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June 2013 TBF Practice Tip

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The Answer (Part 2): Again, you have the Plaintiff's Original Petition. Jurisdiction and venue look good. However, father has sued individually and as next friend of his minor daughter. Both father and minor daughter were injured in an ATV accident caused by a defect in the ATV. Minor daughter was seriously injured while father only received minor injuries requiring no significant medical treatment, but resulting in loss of wages.

The Unfriendly Next Friend

Conflicts of interest of a Next Friend are often overlooked in an Answer. However, the answer is a great place to put your opponent on notice that a conflict is apparent and must be addressed before moving forward with the suit. But why is there a conflict of interest?

When a parent sues on his own behalf and also as a next friend of a minor child for injuries arising out of the same occurrence, a conflict of interest between the parties often arises because their interests in the suit diverge. See Ford Motor Co. v. Steward, Cox and Hatcher, P.C., 390 S.W.3d 294, 297-98 (Tex. 2013); TXI Transp. Co. v. Hughes, 224 S.W.3d 870, 920-21 (Tex. App.-Fort Worth 2007), rev'd on other grounds, 306 S.W.3d 230 (Tex. 2010); Phillips Petroleum Co. v. Welch, 702 S.W.2d 672, 674 (Tex. App.-Houston [14th Dist] 1985, writ ref'd n.r.e.). As such, a trial court can act to protect a minor's best interest through the appointment of a guardian ad litem. Tex. R. Civ. P. 173.2(a)(1).

Take this opportunity to point out that the father has a conflict of interest with his minor daughter. The following is an example:

Pursuant to Texas Rule of Civil Procedure 93, Defendant specifically denies that Plaintiff Father can bring this suit on behalf of Plaintiff Daughter, a minor. Plaintiff Father is seeking damages for his individual claims arising from the same accident as that in which he purports to represent Plaintiff Daughter, a minor. Therefore, Plaintiff Father has a conflict of interest and cannot serve a next friend of Plaintiff Daughter, a minor. The Court should remove Plaintiff Father as Next Friend of Plaintiff Daughter, a minor, and appoint a guardian ad litem. Tex. R. Civ. P. 173.2

This will properly bring the issue to the Court's attention. It will also allow you to efficiently move the Court to appoint a guardian ad litem should you need to take immediate action in the case, such as settlement with the minor daughter.

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The Bassett Firm

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