NO. 01-0765 - Supreme Court of Texas by wuzhenguang

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									                            NO. 01-0765
                 ___________________________________

                              IN THE

                   SUPREME COURT OF TEXAS
                 ___________________________________

                       DR. KAREN ROBERTS,

                                VS.

               LAINIE AND CASEY WILLIAMSON,
            INDIVIDUALLY AND AS NEXT FRIENDS OF
                   COURTNIE WILLIAMSON

                 ___________________________________

                        On Petition for Review
                    from the Sixth Court of Appeals
                         No. 06-00-00070-CV
                 ___________________________________

             RESPONDENTS= BRIEF ON THE MERITS
                ___________________________________


NICHOLS & NICHOLS, P.C.                   BISHOP & BISHOP, P.C.
REX A. NICHOLS, JR.                       KAREN D. BISHOP
Bar No. 15006330                          Bar No. 05706200
REX A. NICHOLS                            P.O. Box 1330
Bar No. 15002000                          Gilmer, Texas 75644
P.O. Box 2623                             Telephone: 903-843-2255
Longview, Texas 75606                     Telecopier: 903-843-3096
Telephone: 903-757-2464
Telecopier: 903-757-2287              ATTORNEY AD LITEM FOR
                                          COURTNIE WILLIAMSON
ATTORNEYS FOR RESPONDENTS
                 IDENTITY OF PARTIES AND COUNSEL


      The following is a complete list of the parties, attorneys, and any other
person who has any interest in the outcome in this lawsuit:


            Petitioner, Dr. Karen Roberts
            represented by:
                   Robert L. Galloway
                   Mary-Olga Ferguson
                   Richard W. Bass
                   Thompson, Knight, Brown, Parker & Leahy, L.L.P.
                   1200 Smith Street, Suite 3600
                   Houston, Texas 77002
                   (713) 654-8111
                   (713) 654-1871 (FAX)

            Respondents, Lainie Williamson and Casey Williamson,
            Individually and as Next Friends of Courtnie Williamson
            represented by:
                  Rex Nichols, Jr.
                  Nichols & Nichols, P.C.
                  P.O. Box 2623
                  Longview, Texas 75606
                  (903) 757-2464
                  (903) 757-2287 (FAX)

            Attorney Ad Litem:
                  Karen Bishop
                  Bishop & Bishop, P.C.
                  P.O. Box 1330
                  Gilmer, Texas 75644
                  (903) 843-2255
                  (903) 843-3096 (FAX)




                                        i
                                         TABLE OF CONTENTS


                                                                                                                     Page

Identity of Parties and Counsel............................................................................. i

Index of Authorities............................................................................................. iii

Statement of the Case .......................................................................................... 2

Statement of Jurisdiction ..................................................................................... 2

Issues Presented .................................................................................................... 3

Statement of Facts................................................................................................ 3

Summary of Argument ......................................................................................... 4

Argument (Response to Petition for Review) ...................................................... 5

         I.        The Court of Appeals correctly held that the trial court erred in
                   assessing ad litem fees against Courtnie because the trial court=s
                   stated reason for assessing ad litem fees against the child did not
                   constitute Agood cause@ as a matter of law....................................... 5

Prayer .................................................................................................................. 12

Certificate of Service .......................................................................................... 14

Appendix ............................................................................................................. 15




                                                             ii
                                     INDEX OF AUTHORITIES


                                                                                                             Page(s)

CASES:

Adams v. Stotts, 667 S.W.2d 798 (Tex. App. - Dallas 1983,
    no writ) ....................................................................................................... 8

Allen v. Crabtree, 936 S.W.2d 6 (Tex. App. - Texarkana 1996,
      no writ) ....................................................................................................... 7

City of Hurst v. City of Colleyville, 501 S.W.2d 140 (Tex. Civ. App. -
      Fort Worth, 1973, writ ref=d n.r.e.) ........................................................... 6

Collerain v. City of Granbury, 760 S.W.2d 364 (Tex. App. - Fort Worth
      1988, no writ)............................................................................................. 7

