OPINION
HUGHES, Justice.
Celanese Chemical Company, Inc. (Cela-nese), appeals from a judgment ordering it to pay a fee of $100,000 to the attorney ad litem of the minor plaintiffs, the Burleson children appellees.
On January 7, 1987, the plaintiff and appellee, Jimmy Lee Burleson, an employee of Mundy Contractors, Inc., was injured while working as a pipefitter at the Cela-nese Bayport Marine Terminal. Burleson sued Celanese for negligence, seeking damages for his injuries, physical impairment, loss of enjoyment of life, medical expenses, and loss of capacity to work. The Burleson children sought damages for loss of their father’s consortium. On January 4, 1990, almost three years after the suit was filed, the trial court granted Burleson’s motion to appoint an attorney ad litem for the Burle-son children.
On June 11, 1990, the trial court entered judgment, according to the agreement of the parties, finding the agreement to be reasonable, fair, just, and in the best interest of the appellees. The judgment award[259]*259ed $1,325,341 to Burleson and $24,817- to Jimmy Lee Burleson, Jr., $24,926 to Catherine Nickole Burleson, and $24,916 to Roni Jo Burleson, his children.2 The awards to the Burleson children were free of all costs and fees. The parties were unable to agree on the fee to be awarded the attorney ad litem.
At the bench trial on the issue of the attorney ad litem fee, the ad litem testified as follows:
(1) He is a licensed attorney, has been practicing for 24 years, and his area of specialty is personal injury and family law.
(2) Because the settlement was a structured one, and annuities would be purchased for the Burleson children (presently aged two to five years), his office would need to keep open files on the children for periods of 13 to 16 years to receive and review data and answer questions. He also spent time getting quotes on the annuities.
(3) His work on the case involved reviewing the pleadings, reading the depositions and deposition summaries, and participating in discovery. He reviewed the financial data on the Burleson family to devise a structured settlement to meet its various needs.
(4) He was involved in the “hotly” contested issues of discovery compliance, concerning whether sanctions should be entered against Celanese.
(5) For the previous three months, he had attended numerous pretrial hearings on the case.
(6) He was involved in discussions with the intervenor workers’ compensation carrier, determining how much would be paid to it.
(7) The hours he spent on the case to date totalled 150.
(8)It was his opinion, in accordance with the code of professional responsibility and considering the complexity of the case, the experience of the lawyer, the issues involved, and the period of time involved in the future for handling the case, that a fee of $100,000 was just, fair, and reasonable.
Burleson’s attorney also testified in support of the ad litem, stating that he agreed with the ad litem’s testimony, that he would have thought the hours were greater than 150, and that the ad litem made a substantial and crucial contribution to the outcome of the case.
The Celanese attorney did not cross-examine either the ad litem or Burleson’s attorney, nor did he introduce any evidence concerning the ad litem’s fee request. He did argue that the requested fee was unreasonable given the number of work hours (150) testified to by the ad litem.
The trial court awarded the ad litem his requested $100,000, stating, “All right. Under all the circumstances and the totality of everything, I’ll go ahead with the $100,000.”
In its motion for new trial, Celanese objected to the ad litem’s fee as manifestly too large, contending there was insufficient evidence to support the award and that the amount of the award was against the great weight and preponderance of the evidence. Celanese introduced no evidence. In his response, the attorney ad litem stated that the Burleson children’s cause of action for loss of parental consortium, even though their father’s injuries were nonfatal, was not one judicially recognized in Texas. He argued that he was successful in convincing the trial court to deny Celanese’s special exceptions to the cause of action until the Texas Supreme Court ruled on a similar issue in Vaughn v. Reagan, 784 S.W.2d 88 (Tex.App.—Houston [14th Dist.] 1989), [260]*260affd in part and rev’d in part, 804 S.W.2d 463 (Tex.1990).3 He contended that the overruling of its special exceptions caused Celanese to reevaluate the case and raised the potential value of the case. The ad litem also tendered to the trial court a computer listing of the time he had spent on the case. That printout indicated that the ad litem’s law firm had charged a total of $41,521 in fees (based on a total of lawyer and clerk hours of 180.7 to the date of the motion for new trial hearing) to the Burleson children’s account and disbursed $603.30 in expenses. The trial court denied the motion for new trial.
Celanese does not contest the appointment of the ad litem or that it is the party required to pay an ad litem fee. However, in two points of error, Celanese contends that the trial court abused its discretion by awarding an excessive fee to the attorney ad litem and that there was no evidence or insufficient evidence to support such an excessive fee.
