SHERRY DEWBERRY, Appellant v. MELODEE ARMSTRONG MOTA, Appellee

AFFIRMED; Opinion Filed July 14, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01057-CV
............................
SHERRY DEWBERRY, Appellant
V.
MELODEE ARMSTRONG MOTA, Appellee
.............................................................
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-07-07803-A
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MEMORANDUM OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Lang
                                                                                  
        Appellant Sherry Dewberry appeals from a judgment awarding guardian ad litem fees to appellee. In two issues, Dewberry complains the trial court abused its discretion in (1) appointing a guardian ad litem when there was no apparent conflict of interest between the minor plaintiffs and appellant as next friend, and (2) awarding compensation to the guardian ad litem for services performed under circumstances where there was no apparent conflict of interest between the minor plaintiffs and appellant as next friend. Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4 We affirm the trial court's judgment.
 
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Sherry Dewberry was the driver of a vehicle involved in a collision that resulted in the death of Jackie Lee Schwartz. On May 23, 2007, the mother of Schwartz's children, Shelby D. Moore, filed a lawsuit against appellant, as next friend of her two minor children, to finalize settlement of wrongful death claims on behalf of the children based on the death of their father in the accident. Moore was not married to Schwartz and did not seek any recovery for herself in the lawsuit. On May 30, 2007, Moore filed a motion to appoint a guardian ad litem for the children. On May 31, 2007, the trial court signed an order appointing appellee Melodee Armstrong Mota as the guardian ad litem for the children.
        At the July 3, 2007 hearing to determine if the proposed settlement was in the best interest of the minors, Mota presented a fee statement in the amount of $2,464.00 for her services as guardian ad litem for the children. Dewberry objected orally to the award of compensation to Mota, claiming no guardian ad litem should have been appointed, but admitted no objection had previously been made to Mota's appointment. The trial court orally approved the settlement agreement and ordered the award of compensation of guardian ad litem fees. Then, Dewberry made an oral motion to sever the award of guardian ad litem fees from the judgment, so she could “appeal the ad litem fees alone.” The trial court orally granted the motion to sever. The final judgment included an order severing the award of compensation. This appeal followed.
 
II. GUARDIAN AD LITEM
 
A. Standard of Review
 
        An award of compensation to a guardian ad litem is reviewed under an abuse of discretion standard and will not be set aside absent a clear abuse of discretion. Youngstown Area Jewish Fed'n v. Dunleavy, 223 S.W.3d 604, 608 (Tex. App.-Dallas 2007, no pet.) (citing Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999) (per curiam)). A trial court abuses its discretion in awarding ad litem fees if there is no evidence or insufficient evidence to support the award. Youngstown, 223 S.W.3d at 608; see also Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); TXI Transp. Co. v. Hughes, 224 S.W.3d 870, 920-21 (Tex. App.-Fort Worth 2007, pet. granted).
B. Applicable Law
 
        Minors may sue and be represented by a “next friend.” Tex. R. Civ. P. 44; Byrd v. Woodruff, 891 S.W.2d 689, 704 (Tex. App.-Dallas 1994, writ dism'd by agr.). When the next friend has an interest adverse to the minor plaintiff because of the division of settlement proceeds, the trial court must appoint a guardian ad litem. See Tex. R. Civ. P. 173.2(a), 173 cmt. 3; Byrd, 891 S.W.2d at 704-05. “The conflict need not be actual; potential for conflict during trial or settlement negotiation also authorizes the appointment of a guardian ad litem.” Owens v. Perez, 158 S.W.3d 96, 111 (Tex. App.-Corpus Christi 2005, no pet.); see also Borden, Inc. v. Martinez, 19 S.W.3d 469, 472 (Tex. App.-San Antonio 2000, no pet.).
        A guardian ad litem is entitled to be compensated for reasonable and necessary expenses incurred and may be paid a reasonable hourly fee for necessary services performed. Tex. R. Civ. P. 173.6; Youngstown, 223 S.W.3d at 608. However, the guardian ad litem may not recover fees for services rendered after resolution of the conflict for which he or she is appointed. Brownsville-Valley Reg'l Med. Ctr., Inc. v. Gamez, 894 S.W.2d 753, 757 (Tex. 1995). In Borden, Inc. v. Martinez, the appellant argued the guardian ad litem was entitled to no compensation because he should not have been appointed at all, based on an alleged lack of conflict. Borden, Inc., 19 S.W.3d at 472. The San Antonio Court of Appeals concluded there was no abuse of discretion in awarding ad litem fees in that case because appellant had made no effort to remove the ad litem or alert the trial court of its objection to the continued representation prior to the final hearing. Id.
C. Application of Law to Facts
 
1. Appointment of guardian ad litem
        In her first issue, appellant complains of the appointment of a guardian ad litem in this case because, she argues, no conflict of interest existed between Moore and the children. However, appellant has not perfected an appeal from the order appointing a guardian ad litem, but rather, from the compensation award severed from the final judgment. According to the trial court's order, the only issue severed from the final judgment for the purpose of appeal was the award of compensation to the guardian ad litem. See Tex. R. Civ. P. 41, 173.7. Therefore, any argument respecting the propriety of appointment of the guardian ad litem is not properly before this court. See Youngstown, 223 S.W.3d at 607.
        We decide against Dewberry on her first issue.
2. Compensation of guardian ad litem
        In her second issue, Dewberry complains of the award compensating Mota for her services as guardian ad litem. No objection was made here or at the trial court as to the amount of the fees awarded for the guardian ad litem services. The only error claimed is that the guardian ad litem should be awarded no compensation because no conflict of interest existed between the next friend and the minors, and the guardian ad litem should not have been appointed at all. However, as with the appellant in Borden, Inc., Dewberry did not object to the appointment of the guardian ad litem until the final hearing. See Borden,19 S.W.3d at 472. Dewberry's objection came more than a month after the appointment and after Mota had already completed her services as guardian ad litem. See id. Accordingly, we conclude the trial court did not abuse its discretion in awarding ad litem fees when Dewberry failed to seek to remove the ad litem or to alert the trial court to any objection to the appointment of Mota until the final hearing, after the services had been performed. See id.         We decide against appellant on her second issue.
 
III. CONCLUSION
 
        Appellant did not preserve for review her complaint on the appointment of a guardian ad litem. Further, the trial court did not abuse its discretion in awarding compensation to the guardian ad litem. The judgment of the trial court is AFFIRMED.
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
071057F.P05