Supreme Court Issues Ad Litem Fee Opinion

This morning, the Texas Supreme Court issued a per curiam opinion in a case which concludes that a guardian ad litem’s fee was unreasonable and remands to the trial court the issue of the reasonableness of the fee. The case discusses the applicable standard for evaluating an ad litem’s fee and is an important one for anyone who litigates cases in which settlements are made on behalf of minor children.

The underlying case stemmed from a Land Rover rollover involving a family of four. The parents and one of the children survived, but the other child was killed in the rollover. The parents, the estate of the killed son, and the surviving son (the brother) brought claims against vehicle manufacturer and the tire manufacturer. When settlement became a possibility, the trial court appointed a guardian ad litem to represent the interest of the surviving brother. The tire company, as part of its settlement, paid the ad litem $45,000.00. When the ad litem requested $100,000.00 from Land Rover, however, Land Rover objected.

The trial court ultimately awarded the guardian ad litem $100,000.00 in fees assessed against Land Rover, Land Rover appealed, and the 13th Court of Appeals affirmed the fee award. According to the Court of Appeals, the plaintiffs’ attorneys submitted evidence of the ad litem’s having spent in excess of 150 hours on the extremely complex case, of his impressive reputation, and of his customary hourly rate of $500.00. That being the case, evidence supported the award, and the Court of Appeals affirmed, writing that “courts of appeals are not factfinders, and thus, are not free to second-guess a factual determination made by a trial court under an abuse of discretion standard of review.”

The Supreme Court, however, reversed both courts, on the basis that the fee was unreasonable. According to this morning’s opinion, a guardian ad litem must represent the interest of the minor, but not serve as the minor’s attorney. Therefore, the role does not allow for the ad litem to expend large amounts of time duplicating work performed by the plaintiffs’ attorney. In this case, according to the Supreme Court, the ad litem did just that. Additionally, according to the Court, since the ad litem did not really keep track of his time it was difficult for him to justify the amount of his fee, even assuming an hourly rate of $500.00.

Land Rover v. Juan Hinojosa, ___ S.W.3d ___ (Tex. 2006) (Cause No. 04-0794).