Boyce v. Eberstein, 636 S.W.3d 708 (Tex. App.—Dallas 2021, pet. denied).


Guardian Ad Litem Fees

The court appointed a guardian ad litem in a case regarding breach of fiduciary duty and tortious interference with inheritance rights. After the case was nonsuited, a dispute arose regarding the correct person to pay the ad litem’s fee of $121,000 – the non-suiting party or the trustee. The trial court ruled that the trustee was responsible.


On appeal, the Dallas Court of Appeals affirmed. The court conducted an extensive review of statutory and judicial authority regarding the party against whom costs should be taxed when a case is non-suited. Although normally the party who non-suits the case is responsible for the ad litem’s fee, in this case the non-suiting party’s claims had some merit, the trust was in the best position to pay, and the trust benefited from the ad litem’s participation in the case. Accordingly, the trial court did not abuse its discretion and reasonably concluded that it was fair to tax the ad litem’s cost against the trust.


Moral:  Under appropriate circumstances, a guardian ad litem’s fee may be taxed against a trust even when the opposing party non-suits the case.