Opinion
NUMBER 13-16-00290-CV
02-09-2017
FORD MOTOR COMPANY, Appellant, v. JORGE AGUILAR, INDIVIDUALLY AND AS NEXT FRIEND OF MARIA DE LOURDES AGUILAR, INCAPACITATED, Appellee.
On appeal from the 398th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Longoria
Memorandum Opinion by Justice Rodriguez
Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et seq. (West, Westlaw through 2015 R.S.).
Appellee Jorge Aguilar, Individually and as Next Friend of Maria de Lourdes Aguilar, Incapacitated (Aguilar) filed a personal injury lawsuit against appellant Ford Motor Company (Ford) and other defendants. The parties, including Aguilar and Ford, fully settled Aguilar's claims.
The disposition of this appeal in no way affects the settlement portion of the trial court's judgment as it is not at issue in this appeal.
This appeal concerns a dispute over ad litem fees awarded to David Saenz, who the trial court appointed as Maria's ad litem. Ford acknowledges Saenz's appointment as Maria's guardian ad litem, but protests his appointment as her attorney ad litem.
No appellee's brief has been filed to assist us in this appeal.
By three issues, Ford complains that (1) the record does not support the trial court's appointment of Saenz as Maria's attorney ad litem; (2) the trial court abused its discretion when it awarded Saenz certain guardian ad litem fees; and (3) the trial court erred when it ordered Ford to pay Saenz attorney ad litem fees, if any. We affirm as modified.
Ford also set out a fourth issue: The trial court abused its discretion by sua sponte rejecting the agreement between the parties regarding Saenz's guardian ad litem fees and instead imposing a larger award, where Saenz requested only $8,550 in fees and the record does not support a larger award. But Ford did not develop this issue in its brief, so we need not discuss it. See TEX. R. APP. P. 47.1.
I. BACKGROUND
A. Pleadings and Hearings
On May 7, 2013, Aguilar filed his original petition in this personal injury lawsuit and his application for injunctive relief following an automobile accident in which Maria was injured. On August 20, 2015, Aguilar filed a third amended petition, suing Ford for strict products liability, negligence, and gross negligence. Ford answered on August 26, 2015. Seven months later, on March 21, 2016, the trial court ordered the appointment of "attorney ad litem" Saenz to "protect and represent the interests of" Maria, who was incapacitated at the time suit was filed. On April 14, 2016, Saenz filed his ad litem report, setting out, among other things, Saenz's participation in the case and his recommendation that the trial court approve the settlement agreement because it was in Maria's best interest. On April 20, 2016, Saenz filed his "Verified Attorney Ad Litem Fees and Expense Statement and Request for Reasonable Compensation."
At the fee hearing, Aguilar's counsel explained that Maria had been in a coma when the lawsuit was first filed, but had recovered significantly.
Saenz's verified statement identified the following services that Saenz provided from March 21, 2016 through April 14, 2016, the date of the friendly suit hearing: (1) receiving and reviewing the court's order of appointment; (2) scheduling and meeting with Aguilar's counsel; (3) reviewing pleadings provided by Aguilar's counsel; (4) reviewing two sets of medical records and associated phone calls related to receiving some medical records; (5) reviewing the Life Care Plan and Cost Analysis prepared by MediSys Rehabilitation, Inc., the Medicare Set-Aside Evaluation prepared by Garretson Resolution Group, the Settlement Proposal, and a Structured Proposal prepared by Robin Lynne Young, CSSC, all of which were provided by Aguilar's counsel; (6) researching closed head injuries and grand mal seizures; (7) arranging and conducting an interview with Jorge and Maria; (8) researching the rating on Berkshire Hathaway Life Insurance Company of Nebraska, issuer of the annuities; (9) researching case law on attorney ad litem attorney's fees; (10) drafting and filing his ad litem report; and (11) meeting with Ford's attorney, Trey Colvin, to discuss ad litem fees, followed by the scheduled court hearing on the friendly suit.
At the friendly suit hearing on April 26, 2016, Saenz recommended that the court accept the settlement, which it did. At that time, because the parties had not reached an agreement on ad litem fees, they asked the court for a separate hearing. Approximately two weeks later, the court held the hearing on ad litem fees.