Cullen Center Bank v. Wonzer, 874 S.W.2d 757 (Tex. App. - Houston
      [1st Dist.] 1994, no writ) ............................................................................ 8

Dawson v. Garcia, 666 S.W.2d 254 (Tex. App. - Dallas 1984,
    no writ) ....................................................................................................... 8

Estate of Catlin v. G.M. Corporation, 936 S.W.2d 447 (Tex. App. -
      Houston [14th Dist.] 1996, no writ) .......................................................... 8

Furr=s Supermarkets v. Bethune, 53 S.W.3d 375 (Tex. 2001) ................... 10, 11

Hasty Inc. v. Inwood Buckhorn Joint Venture, 908 S.W.2d 494, 503 (Tex.
App. - Dallas 1995, writ denied).......................................................................... 5

Howell v. Hecht, 821 S.W.2d 627 (Tex. App. - Dallas 1991,
    writ denied)................................................................................................. 7




                                                          iii
Marshall Investigations & Security Agency v. Whitaker, 962 S.W.2d 62
     (Tex. App. - Houston [1st Dist.] 1997, no pet.) ........................................ 7

Martinez v. Pierce, 759 S.W.2d 114 (Tex. 1988)............................................... 6

Nixon v. Sipes, 667 S.W.2d 223 (Tex. App. - Texarkana 1984,
     writ ref=d n.r.e.) ..................................................................................... 8, 11

Perez v. Baker Packers, 694 S.W.2d 138 (Tex. App. - Houston
      [14th Dist.] 1985, writ ref=d n.r.e.) ............................................................. 6

Rogers v. Walmart Stores, Inc., 686 S.W.2d 599 (Tex. 1995) ................6, 7, 11

Scholl v. Home Owners Warranty Corporation, 810 S.W.2d 464
      (Tex. App. - San Antonio 1991, no writ) .................................................. 7

Siepert v. Brewer, 433 S.W.2d 773 (Tex. Civ. App. - Texarkana
      1968, writ ref=d n.r.e.) .......................................................................... 5, 11

State Farm Mutual Auto Insurance Company v. Grayson, 983 S.W.2d 769
      (Tex. App. - San Antonio 1998, no pet.)................................................... 6

Veltmann v. Slator, 219 S.W. 530, 532 (Tex. Civ. App. - San Antonio 1920,
no writ) ................................................................................................................. 5

Williamson v. Roberts, 52 S.W.3d 354 (Tex. App. - Texarkana, 2001,
      pet. filed)..................................................................................................... 3

Tex. Civ. Prac. & Rem. Code '31.007................................................................. 5

Tex. R. Civ. P., Rule 131................................................................................ 6, 11

Tex. R. Civ. P., Rule 141................................................................................ 6, 11

Tex. R. Civ. P., Rule 173...................................................................................... 8




                                                            iv
                               NO. 01-0765
                    ___________________________________

                                    IN THE

                      SUPREME COURT OF TEXAS
                    ___________________________________

                           DR. KAREN ROBERTS,

                                      VS.

                  LAINIE AND CASEY WILLIAMSON,
               INDIVIDUALLY AND AS NEXT FRIENDS OF
                      COURTNIE WILLIAMSON

                    ___________________________________

                           On Petition for Review
                       from the Sixth Court of Appeals
                            No. 06-00-00070-CV
                    ___________________________________

                RESPONDENTS= BRIEF ON THE MERITS
                   ___________________________________


      Respondents, Lainie Williamson and Casey Williamson, Individually and

as Next Friends of their daughter, Courtnie Williamson, submit this Brief on

the Merits to the Petition for Review and Brief filed by Petitioner Roberts:




                                        1
                                STATEMENT OF THE CASE

        This case involves permanent and irreversible injuries Courtnie

Williamson sustained at Laird Memorial Hospital in the days immediately

following her birth. The case was tried before a jury with the Honorable

Bennie Boles presiding via assignment. The jury found in Plaintiffs= favor and

against Dr. Karen Roberts. (CR 1068.) The trial court rendered judgment in

accordance with the jury=s verdict but erroneously assessed one-half of the

attorney ad litem fees1 against Courtnie even though Plaintiffs were prevailing

parties against Roberts. (CR 1087.) Both sides appealed. (CR 1089 & 1091.)

