Opinion issued June 16, 2011
In The
Court of Appeals
For The
First District of Texas
NO. 01-10-00717-CV
____________
MIGUEL TREVINO, Appellant
V.
MARISSA SARREAL REESE, Appellee
On Appeal from the Probate Court
Galveston County, Texas
Trial Court Cause No. PR-71646
MEMORANDUM OPINION
Appellant, Miguel Trevino, challenges the trial court’s order compelling him to pay, as costs, the legal fees and expenses incurred by a court-appointed attorney ad litem for his incapacitated wife, Christine Sarreal Trevino. In his sole issue, Miguel contends that the trial court erred in taxing the attorney ad litem fees as costs against him rather than Christine’s estate or Galveston County.[1]
We reverse and remand.
Background
In 2007, Christine became incapacitated after giving birth to her and Miguel’s daughter. On January 27, 2010, Marissa Sarreal Reese, Christine’s sister, filed an application to be appointed temporary or permanent guardian of Christine and her estate. In her application, Reese alleged that Christine had resided with her from the time that she had become incapacitated in 2007, Miguel visited Christine only “on rare occasions,” and he was unemployed and was exploiting Christine’s estate. Reese further alleged that although Miguel was receiving Christine’s income, disability, and social security payments, he had failed to adequately provide for Christine financially. Reese also filed a motion to appoint an attorney ad litem for Christine. On the same day that Reese filed this motion, the trial court appointed Darlene Payne Smith as Christine’s attorney ad litem to represent and protect Christine’s rights and interest. See Tex. Prob. Code Ann. 646(a) (Vernon Supp. 2010). On February 9, 2010, Miguel filed a competing application to be appointed Christine’s guardian, and the trial court entered an “agreed order” appointing Reese as Christine’s “temporary guardian pending contest.”
In April 2010, Miguel filed a petition, seeking a divorce from Christine and alleging that the marriage had become unsupportable. After the trial court ordered the parties to mediation, Reese and Miguel, along with ad litem Smith, executed a “Rule 11 and Family Settlement Agreement” concerning “all related claims and controversies.”[2] Miguel, Reese, their counsel, and Smith signed the settlement agreement, in which the parties set forth the terms of their agreement in an attached exhibit, entitled “Outline of Terms of Rule 11 and Family Settlement Agreement as to Division of Assets and Liabilities and as to Other Matters” (the “settlement agreement”). In the settlement agreement, Miguel agreed to withdraw his application for guardianship, the parties detailed the assets and liabilities to be awarded to Miguel and Christine, and they provided for “payment of ad litem’s fees as determined by the Court.”
Reese subsequently filed with the trial court an “Application to Approve Rule 11 and Family Settlement Agreement,” noting that the parties had settled all matters at mediation “except who will pay the Attorney ad litem’s fees and expenses.” Reese argued that the fees should be paid, in part, by Miguel because the “majority of ad litem fees were incurred” as a result of his competing application, which Reese contended had been filed in bad faith.
On July 19, 2010, the trial court conducted a hearing on Reese’s application, and, in accordance with the settlement agreement, appointed Reese as guardian and then addressed the ad litem fees. At the hearing, Smith explained that she had incurred fees of $8,750, and neither party objected to this amount. Smith noted that the only disagreement following mediation concerned which party would pay her fees. Smith stated that, at mediation, it was her understanding that, “at the very least,” the parties “would be sharing the attorney ad litem fees,” and she opined that it would not be appropriate for Christine to pay all the fees. Smith also stated that, based upon her understanding regarding the possible sharing of her fees, she did not seek, on Christine’s behalf, spousal support or alimony from Miguel. Reese’s counsel asserted that, in light of the other benefits afforded to Miguel under the settlement agreement, the parties agreed to allow the trial court to determine which party should pay the ad litem fees. Miguel’s counsel stated that Miguel had been willing to split the ad litem fees at mediation and he would not object to splitting the fees. He stated, “I think it was the last issue we discussed, and we said let the Court decide. My client is amenable to split it, Your Honor.”
The trial court inquired about its authority to assess the ad litem fees, and Smith noted that it could, “for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or the[] rules.”[3] Smith suggested that the phrase “by law” could be interpreted to include reference to the settlement agreement and the trial court was authorized to “assess costs any way [it] wanted.” The trial court approved Smith’s request for $8,750 in ad litem fees and ordered Trevino to pay the full amount of these fees.
