B&G Crane Service LLC v. Hector Barron, Individually and as Representative of the Estate of Miguel Barron, Jorge Barron, Miguel Barron, Maria Barron, Isabel Barron, Jacqueline M. Berrios, as Next Friend of A.M.B., and Melissa Perez as Next Friend of M.N.B., and Osiel Rocha

• Court: Court of Appeals of Texas
• Decided: June 9, 2022
• Docket: 09-20-00169-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-20-00169-CV ________________

B&G CRANE SERVICE, LLC, Appellant

V.

HECTOR BARRON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF MIGUEL BARRON, JORGE BARRON, MIGUEL BARRON, MARIA BARRON, ISABEL BARRON, JACQUELINE M. BERRIOS, AS NEXT FRIEND OF A.M.B., AND MELISSA PEREZ AS NEXT FRIEND OF M.N.B., AND OSIEL ROCHA, Appellees __________________________________________________________________

On Appeal from the 60th District Court Jefferson County, Texas Trial Cause No. B-198,493 __________________________________________________________________

MEMORANDUM OPINION

In this appeal, we are asked to review the trial court’s order of a guardian ad

litem fee in the amount of $43,563.20. Appellant contends that the fee is not

reasonable and necessary, as contemplated by Texas Rule of Civil Procedure

173.6(a), that the guardian ad litem exceeded the scope of his appointment, and that

the record before the trial court contained no evidence or insufficient evidence to

1 support the fee award. For these reasons, Appellant contends that the trial court

abused its discretion in awarding the fee in question. Based on our review of the

record and prevailing legal precedent, we conclude that the trial court abused its

discretion in awarding the ad litem fee; we therefore will reverse the decision of the

trial court and render a decision that the guardian ad litem may not recover a fee

from Appellant.

Background

A. Procedural Case History

Miguel Barron was fatally injured on or about May 11, 2016. Shortly

thereafter, his family members filed suit against three defendants to recover damages

attributable to his death. When the parties reached a settlement with two defendants,

ExxonMobil Oil Corporation (“Exxon”) and AltairStrickland, LLC (“Altair”), these

two defendants and the next friends of the then minor plaintiffs requested the trial

court to appoint a guardian ad litem pursuant to Texas Rule of Civil Procedure 173,

so that the trial court could approve the minor settlements with these defendants.

Appellant, B&G Crane Service, LLC (“B&G”) was not a party to the agreed motion

to appoint the guardian ad litem. The trial court granted the motion on April 19,

2018, the day after it was filed, and as requested, appointed Charlton Hornsby as the

guardian ad litem “for Minor plaintiff.”

2 On June 26, 2018, the trial court approved the settlement as to these two

defendants, and the claims against these parties were then severed and assigned a

separate case number.

Eventually, the case proceeded to trial against the only remaining defendant,

B&G. After a jury rendered a verdict on liability and damages and, after variety of

proceedings in the trial court and in this court, B&G settled the matter. At the time

of the B&G settlement, M.N.B. was the sole remaining minor plaintiff, and the trial

court approved the settlement as to M.N.B. at a hearing conducted on April 6, 2020.1

During that hearing, Defendant objected to the ad litem fee that Hornsby was

requesting, and the trial court postponed a hearing on that matter until April 22, 2020.

Following the April 22, 2020 hearing regarding ad litem fees, the trial court approved

the fee in the amount of $43,563.20, even though Hornsby had slightly reduced his

fee request to account for some errors that B&G had called to his attention.

B. Testimony at the April 22, 2020 Hearing

1. Testimony of Charlton Hornsby

Charlton Hornsby testified that he was originally appointed as guardian ad

litem by order of the court dated April 19, 2018. After removing some apparently

excessive and/or duplicative items from his bill he originally submitted to the court,

1 We use pseudonyms or initials in place of the names of the plaintiffs who were minors at the time that the underlying suit was filed, to protect the minors’ identities. Tex. R. App. P. 9.9(a)(3). 3 he requested the trial court to award him a fee of $39,100, representing 97.75 billable

hours, billed at $400 per hour, plus a relatively token amount for expenses. Hornsby

otherwise defended his fee application, noting his expertise and experience, as well

as his customary billing practices and hourly rate. In particular, he stated that it was

necessary for him to remain apprised of the progress of the case, including evaluating

settlement offers and the probability of success at trial and on appeal, so that he could

fulfill his role as guardian ad litem and advise the trial court as to the minor’s best

interests.

