Garza v. Fliedner
Dallas Court of Appeals, No. 05-15-01067-CV (December 27, 2016)
Justices Lang, Myers (Opinion), and Schenck
On its face, this is a simple case. Medical malpractice claims were dismissed when plaintiffs did not serve the expert report required by statute. Plaintiffs’ procedural maneuvers designed to avoid dismissal, however, spun a web of issues under the rules of civil and appellate procedure.

Here’s the situation: Parents filed a medical malpractice lawsuit individually and as “next friends” of their daughter, then 17, but did not timely serve the required expert report. A couple months after the daughter turned 18, the defendant doctor filed a motion to dismiss under Chapter 74 of the Civil Practice and Remedies Code. The day before the hearing on that motion, the parents filed a notice to nonsuit “their entire case,” and the daughter (represented by the same attorney) filed a separate lawsuit asserting the same claims her parents had previously pursued on her behalf. The trial court dismissed the parents’ lawsuit (both their individual claims and those they had asserted as representatives of their daughter) with prejudice. The parents appealed. The daughter did not.

The Dallas Court of Appeals addressed two questions: (1) Do the parents have standing to appeal the order dismissing the claims they asserted as next friends of their daughter? (2) Since the daughter did not file her own notice of appeal, can she intervene to complain of the judgment? The short answer to both questions, the Court held, is “no.”

The authority of a next friend to act on a minor’s behalf expires when the minor reaches “the age of majority” (18). A lawsuit pending at the time may proceed, at the former minor’s election, but should be prosecuted in her own name. Here, the daughter elected to pursue her claims in a separate lawsuit. The Court did not reach the merits of the trial court’s dismissal with prejudice of the claims the parents had asserted on behalf of the daughter (and then nonsuited), because it held they no longer had standing to complain of that ruling. And because the daughter was a party to the judgment but did not file her own notice of appeal, she could not intervene based on the doctrine of “virtual representation.” The appeal was therefore dismissed for lack of jurisdiction.