David Melasky as Guadian Ad Litem v. City of Houston--Appeal from 80th District Court of Harris County

Affirmed and Memorandum Opinion filed August 16, 2007

Affirmed and Memorandum Opinion filed August 16, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00386-CV

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DAVID MELASKY AS GUARDIAN AD LITEM, Appellant

V.

CITY OF HOUSTON, Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 1996-51958

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

Appellant David Melasky challenges the trial court=s orders, rendered on remand, awarding Melasky $6,900 as his guardian ad litem fee. Melasky contends the trial court erred in failing to award him appellate fees of $4,500 and $3,902 he claimed as unreimbursed expenses. We affirm.

I. Procedural Background

This case first came before the court in 2003. The background of the 2003 appeal is set forth in detail in City of Houston v. Woods, 138 S.W.3d 574, 577B79 (Tex. App.CHouston [14th Dist.] 2004, no pet.). In the underlying lawsuit giving rise to the 2003 appeal, Mary Woods sued the City for injuries she and her four minor children allegedly sustained in an automobile accident involving a City vehicle. Id. at 577. On September 26, 1997, the trial court appointed Melasky as guardian ad litem for the four children and, on June 29, 1999, appointed Melasky as attorney ad litem for one of the children, Darrell. See id. at 577, 578.

In the 2003 appeal, the City challenged two orders awarding Melasky ad litem fees.[1] In the first order, signed February 1, 2003, the trial court awarded Melasky (1) costs and fees in the amount of $13,614.50 for his services rendered as attorney ad litem on behalf of Darrell and (2) an additional $4,500 if an appeal regarding the fees and costs were to be filed in the court of appeals, an additional $4,500 if writ of error were to be filed, an additional $3,000 if application for writ of error were to be granted, and an additional $6,000 if any additional appeals were taken.[2] See id. at 578. The court specifically stated the amounts awarded did not include any amounts previously awarded for services rendered as guardian ad litem for the other minor plaintiffs. See id.

In the second order, the trial court ordered that the fees and costs awarded to Melasky for services as both guardian ad litem and attorney ad litem on behalf of Darrell by the February 1, 2003 order be assessed two thirds against the City and one third against Winston Griffin, the owner of the vehicle Mary was driving. See id. The trial court found Agood cause exists for this assessment in that David Melasky in both his capacity as Guardian ad [sic] Litem and Attorney Ad Litem has acted in the best interest of Darrell Woods and was necessary to protect the interests of the minor.@ Id.

In the 2003 appeal, the City framed its sole issue as whether Athe trial court err[ed] in awarding $13,614.50 in attorney=s fees to the attorney ad litem for Darrel Woods.@ The City=s argument, however, encompassed the following four complaints: (1) the trial court abused its discretion in awarding guardian ad litem fees for work Melasky performed in his role as plaintiff=s attorney, (2) the trial court abused its discretion in refusing to remove the guardian ad litem after the conflict between the next friend and the minor ended, (3) the trial court abused its discretion in assessing the guardian ad litem fees as costs against the City because it was the successful party, and (4) the trial court abused its discretion in appointing an attorney ad litem and assessing attorney fees as costs against the City. See id. at 579.

This court rejected the City=s first three complaints but agreed with fourth. See id. at 579B83. The court then concluded:

Finding that the trial court abused its discretion in awarding attorney fees to the attorney ad litem as costs against the City, we reverse and remand that portion of the judgment awarding Melasky attorney ad litem fees and order the trial court to reform its judgment by excluding any sums awarded as attorney fees. We affirm that portion of the judgment awarding guardian ad litem fees for work performed prior to the appointment of David Melasky as attorney ad litem. The judgment of the trial court is affirmed, in part, and reversed and remanded, in part.

Id. at 583. The judgment and mandate provided:

We have inspected the record and find the trial court erred in awarding attorney fees to the attorney ad litem as costs against the City of Houston. We therefore REVERSE and REMAND that portion of the judgment awarding attorney ad litem fees as costs against the City of Houston and order the trial court to reform its judgment to exclude any sums awarded as attorney fees in accordance with this court=s opinion.

Further, we find no error in the remainder of the judgment and order it AFFIRMED.

On remand, the trial court held a hearing Aon the proper disposition of the fees and expenses of the guardian ad litem.@ Melasky and the City agreed Melasky was owed a total of $6,900 in guardian ad litem fees, with the City owing $4,600 of that total. Melasky then testified and introduced exhibits regarding disputed hours and expenses.

The trial court awarded Melasky $6,900 as his total guardian ad litem fee, with two-thirds taxed against the City and one-third taxed against Griffin. The court did not award any amount for appellate fees or for any additional expenses.

II. Analysis

A. Issues Presented and Standard of Review

In two issues, Melasky argues the trial court erred on remand, (1) Aby failing to award the $4,500.00 awarded to the Guardian Ad Litem by the District Court in 2003 in the event of an appeal@ and (2) Aby failing to award compensation for costs incurred by the Guardian Ad Litem.@ Generally, the award of guardian ad litem fees is in the sound discretion of the trial court and will not be set aside absent evidence the trial court abused its discretion. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999); Woods, 138 S.W.3d at 580; see Tex. R. Civ. P. 173.6 (regarding guardian ad litem=s compensation). Nevertheless, on remand, a trial court=s authority is limited to trying only those issues specified in the appellate court=s mandate. Harris County Children=s Protective Servs. v. Olvera, 77 S.W.3d 336, 340 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).

