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No. 11-0818 - Supreme Court of Texas

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No. 11-0818 - Supreme Court of Texas Powered By Docstoc
					                                                                           FILED
                                                                           IN THE SUPREME COURT
                                                                           OF TEXAS
                                                                           12 June 28 P4:13
                                                                            BLAKE. A. HAWTHORNE
                                                                           CLERK


                   No. 11-0818
                                  IN THE
                          SUPREME COURT OF TEXAS


                          FORD MOTOR COMPANY, ET AL.,

                                    Petitioner,

                                         v.

                        STEWART, COX, AND HATCHER, P.C.
                         AND TURNER & ASSOCIATES, P.A.,

                                    Respondent.


  Appeal from the 410th District Court, Montgomery County, Texas, the Honorable K.
          Michael Mayes (No. 01-01-410), and the Ninth Court of Appeals at
                      Beaumont, Texas (No. 09-10-00371-CV)


      PETITIONER FORD MOTOR COMPANY’S OPENING BRIEF ON THE MERITS


Michael W. Eady                               Craig A. Morgan
State Bar No. 06332400                        Attorney at Law
Sara M. Berkeley                              State Bar No. 14435330
State Bar No. 24073913                        718 Sunfish
THOMPSON, COE, COUSINS & IRONS, L.L.P.        Austin, Texas 78734-4410
701 Brazos Street, Suite 1500                 Telephone: (512) 608-9324
Austin, Texas 78701                           Facsimile: (512) 261-3628
Telephone: (512) 703-5084                     Email: craigamorgan@austin.rr.com
Facsimile: (512) 708-8777
Email: meady@thompsoncoe.com
Email: sberkeley@thompsoncoe.com
                           IDENTITY OF THE PARTIES AND COUNSEL

       The following is a complete list of all the parties to the trial court’s judgment, and

the names and addresses of their trial and appellate counsel:

       Parties                                                  Counsel

Defendant/Petitioner Ford Motor Company           Michael W. Eady
                                                  Sara M. Berkeley
                                                  THOMPSON, COE, COUSINS & IRONS, L.L.P.
                                                  701 Brazos Street, Suite 1500
                                                  Austin, Texas 78701

                                                  Craig A. Morgan
                                                  Attorney at Law
                                                  718 Sunfish
                                                  Austin, Texas 78734-4410

Guardian    Ad    Litem/Respondent      John John Milutin
Milutin                                      MILUTIN & ASSOCIATES
                                             3701 Kirby Drive, Suite 1212
                                             Houston, Texas 77098

                                                  Warren Harris
                                                  BRACEWELL & GIULIANI, LLP
                                                  711 Louisiana, Suite 2300
                                                  Houston, TX 77002

Intervenors/Appellants/Respondents Turner Martin J. Siegel
and Associates, P.A., and Stewart, Cox, LAW OFFICES OF MARTIN J. SIEGEL, P.C.
and Hatcher, P.C.                         Bank of America Building
                                          700 Louisiana, Suite 2300
                                          Houston, Texas 77002

                                                  Jerry White
                                                  TURNER & ASSOCIATES, P.A.
                                                  4705 Somers Ave.
                                                  North Little Rock, AR 72116




                                              i
Plaintiff/Petitioner Theresa Richardson, as C. Tab Turner
Next Friend of I.F., a minor                Jerry M. White
                                            Turner and Associates, P.A.
                                            500 Main Street, Suite 310
                                            Fort Worth, Texas 76102

                                               Lauren Beck Harris
                                               PORTER HEDGES LLP
                                               1000 Main Street, 36th Floor
                                               Houston, TX 77002




                                          ii
                                                  TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL ............................................................................i

TABLE OF CONTENTS ..........................................................................................................iii

INDEX OF AUTHORITIES ......................................................................................................vi

STATEMENT OF THE CASE .................................................................................................viii

STATEMENT OF JURISDICTION.............................................................................................. x

ISSUES PRESENTED.............................................................................................................xii

REFERENCES TO THE RECORD ...........................................................................................xiii

STATEMENT OF FACTS ......................................................................................................... 1

   I.       The Plaintiffs bring this action against Ford and Firestone................................... 1

   II.      The Plaintiffs settle with Firestone; no guardian ad litem is appointed. ............... 2

   III.     Six years later, the Plaintiffs settle with Ford; the pretrial judge appoints
            Milutin as guardian ad litem.................................................................................. 3

   IV.      Richardson unsuccessfully challenges Milutin’s appointment through a
            mandamus action. .................................................................................................. 6

   V.       The pretrial judge reforms the earlier settlement with Firestone and taxes
            all of Milutin’s fees against Ford......................................................................... 10

   VI.      The Court of Appeals reverses the pretrial judge’s modification of the
            Firestone settlement, but agrees with taxing all of Milutin’s fees against
            Ford...................................................................................................................... 13

SUMMARY OF THE ARGUMENT .......................................................................................... 16

ARGUMENT ........................................................................................................................ 19

   I.       The decision below is based upon two common misconceptions this Court
            should correct. ..................................................................................................... 19

            A.      The lower court is incorrect in believing the role of a guardian ad
                    litem extends beyond protecting the minor from a conflict of interest
                    with her next friend. .................................................................................... 19


                                                                  iii
             B.     The lower court is incorrect in believing all costs should be routinely
                    taxed against the defendant whenever a case settles. ................................. 22

   II.       This Court should correct the “accepted practice” of routinely taxing the
             settling defendant with the guardian ad litem’s compensation. .......................... 24

             A.     There is no “successful party” to an agreed settlement; Rule 131
                    does not apply. ............................................................................................ 24

             B.     The fees and expenses of a guardian ad litem should not be taxed
                    against a party who played no role in causing them. ................................. 25

   III.      The trial court abused its discretion in appointing a guardian ad litem
             when there was no conflict between the minor Plaintiff and her next
             friend.................................................................................................................... 26

             A.     No ad litem was necessary here. ................................................................. 26

             B.     The Court of Appeals’ finding of an adverse interest between
                    Richardson and I.F. is illogical and beyond the scope of Rule 173 ........... 28

             C.     The holding below wreaks havoc on the next friend scheme and will
                    now require that guardians ad litem be appointed with
                    unprecedented frequency. ........................................................................... 30

   IV.       The trial court erred in compensating the guardian ad litem for work that
             exceeded the proper scope of his appointment.................................................... 31

             A.     The guardian ad litem’s role is limited to advising the court on an
                    identified conflict of interest. ...................................................................... 31

             B.     Milutin’s services were not limited to the alleged conflict of interest
                    between the next friend and the minor Plaintiff.......................................... 32

PRAYER .............................................................................................................................. 33

CERTIFICATE OF SERVICE .................................................................................................. 35

APPENDIX ........................................................................................................................... 36

Order Awarding Fees and Expenses to Guardian Ad Litem
   (410th CR 158–61) (under seal)............................................................................... Tab 1

Application for Compensation of Guardian Ad Litem
  (410th CR 145–52)................................................................................................... Tab 2

                                                                   iv
Opinion and Judgment from Court of Appeals, Stewart v. Hatcher, P.C.,
   & Turner & Associates, P.A. v. Ford Motor Company, et al.,
   350 S.W.3d 369 (Tex. App.—Beaumont 2011, pet filed) ......................................Tab 3

Letter from Ninth Court of Appeals overruling Ford’s Motion for Rehearing (Sept.
   15, 2011), Stewart v. Hatcher, P.C., & Turner & Associates, P.A. v. Ford
   Motor Company, et al., No. 09-10-00371-CV (Tex. App.—Beaumont,
   Aug. 25, 2011) ....................................................................................................... Tab 4

Letter from Ford’s counsel to the Ninth Court of Appeals in the mandamus action
   styled In re Theresa Richardson, No. 09-10-00032-CV (Feb. 4. 2010).................Tab 5

The Ninth Court of Appeals’ memorandum opinion in the mandamus action styled
   In re Theresa Richardson, No. 09-10-00032-CV (March 11, 2010)...................... Tab 6

Tex. R. Civ. P. 131 and 141 ......................................................................................... Tab 7

Tex. R. Civ. P. 173 .......................................................................................................Tab 8




                                                               v
                                                INDEX OF AUTHORITIES

                                                              Cases 

Brownsville-Valley Reg’l Med. Ctr., Inc. v. Gamez, 894 S.W.2d 753
     (Tex. 1995) ..................................................................................................xi, 20, 27

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532
      U.S. 598 (2001) ...................................................................................................... 24

City of Houston v. Woods, 138 S.W.3d 574 (Tex. App.—Houston [14th Dist.]
       2004, no writ) ......................................................................................................... 25

Dawson v. Garcia, 666 S.W.2d 254 (Tex. App.—Dallas 1984, no writ) ......................... 26

Dear v. City of Irving, 902 S.W.2d 731 (Tex. App.—Austin 1995, writ denied)............. 24

Ford Motor Co. v. Garcia, No. 10-0953, 2012 WL 1059352 (Tex. March 30,
      2012)............................................................................................................. x, 20, 27

Garcia v. Martinez, 988 S.W.2d 219 (Tex. 1999)............................................................. 27

In re Richardson, No. 09-10-00032-CV, 2010 WL 877558 (Tex. App.—
       Beaumont, Mar. 11, 2010, orig. proceeding) ..................................................... 9, 10

Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650 (Tex.
       2009)....................................................................................................................... 24

Land Rover U.K., Ltd. v. Hinojosa, 210 S.W.3d 604 (Tex. 2006) .............. x, 23, 27, 28, 33

Shlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171 (Tex. 1997) ............................... 25

Siepert v. Brewer, 433 S.W.2d 773 (Tex. App.—Texarkana 1968, writ ref’d n.r.e.) ....... 23

Stewart, Cox & Hatcher, P.C., v. Ford Motor Co., 350 S.W.3d 369
      (Tex. App.—Beaumont 2011, pet. filed)
       .............................................................v, ix, 4, 6, 7, 8, 13, 14, 15, 21, 22, 23, 26, 36

Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598 (Tex. 1999) ................................. x

Wibbenmeyer v. Techterra Commc’n, No. 03-09-00122-CV, 2010 WL 1173072
     (Tex. App.—Austin Mar. 26, 2010, pet. denied) ................................................... 24

                                                            Statutes 

Tex. Fam. Code § 151.001(a)(3) ........................................................................... 14, 29, 30


                                                                 vi
Tex. Fam. Code § 151.001(7)............................................................................................ 28

Tex. Prop. Code § 142.005(c)(2)....................................................................................... 29

Tex. Gov’t Code § 22.001(b) .............................................................................................. x

Tex. Gov’t Code § 22.001(2) .............................................................................................. x

Tex. Gov’t Code § 22.225(c)............................................................................................... x

                                                             Rules 

Tex. R. Civ. P. 173.4 ......................................................................................................... 31

Tex. R. Civ. P. 173.4 (b)........................................................................................ 27, 29, 31

Tex. R. Civ. P. 131 and 141 .......................................................................................... v, 36

Tex. R. Civ. P. 137 ............................................................................................................ 31

Tex. R. Civ. P. 141 ............................................................................................................ 26

Tex. R. Civ. P. 173 ..................................v, 9, 10, 16, 17, 19, 20, 27, 28, 29, 30, 31, 32, 36

Tex. R. Civ. P. 173.4(c)..................................................................................................... 21

Tex. R. Civ. P. 44 ........................................................................................................ 28, 32

Tex. R. Civ. P. 131 .................................................................................................. x, 24, 25

Tex. R. Civ. P. 173.6(c)..................................................................................................... 24

Tex. R. App. P. 6.3 and 9.5(b), (d), (e).............................................................................. 35

                                                   Other Authorities

Black’s Law Dictionary 1232 (9th ed. 2009) ..................................................................... 24




                                                               vii
                                    STATEMENT OF THE CASE

Nature of the Case:              This case began as a product liability action filed in the
                                 128th Judicial District Court of Orange County, Texas,
                                 against two primary defendants, Bridgestone/Firestone North
                                 American Tire, LLC (“Firestone”) and Ford Motor Company
                                 (“Ford”), for injuries Plaintiffs sustained in a car accident.

Trial Court:                     The case was subsequently transferred as a tag-along case to
                                 the docket of the Honorable K. Michael Mayes, pretrial
                                 judge,    Master     file   No.     01-01-410,     In    Re
                                 Bridgestone/Firestone and Ford Cases Coordinated for
                                 Pretrial proceedings under Rule 11 of the Texas Rules of
                                 Judicial Administration. 1

Course of Proceedings:           Theresa Richardson, acting as the next friend of minor
                                 Plaintiff I.F., settled I.F.’s claims against Firestone in 2003.
                                 The parties to that settlement obtained approval of the
                                 settlement of the minor’s claims from the 128th Judicial
                                 District Court in Orange County, Texas, where the case had
                                 been filed. That court approved the settlement without
                                 appointing a guardian ad litem. 2

                                 In 2009, Theresa Richardson settled I.F.’s claims against
                                 Ford. 3 Unlike the previous the settlement with Firestone, the
                                 parties to the Ford settlement sought approval from the
                                 “pretrial judge” in Montgomery County. Over the parties’
                                 objections, that court sua sponte appointed a guardian ad
                                 litem for I.F. 4 The court thereafter approved I.F.'s settlement
                                 with Ford, subject to modifications on the recovery of
                                 attorneys’ fees. 5

                                 Counsel for Plaintiffs (Stewart, Cox and Hatcher, P.C. and
                                 Turner and Associates, P.A.) appealed from the pretrial
                                 judge’s modification of the Ford settlement to reduce their
                                 contingent fee recovery from the earlier settlement with
                                 Firestone. Ford concurrently took an appeal from the order
                                 appointing a guardian ad litem, requiring Ford to

1
  Judge Mayes is the Presiding Judge of the 410th Judicial District Court of Montgomery County, Texas.
2
  128th CR 3–9
3
  410th CR 22.
4
  410th CR 34.
5
  410th CR 22.


                                                  viii
                           compensate the guardian ad litem for tasks beyond his
                           proper role and taxing Ford with the full amount of that
                           compensation.

Court of Appeals:          Ninth Court of Appeals at Beaumont, Texas

Disposition by the Court   A divided panel reversed in part and affirmed in part.
of Appeals:                Stewart, Cox & Hatcher, P.C., v. Ford Motor Co., 350
                           S.W.3d 369 (Tex. App.—Beaumont 2011, pet. filed)
                           (Appendix Tab 3). The court held the pretrial court had
                           abused its discretion in failing to honor the terms of the
                           previously approved settlement with Firestone. It reversed
                           the trial court on that issue. The same divided panel,
                           however, affirmed as to taxing the fees of the guardian ad
                           litem entirely against Ford. Justice Hollis Horton authored
                           the majority opinion, joined by Chief Justice McKeithen.

                           Justice Gaultney dissented in a separate writing. As to
                           Ford’s cross appeal, Justice Gaultney opined that the pretrial
                           judge had erred in taxing all of the guardian ad litem’s
                           compensation against Ford.

                           Ford filed a motion for rehearing in the Beaumont Court of
                           Appeals on September 12, 2011, which that court denied on
                           September 15, 2011 (Appendix Tab 4).




                                          ix
                              STATEMENT OF JURISDICTION

       The Supreme Court has jurisdiction over this appeal under Texas Government

Code section 22.001(b) because this is a case in which the court of appeals has committed

an error of law of such importance to the jurisprudence of the state that it requires

correction. Among other things, the court of appeals erred in greatly expanding the

circumstances held to create a conflict of interest between a minor and her next friend. It

thereby radically increased the number of proceedings in which the appointment of a

guardian ad litem will now be required.

       Moreover, this Court has jurisdiction over this appeal under Texas Government

Code section 22.225(c) because the justices of the court of appeals disagreed on a

question of law material to the decision. See Surgitek, Bristol-Myers Corp. v. Abel, 997

S.W.2d 598, 601 (Tex. 1999). A majority of the court held that Ford was properly taxed

with the entirety of the ad litem costs because the settling Plaintiff was a “successful

party” under Texas Rule of Civil Procedure 131. The dissent disagreed, contending this

allocation was improper because Ford had nothing to do with the events creating the

alleged conflict of interest on which the ad litem had spent his time.

       Finally, this Court has jurisdiction under Texas Government Code section

22.001(2) because the decision below holds differently than decisions of this court on

questions of law material to the case. See Ford Motor Co. v. Garcia, No. 10-0953, 2012

WL 1059352 (Tex. March 30, 2012) (holding that a guardian ad litem is properly

compensated only for tasks bearing on the conflict of interest for which he was

appointed); Land Rover U.K., Ltd. v. Hinojosa, 210 S.W.3d 604 (Tex. 2006) (holding that


                                             x
the appointment of a guardian ad litem is proper only where the next friend and the minor

have an adverse interest between them); Brownsville-Valley Reg’l Med. Ctr., Inc. v.

Gamez, 894 S.W.2d 753, 756–57 (Tex. 1995) (holding that the role of a guardian ad litem

ends when the conflict of interest ceases).




                                              xi
                               ISSUES PRESENTED

1. Did the trial court abuse its discretion in appointing a guardian ad litem where
   there was no apparent conflict of interest between the minor Plaintiff and next
   friend, and the guardian ad litem did not subsequently identify any such conflict?

2. Did the trial court err in ordering the guardian ad litem compensated for work that
   exceeded the proper scope of his appointment?

3. Is a settling Plaintiff a “successful party” such that a settling defendant must pay
   all guardian ad litem fees without regard to that defendant’s role in causing the
   guardian ad litem appointment in the first place?




                                        xii
                                REFERENCES TO THE RECORD

       This appeal encompasses proceedings in two different courts: the court where the

case was initially filed and the court where it was later transferred for coordinated pretrial

proceedings. Accordingly, references to the Clerk’s Record are to “CR,” preceded by the

number representing the district court, followed by the page number(s). For example,

citation to proceedings in the 410th District court would be “410th CR 1.”

       Similarly, references to the Reporter’s Record are to “RR”, preceded by the

number representing the district court, then followed by the page number(s).              For

example, citation to proceedings in the 128th district would be “128th RR 1.”