The Court of Appeals reversed the trial court because the reason stated by the

trial court for Asplitting@ the ad litem fees was contrary to law.

                            STATEMENT OF JURISDICTION

        Respondent denies that the Court of Appeals committed any error of law

-- much less any error of law which is of such importance to the state=s

jurisprudence that it should be corrected.


        1
          Contrary to Petitioner=s argument, the trial court did not assess one-half of all court costs
against Courtnie -- only the ad litem fee. The reason stated on the record by the trial court (that the ad
litem is appointed to help both sides) had nothing whatsoever to do with the other defendant, Dr.
Miller.




                                                    2
                              ISSUES PRESENTED

      The issue here is not whether the trial court should have discretion to

split fees between one successful defendant and one losing defendant. The

record is clear that the trial court did not split the fees on this basis. The issue

presented is whether the trial court erred in assessing ad litem fees against

Courtnie Williamson based upon the trial court=s perception that the role of

the ad litem was to Ahelp@ both sides?

                           STATEMENT OF FACTS

      The case was tried before a jury with the Honorable Bennie Boles

presiding. The jury found in Plaintiffs= favor and against Dr. Roberts. (CR

1068.) The trial court rendered judgment in accordance with the jury=s verdict

but assessed one-half of the attorney ad litem fees against Courtnie and her

parents even though Plaintiffs were the prevailing parties. (8 RR 14-15; CR

1087.) Both sides appealed. (CR 1089 & 1091.). The Court of Appeals

concluded that the trial court did not state good cause on the record which

would justify imposing half of the ad litem fees against Courtnie and her

parents. Accordingly, the Court of Appeals reversed and rendered judgment

that Plaintiffs recover all of their taxable costs against Roberts. Williamson v.

                                         3
Roberts, 52 S.W.3d 354 (Tex. App. - Texarkana, 2001, pet. filed).

                     SUMMARY OF THE ARGUMENT

      The trial court erred in assessing ad litem fees against Courtnie

Williamson and her parents for the stated reason that an ad litem is appointed

to Ahelp@ both sides. The only reason given by the trial court to justify

assessing ad litem fees against the child does not constitute Agood cause@ as a

matter of law.




                                        4
                                           ARGUMENT

1.    The Court of Appeals Correctly Held That The Trial Court Erred In
      Assessing Ad Litem Fees Against Courtnie Because The Trial Court=s
      Stated Reason For Assessing Ad Litem Fees Against The Child Did
      Not Constitute AGood Cause@ As A Matter Of Law.

      The Texas Rules of Civil Procedure set out the controlling rules for

assessing costs. AThe successful party to a suit shall recover of his adversary all

costs incurred therein, except where otherwise provided.@ T.R.C.P. 131.2 Rule

131 has been interpreted to mean that a Asuccessful party to a suit is one who

obtains a judgment of a competent court vindicating a claim or right, civil in

nature.@ A plaintiff who prevails on one claim but not others in the same suit is

a successful party. See, Veltmann v. Slator, 219 S.W. 530, 532 (Tex. Civ. App. -

- San Antonio 1920, no writ) (Plaintiff who recovered on at least one count is a

successful party even though Plaintiff did not succeed on all counts), Hasty Inc.

v. Inwood Buckhorn Joint Venture, 908 S.W.2d 494, 503 (Tex. App. -- Dallas

1995, writ denied) (Plaintiff that prevailed on only one of three claims was a

successful party). Siepert v. Brewer, 433 S.W.2d 773, 775 (Tex. Civ. App. -

Texarkana 1968, writ ref=d n.r.e.). A successful party to a suit has the right to

recover from the adversary all costs that the party incurred. ATaxing of costs


      2
          See also, Tex. Civ. Prac. & Rem. Code, '31.007.


                                                   5
against the successful party in the trial court is contrary to Rule 131 of the

Texas Rules of Civil Procedure.@ Martinez v. Pierce, 759 S.W.2d 114, 114 (Tex.

