Affirmed and Memorandum Opinion filed August 16, =
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-06-00386-CV
____________
DAVID=20
MELASKY AS GUARDIAN AD LITEM, =
Appellant
V.
CITY OF=20
HOUSTON, =
Appellee
On Appeal from the =
80th District Court
Harris County, =
Texas
Trial Court Cause =
No. 1996-51958
M E M O R=20
A N D U M O P I N I O N
Appellant=20
David Melasky challenges the trial court=3Ds orders,=20
rendered on remand, awarding Melasky $6,900 as his guardian ad =
litem=20
fee. Melasky contends the trial court erred in failing to =
award him=20
appellate fees of $4,500 and $3,902 he claimed as unreimbursed=20
expenses. We affirm.
I. =20
Procedural Background
This case=20
first came before the court in 2003. The background of the =
2003=20
appeal is set forth in detail in City of Houston v. Woods, =
138=20
S.W.3d 574, 577B79 (Tex.=20
App.CHouston=20
[14th Dist.] 2004, no pet.). In the underlying lawsuit =
giving rise=20
to the 2003 appeal, Mary Woods sued the City for injuries she and =
her four=20
minor children allegedly sustained in an automobile accident =
involving a=20
City vehicle. Id. at 577. On September 26, =
1997, the=20
trial court appointed Melasky as guardian ad litem for the four =
children=20
and, on June 29, 1999, appointed Melasky as attorney ad litem for =
one of=20
the children, Darrell. See id. at 577, 578. =
In the=20
2003 appeal, the City challenged two orders awarding Melasky ad =
litem=20
fees. =20
In the first order, signed February 1, 2003, the trial court =
awarded=20
Melasky (1) costs and fees in the amount of $13,614.50 for his =
services=20
rendered as attorney ad litem on behalf of Darrell and (2) an =
additional=20
$4,500 if an appeal regarding the fees and costs were to be filed =
in the=20
court of appeals, an additional $4,500 if writ of error were to be =
filed,=20
an additional $3,000 if application for writ of error were to be =
granted,=20
and an additional $6,000 if any additional appeals were taken. =20
See id. at 578. The court specifically stated the =
amounts=20
awarded did not include any amounts previously awarded for =
services=20
rendered as guardian ad litem for the other minor =
plaintiffs. See=20
id.
In the=20
second order, the trial court ordered that the fees and costs =
awarded to=20
Melasky for services as both guardian ad litem and attorney ad =
litem on=20
behalf of Darrell by the February 1, 2003 order be assessed =
two‑thirds=20
against the City and one‑third against Winston Griffin, the =
owner of the=20
vehicle Mary was driving. See id. The trial =
court found=20
Agood cause=20
exists for this assessment in that David Melasky in both his =
capacity as=20
Guardian ad [sic] Litem and Attorney Ad Litem has acted in the =
best=20
interest of Darrell Woods and was necessary to protect the =
interests of=20
the minor.@ =20
Id.
In the=20
2003 appeal, the City framed its sole issue as whether =
Athe trial=20
court err[ed] in awarding $13,614.50 in attorney=3Ds fees to=20
the attorney ad litem for Darrel Woods.@ The=20
City=3Ds=20
argument, however, encompassed the following four complaints: (1) =
the=20
trial court abused its discretion in awarding guardian ad litem =
fees for=20
work Melasky performed in his role as plaintiff=3Ds=20
attorney, (2) the trial court abused its discretion in refusing to =
remove=20
the guardian ad litem after the conflict between the next friend =
and the=20
minor ended, (3) the trial court abused its discretion in =
assessing the=20
guardian ad litem fees as costs against the City because it was =
the=20
successful party, and (4) the trial court abused its discretion in =
appointing an attorney ad litem and assessing attorney fees as =
costs=20
against the City. See id. at 579.
This court=20
rejected the City=3Ds first=20
three complaints but agreed with fourth. See id. at=20
579B83. =20
The court then concluded:
Finding that the =
trial court=20
abused its discretion in awarding attorney fees to the attorney ad =
litem=20
as costs against the City, we reverse and remand that portion of =
the=20
judgment awarding Melasky attorney ad litem fees and order the =
trial court=20
to reform its judgment by excluding any sums awarded as attorney=20
fees. We affirm that portion of the judgment awarding =
guardian ad=20
litem fees for work performed prior to the appointment of David =
Melasky as=20
attorney ad litem. The judgment of the trial court is =
affirmed, in=20
part, and reversed and remanded, in part.
Id. =
at=20
583. The judgment and mandate provided:
We have inspected the record and find =
the trial=20
court erred in awarding attorney fees to the attorney ad litem as =
costs=20
against the City of Houston. We therefore REVERSE and =
REMAND that portion of the judgment awarding attorney ad =
litem fees=20
as costs against the City of Houston and order the trial court to =
reform=20
its judgment to exclude any sums awarded as attorney fees in =
accordance=20
with this court=3Ds opinion.