                                             xiii
                                     STATEMENT OF FACTS

       The opinion of the Beaumont Court of Appeals correctly states the facts, except as

noted below. 6

I.     The Plaintiffs’ bring this action against Ford and Firestone.

       The underlying dispute leading to this appeal arose out of a vehicular accident in

1999 in which a Ford Aerostar van rolled over when the Bridgestone/Firestone tire on its

right rear wheel failed. Theresa Richardson (“Richardson”) was not present during the

accident, but three of her children were in the vehicle. 7 Two of those children, I.F. and

A.F., were minors at the time and both were injured. Oscar Flores, Richardson’s ex-

husband and the children’s father, was also in the vehicle. 8 He was fatally injured in the

accident and died at the scene. 9

       Acting as next friend for her two minor children, Richardson retained the law

firms of Stewart, Cox and Hatcher, P.C. and Turner & Associates, P.A. (“the Attorneys”)

to pursue the claims of the children. Richardson did not assert any claims on her own

behalf. 10 She was not an heir or representative of the estate of Oscar Flores, had no

financial interest in the estate’s recovery, and had no right to any of the proceeds of any

settlement. 11 Richardson, and a number of Plaintiffs asserting claims for injuries to other

occupants of the vehicle, filed this case against Ford and Firestone in Orange County,


6
  Three specific points of disagreement are discussed in footnotes 29, 80, and 81, infra.
7
  410 th CR 51.
8
  128 th RR 5; 410th CR 50. Theresa Richardson had been divorced from Oscar Flores the previous year.
See 410th CR 50.
9
  128 th RR 5; 410th CR 50.
10
   410th RR Plaintiff’s Exhibit 1 (Contingent Fee Agreement).
11
   410 th CR 50–51; 128th RR 6.



                                                 1
Texas (“the regular judge”). 12 The Attorneys, who are now Respondents in this Court,

were collectively representing all of these Plaintiffs in the trial court.

        Soon after the case was filed in Orange County, it was transferred to Judge

Michael Mayes in Montgomery County (“the pretrial judge”), who had been appointed to

preside over coordinated pretrial proceedings in the Bridgestone/Firestone tire litigation

created pursuant to Texas Rule of Judicial Administration 11. 13

II.     The Plaintiffs settle with Firestone; no guardian ad litem is appointed.

        A little over two years later, in 2003, the Plaintiffs reached a settlement of their

claims against Firestone. 14 For the minor children, the Plaintiffs and Firestone sought

approval from the regular judge in Orange County, where the case had originally been

filed and where it would return after pretrial proceedings were complete. That court held

a hearing for this purpose on July 24, 2003. 15 Ford was not involved in that settlement,

nor did it attend the hearing on that settlement. 16

        At that hearing, the regular judge received copies of the confidential settlement

documents to review in camera. 17 Richardson testified that she understood the terms of

the settlement with Firestone and confirmed that she believed those terms were fair and in

the best interests of her minor children. 18 The Attorneys informed the court that they




12
   410 th CR 3, 12, 51.
13
   410 th CR 66–67.
14
   128 th CR 2.
15
   See generally 128th RR 1–22.
16
   See generally 128th RR 1–22.
17
   128th RR 7.
18
   128th RR 12–14.



                                               2
would be receiving, as a fee, 40% of the amounts paid to settle the minors’ claims. 19 The

regular judge approved the settlement. 20

       Among other things, the court’s order recited its finding “that there is no conflict

of interest between Theresa Richardson as Next Friend and [IF] and [AF], minor

children.” 21   It also stated that Richardson had been “apprised of the material facts

surrounding the claims of the minor children,” and that she had recommended approval

of the settlement. 22 The court held the terms of the settlement with Firestone to be “in

the best interests of the minor Plaintiffs” and “in all respects reasonable.”23 The settled

claims against Firestone were not severed.

III.   Six years later, the Plaintiffs settle with Ford; the pretrial judge appoints
       Milutin as guardian ad litem.

       For the next six years, litigation proceeded on the Plaintiffs’ claims against Ford.

In September, 2009, the parties reached an agreement to settle all of those claims. 24 Two

months later, the Plaintiffs and Ford filed a joint motion with the pretrial judge in

Montgomery County, asking that court to approve the settlement of the claims of the only

Plaintiff who was still a minor, I.F. 25

       Their joint motion informed the pretrial judge that the earlier settlement of I.F.’s

claims against Firestone had been approved by the regular judge in Orange County, and it



19
   128th RR 11.
20
   128th CR 3–9 (Order Approving Settlement, signed July 24, 2003).
21
   128th CR 4.
22
   128th CR 4.
23
   128th CR 4.
24
   410th CR 22.
25
   410th CR 21.



                                                  3
presented a copy of the previous order from that court. 26 The parties also explained that

they did not believe a guardian ad litem was needed because Richardson was appearing in

the case only as next friend for her daughter, was not asserting any claims on her own

behalf, and did not appear to have any interest in the settlement proceeds adverse to her

daughter. 27

        On the next day, however, the pretrial judge sua sponte decided to appoint a

guardian ad litem for I.F., and it named Respondent John Milutin to serve in that role. 28

        Richardson promptly asked the court to reconsider the appointment of a guardian

ad litem. 29 She objected that none was necessary “because there is absolutely no conflict

between her own interests and those of her daughter, [I.F.], in this litigation.” 30 She

presented an affidavit stating that she was the natural mother and guardian of I.F., that

I.F. had lived with her since birth, that she was uniquely familiar with I.F.’s injuries,

medical treatment, and needs, and that she was capable of making decisions on her

daughter’s behalf. 31

        Richardson furthermore testified that she was not herself involved in or injured by

the accident, was asserting no claims on her own behalf, was neither an heir nor

26
   410th CR 23–32.
27
   410th CR 22.
28
   410th CR 34.
29
   410th CR 37. Contrary to its title and certificate of conference, Ford did not actually agree to this
motion; it simply said it would not oppose it. The Court of Appeals is mistaken in its statements that Ford
joined in this motion. See Stewart, Cox and Hatcher, P.C. v. Ford Motor Company, 350 S.W.3d. at 376
(“Ford argues that the pretrial judge abused its discretion . . . in failing to subsequently remove the
guardian ad litem at Ford’s request.”), 377 (“By joining the next friend’s motion to reconsider, Ford
notified the court . . . . “), 379 (“a motion that Ford joined.”). As Milutin himself says, “Ford later
corrected this misrepresentation and explained that it neither supported nor opposed the motion.”
Respondent John Milutin’s Response to Ford Motor Company’s Petition for Review at 2.
30
   410th CR 38. See also 410th CR 51 (her attached affidavit states, in part, “I object to that appointment.”)
31
   410th CR 50–51.



                                                      4
representative of her ex-husband’s estate, and had no financial interest in any recovery by

that estate. 32 Finally, her affidavit confirmed that “I understand and agree that I have no

right to any of the proceeds of any settlement of the litigation.” 33

       Milutin filed a response to Richardson’s opposition to his appointment. 34 He

argued three points: First, he argued that the court was authorized to appoint a guardian

ad litem “to determine and advise the court whether a party’s next friend has an interest

adverse to the party.” 35 Second, Milutin contended his appointment was proper because

he had not seen the relevant settlement documents and (despite her affidavit to the

contrary) he thought it possible that Richardson “may have a financial interest in the

proposed settlement, the minor’s trust proceeds, and/or the annuity payments.” 36

       And third, Milutin said he had been informed that the Attorneys, with the approval

of the regular judge in Orange County, had been permitted to receive 40% of the

proceeds from the settlement with Firestone six years earlier. 37        He believed this

contingent fee was improper because “It is a matter of common knowledge . . . that in

minor’s cases Judge Mayes does not approve attorneys’ fees in excess of 33 1/3%.” 38 It

was therefore his opinion that, in the earlier settlement, Richardson had “apparently




32
   410th CR 50–51.
33
   410th CR 51.
34
   410th CR 57.
35
   410th CR 58.
36
   410th CR 60.
37
   410th CR 59.
38
   410th CR 59.



                                               5
agreed to an award of attorneys’ fees in excess of what would have likely been approved

by the pretrial judge, adversely to the interests of the minor.” 39

        He argued that Richardson’s interests were therefore in conflict with those of her

minor daughter unless Richardson cured the alleged overpayment to the Attorneys six

years before:

                If she is unwilling to seek recoupment for the child by
                requesting an offset, a modification or setting aside of the
                attorneys’ fees approved in the July 23 [sic], 2003 order, it
                would not be in the minor’s best interest. Under such
                circumstances, the interest between next friend and the minor
                would also be adverse. 40

        The pretrial judge denied Richardson’s motion to have Milutin removed, stating

that “it appears to the Court that the next friend has an interest adverse to the minor/party

[sic].” 41

IV.     Richardson unsuccessfully challenges Milutin’s appointment through a
        mandamus action.

        Richardson then filed a mandamus action to protest the appointment of a guardian

ad litem for her minor daughter. 42 In the Court of Appeals she once again explained that

she had made no claim for recovery on her own behalf, had no financial interest in the

estate of her ex-husband, had no right to any of the proceeds from any settlement, and



39
   410th CR 60.
40
   410th CR 60–61.
41
   See Order on Agreed Motion to Reconsider Appointment of Guardian Ad Litem, signed January 4,
2010.
42
   See generally cause of action styled In re Theresa Richardson, No. 09-10-00032-CV, commenced in
the Ninth Court of Appeals on January 22, 2010. Although the Court of Appeals was wrong in stating
that Ford had “joined” Richardson’s motion to have Milutin removed, it was correct in recognizing that
Ford played no role in Richardson’s subsequent mandamus action when that motion was denied. See
Stewart, Cox and Hatcher, P.C. v. Ford Motor Co., 350 S.W.3d. at 379 n.8.



                                                  6
had appeared in the case only as next friend for her two minor children (one of whom had

since reached the age of majority). 43 As a result, Richardson insisted, there was no actual

or potential conflict of interest between her and her minor daughter, and therefore no

reason for the trial court to have appointed a guardian ad litem. 44

       Milutin responded that his appointment was proper in order to determine whether

there was any conflict of interest between Richardson and her minor daughter, and it was

therefore premature to challenge the appointment:

               [T]he standard is not whether the next friend actually has an
               interest adverse to the minor, but whether there is an
               appearance of such conflict, or a potential conflict, to the
               court. At this stage in the case a petition for mandamus is
               premature. 45

He further complained that the Attorneys had still not provided him “with information

regarding the incident, the child, the injuries, the interested parties, and the proposed

settlement division.” 46 This, he said, had “prevented the guardian ad litem from fulfilling

his duty under Rule 173.4 to determine and advise the court whether there is an adverse

interest” between Richardson and her minor daughter. 47

       He further argued that, since Richardson was the mother of two adult Plaintiffs

who were also claiming a portion of the settlement proceeds, Richardson’s role as next

friend for I.F. created an “obvious” potential for a conflict of interest in the


43
   See Petition for Writ of Mandamus at 1, filed in the Ninth Court of Appeals on January 22, 2010, in
cause of action styled In re Theresa Richardson, No. 09-10-00032-CV.
44
   See id. Petition for Writ of Mandamus at 1–10.
45
   See Response of Guardian Ad Litem to Petition for Writ of Mandamus at 3, filed in the Ninth Court of
Appeals on February 4, 2010, in cause of action styled In re Theresa Richardson, No. 09-10-00032-CV.
46
   See id. Response at 2.
47
   See id. Response at 5, 14–18.



                                                  7
apportionment of those proceeds. 48 He also suggested that Richardson might have a

potential financial interest in her daughter’s recovery because Richardson could be “a

contingent beneficiary” of any annuity purchased for her daughter and would be an heir

to her daughter’s estate. 49 He did not explain how any of this would make Richardson’s

interests conflict with those of her daughter. 50

        Finally, and perhaps as its main theme, Milutin accused the Attorneys of “forum

shopping with respect to settlement approval” by having gone to the regular judge in

Orange County for approval of the settlement with Firestone in 2003. 51                  He suggested

they had done this in order to obtain a 40% contingent fee when “It is a matter of

common knowledge . . . that in minor’s cases Judge Mayes does not approve attorneys’

fees in excess of 33 1/3%.” 52 He insisted that Richardson’s willingness to retain lawyers

who charged a 40% contingent fee to pursue her daughter’s claims created “an

appearance of an adverse interest between the next friend, who employed the attorney,

and the minor.” 53 He argued that the contingent fee had created a conflict of interest over

the division of settlement proceeds between I.F. and the Attorneys. 54 He did not explain

how that had created a conflict of interest between I.F. and her mother.


48
   See id. Response at 7.
49
   See id. Response at 12–13.
50
   See id. Response at 1–20. Nor did Milutin suggest that the anticipated use of settlement proceeds to
pay I.F’s medical expenses would create a “conflict” between I.F. and Richardson. Id.
51
   See id, Response at 3; see also id. at 4, 7–10.
52
   See id. Response at 3–4; see also id. at 7–10.
53
   See id. Response at 8. Milutin’s response also asserted that Ford’s counsel had advised him “that Ford
did not object to the appointment and would pay the ad litem fee.” See id. Response at 2. The basis for
this assertion is unclear. The citation that followed it did not direct the reader to anything in the
mandamus record that would support the statement. Nor was there anything else in that record to support
this statement.
54
   See id. Response at 8.



                                                   8
        Ford was not a party to this mandamus action. 55 Nonetheless, it sent the Court of

Appeals a letter agreeing with Richardson that it seemed no guardian ad litem was

necessary because there was no conflict of interest between Richardson and her daughter

and no reason to believe Richardson was not fully capable of representing the interests of

her daughter. 56 See Appendix Tab 5. Ford explained that the pretrial judge seemed to

have appointed a guardian ad litem because it viewed with disfavor the 40% contingent

fee Richardson had agreed to grant the Attorneys whom she had selected to pursue her

daughter’s claims. Id. at 2. Ford noted that the lower court was mistaken, however, to

believe this was a conflict of interest under Texas Rule of Civil Procedure 173. Id.

        Still, Ford made clear that it had no interest in this dispute over the Attorneys’ fee,

and it did not care how that dispute was resolved. Id. at 4. Further, Ford’s letter

pointedly stated that it would object to any requirement that Ford pay the fees the

guardian ad litem might incur in pursuing a dispute in which Ford was not involved and

had no interest:

                Finally, Ford notes that – beyond its desire to finalize this
                settlement without further delay – it does not really care how
                this dispute is resolved over the size of the contingent fee to
                be paid to the plaintiffs’ attorneys. But it would be unfair to
                saddle Ford with the expense of paying any fees the guardian
                ad litem might incur to resolve that dispute.

Id.




55
   In re Richardson, No. 09-10-00032-CV, 2010 WL 877558 (Tex. App.—Beaumont, Mar. 11, 2010,
orig. proceeding).
56
   See letter from Ford’s counsel, sent to the Ninth Court of Appeals by facsimile and overnight delivery
on February 4, 2010, in cause of action styled In re Richardson, No. 09-10-00032-CV.



                                                   9
       The Court of Appeals denied Richardson’s mandamus petition in a memorandum

opinion. 57 See Appendix Tab 4. It observed that the pretrial judge had discretion under

Rule 173 to appoint a guardian ad litem to determine whether there was any conflict of

interest between the next friend and the minor. Id. at 6. The Court held it could not yet

say there was no reason to appoint a guardian ad litem to make that determination:

              We cannot say the circumstances presented in this case
              provide no reason for the appointment of a guardian ad litem
              to determine and advise the trial court whether the next friend
              has an interest adverse to the minor, and to advise the court
              on whether the settlement is in the best interest of the minor.

Id.

       In closing, the Court addressed Ford’s concern about being held liable for the ad

litem’s fees. The Court expressed its confidence that the pretrial judge would properly

limit the role of the guardian ad litem and then tax his costs “as appropriate”:

              We are confident the district court will direct the limited role
              of the guardian ad litem in conformance with Rule 173, and
              tax costs as appropriate.

Id. at 6–7.

V.     The pretrial judge reforms the earlier settlement with Firestone and taxes all
       of Milutin’s fees against Ford.

       The pretrial judge thereafter held a “prove-up” hearing on the settlement of I.F.’s

claims against Ford. 58 At that hearing, Richardson testified that she believed the terms of




57
   In re Richardson, No. 09-10-00032-CV, 2010 WL 877558 (Tex. App.—Beaumont, March 11, 2010,
orig. proceeding)
58
   See generally 410th RR 1–152.



                                             10
the settlement were fair and reasonable. 59 Milutin also testified that the “gross settlement

amount” Ford was paying to settle those claims was fair. 60 At no point in the hearing

was there any evidence to suggest that Richardson was not fully competent to assess

whether this settlement was in her daughter’s best interest, or to make any necessary

decisions on her daughter’s behalf. 61 Nor did Milutin suggest that she was not fully

competent to do so. 62

        Instead, most of the hearing was spent on matters unrelated to the terms of the

settlement with Ford. 63 It was spent on such things as re-structuring the trust that had

been established for I.F. during her settlement with Firestone six years earlier. 64

Similarly, the pretrial judge undertook to adjust the numbers in the distribution of

proceeds from the Ford settlement in order to correct what he saw as the excessive fee the

regular judge in Orange County had permitted the Attorneys to receive in that earlier

settlement. 65 The pretrial judge announced that his goal was to make sure the fees the

Attorneys received out of the entire case, including that earlier settlement with Firestone,

did not exceed “one-third net.” 66

        To achieve that objective, and with Milutin’s assistance, the pretrial judge

calculated the amount by which the Attorneys’ recovery in the Firestone settlement had


59
   410th RR 19, 67. Richardson also testified that, by then, she had no objection to Milutin serving as
guardian ad litem. 410th RR 38.
60
   410 RR 85 (lines 2–7).
61
   See generally 410th RR 1–152.
62
   Id.
63
   Id.
64
   410th RR 46–124.
65
   410th RR 132–43.
66
   410th RR 132 (lines 6–7).



                                                  11
exceeded his approved percentage and then subtracted that amount from what the

Attorneys would recover in the Ford settlement. 67 The court thereafter signed an order

incorporating the numbers reached by those calculations. 68 The Attorneys brought an

appeal to challenge that order.

        Ford brought an appeal to challenge a different order—the one requiring Ford to

pay, in full, all of the fees and expenses Milutin had incurred as guardian ad litem in the

course of this dispute. 69 See Appendix Tab 1 (filed under seal). This included fees and

expenses Milutin had incurred: (1) in defending his appointment against Richardson’s

mandamus action—in which Ford did not participate, (2) in restructuring the trust

established for I.F. as part of the earlier Firestone settlement, and (3) in disputing the

excessive fees I.F.’s attorneys were to receive under their retainer agreement. 70

        At this same hearing before the pretrial judge, Milutin presented an Application

for Compensation requesting payment for 126.6 hours and reimbursement for $354.40 in

expenses. 71 See Appendix Tab 2. He suggested that $350 per hour would be “normal”

for his serving as guardian ad litem for an individual. 72 He said he was not asking for

that rate, however, but would defer to the pretrial judge’s opinion “as to what is

reasonable.” 73

        Although its block time entries make this a bit difficult to assess precisely,


67
   410th RR 132–49.
68
   410th CR 162–72 (filed under seal).
69
   See 410th CR 158–61 (filed under seal).
70
   See 410th CR 145–52 (Milutin’s application for compensation).
71
   410th CR 145–52.
72
   410th RR 99 (lines 3–7).
73
   410th RR 99 (lines 3–7).



