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Berrain v. Katzen8/25/1993
the case of infants, there is an instrument called a next friend. One of the rights which the plaintiffs are entitled to is the full right of appeal. What law gives the next friend the power to deprive the children of that right of appeal? If they were adult and wished to appeal they could do so. If the plaintiffs wish to appeal, why should the next friend say they should not have the power to do so? He is only an instrument, and has no power to decide such questions as this. It is said that a next friend can only be removed for misconduct, but that is a mistake of practice. He can be removed for other causes. In this case, I am of opinion that opposing the appeal is equivalent to misconduct, and a sufficient ground for his removal. The matter must be remitted back to chambers to appoint another next friend, and the parties opposing must pay the costs of the summons."
III.
Had the plaintiffs in this case been adults, the record and our decisions would clearly support affirming the trial court's dismissal with prejudice. We hold in the instant case, however, that the trial court abused its discretion under Rule 2-433 in applying the harshest of sanctions where neglect to comply with the rule lies with the next friend, an officer of the court, not the minor plaintiffs. As the authorities recited above suggest, the trial court has a special duty to protect the rights and interests of the minor plaintiff who is represented by next friend to insure that the next friend does not prejudice those rights and interests through conflict of interest, fraud, or, in this case, neglect.
Rule 2-433(a) provides the trial court with several approaches to correcting the next friend's failure to comply with discovery requests short of dismissal with prejudice. Under Rule 2-202(b), upon finding that the next friend has breached her obligations to proceed with diligence under the rules, the trial court may properly remove that next friend and replace her with a new next friend, willing to risk the costs of litigation, to proceed with the cause of action. If no one can be found who is willing to take on that responsibility, the actions of the infant plaintiffs should be dismissed without prejudice so that the actions may be pursued by them when they reach their majorities.
JUDGMENT ON THE INDIVIDUAL CLAIM OF TONIA HANSON AFFIRMED, JUDGMENTS ON THE CLAIMS OF THE INFANT PLAINTIFFS REVERSED AND THE CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDINGS; COSTS TO BE PAID BY THE APPELLEE.
Disposition
JUDGMENT ON THE INDIVIDUAL CLAIM OF TONIA HANSON AFFIRMED, JUDGMENTS ON THE CLAIMS OF THE INFANT PLAINTIFFS REVERSED AND THE CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDINGS; COSTS TO BE PAID BY THE APPELLEE.
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