In re KC Greenhouse Patio Apartments, LP

• Decision Date: 16 August 2012
• Docket Number: No. 01–12–00226–CV.,01–12–00226–CV.
• Citation: 445 S.W.3d 168
• Parties: In re KC GREENHOUSE PATIO APARTMENTS, LP, Relator.
• Court: Texas Court of Appeals

445 S.W.3d 168

In re KC GREENHOUSE PATIO APARTMENTS, LP, Relator.

No. 01–12–00226–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Aug. 16, 2012.

Bradley M. Bingham, Debra L. Bradberry, Bingham, Mann & House, Houston, TX, for Relator.

Beth Squires, Law Office of Beth Watkins, Philip G. Bernal, Ketterman, Rowland, & Westlund, San Antonio, TX, for Real Party in Interest.

Panel consists of Chief Justice RADACK and Justices HIGLEY and BROWN.

OPINION

HARVEY BROWN, Justice.

In this original proceeding arising out of a wrongful death lawsuit, KC Greenhouse Patio Apartments, LP challenges the trial court's order removing a minor child's mother, Shardae Redman, as the child's next friend and appointing the child's paternal grandfather, Kenneth Brooks, Sr., as next friend and guardian ad litem.¹ Because we conclude that the trial court exceeded its authority by removing Redman and appointing Kenneth Brooks Sr. as the child's next friend and guardian ad litem, we conditionally grant the petition for writ of mandamus.

Background

After Kenneth Brooks, Jr. was shot and killed in the parking lot of Greenhouse Patio Apartments, his estate, parents, and minor daughter sued Greenhouse for failure to keep the parking lot safe.² Kenneth Brooks Jr.'s daughter, Kendra Brooks, was represented in the lawsuit by her mother, Shardae Redman, as next friend. Redman was not married to Kenneth Brooks, Jr. at the time of his death.

Initially, Redman was also a plaintiff in the suit in her individual capacity, but plaintiffs' counsel dropped Redman as a plaintiff in an amended petition. On the same day plaintiffs' counsel amended the petition, he also moved to withdraw from representing Redman in her individual capacity and as Kendra's next friend, asserting that Redman refused to participate in the case's prosecution.

After Redman failed to respond to discovery directed to her and her daughter's claims, Greenhouse moved to dismiss Redman's claims, both individually and as Kendra's next friend. Plaintiffs then moved to remove Redman as Kendra's next friend and to appoint a guardian ad litem. After a hearing, the trial court appointed a guardian ad litem to “investigate whether a conflict exist[ed] as between Shardae Redman and the minor Kendra Brooks” and report his findings to the trial court. Greenhouse challenged that order in a petition for writ of mandamus, which this Court denied. In re KC Greenhouse Patio Apartments, LP, No. 01–11–00684–CV, 2011 WL 4507228 (Tex.App.-Houston [1st Dist.] Sept. 29, 2011, no pet.).

At a subsequent hearing, the appointed guardian ad litem, Rick Molina, testified that he had been unsuccessful in his attempts to communicate with Redman. He testified that he called a phone number provided for her and a woman answered the phone but, after he told her that he was an attorney, she hung up on him “at least half a dozen times.” At one point, the woman informed him that she would not speak with any attorney, then hung up the phone. Molina further testified that he had gone to Redman's home, knocked on her door, left his card, and asked her to call him, to no avail. His opinion was that Redman would not cooperate in the case in any respect. Although the record indicates that Redman received notice of the hearing, she was not subpoenaed and did not attend the hearing. After the hearing, the trial court entered an order removing Redman as Kendra's next friend and appointing Kenneth Brooks, Sr. (hereafter, “Brooks”), Kendra's paternal grandfather, as Kendra's “next friend/guardian ad litem” for purposes of this litigation. Greenhouse filed this petition for writ of mandamus challenging that order.

Standard of Review

Mandamus is an appropriate method for challenging the appointment of a guardian ad litem.³ See Tex.R. Civ. P. 173.7(a) ( “Any party may seek mandamus review of an order appointing a guardian ad litem or directing a guardian ad litem's participation in the litigation.”). We review an appointment of a guardian ad litem under an abuse of discretion standard. See Davenport v. Garcia, 834 S.W.2d 4, 24 (Tex.1992) ; McGough v. First Ct. of Appeals, 842 S.W.2d 637, 640 (Tex.1992) (orig. proceeding) (op. on reh'g). A trial court abuses its discretion when it issues an order it has no power to render or when it acts arbitrarily, capriciously, and without reference to guiding principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999) ; McGough, 842 S.W.2d at 640.