                                                  12
Milutin’s application indicates that over two-thirds of the time for which he sought

compensation had been spent defending his appointment in response to Richardson’s

motion for reconsideration (19.6 hours) 74 and her petition for writ of mandamus (69.6

hours). 75 Furthermore, at least some portion of his remaining time was spent in re-

structuring I.F.’s trust from the Firestone settlement, not with the pending settlement of

any claims against Ford. 76

         Ford objected to the amount of time for which Milutin was asking to be paid. 77 It

also objected to being required to pay the entire fee and requested that at least some

portion of it be taken from the Attorneys’ contingent fee recovery. 78

         The pretrial judge overruled all of Ford’s objections, awarded Milutin $40,000 for

his fees and expenses, and ordered Ford to pay that entire amount. 79 See Appendix

Tab 1.

VI.      The Court of Appeals reverses the pretrial judge’s modification of the
         Firestone settlement, but agrees with taxing all of Milutin’s fees against Ford.

         The Beaumont Court of Appeals thus dealt with two separate appeals in this same

case. See Stewart, Cox and Hatcher, P.C. v. Ford Motor Company, 350 S.W.3d 369

(Tex. App.—Beaumont 2011, pet filed) (Copy at Appendix Tab 3). In the appeal brought

by the Attorneys, the majority below reversed the trial court’s modification of the earlier


74
   410th CR 148 (entries dated “11.24.09” through “01.04.10”).
75
   410th CR 149–50 (entries dated “01.25.10” through “03.15.10”).
76
   See, e.g., 410th CR 150 (entry dated “04.27.10”), 151 (entries dated “04.30.10”, “05.11.10”, and
“05.11.10”).
77
   410th RR 82, 144–45.
78
   410th RR 145.
79
   410th CR 158–61 (filed under seal). This award compensated Milutin at an effective hourly rate of
$313.16 ($40,000, minus $354.40 in expenses, divided by 126.6 hours).



                                                13
settlement with Firestone and restored the Attorneys’ contingent fee from that settlement.

Id. at 373–76. It held that the regular judge in Orange County had jurisdiction to approve

the Firestone settlement and that his decision to do so should therefore stand in the

absence of some extraordinary showing to warrant setting it aside. Id.

        On the other hand, in Ford’s appeal, the majority affirmed the trial court’s decision

to appoint Milutin as guardian ad litem, to keep him in that role, to compensate him for

everything on his bill, and to tax all of his fees and expenses against Ford. Id. at 376–81.

The lower court held there was a conflict of interest between I.F. and Richardson because

a portion of the settlement proceeds would be used for I.F’s medical expenses and

Richardson, as her mother, would otherwise be legally responsible to pay those expenses.

Id. at 378 (citing TEX. FAM. CODE § 151.001(a)(3)). 80 The lower court therefore held that

it was proper to appoint Milutin as I.F.’s guardian ad litem and proper for him to have

remained in that role. Id.

        The Court of Appeals then held that all of Milutin’s time entries were within his

role as guardian ad litem and fully compensable as “necessary services performed during

the appointment to protect the child’s interest.” Id. In particular, it held that Milutin

should be paid for the time he spent defending his appointment against Richardson’s
80
   The lower court’s opinion misstates Ford’s position on this point. See 350 S.W.3d at 378. Ford did,
indeed, agree that under Rule 173.4(b) the trial court had authority to appoint a guardian ad litem to
determine whether there was any conflict of interest between I.F. and her mother. See Reply Brief of
Cross-Appellant Ford Motor Company, filed in this appeal in the Ninth Court of Appeals on March 29,
2011, at 2. And Ford agreed that Milutin might be “entitled to some modest fee for the time he
necessarily spent to determine whether there was a conflict of interest between Mrs. Richardson and her
minor daughter.” Id. But Ford has always insisted that there was no such conflict of interest. Id. And it
has pointed out that Milutin never reported one to the trial court. Id. The Court of Appeals is badly
mistaken in suggesting that, by agreeing that Milutin might be entitled to some modest fee, Ford was
“[r]ecognizing that its settlement extinguished the mother’s obligation to pay medical expenses” or that
this created any conflict of interest. See 350 S.W.3d at 378.



                                                   14
attempts to have him removed.81 350 S.W.3d at 379. It also held Milutin should be paid

for the time he spent re-structuring I.F’s trust from the Firestone settlement because it

was within his role “to determine and advise the court whether the settlement is in the

party’s best interest.” Id.

       Finally, the majority below held that it was appropriate to require Ford to pay all

of Milutin’s fees and expenses because I.F., having “achiev[ed] a significant settlement

payment” was therefore “the prevailing party.” 350 S.W.3d at 380–81. Justice Gaultney

dissented on this point. See 350 S.W.3d at 382. He argued that the Attorneys “should

have greater responsibility for the ad litem fees . . . than Ford” because it was they who

were largely responsible for the events on which Milutin had spent his time and because

the Attorney were “the losing parties to the proceeding” on those issues. Id.

       Ford now seeks review in this Court.




81
   The opinion below erroneously says that “The majority of the time itemization that Ford challenges
involves time the guardian ad litem spent to oppose a motion to appoint a guardian ad litem [sic] – a
motion that Ford joined.” 350 S.W.3d at 379. This statement is mistaken on multiple levels. To begin
with, the majority of Milutin’s time (69.6 hours) was spent opposing Richardson’s mandamus petition in
the Ninth Court of Appeals. See 410th CR 149–50 (entries dated “01.25.10” through “03.15.10”). Even
the Court of Appeals recognized that Ford was not involved in that mandamus proceeding and that it took
an expressly neutral position while it was underway. See 350 S.W.3d at 379 n.8. Milutin spent much less
time (19.6 hours) opposing Richardson’s motion asking the trial court to reconsider his appointment.
410th CR 148 (entries dated “11.24.09” through “01.04.10”). And Ford did not “join” in that motion
either. See footnote 29, supra.



                                                  15
                             SUMMARY OF THE ARGUMENT

       This case is the latest in a recent series showing that lower courts remain confused

about the proper role of a guardian ad litem under revised Rule 173, the limits to that

role, and who pays for the ad litem’s services within that role. This appeal concerns at

least three recurring issues on this subject: (1) the propriety of routinely taxing all ad

litem fees against the settling defendant regardless of that defendant’s role in causing

those fees, (2) what constitutes a conflict of interest between the minor and parent calling

for the appointment of a guardian ad litem, and (3) the extent to which a guardian ad

litem has authority to act beyond the confines established by the Texas Rules of Civil

Procedure. Each of these issues needs the attention of this Court.

       Here, two settlements concerning the same vehicular accident occurred six years

apart. The first took place without incident and was approved by the regular judge in

Orange County—without the appointment of a guardian ad litem and with the minor

Plaintiff’s mother acting as her next friend. The second settlement—concerning the same

accident, the same injuries, and the same minor Plaintiff acting through the same next

friend—prompted the pretrial judge in Montgomery County to appoint a guardian ad

litem. There then followed a contentious and protracted battle between the guardian ad

litem and the Attorneys over the guardian’s appointment and over the size of the

contingent fee the Attorneys had received in the first settlement. This produced, in the

end, a hefty price tag for the guardian ad litem’s fees and expenses, which Ford—which

was not involved in any of these events or in any of these disputes—was then ordered to

pay in full.



                                            16
       The court of appeals affirmed all of this in an opinion that should not be permitted

to stand as the law of Texas. That opinion exponentially increases the number of cases in

which guardians ad litem will now have to be appointed because – it holds – a parent’s

statutory duty to provide medical care for her child creates a “conflict of interest”

between that parent and child. Furthermore, the decision below embraces the mistaken

but common perception that an ad litem has wide latitude to act in whatever manner he

deems will “serve the child’s interests.” And it endorses the too-common practice of

routinely taxing the defendant with the ad litem’s entire bill, even where that defendant

had nothing whatever to do with the matters on which the ad litem spent his time. All

three rulings are wrong and in need of correction.

       Revised Rule 173 limits an ad litem appointment to situations where a real or

potential conflict of interest between the next friend and the minor Plaintiff can actually

be identified. If no such conflict can be identified and reported to the trial court, the role

of the ad litem should cease. Here, however, the next friend asserted no claims against

Ford and she had no individual interest in any of the settlement proceeds. Nevertheless,

the trial court appointed an ad litem, who then performed a variety of tasks unrelated to

any alleged conflict of interest between the minor and her next friend.

       The trial court then summarily ordered Ford to pay for all of those tasks, reasoning

that the Plaintiff was the “prevailing party,” even though the case settled before its merits

were ever addressed. The reason? Because Ford was the defendant, and as a matter of

course that is how it is done. But neither the plain text of Rule 173, the policy of this

state, nor the dictates of fairness support this result.



                                               17
       Gone are the days where guardians ad litem were free to supplant the next friend,

duplicate the work of the minor’s attorneys, act in whatever capacity they deemed

beneficial to the interests of the minor, and then get paid in full for all of that. Gone too,

should be the days where the bill is left in the hands of the defendant regardless of the

defendant’s role in the matters on which the ad litem spent his time. These issues are of

broad application and are therefore likely to present themselves repeatedly. This Court

should grant review and provide much-needed clarification.




                                             18
                                       ARGUMENT

I.     The decision below is based upon two common misconceptions this Court
       should correct.

       The majority below embraced two fundamental misconceptions on the law of

Texas. Both mistakes are significant; both reach far beyond the facts of this case, and

both are more widely shared than one might like to think. Both need the correcting

guidance of this Court.

       A.      The lower court is incorrect in believing the role of a guardian ad litem
               extends beyond protecting the minor from a conflict of interest with her
               next friend.

       One might have thought this reasoning put to rest by the comments to Rule 173.

Those comments state that the role of a guardian ad litem “is very limited,” is restricted

to “the division of settlement proceeds,” can be expanded to a broader role “only in

extraordinary circumstances” and—even then—that broader role is limited to

determining whether there is “an adverse interest” between the minor and the next friend

that should be reported to the trial court. TEX. R. CIV. P. 173 cmts 3–7. Furthermore, the

comments to Rule 173 expressly rebut the contention that the guardian ad litem replaces

the next friend: “In no event may a guardian ad litem supervise or supplant the next

friend. . . .” Id. cmt 4.

       What is more, if more were needed, this line of thinking cannot be reconciled with

the decisions of this Court confirming that these comments mean just what they say: The

proper role of a guardian ad litem is to protect the minor from a conflict of interest with

the next friend, not to undertake whatever task might benefit that minor. See, e.g., Ford




                                            19
Motor Co. v. Garcia, No. 10-0953, 2012 WL 1059352 (Tex. March 30, 2012) (holding

that a guardian ad litem is properly compensated only for tasks bearing on the conflict of

interest for which he was appointed); Brownsville-Valley Reg’l Med. Ctr., Inc. v. Gamez,

894 S.W.2d 753, 756–57 (Tex. 1995) (holding that the role of a guardian ad litem ends

when the conflict of interest ceases).

       Despite this Court’s series of decisions on the matter, and contrary to the plain

language of the comments to Rule 173, the belief persists in many courts that the proper

role of a guardian ad litem is not, in fact, limited to protecting the minor from a possible

conflict of interest with his or her next friend. Plenty of lawyers, many guardians ad

litem, and more than a few courts—including both of those below—instead seem to think

that, when a minor’s claim is settled, the existence of a potential conflict of interest

between the minor and the next friend is relevant only to the initial appointment of a

guardian ad litem—who may be appointed merely to determine whether there is any such

conflict.

       Once he has been appointed, however, this theory holds that the duties of the

guardian ad litem are not so limited. Instead, those duties are believed to extend to any

task the guardian ad litem deems necessary in order to recommend the settlement to the

trial court. This line of thought seizes on the language of Rule 173.4(c), which directs the

guardian ad litem “to determine and advise the court whether the settlement is in the

party’s best interest.” This wording, the argument goes, grants the guardian ad litem a

commission much broader than merely protecting the minor from a conflict of interest

with the next friend.



                                            20
       From the very outset, the lower court’s opinion shows this misconception to be at

the heart of its reasoning. Ford had stated its issue on appeal, for example, as whether

Milutin was being compensated for tasks that were beyond his proper role because they

were not related to any conflict of interest between the minor and her next friend:

               Did the trial court abuse its discretion in awarding the
               guardian ad litem compensation for time he spent on matters
               unrelated to a conflict of interest between the minor plaintiff
               and her next friend, such as time spent restructuring a trust
               established for the minor in a prior settlement and time spent
               defending challenges to his appointment? 82

Brief of Cross-Appellant Ford Motor Company, at viii (emphasis added).

       The Court of Appeals, however, described the issue as whether Milutin was being

paid for tasks that were beyond his proper role because they were “not related to forming

a recommendation regarding the reasonableness of Ford’s proposed settlement.”

Stewart, Cox and Hatcher, P.C. v. Ford Motor Company, 350 S.W.3d at 373 (emphasis

added). Applying that test, the Court of Appeals thereby concluded that tasks patently

unrelated to any conflict of interest (such as restructuring the trust documents from the

earlier settlement with Firestone) were indeed properly within Milutin’s role because they

enabled Milutin to advise the trial court that the settlement was in the minor’s best

interest:

               The guardian ad litem's role is to determine and advise the
               court whether the settlement is in the party's best interest. See
               Tex. R. Civ. P. 173.4(c). In order to advise the pretrial judge
               whether utilizing and amending I.F.'s existing trust would be
               in her best interest, the pretrial judge could have reasonably

82
  Brief of Cross-Appellant Ford Motor Company, filed in this appeal in the Ninth Court of Appeals on
January 11, 2011, at viii.



                                                21
                approved the time the guardian ad litem spent in reviewing
                and analyzing all of the trust documents, as that activity falls
                within the guardian ad litem's role.

350 S.W.3d at 380. Accordingly, the lower court’s reasoning asserts, the test for whether

a guardian ad litem should be compensated is whether the work he performed

“protect[ed] the child’s interests,” not simply whether the work protected those interests

from a conflict with the interests of the minor’s next friend. 83 350 S.W.3d at 378.

        In short, this line of thinking presumes that the guardian ad litem replaces the next

friend and thereby assumes the role of promoting the child’s best interests in the

settlement—a role that necessarily goes beyond protecting the child from a potential

conflict of interest with the next friend. This line of thinking is mistaken and this Court

should correct it.

        B.      The lower court is incorrect in believing all costs should be routinely taxed
                against the defendant whenever a case settles.

        Both lower courts, and both Respondents, seem to think it self-evident that the

Plaintiffs are the “successful parties” in any agreed settlement and that all costs should

therefore be routinely taxed against the defendant. Without a word of explanation, the

trial court simply taxed this entire guardian ad litem fee against Ford. 84 The court of

appeals reasoned that it was surely proper to do so because this Court has never said such

fees could not be taxed against the settling defendant—citing an appeal in which that

question was not even at issue. See Stewart, Cox & Hatcher, P.C. v. Ford Motor Co.,


83
   The Court of Appeals used similarly expansive language, not limited to any conflict of interest, in
saying the trial court had appointed a guardian ad litem “to assist it in evaluating the fairness of Ford’s
proposed settlement.” 350 S.W.3d at 377.
84
   410th CR 158–61 (filed in the Court of Appeals under seal).



                                                   22
350 S.W.3d 369, 380–81 (Tex. App.—Beaumont 2011, pet. filed) (citing Land Rover

U.K., Ltd. v. Hinojosa, 210 S.W.3d 604 (Tex. 2006)).

        Both lower courts and both Respondents are mistaken. No case in Texas has

recognized the principle they all seem to think is axiomatic. 85 This case demonstrates

why this perception should be denounced. Nearly all of the time for which Ford has been

ordered to pay Milutin had nothing to do with Ford, or with the Plaintiffs’ settlement with

Ford. Milutin instead spent that time on tasks directly caused by the Attorneys. It was

they, not Ford, who pursued the mandamus action to have Milutin removed. It was they,

not Ford, who were the focus of Milutin’s efforts to show that the Attorneys were paid

too much in the 2003 settlement with Firestone and had “overreached” with their

expenses. Ford had nothing to do with any of those events.

        The dissent below got this right—it was the Attorneys against whom Milutin’s fees

should have been taxed, not Ford:

                When the attorneys joined issue over the amount of the
                attorney fees and filed a petition in intervention, the attorneys
                became the losing parties to the proceeding on that issue, not
                Ford. . . . In my view, the attorneys should have greater
                responsibility for the ad litem fees under these circumstances
                than Ford . . . .

Stewart, Cox & Hatcher, 350 S.W.3d at 382.




85
  It seems the only case in Texas to have even hinted at this issue was one in which the settlement
agreement itself had said that “all costs of this suit shall be taxed against the defendant.” Siepert v.
Brewer, 433 S.W.2d 773, 774 (Tex. App.—Texarkana 1968, writ ref’d n.r.e.). The trial court had instead
ordered that the fees of the guardian ad litem be paid out of the minors’ settlement and was reversed. 433
S.W.2d at 774–75.



                                                   23
        The widespread perception that it is appropriate to tax all costs against the settling

defendant, regardless of how they were caused, is mistaken, patently unfair, and needs to

be corrected.

II.     This Court should correct the “accepted practice” of routinely taxing the
        settling defendant with the guardian ad litem’s compensation.

        A.       There is no “successful party” to an agreed settlement; Rule 131 does not
                 apply.

        Even if Milutin’s tasks had been within the proper scope of his role, Ford should

not have to pay the entirety of his compensation merely because Ford was a settling

defendant. This “accepted practice” lacks any valid legal basis and should not be allowed

to persist.

        Texas Rule of Civil Procedure 173.6(c) provides that “[t]he court may tax a

guardian ad litem’s compensation as costs of court.”                        Rule 131 states that “the

successful 86 party to a suit shall recover of his adversary all costs incurred therein, except

where otherwise provided.” TEX. R. CIV. P. 131. This Court has observed that “to

qualify as a prevailing party, a . . . plaintiff must obtain at least some relief on the merits

of his claim.” Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650,

654 (Tex. 2009). 87


86
   Case law recognizes Black’s Law Dictionary’s definition of “successful party,” which treats it as
synonymous with “prevailing party.” See BLACK’S LAW DICTIONARY 1232 (9th ed. 2009); see also
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001);
Dear v. City of Irving, 902 S.W.2d 731, 739 (Tex. App.—Austin 1995, writ denied) (equating the terms);
Wibbenmeyer v. Techterra Commc’n, No. 03-09-00122-CV, 2010 WL 1173072, at *6 (Tex. App.—
Austin Mar. 26, 2010, pet. denied) (pointing out that the terms mean that same thing).
87
   Likewise, the United States Supreme Court has addressed the meaning of “prevailing party” and
generally concluded that it means the same. Buckhannon Bd. & Care Home, Inc., 532 U.S. at 603 (“Our
respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim
before he can be said to prevail.” (internal citations omitted)).



