I made the mess, but I don’t have to clean it up.

In the Guardianship of Humphries (Published Memo): Tex. Probate Code Section 655A trumps Tex. R. Civ. P. 141 when it comes the the assessment of attorney’s fees, but does not trump the court’s ability to award sanctions via Tex. R. Civ. P 215.3.

A nineteen year old, Luke, was incapacitated in an auto accident.  His father was appointed guardian.  Mother and maternal aunts challenge that in trial court probate proceeding. (The father and mother are divorced).  The attorney ad litem did a lot of work as a result of the mother’s presence in the case.  That work included getting a temporary restraining order preventing the mother from seeing Luke or having inappropriate communications with the staff of the nursing home where Luke now lives.  Affidavits from the nursing home staff supported the entry of the order.  That temporary restraining order was later, by the mother’s consent, converted into a temporary injunction.

The mother also had some “unstable” contact with the owner of a record retrieval company.  The mother’s then-attorney had ordered some of Luke’s medical records from a facility other than the nursing home.  The attorney ad litem is entitled to a copy of those records.  But the mother showed up at the office of the record retrieval company to pick up the originals before they could be copied. She made it very clear that she didn’t want the attorney ad litem getting anything. The record retrieval company’s owner felt “really afraid” and let the mother, and the records, walk out the door.  The attorney ad litem filed a motion to compel.  Eventually, the mother’s attorney handed the records over as his last act — just before his motion to withdraw was granted.

The attorney ad litem sought attorneys fees for his work done because of the mother’s presence in the case, and as a sanction for putting him through the ringer to get the records.  The trial court went with the attorney ad litem on both fronts. 

But the trial court based the award of fees for work done on Tex. R. Civ. P. 141 instead of Tex. Prob. Code Section 665A.  The Tyler court says that Rule 141 “conflicts with the specific mandate” of Section 665A.  At first, the conflict is not readily apparent.  Section 665A says that fees are to be assessed as costs of court. Rule 141 provides that, for good cause, a trial court may assess the costs of court on a party.  So why can’t the two be read together to support the award of fees against the mother?  Because 665A says that “if the proposed ward is unable to pay for the attorney’s services, the county is responsible for the cost of those services.”

My view: I have “strict constructionist” leanings, so I should be happy when a court takes a statute at its word.  But I’m not happy at the prospect of Luke or Smith County paying nearly $10,000 that, as the trial court found, should be paid by the mother.  If Luke has the money to pay now, he’d be better off saving it for future medical needs.  And Smith County has enough bills as it is.  Keep in mind that the total bill has now ballooned by virtue of this appeal.

I wonder how many situations like this come up every day in contested guardianship cases.  Without commenting on the mother’s intentions here, let’s just say I’m a cynic in general.  If the rules allow for an abusive party to have a “free bite at the apple” aka push the costs of their conduct onto someone else, they’ll do it.  Rule 215.3 sanctions probably aren’t the answer because the scope of sanctionable conduct is narrower than the broad “good cause” reach of Rule 141.  Same probably holds true for Tex. Civ. Prac. & Rem Code Chapter 10, which governs the signing of frivolous pleadings or motions.  Sounds like the Texas Legislature might need to tweak 665A so that it can be read along with Rule 141.  Opponents will contend that opens the door for judges to abuse Rule 141 to terrorize guardianship litigants.  I’m not as concerned about that as I am about the impact of this decision on those in the shoes of Luke and/or Smith County.  As a taxpayer, I can vote against a judge.  But what can I do about “unstable” litigants?

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