in Re KC Greenhouse Patio Apartments. LP

Opinion issued August 16, 2012

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00226-CV
———————————
IN RE KC GREENHOUSE PATIO APARTMENTS, LP, Relator

Original Proceeding on Petition for Writ of Mandamus

DISSENTING OPINION

I respectfully dissent. Because I do not think the trial court abused its

discretion in removing the minor child’s mother, Shardae Redman, as the child’s

next friend and appointing the paternal grandfather, Kenneth Brooks Sr., as next

friend and guardian ad litem, I would deny the petition for writ of mandamus.

Mandamus relief is available only if the court clearly abused its discretion

and the party has no remedy by appeal. In re Sw. Bell Tel. Co., 35 S.W.3d 602,
605 (Tex. 2000). A trial court abuses its discretion if it reaches a decision so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if

it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt.,

L.P., 164 S.W.3d 379, 382 (Tex. 2005). Merely because a trial court may decide a

matter within its discretion in a different manner than an appellate court would in a

similar circumstance does not demonstrate that an abuse of discretion has occurred.

In re Fort Worth Children’s Hosp., 100 S.W.3d 582, 590 (Tex. App.—Fort Worth

2003, orig. proceeding).

Here, the trial court appointed an ad litem to explore whether the mother had

an adverse interest to that of her child after the mother—who had the sole power to

make legal decisions for the child—refused to respond either to the court or to the

child’s lawyer for more than a year. The ad litem, after a number of attempts to

contact the mother—who either hung up on him or, in one instance, before hanging

up the phone, announced that she would not talk to any attorney—issued a report

advising the court of the ad litem’s conclusion that the mother had an adverse

interest to that of the child. The court held a hearing on the report at which it

questioned the ad litem and the attorneys for both parties. Ultimately, based on the

foregoing, it found that the mother appeared to have an adverse interest to that of

her child and appointed the grandfather to act as next friend and guardian ad litem.

In making its decision, the trial court initiated and pursued a thorough and

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thoughtful process. While some might not agree with its decision, the result does

not rise to a clear abuse of discretion.

In Texas Employers Insurance Corporation v. Keenom, we addressed the

appellant’s contention that the trial court erred in appointing an unnecessary

attorney ad litem to represent the minor. 716 S.W.2d 59, 66 (Tex. App.—Houston

[1st Dist.] 1986, writ ref’d n.r.e.). Agreeing with the appellant that the proper test

in the decision to appoint a guardian ad litem is whether there is an adverse interest

or whether an adverse interest is likely to arise—a decision within the trial court’s

discretionary powers—we stated that the relator or appellant must show a clear

abuse of discretion to defeat the appointment. Id. at 67. We observed that,

although the respective attorneys presented their allegation supporting and refuting

the necessity for the appointment of an ad litem, there was no sworn testimony

pertinent to a present or potential adverse interest between the next friend and the

minor. Id. Nevertheless, we held that appellant had not carried its heavy burden to

prove an abuse of discretion by the court. Id.

Here, not only do we have the arguments of the respective attorneys at the

hearing, but also the report and testimony of the ad litem finding the appearance of

an adverse interest and recommending the removal of the mother as the minor’s

next friend. Based on the record before us, there is much stronger evidence here

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than in Keenom to support the conclusion that the trial court did not abuse its

discretion in appointing Brooks as the ad litem.

The majority discusses extensively the constitutional dimensions of a

parent’s right to make decisions concerning their child’s care, custody, and control.

I have no argument with the discussion. Nor do I address it because it sheds no

light on the issue before us, which is a narrow one: Did the court abuse its

discretion in the application of the provisions of Rule 173 in the instant situation?

Rule 173 of the Rules of Civil Procedure provides that a court may appoint a

guardian ad litem for a party represented by a next friend or guardian when “the

next friend or guardian appears to the court to have an interest adverse to the

party.” TEX. R. CIV. P. 173.1(a)(1). As the majority correctly observes, the Texas

Supreme Court has not defined “adverse interest.” A plain reading of the statute,

however, reveals that the statute does not provide that the adverse interest must be

readily ascertainable. There simply has to be an appearance of an adverse interest.

See id. Moreover, courts have held that the conflict need not be an actual conflict.

The potential for conflict during trial or settlement negotiations also authorizes the

appointment of a guardian ad litem. Owens v. Perez, 158 S.W.3d 96, 111 (Tex.

App.—Corpus Christi 2005, no pet.).

The majority recites a number of common instances in which courts have

found the guardian to have an adverse interest to that of the party. While most of

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these involve the division of proceeds arising out of litigation when both the

guardian and the minor have an interest in the proceeds, the rule is not limited to

such circumstances. The majority places emphasis on Note 3 in the Comments to

Rule 173, which states that “the rule contemplates that a guardian ad litem will be

appointed when a party’s next friend or guardian appears to have an interest

adverse . . . because of the division of settlement proceeds.” TEX. R. CIV. P. 173

cmt. 3. I do not read Comment 3 as limiting the definition of adverse interest. In

point of fact, upon reading the entire comment, an argument could be made that the

purpose of the comment is to describe the limited role of the ad litem in the

division of the proceeds; it is not to limit the appointment of the ad litem to that

sole situation alone.

In Gibson v. Blanton, this Court also considered the application of the

provisions of Rule 173 regarding the appointment of an ad litem to replace the

father of the minor. 483 S.W.2d 372, 373 (Tex. Civ. App.—Houston [1st Dist.]

1972, orig. proceeding). There, the father, who had instituted a suit for damages

individually and as next friend for his minor son, brought an original proceeding

for a writ of mandamus to require the trial court to grant the father’s motion for a

nonsuit filed in his capacity as next friend. Id. The trial court, after a hearing on

the motion, had denied the motion. Id. Finding the appearance of a conflict

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between the interests of the father and his son, the trial court had appointed an ad

litem to replace the father as next friend of the minor. Id.

