ACCEPTED 11-17-00012-cv ELEVENTH COURT OF APPEALS EASTLAND, TEXAS 6/23/2017 11:40 AM SHERRY WILLIAMSON CLERK

No. 11-17-00012-CV FILED IN IN THE 11th COURT OF APPEALS, EASTLAND, TEXAS 11th COURT OF APPEALS EASTLAND, TEXAS ____________________________________________________________________________________ 6/23/17 11:40:03 AM SHERRY WILLIAMSON Zoe Saari, Individually and as Representative of the Estate of Clerk

Jeffery Saari, and A/N/F to L.S., Josh Saari and Jayme Saari and All Other Potential Wrongful Death Beneficiaries Not Presently Named Herein, Appellants, v. Key Energy Services, Inc., Key Energy Pressure Pumping Services, LLC, Key Energy Services, LLC and Michael Walker and Rebecca Hoidahl,

Appellees. ___________________________________________________________________________________

KEY ENERGY SERVICES, INC., KEY ENERGY PRESSURE PUMPING SERVICES, LLC, KEY ENERGY SERVICES, LLC, AND MICHAEL WALKER’S SUR REPLY TO APPELLEES’ MOTION TO APPOINT GUARDIAN AD LITEM FOR MINOR L. S. ___________________________________________________________________________________

TO THE HONORABLE COURT OF APPEALS: Key Energy Services, Inc., Key Energy Pressure Pumping Services, LLC,

Key Energy Services, LLC, (“Key Entities”) and Michael Walker, Appellees, file

this their Sur Reply to Appellee’s Request for the Appointment of a Guardian ad Litem to represent the interests of L. S., a minor, as required by Texas Rule of Civil

Procedure 173.

1. Rule 173 requires the appointment of a guardian ad litem when the next friend

“appears” to have an interest adverse to that of a minor. TEX. R. CIV. P. 173.2.

The question before the Court then, is simply this: Does Zoe Saari appear to have

an interest adverse to her minor daughter, L.S.? 2. A settlement offer has been made. Because Zoe Saari and L.S. would divide any

recovery, whether by settlement or judgment, an ad litem will be necessary to

accomplish either. In other words, since Zoe Saari and L.S. claim pieces of the

same pie, an ad litem must be appointed to ensure that L.S. gets her fair share.

Furthermore, settlement may be in the best interest of Zoe Saari or her daughter,

but not both—thus, an ad litem should be appointed to ensure that the offer is fairly

evaluated with L.S.’s best interest in mind. TEX. R. CIV. P. 173.4(c) (“When an

offer has been made to settle the claim of a party represented by a next friend or

guardian, a guardian ad litem has the limited duty to determine and advise the court

whether the settlement is in the party’s best interest.”). 3. The conflict here, however, is deeper and more immediate—given the potential

that next friend Zoe Saari’s claims are barred by limitations, it may not be in L.S.’s

best interest to take the same position on appeal as Zoe. A guardian ad litem

should be appointed to determine and advise the court as to the existence and

potential consequences of this apparent divergence of interests. See TEX. R. CIV. P. 173.4(b) (“A guardian ad litem must determine and advise the court whether a

party’s next friend of guardian has an interest adverse to the party.”). 4. Appellees recognize that whether § 16.064 applies to bar the adult Appellants’

claims below is not yet before this court. However, as Appellants recognize, the

fact that Appellees can and will claim below that limitations bars the adult

Appellants’ claims creates a conflict of interest between Zoe Saari and the minor,

L.S. And despite Appellants’ accusations that Appellees are somehow “creating” a

conflict by raising the issue, Appellants have only their counsel to blame for the

divergence of their interests. Had counsel simply filed the case below in District

Court, rather than blatantly forum-shopping to avoid a 12-member jury panel,

limitations would not be an issue. 5. Appellants contend that, taken to its logical conclusion, Appellees’ argument might

result in counsel’s disqualification, but that is not the subject of the pending

motion. At this time, Appellees do not move for disqualification; rather, they seek

only the appointment of an ad litem to determine whether a conflict exists. If the

ad litem finds a conflict, he may very well suggest new counsel for L.S. to protect

her interests. But that is the duty of the ad litem—to evaluate the circumstances

and advise the Court so that the minor’s interests are protected. Because a conflict

“appears,” this Court should appoint an ad litem to ensure that L.S.’s interests are

protected. TEX. R. CIV. P. 173.2. THEREFORE, Appellees move this Court to appoint an ad litem for the

minor, L.S., and for such other and further relief to which they may be entitled.

Respectfully submitted, /s/ Brandy R. Manning Brandy R. Manning State Bar No. 24029703 [email protected] Pat Long-Weaver State Bar No. 12521975 [email protected] LONG-WEAVER, MANNING, ANTUS & ANTUS LLP 310 W. Wall Street, Ste. 705 Midland, Texas 79701 Phone: 432-242-0470 Fax: 844-287-8884 ATTORNEYS FOR APPELLEES (Key Entities)

/s/ Lyle Rathwell Lyle Rathwell State Bar Number 16562500 [email protected] Jason R. Grill State Bar Number 24002185 [email protected] STEPTOE & JOHNSON PLLC 10001 Woodloch Forest Dr., Suite 300 The Woodlands, Texas 77380 Phone: (281) 203-5700 Fax: (281) 203-5701 ATTORNEYS FOR APPELLEE WALKER

CERTIFICATE OF COMPLIANCE I certify that this Motion complies with the length and typeface requirements of the Texas Rules of Appellate Procedure, and that it contains 600 words according to Microsoft Word’s word count feature.

/s/ Brandy R. Manning Brandy R. Manning

CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing instrument was served on the following via electronic filing on the 23rd day of June, 2017:

Kevin B. Miller [email protected] LAW OFFICES OF MILLER & BICKLEIN 455 E. University, Ste. D-5 Odessa, TX 79762 Attorney for Plaintiffs and Intervenor, Mariah Saari

J. Stephen Dix [email protected] DIX & FORMAN, PC 2606 E. 10th St. Tucson, AZ 85716 Attorney for Intervenors

Glen G. Halsell [email protected] 620 North Grant, Suite 1100 Odessa, TX 79761 Attorney for Defendant Rebecca Johnson F/N/A Rebecca Hoidahl

R. Layne Rouse [email protected] SHAFER, DAVIS, O'LEARY & STOKER P.O. Box Drawer 1552 Odessa, Texas 79760 Attorney for Defendants Leonard and Alta Saari

/s/ Brandy R. Manning Brandy R. Manning