SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD F. STOKES 1 THE CIRCLE, SUITE 2 JUDGE SUSSEX COUNTY COURTHOUSE GEORGETOWN, DE 19947

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1 SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD F. STOKES 1 THE CIRCLE, SUITE 2 JUDGE SUSSEX COUNTY COURTHOUSE GEORGETOWN, DE Lois J. Dawson, Esquire Brian T. McNelis, Esquire 1525 Delaware Avenue Young & McNelis Wilmington, DE South State Street P.O. Box 1191 Dover, DE Sherry R. Fallon, Esquire Kathryn L. Welch, Esquire Tybout, Redfearn & Pell Department of Justice P.O. Box East Market Street Wilmington, DE Georgetown, DE Re: Jane Doe and Waterhouse v. Hollingsworth C.A. No. 06C RFS Upon Defendants Motion to Substitute Best Friend. Granted. Submitted: September 13, 2007 Decided: December 10, 2007 Dear Counsel: Pending before the Court is Stacy L. LaMotta s and Kenneth Hollingsworth s Joint Motion to Substitute a Best Friend of Jane Doe (hereinafter, Motion ). I have reviewed the parties submissions on the point and do not feel oral argument is necessary. After consideration, this is my decision granting that Motion. STATEMENT OF FACTS Jane Doe (hereinafter Plaintiff ), is a minor who resides with her mother, Stacy L. LaMotta (formerly Stacy L. Hollingsworth; hereinafter, LaMotta ). (Compl. 5.) Kenneth Hollingsworth, M.D. (hereinafter Hollingsworth ) allegedly engaged Jane Doe in nonconsensual sexual encounters for more than one year. LaMotta and Hollingsworth were

2 residing together as a married couple at all times material to this action. (Compl. 1, 8.) Plaintiff further alleges that Hollingsworth threatened to kill her and her family members if she did not comply with his demands. Plaintiff s biological father Mark D. Waterhouse (hereinafter Waterhouse ) filed a Superior Court complaint based on negligent/ intentional infliction of emotional distress claims against LaMotta and Hollingsworth as a co-plaintiff and also as best friend to Plaintiff. On August 2, 2006, upon Waterhouse s routine petition, Waterhouse was appointed as next best friend of Plaintiff for the purpose of prosecuting this action against Defendants. Concurrently, Waterhouse had pending Family Court disputes seeking custody of Plaintiff. On September 26, 2006, LaMotta requested an order from the Family Court to appoint a guardian ad litem on behalf of Plaintiff for the reason of Waterhouse s direct and indirect conflict of interest with Plaintiff. The Family Court appointed Kim DeBonte, as attorney guardian ad litem to protect the minor s best interests in the Family Court proceedings. Subsequently, LaMotta and Hollingsworth jointly filed a Petition for Substitution of a Best Friend on behalf of Plaintiff in the Superior Court. Thereafter, both of them filed an Amended Petition, specifically requesting Kim DeBonte, Esquire, as Best Friend for Plaintiff on or about April 27, (Def. s J. Supp. Br.) Waterhouse objects to the appointment of Kim DeBonte. Waterhouse believes that Ms. DeBonte is not neutral or impartial. Allegedly, she wishes to have the Superior Court action dismissed and allegedly has made inappropriate remarks regarding counselors to Plaintiff. (Pl. s Answer to Pet. 11.) Waterhouse requests the Court to deny Defendant s petition for a new guardian ad litem and best friend for Plaintiff. Initially, according to counsel for defendants, Waterhouse did not object to someone other than Ms. DeBonte. 2

3 DISCUSSION 1. Conflict of Interest In general, when a minor is represented by a parent who is a co-party to the lawsuit, and with the same interests as the minor, there is no inherent conflict of interest. Bhatia v. Corrigan, 2007 WL , at *1 (N.D. Cal. May 16, 2007). See, e.g., Finan v. Good Earth Tools, Inc., 2007 WL (E.D. Mo. May 15, 2007). However, if the parent has an actual or potential conflict of interest with his child, the parent has no right to control or influence the child s litigation. Williams v. Superior Ct. of San Diego Cty., 54 Cal. Rptr.3d 13, 23, 25 (Cal. Ct. App. 2007) (emphasis added). Delaware courts regard the function of a guardian ad litem as below: The next friend is not a party to the suit. He is simply a person appointed by the Court to look after the interests of one, who by reason of his legal disability is unable to look after and manage his own interests. The infant or the person for whose benefit the suit is prosecuted is the real party. Cohee v. Ritchey, 150 A.2d 830, 832 (Del. Super. Ct. 1959) (citing Judge Victor B. Wolley in his treatise on Delaware Practice). Here, Waterhouse has at the least a potential, if not actual conflict of interest with his child. He is seeking his own independent recovery for injuries arising out of the same occurrence as his child s claims. Also, he has past and likely continuing Family Court disputes with LaMotta. In Rodriguez v. Maxson, the Court ruled that a parent suing on his own behalf and also as a next friend of a minor child for injuries arising out of the same occurrence poses a conflict of interest between the parties. 1 Moreover, the Rodriguez Court wrote: even if an actual conflict never arises, the mere appearance of conflict will be sufficient to require the court to appoint a 1 Rodriguez v. Maxson, 2002 Tex. App. Lexis 8951, at *8-9 (Tex. App. Dec. 19, 2002) (emphasis added) (citing Phillips Petroleum Co. v. Welch, 702 S.W.2d 672, 674 (T ex. App )); See also Kulya v. C ity and County of San Francisco, 2007 WL (N.D. Cal. Mar. 9, 2007) (Father files a suit on behalf of himself and his son against the city and city employees for intentional infliction of emotional distress and violation of civil rights caused b y his false arrest). 3

