Parties

• Author: Scott Brister (Ret.)/Dan S. Boyd
• Pages: 201-324

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Chapter 6

PARTIES

QUICK VIEW

Definitions: A party is a person or entity who is suing or being sued in a lawsuit. Only parties are entitled to par-

ticipate directly in the proceedings. Capacity is the right of a person or entity to sue or be sued in its own name.

To have standing to bring a lawsuit, a party must have a justiciable interest in the case. Parties may be added to

a lawsuit under rules of permissive joinder [TRCP 40] and may be required for a lawsuit to proceed to judgment

under rules of necessary parties [TRCP 39.] An interpleader is an action between a party holding property to

which it has no claim and two or more parties who claim an interest in the property. Impleader, or third-party

practice, is a method by which a defendant may join parties alleged to be liable for all or part of the plaintiff’s

claim. [TRCP 38.]

Scope of chapter: Considerations applicable to naming parties as plaintiffs and defendants in a lawsuit. Capacity

and standing to sue. Substitution of parties. Considerations involved in joining additional parties to a lawsuit

under rules of permissive and necessary joinder. Rules and procedures for interpleading competing claims to a

fund. Intervention by parties into a lawsuit already begun by other parties. Prosecuting and defendant actions

brought by or against a class of persons.

Strategies and tactics:

• Early in the case, evaluate who might be possible plaintiffs and possible defendants in the action.

• Research the law concerning the capacity of potential parties, their standing to sue or be sued, etc.

• Investigate the status of various parties, their capacity, standing, etc., and whether they are amenable to ser-

vice of process in Texas.

• If representing a defendant, investigate whether there are other parties who should be joined as defendants,

and whether there are other parties who may be responsible for all or part of plaintiff’s claim.

• If an action is already proceeding, determine whether it is in your client’s interest to intervene in the action,

and whether your client is entitled to do so.

• If you represent a client who retains property to which some other party is ultimately entitled, determine

whether an interpleader action, with your client as stakeholder, is an appropriate way for your client to dis-

charge his/her obligations.

Statutes and rules: Minors and incapacitated persons appearing through “next friend” or “guardian ad litem:”

TRCP 44, 173. Suing under an assumed name: TRCP 28. Substitution of parties on death of an original party:

TRCP 150-156. Joinder of parties: TRCP 37-41. Impleader of third parties: TRCP 38. Interpleader: TRCP 43.

Intervention: TRCP 60. Class actions: TRCP 42.

Related topics: Pleadings, Ch 14; Motion Practice, Ch 16.

(Rev. 10, 4/13)

TEXAS PRETRIAL PRACTICE 6-2

TABLE OF CONTENTS

I. General Concepts

§6:01 “Party” Defined

§6:02 Typical Parties

II. Capacity to Sue or Be Sued

A. Preliminary Considerations

§6:06 “Capacity” Defined

§6:07 CAVEAT: Objection to Capacity Must Be Verified

§6:08 Judgment Limited to Party’s Capacity

B. Minors and the Mentally Incompetent

1. NATURE OF LEGAL DISABILITY

§6:12 Minor

§6:13 Incapacitated Persons

§6:14 Cannot Sue or Be Sued

§6:14.1 Parents’ Liability for Child’s Torts

§6:15 Cannot Settle Litigation

§6:16 Counsel’s Ethical Duty to Seek Appointment

2. REPRESENTATIVES FOR PERSONS UNDER LEGAL DISABILITIES

§6:20 Legal Guardian

§6:21 Next Friend

§6:22 Guardian ad Litem

§6:23 Attorney ad Litem

3. APPOINTMENT OF GUARDIAN AD LITEM

§6:26 When Required: Potential Adverse Interest

§6:27 When Required: to Allocate Settlement Proceeds

§6:28 When Not Required

§6:29 Motion and Order

§6:30 Review of Appointment

§6:31 Effect of Appointment

§6:32 Appointment of Multiple Guardians ad Litem

§6:33 Failure to Object to Appointment Waives Objection

§6:34 Family Law Cases

§6:35 Juvenile Cases

4. DISCHARGE OF GUARDIAN AD LITEM

§6:36 Discharge Before Final Judgment

§6:37 Discharge by Final Judgment

5. DUTIES OF GUARDIAN AD LITEM

§6:40 Nature and Purpose of Appointment

§6:41 Hire and Fire Ward’s Attorney

§6:42 Appeal

§6:43 Evaluate and Make Recommendations Regarding Settlement

§6:44 Provide for Future Investment of Settlement Funds

(Rev. 1, 12/00)

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6. LIABILITY OF GUARDIAN AD LITEM

§6:48 Not Personally Liable in the Litigation

§6:49 Qualified Immunity

§6:50 Not Liable for Legal Malpractice

§6:51 Not Liable for Occurrences After Discharge

§6:52 Qualified Immunity in Family Law Cases

7. FEES

§6:56 Factors in Determining Guardian ad Litem’s Fee

§6:58 Limited to Performance of Proper Duties

§6:59 No Fee for Post-Litigation Services

§6:60 Application and Hearing on Fee Award

§6:61 Evidence to Support Fee Claim

§6:63 Findings of Fact and Conclusions of Law

§6:64 Fee Subject to Negotiation in Settlements

§6:65 Fee Assessed Against Losing Party

§6:66 Fee Assessed Against Prevailing Defendant Only if Plaintiff Is Indigent

§6:68 Appellate Review

8. SETTLEMENT HEARING

§6:72 Settlement Must Be Submitted to Court for Approval

§6:73 Standard for Approval of Settlement; Effect

9. DISTRIBUTION OF PROCEEDS FOR MINORS AND INCAPACITATED PERSONS

§6:76 Trial Court Decides

§6:77 Methods of Distribution

§6:78 Guardian ad Litem Should Recommend Disbursement Method

§6:79 Court Order Required

§6:80 Funds Placed in Court Registry

§6:81 Court-Ordered Investment

§6:82 Management by Bonded Manager

§6:83 Structured Settlement

§6:84 §142 Trust

§6:85 Requirements for a §142 Trust

§6:86 Supplemental Needs Trust

§6:87 Payout by Defendant at Majority

§6:88 Limitations on Assignment of Structured Settlements

10. MINOR’S NEGLIGENCE

§6:90 Standards for Children 14 and Under

§6:91 Children Over 14 Subject to Adult Standard

11. TESTIMONY BY MINOR OR INCAPACITATED PERSON

§6:94 Testimony by Minors

§6:95 Testimony by Incapacitated Persons

C. Other Individuals

1. INDIGENTS

§6:98 Definition of Indigency

§6:99 Determination Is Within Court’s Discretion

§6:100 Proceeding in Forma Pauperis

§6:101 Dismissal of Frivolous Claims of Indigents

§6:102 Indigents Not Entitled nor Required to Hire an Attorney

(Rev. 10, 4/13)

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