Following the hearing, the trial court signed an “order granting authority to pay attorneys’ fees and expenses and discharging attorney ad litem.” It approved Smith’s fees, taxed them as costs, and ordered that Smith be paid in accordance with its order approving the settlement agreement. In its order approving the settlement agreement, the trial court authorized Reese to fulfill the settlement agreement on Christine’s behalf, and it ordered that Smith’s fees and expenses be “taxed as costs” and be paid by Miguel.
Jurisdiction
We first note that Reese argues that this Court does not have jurisdiction to review the challenged order because it “did not dispose of all claims and parties and was merely part of the pending guardianship and divorce proceedings.”
Generally, parties may appeal only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). However, probate proceedings give rise to a recognized exception to the general rule since multiple judgments may be rendered on discrete issues before the entire probate proceeding is concluded. See Brittingham-Sada de Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006); Fernandez v. Bustamante, 305 S.W.3d 333, 337 (Tex. App.—Houston [14th Dist.] 2010, no pet.); see also Tex. Prob. Code Ann. § 606(g) (Vernon Supp. 2010) (stating that “[a] final order of a court that exercises original probate jurisdiction is appealable to a court of appeals”). A probate order is final “if it conclusively disposes of and is decisive of the issue or controverted question for which that particular part of the proceeding was brought, even if the decision does not fully and finally dispose of the entire probate proceeding.” Huston v. Fed. Deposit Ins. Corp., 800 S.W.2d 845, 848 (Tex. 1990).
Not all probate orders are appealable. Brittingham-Sada de Ayala, 193 S.W.3d at 578. Determining whether sufficient attributes of finality exist to confer appellate jurisdiction over an order arising from a probate proceeding depends on whether the order resulted from the adjudication of a substantial right or disposed of all issues in a particular phase of the proceeding. Id. The Texas Supreme Court has adopted the following standard to determine whether an order in a probate matter is appealable:
If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.
Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995).
In this case, the trial court’s order not only required appellant to pay the ad litem fees, but also released Smith as the ad litem. Therefore, for the purposes of Smith’s fees, the order concluded a discrete phase of the proceedings. See Roach v. Rowley, 135 S.W.3d 845, 848 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding that orders awarding administrator’s fees and expenses were final and appealable orders); In re Guardianship of Humphrey, No. 12-06-00222-CV, 2008 WL 2445503, at *3 (Tex. App.—Tyler June 18, 2008, pet. denied) (mem. op.) (stating that “order authorizing attorney ad litem fees concluded a discrete phase of the guardianship proceedings in the probate court and is final and appealable”); see also Bergeron v. Session, 554 S.W.2d 771, 775 (Tex. Civ. App.—Dallas 1977, writ ref’d n.r.e.) (order approving the amount of fees to be awarded to a receiver and an accountant for their services up to the date of the order is final and appealable, not interlocutory). Accordingly, we hold that the trial court’s order regarding the award and payment of the ad litem fees is appealable.
Assessment of Ad Litem Fees
In his sole issue, Miguel argues that the trial court erred in assessing the attorney ad litem fees and expenses against him because the Texas Probate Code requires that these fees be assessed against Christine’s estate or, if Christine’s estate is unable to pay such fees, Galveston County. See Tex. Prob. Code Ann. § 665(a) (Vernon Supp. 2010).
Reese argues that Miguel waived any error regarding the trial court’s lack of authority to assess the ad litem fees against him because he did not object to the assessment in the trial court. Reese further argues that the trial court did not err in assessing the ad litem fees against Miguel because “the parties entered a valid written contract whereby they agreed to allow the [trial court] to determine the payment” of the ad litem fees.
The Probate Code provides that in a proceeding for the appointment of a guardian, a court shall appoint an attorney ad litem to represent the interests of the proposed ward. Tex. Prob. Code Ann. § 646(a). In regard to the payment of fees incurred by the ad litem, section 665A provides,
The court shall order the payment of a fee set by the court as compensation to the attorneys, mental health professionals, and interpreters appointed under this chapter, as applicable, to be taxed as costs in the case. If after examining the proposed ward’s assets the court determines the proposed ward is unable to pay for services provided by an attorney, a mental health professional, or an interpreter appointed under this chapter, as applicable, the county is responsible for the cost of those services.
Id. § 665A (emphasis added).