1988)(modifying court of appeals= judgment which had taxed costs 50% to

Plaintiff; judgment rendered for Plaintiff taxing all costs against losing

Defendant); Perez v. Baker Packers, 694 S.W.2d 138, 143 (Tex. App. - Houston

[14th Dist.] 1985, writ ref=d n.r.e.)(successful Plaintiff entitled to recover court

costs even where settlement credit reduced recovery to Atake nothing@

judgment). See also, State Farm Mutual Auto Insurance Company v. Grayson, 983

S.W.2d 769, 770 (Tex. App. - San Antonio 1998, no pet.)(trial court erred in

taxing costs against a successful party).

      The corollary to the general rule for assessing costs is the Agood cause@

exception. AThe court may, for good cause stated on the record, adjudge the

costs otherwise than as provided by law or these rules.@ T.R.C.P. 141

(emphasis added); Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex.

1995)(trial court could assess part of ad litem costs against Walmart for Agood

cause@ -- unnecessarily prolonging and obstructing trial). The reasons for the

trial court=s action must be explicitly stated on the record, if not in the

judgment itself. See, City of Hurst v. City of Colleyville, 501 S.W.2d 140, 143

(Tex. Civ. App. - Fort Worth, 1973, writ ref=d n.r.e.)(improper to assess

                                            6
surveyor=s fees as costs without stating reason in judgment since fees were not

otherwise chargeable as costs). A trial court may assess costs against a

prevailing party only Afor good cause shown on the face of the record.@

Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex. 1995)(emphasis

added).

      When a trial court assesses costs against the prevailing party or otherwise

deviates from the general rule, and fails to make a specific finding of legally-

sufficient good cause on the record, the trial court has abused its discretion and

the award must be reversed on appeal. Marshall Investigations & Security Agency

v. Whitaker, 962 S.W.2d 62, 63 (Tex. App. - Houston [1st Dist.] 1997, no

pet.)(explicit reasons must be stated on the record to deviate -- reversing award

of costs made against prevailing party for fees of ad litem); Allen v. Crabtree, 936

S.W.2d at 7 (without evidence of good cause, trial court abused its discretion

in assessing costs against the prevailing party); Howell v. Hecht, 821 S.W.2d

627, 632-33 (Tex. App. - Dallas 1991, writ denied)(finding no intention by the

trial court to deviate from a general rule and affirming the trial court=s

assessment of costs against the losing party). See also, Scholl v. Home Owners

Warranty Corporation, 810 S.W.2d 464, 468 (Tex. App. - San Antonio 1991,

no writ); Collerain v. City of Granbury, 760 S.W.2d 364, 368 (Tex. App. - Fort

                                         7
Worth 1988, no writ); Nixon v. Sipes, 667 S.W.2d 223, 224 (Tex. App. -

Texarkana 1984, writ ref=d n.r.e.); Adams v. Stotts, 667 S.W.2d 798, 801 (Tex.

App. -Dallas 1983, no writ).

      Texas Rule of Civil Procedure 173 provides that guardian ad litem fees

should be Ataxed as part of the costs.@ See also, Cullen Center Bank v. Wonzer,

874 S.W.2d 757 (Tex. App. - Houston [1st Dist.] 1994, no writ). The cost for

the guardian ad litem should be taxed as costs against the unsuccessful party in

the suit. T.R.C.P. 173; Estate of Catlin v. G.M. Corporation, 936 S.W.2d 447,

452 (Tex. App. - Houston [14th Dist.] 1996, no writ). A fee allowed a guardian

ad litem appointed to protect the interests of a minor is considered a cost

taxable against the party by whose conduct made the appointment necessary.

Dawson v. Garcia, 666 S.W.2d 254, 264 (Tex. App. - Dallas 1984, no writ). No

part of the ad litem=s fee should be taxed against a prevailing party unless the

record makes it clear that the prevailing party should be required to pay part or

all of the fee. Dawson, 666 S.W.2d at 265.

