ACCEPTED 11-17-00012-cv ELEVENTH COURT OF APPEALS EASTLAND, TEXAS 6/20/2017 3:01 PM SHERRY WILLIAMSON CLERK

No. 11-17-00012-CV FILED IN IN THE 11th COURT OF APPEALS, EASTLAND, TEXAS 11th COURT OF APPEALS EASTLAND, TEXAS ____________________________________________________________________________________ 6/20/17 3:01:13 PM 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 REPLY TO APPELLANTS’ RESPONSE 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 Reply to Appellants’ Response to Appellees’ Motion 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. The court is required to appoint a guardian ad litem for a person such as L. S.

when the next friend appears to the court to have an interest adverse to the party.

TRCP 173.2. (a) (1).

2. The question is not whether the Appellant claims there is no conflict; the

question is whether it appears to the court that the next friend or guardian has an

interest adverse to the subject party. TRCP 173.2(a)(1).

3. If the court finds any suggestion of conflict, it must appoint an ad litem. It is

the guardian ad litem’s duty to investigate and report to the court whether the ad

litem believes that the next friend has an interest adverse to the minor. TRCP 173.4

(b).

4. Here, an offer of settlement has been made. When such a settlement is

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

court concerning the offer, and this power can extend to participating in mediation

or similar proceeding to attempt to reach a settlement. TRCP 173.4. (c) and (d).

5. Appellees expressly deny liability. In the unlikely event there is any liability

on the part of the Appellees in this action and any recovery is allowed by a court

against the Appellees, it is likely that both Zoe Saari and L. S. will urge they are

entitled to some form of recovery. Their interests conflict. See Ford Motor Co. v. Garcia, 363 S.W. 3d 573 (Tex. 2012). This is not the situation presented in Ford

Motor Co. v. Stewart, Cox & Hatcher, 390 S.W. 3d 294 (Tex. 2013), (cited by

Appellants) where the next friend was not seeking any damages on her own account.

6. The Hatcher case is instructive. In Hatcher, the mother testified that she was

not involved in the accident, she was not asserting any claims in the lawsuit on her

own behalf, she was not an heir or representative of the estate of the deceased, she

had no financial interest in that estate's recovery, and she understood and agreed that

she had no right to the proceeds of any settlement. Id. at 298. Here, Zoe Saari claims

damages as a wrongful death beneficiary as well as executor of the decedent’s estate.

7. Clearly, due to the recoveries sought, the interests of Plaintiff Zoe Saari, in

her capacity as wife, conflict with the interests of the minor daughter, L.S.

8. In addition, and critical to the court’s consideration of this case, the minor’s

interest in the outcome on appeal diverges from that of the next friend. If Appellees

prevail, the next friend’s claims (and those of the other adult Appellants) are

potentially barred by limitations—Appellees will contend that CPRC § 16.064 does

not toll the adult Appellants’ claims. Because L.S. is a minor, of course, limitations

are tolled in any event, which would leave the minor as the only potential beneficiary

of any judgment if the adult Appellants’ claims are barred. In contrast, the next

friend needs Appellants to prevail to ensure the survival of her claims. Given the

divergence of the minor’s interest from that of the other Appellants, appointment of an ad litem is essential to protecting the minor’s interest, regardless of whether the

parties reach a settlement agreement.

8. If the dismissal of the County Court at Law case is affirmed, the claims of all

adult claimants in this case are potentially barred. The claims of the minor, until she

is emancipated, are tolled. It is possibly in the minor’s best interest to contend the

adult claims, including Zoe Saari’s, are barred.

9. As competing claimants, it is in the best interest of the minor to have a

guardian ad litem to protect her interests when they are adverse to that of the next

friend. Appellees ask this Court to appoint a guardian ad litem for the minor L.S.,

to investigate and report to the Court whether a conflict exists, and to take such

further action as may be necessary to protect the minor’s interests.

Therefore, Key Energy Services, Inc., Key Energy Pressure Pumping

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

request that the court grant this motion and issue an order appointing a guardian ad

litem to represent the interests of L.S. in this action.

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 772 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 20th 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