Although referred to as an “attorney ad litem,” the ad litem was appointed under Tex.R.Civ.P. 173, which requires a “guardian ad litem” to be appointed for a minor where the minor’s next friend represents him or her in a suit and appears to have an adverse interest. Celanese does not complain about the discrepancy in titles. Moreover, this Court has previously held that an improper designation of an ad litem is not fatal. Sheehan v. Southern Pac. Co., 422 S.W.2d 948, 949 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ ref’d n.r.e.); see also Phillips Petroleum Co. v. Welch, 702 S.W.2d 672, 674 (Tex.App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) (improper designation as attorney ad litem rather than guardian ad litem by trial court is not of controlling import). Under rule 173, a guardian ad litem is paid a “reasonable fee” for his services.
The amount of compensation awarded a guardian ad litem lies within the discretion of the trial court and will not be overturned unless a clear abuse of discretion is apparent from the record. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 794-95 (Tex.1987); Smith v. Smith, 720 S.W.2d 586, 591 (Tex.App.—Houston [1st Dist.] 1986, no writ); Welch, 702 S.W.2d at 674; Poston v. Poston, 572 S.W.2d 800, 802-803 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ).
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
HUGHES, Justice.
Celanese Chemical Company, Inc. (Cela-nese), appeals from a judgment ordering it to pay a fee of $100,000 to the attorney ad litem of the minor plaintiffs, the Burleson children appellees.
On January 7, 1987, the plaintiff and appellee, Jimmy Lee Burleson, an employee of Mundy Contractors, Inc., was injured while working as a pipefitter at the Cela-nese Bayport Marine Terminal. Burleson sued Celanese for negligence, seeking damages for his injuries, physical impairment, loss of enjoyment of life, medical expenses, and loss of capacity to work. The Burleson children sought damages for loss of their father’s consortium. On January 4, 1990, almost three years after the suit was filed, the trial court granted Burleson’s motion to appoint an attorney ad litem for the Burle-son children.
On June 11, 1990, the trial court entered judgment, according to the agreement of the parties, finding the agreement to be reasonable, fair, just, and in the best interest of the appellees. The judgment award[259]*259ed $1,325,341 to Burleson and $24,817- to Jimmy Lee Burleson, Jr., $24,926 to Catherine Nickole Burleson, and $24,916 to Roni Jo Burleson, his children.2 The awards to the Burleson children were free of all costs and fees. The parties were unable to agree on the fee to be awarded the attorney ad litem.
At the bench trial on the issue of the attorney ad litem fee, the ad litem testified as follows:
(1) He is a licensed attorney, has been practicing for 24 years, and his area of specialty is personal injury and family law.
(2) Because the settlement was a structured one, and annuities would be purchased for the Burleson children (presently aged two to five years), his office would need to keep open files on the children for periods of 13 to 16 years to receive and review data and answer questions. He also spent time getting quotes on the annuities.
(3) His work on the case involved reviewing the pleadings, reading the depositions and deposition summaries, and participating in discovery. He reviewed the financial data on the Burleson family to devise a structured settlement to meet its various needs.
(4) He was involved in the “hotly” contested issues of discovery compliance, concerning whether sanctions should be entered against Celanese.
(5) For the previous three months, he had attended numerous pretrial hearings on the case.
(6) He was involved in discussions with the intervenor workers’ compensation carrier, determining how much would be paid to it.
(7) The hours he spent on the case to date totalled 150.
(8)It was his opinion, in accordance with the code of professional responsibility and considering the complexity of the case, the experience of the lawyer, the issues involved, and the period of time involved in the future for handling the case, that a fee of $100,000 was just, fair, and reasonable.
Burleson’s attorney also testified in support of the ad litem, stating that he agreed with the ad litem’s testimony, that he would have thought the hours were greater than 150, and that the ad litem made a substantial and crucial contribution to the outcome of the case.
The Celanese attorney did not cross-examine either the ad litem or Burleson’s attorney, nor did he introduce any evidence concerning the ad litem’s fee request. He did argue that the requested fee was unreasonable given the number of work hours (150) testified to by the ad litem.
The trial court awarded the ad litem his requested $100,000, stating, “All right. Under all the circumstances and the totality of everything, I’ll go ahead with the $100,000.”