At the fee hearing, Aguilar's counsel informed the trial court that "the bill [Saenz] had was in the amount of [$]8,550, and [Ford was going to pay the ad litem fees in the amount of [$]7,000] and so the plaintiffs were going to pay the remainder [$]1,550." In support of that amount, Ford offered, and the court admitted, Saenz's verified fee statement. See TEX. R. CIV. P. 173.6(b). In this statement, Saenz set out that he billed 28.5 hours at $300 per hour, for a total of $8,550. After the parties announced the settlement of guardian ad litem fees of $8,550, the trial court responded that it did not "accept that agreement" and, instead, would "have a hearing." The court expounded, "[Saenz] should get paid at least $10,000 for his work because of his expertise and the work that he has done and the kind of lawyer that he is. $10,000 would be the minimum that [the court] would accept . . . ." The trial court also informed the parties that it had appointed Saenz as guardian ad litem and attorney ad litem and would amend the order to reflect such appointment. Ford responded that the parties agreed that Saenz was only appointed as guardian ad litem. Ford argued that appointing Saenz in both capacities would be a significant problem for two reasons: (1) the scope of work done by an attorney ad litem and by a guardian ad litem must be distinguished because of the role each is assigned; and (2) the compensation for each is taxed on the parties differently—under the rules, only guardian ad litem fees are taxable as court costs against the defendant or non-prevailing party, whereas attorney ad litem fees are not taxable as court costs and any fees incurred by the attorney ad litem are paid by the other side, the plaintiff in this case.
B. Capacity
At the fee hearing, the parties and the court first addressed Saenz's ad litem capacity. Before receiving testimony, the trial court informed Saenz that it had appointed him attorney ad litem and guardian ad litem and, if the order did not reflect both, the court would amend the order. Saenz then testified that he provided the following services: (1) he met with Aguilar's attorney and reviewed the file because he needed to understand Maria's claim relative to the claims of her husband and her two adult children; (2) he examined the entire case from the perspective of an attorney for the plaintiff—he agreed that an attorney ad litem had to look at discovery, pleadings, among other things, and review the extent of the plaintiff's injuries; (3) he reviewed medical records and researched head injuries and grand mal seizures; (4) he agreed that he determined that the litigation itself was handled appropriately; (5) he reviewed the settlement, the allocation among the plaintiffs, and the investment of some of the funds that were made on behalf of Maria; (6) he agreed that he had to determine whether there was any conflict or potential conflict of interest and, if so, to review the proposed settlement and proposed distribution of the settlement to determine whether they were fair and in the best interest of the plaintiff; and (7) he recommended that the court accept the proposed settlement agreement because, if there was a conflict of interest, the proposed settlement and the apportionment with regard to Maria were fair and in her best interest.
C. Fees
The court also heard testimony regarding fees. According to Saenz, among other things, he billed time for preparing his ad litem report and for filing it with the court. He did this to fulfill his responsibilities. Saenz testified that he also prepared and filed a verified fee statement, for which he did not bill. Saenz agreed that the work he did as an attorney ad litem overlapped with the work he did as a guardian ad litem and that there was no way to bifurcate the time spent between the two roles. Saenz also agreed that his April 14, 2016 meeting with Ford's attorney Trey Colvin, for which he billed 1.5 hours, was to discuss whether they would enter an agreement on Saenz's attorneys' fees.
Saenz further testified that he did not charge for six entries (N/C entries) on his fee statement, one of which was attributed to work performed by a paralegal. The N/C entries performed by Saenz included returning a phone call on March 38, 2016, to discuss meeting with plaintiffs' attorney, receiving a phone call on March 29, 2016, to reschedule a meeting with plaintiffs' attorney, receiving an email notice on March 30, 2016, to confirm a meeting with the Aguilars, receiving Dr. Tommy Yee's faxed medical records on Maria on April 12, 2016, and e-filing his ad litem report on April 14, 2016. The N/C entry performed by Saenz's paralegal on March 12, 2016, involved requesting Dr. Yee's records and scheduling an appointment for Saenz at the office plaintiffs' counsel to view those records.
Saenz testified that he billed his time at $300 an hour in fifteen-minute increments and his paralegal's time at $18 an hour. At the hearing, Saenz estimated that he would have billed an additional three hours for work he had done in this case. He also testified that he would not charge for the tasks he performed on April 12 and 14. In its award of ad litem fees, the trial court awarded one-half hour of billing time for the six N/C entries and appears to have awarded another hour, together billable as four additional hours at $300 an hour or $1,200.
