Smith v. Smith, 01-85-0989-CV

CourtCourt of Appeals of Texas
Writing for the CourtSAM BASS
Citation720 S.W.2d 586
PartiesCharles William "Chick" SMITH, Sr., et al., Appellants, v. Carolyn Shaffer SMITH, et al., Appellees. (1st Dist.)
Docket NumberNo. 01-85-0989-CV,01-85-0989-CV
Decision Date25 September 1986

Page 586

720 S.W.2d 586
Charles William "Chick" SMITH, Sr., et al., Appellants,
Carolyn Shaffer SMITH, et al., Appellees.
No. 01-85-0989-CV.
Court of Appeals of Texas,
Houston (1st Dist.).
Sept. 25, 1986.
Rehearing Denied Oct. 30, 1986.

Page 590

Marian S. Rosen, Mary M. Rawlins, Marian S. Rosen & Associates (Eugene Smith University of Houston Law Center, of counsel), Houston, for appellants.

Randy Donato Weitinger, Steelhammer & Tucker, Larry Doherty, Doherty & Williamson, Kevin Dubose, Houston, for appellees.

Before SAM BASS, COHEN, and ASHWORTH (Retired, Sitting by Assignment), JJ.


SAM BASS, Justice.

Carolyn Shaffer Smith, in her own behalf and as next friend of her two minor children, appellees, brought suit against Charles William "Chick" Smith, Sr., Pat Smith, Mark Smith, Kim Smith Chavarria, and Esteban Chavarria, appellants, seeking to recover actual and exemplary damages for interference with child custody.

The appellees alleged that the appellants aided and assisted Charles William

Page 591

"Chuck" Smith, Jr., the father of the minor children, by taking and retaining the children and by concealing the whereabouts of the children in violation of a court order. After a trial to a jury, judgment was entered for the appellees in excess of $53 million dollars.

In their first point of error, the appellants contend that the trial court committed reversible error in appointing a guardian ad litem.

Tex.R.Civ.P. 173 provides in material part:

When a minor ... is a party to a suit either as plaintiff, defendant or intervenor and is represented by a next friend or a guardian who appears to the court to have an interest adverse to such minor, ... the court shall appoint a guardian ad litem for such person and shall allow a reasonable fee for his services to be taxed as part of the cost.

When the trial court determines that there appears to be a conflict of interest, the obligation to appoint a guardian ad litem is mandatory and not discretionary. Jaynes v. Lee, 306 S.W.2d 182 (Tex.Civ.App.--Texarkana 1957, no writ).

Since a conflict of interest between the next friend and minors could have arisen during settlement negotiations or trial proceedings, the trial court did not abuse its discretion in appointing the guardian ad litem. See Saad v. National National Care Center, Inc., 612 S.W.2d 660 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ).

Appellants' point of error one is overruled.

The appellants contend in point of error two that the trial court committed reversible error in appointing a guardian ad litem because appellants were not given proper notice of the appellees' motion for appointment which violated the local rules of the District Courts of Harris County, Texas, as well as Tex.R.Civ.P. 21.

When it "appears to the court" that there is a conflict between the interest of a minor and those of his next friend, it is the duty of the court to appoint a guardian ad litem. Gibson v. Blanton, 483 S.W.2d 372 (Tex.Civ.App.--Houston [1st Dist.] 1972, no writ). The trial court is empowered, on its own motion, to appoint a guardian ad litem to represent the interests of minors that are parties to the proceedings. Peterson v. Peterson, 502 S.W.2d 178 (Tex.Civ.App.--Houston [1st Dist.] 1973, no writ); Tex.R.Civ.P. 173. Failure to give proper notice was harmless error in this instance.

Appellants' point of error two is overruled.

In points of error three and four, the appellants contend that the trial court abused its discretion in awarding guardian ad litem fees in the amount of $150,000 for work expended during trial and an additional $25,000 in the event of appeal, and that there was insufficient evidence to support the award of fees to the guardian ad litem.

Tex.R.Civ.P. 173 provides that the trial court shall allow the guardian ad litem a reasonable fee. No evidence is required to support the court's award of attorney's fees to the guardian ad litem. Transport Insurance Co. v. Liggins, 625 S.W.2d 780 (Tex.App.--Fort Worth 1981, writ ref'd n.r.e.); Tex.R.Civ.P. 173; however, evidence was presented to support the award of attorney's fees to the guardian ad litem.

