Opinion
No. 09-10-00032-CV
Submitted on February 4, 2010.
Opinion Delivered March 11, 2010.
Original Proceeding.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Theresa Richardson, as next friend of the minor plaintiff, petitions for a writ of mandamus to compel the district court to vacate an order appointing a guardian ad litem. See TEX. R. CIV. P. 173.7(a); TEX. R. APP. P. 52. Richardson denies she has an interest adverse to the minor plaintiff. See TEX. R. CIV. P. 173.2(a)(1).
The guardian ad litem filed a response in this Court. See TEX. R. CIV. P. 173.4(d). He argued, "This is a unique case. Despite the fact that the settling defendant does not object to the appointment of the guardian ad litem, and has agreed to pay the guardian ad litem fee, it is the plaintiffs who have filed this petition for writ of mandamus asking that the guardian ad litem be dismissed. One is left to wonder why."
The minor plaintiff was injured in a motor-vehicle accident that also injured other members of her family and killed her father. Suit was filed against Bridgestone/Firestone and Ford Motor Company in a district court in Orange County. Richardson, who was not involved in the accident, acted as next friend for the minor plaintiff.
Respondent, a district judge sitting in Montgomery County, was assigned as the pretrial judge for this and other similar cases. See TEX. R. JUD. ADMIN. 11.3, 11.7, 13. In 2003, the Orange County district court approved a partial settlement agreement in this case. The parties have now reached a confidential settlement agreement with the remaining defendant, and have asked respondent for approval of that agreement. Respondent appointed a guardian ad litem; the court also denied an agreed motion to reconsider the appointment. Relator then filed this petition for a writ of mandamus. She argues that a guardian ad litem is unnecessary and that Rule 173.2(a) of the Texas Rules of Civil Procedure prohibits the appointment. The settling defendant agrees the appointment is "neither appropriate nor permitted."
A minor who has no legal guardian may be represented in a lawsuit by a next friend. TEX. R. CIV. P. 44. The settlement of a lawsuit brought by a minor through a next friend is subject to the approval of the court. See id. "When minors sue, trial courts have the responsibility to protect the minor's best interest." Urbish v. The Honorable 127th Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex. 1986).
Rule 173 contemplates that a guardian ad litem will be appointed when the party's next friend "appears to have an interest adverse to the party because of the division of settlement proceeds." TEX. R. CIV. P. 173 cmt. 3. "The court must appoint a guardian ad litem for a party represented by a next friend or guardian only if: (1) the next friend or guardian appears to the court to have an interest adverse to the party, or (2) the parties agree." TEX. R. CIV. P. 173.2(a).
The guardian ad litem's role "is limited to determining whether a party's next friend or guardian has an interest adverse to the party that should be considered by the court under Rule 44." TEX. R. CIV. P. 173 cmt. 4. When, as in this case, an offer has been made to settle a minor's claim, "a guardian ad litem has the limited duty to determine and advise the court whether the settlement is in the party's best interest." TEX. R. CIV. P. 173.4(c). A guardian ad litem "acts as an officer and advisor to the court." TEX. R. CIV. P. 173.4(a). "In no event may a guardian ad litem supervise or supplant the next friend or undertake to represent the party while serving as guardian ad litem." Rule 173 cmt. 4.
Unless disqualified, a parent of the minor may serve as a next friend. See Urbish, 708 S.W.2d at 431-432 (mother could serve as next friend although father was managing conservator); Kennedy v. Mo. Pac. R.R. Co., 778 S.W.2d 552, 555 (Tex. App.-Beaumont 1989, writ denied); see also TEX. FAM. CODE § 151.001(a)(7) (Vernon 2008). When a parent appears as next friend for a minor who has sustained serious injuries requiring medical treatment, an adverse interest may arise. Generally, the claim for medical expenses incurred on behalf of the child belongs to the parent. See generally Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983). If an offer of settlement is made to the parent individually and in her role as next friend of the minor, for example, the next friend may appear "to the court to have an interest adverse" to the minor concerning the division of the settlement proceeds. See TEX. R. CIV. P. 173.2(a)(1). An appearance may arise even though the next friend has not acted adversely to the minor's interest.