We note that the trial court awarded $10,000, which is $1,450 more than the total fees set out in Saenz's verified statement.
Ford urged that although Saenz is "very qualified," even at $300 an hour, "the evidence shows that . . . Mr. Saenz's fee should be below [$]5,000 in this case." Ford argued that Saenz was reportedly satisfied with the settlement and apportionment after his March 31, 2016 meeting, and after that meeting Saenz spent only a half-hour looking at medical records for the apportionment issue. According to Ford, any other billings after March 31 were not compensable. Yet according to Aguilar, "Ford agreed to pay [$]7,000 of the bill, and [the plaintiffs] had agreed to pay [$1,550]." On appeal, Ford asserts that the $7,000 "represents the amount originally agreed upon by Ford and Saenz in an attempt to finally resolve this issue."
D. Ensuing Orders
On April 26, 2016, after hearing Saenz's testimony and counsels' arguments regarding capacity and ad litem fees, the trial court signed an order approving the settlement, dismissing all claims against Ford with prejudice, and ordering Ford to pay $10,000 to the attorney and guardian ad litem. On that same day, the court signed a supplemental order, finding that Saenz was appointed attorney ad litem and guardian ad litem for Maria; that Saenz performed all duties of both ad litems; and that "Saenz is awarded $10,000, which is a reasonable and necessary fee and supported by the evidence." The court taxed the following fees as costs against Ford: $10,000 for Saenz's "representation in the trial court as Attorney Ad Litem and Guardian Ad Litem" and up to $20,000 if the judgment was appealed.
This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
A. Standard of Review
An appellate court reviews the award of ad litem fees under an abuse of discretion standard based on the sufficiency of the evidence that the fee was reasonable and necessary. Land Rover U.K., Ltd., v. Hinojosa, 210 S.W.3d 604, 607 (Tex. 2006) (per curiam) (applying an abuse of discretion standard of review to the award of guardian ad litem fees); Garza v. Slaughter, 331 S.W.3d 43, 45 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (applying an abuse of discretion review standard to an award of attorney ad litem fees); see also Columbia Rio Grande Healthcare, L.P. v. De Leon, No. 13-09-00496-CV, 2011 WL 227669, at *3 (Tex. App.—Corpus Christi Jan. 20, 2011, no pet.) (mem. op.) (same for guardian ad litem). The burden of proof falls on the ad litem to establish that his fees are reasonable and necessary. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991); see also De Leon, 2011 WL 227669, at *3.
B. Applicable Law
1. Guardian Ad Litem
A guardian ad litem must be appointed to act as an officer and advisor to the court if a party is represented by a next friend who may have an adverse interest. TEX. R. CIV. P. 173.2, 173.4(a). When a settlement has been proposed to resolve the claim of a party represented by a next friend, as in this case, a guardian ad litem has "the limited duty to determine and advise the court whether the settlement is in the party's best interest." Id. R. 173.4(c). "Once appointed, the guardian ad litem displaces the next friend and becomes the personal representative of the [incapacitated person]." City of Hous. v. Woods, 138 S.W.3d 574, 579 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citations omitted); see TEX. R. CIV. P. 173.4(a). "No reason exists for the guardian ad litem to participate in the conduct of the litigation . . . or to review the discovery or litigation file except to the limited extent that it may bear on the division of settlement proceeds." TEX. R. CIV. P. 173, cmt. 3. "The guardian ad litem is required to participate in the case to the extent necessary to protect the [incapacitated person]. The guardian ad litem has considerable latitude in determining what depositions, hearings, conferences, or other activities are necessary to that effort." Woods, 138 S.W.3d at 579 (citations omitted). But "[i]f a guardian ad litem performs work beyond the scope of this role, such work is non-compensable." Land Rover, 210 S.W.3d at 607.