Further, we find no error in the =
remainder of the=20
judgment and order it AFFIRMED.
On remand,=20
the trial court held a hearing Aon the=20
proper disposition of the fees and expenses of the guardian ad=20
litem.@ =20
Melasky and the City agreed Melasky was owed a total of $6,900 in =
guardian=20
ad litem fees, with the City owing $4,600 of that total. =
Melasky=20
then testified and introduced exhibits regarding disputed hours =
and=20
expenses.
The trial=20
court awarded Melasky $6,900 as his total guardian ad litem fee, =
with=20
two-thirds taxed against the City and one-third taxed against=20
Griffin. The court did not award any amount for appellate =
fees or=20
for any additional expenses.
II. =20
Analysis
A. =20
Issues Presented and Standard of Review
In two=20
issues, Melasky argues the trial court erred on remand, (1) =
Aby failing=20
to award the $4,500.00 awarded to the Guardian Ad Litem by the =
District=20
Court in 2003 in the event of an appeal@ =
and (2)=20
Aby failing=20
to award compensation for costs incurred by the Guardian Ad=20
Litem.@ =20
Generally, the award of guardian ad litem fees is in the sound =
discretion=20
of the trial court and will not be set aside absent evidence the =
trial=20
court abused its discretion. Garcia v. Martinez, 988 =
S.W.2d=20
219, 222 (Tex. 1999); Woods, 138 S.W.3d at 580; see =
Tex. R. Civ. P. 173.6 =
(regarding=20
guardian ad litem=3Ds=20
compensation). Nevertheless, on remand, a trial =
court=3Ds=20
authority is limited to trying only those issues specified in the=20
appellate court=3Ds=20
mandate. Harris County Children=3Ds=20
Protective Servs. v. Olvera, 77=20
S.W.3d 336, 340 (Tex. App.CHouston=20
[14th Dist.] 2002, pet. denied).
B. =20
Issues
1. =20
Did the Trial Court Exceed the Scope of the Mandate by not =
Awarding $4,500=20
in Appellate Fees?
Melasky=20
argues the trial court erred on remand when it failed to award the =
$4,500=20
the district court awarded in 2003 if the case were appealed to =
the court=20
of appeals. Melasky contends because the City never =
challenged this=20
award in the 2003 appeal, the award Acould not=20
have been reversed in the 2003 appeal and is final under the =
>Law of the=20
Case=3D =
doctrine.@
Resolution=20
of Melasky=3Ds first=20
issue rests on the interpretation of this court=3Ds mandate=20
in the 2003 appeal. In interpreting the mandate of an =
appellate=20
court, the trial court looks not only to the mandate itself but =
also to=20
the appellate court=3Ds=20
opinion. Denton County v. Tarrant County, 139 S.W.3d =
22, 23=20
(Tex. App.CFort Worth=20
2004, pet. denied); see Hudson v. Wakefield, 711 S.W.2d =
628, 630=20
(Tex. 1986) (implicitly referring to trial court=3Ds=20
interpretation). When an appellant argues the trial court =
exceeded=20
the scope of its authority on remand, this court also looks not =
only to=20
the mandate itself, but also to this court=3Ds opinion=20
ordering the remand. See Olvera, 77 S.W.3d at 341;=20
McGoodwin v. McGoodwin, 181 S.W.3d 870, 873 (Tex. =
App.CDallas=20
2006, pet. denied).
We=20
disagree with Melasky=3Ds argument=20
that our opinion and mandate in the 2003 appeal did not address =
the issue=20
of appellate attorney fees. Our opinion discussed at length =
the=20
distinction between guardian at litem and attorney ad litem fees =
and=20
stated that although a guardian ad litem is entitled to a =
reasonable fee=20
for his services to be taxed as costs, there is no provision =
generally=20
allowing attorney ad litem fees to be taxed as costs. See =
Woods, 138 S.W.3d at 582. We held that when, as here, no =
statute=20
provides for recovery of attorney ad litem fees, the trial court =
abuses=20
its discretion in awarding attorney fees to be taxed as =
costs. =20
See id. at 582B83. =20
We concluded by stating as follows:
Finding that the =
trial court=20
abused its discretion in awarding attorney fees to the attorney ad =
litem=20
as costs against the City, we reverse and remand that portion of =
the=20
judgment awarding Melasky attorney ad litem fees and order the =
trial court=20
to reform its judgment by excluding any sums awarded as attorney=20
fees. We affirm that portion of the judgment awarding =
guardian ad=20
litem fees for work performed prior to the appointment of David =
Melasky as=20
attorney ad litem.
