In Re: Geico General Insurance Company--Appeal from 405TH District Court of Galveston County

Petition for Writ of Mandamus Conditionally Granted in Part and Denied in Part; Memorandum Opinion filed December 7, 2006

Petition for Writ of Mandamus Conditionally Granted in Part and Denied in Part; Memorandum Opinion filed December 7, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00423-CV

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IN RE GEICO GENERAL INSURANCE COMPANY, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

In this original proceeding, relator GEICO General Insurance Company seeks a writ of mandamus ordering the Honorable Wayne Mallia, presiding judge of the 405th Judicial District Court, Galveston County, Texas, to vacate an order granting the motion for costs of the attorney ad litem in the case, Genevieve McGarvey. For the reasons discussed below, we conditionally grant in part and deny in part the requested relief.

Background

GEICO=s insured, Charles Grooters, was involved in an auto accident with Jonathan Lawrence. After paying Grooters under his policy, GEICO filed a subrogation suit against Lawrence, seeking approximately $7800 in damages. GEICO served Lawrence by publication and requested an ad litem be appointed to represent him. See Tex. R. Civ. P. 244. McGarvey was appointed as Lawrence=s ad litem.

Lawrence was subsequently located and served in the suit. Approximately two months later, GEICO filed a motion to terminate McGarvey as ad litem, and McGarvey filed a motion to determine her ad litem fees. Following a hearing, the trial court granted both motions. The court=s order, dated April 13, 2006, terminated McGarvey=s appointment and ordered GEICO to pay $12,314.75, as reasonable and necessary attorney=s fees, within twenty-one days of the order. GEICO filed this mandamus proceeding and a motion for temporary relief. We granted GEICO=s motion on May 11, 2006, and issued an order staying the trial court=s order pending a determination of the mandamus petition.

Mandamus Standard

Mandamus relief is available if the trial court abuses its discretion and there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839B40, 842 (Tex. 1992) (orig. proceeding). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles, or acts in an arbitrary or unreasonable manner. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005). Whether a party has an adequate appellate remedy is determined by balancing jurisprudential considerations that implicate both public and private interests. Id.; In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). If the benefits of mandamus review outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. In re Prudential, 148 S.W.3d at 136.

Discussion

GEICO argues that the trial court=s April 13 order is an abuse of discretion because (1) the court ordered GEICO to pay the fees prior to the entry of a final judgment, and (2) the evidence presented was insufficient to justify the amount of fees awarded. McGarvey contends that the trial court did not abuse its discretion because public policy mandates the ad litem=s fees be paid by the party seeking the appointment under Texas Rule of Civil Procedure 244. She also asserts GEICO failed to object to the evidence offered to establish that her fees were reasonable and necessary.

Beginning with GEICO=s second argument, whether an award of attorney=s fees is reasonable and necessary or sufficiently supported by evidence are matters of fact that are not appropriate for mandamus review. See In re Ford Motor Co., 988 S.W.2d 714, 722 (Tex. 1998) (orig. proceeding); Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); In re Epic Holdings, Inc., 985 S.W.2d 41, 56B57 (Tex. 1998) (Baker, J., dissenting); In re Chu, 134 S.W.3d 459, 468 (Tex. App.CWaco 2004, orig. proceeding). Therefore, we decline to address GEICO=s second argument, and deny its request for mandamus relief as to that issue. As to GEICO=s remaining argument, however, we conditionally grant the petition for mandamus.

Under Texas Rule of Civil Procedure 244, the trial court is required to appoint an attorney ad litem to represent defendants who fail to file an answer or appear before the court when served with citation by publication. Tex. R. Civ. P. 244.[1] The rule also requires that the attorney ad litem be paid a reasonable fee for her services, which is to be taxed as part of the costs of the suit. Id.; see also Rhodes v. Cahill, 802 S.W.2d 643, 647 (Tex. 1990) (AOur rules of civil and appellate practice [] should be read to provide a reasonable fee and source of payment for the necessary efforts of an attorney ad litem.@).

However, costs of court may not be collected by execution until the trial court has rendered judgment. See Tex. R. Civ. P. 149 (ANo execution shall issue in any case for costs until after judgment rendered therefor by the court.@);[2] see, e.g., In re Baylor Coll. of Med., No. 09-01-157-CV, 2001 WL 585688, at *1 (Tex. App.CBeaumont May 31, 2001, orig. proceeding) (not designated for publication) (concluding that levying of execution for ad litem fees prior to a final judgment was an abuse of discretion). Further, our rules of procedure provide that the Asuccessful party@ to the suit is to recover costs from his opponent. Tex. R. Civ. P. 131. Here, by ordering GEICO to pay the ad litem fees within twenty-one days of the order, the trial court has ordered payment of costs without a final judgment and without a determination of the Asuccessful party.@ This ruling is contrary to the rules of procedure and is an abuse of discretion.[3] Also, under these circumstances, once the fees are paid, it would be futile for GEICO to appeal the fee award, thus rendering its appellate remedy inadequate. See In re Prudential, 148 S.W.3d at 136; Highland Church of Christ v. Powell, 640 S.W.2d 235, 236 (Tex. 1982).

 Conclusion

In conclusion, to the extent the trial court=s order requires payment of McGarvey=s ad litem fees prior to a final judgment, it is an abuse of discretion; therefore, we conditionally grant mandamus relief and direct the trial court to reform its April 13, 2006 order, deleting that portion directing GEICO to pay the fees within twenty-one days. We deny mandamus relief with respect to the amount of fees awarded. As to the relief granted, the writ will issue only if the trial court fails to comply.

PER CURIAM

Petition Conditionally Granted in Part and Denied in Part, and Memorandum Opinion filed December 7, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

[1]Rule 244 provides:

Where service has been made by publication, and no answer has been filed nor appearance entered within the prescribed time, the court shall appoint an attorney to defend the suit in behalf of the defendant, and judgment shall be rendered as in other cases; . . . . The court shall allow such attorney a reasonable fee for his services, to be taxed as part of the costs.

Tex. R. Civ. P. 244.

[2]In her response, McGarvey argues that fees may be ordered paid during the pendency of the litigation, citing to Estate of Tartt v. Harpold, 531 S.W.2d 696, 698 (Tex. Civ. App.CHouston [14th Dist.] 1975, writ ref=d n.r.e.); however, in that case, a final judgment had been rendered and the issue was whether the probate court had jurisdiction to award ad litem fees once the case had been appealed to the district court. Other cases McGarvey mentions in her response involve payment of fees permitted under statutory provisions.

[3]Even assuming the trial court ordered GEICO to pay the ad litem fees pursuant to Rule 133, which states a trial court may award costs on motions at its discretion, under the circumstances of this case, the court=s order requires GEICO to pay the costs of the suit, albeit without a final judgment, and not just the costs of motions. See Tex. R. Civ. P. 133. Nor can we uphold the order under Rule 141, which allows a trial court to award costs other than to the successful party, because the rule requires Agood cause, to be stated on the record,@ which is lacking here. Tex. R. Civ. P. 141.