Zoe Saari, Individually and as Representative of the Estate of Jeffery Saari and A/N/F to L.S., Josh Saari, and Jayme Saari, and All Other Potential Wrongful Death Beneficiaries Not Presently Named Herein v. Key Energy Services, Inc., Key Energy Pressure Pumping Services, LLC, Key Energy Services, LLC, and Michael Walker and Rebecca Hoidahl ( 2017 )


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  •                                                                                             ACCEPTED
    11-17-00012-cv
    ELEVENTH COURT OF APPEALS
    EASTLAND, TEXAS
    6/20/2017 3:01 PM
    SHERRY WILLIAMSON
    CLERK
    No. 11-17-00012-CV
    FILED IN
    IN THE 11th COURT OF APPEALS, EASTLAND, TEXAS          11th COURT   OF APPEALS
    EASTLAND, TEXAS
    ____________________________________________________________________________________
    6/20/17 3:01:13 PM
    SHERRY WILLIAMSON
    Zoe Saari, Individually and as Representative of the Estate of         Clerk
    Jeffery Saari, and A/N/F to L.S., Josh Saari and Jayme Saari and
    All Other Potential Wrongful Death Beneficiaries Not Presently
    Named Herein,
    Appellants,
    v.
    Key Energy Services, Inc., Key Energy Pressure Pumping
    Services, LLC, Key Energy Services, LLC and Michael Walker
    and Rebecca Hoidahl,
    Appellees.
    ___________________________________________________________________________________
    KEY ENERGY SERVICES, INC., KEY ENERGY
    PRESSURE PUMPING SERVICES, LLC, KEY ENERGY
    SERVICES, LLC, AND MICHAEL WALKER’S REPLY
    TO APPELLANTS’ RESPONSE TO APPELLEES’
    MOTION TO APPOINT GUARDIAN AD LITEM FOR
    MINOR L. S.
    ___________________________________________________________________________________
    TO THE HONORABLE COURT OF APPEALS:
    Key Energy Services, Inc., Key Energy Pressure Pumping Services, LLC, Key
    Energy Services, LLC, (“Key Entities”) and Michael Walker, Appellees, file this
    their Reply to Appellants’ Response to Appellees’ Motion for the appointment of a
    guardian ad litem to represent the interests of L. S., a minor, as required by Texas
    Rule of Civil Procedure 173.
    1.     The court is required to appoint a guardian ad litem for a person such as L. S.
    when the next friend appears to the court to have an interest adverse to the party.
    TRCP 173.2. (a) (1).
    2.     The question is not whether the Appellant claims there is no conflict; the
    question is whether it appears to the court that the next friend or guardian has an
    interest adverse to the subject party. TRCP 173.2(a)(1).
    3.     If the court finds any suggestion of conflict, it must appoint an ad litem. It is
    the guardian ad litem’s duty to investigate and report to the court whether the ad
    litem believes that the next friend has an interest adverse to the minor. TRCP 173.4
    (b).
    4.     Here, an offer of settlement has been made. When such a settlement is
    proposed, the guardian ad litem has the limited duty to determine and advise the
    court concerning the offer, and this power can extend to participating in mediation
    or similar proceeding to attempt to reach a settlement. TRCP 173.4. (c) and (d).
    5.     Appellees expressly deny liability. In the unlikely event there is any liability
    on the part of the Appellees in this action and any recovery is allowed by a court
    against the Appellees, it is likely that both Zoe Saari and L. S. will urge they are
    entitled to some form of recovery. Their interests conflict. See Ford Motor Co. v.
    Garcia, 
    363 S.W.3d 573
    (Tex. 2012). This is not the situation presented in Ford
    Motor Co. v. Stewart, Cox & Hatcher, 
    390 S.W.3d 294
    (Tex. 2013), (cited by
    Appellants) where the next friend was not seeking any damages on her own account.
    6.    The Hatcher case is instructive. In Hatcher, the mother testified that she was
    not involved in the accident, she was not asserting any claims in the lawsuit on her
    own behalf, she was not an heir or representative of the estate of the deceased, she
    had no financial interest in that estate's recovery, and she understood and agreed that
    she had no right to the proceeds of any settlement. 
    Id. at 298.
    Here, Zoe Saari claims