In its motion for new trial, Celanese objected to the ad litem’s fee as manifestly too large, contending there was insufficient evidence to support the award and that the amount of the award was against the great weight and preponderance of the evidence. Celanese introduced no evidence. In his response, the attorney ad litem stated that the Burleson children’s cause of action for loss of parental consortium, even though their father’s injuries were nonfatal, was not one judicially recognized in Texas. He argued that he was successful in convincing the trial court to deny Celanese’s special exceptions to the cause of action until the Texas Supreme Court ruled on a similar issue in Vaughn v. Reagan, 784 S.W.2d 88 (Tex.App.—Houston [14th Dist.] 1989), [260]*260affd in part and rev’d in part, 804 S.W.2d 463 (Tex.1990).3 He contended that the overruling of its special exceptions caused Celanese to reevaluate the case and raised the potential value of the case. The ad litem also tendered to the trial court a computer listing of the time he had spent on the case. That printout indicated that the ad litem’s law firm had charged a total of $41,521 in fees (based on a total of lawyer and clerk hours of 180.7 to the date of the motion for new trial hearing) to the Burleson children’s account and disbursed $603.30 in expenses. The trial court denied the motion for new trial.
Celanese does not contest the appointment of the ad litem or that it is the party required to pay an ad litem fee. However, in two points of error, Celanese contends that the trial court abused its discretion by awarding an excessive fee to the attorney ad litem and that there was no evidence or insufficient evidence to support such an excessive fee.
Although referred to as an “attorney ad litem,” the ad litem was appointed under Tex.R.Civ.P. 173, which requires a “guardian ad litem” to be appointed for a minor where the minor’s next friend represents him or her in a suit and appears to have an adverse interest. Celanese does not complain about the discrepancy in titles. Moreover, this Court has previously held that an improper designation of an ad litem is not fatal. Sheehan v. Southern Pac. Co., 422 S.W.2d 948, 949 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ ref’d n.r.e.); see also Phillips Petroleum Co. v. Welch, 702 S.W.2d 672, 674 (Tex.App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) (improper designation as attorney ad litem rather than guardian ad litem by trial court is not of controlling import). Under rule 173, a guardian ad litem is paid a “reasonable fee” for his services.
The amount of compensation awarded a guardian ad litem lies within the discretion of the trial court and will not be overturned unless a clear abuse of discretion is apparent from the record. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 794-95 (Tex.1987); Smith v. Smith, 720 S.W.2d 586, 591 (Tex.App.—Houston [1st Dist.] 1986, no writ); Welch, 702 S.W.2d at 674; Poston v. Poston, 572 S.W.2d 800, 802-803 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ).
Celanese did not request, and the trial court did not make, findings of fact and conclusions of law. Therefore, we presume the trial court made all necessary findings to support the judgment. Lemons v. EMW Mfg. Co., 747 S.W.2d 372, 373 (Tex.1988); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). However, the legal and factual sufficiency of the implied findings may be challenged on appeal, and the standard of review will be the same one applied to jury findings and a trial court’s findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989); Burnett, 610 S.W.2d at 736.
When an appellant challenges the legal sufficiency of an adverse finding to an issue on which he did not have the burden of proof, we consider only the evidence and inferences, when viewed in their most favorable light, that tend to support the finding and disregard all others to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 242 (Tex.1988); In re King’s Estate, 150 Tex. 662, 664, 244 S.W.2d 660, 661 (1951). When an appellant challenges the factual sufficiency of the evidence to support an adverse finding, we consider and weigh all the evidence, both that in support of and contrary to the challenged finding. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). We must uphold the finding, unless we decide the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. In re King’s Estate, 150 Tex. at 664-65, 244 S.W.2d at 661; M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, [261]*261623 (Tex.App.—Houston [1st Dist.] 1987, no writ).
The Texas Supreme Court has stated that the discretion of the trial court in setting an ad litem fee is not unbridled. Simon, 739 S.W.2d at 794. It has also stated that the same factors used to determine the reasonableness of attorney fees are controlling, and that those factors include the difficulty and complexity of the case, the amount of time spent by the attorney, the benefit derived by the client, and the skill and experience reasonably needed to perform. Id.; see also Alford v. Whaley, 794 S.W.2d 920, 926 (Tex.App.—Houston [1st Dist.] 1990, no writ).
The ad litem testified that he was an experienced lawyer, that the case was complex, that he had spent 150 hours to the date of judgment on the case, and that $100,000 was a just, fair, and reasonable fee for his services. Burleson’s attorney testified that he agreed with this testimony. The testimony of an interested witness may establish a fact as a matter of law only if the testimony could be readily contradicted if untrue and is clear, direct, and positive and there are no circumstances tending to discredit or impeach it. Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex.1989). The ad litem’s testimony that a $100,000 fee was reasonable is contradicted by his testimony that he spent 150 hours working on the case and that his firm’s internal billing attributed $41,521 in fees to the case. However, even if the testimony of the ad litem does not support the legal sufficiency of the trial court’s implied finding of reasonableness of the fee, the testimony of Burleson’s counsel does. We find there is more than a scintilla of evidence to support the reasonableness of the ad li-tem’s fee.