The amount of compensation awarded to a guardian ad litem lies largely within the discretion of the court and will not be overturned unless a clear abuse of discretion is apparent from the record. Poston v. Poston, 572 S.W.2d 800 (Tex.Civ.App.--Houston [1st Dist.] 1978, no writ); City of Houston v. Watson, 376 S.W.2d 23 (Tex.Civ.App.--Houston 1964, writ ref'd n.r.e.). The test is whether the trial court's decision was arbitrary or unreasonable. Dawson v. Garcia, 666 S.W.2d 254, 264 (Tex.App.--Dallas 1984, no writ). In determining the reasonableness of the fees awarded to the guardian ad litem, the trial court can consider such factors as the amount of time and work spent on the case and also the amount in controversy. Vaughn v. Gunter, 458 S.W.2d 523 (Tex.Civ.App.

Page 592

--Dallas), writ ref'd n.r.e., 461 S.W.2d 599 (Tex.1970).

In the present case, evidence pertaining to the amount of time and work expended by the guardian ad litem, and the amount in controversy supported the amount of attorney's fees awarded by the trial court. The appellants did not cross-examine the guardian ad litem and presented no evidence to controvert the appellees' claim. The evidence supports the jury's findings.

Appellants' points of error three and four are overruled.

In four points of error, 5, 31, 32, and 33, the appellants contend that the trial court erred in denying their requests for corrective instructions and motions for mistrial regarding certain improper arguments and statements to the jury by appellees' counsel.

Appellate courts are not permitted to reverse a judgment and order a new trial unless they are of the opinion that the error of the trial court amounted to such a denial of the rights of the appellant as was reasonably calculated to, and probably did, cause the rendition of an improper judgment. Tex.R.Civ.P. 434; Holmes v. J.C. Penny Co., 382 S.W.2d 472 (Tex.1964). When alleging improper arguments by counsel, the complainant has the burden of proving (1) an error (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. Standard Fire Insurance Co. v. Reese, 584 S.W.2d 835, 839 (Tex.1979). In order for the improper argument to be deemed incurable, it must further be shown that the argument, by its nature, degree, and extent constituted reversible harmful error. Id. The entire record must be examined to determine the improper argument's probable effect on a material finding. Id. at 840. "From all of these factors, the complainant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence." Id. See also American Petrofina, Inc. v. PPG Industries, Inc., 679 S.W.2d 740 (Tex.App.--Fort Worth 1984, no writ); McInnes v. Yamaha Motor Corp., 659 S.W.2d 704, 713 (Tex.App.--Corpus Christi 1983), aff'd, 673 S.W.2d 185 (Tex.1984).

In point of error five, the appellants argue that the trial court erred in denying their request for an instruction to the jury and motion for mistrial stemming from remarks made by the appellees' counsel that appellant Charles William "Chick" Smith, Sr. and his attorney were attempting to obstruct justice.

The objectionable statement was as follows:

Q. (Mr. Doherty continuing) Mr. Smith, my question to you, you knew that your wife and Chuck and the two grandchildren and Kim were in England and Scotland in late 1984?

MS. ROSEN: I object to the multifarious nature of that question, Your Honor.

THE COURT: All right. Do you want to break it down, Mr. Doherty?

A. (Mr. Doherty continuing) Did you know they were in England in October or November of 1984?

MS. ROSEN: Your Honor, it is still multifarious because he is referring to a number of parties, Your Honor.

MR. DOHERTY: The same parties.

MS. ROSEN: I object to it, Your Honor, because of the multifarious nature of the question.

THE COURT: Break it down, Mr. Doherty.

Q. (Mr. Doherty continuing) Did you know your wife was in England in 1984?

A. I don't believe--

MS. ROSEN: Excuse me, Your Honor. I would like to object and raise the objection I have raised previously concerning the matter of how the witness gained that information, Your Honor.

THE COURT: Do you want to do it again before the jury, Ms. Rosen?

Page 593

MS. ROSEN: No, Your Honor. All I want to do is just preserve the record in that regard. Perhaps if I renew my objections that were made in the absence of the jury now in the presence of the jury to that question, Your Honor.

THE COURT: All right.

MR. DOHERTY: Your Honor, this is a clear obstruction of my right to cross examine this witness. I would ask the Court to instruct the witness to answer my questions and instruct Ms. Rosen to refrain from interrupting the examination of this witness. It's a very simple question: Did he know his wife was in England in 1984. Once we get the year battened down, then I'm going to batten down the month if that's what it takes to keep it from being multifarious.

MS. ROSEN: Judge, I'm not trying to obstruct and I'm not trying to take the jury's time at all, but Your Honor knows the discussion that took place in the absence of the jury and I would renew each of those objections in the the presence of the jury. You have given certain instructions to me and I am trying not to--

The appellants did not request an instruction to the jury, but did move for a mistrial based on the statement by appellees' counsel underscored above. A reading of the objectionable statement readily indicates that it was not an accusation of obstruction of justice. The statement did not result in harmful error...

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