                                                     24
          Here, the parties never reached the merits of the Plaintiffs’ claims because they

settled. The Plaintiffs did not do what Texas courts agree that they must have done in

order to “prevail”: “obtain[] a judgment of a competent court vindicating a civil claim or

right.” City of Houston v. Woods, 138 S.W.3d 574, 581 (Tex. App.—Houston [14th

Dist.] 2004, no writ). Thus, Rule 131 on its face does not apply.

          Aside from the Rule’s plain language, the policy of this state promotes such a

construction.       Defendants often—and without admission of liability—settle even

meritless claims.       A settling defendant should not be taxed with the costs of the

appointment simply because it made that choice. This automatic penalty impedes the

strong public policy in this State that “favors and encourages voluntary settlement and

orderly dispute resolution.” Shlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171,178

(Tex. 1997). Neither the plain text of the rule, the legal meaning of the term, nor the

policy behind settlements supports the lower courts’ result.

          B.     The fees and expenses of a guardian ad litem should not be taxed against a
                 party who played no role in causing them.

          Ford objected to the scope of the tasks undertaken by Milutin, including some 87

hours of work Milutin spent in defending his appointment, even though Ford did not

participate in nor cause that challenge. 88 Ford was not involved in the contract between

I.F. and her attorneys, Ford was not involved in the 2003 settlement between I.F. and

Firestone, and Ford was not involved with the trust established in the course of the 2003

settlement. Ford expressly stated it did not wish to be burdened with the cost of a fight


88
     410th RR 82, 144–45.



                                              25
among the next friend, the Attorneys, and the guardian ad litem—a dispute in which Ford

had no interest whatever. Despite all this, the trial court summarily ordered Ford to pay

all of Milutin’s fees, and the Court of Appeals had no trouble at all with that ruling. This

Court should take this opportunity to hold that guardian ad litem fees should at least be

taxed in a fair manner and not because “that is the way it has always been done.” See,

e.g., Dawson v. Garcia, 666 S.W.2d 254, 265 (Tex. App.—Dallas 1984, no writ); TEX. R.

CIV. P. 141.

        Finally, and as Justice Gaultney said in his dissent, “[w]hen the attorneys joined

issue over the amount of attorney fees and filed a petition in intervention, the attorneys

became the losing parties to the proceeding on that issue, not Ford.” 350 S.W.3d at 382.

Nonetheless, the trial court and the majority below paid little attention to the fact that

Ford played no role whatever in the disputes that consumed virtually all of Milutin’s

time. As a matter of fundamental fairness, Ford should not be saddled with the costs of

those because it is a named defendant with the proverbially deep pockets.

III.    The trial court abused its discretion in appointing a guardian ad litem when
        there was no conflict between the minor Plaintiff and her next friend.

        A.      No ad litem was necessary here.

        The threshold problem is that no guardian ad litem was needed here because there

was never any actual conflict of interest between Richardson and her minor daughter. 89



89
  The fact that the regular judge in Orange County found there was no need for a guardian ad litem in
connection with the Firestone settlement shows that determining an adverse interest necessitating the
appointment of a guardian ad litem needs the clarification of this Court. No relevant fact had changed
between the Firestone settlement in 2003 and the Ford settlement in 2009. No “new” conflict arose
during that time between I.F. and her next friend. Milutin never identified any potential adverse interest



                                                   26
See Garcia v. Martinez, 988 S.W.2d 219, 222 n.2 (Tex. 1999) (“[Rule 173] requires that a

conflict exist between the minor and the next friend before the court can appoint the

guardian.”).

       Even where it is appropriate to appoint a guardian ad litem to determine whether

there is a conflict of interest between the minor and her next friend, the ad litem’s role

should end if he does not identify such a conflict to the trial court. See Rule 173.4 (b)

(“A guardian ad litem must determine and advise the court whether a party’s next friend

has an interest adverse to the party.”); Brownsville-Valley Reg’l Med. Ctr., Inc. v. Gamez,

894 S.W.2d at 756–57 (the role of a guardian ad litem ends when the conflict of interest

ceases).

       Here, Milutin never advised the trial court of any such conflict of interest. His

principal focus, and the main concern of the trial court, was the complaint that the

Attorneys had received too much out of the Firestone settlement. But that was not a

conflict of interest between I.F. and her mother. It also had nothing to do with I.F.’s

pending settlement with Ford. The fact that reducing the Attorneys’ previous recovery

would get more money for I.F., and would therefore “serve the child’s interests” is not

the test for whether pursuing that goal is the proper role of a guardian ad litem. See

Garcia, 2012 WL 1059352; Hinojosa, 210 S.W.3d at 607–09; Brownsville-Valley Reg’l

Med. Ctr., 894 S.W.2d at 756–57.




that did not exist six years earlier when the court in Orange county had found no need to appoint a
guardian ad litem.



                                                27
          The guardian ad litem’s role is narrow for a reason: In the absence of a true

conflict of interest between them, courts have no reason to presume that a next friend—

here, a mother—will act in a manner contrary to the interests of the minor child. An

expansive reading of Rule 173 interferes with the rule authorizing representation by a

next friend, increases the cost of settlement, and frustrates the right of a parent to

“represent the child in legal action and to make decisions of substantial legal significance

concerning the child.” TEX. FAM. CODE § 151.001(7); TEX. R. CIV. P. 44.

          The proper standard is not whether the guardian ad litem could do a better job of

making decisions for the minor, or whether his services “may indeed benefit [the]

minor.” See Hinojosa, 210 S.W.3d at 607–09. Rather, the standard is whether there is a

conflict of interest between the next friend and minor plaintiff that might adversely affect

the ability of the next friend to make decisions for the minor. Id.

          In this case, the appointment rested on the pretrial judge’s disagreement with the

terms of the earlier settlement the regular judge had approved between I.F. and Firestone,

not on any conflict between I.F. and her next friend. 90

          B.     The Court of Appeals’ finding of an adverse interest between Richardson
                 and I.F. is illogical and beyond the scope of Rule 173

          The “conflict of interest” the Court of Appeals found to justify the appointment of

a guardian ad litem was Richardson’s statutory duty as a parent to provide medical

support for her child. This statutory duty is also borne by every parent bound by Texas

law that has ever, or will ever, represent her child as next friend. See TEX. FAM. CODE


90
     See 410th RR 132.



                                              28
§ 151.001(a)(3). Milutin claims on appeal that this duty made Richardson’s interest in

the settlement adverse to I.F.’s because the medical fees I.F. incurred as a result of the

accident are both “the claim and the obligation” of Richardson. 91                     But he does not

disclose any such expenses, whether paid or unpaid, or how those expenses could create a

conflict when I.F. was not responsible for payment and Richardson was not seeking

monies from the settlement to pay for those expenses.

        The comments to Rule 173 show that this is not the type of situation for which a

guardian ad litem appointment is necessary. Rule 173 “contemplates that a guardian ad

litem will be appointed when a party’s next friend or guardian appears to have an interest

adverse to the party because of the division of settlement proceeds” (emphasis added). In

other words, Rule 173 applies when the settlement division amounts to a zero-sum

game—situations where increasing the amount the minor plaintiff receives will decrease

the amount the next friend receives, and vice versa. Cf. TEX. R. CIV. P. 173 cmt. 3. That

is not the situation here because there was no division of settlement proceeds between

Richardson and I.F.

        The remaining adverse interests Milutin cited were the real bases for his

appointment and for his work. Milutin told the Court of Appeals that Richardson “had

little or no knowledge of the fee arrangement, claimed expenses, the actual effect of the

existing trust or the annuity; that she had made withdrawals from the trust; that she was

91
  See Brief of Appellee/Guardian Ad Litem, filed in this appeal in the Ninth Court of Appeals on Feb. 8,
2011, at 13. Milutin also maintains there was an adverse interest because the next friend is entitled to
receive payments for support of the child from the settlement proceeds in the trust. Id. at 13 (citing Tex.
Prop. Code § 142.005(c)(2)). Insofar as Richardson is entitled to these funds, her interests in the
settlement are again aligned with I.F.’s. Notably, Milutin never reported either of these alleged “conflicts
of interest” to the trial court, as Rule 173.4(b) would appear to require.



                                                    29
requesting liens for the child’s medical bills be paid from the settlement proceeds; and

that she suffers from high blood pressure and diabetes which is of great concern were she

to become unable to take care of I.F.” Even if true, however, these complaints do not

establish an adverse interest between I.F. and her next friend in the settlement with

Ford. 92 They amount to nothing more than assertions that the Attorneys should have

been doing a better job of pursuing I.F.’s claims and of keeping Richardson informed.

That is not a conflict of interest calling for the appointment of a guardian ad litem. See

TEX. R. CIV. P. 173 cmt. 4 (admonishing guardians ad litem against supervising or

supplanting the next friend).

       C.      The holding below wreaks havoc on the next friend scheme and will now
               require that guardians ad litem be appointed with unprecedented
               frequency.

       The decision below holds that an adverse interest between a parent and minor

child is created simply by the statutory duty of every parent to support their child. The

effect of this holding is hard to overstate. It stands for this sweeping proposition: In

every case where an injured minor has incurred medical expenses and is later represented

by a parent in a personal injury settlement, a guardian ad litem must be appointed because

the parent’s interests are adverse to the minor’s as a matter of law. According to the

court of appeals, Texas Family Code section 151.001(a)(3) creates an inherent adverse

interest between a parent and child whenever a child asserts a claim for medical expenses




92
  See Brief of Appellee/Guardian Ad Litem, filed in this appeal in the Ninth Court of Appeals on Feb. 8,
2011, at 12–13.



                                                  30
and the parent assumes the role of next friend to pursue that claim. Under this analysis,

the actual division of settlement proceeds is irrelevant.

       Considering the frequency with which parents represent their children as next

friends in similar suits, this decree will dramatically increase the costs of settlement, will

frustrate the next friend statutory scheme, and will unnecessarily infringe on a parent’s

right to make legal decisions on behalf of her child.

IV.    The trial court erred in compensating the guardian ad litem for work that
       exceeded the proper scope of his appointment.

       A.     The guardian ad litem’s role is limited to advising the court on an
              identified conflict of interest.

       Rule 173.4 states that “[a] guardian ad litem acts as officer and advisor to the

court.” In so doing, the ad litem must advise the court of an adverse interest between the

minor child and her next friend. TEX. R. CIV. P. 173.4(b).

       Also, the Rules provide that the ad litem has “the limited duty” to advise the court

whether settlement is in the minor’s best interests. Id. 173.4(c). Comment three to Texas

Rule of Civil Procedure 173 clarifies the proper, limited scope of that role:

              [T]he responsibility of the guardian ad litem as prescribed by
              the rule is very limited, and no reason exists for the guardian
              ad litem to participate in the conduct of the litigation in any
              other way or to review the discovery or the litigation file
              except to the limited extent that it may bear upon the division
              of settlement proceeds.

TEX. R. CIV. P. 173 cmt. 3. Only “extraordinary circumstances” authorize a broader role

than this. Id. But even when such extraordinary circumstances are present, “the role is

limited to determining whether a party’s next friend or guardian has an interest adverse to




                                             31
the party that should be considered by the court under Rule 44.” Id. cmt. 4. In other

words, once an adverse interest is identified, the guardian ad litem’s singular

responsibility is to advise the court of that conflict so the trial court can decide whether to

replace the next friend. The existence of the conflict does not give the ad litem carte

blanche to do anything and everything he deems necessary to promote a vague notion of

the minor’s best interests.

       Yet that is what happened here. Milutin never apprised the court of an actual

conflict and the court granted him no authority beyond the “very limited” role authorized

by Rule 173. Still, Milutin proceeded to challenge the attorney’s fees from a prior

settlement and to restructure I.F.’s trust from that settlement—tasks completely unrelated

to the conflict purportedly identified as warranting his appointment. Departing from

representing I.F.’s interests in connection with the stated theoretical (and likely

improbable) future conflicts between I.F. and Richardson, Milutin turned his appointment

into a roving commission to do whatever he thought would serve I.F’s interests.

       B.     Milutin’s services were not limited to the alleged conflict of interest
              between the next friend and the minor plaintiff

       Milutin spent much of his time pursuing his belief (apparently shared with the trial

court) that the Attorneys had been paid too much out of the settlement with Firestone six

years earlier. Whether the Attorneys were overpaid in that settlement is beside the point.

Attempting to rectify that alleged wrong was not a task properly within Milutin’s role as

guardian ad litem. It was not related to the pending settlement with Ford, and it had

nothing to do with any adverse interest between Richardson and I.F.




                                              32
          Milutin also incurred fees restructuring a trust established for I.F. during the

Firestone settlement. 93 That, too, is not a proper role of a guardian ad litem. It is a job

for the Plaintiff’s attorney.

          Finally, Milutin billed for the time he spent assisting the trial court in adjusting the

Ford settlement to offset the alleged overpayment to the Attorneys in the Firestone

settlement. 94 That objective may have been noble, but it was not related to any adverse

interest between I.F. and Richardson. It was therefore beyond the scope of Milutin’s

appointment, and it was improperly taxed against Ford. “If a guardian ad litem performs

work beyond the scope of this role, such work is non-compensable.” Hinojosa, 210

S.W.3d at 607.

                                             PRAYER

          Ford prays that this Court grant its Petition for Review and reverse and remand the

trial court’s order and court of appeals’ opinion directing Ford to pay Milutin’s fees and

expenses as guardian ad litem.




93
     410th CR 148–52.
94
     Id.



                                                 33
Respectfully submitted,

THOMPSON, COE, COUSINS & IRONS, L.L.P.


By /s/ Craig A. Morgan________
for Michael W. Eady
    State Bar No. 06332400
    Sara M. Berkeley
    State Bar No. 24073919

701 Brazos
1500 Austin Centre
Austin, TX 78701
Telephone: (512) 708-8200
Facsimile: (512) 708-8777
Email: meady@thompsoncoe.com
Email: sberkeley@thompsoncoe.com


CRAIG A. MORGAN, ATTORNEY AT LAW


By /s/ Craig A. Morgan________
  Craig A. Morgan
  State Bar No. 14435330

718 Sunfish
Austin, Texas 78734-4410
Telephone: (512) 608-9324
Facsimile: (512) 261-3628
Email: craigamorgan@austin.rr.com


Counsel for Petitioner Ford Motor Company




     34
                               CERTIFICATE OF SERVICE

        As required by Texas Rules of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that on the 28th day of June, 2012, I served this document on the following counsel
of record through the Court’s electronic filing system and/or by First Class United States
mail:

Counsel for Stewart, Cox and Hatcher, P.C. and Turner and Associates, P.C.:

       Martin J. Siegel
       LAW OFFICES OF MARTIN J. SIEGEL, P.C.
       700 Louisiana Street, Suite 2300
       Houston, TX 77002
       martin@siegelfirm.com

       Jerry White
       TURNER & ASSOCIATES, P.A.
       4705 Somers Ave.
       North Little Rock, AR 72116

Counsel for I.F. a Minor, by and through her Next Friend, Theresa Richardson:

       Lauren Beck Harris
       PORTER HEDGES LLP
       1000 Main Street, 36th Floor
       Houston, TX 77002
       lharris@porterhedges.com

Counsel for Guardian Ad Litem John Milutin:

       Warren Harris
       BRACEWELL & GIULIANI, LLP
       711 Louisiana, Suite 2300
       Houston, TX 77002
       warren.harris@bgllp.com



                                             /s/ Craig A. Morgan________
                                               Craig A. Morgan




                                            35
                                                        APPENDIX

Order Awarding Fees and Expenses to Guardian Ad Litem
   (410th CR 158–61) (under seal)............................................................................... Tab 1

Application for Compensation of Guardian Ad Litem
  (410th CR 145–52)................................................................................................... Tab 2

Opinion and Judgment from Court of Appeals, Stewart v. Hatcher, P.C.,
   & Turner & Associates, P.A. v. Ford Motor Company, et al.,
   350 S.W.3d 369 (Tex. App.—Beaumont 2011, pet filed) ......................................Tab 3

Letter from Ninth Court of Appeals overruling Ford’s Motion for Rehearing (Sept.
   15, 2011), Stewart v. Hatcher, P.C., & Turner & Associates, P.A. v. Ford
   Motor Company, et al., No. 09-10-00371-CV (Tex. App.—Beaumont,
   Aug. 25, 2011) ....................................................................................................... Tab 4

Letter from Ford’s counsel to the Ninth Court of Appeals in the mandamus action
   styled In re Theresa Richardson, No. 09-10-00032-CV (Feb. 4. 2010).................Tab 5

The Ninth Court of Appeals’ memorandum opinion in the mandamus action styled
   In re Theresa Richardson, No. 09-10-00032-CV (March 11, 2010)...................... Tab 6

Tex. R. Civ. Pro. 131 and 141 ...................................................................................... Tab 7

Tex. R. Civ. Pro. 173 .................................................................................................... Tab 8




                                                              36
APPENDIX
TAB 1
Order Awarding Fees and Expenses to Guardian
                 Ad Litem
            (410th CR 158-61)

This document was placed under seal by the district court in
case number 01-01-410 and remains sealed in the Beaumont
Court of Appeals (No. 09-10-00371-CV).1 Based on a
discussion with the clerk’s office of this Court, it is Petitioner’s
understanding that this Court will obtain from the Court of
Appeals the Order Awarding Fees and Expenses to Guardian Ad
Litem should it so desire. The Order, therefore, will not appear
in this Appendix.




’ See Letter From Carol Anne F!ores, Clerk, Court of Appeals for the Ninth District, to Martin J. Siegel, Craig A.
Morgan & John Milutin (Dec. !6, 2010) (attached, TAB 1).
C~-IIE’F JUSTICE
STEVE MCKE1THEN                              Court of Appeals                                       CLERK
                                                                                             CAROL ANNE FLORES

JU51 ICES                                        State of Texas                                         OFFICE
                                                                                                       SUITE 330
DAVID B. GAULTNEY
CHARLES KREGER
HOLLIS HORTON
                                                  Ninth District                                    10{)1 PEARL 87
                                                                                               BEAUMONT. TEXAS 77701
                                                                                            4091835-8402 Ft%~t. 409;635.6~t .¢,.’


