
DISSENTING OPINION
No. 04-02-00795-CV
HOLT TEXAS, LTD.,
Appellant
v.
Oscar HALE, Jr.,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2000-CVT-000539-D1
Honorable Manuel R. Flores, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Dissenting opinion by: Alma L. López, Chief Justice
Sitting:	Alma L. López, Chief Justice
		Sandee Bryan Marion, Justice
		Phylis J. Speedlin, Justice
Delivered and Filed:	May 12, 2004
	In my opinion, deciding whether the trial court abused its discretion in awarding Hale
$50,000.00 for ad litem fees rests on the answers to the following two questions.  First, is a trial court
permitted to place added value on the services of an ad litem whose actions saved a settlement that
was in the best interests of the minor children?  Second, does a trial court abuse its discretion in
finding an ad litem's services to be more valuable because the ad litem's bilingual skills played a
critical role in preserving a settlement?
	I believe the answers to these questions are contained in the guiding rules and principles a trial
court is to consider in determining a reasonable and appropriate ad litem fee.  With regard to an ad
litem's actions in saving a settlement, the guiding rules and principles permit a trial court to consider
the time and labor required and the results obtained.  See Garcia v. Martinez, 988 S.W.2d 219, 222
(Tex. 1999).  Similarly, in regard to the critical need for a bilingual attorney, the trial court is
permitted to consider the skills required to perform the legal services properly and the ability of the
lawyer performing the services.  See id.  Since the guiding rules and principles permit the trial court
to add value to an ad litem's fee for actions taken in saving a settlement and for necessary bilingual
skills, the question then becomes whether this court is permitted to second-guess the amount of the
value that is added.  I believe the answer is no.  
	"A trial court does not necessarily abuse its discretion in awarding fees to a court-appointed
guardian ad litem if under the same facts, an appellate judge would decide the matter differently."
Borden, Inc. v. Martinez, 19 S.W.3d 469, 471 (Tex. App.--San Antonio 2000, no pet.).  Although
the majority in this case would have decided the amount of the fees differently, appellate judges are
not fact-finders and are not free to second-guess a factual determination made by a trial court under
an abuse of discretion standard of review.  See id. at 473-74 (declining to second-guess trial court's
review of hours and details).
	At the hearing, Hale testified that his work included meeting with the minor children, who
were three years old and five years old, respectively, and interviewing their mother and their paternal
grandparents.  Hale investigated to determine if the children had any additional needs, such as medical
conditions, that would require additional money through their minor years.  Hale made two trips to
Mexico at which time he discussed the proposed settlement with the family.  Hale testified that a great
deal of distrust was present between the plaintiffs and their own attorneys, particularly with regard
to representations being made about fees, costs, and expenses.  Hale testified that the plaintiffs
initially decided to reject the settlement offer because they believed they were entitled to receive a
greater percentage of the settlement.  The plaintiffs were [also] troubled by the placement of the
money in an annuity and wanted the money delivered to their bank account in Mexico.  Hale advised
the plaintiffs regarding his role and that delivering the money to a bank account would not be in the
children's best interest.  Hale explained to the plaintiffs that the children's money should be invested
until they turn eighteen because the children's mother would have sufficient money from the
settlement to maintain and support the children through their minor years.  Hale explained to the
plaintiffs the consequences of not accepting the overall settlement and the risk of going to trial.  Hale
believed that these explanations had not been provided by the plaintiffs' own attorneys because of the
language barrier.  Hale testified that his role as attorney ad litem served to maintain the settlement
agreement.
	In determining the amount of the ad litem fee, guiding rules and principles permitted the trial
court to consider Hale's testimony regarding the crucial role he played in obtaining the plaintiffs'
approval of the settlement and, in particular, explaining the necessity that the children's funds be
placed in an annuity.  See Phillips Petroleum Co. v. Welch, 702 S.W.2d 672, 675 (Tex.
App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.) (noting that settlement might not have been
accomplished without ad litem's efforts in affirming ad litem fee of $166,667.00).  Guiding rules and
principles also permitted the trial court to consider that Hale's bilingual skills were necessary in
finalizing the settlement in a manner that was in the best interest of the children.  Moreover, the trial
court's findings demonstrate that it was guided by these rules and principles in determining the
amount of the fee.  The trial court expressly found that Hale's "legal experience and Spanish speaking
ability were useful and necessary skills that were utilized by the Ad Litem in advocating for and on
behalf of the best interest of the minor children and were contributing factors to the final resolution
of the case."  The trial court also expressly found that Hale's "responsibilities were significant
considering the multi-million dollar settlement, the initial disagreement over the division of the funds,
the minor children's ages, and the extended exposure to liability."  With regard to this extended
exposure, the majority appears to discount any weight given to this factor, asserting that "Hale's
exposure to future liability is unlikely and speculative."  In Borden, however, this court was not so
quick to discount the importance of this factor, noting, "we recognize that with the appointment of
the guardian ad litem comes extended exposure to liability.  A guardian ad litem stands in a precarious
position as the statute of limitations for malpractice actions is tolled until the minor attains majority
plus any applicable limitations period thereafter."  19 S.W.3d at 474.
	In view of the foregoing, I would hold that the trial court did not act without reference to
guiding rules and principles and, therefore, did not abuse its discretion in awarding Hale $50,000.00
as fees for his ad litem services.  Because the majority holds to the contrary, I respectfully dissent.
	I also dissent to the majority's conclusion that the trial court abused its discretion in awarding
Hale fees for hours related to his dispute over his ad litem fees.  By not requiring a party to pay the
ad litem for the time the ad litem is required to expend in upholding an award, parties will be
encouraged to take the $125.00 gamble to appeal the award.  I disagree with this approach, and I find
that I am not the only appellate judge in disagreement.
	The Eastland court has held that fees incurred in defending the original fee awarded by the
ad litem are fees resulting from the appointment and services provided by the guardian ad litem.
DeSai v. Islas, 884 S.W.2d 204, 206 (Tex. App.--Eastland 1994, writ denied); see also Rio Grande
Valley Gas Co. v. Lopez, 907 S.W.2d 622, 626 (Tex. App.--Corpus Christi 1995, no writ) (reversing
award of appellate fees to ad litem for defense of fee only because fee was not conditioned upon
success).  Without analysis, the Texas Supreme Court reinstated the conditional appellate attorney's
fees awarded to an ad litem when the sole issue presented in that appeal was whether the ad litem's
fee was excessive.  Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 793-94 (Tex. 1987);
see also Dallas Area Rapid Transit v. Williams, No. 05-96-01485-CV, 1998 WL 436917, *7 n.11
(Tex. App.--Dallas Aug. 4, 1998, pet. denied) (not designated for publication) (citing DeSai and
Simon to affirm conditional award of attorney's fees on appeal "since such fees are properly awarded
when a guardian is forced to defend its fee on appeal").  Because an appeal of ad litem fees is related
to the suit for which the ad litem was appointed, I would hold that a trial court does not abuse its
discretion in awarding conditional appellate attorneys' fees to an ad litem who seeks to defend his
fees.
						Alma L. López, Chief Justice