A guardian ad litem "may be reimbursed for reasonable and necessary expenses incurred and may be paid a reasonable hourly fee for necessary services performed." TEX. R. Civ. P. 173.6(a). A guardian ad litem may not be reimbursed for services rendered after resolution of the conflict for which he is appointed. See Brownsville Reg'l Med. Ctr. v. Gamez, 894 S.W.2d 753, 756-57 (Tex. 1995). In other words, although "ad litems are entitled to be compensated for their time in preparing their ad litem reports to the court because that falls within the scope of their duties and promotes the interest of their minor [or incapacitated adult]," guardians ad litem are not entitled "to earn fees for post-conflict services in pursuit of their own interests, such as drafting their fee statements, preparing for the fee hearing and their time defending their fees at the hearing." Goodyear Dunlop Tires N.A., Ltd. v. Gamez, 151 S.W.3d 574, 587 (Tex. App.—San Antonio 2004, no pet.) (citations omitted). Finally, guardians ad litem are not entitled to recover their appellate fees. Id. at 592; see also De Leon, 2011 WL 227669, at *5 (citing TEX. R. CIV. P. 173 and Holt Tex., Ltd. v. Hale, 144 S.W.3d 592, 598 (Tex. App.—San Antonio 2004, no pet.) (op. on reh'g)) (determining "that Rule 173 only authorizes guardian ad litem fees for the representation of a minor and not for the representation of the ad litem's own interest" and concluding that the trial court abused its discretion when it awarded the ad litem "fees for any appeals related solely to the dispute over his ad litem fees"). The court may tax a guardian ad litem's compensation as costs of court. TEX. R. CIV. P. 173.6(c); see id. R. 131 (providing that "[t]he successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided"), R. 141 (permitting a trial court, for good cause stated on the record, to "adjudge the costs otherwise than as provided by law or [the rules of civil procedure]"); see also Garza, 331 S.W.3d at 45-49.
2. Attorney Ad Litem
Although the parties agreed that Saenz served only in the capacity of Maria's guardian ad litem, see TEX. R. CIV. P. 173, the trial court appointed Saenz as both guardian ad litem and as attorney ad litem.
"An attorney ad litem . . . performs the same services as any other attorney—giving advice, doing research, and conducting litigation." Ford Motor Co. v. Garcia, 363 S.W.3d 573, 576 (Tex. 2012) (citation and quotation marks omitted). To support the appointment of an attorney ad litem, the trial court must find that the incapacitated person lacks an attorney to represent her interests or prosecute her claim. See id. at 577. In very limited situations, trial courts are statutorily authorized to appoint counsel to represent children or parties who are incapacitated. See, e.g., TEX. FAM. CODE ANN. §§ 51.10 (West, Westlaw through R.S. 2015) (establishing the power to appoint counsel in juvenile-delinquency cases), 107.010 (West, Westlaw through R.S. 2015) (establishing the power to appoint an attorney ad litem for an incapacitated person in suits affecting the parent-child relationship), 107.012 (West, Westlaw through R.S. 2015) (same for a child who is the subject matter of a suit filed by a governmental entity requesting termination of the parent-child relationship or to be named the conservator of the child); TEX. HEALTH & SAFETY CODE ANN. § 574.003 (West, Westlaw through R.S. 2015) (providing that a court must appoint an attorney for a proposed patient after an application for court-ordered mental health services is filed); TEX. ESTATES CODE ANN. § 1054.001-.007 (formerly TEX. PROB. CODE ANN. § 646) (West, Westlaw through R.S. 2015) (providing for the appointment of an attorney ad litem in guardianship proceeding). "In all these situations, the law provides for appointment of counsel because a party is indigent or otherwise unable to adequately represent his or her own interests." Assignees of Best Buy v. Combs, 395 S.W.3d 847, 863 (Tex. App.—Austin 2013, no pet.) (op. on reh'g).
3. Distinctions Between a Guardian Ad Litem and an Attorney Ad Litem
In Garcia, the Texas Supreme Court outlined important distinctions between the roles of guardian ad litem and attorney ad litem, explaining that each serves a different function in the representation of incapacitated or minor parties. "A guardian ad litem is not an attorney for [the incapacitated party], but an officer appointed by the court to assist in properly protecting the [party's] interests." Id. at 576; see Woods, 138 S.W.3d at 579; see also TEX. R. CIV. P. 173.4(a). A guardian ad litem's role "is to determine and advise the court whether a party's next friend has an interest adverse to the party." Ford Motor Co. v. Stewart, Cox & Hatcher, 390 S.W.3d 294, 297 (Tex. 2013) (per curiam); see TEX. R. CIV. P. 173.4(b). On the other hand, an attorney ad litem gives advice, does research, and conducts litigation: he performs the same services as any other attorney. Garcia, 363 S.W.3d at 576.
