Sosa By and Through Grant v. Koshy

• Decision Date: 21 August 1997
• Docket Number: No. 01-94-00678-CV,01-94-00678-CV
• Citation: 961 S.W.2d 420
• Parties: Linda Michelle SOSA, a Minor, By and Through her Guardian Ad Litem, Joseph GRANT, Appellant, v. Saramma Abraham KOSHY, McDonald's Corporation, Gordon Miller, Individually, and McTex # 1, Inc., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 420

961 S.W.2d 420

Linda Michelle SOSA, a Minor, By and Through her Guardian Ad

Litem, Joseph GRANT, Appellant, v. Saramma Abraham KOSHY, McDonald's Corporation, Gordon

Miller, Individually, and McTex # 1, Inc., Appellees.

No. 01-94-00678-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 21, 1997.

Rehearing Overruled Nov. 6, 1997.

Edward P. Watt, Austin, for Appellant.

John B. Wallace, James D. Ebanks, Houston, for Appellees.

Before HEDGES, ANDELL and HUTSON-DUNN, ^* JJ.

OPINION

HEDGES, Justice.

This suit arises from an auto-pedestrian accident. The appellant, ten-year-old Michelle Sosa, was hit by a car while crossing a McDonald's parking lot. She sued McDonald's Corporation, McTex # 1, Inc., and Gordon Miller (collectively, McDonald's) and Saramma Abraham Koshy, the driver of the vehicle. A jury found that Sosa was 55% at fault for her own injuries, McDonald's Corporation was 40% at fault, McTex # 1, Inc. was 5% at fault, and the driver, Koshy, was 0% at fault. Based on this verdict, the trial court entered a take-nothing judgment in favor of the defendants. Sosa appeals challenging (1) several evidentiary rulings, and (2) the factual sufficiency of the evidence. We affirm.

JURISDICTION

Before we reach the merits of this case, we must first consider a challenge to our jurisdiction. In a cross-point of error, the appellees contend that because Sosa's guardian ad litem, Joseph Grant, has no standing to bring this appeal on Sosa's behalf, we have no jurisdiction to hear this case.

Standing is a component of subject matter jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993). It cannot be waived and may be raised for the first time on appeal. Id. Subject matter jurisdiction is essential to the authority of this Court to decide a case. Id. at 443. An opinion issued in an appeal brought by a party with no standing would be an advisory opinion. Id. at 444.

Joseph Grant, Sosa's guardian ad litem, was appointed in the trial court below pursuant to rule 173 of the Texas Rules of Civil Procedure. This rule authorizes the appointment of a guardian ad litem only when a minor is represented by a next friend or guardian who appears to the court to have an interest adverse to the minor. TEX.R. CIV. P. 173. When the conflict of interest no longer exists, the trial court should remove the guardian ad litem. Davenport v. Garcia, 834 S.W.2d 4, 24 (Tex.1992).

The appellees argue that there is no conflict between Sosa and her parents because the parents are no longer parties to this appeal. ¹ Therefore, the appellees argue, the ad litem no longer has the authority to prosecute the appeal on behalf of Sosa.

The term "ad litem" means "for the suit." Brownsville-Valley Reg'l Med. Ctr., Inc. v. Gamez, 894 S.W.2d 753, 756 (Tex.1995). A guardian ad litem's representation is limited to matters related to the suit for which he or she is appointed. Grunewald v. Technibilt Corp., 931 S.W.2d 593, 595 (Tex.App.--Dallas 1996, writ denied); Byrd v. Woodruff, 891 S.W.2d 689, 705 (Tex.App.--Dallas 1994, writ dism'd by agr.) The guardian ad litem should participate in the case to the extent necessary to adequately protect the minor's interest and has considerable latitude in determining what activities are necessary to that effort. Grunewald, 931 S.W.2d at 595; Byrd, 891 S.W.2d at 706. Typically, the guardian ad litem's duties and powers end when a final judgment is entered. Byrd, 891 S.W.2d at 710. When the judgment is no longer appealable, the minor is no longer a party to the action; therefore, the guardian ad litem no longer has authority to act for the minor. Id.; see Durham v. Barrow, 600 S.W.2d 756, 761 (Tex.1980).

A guardian ad litem can: (1) prosecute an appeal from the trial court in which the guardian was appointed; (2) remove, under the proper circumstances, a suit to federal court from state court; and (3) initiate an extraordinary proceeding, such as a writ of mandamus or prohibition, on behalf of a minor whom the guardian was appointed to represent. Grunewald, 931 S.W.2d at 595; Pleasant Hills Children's Home of the Assemblies of God, Inc. v. Nida, 596 S.W.2d 947, 951 (Tex.Civ.App.--Fort Worth 1980, no writ).

