Opinions Released February 9, 2017

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

Ford Motor Co. v. Aguilar, No. 13-16-00290-CV (Memorandum Opinion by Justice Rodriguez; Panel Members: Justices Contreras and Longoria)

In this direct appeal, Ford challenged an order appointing an attorney ad litem for the incapacitated plaintiff, as well as the court’s award of ad litem fees.

Jorge Aguilar filed a personal injury lawsuit as Next Friend of incapacitated Maria Aguilar, after Maria Aguilar was injured in an automobile accident involving Ford Motor Company. Seven months later, when the parties reached a settlement, the court appointed David Saenz as an attorney ad litem to protect and represent Maria’s interests. Saenz filed a report recommending that the court approve the settlement agreement, along with a request for reasonable compensation.

The parties settled on Saenz’s fees, agreeing that Ford would pay $7,000 in ad litem fees, and the plaintiffs would pay the remaining $1,550. Ford offered Saenz’s verified fee statement in support of the agreement, setting out Saenz’s 28.5 hours billed at $300 per hour. The court however, rejected the agreement stating that the court would not accept an agreement for less than $10,000 in fees based on Saenz’s expertise. The court then advised the parties that it had appointed Saenz as both guardian ad litem and attorney ad litem and would amend the appointment order accordingly.

The trial court then held a hearing on Saenz’s fees. At the hearing, Saenz testified regarding the services he performed, stating that he met with the plaintiffs’ attorney, reviewed the plaintiffs’ files, reviewed the discovery, pleadings, and other documents relevant to plaintiffs’ litigation position, reviewed Aguilar’s medical records, researched her injury, and reviewed the settlement. Ultimately, Saenz agreed that Maria Aguilar was in a good litigation position, the case had been handled properly, and the proposed settlement was fair to Maria Aguilar and in her best interest.

Regarding fees, Saenz testified that he charged $300 per hour and his paralegal charged $18 per hour. Saenz admitted that his work as an attorney ad litem overlapped with his work as a guardian ad litem. Saenz listed specific tasks billed for in his verified fee statements, including discussions with Ford’s attorney about fees on April 14, 2016. However, Saenz noted six entries which he had marked as “non-compensable” and did not bill for, such as returning phone calls, receiving emails, and rescheduling meetings. Saenz also testified that he performed another three hours of work on the case, for which he did not bill.

The trial court ultimately ordered Ford to pay $10,000 in fees for Saenz’s work as attorney and guardian ad litem, as well as $20,000 if the judgment was appealed.

Ford appealed, challenging Saenz’s appointment as an attorney ad litem, and specific elements of the awarded fees.

Held: The trial court erred by appointing Saenz as an attorney ad litem. Furthermore, the trial court erred in awarding approximately $22,500 in fees for non-compensable tasks. The remainder of the fee award however, is affirmed.

Ad litem appointments and fees are reviewed for an abuse of discretion.

Appointment of Saenz as attorney ad litem

Ford first challenged Saenz’s appointment as an attorney ad litem. The Thirteenth Court began by detailing the roles and responsibilities of an attorney ad litem, and contrasting the position with a guardian ad litem.

If a case involving a next friend reaches a settlement, a guardian ad litem should be appointed for the limited purpose of reviewing the settlement and advising the court whether it is in the incapacitated person’s best interest. The guardian ad litem is considered an officer appointed by the court and all reasonable and necessary fees incurred in fulfilling his duty may be taxed as costs of the court. However, the guardian ad litem may not be paid for post-conflict services that further his own interests, such as preparing fee statements, attending a fee hearing, or even the time spent resolving an appeal.

An attorney ad litem however, may only be appointed if the court determines that the incapacitated person lacks an attorney to represent her interests. The attorney ad litem has the full responsibilities of any other attorney. Attorneys ad litem are compensated on a contingency basis.

The Texas Supreme Court has emphasized the distinction between guardians ad litem and attorneys ad litem, and held that the context and nature of the appointment—not the specific label assigned on the relevant court order—controls the scope of the ad litem’s duties.

The Thirteenth Court thus sustained Ford’s point of error challenging the appointment of Saenz as an attorney ad litem. There was no finding or evidence to indicate that Maria was inadequately represented. In fact, Saenz acknowledged at the fee hearing that the case was in a good litigation position. Furthermore, the timing of the court’s appointment—seven months after the suit was filed—indicated that Saenz was appointed due to the potential conflict of interest between Jorge and Maria caused by the settlement. Saenz’s limited review of the files relevant to the settlement and advice to the court regarding the same also indicated that he served as a guardian ad litem, rather than an attorney. The trial court thus erred in appointing Saenz as an attorney ad litem.

Award of ad litem fees

Ford next challenged the trial court’s award of ad litem fees, claiming fees were awarded for (1) tasks that Saenz did not charge for or support with evidence; (2) tasks identified as non-compensable; (3) Saenz’s work as a psychologist; and (4) post-conflict tasks.