As for the scope of his ad litem appointment, Hornsby testified that although

he did not read the April 18, 2018 motion to appoint him as guardian ad litem, he

did read the April 19, 2018 order granting the motion. Based on his reading of the

order, he believed that he was appointed pursuant to the agreement of all parties,

including B&G. Hornsby further expressed his belief that he was protecting

M.N.B.’s best interest by remaining involved with the case after the conclusion of

the Exxon and Altair settlement, and that this continued involvement was authorized

by the above-referenced order.

Hornsby confirmed that he had multiple conversations with both Byron

Alfred, Plaintiffs’ counsel, and with Bernie Daleo, the settlement consultant, about

how best to structure and/or invest the minor’s settlement proceeds, and further

4 noted that there was a potential conflict of interest between the minor and her mother,

Melissa Perez, who was a party to the suit as the minor’s next friend.2

2. Testimony of Byron Alfred

Mr. Alfred, Plaintiffs’ attorney, testified that Hornsby was instrumental in

bringing about M.N.B.’s settlement with B&G, in that he persuaded Perez to agree

to the terms of the settlement structure. Alfred did not disagree with Hornsby’s fee

application and indicated that he never considered Hornsby to have been acting

outside the scope of his proper role as a guardian ad litem.

3. Comments of Bernie Daleo

Mr. Daleo, the settlement consultant, advised the trial court that Hornsby was

extensively involved in designing M.N.B.’s structured settlement, and that Hornsby

went “above and beyond the call of duty[]” in his conduct as guardian ad litem.

Standard of Review

We review a trial court’s decision to award a guardian ad litem fee for an

abuse of discretion. Ford Motor Co. v. Chacon, 370 S.W.3d 359, 362 (Tex. 2012)

(per curiam). We must not substitute our judgment for the trial court’s judgment

unless the trial court’s judgment was so arbitrary that it exceeded the bounds of

reasonable discretion. See id. We review the evidence in the light most favorable to

2 Ms. Perez did not sue in her individual capacity, but she did receive a portion of the settlement proceeds. 5 the trial court’s judgment and draw all legitimate inferences from the evidence in a

manner most favorable to the trial court’s judgment. See Cameron Int’l Corp. v.

Guillory, 445 S.W.3d 840, 845 (Tex. App.—Houston [1st Dist.] 2014, no pet.). We

will not find an abuse of discretion if the trial court heard conflicting evidence and

evidence appears in the record that reasonably supports the trial court’s decision.

Dall. Anesthesiology Assocs., P.A. v. Tex. Anesthesia Grp., P.A., 190 S.W.3d 891,

896 (Tex. App.—Dallas 2006, no pet.). The trial court abuses its discretion when it

misapplies the law to the “established facts, or when the evidence does not

reasonably support the conclusion that the applicant has a probable right of

recovery.” State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975) (citations

omitted).

Analysis

The Texas Supreme Court noted in Chacon that “[a] guardian ad litem is an

officer appointed by the court to assist in protecting a party’s interests when that

party’s next friend or guardian appears to have an interest adverse to the

party.” Chacon, 370 S.W.3d at 362 (citing Tex. R. Civ. P. 173; Land Rover U.K.,

Ltd. v. Hinojosa, 210 S.W.3d 604, 607 (Tex. 2006)). The Chacon court further

addressed the legal authority and role of a guardian ad litem explaining,

Texas Rule of Civil Procedure 173 governs the procedure for appointing and compensating a guardian ad litem. Rule 173 requires that a guardian ad litem’s appointment must be made by written order of the trial court. A guardian ad litem has the burden to ensure that his 6 services do not exceed the scope of the role assigned by the trial court. In the context of that appointment, 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.