In denying the mandamus, this Court commented that “it is well settled that

when a suit is instituted in behalf of minors by [a] next friend, the minors, and not

the next friend, are the real plaintiffs.” Id. at 374. We then held that, “when it

‘appears to the court’ that there is a conflict between the interests of the minor and

those of his next friend, it is the duty of the [trial] court to appoint a guardian ad

litem.” Id. It is also the court’s duty to make the appointment before acting on a

motion for nonsuit filed by the next friend. Id. We did not elaborate further on the

conflict, seemingly finding the record sufficiently showed an appearance of a

conflict of interest between the minor and the next friend based solely on the

father’s attempt to nonsuit the minor son’s claim. See id.

In addition, Munoz v. II JAZ Inc., although not a case interpreting Rule 173,

is analogous to Gibson and is instructive in this case. 863 S.W.2d. 207 (Tex.

App.—Houston [14th Dist.] 1993, no writ). The ruling in Munoz is based on the

provisions of former Section 12.04(7) of the Family Code, now recodified as

Section 151.001 of the Family Code, which is the statute granting the parents of a

minor the power to make decisions of substantial legal significance concerning the

child. See TEX. FAM. CODE ANN. § 151.001(a)(7) (Vernon 2008).

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 In Munoz, suit was filed against an amusement park on behalf of an injured

minor. 863 S.W.2d. at 208. The trial court granted summary judgment in favor of

the amusement park. Id. Although the summary judgment was ultimately reversed

based on the invalidity of a waiver signed by the minor’s older sister upon entry to

the park, the Munoz court also took the opportunity to examine whether the power

given under the Family Code to make legal decisions regarding a minor allows a

parent to waive a child’s right to sue for personal injuries. Id. at 209. Finding that

the question had not been decided, the court held that former Family Code section

12.04(7) did not give parents the power to waive a child’s cause of action for

personal injuries. Id. The court based its decision on “what our supreme court has

described as ‘a strong, long-standing policy of this state to protect the interests of

its children.’” Id. at 210 (quoting Williams v. Patton, 821 S.W.2d 141,145 (Tex.

1991)).

Finally, I comment briefly on the argument addressed by the majority

regarding whether the trial court abused its discretion by appointing the

grandfather in the dual role of next friend and guardian ad litem. Again, the

majority states that the guardian’s role is very limited, and no reason exists for the

guardian ad litem to participate in the litigation except to the limited extent that it

may bear on the division of settlement proceeds. As explained previously, while a

guardian ad litem is commonly appointed to assist in the division of settlement

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proceeds, Rule 173 does not limit its application to such a role. In fact, during the

hearing on appointment of the grandfather in this case, the court envisioned that,

should the litigation result in the award of monetary damages, the court would

appoint yet another ad litem to participate in that process.

The majority also asserts that the court’s order does not place the

grandfather in any of the roles Rule 173 contemplates. However, Section

173.4(d)(3) of the Rule provides that the guardian ad litem must not participate in

discovery, trial or any other part of the litigation unless:

(A) further participation is necessary to protect the party’s interest that is
adverse to the next friend’s or guardian’s, and

(B) the participation is directed by the court in a written order stating
sufficient reasons.
TEX. R. CIV. P. 173.4(d)(3).

A trial court has broad discretion in managing the proceedings before it.

Thus, the court is perfectly capable of defining and managing the dual role of the

grandfather as next friend and as ad litem.

Finally, the majority cites Land Rover U.K., Ltd. v. Hinojosa as support for

its conclusion that the guardian ad litem acts as an officer of the court and is, thus,

prohibited from taking on the role of the minor’s attorney. Here, the grandfather is

not appointed as the minor’s attorney. Both the minor and the grandfather are

already represented by counsel.

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 Therefore, based on the above discussion, I do not find that the trial court’s

replacement of the mother as the minor’s guardian ad litem and appointment of the

grandfather as next friend and guardian ad litem, for the limited purpose of

pursuing the instant litigation, to be a clear abuse of discretion. We do not know

why the mother refused any communication for more than a year with the child’s

attorney or the trial court. As the majority correctly states, it is not ours to

speculate on her motivation. Nevertheless, the practical result of the mother’s

actions was to effectively remove the minor from the lawsuit and to waive the

child’s cause of action.

As discussed, our Court has found that nonsuiting a minor’s claim indicates

an interest adverse to that of the minor. See Gibson, 483 S.W.2d at 374. The

Fourteenth Court of Appeals, in an analogous case, has held that, under the Family

Code, the power to make legal decisions for the child does not give the parents the

right to waive a child’s right to sue for personal injuries. See Munoz, 863 S.W.2d.

at 209. Also, the Texas Supreme Court has held that, when deciding whether to

replace a next friend, trial courts should consider only the minor’s best interest; the

interests of the next friend are irrelevant. Urbish v. The Honorable 127th Judicial

District Court, 708 S.W.2d 429, 432 (Tex. 1986). Thus, whatever the mother’s

motivation was in refusing to participate in the lawsuit is irrelevant. Furthermore,

her total lack of cooperation, at the very least, meets the appearance of an interest

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adverse to that of her child. That appearance of an adverse interest is dramatically

accentuated by the fact that it is the defendant, which has a strong interest in

eliminating the most sympathetic plaintiff from the lawsuit, bringing this petition

for writ of mandamus and seeking to reverse the appointment of the grandfather as

the child’s next friend. I would deny the petition for writ of mandamus and allow

the trial court to proceed with its management of the litigation.

Laura Carter Higley
Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Justice Higley, dissenting.

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