In reviewing the factual sufficiency of the evidence on the reasonableness of the ad litem’s fee, we begin by examining what other Texas courts have said regarding reasonable fees. In Vaughn v. Gunter, 458 S.W.2d 523, 528 (Tex.Civ.App.—Dallas 1970, writ ref’d n.r.e.), the court found the evidence supported the reasonableness of the ad litem fee where the fee awarded was $10,000, the firm had worked a total of 166 hours, and the litigation involved a trust worth in excess of $2,000,000. In Welch, 702 S.W.2d at 675, the Fourteenth Court of Appeals found the evidence supported an ad litem award of $166,667, where the total settlement was $5,150,000; the minor received $1,000,000 free of costs, expenses, and fees; attorneys for both sides testified that the settlement would not have been accomplished but for the ad litem’s efforts; and the ad litem’s statement documented 449 hours of work. In Brown & Root U.S.A., Inc. v. Trevino, 802 S.W.2d 13, 15-16 (Tex.App.—El Paso 1990, no writ), the court found that an ad litem award of $125,000 ($115,000 in fees and $10,000 in expenses) for 500 hours of work, equaling $230 per hour was excessive.
The ad litem and Burleson’s attorney testified that the $100,000 ad litem fee was reasonable. In opposition to this, we have the ad litem’s internal firm invoice indicating that the actual fee incurred was $41,-521 and his testimony that the actual hours expended were 150 to the day of judgment. The fee awarded by the trial court divided by the actual hours expended equals an hourly rate of $666.
The settlement agreement shows that the Burleson children were awarded $74,-659, approximately $25,000 less than the ad litem fee, but that they will enjoy no benefit from this until the years 2003, 2005, and 2006. While it is true that they will enjoy future benefits totalling $112,000, $135,000, and $143,000, which are far in excess of the present dollars awarded, it is the present value that must be considered. Had the children actually received the $74,659 and were it invested in their behalf, we would consider only the benefit from the principal. Moreover, the ad litem fee is paid in the present.
Although the cause of action, loss of parental consortium without parental death, asserted by the ad litem was a novel one only recently recognized by the Texas Supreme Court, the services of the ad litem did not involve complex matters. There was no trial, and the ad litem filed no trial brief. Most of the ad litem’s activities [262]*262consisted of reviewing the file and conferring with the court and the other parties. Additionally, the ad litem attended a motion for preferential setting hearing, two motion for sanctions hearings, and the final settlement hearing, filed an answer to Cela-nese’s special exceptions, and drafted pleadings regarding sanctions to be imposed.
We acknowledge the testimony of the ad litem that he would need to keep files open on the Burleson children for periods of 13 to 16 years in order to receive and review data and answer questions. This activity is not part of an ad litem’s duty. Assuming that such service accounts for the difference between the firm’s internal invoice and the $100,000 fee awarded, the ad litem would be receiving for future, possibly contingent, and unspecified services a greater sum than for his ad litem services.
When we consider the hours spent by the ad litem, the complexity of the case, and the present benefit to the client reflected in the record before us, we find that the evidence is factually insufficient to support the ad litem’s fee and that the trial court abused its discretion in awarding the $100,-000 fee. We sustain Celanese’s first point of error. We overrule Celanese’s second point of error relating to the legal sufficiency of the evidence, and sustain the point of error as it pertains to the factual sufficiency of the evidence. Because of our disposition of the points of error, it is unnecessary for us to address the cross-point of the appellees.
In Alford, this Court held that when a record showed a total of 90 hours for trial work and an hourly rate of $150, the trial court abused its discretion in awarding a $25,000 ad litem fee. 794 S.W.2d at 926. We reformed the judgment to set the ad litem fee at $13,500. Id. at 926. We noted that an appellate court has the authority to draw on the common knowledge of the justices of the court and their experience as lawyers and judges to view the matter in light of the testimony, the record, and the amount in controversy. Id. at 925 (citing Dawson v. Garcia, 666 S.W.2d 254, 264 (Tex.App.—Dallas 1984, no writ) and Golden v. Murphy, 611 S.W.2d 914, 916 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ)).
Accordingly, we reverse the judgment on the attorney ad litem fee and render judgment that the ad litem recover from Cela-nese the amount of $41,521 plus $603.30 in expenses.