Dawson v. Garcia

SPARLING, Justice,

dissenting.

I respectfully disagree with the majority opinion which states “justice does not require a remand.” I further disagree with the majority for setting the amount of the guardian ad litem fee and charging Dawson, alone, with the ad litem costs. Accordingly, I dissent.

I believe that a “reverse and render” of the judgment for the passengers of the Garcia automobile is unduly harsh. They suffered legitimate injuries for which Dawson and the Garcia estate are jointly liable. The majority denies recovery because the passengers did not join Dawson in objecting to that portion of the charge that combined damages. The failure to delineate damages in the charge is not per se error, but only became error — says the majori*269ty — because we held that the passengers were not entitled to bystanders’ damages. A remand under these circumstances would not be just another “bite of the apple” but rather would result in a redetermination of damages which have been properly pleaded and proved. Thus, in the interest of justice, I would reverse and remand. Morrow v. Shotwell, 477 S.W.2d 538, 542 (Tex.1972); Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967), 402 S.W.2d 200; Truck Farm, Inc. v. Allen, 608 S.W.2d 296, 298 (Tex.App. — Dallas 1980, no writ).

The majority “conclude[s] that the amount of $500.00 would be an appropriate sum to compensate the guardian ad litem.” Yet the majority cites no applicable authority for substituting its discretion for the discretion of the trial court. I would hold that our authority extends no further than to declare the amount an abuse of discretion and remand to the trial court for further consideration.1 Garza v. Brazos County Federal Credit Union, 603 S.W.2d 298, 301 (Tex.App. — Waco 1980, no writ); Vaughn v. Gunter, 458 S.W.2d 523, 529 (Tex.Civ.App. — Dallas 1970, writ ref’d n.r. e.). I would further hold that the ad litem costs be taxed against Dawson and the Garcia estate, jointly and severally. The record does not recite good cause for taxing the costs against anyone other than the losing party. TEX.R.CIV.P. 131, 141. Because the Garcia estate is jointly liable and thus a losing party, it should be equally responsible for the costs.

. Although this court is empowered to tax reasonable ad litem fees to a different party than did the trial court, Seipert v. Brewer, 433 S.W.2d 773, 775 (Tex.App. — Texarkana 1968); and to demand a remittitur as a substitute for reversal, Reintsma v. Greater Austin Apartment Maintenance, 549 S.W.2d 434, 438 (Tex.App. — Austin 1977); I would not consider these powers as authority to set an amount of ad litem fees.