Michigan Court Of Appeals Holds Guardian Ad Litem Entitled To Fees, Costs

On September 22, 2015, the Michigan Court of Appeals held in a personal injury case that a guardian ad litem appointed by the court for a minor defendant is entitled to fees and costs incurred during the representation of his minor client.

In Doe v Boyle, Docket No. 320102, the Michigan Court of Appeals addressed the issue of whether the Michigan Department of Human Services (DHS) was obligated to pay attorney fees and costs to a guardian ad litem who represented a young boy who molested another younger boy in Michigan during a day at the beach.

The Court first recited the facts of the case:

On July 14, 2006, John Doe (“Doe”), a 5-year-old minor, was at the beach in Traverse City, Michigan. Defendant Michael Hand (“Hand”), a 13-year-old minor, was also at the beach. Hand asked Doe to accompany him to a public restroom. While inside the public restroom, Hand sexually assaulted Doe. At the time of the incident, Hand was a ward of the state of Michigan, and was living with foster-care provider defendant Renee Boyle (“Boyle”). The parental rights of Hand’s natural parents had been previously terminated.

Doe, by his mother as next friend (“plaintiff”), sued Hand, Boyle, the state of Michigan, the Michigan Department of Human Services (“DHS”),1 and DHS of Wexford-Missaukee Counties in the Ingham Circuit Court. The complaint was filed on July 6, 2007. To proceed with her claims against minor child Hand, plaintiff filed an ex parte motion for the appointment of a guardian ad litem for Hand pursuant to MCR 2.201(E)(1)(c).

On October 12, 2007, the circuit court entered an order dismissing defendants state of Michigan, DHS, and DHS of Wexford-Missaukee Counties from this action without prejudice. A hearing on plaintiff’s motion to appoint a guardian ad litem for Hand was held on January 23, 2008. The attorney for plaintiff and Doe noted that Hand needed a next friend or guardian ad litem since he was a minor. The circuit judge remarked, “I don’t know who to suggest to appoint. I don’t know anybody that does this sort of thing. We’ll find somebody.” Woods happened to be present in the courtroom for an unrelated matter. The circuit judge apparently knew Woods, and asked him whether he would be willing to serve as Hand’s guardian ad litem. Woods agreed. The court entered an order appointing Woods as guardian ad litem pursuant to MCR 2.201(E)(1)(c). Woods entered his appearance as “guardian ad litem and attorney” for Hand. Woods then filed answers to plaintiff’s first and second amended complaints on behalf of Hand.

Meanwhile, plaintiff filed a separate action for declaratory relief. In this separate action, plaintiff sought a declaration that Boyle’s homeowner’s insurer, Citizens Insurance Company (“Citizens”), was obligated to defend Boyle and indemnify her for any liability that she might incur as a result of plaintiff’s claims. Citizens moved for summary disposition. Woods appeared in the declaratory-judgment action as guardian ad litem for Hand, siding with plaintiff and arguing for insurance coverage. Woods concurred in plaintiff’s opposition to Citizen’s motion for summary disposition. The circuit court ultimately granted summary disposition in favor of Citizens because there was a sexual-molestation exclusion in Boyle’s insurance policy, and this Court affirmed. Doe v Citizens Ins Co, 287 Mich App 585, 586-588; 792 NW2d 80 (2010). Boyle subsequently filed for bankruptcy, resulting in an automatic stay of this action until Boyle’s discharge from bankruptcy in December 2009.

On July 23, 2010, after several months with no additional action by plaintiff’s attorneys, Woods filed a motion for fees and costs. Relying on MCR 3.916(D), Woods asserted that he was entitled to recover his expenses and costs, including attorney fees, from DHS in the amount of $20,720.79. Woods attached detailed billing statements to his motion. DHS opposed the motion, arguing that MCR 3.916(D) applied only in juvenile-delinquency and child-protective proceedings, and not in general tort litigation such as the instant case. DHS contended that the Superintendent of the Michigan Children’s Institute (“MCI”)—and not Woods—served as Hand’s guardian because Hand was a ward of the state. Alternatively, DHS argued that it could not be held responsible for paying Woods’s fees because (1) it was dismissed from the lawsuit more than two years earlier, (2) it never received notice of Woods’s appointment as guardian ad litem, (3) Woods was not appointed as Hand’s attorney, but merely as Hand’s guardian ad litem, and (4) Woods waited too long to file his motion for fees . . . . 

