder is the only judge of witness credibility and the weight to give to testimony. See id. at 819.

When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615–16 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

The amount of compensation awarded to an attorney ad litem lies within the sound discretion of the trial court, and a reviewing court will not overturn a fee award absent evidence showing a clear abuse of discretion. See Johnson v. Evans, No. 14–08–00610–CV, 2010 WL 431293, at *6 (Tex.App.-Houston [14th Dist.] Feb. 9, 2010, no pet.) (mem. op.). A

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trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules and principles of law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). In making a fee award, a trial court may consider, among other things, (1) the time and labor involved, (2) the nature and complexity of the case, (3) the amount of money or value of the property or interest involved, (4) the extent of the responsibilities assumed by the attorney, (5) whether the attorney lost other employment because of the undertaking, (6) the benefits resulting to the client from the services, (7) the contingency or certainty of compensation, and (8) whether employment is casual or for an established or constant client. Alford v. Whaley, 794 S.W.2d 920, 925 (Tex.App.-Houston [1st Dist.] 1990, no writ).

Appellants argue that the trial court erred in determining that the reasonable amount of attorney's fees was less than $11,167.91 because Mahoney provided uncontroverted testimony supporting this amount. It is well settled that attorney's fees are conclusively proved when the supporting evidence is clear, direct, positive, and without contradiction from another witness or attendant circumstances, and such evidence could have easily been controverted. See Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547–48 (Tex.2009) (quoting Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex.1990)). Considering all the evidence, we conclude there were attendant circumstances weighing against a determination that $11,167.91 was appellants' reasonable and necessary...