Further in regard to payment, section 669 of the Probate Code provides,
Except as provided by Subsection (b), in a guardianship matter, the cost of the proceeding, including the cost of the guardian ad litem or court visitor, shall be paid out of the guardianship estate, or, if the estate is insufficient to pay for the cost of the proceeding, the cost of the proceeding shall be paid out of the county treasury, and the judgment of the court shall be issued accordingly.
Id. § 669 (emphasis added).
Based upon these provisions, Texas courts have held that ad litem fees, which are taxed as costs, are to be paid by the proposed ward or, if the ward is unable to pay, the pertinent county. See Overman v. Baker, 26 S.W.3d 506, 512–13 (Tex. App.—Tyler 2000, no pet.) (stating that although “[i]t is not clear whether Section 669 is intended to apply to a temporary guardianship application which has been successfully contested,” the “clear implication” from section 665A is that the ad litem’s fees, which are assessed as costs, “be paid out of the proposed ward’s assets unless the court determines that the proposed ward is unable to pay for such services in which case the county is to be responsible for such costs”); see also In re Guardianship of Marburger, 329 S.W.3d 923, 931 (Tex. App.—Corpus Christi 2010, no pet.); In re Guardianship of Soberanes, 100 S.W.3d 405, 408 (Tex. App.—San Antonio 2002, no pet.); In re Guardianship of Humphrey, 2008 WL 2445503, at *3.
Despite this authority, Reese contends that the trial court was permitted to assess the ad litem fees against Miguel under the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 131 (providing that “successful party to a suit shall recover of his adversary all costs incurred”); Tex. R. Civ. P. 141 (providing that trial court may “for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules”). However, the Tyler Court of Appeals has previously considered, and rejected, similar contentions. See In re Guardianship of Humphrey, 2008 WL 2445503, at *4. The Tyler Court concluded that, to the extent rule 141 conflicted with section 665A, the “the specific mandate” of section 665A controlled. Id. In light of the above authority holding that ad litem fees must be taxed as costs against either the ward or the county if the ward is unable to pay, we agree that the mandate in section 665A controls and, here, the trial court was not authorized by the Texas Rules of Civil Procedure to assess the ad litem fees as costs against Miguel.
In regard to Reese’s waiver argument, we note that although the reporter’s record from the hearing reveals that Miguel did not cite the specific sections of the Probate Code that are now discussed on appeal, it is clear from the record that Miguel and Reese took conflicting positions as to who should pay the ad litem fees based upon statutory authority for the assessment of fees. Although Smith stated that she did not think it was “fair” for Christine to pay all the fees, she acknowledged, “I know what the statute says.” The record also reveals that the trial court inquired of Smith whether there was “something in the statute” that would provide it with discretion in assessing fees, and Smith cited rule 141. In sum, the record indicates that even though the specific Probate Code provisions were not discussed in any detail, the parties made the trial court aware of their dispute over which party should pay the fees. Also, both the trial court and the parties were aware of the statutory authority on the matter as well as the potentially relevant rules of civil procedure. Thus, we conclude that Miguel did not waive his complaint in the trial court. We also conclude that Miguel’s citation to section 665A in his appellate brief was sufficient to preserve his appellate complaint, even though he did not cite section 669, which is also relevant to our anlaysis.
Finally, we address Reese’s argument that the assessment of fees against Miguel was authorized by the settlement agreement. Texas Rule of Civil Procedure 11 states that “[u]nless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” Tex. R. Civ. P. 11. We recognize that rule 11 agreements are generally enforceable, here, however, the settlement agreement merely provided for the “payment of ad litem’s fees as determined by the Court.” It did not vest the trial court with discretion to not follow the law. It simply stated that the the fees would be awarded “as determined by the Court.” At the hearing, although Miguel agreed that he would be amenable to splitting the fees, he did not state that he intended to waive controlling authority and pay all the fees. We hold that the settlement agreement, which left the resolution of the dispute over the payment of the ad litem fees to the trial court, did not permit the trial court to assess fees contrary to the Probate Code.
We sustain Miguel’s sole issue.
Conclusion
We reverse the judgment of the trial court. Because the trial court assessed the fees against Miguel, it did not consider whether Galveston County should be held responsible for the payment of such fees. Accordingly, we remand for further proceedings consistent with the opinion.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Brown.
[1] See Tex. Prob. Code Ann. § 665A, 669 (Vernon Supp. 2010).
[2] See Tex. R. Civ. P. 11.
[3] See Tex. R. Civ. P. 141.