                                                 December 16, 2010

            Martin J. Siegel                               Craig A. Morgan
            Bank Of America Center                         718 Sunfish
            700 Louisiana, Suite 2300                      Auslin, °I’X 78734
            llouston, TX 77002


            .lohn Milutin
            Milutin & Associates
            3701 Kirby Dr., Suite 1212
            Houston, TX 77098

            RE:     Case Number:            09-10-00371 -CV
                    Trial Court Case Number: 01-01-410

            Style: Stewart, Cox and Hatcher, P.C. and Turner and Associales, P.A.
                   V,
                    Ford Motor Company, et al

                   We received Appellants’ motion to unseal orders, Appellee’s response to that motion, and
            Appellee’s motion to place the reporter’s record of a hearing under seal. it appears the orders
            and records referred to in the motions were placed under seal by the trial court; accordingly,
            those orders and records are maintained under seal and will not be open to inspection by anyone
            other Ihan the attorneys of" record and the Court. The attorneys o[" record for the parties may
            inspect these documents at [he Court ol’Appeals. In addition, the Court has granted leave to file
            briefs under seal. No other aclion is being taken on the motions at tMs time, but the parties may
            requesl reconsideration of the motions i l" additional relief is necessary to present their appeals.
                                                                      Sincerely,

                                                                      CAROL ANNE ITLORI’.:.S, CLERK
TAB 2
CASES COO~A~D ~OR P~




                                       CAUSE NO. A010292-C

BLA.~A FLORES, Individually and as                 §           ¯ IN T!::IB DISTRICT COURT OF

S~CA ~O~S, Individadly~ ~d ~ ~iv~g ~
Adult Child of OSC~ FLO~S, D~as~d        ~
~~RO.~OES, Individu~ly ~ud ~             ~
Su~iving Ad~t Child of OSC~ ~O~S,        ~
De~d and ~SA~C~SON, ~ Ne~ ~
Friend of~ ~O~ a ~ner, md Su~iving ~
Minor Child of OSCAR FLO1LES. De-eased §
ROSEMARY DBL ANGEL. AMANDA CANO,§
RIC~C~r CANO and ~ REYES               §
               Plaintiffs                          §            OI~GE COUNTY, TEXA~
                                                   fi
v.                                                 §

FORD MOTOR COIvlPANY                               §

               Defendant                           §            128TM JUDICIAL DISTRICT

           APPLICATION FOl~ CO1VIPENSATIO1N" OF GUARDIAN AD L1TEM

TO THE HONORABLE 3UDGE OF SAID COURT:

       COMES NOW IOI-IN MILUTIN. gnardhn ad litem for minor Plaintiff, Irene Flores, in the

above sty!.ed cruise of action, and pursuant to Rule 173.6 Texas Rules of Civil Procedure. makes this

application for compensation for Ms services in the above referenced matter.



        Attached hereto as Exhibit "A", and incorporated herein, is the guardian ad litem’ s time mad

expense records whioh detail the basis for the requested compensation. The guardian ad [item

requests that he be paid a reasonable hourly fee for the necessary services he perform~d, as reflected
  the a~tached Exhibit "A, and tha~ he be reimbursed for reasonab!e and necessary expenses as

reflected thereon.



                                                               AW FXRM
                                        ~
                                           State BarNumb~r: 14171700
                                           3701 I’~.by Driv% S~aite 1212
                                           "Houston~ Texas.77Q98
                                          ....
                                           (713) 533 - 1400 T4ephone
                                           U13) 533-144! Fa~s~fle

                                             GUARDIAN AD LITEM


                                 ,CEI<TIFICA~ OF SERYICE
       I aerdfy tha~ an accurate co.py of the accompanying document was s erred in com1~liaace with
the Texas Rzfles of Civil Proged~e on May 21,2010, on ~he following a~tomeys of record:

       Mr. C. Tab
       Mr. ~[eny M..White
       Tamer & Associate%
       500 Main S~reeto Suite 310
       Ft. Worfl~ TX 7fi102                                             VIA gAAVD DELIVERY
       Ms. Dani~lle M: Harsany
       Thompson, Co% Co~sins & Irons, LLP
       One Ri~rway. Suite 1600
       Houston. TX 77056
                                     VERIFICATION

  STATE O:F TEXAS §

  COUNTY OF HARRIS §

         BEFOIt.E ME, the undersigned authority, appeared Jotm Milutin, personally known

’ to me, who upon first being duly sworn according to law trpon his oath dep,osed and

  testified as follows:

         "My name is Jotm Milufin. I am.over the age of eighteen years; am of
         sound mind, have never been convictezl of any crime or offense, and am
         fully competent to testify to the matters testified to herein.

         Iatn a licensed attorney, and the guardian ad litem for the minor Plaintiff,
         Ixene Flo~es ill M[aster Ffle No, 01-01-4101 Bridgestone~iretone and Ford
         Cases; Iu the 410~h Judicial District Com:t of 1V~ontgomery County, Texas, and
         Cause No, A010292-C; ]glmfia Flores, et al Ts, Ford hilotor Compax~y; In the
         128~b Judicial District Court of Orange County, Texas.

         I pr~ared the Application for Compensation of Guardian Ad Litem and
         Exhibit "A" to said application (Time RecoN of Guardian Ad Litem). The
         statements contained in this Application and ExJaibit "A" are true, accurate,
         and the services rendered were necessary to perform the dudes of the
         guardian ad ]item."

  Further, affian’t sayeth not.


                                                               Affiant


         SUBSCRIBED AND S~]gORN TO BEFOI~ ME, on the 21st day of May, 2010.


                                                           PUBLIC in mad for
                                                           TEOF TEXAS
                                                 My Commission Expires:
              Master File I’/o. 01-01-410; B~idgestone/Firetoue and Ford Cases; In t~e 410m Judicial
              District Court of Montgomery County, Texas.

              Cause No. A0 I0292-C; Elania Flores, et al"~s. Ford Motor Company; In the 128m Yudidal
              D~strict Coral of Orange County, Texas.

                                  RECORD OF GUA_RDLA_N AD LITEM

 10.21.09     No~fied by cour~ coordinator of appoia~a~ent hs GAL; T/C to DazHelle Harsany.
              .20 hours

10.22.08      T/C/Ierry White; Danielle Harsany; Thad Ienks; set up file,
              .50 hours
11.10.09      E-marl to Yerry WhlteiDanielle Harsany/Thad Ienks; e-mail from Terry WtErte re setting up
              appointment w/Ms. Richardson & Irene Flores; draf~/finalize/fa~ letter to Ierry White/Tab
              Turner re documents needed for review.
              .80 ho~s

11.24.09      Receive/review Motion to Reconsider; review Rule 173; T/C Danie!le HarsaW.
              1.20 ho .urs ¯

I i..30.09    T/C Sorry White re motion to reconsider, said he will try to get Tab Turner on phone this
              afternoon; T/C Jnlie AIbright; T/C Yeny White; star~ drafting response to motion to
              reconsider.
              3.00 hours

1~..01.09     T/C w/Ierry re his motion for reeonsideration~ T/C w/Danielle re her agreement or opposing
              of m/reconsideration andpaying GAL fee; continue draf~ng response; e-mail to Yeny & Tab
              re if necessary lo file response t6 their motion for reconsideration; e-mall from Ierry White
              issues are clear and this is what client, wgnts; e-mail from Tab Turner re his concurrence with
              Ierry White’s e-mail; e-mail draR response to Jerry and Tab; receive/review e-mail from Tab
              Turner.
              2. !0 hours

12.10.09 - 12.30.09
             Receive/review Plaintiffs" reply; request transcript from prior hearing on Iegai assistant:s
             record search; TIC Danielle; legalresearch; draf~ & finalize supplemental response*o motion
             to reconsider.
             10.50 hours

01.04.10      Receive/review Order on Agreed Motion to Reconsider.
              .10 hours


Page 1 of 5
0!.11.10       E-rea!! to Jerry White/Tab Turner re expediting settlement, need for documents requested in
               the 11/10/09 letter; e-mall from Tab Turner re intent to pursue mandamus.
               .20 hours

01.25.10       .Receive/review Petition for Writ of Mandamus; T/C Court of Appeals clerlc
               1.5 0 hours

01.27.10       T/C to Thad Jertlcs re orig[ual settlement terms/stmotuz.es. Recke~ew e-marl from Thad to
               Jerry White re my .request and confidentiality; e-mail response from Jerry White refusing
               GAL request.
               .30 hours

01.28.10       Faxed letter to Kevin Dubose re Tab R9 in the Maudamus Record.
               .20 hours

01.29,!0       Reckeview letter from Kcvin Dubose re Tab 9; roe/review letter from Jerry White te my
               request for settlement terms/structures of previous settlement,
               .20 hours

02.01.10       E-marl to interested parties re response to Jerry White’s letter re request for terms; e-mail
               to/~om Kevin Dubose re Tab 9.
               30 hours

02.02.10       E-marl to/from Kgvin Dubose re Tab 9.
               ¯ 10 hours

01.26.10 - 02.03.10
              Research]drat~ @AL’s Response to Petition for Writ of Maudamus.
              50.50 hours

02.04.10       FiualLze/file GAL’s Response to Petition for Writ of Maudamus.
               7.00 hours

02.08.10      . Receive/review Relator’s reply.
                .80 hours

02.09.10 - 02.15.10
              Prepare/finalize/file additional brief.
              8.00 hours

03.11.!0       Receive/review Court’s opinion.
               .70 hours



Page 2 of 5
03.15.10      T/C Kcvin Dubose,
              .20 hours

03.22.10      E-mailto JerryWhite re: minor’s settlement, fo!!ow up onpreviously requestedirfformation,
              advising oftdai in Wharton; ~-mail from Jerry White re: response to earlier e-mail, gathering
              infomaation, dates for meeting, need to discuss possible change of trustee.
              .20 hours

03.23.10      E-marl to Jerry White re: suggested dates for mtg; e-mat! from Jerry White re: place ofmtg
              to be in Waco; e-mail to Jerry White re: agreed to mtg being in Waoo, requested dates.
              .30 hours

04,05.10      E-mail to Jerry White re: follow up’on goring information requested and possible dates for
              mtg. with minor and morn.
              ¯ 10 hours

04.13.10      "E-mail to Jerry White re: date/time/address ofmtg, with minor and morn; e-mail from Jerry
              White re: thai in NashviIle, possible dates for mtg.
              .20 honrs

04.14.10      E-mai! to Jerry White re: gi#ing 2 i~ossible dates for mig; e-mail from Jerry White: re: getting
              information to us and checking on dates provided for mtg.
              .20 hours

04.15.10      T/C with Julie Albr[ght re figures, will send drait of paperwork_
              .20 hours

04.19.!0      E-mails to/from Jerry White re 4/28/10 meeting, documents needed, where to have meeting

              .30 hours

04,22,10      E-mail to Jerry White re needing documents recfuested prior to meeting, confirm when &
              wheie meeting to take place.
              ¯ 10 hours

04,23.10      Receive/review some of the materials requested from Jerry White on CD; e-mail to Jgrry
              White re documents still needed for review prior to settlement & meeting w/client, and
              Medicaid question; prepared notes/qu~s’tions for meeting in Waco w/client.
              2.50 hours

04.27.10      Further review of records from Jerry White; e-mail from Jerry White re attaching structured
              seNement from prior settlement, figures on Irene’s trust, movingtrust f~om Axizona to loca!
              bm~k, their hiring of Phil McCrury to prepare paperwork for moving test.
              1.50 hours

Page 3 of 5
04.2g.10      Travel to and from Waco; meet with Ms. Richardson, ~rene, Jerry White and James
              Richardson.
              8.00 hot~rs

04.30.10       T/C with 7ennifer White at I86 re: existing annuity and how to have it changed to pay into
               trust with Court Order; review IRB Code 5891; T/C with Theresa Richardson re birth
               certificate; T/C Brady Whitaker with Encore Tr~st x 2; T/C with Phil McCmry at SGRM~
               T/C Theresa re conversation with Brady Whitaker; e-mail to Jen7 re recap of conversations
               of today and reminder for back up for case expenses; e-mail from Brady re mtg. scheduled
               with Theresa.
              2.30 hours

05.03.10      T/C with BradyWhittaker; T/C LauraPinto w/Frost; receive/review e-mail from Frost B auk;
              e-mail to Jennifer White JSO; placed call/LM to M,edicaid; faxed letter to Medicaid re offer
              of settlement on lien; placed call/LM to Jennifer Burchfield ’in Tab Tumer’s office re
              Medicaid lien, BCBS & back up expense.
              .60 hours

05.04.10      T/C to Donna Myers @ Encore requestinginformation; T/C to Brady re minimum fee; e-mail
              from Encore with tM~r fee schedule;-e-mails to/~om Jen-y White re conversation with
              Medicaid on a reduction, pogsible seiilement hearing datefi, checldng with Court on available
              dates~ slzucturing options; e-mail JSG recluesP_mg several options be prepared; review JSG
              options; e-mails to/from Jerry White w/JSG options; e-mail to interested parties Rat minor’s
              settlement hearing set for 5/21/10 at 1:00 p.m.
              !.10 hours

05.05.10      E-filed/faKed notice of minor’s settlement heating; e-mails to/from Jerry White re options
              with JSG and Vmstees at Encore/Frost.
              .30 hours

05.10.!0      Keeeive/review/reply to e-mails ail interested parties regarding settlement; trust; annuity;
              hearing;’expense back up, incapacity questions, ~oheduling conference call.
              .40 hours

05,11.10      Receive/review/reply e-mail :from Tab Turner; e-mail to JSO, Brady & Jerry re annuity
              payment language; e-mail to Danieile Harsany; TIC w/Jerry; TIC w/Brady re benefit of
              structuring part of settlement; TIC w/Jennifer (JSO); TIC L~da MoInis @ Medloaid re
              reduction of lien; TIC w/Jerry re expenses; e-mail to Jenr6fer Buroh re questions about
              expenses and calculate fees; e-mailto Brady; T/C w/Brady re motion to substitute trustee and
              amend trust.
              3.00 hours



Page 4 of 5
05.12.10     E-mail to/from interested parties re scheduling conference call with Phi!/t3rady/myselfre
             papers needed for trust; T/C with J80 re additional options; review e-mail from JSG
             w/options’ T/C with Theresa re trust.
             .30 hours

05.13.10     T/C w/Phil re issues with moving trust; e-mails to/from interested parties re conference call
             on Friday; e-mail to Brady re sending language to Phil r.egarding trust.
             .40 hours

05.I7.10     Review/review/reply to e-ma~, documents prepared b3} Phil McCrury; e-mail to interested
             parties with suggestions; T/C w/Phil; T/C w/Linda McInis at Medicaid; receive/review reply
             to e-mails from Tab Turner; review multiple e-mails from Phil M¢Cmry; T/C Phil McCmry.
              1.70 hours

05.18.10     Receive/respond to e-mails from. Jen3r White & Brady Whitaker; receive/revlew revised
             documents from Phil McCmry.
             1.00 hours

05.19.10     Numerous e-mails with Julie Albright Phil McCrury, Tab Turner, Jerr~ White, Brady
             Whittaker, Janis Ryan; TIC w!Phil McCmry, Yauis Ryan, Theresa Pdch~rdson
             1.50 hours

05.20.10     E-marls .to/from Jnlie Albfight; T/C Julie Albright; T/C Brady Whittaker; e-mail to all
             interested parties re availability to discuss/finalize all documents; e-mails to/from JS~,re
             final structured annuity 8~ annuity information form; recede/review updated case expenses,
             contract and proposed settlement distribution sheet from Jerry White; prepare for minor’s
             hearing tomorrow
             7.00 hours

05.21.10     Travel to Conroe to attend 1Vfinor’s Settlement Hearing; meet with Plain~Jffs and counsel.
             5.00 hours

                                                       Total FLours:                          126.60

      Out of Pocket Expenses:
             LexisNexis                                                                $162.06
             Robin Cootcsey, CSR                                                         95.00
             Travel to Waeo                                                              50.00
             Fed Ex                                                                      47.3~4
                                                                                       $354.40

      Other Expanses:
            Sharmon.~ Crracey, Ratiiff & MSllter, L.L.P.



      Page .5 of 5
                                                                                                  152
TAB 3
                                    , ~The

                               Court of Appeals

                   Ninth District of Texas at Beaumont


                               NO. 09-10-00371-CV


             STEWART, COX AN~ HATCHER, P.C. AND TURNER
                   AND ASSOCIATES, P.A., Appellants



                 FORI~ MOTOR COMPANY, ET AL. Appellees



                     On Appeal from the 410th District Court
                          Montgomery County, Texas
                           Trial Cause No. 01-01-410


                                     OPINION

       I.F., a minor, was ejected from a minivan during a one-car rollover accident and
was injured. I.F.’s father, Oscar Flores, was killed in the rollover, and I..F.’s sister and

brother, along with the other occupants of the minivan, were injured. In Ilme 2001,

Librado Flores, individually and as the representative of the estate of Oscar Flores, as

well as other individuals injured in the accident, filed a suit in Orange County, Texas,

seeking to recover damages against Bridgestone/Firestone North American Tire, LLC

(Firestone), Ford Motor Company, and Arrow Ford, Inc.

                                          1
      In 2003, Fh’estone settled with the group of plaintiffs. A district judge in Orange

County (the regular judge) signed an order approving the settlement, which included

I.F?s claims against Firestone. During the hearing, on Firesto~e’s settlement, the regular

judge learned that the proposed settlement awarded I.F.’s attorneys a fe~ of forty percent

of the gross proceeds from the settlement.1 I.F.’s mother, who instituted the suit on I.F.’s

behalf as her next friend, and the attorneys for the plaintiffs, advised the regular judge

that the terms of Firestone°s settlement proposal were fair. After finding that no conflict

existed between I.F.’s next friend and I.F., the regular judge approved Firestone’s

proposed settlement, and in its order approving the settlement, found the agreement to be

"in the best interests of the minor plaintiffs[.]’’2

       In 2010, Ford reached an agreement to settle with the group of plaintiffs that had

previously settled with Firestone. The p .allies presented Ford’s settlement for approval to

 a Montgomery County district judge, the pretrial judge who had been assigned in

 September 2001 to coordinate the pretrial proceedings in connection with the rollover.3


        1The contingent fee agreement that I.F.’s mother signed obligates the ~°Client" to
 pay forty-five percent of the gross recmrery or judgment.

        2When the Firestone settlement occurred, four of the parties to the suit, including
 I.F., were minors.

       3The presiding administrative judge had assigned the trial judge in Montgomery
 County to be the "pretrial judge" under Rule 11 of the Texas Rules of Judicial
 Administration. Tex. R. Jud. Admin. 11, reprinted in Tex. Gov’t Code Ann. tit. 2, subtitle
 F app. (West 2005). Consistent with Rule l l.3(b) of the Texas Rules of Judicial
 Administration, the administrative order of assignment states: ’°IT]he assigned pretrial
 judge will preside over all pretrial proceedings in the case in the place of the regular
                                            2
At the conclusion of the Ford settlement hearing, the pretrial judge advised the parties

that he would approve the Firestone settlement, "save and except for the changes that I’m

going to be ordering with respect to this case.’’4 The pretrial judge, after considering the

attorneys’ fees and expenses that had been incurred in connection with both the Ford and

Firestone settlements, approved a fee that altered the fee previously approved by the

regular judge in Orange County, reducing the fees and expenses that had been approved

and paid following the Firestone settlement in 2003. The pretrial judge signed an order

approving the Ford settlement which recites that the reg~ar judge, in approving the

Firestone settlement, awarded attorneys fees and expenses that the pretrial judge "deems

to be an amount of attorneys fees and expenses that should be adjusted in the best interest

of the minor." The pretrial judge then found it "appropriate to adjust the amounts payable

under the Ford settlement to effect an adjustment of $227,403.25 of attorneys fees and

expenses[,]" even though those fees and expenses had been approved as being reasonable

in 2003 by the regular judge. Subsequently, the pretrial judge ordered Ford to interplead

 $227,403.25 into the registry of the court, pending the resolution of all "further


jl~dge. The pretrial judge will decide all pretrial motions, including motion[s] to transfer
venue and motions for summary judgment. The pretrial judge and the regular judge must
consult on setting a trial date." See Tex. R. Jud. Admin. 11.3(b). In this ca/e, the "regular
judge" was the judge of the 128th District Court in Orange County, Texas.