The Court's analysis of whether Hand's guardian ad litem was entitled to attorney fees and costs as a result of the representation followed:

Woods argues that he was entitled to compensation for the services he rendered as guardian ad litem and that the circuit court abused its discretion when it determined that DHS was not required to pay for his costs and expenses. We agree . . . .

Since Woods was appointed to act as Hand’s guardian ad litem, he was not responsible for the costs of the lawsuit. MCL 600.2415 provides:

Any person who brings an action as next of friend for an infant, or a person who is insane or otherwise mentally incompetent, shall be responsible for the costs of the suit. However, no person who defends a suit as guardian ad litem of an infant or otherwise incompetent person shall be responsible for the costs of the suit unless specifically charged by the court for some personal misconduct in the case. [Emphasis added.]

Similarly, MCR 2.201(E)(1)(c) provides:

If the minor or incompetent person does not have a conservator to represent the person as defendant, the action may not proceed until the court appoints a guardian ad litem, who is not responsible for the costs of the action unless, by reason of personal misconduct, he or she is specifically charged costs by the court. It is unnecessary to appoint a representative for a minor accused of a civil infraction. [Emphasis added.]

It is clear that Woods was not responsible for the costs of the case since MCL 600.2415 and MCR 2.201(E)(1)(c) clarify that a guardian ad litem is not responsible for the costs of the action. As further support for the fact that a guardian ad litem is not responsible for his costs, MCR 2.201(E)(3)(a) adds:

Except for costs and expenses awarded to the next friend or guardian ad litem or the represented party, a person appointed under this subrule may not receive money or property belonging to the minor or incompetent party or awarded to that party in the action, unless he or she gives security as the court directs. [Emphasis added.]

MCR 2.201(E)(3)(a) contemplates that a guardian ad litem will receive an award for his costs and expenses, which further indicates that Woods was not responsible for his own costs and expenses. Thus, Woods was entitled to receive his costs and expenses from another party. See MCL 600.2415; MCR 2.201(E)(1)(c) and (3)(a).

In addition, Woods was entitled to receive attorney fees as part of the costs and expenses he incurred as guardian ad litem. The phrase “costs and expenses” is not defined in MCR 2.201(E)(3)(a). We give an undefined term its ordinary meaning and consult a dictionary to determine the ordinary meaning, if necessary. See Haynes v Neshewat, 477 Mich 29, 36; 729 NW2d 488 (2007). The term “cost” is defined in Black’s Law Dictionary (10th ed) as “[t]he amount paid or charged for something; price or expenditure.” Black’s Law Dictionary (10th ed) defines “expense” as “[a]n expenditure of money, time, labor, or resources to accomplish a result; esp., a business expenditure chargeable against revenue for a specific period.” The term “expense” encompasses reasonable payment for the legal services rendered by Woods as guardian ad litem since Woods expended time and labor in order to provide legal services to Hand. See MCR 2.201(E)(3)(a). Therefore, Woods is entitled to payment for any costs that he incurred and for the legal services he rendered as guardian ad litem. Accordingly, the circuit court abused its discretion when it denied Woods’s motion for fees and costs after reconsideration of the issue. See MCR 2.201(E)(3)(a).

DHS is responsible for payment of Woods’s expenses and costs since Hand was a ward of the state of Michigan. MCL 600.2415 and MCR 2.201(E) do not clarify which party is responsible for payment of the costs and expenses of a guardian ad litem. However, the fact that DHS is responsible for payment of Woods’s expenses and costs is apparent from the fact that DHS was accountable for Hand’s care . . . .