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GRANT v. LAURIE6/21/1995
In Grant v. Iowa District Court, 492 N.W.2d 683, 685 (Iowa 1992), we held that a court lacked either statutory or inherent authority to tax as costs in a tort suit the fees for an attorney appointed as guardian ad litem to represent an incarcerated defendant. We rejected the statutory claim because "litigation still in progress." Id. The tort litigation is concluded and the question here is whether there is now statutory authority to award the fees. The trial court responded in the affirmative and we agree. Because, however, we think a part of the fees should not have been assessed, we affirm only in part, reverse in part and remand.
The facts were explained in our prior decision so it is unnecessary to detail them again here. It is enough to state that plaintiffs (the Grants) are parents and representatives of Michael Grant who was killed when struck by an automobile driven by Raymond Laurie. Laurie was convicted of involuntary manslaughter and sentenced to incarceration.
While Laurie was in prison the Grants brought this wrongful death suit against him and others. In seeking judgment against Laurie, the Grants had to contend with Iowa rule of civil procedure 13. Charles H. Levad, an attorney in solo practice, had been appointed at public expense to represent Laurie in the criminal proceeding. Levad, as an officer of the court, was thereafter required, notwithstanding his attempts to withdraw, to continue his representation of Laurie in this tort suit.
I. Now that tort litigation has been completed, we are called upon to revisit the same question that was presented in the prior certiorari proceeding: whether fees incurred by an attorney appointed as guardian ad litem pursuant to rule 13 can be taxed as costs. Three statutes are implicated. Iowa Code section 625.1 (1995) generally provides that costs shall be collected by the successful party against the losing party. Section 625.5 provides:
All costs accrued at the instance of the successful party, which cannot be collected of the other party, may be recovered on motion by the person entitled to them against the successful party.
Finally, section 625.14 directs the clerk to tax as costs "any . . . matter which the court may have awarded as costs in the . . . action, or may allow."
When, as is usual in Iowa, a guardian ad litem is an attorney, and necessary services include those as an attorney, the fees to be allowed should include those for professional legal services. Hirczy v. Hirczy, 838 S.W.2d 783, 786-87 (Tex.App. 1992); Ragan v. Looney, 377 S.W.2d 273, 276 (Mo. 1964). See also 42 Am.Jur.2d Infants ยง 190 (1969).
The Grants, not surprisingly, are appalled by the prospect of being required to pay Levad's attorney fees for representing the judgment-proof, drunken driver who killed their son. They describe this prospect as "unthinkable," and cite language in our prior opinion in this case, and also in Garcia v. Wibholm, 461 N.W.2d 166, 170-71 (Iowa 1990), and Dole v. Harstad, 278 N.W.2d 907, 909 (Iowa 1979), for the well established rule that there is no common-law authority to tax attorney fees as costs. These authorities do indeed stand for the proposition that any such authority must be derived from a statute. [533 NW2d Page 565]
The trial court was neither unsympathetic to the Grants, nor oblivious of these authorities. But it must be remembered that, following the terrible tragedy that befell them, it was the Grants who opted to bring suit against an incarcerated defendant. The statutory scheme for such a situation necessarily accommodates the required representation of the imprisoned defendant. And it is apparent to us that the scheme presupposes t
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