        4The attorneys representing I.F.’s interests at the settlement hearings and I.F.’s
 guardian ad litem take opposite positions about whether the pretrial judge was authorized
 to re-approve Firestone’s portion of the settlement, as the agreement with Firestone had
 previously received the approval from the regular judge in whose court the case was
 filed.
                                          3
proceedings[.]" Ford and the attorneys representing I.F.’s interests in the settlement

hearings then perfected their respective appeals.

      One of the questions to be determined ill this appeal is whether the pretrial judge

who acted to approve Ford’s settlement abused his discretion by revisit’.mg and changing

the decision of the regular judge concerning the award of attorneys’ fees anti expenses

from the proceeds of the Firestone settlement. In addition to the challenge presented to

the order approving settlement by Stewart, Cox and Hatcher, P.C., and Turner and

Associates, P.A., who served as I.F.’s attorneys in both settlements, Ford challenges the

pretrial judge’s deeisions to appoint a guardian ad litem in connection with tile pretrial

court’s consideration Of Ford’s settlement proposal, to tax the entire guardian ad litem?s

fee against Ford, and to include in the award of a reasonable guardian ad litem fee the

guardian ad litem’s time for tasks that Ford contends were not related to forming a

recommendation regarding the reasonableness of Ford’s proposed settlement with I.F.

            Altering the Regular J.udge’s Approval of the Firestone Settlement

       First, we note that there are some limited circumstances under which a court is

¯ allowed to revisit the propriety of whether the terms of another court-approved settlement

 involving a mJ_rtor were reasonable. In Missouri-Kansas-Texas R.tL Co. of Texas, et al. v.

 Pluto, the Texas Supreme Court allowed a settlement that had received a court’s approval

 of a minor’s claim to be set aside where "the minor’s case was not properly iaid before

 the court, by collusion, neglect, or mistake[.]" 138 Tex. 1, 156 8.W.2d 265, 267 (1941)
(citing Day v. Johnson, 72 S.W. 426, 428 ODallas 1903, writ dism’d w.o.j.)). In Pluto, a

district court approved the railroad’s settlement of the claims of several family members

that arose from a train’s coIlision with a car. [d. at 266. Seventeen years later, one of the

minors, whose claims had been settled, filed a suit seeking to avoid the effect of the

court-approved settlement of his claim. Id. Followinga jury trial on the disputed issues, a

jury found in part that the mhaor°s injuries had not been futly d~sclosed to the court during

the hearing conducted to approve the minor’s settlement, that the minor’s next friend had

negligently failed to disclose the minor’s injuries to the court during the hearing to

approve the settlement, that the railroad’s agen~ knew or had reasonable cause to know

the extent of the minor’s injuries at the time the proposed settlement was approved, and

that the judgment entered on the settlement was against the interest of the minor. 7d. at

267. Under these circumstances, the Pluto Court Mlowed the minor to avoid the effect of

the court-approved settlement and allowed the minor to recover a judgment compensating

him for his personal injuries which had resulted ~rom the collision..Id, at. 266, 270.

       In this case, however, none of the parties claimed that when this matter was

pending before the pretrial judge that I.F.’s injuries or the fees and expenses which were

sought by I.F.’s attorneys were notproperly laid before the regular judge when that court

acted to approve Firestone’s proposed settlement in 2003. Additionally, in the pleadings

before the pretrial judge, no party asked that the pretrial judge disregard any of the terms

 of the Firestone settlement in considering Ford’s proposal to settle. I.F.’s guardian ad
litem, appointed by the pretrial judge in connection with Ford’s proposed settlement,

never filed pleadings alleging that the Firestone settlement had been procured by

collusion, neglect or mistake. We do note that the guardian ad litem’s pleadings

suggested that I.F.’s attorneys, by scheduling the Firestone settlement hearing with the

regular-judge, had violated the administrative order assigning the pretrial judge to handle

pretrial matters.

       During the hearing on the Ford settlement, the pretrial judge re-approved the

Firestone settlement, subject to exceptions referencing the attorney fees and expenses

awarded in the Firestone settlement. However, the pretrial judge did not fred that the

terms of Firestone’s settlement with I.F. were not properly presented to the regular judge

at the time the regular judge approved Firestone’s proposed gettlement.

       From the hearing the pretrial judge conducted on Ford’s proposed settlement and

the order approving the Ford settlement, it appears the pretrial judge believed that the

Firestone settlement required .his approval. On appeal, th~ attorneys who: procured the

Ford and. Firestone settlements argue that the regular judge could approve the Firestone

settlement because the approval of a minor’s settlement isnot a "’pretrial proceeding’" or

the determination of a "’pretrial motion’"" as contemplated by Rule 11.3 of the Texas

Rules of Judicial Administration. See T~x. R. Jud. Admin. 11.3(1), reprhzted in Tex.

Gov’t Code Ann., fit. 2, subtit. F app. (West 2005).




                                           6
      In resolving whether the pretrial, judge erred by revising the Firestone settlement,

we must farst decide whethe~ the regular judge had subject matter jurisdiction at the time

he approved Firestone’s proposed settlement. District courts are courts of general

jurisdiction, and the Texas Constitution provides that the jurisdiction of a district court

"consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and

remedies, except in cases where exclusive, appellate, or original jurisdiction may be

conferred by this Constitution or other law on some othercourt, tribunal, or

administrative body." Tex. Const art. V, § 8. By statute, "[t]he district court has the

jurisdiction provided by Article V, Section 8, of the Texas Constitution." Tex. Gov’t

Code Ann. § 24.007 (West 2004). "’Thus, all claims are presumed to fall within the

jurisdiction of the district court unless the Legislature or Congress has provided that they .

must be heard eIsewhere." Dubai Petroleum Co. v. Kazi, t2 S.W.3d 7I, 75 (Tex. 2000).

       LF.’s next friend, by f’fling suit on I.F.’s behalf in a district court in Orange

County, gave the trial court jurisdiction over her person. See Gracict v. RC Cola-7-Up

Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984) ("In a suit by a ’next friend,’ the real

party plaintiff is the child and not the next friend."). By filing suit in district court, I.F.

gave the district court of Orange County subject-matter jurisdiction to adjudicate her

claims for her own personal injuries and for the wrongful death of her father. Nee Tex.

Const. art. V, § 8 (constitutional grant ofjm-isdiction to district courts)~ Tex. Gov’t Code

Arm. §§ 24.007, .008 (West 2004) (statutory grant of jurisdiction to district courts).


                                          7
Moreover, Texas law provides a trial judge who possesses jurisdiction the power, in the

absence of an objection~ to conduct "any of the judicial proceedings[,]~’ and to ’°l~ear aud

determine a matter pending in [the] district[.]" Tex. Gov’t Code Ann. § 74.094(a), (e).

(West 2005).
       While Rule 11.3 of the Rules of Judicial Administration contemplates the pretrial

judge will preside Over all pretrial proceedings "in place of the regular judge[,]" we

decline to place a construction on Rule 11 that makes the Rule operate in a way to divest

the regular judge of subject matter jurisdiction over a case in which the regular judge is

given the constitutional and statutory authority to act. See Tex. Const art. V, § 8; Tex.

Gov’t Code Ann. § 24.007; Kctzi, 12 8.W.3d at 76 (noting that the focus of modem policy

is to ’°’reduce the vulnerability of final judgments to attack on the ground that the tribunal

lacked subject matter jurisdiction[,]’" and holding that the t~ial court "had jurisdiction

because a claim for wrongful death was within its constitutional jurisdiction"). In light of

the Legislature’s decision to cloak district courts with jurisdiction over pending cases, we

 conclude that the regular judge, in the absence of an objection, acted on a case over

 which he had subject matter jurisdiction to act in approving Firestone’s proposed

 settlement. Consequently, the regular judge’s 2003 order approving the Firestone

 settlement is not void.

        Absent judicially created exceptions such as fraud, Rule 44 of the Texas Rules of

 Civil Procedure makes court-approved settlements "forever binding and conclusive upon
the party plaintiff in such suit." Tex. R. Civ. P. 44(2); see Pluto, 156 S.W.2d at 267. In

this case, the pretrial judge refused to honor all of the terms of the 2003 court-approved

settlement. In doing so, the pretrial judge did not f’md that the Firestone set}i.ement had

not been properly laid before the regular judge because of collusion, neglect, or mistake.

See Pluto, .156 S.W.2d at 267. Nor did the pretrial judge fred that I.F.’s attorneys had

breached their fiduciary duties to I.F. in their handling of the Firestone settlement. See

Burrov~ ~. Arce, 997 S.W.2d 229, 245 (Tex. 1999) (adopting section 49 of the proposed

Restatement (Third) of The Law Governing Lawyers with respect to claims seeking the

forfeiture of an attorney’s fee).

       Here, there are no pleadings from which the pretrial judge could have implied

fmdings on the types of claims that would have authorized a finder of fact to avoid the

binding effect of a court-approved settlement. Absent pleadings notifying the parties who

were interested in the Firestone settlement that claims to avoid the binding effect of that

 settlement were being made, or unless the claims in avoidance are determined to have

 been tried by consent, courts are not authorized to ignore the finality of another court’s

 approval of a settlement. See Tex. R. Cir. P. 67 (Amendments to Conform to Issues Tried

 Without Objection); Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983)

 ("Fttrther, a judgment must be. supported by the pleadings and, if not so supported, it is

 erroneous."); Stoner v. Thompson, 578 8.W.2d 679, 683-84 (Tex. 1979) (holding that

 absent a pleading by the intervenor requesting an award of money damages, the plaintiff
did not receive fair notice that the trial court might award damages in favor of the

intervenor upon the trial); In re Pa~’kMem ’l Condo. Ask’n, Inc., 322 S.W.3d 447, .450-51

(Tex. App.--Houston [14th Dist.] 2010, no pet.) (~A trial court cannot grant relief to a

party in the abse~tce of pleadings supporting that relief, unless the issue has been tried by

consent."), In .the matter before us, none of the parties’ pleadings seek the recovery of an

award of money damages against I.F.’s attorneys. Additionally, the guardian ad litem did

not argue that the evidence adduced during the Ford settlement hearing supported an

award of damages against I.F.’s attorneys, nor do we find any argument that the Firestone

settlement was not properly presented to the regular judge .before the regular judge

approved it. The record before us does not support the conclusion that the attorneys who

procured the Firestone settlement tried the theories of collusion, mistake, neglect, or

breach of fiduciary duty by consent.

       We hold the pretrial judge abused his discretion when he failed to honor ail of the

¯ terms of .t:h.e Firestone settlement. Given the fin.ality accorded to court-.approved

 settlements, and in the absence of pleadings of avoidance as well as sufficient evidence to

 provea ground to avoid the effect of the court-approved settlement, the pretrial judge was

 required to honor the regular judge’s approval of the Firestone settlement. See Tex. R.

 Cir. P. 44. We sustain appellants’ issues one and three. We reverse and render the

 judgment the trial court should have rendered by deleting provisions of the judgment

 whose effect is to disgorge fees and expenses awarded and approved by the regular judge


                                           10
in the Firestone settlement. Because issues two. and four would not result in any

additional relief, we do not address these issues. See Tex. R. App. P. 47. ~.

                                 Ford’s Cross-Appeal

      By cross-appeal, Ford challenges the pretrial judge’s orders appointing a guardian

ad litem and authorizing payment of the guardian ad liten-i ~it its expense. Ford argues that

the pretrial judge abused its discretion in appointing a guardian ad litem, in failing to

subsequently remove the guardian ad litem at Ford’s request, in awarding an ad litem fee

that incIuded compensation for time spent on mat(ers allegedly urtrelated to the scope of

the ad litem’s appointment, and in taxing Ford with the entire amount of the guardian ad

litem fee. In response, I.F.’s attorneys argue Ford waived any claim that her attorneys

should bear, in whole or in part, the guardian ad litem’s fee. Additionally, I.F.’s attorneys

argue that.the pretrial judg~ did not abuse its discretion in taxing the fees of the guardian

ad litem to Ford. The guardian ad litem also responded to Ford’s cross-appeal, arguing

that the only .argument Ford preserved is its claim that the preMal Judge should not. have

included eighty-seven hours of the ad litem’s time in calculating the guardian ad litem’s

 fee. The guardian ad litem also argues the pretrial judge did not abuse his discretion in

 appointing a guardian ad litem, in calculating the amount of the guardian ad litem’s

 award, or ka taxing the entire ad litem fee against Ford.

       First, we consider whether Ford preserved its arguments for Our review. The

 record reflects that during the second week of November 2009, the parties filed a joint


                                           11
motion requesting the pretrial judge to approve Ford’s proposed settlement. The joint

motion advised the pretrial judge that I.F. was a minor who was being represented by her

mother as her next friend,s. and that they did not request the appointment of’a guardian ad

litem because the next friend "is not believed to have interests which are adverse to those

of her minor daughter." The parties also advised the pretrial judge that the adult

plaintiffs6 had reached agreements to settle for confidential amounts. The day after the

joint motion was filed, the pretrial judge appointed an attorney to act as I.F.’s guardian ad

litem. Two weeks later, I.F.’s next friend filed an agreed motion, asking the pretrial judge

to reconsider its appointment of a guardian ad litem because there was no "conflict

between [the next friend’s] -own interests and those of her minor daughter." The agreed

motion to reconsider also represents that Ford had agreed to the motion. In early January

2010, the pretrial judge denied the agreed motion to reconsider, stating that "it appears to

the Court that the next friend has an interest adverse to the minor[.]"

       By joining the next friend’s motion to reconsider, Ford notified the court of its

claim that a guardian ad litem was unnecessary. Additionally, in nonjury cases,

complaints regarding the legal and the factual sufficiency of the evidence to support the

       SThe joint motion advised the pretrial judge that I.F.’s mother was not an occupant
of the vehicle when the rollover occurred, she had divorced I.F.’s father before the
rollover occurred, and she "is not believed to have had, and has not ever pursued,
ilidividual causes of action arising out of the rollover[.]"
        SBased on the joint motion, it appears that the adult parties who had reached a
 settlement in 2009 with Ford were Elania Flores, individually and as representative of the
 estate of Oscar Flores, 8urica Flores, Alejandro Flores, Rosemary Del Angel, Amanda
 Cano, Ricky Cano, and Mike Keyes.
                                          12
amount awarded by the trial court °’may be made for the first time on appeal in the

complaining party’s brief." Tex. R. App. P. 33.1(d).

      By joining in the next friend’s motion, by complaining during the heating about

the amount of the guardian ad litem’s proposed fee, and by challenging the sufficiency of

the evidence to support thepretrial judge’s award when it filed its appellate brief, Ford

preserved its complaints that it should not be taxed with a guardian ad titem fee and that

the fee the pretrial judge taxed solely against it is unsupported by the evidence. See id.;

Garcia V. Martinez, 988 S.W.2d 219, 221 (Tex. 1999) (concluding that defendant’s

objection to the amount of the guardian ad litem’s fee preserved compMnt regarding how

the trial court had reasoned in assessing that fee); Dover Elevator Co. v. Servellon, 876

S.W.2d 166, 172 (Tex. App.--Dallas 1993, no pet.) (holding that no waiver occurred

where the defendant made the trial court aware it contested the assessment of the

 guardian ad litem fees against it).

       Having concIuded that Ford’s issues were preserved, we will first address Ford’s

 argument that the pretrial judge abusedits discretion by appointing a guardian ad l_item to

 assist it in evaluating the fairness of Ford’s proposed settlement. Rule 173.2 of the Texas

 Rules of Civil Procedure requires the trim court to appoint a guardian ad litem for a minor

 when the minor’s guardian or next friend appears to the court to have an interest adverse

 to the minor, or where the panics agree. See Tex. R. Civ. P. 173.2(a); see also Tex. R.

 Cir. P. 44(2). Several areas of potential conflict were identified by I.F.’s guardian ad


                                          13
litem when he responded to the motion to reconsider his appointment. Because any

adverse interest by the next friend would allow the pretrial judge to appoint a guardian ad

litem, we need not address each of the potential conflicts addressed in the guardian ad

litem’s response. Nee Tex. R. Cir. P. 173.2(a)(!) (requiring appointment if the next friend

appears to the court to have "an interestadverse" to ~~ minor). ’

      During the settlement hearing, it became apparent that some of the settlement

proceeds under Ford’s propose.d settlement were to be used to pay liens for medical

expenses that had arisen from the minor’s care. Generally, a child’s parents are legally

obligated to pay their chiId’s medical expenses. See Tex. Faro. Code Ann. §

151.001(a)(3) (West 2008) (providing that among a parent’s d~ities is the duty to provide

the child with medical care); see also Sax ~. Votteler, 648 S.W.2d 661,666 (Tex. 1983)

(explaining that historically, in Texas, the right to recover for medical expenses incurred

in behalf of a minor belongs to the minor’s parents). Although I.F.’s next friend had not

filed suit in her indi-~idual capacity, she acknowledged that, as I.F.’s mother, she

 understood that she was obligated to pay for !.F.’s medical care.

       Recognizing that its settlement extinguished the mother’s obligation to pay

 medical expenses that had been incurred in caring for I.F., Ford’s reply to the guardian ad

 litem’s brief recognizes that the guardian ad litem "may, indeed, be entitled’to some

 modest fee for the time he necessarily spent to determine whether there was a conflict of

 interest between [the next friend] and [I.F.] in the pla{ntiffs’ recent settlement with Ford


                                           14.
in 2009." We conclude that the next friend’s conflict of interest justified the pretrial

judge’s decision to appoint a guardian ad litem to review the proposal and to advise the

court about whether it should approve Ford’s proposed settlement. See Tex. R. Cir. P.

173.2(a)(1). Issues one and two of Ford’s cross-appeal are ovemaled.