4 guardian ad litem. Id. See Tex. R. Civ. P. 173; Employers Ins. Corp. v. Keenom, 716 S.W. 2d 59, 67 (Tex. App. 1986). For sure, Waterhouse s and Plaintiff s injuries arise out of the same occurrence, i.e. Hollingsworth s allegedly nonconsensual sexual encounters with Plaintiff. Waterhouse claims that the purposes of the instant litigation are to protec[t] his daughter s best interest by righting the damaging and wrongful behavior of Defendant Kenneth Hollingsworth and to protect his daughter for her long term needs caused by the actions of the Defendants in this matter. However, Waterhouse seeks damages for himself and what is good strategy for Waterhouse s own case may be at the sacrifice of the child s interest, notwithstanding his good intentions. Waterhouse s position as a co-plaintiff with independent claims, and his involvement with Family Court litigation concerning this subject, are sufficiently problematical to require another, detached guardian. One New York District Court considered the antagonism between divorced parents as a clouding factor in the father s view of a minor plaintiff s best interests. 2 Likewise, there is adversity between Waterhouse and LaMotta caused by divorce, custody/ visitation disputes. The naturally hard feelings are significantly aggravated by the sexual abuse allegations. 3 Such emotions of this nature are hard to compartmentalize, and they may well interfere with Waterhouse s judgment in deciding what would be in the best interest for Plaintiff. 2 DeBryune v. Clay, 1995 U.S. Dist. Lexis 1499, at *8-9 (N.Y.S.D. Feb. 7, 1995). The mother of two minors established a trust for each child prior to the divorce. The father offered to purchase stock that was added to the corpus of the trusts but the stock was sold to the grandfather. The father filed suit as next friend of the children on the ground of breach of duties of care and loyalty. 3 Cf. Verrocchio v. Verrocchio, 429 S.E.2d 482 (Va. Ct. App.1993). Many states provide for the appointment of guardian ad litem to represent the child in marital dissolution cases where custody is contested because of potential conflict of interest between parents and child in visitation dispute. 4

5 Waterhouse argues that there is no conflict of interest. However, Waterhouse s arguments and supporting cases are not persuasive because this case is different from them. Waterhouse uses Palmiere to demonstrate New York s policy encouraging parents to be guardians ad litem. Yet, in Palmiere, there was no showing of any conflict of interest or concerns about outside influences affecting the guardian s judgment. 4 Waterhouse claims that he remains a strong advocate for his child. Zukerman is cited where the judge stated it would be inappropriate for the court to presume that it knows better than the parent what is in the best interest of the child. However, the argument raised by Zukerman is distinguishable. In the instant case, Waterhouse has a greater potential for conflict of interest because of his direct claims as well as Family Court matters. 5 A guardian ad litem s judgment must be focused only on the ward, and it cannot be materially impaired by other influences as appear in this case. 2. Court s Assignment of Guardian Ad Litem In Gardner v. Parson, the Court stated that the purpose of Rule 17(c) is, to further the child s interest in prosecuting or defending a lawsuit, or at least to allow an evaluation of the merits of the suit relative to the child s best interests. A guardian ad litem who has a conflict of interest will not be able to serve the child s best interests. Rule 17(c) requires the court to appoint another guardian ad litem under such circumstances. Rule 17(c) states: A guardian ad litem will be appointed upon verified petition of the proposed guardian, or some other party, setting forth such infancy or incompetence; that there is no general guardian or trustee within the State, or that such guardian or trustee has an interest in the cause, and that the proposed guardian ad litem has no interest in the cause. Super. Ctr. Civ. R. 17(c), Gardner v. Parson, 874 F.2d 131, 140 (3d Cir. 1989) (emphasis added). 4 In re Palmiere, 726 N.Y.S. 2d 316, (N.Y. App. Div. 2001) (citing Stahl v. Rhee, 643 N.Y.S.2d 148 ( N.Y. App. Div ); In re Manufacturers Hanover Trust Co., 442 N.Y.S.2d 7 ( N.Y. App. Div. 1981)). 5 See Zukerman ex rel. Zukerman v. Piper Po ols, Inc., 556 A.2d 775 (N.J. Super. App. Div. 1989). 5

6 If it is shown that a parent has a conflict of interest with a minor, the parent is no longer entitled to be a guardian ad litem or control the tactical or strategic legal decisions made by the guardian and/or the child s attorney. Williams, 54 Cal. Rptr.3d at 25. In this situation, a trial court must intervene. Patterson v. McMickle, 191 S.W.3d 819, 824 (Tex. App. 2006). CONCLUSION Considering the forgoing, Defendants Motion is granted. However, Ms. Kim DeBonte will not be appointed guardian ad litem in this litigation. I feel confident that she has performed appropriately in the Family Court venue, but it would be the best to bring a guardian with fresh eyes to this personal injury case. Both parties shall confer and submit a list of three possible guardians on or before Friday, December 28, The court will then select a substitute guardian ad litem. IT IS SO ORDERED. Very truly yours, Original to Prothonotary Richard F. Stokes 6