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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Sunday, August 28, 2011

Jurisdiction Law Trumps Tex. R. Jud. Admin. 11

          An injured minor sues a tire company and an automaker. In 2001, a pretrial judge is assigned under Tex. R. Jud. Admin. 11. In 2003, the tire company settles; the regular judge approves. In 2010, the automaker wants to settle. The pretrial judge adjusts the earlier settlement by $227,403.25 and eventually orders the automaker to interplead the money.
1.    Plaintiffs’ counsel objects that the pretrial judge abused his discretion.
2.    The automaker objects to the appointment of the ad litem.
3.    The automaker objects to getting stuck with all the ad litem’s fee.
4.    The automaker objects that the ad litem charged it for services not necessarily related to its task.
Under limited circumstances, a court may revisit an approved minor settlement. Those circumstances don’t apply here. Pleadings did not support a revisiting of the settlement. Ad litem argued that tire settlement should have been before the pretrial judge instead of the regular judge. The tire company and the automaker said that the tire settlement was neither a pretrial proceeding or pretrial motion under Tex. R. Jud. Admin. 11.3.
The regular judge had subject matter jurisdiction—modern courts tend not to allow subject matter jurisdiction attacks where they can be avoided. District court is default Texas court. Minor’s next friend gave regular judge personal jurisdiction over minor. Minor’s attorney’s did not breach fiduciary duty to minor.
Ad litem must be appointed where conflict of interest exists between minor defendant and next friend. Settlement would extinguish medical lien, for which next friend—minor’s mother—would otherwise be liable. So there is a conflict of interest and appointing ad litem is OK.
What the ad litem did related to the interest of the minor, including defending the presence of an ad litem.
In the context of settlement, the minor was a prevailing party, so that charging the automaker with the ad litem fees was OK.
The dissent argues that the only judge with the power to decide this matter was the pretrial judge—settlement is pretrial. The pretrial judge should have passed on the tire settlement. Also, the attorneys for the minor “lost,” too; so they should have borne part of the ad litem fee.

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