      In issues three and four, Ford complains the pretrial judge abused its discretion by

awarding the guardian ad litem compensation for time spent on matters that Ford

contends were unrelated to the next friend’s conflict of interest, and in taxing all of the

guardian ad litem’s fees and expenses tO Ford. With respe.ct to the guardian ad litem’S

work, the record includes the guardian ad litem’s "Application for Compensation of

Guardian Ad Litem." The guardian ad litem’sitemized time record reflects that he spent

 126.6 hours in connection with his appointment between October 21, 2009, and May 21,

2010, and that he incurred out of pocket expenses of $354.40.7 While neither the guardian

 ad litem’s written application nor his itemization suggest an hourly rateto apply to his

 itemization, the guardian, ad titem testified dm-ing the hearing that $350. per hour v~ould

 be "normal," whiIe also stating that he would be willing to accept "whatever the [] Court

 feels is reasonable." In Inly 2010, without specifying the hourly rate utilized in

 calculating the guardian ad litem’s award, the pretrial judge ordered Ford to pay a fee of

 $40,000 "for the fees and expenses related to his work" as guardian ad !_item. After the


        7The guardian ad litem’~ itemization also includes a request to approve $4,500 in
 additional fees charged by another law.fLrm hired to restructure I.F?s settlement trust.
 Ford has not complained of the pretrial judge’s order taxing Ford with that ftrm’s fees;
 consequently, we do not further address the trial court’s award of $4,500 to that firm.
                                          15
pretrial judge signed .the order, none of the parties requested the. trial cour~ to make

findings of fact or conclusions of law.

      Trim courts are authorized to tax as costs a guardian ad l_item fee based on a

reasonable hourly rate for necessary services perform, ed dm4mg the appointment to.protect

the child’s interest. See Tex. R. Cir. P. 173.6(a), (c); Bro,vnsville--Katlej~ Reg’l Med.

Ctr., Inc. ~. Gamez, 894 S.W.2d 753, 756 (Tex. 1995). "The amount of compensation

awarded to the ad litem lies within the sound discretion of the trial court[,]" and will not

be overturned "absent evidence showing a clear abuse of discretion." Gamez, 894 S.W.2d "

at 756.

          Ford does not claim that the guardian ad ]item did not accurately report the time he

spent working as I.F.’s guardian ad litem; instead, Ford contends that it should not be

taxed with charges that are beyond the scope of the guardian ad litem’s role. Ford focuges

largely on 87 hours of time spent by the guardian ad litem (1) defending a challenge by

the next friend.to the pretrial ju.dge’s appointment of a guardian ad litem, (2) analyzing

 I.F.’s 2003 Firestone settlement, and (3) revising the settlement trust created from the

 settlement proceeds Mlocated to I.F. in the Firestone settlement.~


        ~The next friend filed a writ of mandamus challenging the pretrial judge’s
 appointment. In connection with that proceeding, Ford advised this Court that the
 appointment was ’"neither appropriate nor permitted[,]’" but then advised that it did °"not
 really care’" how the disput~ between I.F. and I.F.’s attorneys was resolved concerning
 the size .of the contingent fee to be paid, ’" [blur it would be unfair to saddle [Ford] with
 the expense of paying any fees the guardian ad litem might incur to resolve that dispute.’"
 In re Richardson, No. 09-10-00032-CV, 2010 WL 877558, at *3 (Tex. App.--Beaumont
 Mar. 11, 2010, orig. proceeding) (mere. op.).
                                             16
       The majority of the time itemization that Ford challenges involves time the

 guardian ad litem spent to oppose a motion to appoint a guardian ad litem--a motion that

 Ford joined. Rule 173.4 of the Texas Rules of Civil Procedure defines the role of the

 guardian ad litem, and requires the guardian ad [item to participate "in any proceeding

 before the court whose purpose is to determine whether a party’s next friend or guardian

¯ has an interest adverse to the party[.]" .Tex. 1~ Cir. P. 173.4(d)(2). Rule 173.6, which

 addresses the guardian ad [item’s compensation, provides that the guardian ad litem "may

 be reimbursed for reasonable and necessary expenses incurred and may be paid a

 reasonable hourly .fee for necessary services performed_" .Tex. R_ Cir. P. 173.6(a). The

 guardian ad [item’s participation in cour~ proceedingsl which includes the challenge by

 mandamus to determine whether a conflict existed, are within the scope of the guardidn

 ad li~em’s necessary services for which the Rules of Civil Procedure allow the guardian

 ad [item to be compensated. See Tex. R. Civ. P. I73.4(d)(2), 173.6(a). We conclude that

 the pretrial judge was authorized to tax as costs the time the guardian ad litem expended

  in defending his appointment.

        Ford also argues that the time the guardian ad litem spent to restructure the trust

  from the Firestone settlement was outside the scope of the guardian ad litem’s

  appointment. Although Ford notes its difficulty in quantifying the amount of time the

  guardian ad [item spent revising the trust, it does not appear that the guardian ad [item

  created the legal documents that restructured the trust or that he filed the motion asking


                                           17
the court to restructure I.F.’s trust. Based on Ford’s citations to the record, it appears that

Ford objects to approximately seven hours the guardian ad litem spent in connection with

the restructuring of I.F.’s trust.

       In determining the .reasonableness of a request by a guardian ad litem for a fee, the

Texas Supreme Court has indicated that trial courts may consider factors such as:

       (1) the time and labor required, the novelty and difficulty of the questions
       ixlvolved, and the skill required to perform the legal service properly;

       (2) the.likelihood.., that the acceptance of the particular employment will
       preclude other employment by the lawyer;

       (3) the fee cugtomarily charged ill the locality for similar legal services;

       (4) the amount involved and tile results obtained;

       (5) the time limitations imposed by the client or by the circumstances;

       (6) the nature and length of the professional relationship with the client;

       (7) the experience, reputation, and ability of the lawyer or lawyers
       performing the services; and

       (8) whether the fee is fixed or contingent on results obtained or uncertainty
       of collection before the legal services have been renderext.

LandRover, 210 S.W.3d at 607 (quoting Garcia, 988 8.W.2d at 222)).

        In this case, the guardian ad litem was a lawyer who had served as an ad litem on

 other cases involving Ford and Firestone matters, had fllirt-y-three years of legal

 experience, and held certifications in personal injury and civil trial law. "A reasonable

 hourly rate multiplied by the number of hours spent performing necessary services within


                                            18
the guardian ad litem’s role yields a reasonable fee." Id. at 608. Had the pretrial judge

awarded the guardian ad litem for all of the time reflected by hi.s itemization at a rate of

$350 per hour, the award would have equaled $44,664.9 However, the pretrial judge

awarded a total of $40,000 for fees and expenses. Because the award did not include all

of the guardian ad litem’s time, Ford has failed to demonstrate on this record that the

pretrial judge awarded the guardian ad litem a fee for the time spent in connection with

the restructuring of I.F’s setfilement trust.

      However, even if the award includes approximately seven l~ours of time relating to

the restructuring of I.F.’s trust, we are not persuaded that the inclusion of those hours

would constitute an abuse of discretion. In this case, Ford did not create a separate la-ust to

administer the funds it paid to settle I.F.’s claims; instead, the parties, including Ford,

chose to utilize and restructure I.t;.’s existing trust.

       The guardian ad litem’s role is to determine and advise the court whether the

settlement is in. the p.arty’s best interest,. See Tex. 1L Cir. P. 173:4(c). In order to advise.

the pretrial judge whether utilizing and amending I.F2s existing trust-would be in her best

interest, the pretrial judge could have reasonably approved the time the guardian ad litem

spent in reviewing and analyzing all of the trust documents, as that activity falls within

the guardian ad litem’s role. See id.

       Next, we address whether the pretrial judge was allowed to assess the entire

guardian ad 1item fee against Ford. The Texas Rules of Civil Procedure provide a trial

       95350 x 126.6 hours + out of pocket expenses of $354.
                                            19
court with flexibility in taxing costs. Rule 173.6 allows the court to tax the guardian ad

litem’s compensation as a cost of cottrt. Tex. R_ Cir. P. 173,6(c). Rule 131 allows the

trial court to tax costs to the successful party’s adversary. Tex. R. Cir. P. 131. Rule 141

allows a Court, for good cause, which is to be stated on the record, to adjudge Costs

"otherwise than as provided by law or these rtiles.:’ T~x. R. Ci~.P. 141.

       With respect to taxing the guardian ad litem’s fee against Ford, the pretrial judge,

by virtue of I.F.’s achieving a significant settlement payment from Ford, could have

considered I.F. as having been the prevailing party. In Land Rover U.K., Ltd. v. Hinojosa,

210 S.W.3d 604 (Tex. 2006), the Texas Supreme Court considered whether the trial court

abused its discretion in taxing a settling defendant With a guardian ad’ litem fee of

$100,000. La~d Rove~; 210 S.W.3d at 606. While the Supreme Court held that the fee

award exceeded the amount supported by the evidence, it remanded the award to allow

the trim court to reconsider the amount of the feethe trial court had taxed to a settling

 party; in other. .w. oyds~ the Texas Supreme Court did not hold ~at the trial court ~ould not

 assess an. ’ad litem fee against the settling defendant. Id. at 609; cf. Garcia, 988 S.W.2d at

 222-23 (remanding fee that exceeded the amount supported by the evidence to allow the

 trial court to render a judgment awarding guardian ad [item a reasonable fee); cf Gamez,

 894 S.W.2d at 757 (reducing trial court’s award of guardian ad litem fee and rendering

 judgment for guardian ad litem’s fee against settling defendants). Because the pretrial

 judge could reasonably have considered I.F. to have been the prevailing party, we hold


                                            20
the Texas Rules of Procedure authorized the pretrial judge to tax Ford with a reasonable

guardian ad litcm fee. Issues three and four of Ford’s cross-appeal are overruled_

                                     Conclusion

      After carefully reviewing the record, and having considered the parties’ briefs, we

conclude the p~etrial judge abused his discretion by disregarding the rdgular judge’s order

approving the Firestone settlement and by adjusting the regular judge’s approval of the

attorney fees and expenses paid to I.F.’s attorneys from the Firestone settlement. We

sustain appellants’ issues one and three, mad we reverse and render the judgment the trial

court should have rendered, as follows: First, we delete the l~st paragraph begirming on

page four of the order approving settlement; second, we amend the first full paragraph on

page five by deleting the second sentence and substituting in its place the following: "The

Firestone settlement shall be distributed by Ford as follows:"; third, we a|so delete the

fifth full paragraph on page five of the order approving settlement, and we delete the first

full paragraph, on page six, and in its place insert the following language: "$288,486.63I°

to Turner and Associates for payment of attorneys’ fees and reimbursement of expenses;

and $147,573.20 to [I.F.’s] Trust" Finally, we delete the phrase "as adjusted by this

Order" from the last paragraph that begins on page seven of the order approving

settlement. With these corrections, the remainder of the language of the pretrial judge’s

order approving settlement is, except as modified by this opinion, in all things aff’n-med.

       1°There is a seventeen cent clerical error in the order approving settlement, and as
the discrepancy in the calculation is insignificant, we have decided to inciude that sum in
the revised amount that is to be credited to I.F.’s settlement trust in the revised judgment.
                                          21
      To carry out the mandate of this Court in connection with Master File No. 01-0!-

4 !0, and Cause No. A010292C, upon their filing of a joint motion with the pretrial judge,

.we direct the pretrial judge to allow Stewart, Cox and Hatcher, P.C. and Turner and

Associates, P.A. to withdraw the funds that they interpleaded into the court’s registry,

together with the interest on such funds, when our mandate becomes f’mal. We overrule

all other issues. "

       AFFII!.MED IN PART; REVERSED AND RENDERED IN PART.




                                                      HOLLIS HORTON
                                                          Justice


 Submitted on May 12, 2011
 Opinion Delivered August 25, 2011
 Before McKeithen, C.J., Gaultney and Horton, JJ.




                                          22
                              DISSENTING OPINION

      I respectfully dissent. Rule 11 of the Texas Rules of Judicial Administration grants

the authority to "decide all pretrial motions" to the pretrial judge, not the "regular" judge.

Tex. R. Jud. Adm. 11.3(b). The.pretrial judge presides "over all pretrial proceedings in

the case in place of the regular judge." Id. A pretrial request that a judge approve a

settlement with a minor is a pretrial motion. The settlement with Firestone should have

been submitted to the pretriM judge for approval. See Tex. R. Jud. Adm. 11, 11.7(a)

("This rule is to be .construed and applied so as to facilitate the implementation of Rule 13

to the greatest extent possible."); compare Tex. R. Jud. Adm. 13.6(b). The pretrial motion

sought a disposition by means other, than a conventional trial on the merits.

       The claims against Firestone were not severed from the claims against Ford. The

"regular" judge’s order in the minor’s settlement with Firestone remained interlocutory,

and his error in deciding the issue was subject to review and correction by the pretrial

judge. Essentially, when the pretrial judge considered whether to approve the .attorney

fees for the minor’s total recovery in the case, the pretrial judge was not bound by the

prior determination by the ~’regular" judge. The pretrial judge acts ’"in place of’ the

"regular" judge.

       Finally, in my view the pretrial judge should not have assessed the entirety of the

 ad litem fees against Ford. When the attorneys joined issueover the amount of the

 attorney fees and fried a petition in intervention, the attorneys became the losing parties


                                          23
to the proceeding on that issue, not Ford. See Tex. R. Cir. P. I31, 141, 173.6(c).

Compare Tex. Cir. Prac. & Rem. Code Ann. § 7.011 (West 2002). In my view, the

attorneys should have greater responsibility for the ad litem fees under these

eimumstances than Ford, even under this Court’s judgment on the attorney fee issue. "



                                                         DAVID GAULTNEY
                                                             Justice

Dissent Delivered August 25, 2011




                                        24
                     COURT OF APPEALS
            NINTH D~sTRICT OF THE STATE OF TEXAS
                      1001 Pearl, Suite 330
                           Beaumont, Texas 77701


Judgment entered August 25,2011

No. 09-10-00371-CV

     Stewart, Cox and Hatcher, P.C. and Tin’her and Associates,
     V.
     Ford Motor Company, et al


Appealed from the 410th District Court of Montgomery County, Texas

Opinion by Justice.Hollis Horton


       This cause was heard on the record of the Court below, and the same being
considered; it is theopinion of[his Court that there was error in the judgment. It is
therefore ordered that We delete the last paragraph beginning on page four of the
order approving settlement; second, we amend the first full paragraph on page five
by deleting the second sentence and substituting in its place the following: "’The
Firestone settlement shall be distribated by Ford as follows:"; third, we also delete
the fifth full paragraph on page five o.f the order approving settlement, and we
delete the first full paragraph on page six, and in its place insert the following
language: "$288,486.63 to Turner and Associates for payment of attorneys’ lees
and reimbursement of expens.es; and $147,573.20 to [I.F,’s] Trust2’ Finally, we
delete the phrase "as adjusted by this Order" from the last paragraph that begins on
page. seven of the order approving settlemcnt. With these corrections, the
 remainder of the language of the pretrial judge’s order approving settlement is,
 except as modified by this opinion, in all things affirmed. The trial court’s
judgment is AFFIRMED IN PART, REVERSED AND RENDERED IN
 PART. All costs of the appeal are assessed against the appellee, Ford Motor
            A cop.y of this judgment shall be certified below for observance.



 C: rol Anne Flores
 Clerk of the Court
CHI~ JusTI~
STEVE MCKEITHEN
                                           Court of Appeals                            CAROL ANNE~ FLORES

JUSTICEt;                                        State of Texas
DAVID B GAULTNEY
CHP, RLE S KREGER                                 Ninth District
HOLLIS HOP, TON

                                                 September I 5, 2011

            Martin J. Siegel                               Craig A. Morggn
            Bank Of America Center                         718 Sunfish
            700 Louisiana, Suite 2300                      Austin, TX ;]8734
            Houston, TX 77002


            John Milutin
            Milutin & Associates
            3701 Kirby Dr., Suite I212
            Housl:on, TX 77098

            RE: Case Number:         09-10-00371-CV
                 Trial Court Case Number: 01-01-410

            Style: Stewart, CoR and Hatcher, P.C. and Turner and Associates, P.A.

                    Ford Motor Company, et al.


                   The Cross-Appellant’s Motion for Rehearing in the above styled and numbered cause was
            overruled this date.

                                                                       Sincerely,

                                                                       CAROL ANNE FLORES, CLEPd<
TAB 5
                               ~J[~HOMP S ON COE
                                        Attorneys ~md Cotms~lors
                               Thompson, Coo0 Cousi~m & ~ons, L.L.P.
                                            One ~vc~ay
                                               Suite 1600
                                       ~o~on, Texas 77056
                                 (713) 403-82~0 1F~: (7~3) 403-8299
                                                                                                       Dallas
                                                                                                     Houston
                                                                                                    Saint

                                          February 4, 2010


VIA. FA.CS~E and OV]E]RNIGI:IT ])~LIVER¥

Carol Ann Flores, Clerk of the Court
Ninth’Court of’Appeals
Jefferson Comaty Courthouse
1001 Pearl, Suite 330
Beaumont, Texas 77701 .

       Re:     Case No.                         09-10-00~)32-CV
               Trim Court Case No.:             A-O10292-C
       Style: In Re Theresa Richardson, as Next Friend of Irene Flores, ~ Minor

Dear Madam:
       Ford Motor Company ("Ford") tenders the following response to the Petition for Writ of
Mandamus ~s requested by the Coral.

        Ford agrees with Relator on the specific point that there is no CO~Lfliot of interest here
between the aext..fri.end and her minor daughter and that the appointment of a guard~ma ad litem
is therefore nei~er al~ropriate nor permitted.1
        As" she explti~ i~ her Petition for Writ of Mandam~, and demonstrates in its ¯
accompanying proo% Relator Theresa Richaxdson was not involved in the aeeider~t at issue in
tl~s sash, has never asserted a~y claim in this lawsuit, has no oause of actioa against Ford Motor
Company, and has no financial interest in the recovery of any plaintiff who has asserted a oMm.
She has appeared in this case solely as next friend for her minor ohildren, including her daughter,

~ A!~ough Ford agrees with Relator that the appointment of a guardian ad li/ern here is not proper, It does
no~ agree with all ~e points raised below in Relator’s motion to reconsider or those raised here in
Relatnr’s petition for writ of mandamus. Contrary to the title and the certificate of conference in the
Agreed Motion to Reconsider Appointment of Guardian Ad Litern (R 8), Ford’s counsel never agreed to
tha~ too|ion; Ford simply said It would not oppose the rnotlon. After the Motion to Reconsider was filed,
Ford’s counsel had the opportunity to review iL While Ford generally agrees with that motto, n, Ford does
no~ agree with all the statements in paragraphs 5 and 6, discussing prior approvals before Judge Clark.
 Februmly 4, 2010
 Page 2



 Irene Flores, who was injured in the accident and on whose behalf Ms. Richar~lson is pursuing
 claims for those injuries. The parties have reached a settlement on those claims.