B. Issues

1. Did the Trial Court Exceed the Scope of the Mandate by not Awarding $4,500 in Appellate Fees?

Melasky argues the trial court erred on remand when it failed to award the $4,500 the district court awarded in 2003 if the case were appealed to the court of appeals. Melasky contends because the City never challenged this award in the 2003 appeal, the award Acould not have been reversed in the 2003 appeal and is final under the >Law of the Case= doctrine.@

Resolution of Melasky=s first issue rests on the interpretation of this court=s mandate in the 2003 appeal. In interpreting the mandate of an appellate court, the trial court looks not only to the mandate itself but also to the appellate court=s opinion. Denton County v. Tarrant County, 139 S.W.3d 22, 23 (Tex. App.CFort Worth 2004, pet. denied); see Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (implicitly referring to trial court=s interpretation). When an appellant argues the trial court exceeded the scope of its authority on remand, this court also looks not only to the mandate itself, but also to this court=s opinion ordering the remand. See Olvera, 77 S.W.3d at 341; McGoodwin v. McGoodwin, 181 S.W.3d 870, 873 (Tex. App.CDallas 2006, pet. denied).

We disagree with Melasky=s argument that our opinion and mandate in the 2003 appeal did not address the issue of appellate attorney fees. Our opinion discussed at length the distinction between guardian at litem and attorney ad litem fees and stated that although a guardian ad litem is entitled to a reasonable fee for his services to be taxed as costs, there is no provision generally 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 provides for recovery of attorney ad litem fees, the trial court abuses its discretion in awarding attorney fees to be taxed as costs. See id. at 582B83. We concluded by stating as follows:

Finding that the trial court abused its discretion in awarding attorney fees to the attorney ad litem as costs against the City, we reverse and remand that portion of the judgment awarding Melasky attorney ad litem fees and order the trial court to reform its judgment by excluding any sums awarded as attorney fees. We affirm that portion of the judgment awarding guardian ad litem fees for work performed prior to the appointment of David Melasky as attorney ad litem.

Id. at 583.

In short, this court reversed that part of the judgment awarding attorney ad litem fees and ordered reformation to exclude Aany sums awarded as attorney fees@; it affirmed only that part of the judgment awarding Aguardian ad litem fees for work performed prior to [Melasky=s appointment] as attorney ad litem.@ Id. (emphasis added). Thus, pursuant to this court=s opinion, the only question on remand was how much the trial court should award Melasky for work done solely as a guardian ad litem after July 29, 1999Cthe date he was appointed attorney ad litem. The trial court correctly understood this court=s mandate in the 2003 appeal, asking, AWouldn=t you agree that the Court of Appeals= opinion was to say that there was not to be an award relative to any work done for [Melasky=s] appointment as an attorney ad litem?@

Melasky argues that the City never challenged the trial court=s award of appellate attorney fees and thus waived any such error. Our opinion and mandate clearly reverse all attorney fees awarded to Melasky. If Melasky believed we improperly addressed an issue the City waived, he should have raised that argument in either a motion for rehearing or on petition for review to the Texas Supreme Court. See Bunton v. Bentley, 153 S.W.3d 50, 53 (Tex. 2004). The trial court acted within our mandate when it declined to award the $4,500 in appellate attorney fees. Accordingly, we overrule Melasky=s first issue.

2. Did the Trial Court Abuse its Discretion by Not Awarding an Additional $3,902?

In his second issue, Melasky faults the trial court for not awarding him an additional $3,902 for costs he claims he incurred in his role as guardian, rather than attorney, ad litem. These costs were in addition to the $6,900 he and the City agreed were owed to him for work as a guardian ad litem, $4,600 of which the court taxed to the City. The $3,902 comprised the following expenses, all incurred after July 29, 1999:

03/20/00

Partial Transcript

$ 159

03/20/00

Private Investigator

135

03/21/00

Deposition of Dr. Wise [City=s Medical Expert]

1,083

Paralegal 8 hours at $40.00/hour

320

03/27/00

Transportation for Darrell Woods to Dr. Rashti=s [independent medical examiner=s] office

90

03/27/00

Bill from Dr. Rashti

1,925

03/23/00

X-ray

145

Total Expenses

$3,902

At the hearing on remand, the City cross-examined Melasky to establish these expenses were incurred in Melasky=s role as attorney ad litem. Melasky admitted the private investigator expense was to locate and subpoena Darrell=s mother, who received a witness fee. At the deposition, Melasky questioned Wise, the City=s medical expert. When asked whether Dr. Rashti=s charges concerned preparation for litigation, Melasky responded, AThey sort of speak for themselves.@ Dr. Rashti=s bills from March 2000 contain descriptions of Aconference, litigation,@ Areview records,@ and Atelephone callCcomplex.@ Each bill contains a notation, Aattorney at [sic] litem for minors [sic].@ Given this evidence, the trial court, acting within its discretion, could have found the $3,902 reflected expenses incurred in Melasky=s role as attorney ad litem. The trial court acted within the scope of our mandate in the 2003 appeal when it declined to award $3,902 in additional expenses. Accordingly, we overrule Melasky=s second issue.

III. Conclusion

Having overruled Melasky=s two issues, we affirm the trial court=s judgment.

/s/ Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed August 16, 2007.

Panel consists of Justices Yates, Edelman, and Seymore.

[1] The City=s notice of appeal referred only to the second order. As discussed below, however, the second order referred to, and modified, the first.

[2] There is a typographical error in our opinion in the 2003 appeal. The trial court awarded $13,614.50, not A$13,614.15.@ See Woods, 138 S.W.3d at 578.