Id. =
at=20
583.
In short,=20
this court reversed that part of the judgment awarding attorney ad =
litem=20
fees and ordered reformation to exclude Aany =
sums=20
awarded as attorney fees@; it=20
affirmed only that part of the judgment awarding Aguardian=20
ad litem fees for work performed prior to=20
[Melasky=3Ds=20
appointment] as attorney ad litem.@ =20
Id. (emphasis added). Thus, pursuant to this=20
court=3Ds opinion,=20
the only question on remand was how much the trial court should =
award=20
Melasky for work done solely as a guardian ad litem after July 29, =
1999Cthe date=20
he was appointed attorney ad litem. The trial court =
correctly=20
understood this court=3Ds mandate=20
in the 2003 appeal, asking, AWouldn=3Dt you=20
agree that the Court of Appeals=3D =
opinion=20
was to say that there was not to be an award relative to any work =
done for=20
[Melasky=3Ds]=20
appointment as an attorney ad litem?@
Melasky=20
argues that the City never challenged the trial court=3Ds award of=20
appellate attorney fees and thus waived any such error. Our =
opinion=20
and mandate clearly reverse all attorney fees awarded to =
Melasky. If=20
Melasky believed we improperly addressed an issue the City waived, =
he=20
should have raised that argument in either a motion for rehearing =
or on=20
petition for review to the Texas Supreme Court. See =
Bunton v.=20
Bentley, 153 S.W.3d 50, 53 (Tex. 2004). The trial court =
acted=20
within our mandate when it declined to award the $4,500 in =
appellate=20
attorney fees. Accordingly, we overrule Melasky=3Ds first=20
issue.
2. =20
Did the Trial Court Abuse its Discretion by Not Awarding an =
Additional=20
$3,902?
In his=20
second issue, Melasky faults the trial court for not awarding him =
an=20
additional $3,902 for costs he claims he incurred in his role as =
guardian,=20
rather than attorney, ad litem. These costs were in addition =
to the=20
$6,900 he and the City agreed were owed to him for work as a =
guardian ad=20
litem, $4,600 of which the court taxed to the City. The =
$3,902=20
comprised the following expenses, all incurred after July 29,=20
1999:
03/20/00
Partial=20
Transcript
$=20
159
03/20/00
Private=20
Investigator
135
03/21/00
Deposition=20
of Dr. Wise [City=3Ds=20
Medical Expert]
1,083
Paralegal=20
8 hours at $40.00/hour
320
03/27/00
Transportation for=20
Darrell Woods to Dr. Rashti=3Ds =
[independent medical=20
examiner=3Ds] =
office
90
03/27/00
Bill=20
from Dr. Rashti
1,925
03/23/00
X-ray
=20
145
=
; =
=20
Total Expenses
$3,902
At the=20
hearing on remand, the City cross-examined Melasky to establish =
these=20
expenses were incurred in Melasky=3Ds role as=20
attorney ad litem. Melasky admitted the private investigator =
expense=20
was to locate and subpoena Darrell=3Ds mother,=20
who received a witness fee. At the deposition, Melasky =
questioned=20
Wise, the City=3Ds medical=20
expert. When asked whether Dr. Rashti=3Ds charges=20
concerned preparation for litigation, Melasky responded, =
AThey sort=20
of speak for themselves.@ Dr.=20
Rashti=3Ds bills=20
from March 2000 contain descriptions of Aconference,=20
litigation,@ =
Areview=20
records,@ =
and=20
Atelephone=20
callCcomplex.@ =20
Each bill contains a notation, Aattorney=20
at [sic] litem for minors [sic].@ =20
Given this evidence, the trial court, acting within its =
discretion, could=20
have found the $3,902 reflected expenses incurred in =
Melasky=3Ds role as=20
attorney ad litem. The trial court acted within the scope of =
our=20
mandate in the 2003 appeal when it declined to award $3,902 in =
additional=20
expenses. Accordingly, we overrule Melasky=3Ds =20
second issue.
III. =20
Conclusion
Having=20
overruled Melasky=3Ds two=20
issues, we affirm the trial court=3Ds=20
judgment.
/s/ =20
Leslie B. Yates
Justice
Judgment=20
rendered and Memorandum Opinion filed August 16, 2007.
Panel=20
consists of Justices Yates, Edelman, and Seymore.
The City=3Ds notice of appeal referred only to the =
second=20
order. As discussed below, however, the second order =
referred to,=20
and modified, the first.
There is a typographical error in =
our=20
opinion in the 2003 appeal. The trial court awarded =
$13,614.50, not=20
A$13,614.15.@ See Woods, 138 S.W.3d at =
578.=20
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