370 S.W.3d at 361-362 (internal quotations and citations omitted).

A. Revised Fee Application

Because Hornsby revised his fee application to request a total fee of

$39,663.20, the trial court abused its discretion by awarding him an ad litem fee in

his originally-requested amount of $43,563.20. If that discrepancy were the sole

error in the trial court’s judgment, we would be content to reverse the lower court’s

order and render a judgment awarding Hornsby a fee of $39,663.20. Because

Appellant has called more serious errors to our attention, however, we must evaluate

the matter in more depth.

B. Hornsby Exceeded the Scope of His Appointment

Texas Rule of Civil Procedure 173 governs the appointment of a guardian ad

litem. This Rule sets forth the proper role of the guardian ad litem, and contemplates

that absent unusual circumstances, the guardian ad litem will have only a limited

role in the case. See Tex. R. Civ. P. 173 cmts. 3, 4. During the April 22, 2020 hearing,

Hornsby acknowledged the existence of case law applying this Rule and holding that

when a guardian ad litem performs work that is either unnecessary or is duplicative

of the plaintiff’s attorney’s efforts, the guardian ad litem will not be paid for

performing that work. Chacon, 370 S.W.3d at 362; Ford Motor Co. v. Garcia, 363 7 S.W.3d 573, 580 (Tex. 2012); Land Rover, 210 S.W.3d at 607. The question before

us, then, is whether Hornsby exceeded the scope of his appointment by performing

work that was either not necessary to his function as a guardian ad litem or that was

more properly within the province of Plaintiffs’ retained attorney. In order to make

this determination, we must identify the scope of Hornsby’s appointment as a

guardian ad litem. Because the scope of the appointment is not set out with

particularity in the trial court’s order of April 19, 2018, we must examine the context

of the appointment, including the timing of it, to determine its scope. Chacon, 370

S.W.3d at 362 (citing Garcia, 363 S.W.3d at 577).

There is no dispute that Hornsby was appointed nearly two years after

Plaintiffs filed suit, and approximately two months before the June 26, 2018

settlement hearing involving the then minor plaintiffs and Defendants Exxon and

Altair. There is also no dispute that the motion to appoint Hornsby does not reference

B&G, and that B&G was not a party to the settlement approved on June 26, 2018.

In addition, Hornsby acknowledged that following the trial court’s approval of the

Exxon and Altair settlement, these two defendants paid him an agreed ad litem fee

of $22,000.3 Considering the timing of Hornsby’s appointment as a guardian ad litem

3 The record contains inconsequential discrepancies as to the exact amount of this agreed fee, but because these slightly-differing figures do not affect the outcome of this appeal, we have used the $22,000 figure that Hornsby acknowledged during the April 22, 2020 hearing. 8 vis à vis the settlement, and further considering the fact that the motion to appoint

him stated that the claims had been settled, and referenced no parties other than the

then minor plaintiffs, their next friends, and the two settling defendants (Exxon and

Altair), we conclude that the trial court appointed Hornsby to act as the minor

plaintiffs’ guardian ad litem for the purpose of having their settlement approved as

to Defendants Exxon and Altair, and for no other purpose. The temporary conflict

of interest between the minor plaintiffs and their next friends therefore ceased when

the settlement was approved as to Exxon and Altair, and Hornsby’s duties as

guardian ad litem also ceased at that time. Goodyear Dunlop Tires N. Am., Ltd. v.

Gamez, 151 S.W.3d 574, 586-88 (Tex. App.—San Antonio 2004, no pet.). The ad

litem's role ends when the conflict between the minor and his parents, guardian or

next friend ceases to exist. Brownsville–Valley Regional Medical Ctr. v. Gamez, 894

S.W.2d 753, 755 (Tex.1995). Work performed outside the scope of the guardian ad

litem's duties or after the conflict has been resolved will not be compensated. Id. at

754. The claims for which Hornsby was appointed were severed from the main case

and assigned its own cause number. For that reason, Hornsby’s continued activities

in the remainder of the case were beyond the scope of his appointment as guardian

ad litem and are not compensable. Chacon, 370 S.W.3d at 360.