The payment of fees for each appointment differs as well. A guardian ad litem "is entitled to a reasonable fee for his service to be taxed as costs." Id. Attorneys ad litem in personal injury cases are compensated "out of the funds recovered by the plaintiff on a contingency basis" unless a statute or contract allows for the shifting of the fees. Id. Finally, because the terms "guardian ad litem" and "attorney ad litem" are so commonly confused, the context or nature of the appointment controls the proper scope of the ad litem's duties, not the designation on the order making the appointment. Id. at 577; see Brownsville Reg'l, 894 S.W.2d at 755 n.4 ("The trial court's improper designation of the ad litem is not of controlling import.").
III. SAENZ'S APPOINTMENT AS MARIA'S ATTORNEY AD LITEM
By its first issue, Ford contends that the record does not support the appointment of Saenz as attorney ad litem in this case. We agree.
First, Saenz directs us to no statutory authority, which would allow the appointment of an attorney ad litem in this case. Cf. TEX. FAM. CODE ANN. §§ 51.10, 107.010, 107.012; TEX. HEALTH & SAFETY CODE ANN. § 574.003; TEX. ESTATES CODE ANN. §§ 1054.001-.007.
Second, Saenz does not claim that the trial court appointed him because Aguilar's attorney had inadequately represented Maria's interests or that Maria needed a separate attorney to prosecute her personal injury claim. See Garcia, 363 S.W.3d at 577-78. Instead, Saenz agreed at the fee hearing and acknowledged in his ad litem report that, after reviewing the litigation file, he determined the case was in a good litigation position. See id. Our review of the record supports the conclusion that Aguilar's attorney adequately represented Maria's interests and protected her claim. See id. at 576.
Third, Saenz's ad litem appointment occurred seven months after Aguilar filed his original petition but less than one month before the friendly suit hearing. Although the date of the settlement agreement does not appear in the record, it is clear that the trial court appointed Saenz after plaintiff's and Ford's pleadings and plaintiff's requests for disclosure and production against healthcare defendants had been filed and shortly after Aguilar reached a settlement with Ford, the division of which posed a potential conflict of interest between Jorge and Maria. The court appointed Saenz when the necessity of the division created a potential conflict. See id. at 578.
Finally, the nature of Saenz's role in this proceeding was that of a guardian ad litem rather than an attorney ad litem for purposes of compensation. See id. at 577-78; Brownsville Reg'l, 894 S.W.2d at 755 n.4. By his appointment, Saenz reviewed the settlement and made recommendations to the court regarding the fairness of the settlement as it pertained to Maria. Saenz's review of the litigation file and medical records and his research on head injuries appear to have been tasks performed as guardian ad litem. These activities helped support Saenz's recommendations to the court regarding the division of the settlement. They were not performed for conducting litigation, as any other attorney would do. See Garcia, 363 S.W.3d at 576.
In sum, the trial court erred in appointing Saenz to act as an attorney ad litem to generally represent Maria in prosecuting her personal injury claim because the record does not support such appointment. See id. at 578. It does support the trial court's appointment of Saenz as guardian ad litem for Maria to assist the trial court in protecting Maria's interest because of the potential conflict of interest between Jorge and Maria. See id.
We sustain Ford's first issue and address the remaining issues in the context of Saenz representing Maria as her guardian ad litem.
IV. THE TRIAL COURT'S AWARD OF GUARDIAN AD LITEM FEES
By its second issue, Ford complains that the trial court abused its discretion when it awarded fees for the following: (1) tasks for which Saenz did not charge and tasks unsupported by the evidence; (2) tasks identified in a March 30, 2016 block billing that were not compensable; (3) work Saenz allegedly did as a psychologist; and (4) post-conflict tasks. We address each award in turn.
A. N/C Entries and Non-Billed Tasks
Ford first complains of additional fees awarded by the trial court for tasks that Saenz described in his verified fee statement but for which he did not charge. It also complains of additional fees awarded by the trial court for other tasks that Saenz did not identify in his statement. Ford asserts that the trial court abused its discretion in awarding additional fees for these entries and for other unknown tasks because they have no evidentiary support.
