Borden, Inc. v. Rudy Lerma Riojas ( 2000 )

DISSENTING OPINION No. 04-99-00204-CV BORDEN, Inc., Appellant v. Sergio MARTINEZ, Alvino Morales, and Arnulfo Gonzalez, Jr., Appellees From the 49th Judicial District Court, Webb County, Texas Trial Court No. C-96-1131-DI Honorable Manuel R. Flores, Judge Presiding

Opinion by: Catherine Stone, Justice

Concurring opinion by: Tom Rickhoff, Justice

Dissenting opinion by: Paul W. Green, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: March 22, 2000

Although a trial court has a great deal of discretion in awarding fees to a guardian ad litem, that does not mean unbounded discretion. There is a reasonableness limit. Because the majority apparently places no bounds on a trial court's discretion to award guardian ad litem fees, I must respectfully dissent.

A guardian ad litem is entitled to a reasonable fee for his services. See Tex. R. Civ. P. 173.; Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). The fee amount should be determined by following the same factors used in determining the reasonableness of an attorney's fee award. See id. When applying the standard factors in this case, it is clear, at least to me, that the guardian ad litem fees awarded are unreasonable and excessive. Moreover, the time recorded by the lawyers, in some instances, was for services unrelated to or beyond the proper performance of a guardian ad litem's legal obligations.

A guardian ad litem's sole duty is to act as the personal representative of the minor and protect the minor's interests in a lawsuit in which the minor is a party. See American Gen. Fire & Cas. Co. v. Vandewater, 907 S.W.2d 491, 493 n. 2 (Tex. 1995). I believe the value of that duty is reasonably compensated at the rate of $150 per hour. See Missouri Pac. R.R. Co. v. Alderete, 945 S.W.2d 148, 151-52 (Tex. App.-San Antonio 1996, no writ)(Green, J., concurring and dissenting). Thus, I would hold that the trial court abused its discretion when it awarded ad litem fees in amounts that calculate to hourly rates of $358, $395 and $579. I would also exclude from consideration any time spent that was not properly within the legal responsibilities of the ad litem. See Roark v. Mother Frances Hosp., 862 S.W.2d 643, 647 (Tex. App.-Tyler 1993, writ denied) (guardian ad litem who exceeds proper responsibilities not entitled to compensation for extra work).

PAUL W. GREEN

Justice

PUBLISH