      In the present case, the record does not reflect that the trial court made a

good cause determination to support assessing a significant portion of the ad

litem fees against Courtnie and her parents. Nothing in the record indicates the

trial court intended to find good cause or deviate from the general rule. In fact,

                                         8
the record is clear that the trial court acted arbitrarily in assessing the ad litem

fee, based upon an erroneous belief of the ad litem=s legal role and the rules

regarding assessment of ad litem fees. The following discussion, on the record

between the Court and the attorney ad litem, Ms. Bishop, demonstrates clearly

that the trial court failed to make any finding which would justify assessing

one-half of the ad litem fees against Courtnie Williamson:

             THE COURT:          Okay, All right. Now, I wanted, just to
      make sure that I am correct. The specific sum that you are
      requesting is $21,000.00 - -
             MS. BISHOP:         Your Honor, $21,405.69.
             THE COURT:          Yes. All right. And then if I add in the
      $1,500.00, that would be the total.
             MS. BISHOP:         Your Honor, actually, I had my backup
      billing records, and I deducted the $1,500.00 that I was paid, and
      that was the amount I came up with.
             THE COURT:          Okay. I wanted to verify that. All right
      folks. This is what I want to do in that. I want to approve that
      sum, but what I want to do -- I want to do this just a little bit
      differently. Maybe different folks have different opinions
      about attorney ad litems. I think that an attorney ad litem is
      there for the benefit of all the parties that are there. I would
      like to, for this to be assessed as court costs, and I would like for it
      to be split between the Plaintiffs and between the Defendant in
      that particular regard. And I think , that way, it would be -- it
      would be a little bit more fair to all the parties that are concerned.
      And I don=t think simply because there was a verdict returned
      against an individual, that that means you pay it all.
      Certainly, there was a benefit gained, and we=re not looking at
      a situation where attorney=s fees are applicable for the winner
      and/or loser, but we=re looking at a situation where the Court
      feels that it would be in the best interest of the child for this

                                          9
        individual to appointed. And, therefore, as a result of that, it
        should be assessed as a court cost, and to be borne one-half
        by Defendant in this case, and one-half by the -- well, I=ll use
        the word Plaintiffs at this particular time.

(8 RR 14-15)(emphasis added).


        As evidenced by the discussion between the trial court and the attorney

ad litem, the trial court appears to be badly mistaken about the rules which

govern the taxing of ad litem fees as costs. The trial court suggests that Asince

the ad litem is there for the benefit of all parties,@ it would be a Alittle more fair@

to split the costs between the losing Defendant and the prevailing Plaintiffs.

(The trial court=s reason for splitting the ad litem fee is there on the record -- in

black and white -- and it is not the reason Petitioner tries to make it.)3 The

trial court=s statement shows, on its face, that the presiding judge is mistaken

about the controlling rules. That can=t be Agood cause@ -- if it were, then all ad

litem fees could be split this way. There is no finding of anything that would

legitimately constitute legal good cause in this record. See, Furr=s Supermarkets v.

Bethune, 53 S.W.3d 375 (Tex. 2001) (trial court must explicitly state what

constitutes good cause and the reason itself must, as a matter of law, constitute


        3
         Petitioner=s attempts to now (for the first time on appeal) recharacterize the trial court=s only
stated reason for splitting the ad litem fee. Petitioner=s argument is undercut by the undisputed fact
that only the ad litem fee was split; all other taxable court costs were assessed 100% against Dr. Roberts.