When construing rules of civil procedure, courts apply the same rules of construction that govern the interpretation of statutes. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex.2012) (citing In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 437 (Tex.2007) ). Thus, we first look to the plain language of the rule and construe it according to its plain or literal meaning. Id. (citing In re E.A., 287 S.W.3d 1, 5 (Tex.2009) ). We give the rules a liberal construction so as “to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.” Id. (quoting Tex.R. Civ. P. 1 ).

Removal of Redman and Appointment of Brooks as Kendra's Next Friend Under Rule 44

Because the trial court's order appointed Brooks as both next friend and guardian ad litem, we must determine if either appointment is authorized under the Rules of Civil Procedure. The trial court replaced Redman as Kendra's next friend on the ground that she appeared to the trial court to have an interest adverse to Kendra in light of Redman's refusal to cooperate in the prosecution of Kendra's claims and to respond to discovery.See Tex.R. Civ. P. 173.2(a)(1). Although Redman asserted claims as Kendra's next friend, Kendra was the actual claimant. See Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 795 (Tex.App.-Houston [1st Dist.] 2007, no pet.) ; see also Byrd v. Woodruff, 891 S.W.2d 689, 704 (Tex.App.-Dallas 1994, writ dism'd by agr.) (“The next friend is present in a representative capacity only, and the minor remains the real party in interest.”).

Greenhouse contends that rule 44 does not authorize the trial court to appoint Brooks as Kendra's “next friend” because Kendra has a legal guardian and this litigation is not the proper vehicle for replacing Redman as Kendra's legal guardian. We agree.

Rule 44 provides that a minor “who ha[s] no legal guardian may sue and be represented by [a] ‘next friend[.]’ ” Tex.R. Civ. P. 44. Kendra has a legal guardian: Redman. As Kendra's mother, Redman has “the right to represent [Kendra] in legal action and to make other decisions of substantial legal significance concerning [Kendra.]” Tex. Fam.Code Ann. § 151.001(a)(7) (West 2008). Rule 44 does not authorize a trial court to transfer that right from a minor's parent to a third party by unilaterally replacing the parent as the minor's “next friend” when a conflict of interest arises.

If a minor is represented by a guardian or next friend, rule 173 authorizes a trial court to appoint a guardian ad litem for a minor when (1) “the next friend or guardian appears to the court to have an interest adverse to the party” or (2) the parties agree to the appointment. Tex.R. Civ. P. 173.2(a)(1), (2). Thus, rule 173—not rule 44 —is the rule that grants a trial court authority to address conflicts of interest, and it does so through the appointment of a guardian ad litem, not the replacement of the next friend. See Tex.R. Civ. P. 44, 173; King v. Payne, 156 Tex. 105, 292 S.W.2d 331, 335 (1956) (stating that rule 173 provides for situation in which conflict of interest arises between minor and her guardian or next friend-“a contingency not covered by Rule 44 ”); see also King, 292 S.W.2d at 341–42 (J. Garwood, joined by J. Smith, dissenting) (“If we should, for example, assume Rule 173 not to exist in next friend cases, there would certainly be no express provision in the Rules for the conflict of interest situation, and where such a situation should actually arise, the court would be faced with the question of reading into Rule 44 a provision for a substitute next friend.”); Byrd, 891 S.W.2d at 705 (stating that rule 173 provides for contingency not covered by rule 44 : appearance, after suit is filed, of probable conflict between real plaintiff and next friend). Neither rule 44 nor rule 173 permits another person to sue as next friend for a minor who has a legal guardian or permits a court to replace a legal guardian with another person to act as next friend for purposes of pursuing a lawsuit on behalf of a minor.

In the trial court, plaintiffs relied on R.H. v. Smith, 339 S.W.3d 756 (Tex.App.-Dallas 2011, no pet.), to support their requested relief. But in R.H., the third party took action in the family court to transfer the right to represent the minor in litigation from the minor's parent to the grandparents—action that was not taken here. See id. at 759. In R.H. a minor's father and grandparents each sought separately to represent the child as “next friend” in a wrongful death lawsuit. Id. at 759–60. The grandparents challenged the authority of the attorney retained by the father to pursue the lawsuit.Id. The trial court held, and the court of appeals affirmed the holding, that the grandparents, rather than the father, had the exclusive legal right to represent the minor in the lawsuit because the family court had appointed the grandparents as the minor's joint managing conservators. Id. at 759, 764. Here, by contrast, Brooks has not gone to the family court to obtain any custodial or guardianship rights with respect to Kendra; absent a proper order transferring those rights to Brooks or another third party, those rights remain with Kendra's mother.

Because rule 44 did not authorize the trial court to remove Redman and appoint Brooks as Kendra's next friend under the circumstances of this case, the trial court could not rely on that rule as a basis for removing Redman and appointing Brooks as Kendra's next friend in this action.

Appointment of Brooks as Kendra's...