    damages as a wrongful death beneficiary as well as executor of the decedent’s estate.
    7.    Clearly, due to the recoveries sought, the interests of Plaintiff Zoe Saari, in
    her capacity as wife, conflict with the interests of the minor daughter, L.S.
    8.    In addition, and critical to the court’s consideration of this case, the minor’s
    interest in the outcome on appeal diverges from that of the next friend. If Appellees
    prevail, the next friend’s claims (and those of the other adult Appellants) are
    potentially barred by limitations—Appellees will contend that CPRC § 16.064 does
    not toll the adult Appellants’ claims. Because L.S. is a minor, of course, limitations
    are tolled in any event, which would leave the minor as the only potential beneficiary
    of any judgment if the adult Appellants’ claims are barred. In contrast, the next
    friend needs Appellants to prevail to ensure the survival of her claims. Given the
    divergence of the minor’s interest from that of the other Appellants, appointment of
    an ad litem is essential to protecting the minor’s interest, regardless of whether the
    parties reach a settlement agreement.
    8.    If the dismissal of the County Court at Law case is affirmed, the claims of all
    adult claimants in this case are potentially barred. The claims of the minor, until she
    is emancipated, are tolled. It is possibly in the minor’s best interest to contend the
    adult claims, including Zoe Saari’s, are barred.
    9.    As competing claimants, it is in the best interest of the minor to have a
    guardian ad litem to protect her interests when they are adverse to that of the next
    friend. Appellees ask this Court to appoint a guardian ad litem for the minor L.S.,
    to investigate and report to the Court whether a conflict exists, and to take such
    further action as may be necessary to protect the minor’s interests.
    Therefore, Key Energy Services, Inc., Key Energy Pressure Pumping
    Services, LLC, Key Energy Services, LLC, (“Key Entities”) and Michael Walker
    request that the court grant this motion and issue an order appointing a guardian ad
    litem to represent the interests of L.S. in this action.
    Respectfully submitted,
    /s/ Brandy R. Manning
    Brandy R. Manning
    State Bar No. 24029703
    bmanning@wmafirm.com
    Pat Long-Weaver
    State Bar No. 12521975
    plweaver@wmafirm.com
    LONG-WEAVER, MANNING,
    ANTUS & ANTUS LLP
    310 W. Wall Street, Ste. 705
    Midland, Texas 79701
    Phone: 432-242-0470
    Fax: 844-287-8884
    ATTORNEYS FOR APPELLEES (Key
    Entities)
    /s/ Lyle Rathwell
    Lyle Rathwell
    State Bar Number 16562500
    Lyle.Rathwell@steptoe-johnson.com
    Jason R. Grill
    State Bar Number 24002185
    Jason.Grill@steptoe-johnson.com
    STEPTOE & JOHNSON PLLC
    10001 Woodloch Forest Dr., Suite 300
    The Woodlands, Texas 77380
    Phone: (281) 203-5700
    Fax:     (281) 203-5701
    ATTORNEYS FOR APPELLEE WALKER
    CERTIFICATE OF COMPLIANCE
    I certify that this Motion complies with the length and typeface requirements
    of the Texas Rules of Appellate Procedure, and that it contains 772 words according
    to Microsoft Word’s word count feature.
    /s/ Brandy R. Manning
    Brandy R. Manning
    CERTIFICATE OF SERVICE
    The undersigned certifies that a copy of the foregoing instrument was served
    on the following via electronic filing on the 20th day of June, 2017:
    Kevin B. Miller
    kevin@mblaw.org
    LAW OFFICES OF MILLER & BICKLEIN
    455 E. University, Ste. D-5
    Odessa, TX 79762
    Attorney for Plaintiffs and Intervenor,
    Mariah Saari
    J. Stephen Dix
    Carmenh@dixforman.com
    DIX & FORMAN, PC
    2606 E. 10th St.
    Tucson, AZ 85716
    Attorney for Intervenors
    Glen G. Halsell
    Glen.halsell@gmail.com
    620 North Grant, Suite 1100
    Odessa, TX 79761
    Attorney for Defendant Rebecca Johnson
    F/N/A Rebecca Hoidahl
    R. Layne Rouse
    lrouse@shaferfirm.com
    SHAFER, DAVIS, O'LEARY & STOKER
    P.O. Box Drawer 1552
    Odessa, Texas 79760
    Attorney for Defendants
    Leonard and Alta Saari
    /s/ Brandy R. Manning
    Brandy R. Manning
    

Document Info

Docket Number: 11-17-00012-CV

Filed Date: 6/20/2017

Precedential Status: Precedential

Modified Date: 11/17/2017