Non-compensable tasks

Ford challenged the trial court’s discretion to award $1,450 in fees for tasks Saenz testified he would not charge for, as well as additional funds for tasks not listed in Saenz’s report. The court of appeals held that the record supported part of the award—namely, the $459 awarded for Saenz’s 1.5 hours of relevant, documented, but unbilled work and his paralegal’s 0.5 hours of work. However, the remaining $991 was simply awarded because the trial court believed Saenz’s expertise justified a higher fee. This was not supported by the evidence.

Ford also claimed that the tasks performed by Saenz on March 30, 2016 were billed as a block, rather than properly segregated between compensable and non-compensable activities. However, the verified fee statement offered by Ford and admitted at the hearing reflected compensable activities on March 30, 3016, including a review of Maria Aguilar’s medical records, which he referenced in his opinion regarding the settlement agreement. Thus, there was sufficient evidence to support the trail court’s award of these fees.

Work performed as a psychologist

Ford next complained that Saenz was awarded fees for work as a psychologist in relation to his review of the medical records. However, Saenz testified that his research regarding Maria’s condition was to understand her situation and satisfy his role as guardian ad litem. The evidence did not show that Saenz was awarded fees for work as a psychologist.

Post-conflict tasks

Finally, Ford argued that Saenz was awarded fees for post-conflict tasks including researching ad litem fees, meeting with counsel, and defending his fee award on appeal. The Thirteenth Court of appeals agreed, striking down the trial court’s corresponding award for $21,500 in non-compensable post-conflict and appellate fees.

Read the Full Opinion Here


Busbee v. State, No. 13-16-00555-CR (Memorandum Opinion by Justice Rodriguez; Panel Members: Justices Contreras and Longoria)

James Peyton Busbee was charged with three counts of aggravated sexual assault of a child younger than six; one count of possession or promotion of child porn; and one count of aggravated assault. Busbee pled guilty or no contest to each of the charges, but did not reach a plea bargain with the State regarding punishment.

At the sentencing hearing, the State produced witnesses that testified to the egregious nature of Busbee’s offense. Specifically, the witnesses testified that Busbee’s sexual assault victim was five years old at the time, and Busbee was HIV positive. Moreover, Busbee made a video of the sexual assault and showed it to other people. Busbee had also been convicted in federal court and sentenced to thirty years’ confinement. Busbee did not testify or ask to make a statement.

The trial court sentenced Busbee to ninety-nine years’ confinement for each of counts 1, 2 and 3, and twenty-five years for counts 4 and 5. The court ordered these terms to run consecutively; both to one another and to Busbee’s federal sentence.

Busbee appealed, asserting two new arguments not raised at any point during the trial proceedings: (1) that article 42.07 of the Texas Code of Criminal Procedure was an unconstitutional abridgement of his due process right to allocution; and (2) that his sentence violated his due process rights because it was in excess of that necessary to accomplish the purposes of the Penal Code.

Held: Busbee did not have a constitutional right to allocution, nor to a punishment at the lower end of the statutory range. Moreover, Busbee failed to preserve his challenges.

Busbee first argued that Texas Code of Criminal Procedure article 42.07 violated his due process right to allocution. Allocution is when a trial court asks a criminal defendant to speak in mitigation of his sentence. Article 42.07 addresses this right, allowing a defendant to say “why the sentence should not be pronounced against him.” The article then goes on to specify that only three reasons warrant a judge not pronouncing a sentence: (1) pardon; (2) incompetence; or (3) instances of mistaken identity involving escaped and recaptured convicts.

Busbee contended that article 42.07 denied him the right to address the court personally without testifying, as in federal sentencing procedure. However, the United States Supreme Court has not held that allocution is a constitutional right, nor is there any Texas case law or statutory authority to support the argument. In fact, both the Waco and Corpus Christi Courts of Appeals have held that allocution is not a constitutional right. The court thus reiterated and affirmed its holding that allocution is not a constitutional right, and a criminal defendant cannot make an unsworn statement to the court when he does not qualify for one of the three legal bars listed in article 42.07. Moreover, Busbee failed to preserve the issue. Thus, Busbee’s challenge was overruled.

Next, Busbee argued that the sentence imposed by the court exceeded that necessary to accomplish the purposes of the Penal Code, in violation of his due process rights. However, the court of appeals emphasized that punishment falling within the limits prescribed by status is—per se—not prohibited as excessive. Although Busbee claimed that a sentence lower in the range would have accomplished the same purpose, Busbee offered no legal support for the argument and the trial court did not abuse its discretion by sentencing Busbee in accordance with the statutory range. Additionally, Busbeee neither adequately briefed the issue nor preserved it before the trial court. Busbee’s second challenge was thus overruled.

However, the Thirteenth Court noted, sua sponte, that the trial court’s judgment contained a typo referring to a non-existent section of the Penal Code as the statue for aggravated sexual assault. The court thus modified the judgment, and affirmed it as modified.

Read the Full Opinion Here