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Borden3/22/2000
Opinion by: Catherine Stone, Justice
Concurring opinion by: Tom Rickhoff, Justice
Dissenting opinion by: Paul W. Green, Justice
AFFIRMED
This limited appeal concerns the propriety of the trial court's award of guardian ad litem fees in an underlying personal injury case. On multiple grounds, Borden challenges the reasonableness of the award. In the absence of evidence to show the trial court abused its discretion, we affirm the judgment of the trial court.
Factual and Procedural Background
In 1996, a milk truck which displayed Borden's logo, crossed over the center line on a wet highway and collided with a truck driven by Victor Manuel Casares Hernandez. Hernandez, along with his two passengers, Maria Hortencia Rivera Riojas and Maribel Salinas Martinez, sustained fatal injuries. On September 27, 1996, twenty-one claimants, including eleven minors, filed a wrongful death and survival action against Borden for the triple fatality. On September 19, 1997, the trial court appointed three guardians ad litem to represent the interests of the minors. The court appointed Sergio Martinez as ad litem for the two Hernandez minors, Alvino Morales for the five Martinez minors, and Arnulfo Gonzalez for the five Riojas minors. The parties reached a settlement in the amount of $7.5 million on June 19, 1998. Following an evidentiary hearing on the issue of guardian ad litem fees, the trial court allocated $200,000 to the three guardians ad litem as follows: $45,000 to Martinez, $75,000 to Morales, and $80,000 to Gonzales. The trial court awarded all three guardians ad litem additional fees for any subsequent appeals. Borden does not contest the appellate fees, but challenges the fees awarded for services rendered up to the settlement.
Standard of Review
We review the award of guardian ad litem fees under an abuse of discretion standard. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). The amount of an ad litem award is in the trial court's sound discretion, and will not be set aside absent evidence of the trial court's clear abuse of discretion. Id. A trial court abuses its discretion if there is no evidence or insufficient evidence to support the award. Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728, 738 (Tex. App.-Texarkana 1996, no writ). The reviewing court may draw upon the common knowledge of the justices and their experience as lawyers and judges to view the matter in light of the evidence and the amount in controversy. Id. A trial court does not necessarily abuse its discretion in awarding fees to a court-appointed guardian ad litem if under the same facts, an appellate judge would decide the matter differently, or if the trial court commits a mere error in judgment. Valley Coca-Cola Bottling Co., Inc. v. Molina, 818 S.W.2d 146, 148 (Tex. App.-Corpus Christi 1991, writ denied).
Discussion
Rule 173 of the Texas Rules of Civil Procedure governs guardian ad litem appointments. Rule 173 permits a trial court to appoint a guardian ad litem when a minor is represented by a guardian or next friend who appears to have an interest adverse to that of the minor. Tex. R.Civ. P. 173. Guardians ad litem are entitled to a reasonable fee for their services to be taxed as a part of the costs. Tex.R. Civ. P. 173.
Courts use the same eight factors to determine the reasonableness of attorney's fees to ascertain the appropriate guardian ad litem fee. Garcia, 988 S.W.2d at 222. The eight factors are:
• the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
• the likelihood
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