In McGough v. First Court of Appeals, 842 S.W.2d 637, 639 (Tex.1992), the trial court appointed a guardian ad litem for the minor before the trial. Before a jury verdict was reached, the parties reached a settlement agreement, a judgment was entered, and the guardian ad litem was dismissed. Id. The trial court then appointed a new guardian ad litem to represent the minor in a post-judgment mandamus proceeding and any appeal from its judgment. Id. at 640. The supreme court approved the appointment of the second ad litem noting that a guardian ad litem may have usefulness for all stages of a case, not just the trial. Id. In McGough, there were continuing conflicts between the minor and her grandparents. Id. Specifically, the grandparents had a personal interest in handling the minor's settlement fund, receiving compensation for their services as managing conservators, and in the minor's inheritance should she predecease them. Id.

Similarly, in this case there are continuing potential conflicts between Sosa and her parents. The parents have an interest in managing any funds she recovers. They could also attempt, even post-judgment, to settle their own claims against the appellees to the detriment of Sosa. Until there is a final, nonappealable judgment, the guardian ad litem continues to represent the best interests of the minor.

We conclude that Joseph Grant has the power to prosecute this appeal on behalf of Sosa. We overrule the appellees' cross-point of error.

BACKGROUND

One day after school, Sosa and her mother drove to McDonald's for supper. After ordering from the drive-thru, Sosa decided that she wanted some french fries. Sosa went inside, ordered and paid for her fries, and was returning to her mother's car when she was hit by Koshy, a McDonald's employee who was on her way home. Sosa was knocked to the ground and dragged by the car for several feet. She was life-flighted to Hermann Hospital, where she stayed for three days. She generally recovered but continues to have a few lingering effects.

EVIDENTIARY RULINGS

I. Hearsay

A. Statements by unknown eyewitnesses

In point of error two, Sosa contends that the trial court erred when it admitted hearsay statements of eyewitnesses through the testimony of Pasadena Police Officer Steven Null. Officer Null, who investigated the accident at the scene, was offered by the defendants as an expert on accident reconstruction. He testified that he based his opinion about how the accident occurred, in part, on statements that he took from unnamed witnesses at the scene of the accident. Sosa argues that the statements of these unnamed witnesses are hearsay and that the trial court erred by allowing Officer Null to testify about the statements. In particular, Sosa points to three instances in which Officer Null referred to comments made by third parties. We will address each statement individually.

Q: Okay. And in determining where the child started off, at the door or inside the store, and sort of the route that she took to get to the point where the collision occurred, what factual information were you relying on?

Officer Null: There was a man in this vehicle here that was waiting for food to be brought to him, saw the little girl--saw basically the whole accident; and the mother, when I talked to her. This lady here, if I remember, she--the driver of this car--really didn't know where the little girl came from. She just appeared. I believe there was some other witnesses I talked to just in the general area. And that's how I determined how she approached in the parking lot.

Although Sosa later obtained a running hearsay objection to all of Null's testimony about third party comments, the above-referenced portion of Null's videotaped deposition was played to the jury before Sosa raised her hearsay objection. Sosa waived her complaint about this testimony by not making a timely objection. TEX.R.APP. P. 52(a).

Sosa also complains about the following testimony by Officer Null:

Question: All right. Were you able to identify, from talking to the witnesses that had seen the accident or from the facts themselves, whether the child was running, walking or anything in between.

Officer Null: The witnesses said that the child just ran from the sidewalk into the road--into the driveway.

Question: Tell us whatever the facts were about where the child was going when the accident happened.

Officer Null: Okay. Well, it was suggested that--or what I believe happened was that the child--when it came out of the store with whatever product she had obtained in the store--I don't recall what it is--when it was--her mother was waiting at the car. I think she was just trying to return to her mother's car.

Again, the above-referenced excerpt from Officer Null's videotaped deposition was played to the jury before Sosa obtained a running hearsay objection. Therefore, her complaint is waived. TEX.R.APP. P. 52(a).

Sosa's last hearsay complaint involves the following exchange:

Question: Now you say that there's no indication that the driver was using excessive, you're basing that primarily on the lack of skid marks, correct?

Officer Null: No, sir. I mean, from the injuries received, the no skid marks--that's one thing--that's basically the two things I really looked at there. Also, the witnesses that I talked to--no one indicated that she was just on the accelerator or really driving fast. So there was nothing really present there to indicate to me that she was unreasonable in the speed that she was traveling in that parking lot. And that's the reason it's not included in my report.

Question: Do you recall anyone else specifically that you asked about the speed?

Officer Null: No, sir. there--there were several people at the scene I...