Hornsby’s contention that it was necessary for him to continue his

involvement in the case to evaluate B&G’s settlement offers was considered by the

9 Supreme Court in Chacon and expressly rejected. Id. at 362-63; see also Jocson v.

Crabb, 133 S.W.3d 268, 271 (Tex. 2004). Hornsby was not appointed as a guardian

ad litem until the parties had agreed to settlement terms as to Defendants Exxon and

Altair, as shown by the motion to appoint him. If a guardian ad litem’s involvement

truly was essential to ongoing settlement negotiations, logic dictates that Hornsby,

or another individual, would have been appointed earlier in the litigation process to

evaluate any previous settlement offers that any defendant might have extended.

Moreover, Hornsby had no guarantee that Plaintiffs’ case against B&G would

resolve by settlement or that he would be appointed as the guardian ad litem in the

event that a settlement took place. If, for example, the trial court had appointed a

different individual to serve as guardian ad litem regarding the B&G settlement, or

if B&G’s liability to Plaintiffs had been determined pursuant to a trial on the merits

of the case, Hornsby would have had no claim to an ad litem fee because there would

have been no conflict of interest between the minor plaintiff, M.N.B., and her next

friend. Consequently, any work he performed after the conclusion of the Exxon and

Altair settlement was beyond the scope of his original appointment and without court

order appointing him for the claims against B&G before the work was performed.

Although it appears that the parties, including B&G, continued to treat

Hornsby as a guardian ad litem long after the Exxon and Altair settlements were

concluded, such conduct does not create a guardian ad litem appointment by

10 estoppel, by ratification, by waiver, or by means of any other legal theory, because

a guardian ad litem appointment “must be made by written order.” Tex. R. Civ. P.

173.3(b).4 It is irrelevant to the disposition of this question that B&G lodged no

objection to Hornsby’s activities or his fees until the April 22, 2020 hearing after the

trial court had approved the minor’s settlement, because applicable Texas case

authority consistently holds that an objection is timely if it is raised at the guardian

ad litem’s fee hearing.5 Gamez, 151 S.W.3d at 582; Jocson, 133 S.W.2d at 270.

Hornsby’s contention that his appointment as guardian ad litem was necessary

to the integrity of the settlement approved on April 6, 2020 is likewise unpersuasive,

because the lack of a guardian ad litem would have made that settlement approval

voidable, not void. Hungate v. Hungate, 531 S.W.2d 650, 653 (Tex. Civ. App.—El

Paso 1975, no writ). A voidable judgment may become final and will do so unless it

is the subject of a successful direct attack; a void judgment, conversely, may be

subject to a collateral attack. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863

(Tex. 2010). The trial court’s judgment approving M.N.B.’s settlement was not

4 Hornsby did not assert any claim for quantum meruit nor do we address whether any such claim would be viable pursuant to Tex. R. Civ. P. 173. 5 Hornsby’s characterization of B&G’s timely objection as a “gotcha” disregards established precedent. Instead, it was Hornsby’s responsibility to determine the scope of his appointment as guardian ad litem. Gamez, 151 S.W.3d at 582. 11 appealed and is not void for lack of jurisdiction; it therefore has become final,

regardless of the presence or absence of a guardian ad litem.

Because the appellate record makes it clear that Hornsby exceeded the scope

of his April 19, 2018 appointment as guardian ad litem for the minor plaintiffs in the

Exxon and Altair settlement, because the trial court made no written order

appointing Hornsby as a guardian ad litem in the B&G settlement, and because a

guardian ad litem appointment cannot be created by waiver, we are bound by the

holding in Chacon and sustain Appellant’s first three issues on appeal.

Conclusion

Given our conclusion that the trial court abused its discretion in awarding

Hornsby’s ad litem fee because Hornsby exceeded the scope of his appointment, we

need not address Appellant’s additional contentions. See Tex. R. App. P. 47.1.

For this reason, the trial court’s order ordering Appellant to pay a guardian ad

litem fee is reversed, and it is ordered that the guardian ad litem, Charlton Hornsby,

take nothing from Appellant, B&G Crane Service LLC.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

___________________________________ CHARLES KREGER Justice Submitted on January 26, 2022 Opinion Delivered June 9, 2022

Before Golemon, C.J., Kreger and Johnson, JJ. 12