The N/C entries identified on Saenz's verified fee statement include making two phone calls, one of which was completed by Saenz's paralegal; receiving an email; receiving a fax; and e-filing the ad litem report. Ford is not challenging the validity of these entries. Instead, it challenges the trial court's discretion to award fees for these entries because Saenz billed them as "N/C" and because the evidence does not support the fees awarded.
Although Saenz agreed that he had not charged for this work on his report and testified that he would not charge for the April 12 and 14, 2016 N/C entries, having reviewed the testimony presented by Saenz at the fee hearing, we conclude that the evidence supports a reasonable and necessary award of $459 for the work reflected by the remaining four N/C entries—three half-hour entries performed by Saenz on March 28, 29, and 30, 2016, and billed at $300 an hour ($450) and one half-hour entry performed by Saenz's paralegal on April 12, 2016, and billed at $18 an hour ($9). We conclude that the trial court did not abuse its discretion when it awarded Saenz an additional $459.
However, the remainder of the court's additional award of $1,450 (or $991) is not supported by Saenz's testimony or any other part of the record. Instead, this amount represents the trial court's own determination that Saenz should have received more for his work in this case "because of his expertise and the work that he has done and the kind of lawyer that he is." We conclude that the trial court abused its discretion in awarding Saenz the additional $991. Any tasks for which this award could have been made were not identified in Saenz's verified statement or established through testimony at the hearing. The trial court's additional $991 award is not supported by the evidence. See Land Rover, 210 S.W.3d at 607.
B. Tasks Identified in a March 30, 2016 Block Billing
Ford next complains that Saenz failed to demonstrate that all tasks identified in his March 30, 2016 block billing of nine hours were compensable. Ford argues that because the record lacks evidentiary proof necessary to support the entry of nine hours for various compensable and non-compensable tasks, Saenz failed to meet his burden under rule 173, see TEX. R. CIV. P. 173.6(a), and, thus, the trial court abused its discretion in awarding fees for this block entry. We disagree because the record contains evidence that substantiates this entry as the compensable work of a guardian ad litem.
Ford challenges only the compensability of Saenz's review of the materials listed. Ford does not challenge the number of hours Saenz spent reviewing the materials.
In his verified fee statement, which Ford offered and the court admitted as an exhibit at the fee hearing, Saenz provided the following detailed chronological and descriptive account of the records he reviewed on March 30, 2016: a review of "medical records, Life Care Plan and Cost Analysis prepared by MediSys Rehabilitation, Inc., Medicare Set-Aside Evaluation (MSA), Settlement Proposal, and a Structured Proposal prepared by Robin Lynne Young, CSSC." Saenz also testified that his review of all listed documents related to Maria's damages and "to the cost analysis for her rehabilitation, the Medicare Set-Aside, which she's responsible for. . . . All those documents were necessary for [Saenz's] evaluation and consideration in order to be able to make an informed decision as to whether the [c]ourt should adopt the . . . settlement in this case." Finally, Saenz's April 2016 report to the court regarding his settlement findings, a report admitted as Exhibit 1 at the hearing, also supports a conclusion that the March 30, 2016 block billed entry is for compensable work completed by Saenz. In the report, Saenz summarized his conclusion as follows:
[F]urther investigation into this proposed settlement was performed in the way of reviewing the volumes of medical records, billing statements, and foregoing documents in paragraph 3 [including those documents listed in the complained of block billing]. The medical evidence on MARIA DE LOURDES AGUILAR suggests she will never return to her state of being prior to the horrible accident of April 1, 2013. In my humble opinion, based on the medical evidence, my knowledge of brain injuries, my studies in the field of psychology and personal injury law, I recommend this Honorable Court adopt and approve the proposed settlement agreement as being in the best interest of MARIA DE LOURDES AGUILAR.
Based on the above, we conclude that Saenz demonstrated that the tasks identified in his March 30 billing were compensable. Saenz satisfied his burden of establishing that he should be reimbursed for reasonable and necessary expenses for tasks identified in the billing and that he should be paid a reasonable hourly fee, in this case $300, for the nine hours of services performed. See TEX. R. CIV. P. 173.6(a). We cannot conclude that the trial court abused its discretion in awarding these fees. See Land Rover, 210 S.W.3d at 607.
