                                                                                            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
                                       bmanning@wmafirm.com
                                       Pat Long-Weaver
                                       State Bar No. 12521975
                                       plweaver@wmafirm.com
                                       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
                                       Lyle.Rathwell@steptoe-johnson.com
                                       Jason R. Grill
                                       State Bar Number 24002185
                                       Jason.Grill@steptoe-johnson.com
                                       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
kevin@mblaw.org
LAW OFFICES OF MILLER & BICKLEIN
455 E. University, Ste. D-5
Odessa, TX 79762
Attorney for Plaintiffs and Intervenor,
Mariah Saari

J. Stephen Dix
Carmenh@dixforman.com
DIX & FORMAN, PC
2606 E. 10th St.
Tucson, AZ 85716
Attorney for Intervenors

Glen G. Halsell
Glen.halsell@gmail.com
620 North Grant, Suite 1100
Odessa, TX 79761
Attorney for Defendant Rebecca Johnson
F/N/A Rebecca Hoidahl




R. Layne Rouse
lrouse@shaferfirm.com
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
