No. 11-17-00012-CV

IN THE 11th COURT OF APPEALS, EASTLAND, TEXAS

____________________________________________________________________________________

Zoe Saari, Individually and as Representative of the Estate of

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

ACCEPTED

11-17-00012-cv

ELEVENTH COURT OF APPEALS

EASTLAND, TEXAS

6/23/2017 11:40 AM

SHERRY WILLIAMSON

CLERK

 FILED IN 11th COURT OF APPEALS EASTLAND, TEXAS 6/23/17 11:40:03 AM SHERRY WILLIAMSON Clerk
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