C. Tasks Saenz Allegedly Performed as a Psychologist
Ford further complains that the trial court abused its discretion when it awarded additional fees for work Saenz performed as a psychologist, particularly in reviewing the medical records. We note that the trial court emphasized the fact that Saenz was a psychologist. But the record does not establish that Saenz billed for work he did as a psychologist or was awarded fees on that basis.
Saenz did testify at the fee hearing that he researched closed head injuries "to make sure that [he] was on the right track based on [his] training . . . in the field of psychology." But Saenz also said that he was concerned as to whether Maria was going to have to live with additional grand mal seizures "for the rest of her life as a result of this head trauma that she suffered" and that he did additional research on that basis, thus, satisfying his role as guardian ad litem. Saenz further testified that "[t]here [was] no way that [he] could have fulfilled [his] duties and make a recommendation to [the trial court] to accept the settlement agreement without having reviewed the medical records."
We are not persuaded by Ford's argument. We cannot conclude that the trial court awarded Saenz fees for tasks that fall outside his role as guardian ad litem in this case. The trial court did not abuse its discretion in this regard. See id.
D. Post-Conflict Tasks Serving Saenz's own Interests
Finally, Ford complains that Saenz is not entitled to post-conflict work done in pursuit of his own interests, including researching ad litem fees, meeting with Ford's counsel regarding his ad litem fees, and defending his award of ad litem fees on appeal. Ford asserts that the trial court abused its discretion in awarding guardian ad litem fees for this work. We agree.
According to his verified fee statement, Saenz billed 3.5 hours or $1,050 for researching ad litem fees. Saenz also billed 1.5 hours or $450 for meeting with Ford's counsel to discuss his ad litem fees. These tasks are not included with his guardian ad litem role. See Brownsville Reg'l, 894 S.W.2d at 756-57; Gamez, 151 S.W.3d at 587. And Saenz is not entitled to recover his appellate fees because Saenz is representing his own interest in an appeal related solely to the dispute over his ad litem fees. See Brownsville Reg'l, 894 S.W.2d at 756-57; Gamez, 151 S.W.3d at 587; see also De Leon, 2011 WL 227669, at *5. We conclude that the trial court abused its discretion in awarding these post-conflict fees. See Land Rover, 210 S.W.3d at 607.
E. Summary
In sum, we sustain Ford's second issue in part as to (1) $991 of the trial court's additional award because it has no evidentiary support to establish reasonable and necessary fees, (2) $1,500 of the trial court's award for entries related to Saenz's research and consultations about ad litem fees because that award is for tasks that are not compensable, and (3) up to $20,000 awarded for appellate fees because that award is also for tasks that are not compensable. We overrule the second issue in part as to the trial court's additional award of $459 because Saenz satisfied his burden of establishing that this fee was necessary and reasonable. See Land Rover, 210 S.W.3d at 607; Sterling, 822 S.W.2d at 10; see also De Leon, 2011 WL 227669, at *3. We also overrule Ford's "psychologist-billing" argument.
V. THE TRIAL COURT'S ORDER TO PAY ANY ATTORNEY AD LITEM FEES
By its third issue, Ford argues that even if Saenz is entitled to the attorney ad litem fees awarded at the hearing, the trial court abused its discretion in ordering Ford to pay for them. See Garcia, 363 S.W.3d at 577 (explaining that attorney ad litem fees are not taxable to the defendant as costs). Because we have determined that Saenz's role was that of a guardian ad litem in this case and not that of an attorney ad litem and that all fees properly awarded were for Saenz's role as guardian ad litem, we need not address this issue. See TEX. R. APP. P. 47.1.
VI. CONCLUSION
Because we have concluded that the trial court erred in appointing David Saenz attorney ad litem in this case, we modify the judgment to reflect Saenz's appointment only as guardian ad litem for Maria de Lourdes Aguilar, Incapacitated. We also modify the trial court's judgment to award Saenz guardian ad litem fees in the amount of $7,509 against Ford and no appellate fees. We affirm the judgment as modified.
For purposes of calculating the award, we subtracted $1,500 (non-compensable post-conflict fees) from the $8,550 requested in Saenz's verified fee statement and added $459 (the trial court's additional fee award that Saenz established at the hearing), for a total of $7,509. We excluded the trial court's award of non-compensable appellate fees.
NELDA V. RODRIGUEZ
Justice Delivered and filed the 9th day of February, 2017.