                                                   10
good cause). Nixon v. Sipes, 667 S.W.2d 223, 224 (Tex. App. - Texarkana

1984, writ ref=d n.r.e.)(trial court reversed for assessing costs against Aparty

incurring same@ where the record does not reflect sufficient good cause for

assessing costs other than as required by Rule 131). More importantly, the

trial court=s statement that AI think the attorney ad litem is there for the benefit

of all the parties@ is clearly a misstatement and error of law with regard to the

appointment, role, and payment of an ad litem. Furr=s Supermarkets v. Bethune,

53 S.W.3d 375 (Tex. 2001) (ABecause these causes [i.e., the reasons stated by

trial court on the record] are not good cause as a matter of law, . . . the trial

court abused its discretion). Thus, the trial court was acting Awithout reference

to the guiding principles.@4 In Rogers v. Walmart Stores, Inc., 686 S.W.2d 599,

this court explained that, even if the trial court states good cause on the record

(which did not occur in the case sub judice), an appellate court still must

Ascrutinize the record to determine whether it supports the trial judge=s decision



        4
          Plaintiffs are not required to show that the trial court lacked good cause for the
apportionment of the ad litem fee. The party directly attacking a judgment requiring the payment of
guardian=s fee from money awarded to a child does not have the burden to show that the trial court
had no good cause to adjudge costs as it did. Furthermore, Petitioner had an opportunity to seek relief
under T.R.C.P. 141 and urge the trial court to make a determination that legally-sufficient good cause
existed for assessing the ad litem fees against the Plaintiffs, but failed to do so, thereby waiving Roberts=
right to complain now on appeal. Siepert v. Brewer, 433 S.W.2d 773, 775 (Tex. App. - Texarkana 1968,
writ ref=d n.r.e.) (reversing trial court judgment which had [as occurred in the case sub judice] assessed
part of ad litem=s fee against the successful minor child).


                                                    11
to tax the prevailing party with part, or all, of the costs.@ 686 S.W.2d at 601.

In other words, the trial judge must not only state that he is deviating from the

general rule for Agood cause,@ but Agood cause@ must, as a legal matter, actually

exist. It is apparent from close scrutiny of this record that neither exists in the

reporters= record in this case. Therefore, the Court of Appeals decision should

be affirmed.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Respondents respectfully

pray that this court affirm the Court of Appeals= decision that this court grant

Respondents such other and further relief, at law or in equity, to which they

are justly entitled to receive.




                                        12
                                Respectfully submitted,

                                NICHOLS & NICHOLS, P.C.




                                BY:______________________________
                                     REX A. NICHOLS, JR.
                                     State Bar No. 15006330
                                     REX A. NICHOLS
                                     State Bar No. 15002000
                                     P.O. Box 2623
                                     Longview, Texas 75606
                                     (903) 757-2464
                                     (903) 757-2287 (FAX)

                              ATTORNEYS FOR
                              RESPONDENTS,
                              LAINIE AND CASEY
                          WILLIAMSON,
                              INDIVIDUALLY AND AS NEXT
                              FRIENDS OF COURTNIE
                              WILLIAMSON


DATE: March _____, 2002




                           13
                        CERTIFICATE OF SERVICE

       A true and correct copy of the above document has been sent by certified
mail, return receipt requested to:

      Robert L. Galloway
      Mary-Olga Ferguson
      Thompson, Knight, Brown, Parker & Leahy, L.L.P.
      3600 Two Allen Center
      1200 Smith Street
      Houston, Texas 77002
      Counsel for Petitioner

      Karen Bishop
      Bishop & Bishop, P.C.
      P.O. Box 1330
      Gilmer, Texas 75644-1330
      Ad Litem




                                           _________________________________
                                           REX A. NICHOLS, JR.


DATE: March _____, 2002




                                      14
                               NO. 01-0765
                    ___________________________________

                                  IN THE

                      SUPREME COURT OF TEXAS
                    ___________________________________

                            DR. KAREN ROBERTS,

                                      VS.

                  LAINIE AND CASEY WILLIAMSON,
               INDIVIDUALLY AND AS NEXT FRIENDS OF
                      COURTNIE WILLIAMSON

                    ___________________________________

                           On Petition for Review
                       from the Sixth Court of Appeals
                            No. 06-00-00070-CV
                    ___________________________________

                                APPENDIX
                    ___________________________________



Tex. Civ. Prac. & Rem. Code '31.007

Tex. R. Civ. P., Rule 131

Tex. R. Civ. P., Rule 141

Tex. R. Civ. P., Rule 173




                                      15

								
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