         Based upon the record in this case, it appears that the lrial comrt appo’.mted a guardian ad
 litem because it views with disfavor the agreement Ms. Y,_ichardson chose to enter with the
 attorneys she selected to pursue her daughter’s claims. That agreement permits those attorneys a
 contingent fee of 40% of the minor’s recovery, and, it seems, the trial court is of the opinion that
 /he attorneys should recover no more than one third. Ford does not necessarily disagree with the
 trial court.

          Simply put, however, this is not a conflict of interest under Tt~X. 1%. CIV. P. 173 which
¯ requires the appointment of an ad [item. It is simply a difference of opinion. The mother
  b~lieved (and.presumably still believe.s) that it was in the best interest of her minor, daughter to
 have’the daughter’s claims pursued by these attorneys on the basis of a 40% contingent fee, The
  tdal cbnrt disagrees. But that does not make this a "exmillct of interest." After all, the mother
  floes not stand to gain anything by having these lawyers paid 40% rather than one third~ and
  neither the guardian aft [item nor az~yone else has suggested otherwise.

         The appointment of this guardian ac~ litem thus arises out of a d~erence of opinion, not a
 conflict of interest. It may be tm~ that the minor wi!l recover more money from the settlement
 proceeds if the lawyers are paid less, and it might therefore be said to "serve the minor’s
 interests" for the guardian ad ]item to refuse to approve any settlement that doe.s not reduce the
 lawyers’ recovery. But that is not the test for whether there is a conflict of interest, and it is not
 the test for whether the next friend should be disqualified from making those decisions for her
 daughter.

         The days are over when it might have been thought appropriate to appoint a guardian ad
 Htem to pursue a roving commission to do whatever might "store the minor’s interest." If there
 ever was any doubt on this point, there cart be no longer: There is no legitimate role whatever
 for a guardian ad litem if there is no conflict of interest betwewa the minor and the next fdend
 who is appeaing on behalf of that minor.

        The law on this is settled. To begin with, the rule itself plainly states that a guardian ad
 lit~un is appropriate only when there is such a conflict oflnterest:
                The court m~oqt appoint a guardian ad litem for a party r~resented
                by a next friend or guardian only if. (1) the next friend or guardian
                appears to have an interest aclv~rse to the party, or (2) the parties
                agree.
 TEX. R. Cry. P. 173 (a) (emphasis ad~d). The comments to the rule emphasize this yet fmther:

                The rute contemplates that a guardian ad litvm will be appointed
                when a party’s next friend or guardian appears to have an interest


 08425-015
February 4, 2010



              ’adverse to the party because of the division of settlement p£oceeds.

T~X. R. Cry. P. 173.4 cmt 3. And again:

               Only in extraordinary okoumstances does the nile contemptate that
               a guardian ad ]item wi!i have a broader role. Bven then, the role is
               limited to determining whether a party’s next friend or guardian
               has an interest adverse to the party that should be considered by the
               court under Rule 44.

TBX.. R. Cfv.P. 173.4 ~mt 4.

     ..Furthermore, even when there.is a conflict o.fiuterest, the trim court is not authorized to
s~mply replao the next friend with art appointed guardian ad litem:

               5x no event may a guardian ad ]item supervise or supplant the next
               friend or undertake to represent the party while serving as guardian
               adlitem_

TBX. 1L CIV. P. 173.4 cmt 4.

       The Texas Supreme Court has .done its best to drive this point home; if there is no
conflict of interest between the nfiuor and her next friend, there is no Ieg~thnate role for a
guardian ad litem:

               A guardian ad litem is not an attorney for the child but an officer
               appointed by the court to assist in protecting the child’s interests
               when a conflict of interest arises between the child and the chiM’~
               guardian or next friend.

Land Rover v. f~inojosa, 210 S.W.3d 604, 607 (Tex. ~006) (iutornal citations deleted) (emphasis
added). See also Garcia v. 2P£artinez, 988 S.W.2d 2!9, 222 n. 2 .~ex.!999);.Am. Oen. Fire
C~. Co. v. g~d~ater, 907 8.W.2d 491, 493 n. 2 (Tex.1995); Browmville-gall~’Re~onal
M~ica[ Cent~, Inc. v. Gamez, 894 S.W.2d 753, 754 ~ex. 1995) (~ ad 5tem
prop~ role a~er rcsolu~on of ~e ’octet of ~terest for wNch he was appeared); ~olt Texas,
Ltd. ~. Nale, 1~ S.W.3d 592, 597 (Tex. App. - S~ ~toNo 2004, no pet.) (s~e); Rio
Valley Gas Co. v. Lopez, 907 S.W.2d 622, 625 (Tex. App. - Co~ ~sfi 1995, no pet)


        The simple disposidve point is this: Inthe absentee of any perceivable conflict of interest
between the mother and her daughter, fl!e trial court does not have authority to appoint a
guardiau ad ]item simply because it disagrees with the decisions of the parent and believes the ad
Iitem would do a better job. That is not the test And it does not take much imagination to
foresee where appointments like this could lead if that became the test.


/.492996vl
08425-015
February 4, 2010 ¯
Page 4


        Finaily, Ford note.s that - beyond its desire to finMize this settlement without further
delay - it does not really caze how tiffs dispute is resolved over fire size of the contingent fee to
be paid to the plaintiffs’ attorneys. But it WOlfld be unfair to saddle Ford with fire expense of
paying m:ty fees rite guardian ad 1item might incur to resolve that dispute..

                                             ILespectfally submitted,




                                             Miehaet W. EMy



       Via Facsimile:

       C. Tab Turner
       Ie~y M ,White
       Alexandza W. Albfight
       Kevin Dubose
       l%m ~ Mioh,ael IV~ycs
       .Tohu iVfilutin, Guardiau Ad Litem
TAB 6
                                      ~r~ The

                                Court of Appeals

                    Ninth District of Texas at Beaumont


                               NO. 09-10-00032-CV




                                Original Proceeding


                           1V~MORA_NDIJM OPINION

      Theresa Richardson, as next friend of the minor plaintiff, petitions for a writ of

mandamus to compel the district cour~ to vacate an order appointing a guardian ad litem.

See TEX. R. CrY. P. 173.7(a); TEX. R. A2P. P. 52. Richardson denies she has an interest

adverse to the minor plaintiff. See TEX. R. CP¢. P. !73,2(a)(!).

      The guardian ad litem filed a response in this Court. See TEX. R. CIV. P. 173.4(d).

He argued, "This is a unique case. Despite the fact that the settling defendant does not

object to the appointment of the guardian ad litem, and has agreed to pay the guardian ad

litem fee, it is the plaintiffs who have flied this petition for writ of mandamus asking that

the guardian ad litem be dismissed. One is left to wonder why."

      The minor plaintiff was injured in a motor-vehicle accident that also injured other

members of her family and ldlled her father. Suit was filed against Bridgestone/Fire~tone
                                         1
and Ford Motor Company in a district court in Orange County. Richardson, who was not

involved in the accident, acted as next friend for the minor plaintiff.

      Respondent, a district judge sitting krl Montgomery County, was assigned as the

pretrial judge for this and other similar cases. See TEX. R. JUD, ADlvglq. 11.3, 11.7, 13. In

2003, the Orange County district court approved a partial settlement agreement in this

case. The parties have now reached a confidential settlement agreement with the

remaining defendant, and have asked respondent for approval of that agreement.

Respondent appointed a guardian ad litem; the court also denied an agreed motion to

reconsider the appointment. Relator then filed this petition for a writ of mandamus. She

argues that a guardian ad litem is unnecessary and that Rule 173o2(a) of the Texas Rules

of Civil Procedure prohibits the appointment. The settling defendant agrees the

appointment is "neither appropriate nor permitted."

      A minor who has no legal guardian may be represented in a lawsuit by a next

friend. TEX. R. CIV. P. 44. The settlement of a lawsuit brought by a minor through a next

friend is subject to the approval of the court. See id. "When minors sue, trial courts have

the responsibility to protect the minor’s best interest." Urbish v. The Honorable 127th

JudicialDist. Court, 708 8.W.2d 429, 431 (Tex. 1.986).

      Rule 173 contemplates that a guardian ad litem will be appointed when the party’s

next friend "appears to have an interest adverse to the party because of the division of

settlement proceeds." TEX. R. CIV. P. 173 cmt. 3. "The court must appoint a guardian ad
1item for a party represented by a next friend or guardian only if: (1) the next friend or

guardian appears to tile court to have an interest adverse to the party, or (2) the parties

agree." TEX. R. Cr7. P. !73.2(a).

      The guardian ad litem’s role "is limffed to determining whether a party’s next

friend or guardian has an interest adverse to the party that should be considered by the

court under Rule 44." TEX. tL CIV. P. 173 cmt. 4.. When, as in this case, an offer has

been made to settle a minor’s claim, "a guardian ad litem has the limited duty to

detemline artd advise the court whether the settlement is in the party’s best interest."

TEX. R. CtV. P. 173.4(c). A guardian ad litem "acts as an officer and advisor to the

court." TEX. R. CIV. P. 173.4(@ "In no event may a guardian ad litem supervise or

supplant the next friend or undertake to represent the party while serving as guardian ad

litem?’ RuIe 173 cmt. 4.

      Unless disqualified, a parent of the minor may serve as a next friend. See U~’bish,

708 S.W.2d at 431-432 (mother could serve as next friend although father was managing

conservator); Kennedy v. Mo. Pac. R.tL Co., 778 S.W.2d 552, 555 (T~x. App.--Beaumont

1989, writ denied); see also TEX. FAM. CODE § 151.001(a)(7) (Vernon 2008). When a

parent appears as next friend for a minor who has sustained serious injuries requMng

medical treatment, an adverse interest may arise. Generally, the claim for medical

expenses incurred on behalf of the child belongs to the parent. See generally Sax v.

Kotteler, 648 S.W.2d 661, 666 (Tex. 1983). If art offer of settlement is made to the
parent individually and in her role as next friend of the minor, for example, the next

friend may appear ’°to the court to have an interest adverse" to the minor concerning the

division of the settlement proceeds. See TEX. R. CIr. P. 173.2(a)(1). An appearance may

arise even though the next friend has not acted adversely to the minor’s interest.

      ~’In the event that the next friend takes actions sufficiently adverse to a minor’s

interests, the next friend and her attorney may be replaced." Am. Gen. Fire & Cas. Co. ~.

gande~ater, 907 S.W.2d 491,493 n.2 (Tex. 1995); see also Urbish, 708 S.W.2d at 431-

32 (a trial court is ~authorized to replace next friends and attorneys when it appears to the

court that either has an interest adverse to the minor"). If a next friend takes an action as

part of the settlement process that appears to the court to reflect an interest adverse to the

minor, the trial court need not immediately replace the next friend. Instead, the court

may appoint a guardian ad litem to determine and advise the court wl~ether the next

friend does have an interest adverse to the minor, and whether the settlement is in the best

interest of the minor. The .guardian ad litem’s review assists the cour~ in determining

whether to approve the settlement of the minor’s claim, or take other action pursuant to

Rule 44. See TEX. R. CIV.P. 44; TEX. R. CIV. P. 173 trots. 3, 4; see also ~"andewater, 970

S.W.2d at 493 n.2.

       This case involves claims that have been settled, by a confidential agreement. The

agreement has not been presented to this Court in this mandamus proceeding. We do not

know whether medtcaI expenses for treatment of the child were incurred by the parent.


                                           4
Apparently, the guardian ad litem has not been provided with a copy of the settlement

agreement. He asserts that he "assumed that the minor plaintiff’s bodily injuries were

serious since reference is made to annuity payments and a § 142 Trust in the prior

settlement" presented to the Orange County district court. He also argues that "the next

friend would be entitled to receive payments for the support of the child from any

settlement proceeds that have gone into or may in the future go into such a trust." See

TEX. PROP. CODE § I42.005(c)(2) (Vernon Supp. 2009).

        Relator asserts that the next friend has no claim for damages, and cites her

affidavit as support. The lack of an asserted claim does not mean a guardian ad litem

appointment is prohibited. See TEX. R. CrY. P. 173.2(a)(!). Even if a claim has not been

asserted, a parent’s responsibilities, impacted by an injury to a child, continue. See TEX.

FAM. CODE § 151.001 ("Rights and Duties ofl~arc~nt"); see generally Sax, 648 S.W.2d at

666 (expenses); see also TEX. PROP. CODE § 142.005.

        Additionally, the district court’s concern apparently arises from circumstances

surrounding the approval of the 2003 settlement, and preliminary actions concerning the

current settIement. The guardian ad litem argues that "it]he recor.d shows that despit~ the

appointment of [respondent] as the pretrial judge in this matter in 2001, in 2003, contrary

to the plain language of the Rule 11 Administrative Order, plaintiffs had a settlement

hearing regarding another defendant in this case before [th~ Orange County district

court] ....   Plaintiffs’ counsel also attempted to schedule the pending settlement for
hearing before the Orange Co~anty court as well." Relator denies the implications of the

"entirely unfounded" allegations of the guardian ad litem and asserts that "[n]nne of this

discussion of what counsel knew" "has anything to do" with whether there is "a conflict

of interest" between the minor and r~ext friend.

      Though an action may not be sufficient to justify removal of a next friend, and

after review may be shown not to reflect an actual adverse interest, the language of Rule

173 authorizes the appointment when the next friend "appears to the court to have an

interest adverse to the party[.]" T~X. tL CrY. P. 173.2(a)(1). Rule 173 gives the trial

court some discretion, though that discretion is restricted. We cannot say the

circumstances presented in this case provide no reason for the appointment of a guardian

ad litem to determine and advise the trial court whether the next friend has an interest

adverse to the minor, and to advise the court on whether the settlement is in the best

interest of the minor. See REX. R. CIr. P. 44, 173.4(b), 173.4(c).

      The settling defendant argues the appointment is "neither appropriate nor

permitted[,]" although the defendant notes it does not agree with "all the points raised"

by relator. The settling defendant concludes by stating "it does not really care how this

dispute is resolved over the size’of the contingent fee to be paid to the plaintiff’s

attorneys. But it would be unfair to saddle [the defendant] with the expense of paying

any fees the guardian ad Iitem might incur to resolve that dispute." We are confident the
district cour~ will direct the limited role of the guardian ad litem in conformance with

Rule 173, and tax costs as appropriate. See T~X. R. Cry. P. 44(1), 173.

      On the record presented, we do not see art abuse of discretion by the district court.

~Tee In re Prudential Inx. Co. of Am., 148 S.W.3d 124, t35 (Tex. 2004) (a relator must

show "the trial court clearly abused its discretion"). Accordingly, the petition for writ of

mandamus is denied.

      PETITION DE2qIED.

                                                     PER CURI_AM

Submitted on February 4, 2010
Opinion Delivered.March 11, 2010

Before Mclieithen, C.L, Oaultney and I~eger, JJ.




                                          7
TAB 7
                          Texas Rules of Civil Procedure

RULE 131. SUCCESSFUL PARTY TO RECOVER
The successful party to a suit shall recover of his adversary all costs incurred
therein, except where otherwise provided.



RULE 141. COURT MAY OTI-EERWISE AI)JUJ~GE COSTS
The coul~ may, for good cause, to be stated on the record, adjudge the costs
otherwise than as provided by law or these rules.
TAB 8
                      RULE 173. GUARDLAN AD LITEM

173.1. Appointment Governed by Statute or Other Rules
This rule does not apply to an appointment of a guardian ad litem governed by
statute or other rules.


173.2. Appointment of Guardian ad Litem

(a) When Appointment Required or Prohibited. The court must appoint a guardian
ad litem for a party represented by a next friend or guardian only if:
       (1) the next friend or guardian appears to the court to have an interest
       adverse to the party; or
       (2) the parties agu’ee.
(b) Appointment of the Same Person for Different Parties. The court must appoint
the same guardian ad litem for similarly situated parties unless the court finds that
the appointment of different guardians ad litem is necessary.

173.3. Procedure

(a) Motion Permitted But Not Required. The court may appoint a guardian ad litem
on the motion of any party or on its own initiative.
(b) Written Order Required. An appointment must be made by written order.
(c) Objections. Any party may object to the appointment of a guardian ad litem.


173.4. Role of Guardian ad Litem

(a) Court Officer and Advisor. A guardian ad litem acts as an officer and advisor to
the court.
(b) Determination of Adverse Interest. A guardian ad litem must determine and
advise the court whether a party’s next friend or guardian has an interest adverse to
the party.
(c) When Settlement Proposed. When an offer has been made to settle the claim of
a party represented by a next friend or guardian, a guardian ad litem has the limited
duty to determine and advise the court whether the settlement is in the party’s best
 interest.
 (d) Participation in Litigation Limited. A guardian ad litem:
     (1) may participate in mediation or a similar proceeding to attempt to reach a
     settlement;
     (2) must participate in any proceeding before the court whose purpose is to
     determine whether a party’s next friend or guardian has an interest adverse
     to the party, or whether a settlement of the party’s claim is in the party’s best
     interest;
     (3) must not participate in discovery, trial, or any other part of the litigation
     urlless:
            (A) further pal~icipation is necessary to protect the party’s interest that
            is adverse to the next friend’s or guardian’s, and (B) the participation
            is directed by the court in a written order stating sufficient reasons.


173.5. Communications Privileged
Con~nunications between the guardian ad litem and the party, the next friend or
guardian, or their attorney are privileged as if the guardian ad litem were the
attorney for the party.


173.6. Compensation
(a) Amount. If a guardian ad litem requests compensation, he or she maybe
reimbursed for reasonable and necessary expenses incurred and may be paid a
reasonable hourly fee for necessary services performed.
(b) Procedure. At the conclusion of the appointment, a guardian ad litem may file
an application for compensation. The application must be verified and must detail
the basis for the compensation requested. Unless all parties agree tO the
application, the court must conduct an evidentiary hearing to determine the total
amount of fees and expenses that are reasonable and necessary. In malting this
 determination, the court must not consider compensation as a percentage of any
judgment or settlement.
 (c) Taxation as Costs. The court may tax a guardian ad litem’s compensation as
 costs of court.
 (d) Other Benefit Prohibited. A guardian ad litem may not receive, directly or
 indirectly, anything of value in consideration of the appointment other than as
 provided by this rule.


173.7. Review
(a) Right of Appeal. Any party may seek mandamus review of an order appointing
a guardian ad litem or directing a guardian ad litem’s participation in the litigation.
Any party and a guardian ad litem lrlay appeal an order awarding the guardian ad
litem compensation.
(b) Severance. On motion of the guardian ad litem or any party, the court must
sever any order awarding a guardian ad litem compensation to create a final,
appealable order.
(c) No Effect on Finality of Settlement or Judgment. Appellate proceedings to
review an order pertaining to a guardian ad litem do not affect the finality of a
settlement or judgment.

				
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