"In the event that the next friend takes actions sufficiently adverse to a minor's interests, the next friend and her attorney may be replaced." Am. Gen. Fire Cas. Co. v. Vandewater, 907 S.W.2d 491, 493 n. 2 (Tex. 1995); see also Urbish, 708 S.W.2d at 431-32 (a trial court is "authorized to replace next friends and attorneys when it appears to the court that either has an interest adverse to the minor"). If a next friend takes an action as part of the settlement process that appears to the court to reflect an interest adverse to the minor, the trial court need not immediately replace the next friend. Instead, the court may appoint a guardian ad litem to determine and advise the court whether the next friend does have an interest adverse to the minor, and whether the settlement is in the best interest of the minor. The guardian ad litem's review assists the court in determining whether to approve the settlement of the minor's claim, or take other action pursuant to Rule 44. See TEX. R. CIV. P. 44; TEX. R. CIV. P. 173 cmts. 3, 4; see also Vandewater, 970 S.W.2d at 493 n. 2.
This case involves claims that have been settled by a confidential agreement. The agreement has not been presented to this Court in this mandamus proceeding. We do not know whether medical expenses for treatment of the child were incurred by the parent. Apparently, the guardian ad litem has not been provided with a copy of the settlement agreement. He asserts that he "assumed that the minor plaintiff's bodily injuries were serious since reference is made to annuity payments and a § 142 Trust in the prior settlement" presented to the Orange County district court. He also argues that "the next friend would be entitled to receive payments for the support of the child from any settlement proceeds that have gone into or may in the future go into such a trust." See TEX. PROP. CODE § 142.005(c)(2) (Vernon Supp. 2009).
Relator asserts that the next friend has no claim for damages, and cites her affidavit as support. The lack of an asserted claim does not mean a guardian ad litem appointment is prohibited. See TEX. R. CIV. P. 173.2(a)(1). Even if a claim has not been asserted, a parent's responsibilities, impacted by an injury to a child, continue. See TEX. FAM. CODE § 151.001 ("Rights and Duties of Parent"); see generally Sax, 648 S.W.2d at 666 (expenses); see also TEX. PROP. CODE § 142.005.
Additionally, the district court's concern apparently arises from circumstances surrounding the approval of the 2003 settlement, and preliminary actions concerning the current settlement. The guardian ad litem argues that "[t]he record shows that despite the appointment of [respondent] as the pretrial judge in this matter in 2001, in 2003, contrary to the plain language of the Rule 11 Administrative Order, plaintiffs had a settlement hearing regarding another defendant in this case before [the Orange County district court]. . . . Plaintiffs' counsel also attempted to schedule the pending settlement for hearing before the Orange County court as well." Relator denies the implications of the "entirely unfounded" allegations of the guardian ad litem and asserts that "[n]one of this discussion of what counsel knew" "has anything to do" with whether there is "a conflict of interest" between the minor and next friend.
Though an action may not be sufficient to justify removal of a next friend, and after review may be shown not to reflect an actual adverse interest, the language of Rule 173 authorizes the appointment when the next friend "appears to the court to have an interest adverse to the party[.]" TEX. R. CIV. P. 173.2(a)(1). Rule 173 gives the trial court some discretion, though that discretion is restricted. We cannot say the circumstances presented in this case provide no reason for the appointment of a guardian ad litem to determine and advise the trial court whether the next friend has an interest adverse to the minor, and to advise the court on whether the settlement is in the best interest of the minor. See TEX. R. CIV. P. 44, 173.4(b), 173.4(c).
The settling defendant argues the appointment is "neither appropriate nor permitted[,]" although the defendant notes it does not agree with "all the points raised" by relator. The settling defendant concludes by stating "it does not really care how this dispute is resolved over the size of the contingent fee to be paid to the plaintiff's attorneys. But it would be unfair to saddle [the defendant] with the expense of paying any fees the guardian ad litem might incur to resolve that dispute." We are confident the district court will direct the limited role of the guardian ad litem in conformance with Rule 173, and tax costs as appropriate. See TEX. R. CIV. P. 44(1), 173.
On the record presented, we do not see an abuse of discretion by the district court. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (a relator must show "the trial court clearly abused its discretion"). Accordingly, the petition for writ of mandamus is denied.
PETITION DENIED.