                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00062-CV




       IN THE INTEREST OF K.M.T., A CHILD




        On Appeal from the County Court at Law
                  Rusk County, Texas
           Trial Court No. 2013-03-155-CCL




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Carter
                                        OPINION
        Garry Antunes, Jr., appeals the dismissal with prejudice of his paternity suit alleging he is

the father of K.M.T., a child born to Mallory Layne Terry while she was married to John Terry.

Antunes and the Terrys agreed to a hearing concerning the application of Section 160.607 of the

Texas Family Code. See TEX. FAM. CODE ANN. § 160.607 (West Supp. 2012). At the hearing,

conclusive evidence was introduced that Antunes filed his paternity suit four years and

approximately six days after the child’s birth. Following the hearing, the trial court found

Antunes had not timely pursued his paternity claim and dismissed the paternity suit with

prejudice.

        On appeal, Antunes raises two issues. Antunes’ first issue claims the trial court erred “in

sustaining Appellee’s plea of limitation because Appellant’s petition seeking parentage was filed

nine days after the fourth anniversary of the child’s birthday.” Antunes’ second issue questions

whether “the Appellee’s conduct equitably estop[ped] her from asserting a plea of limitation.”

We conclude Antunes’ issues do not demonstrate reversible error and affirm the judgment of the

trial court.

I.      Facts

        Mallory married her husband, John, on July 30, 2005, and the couple has never separated

or divorced. During the marriage, Mallory and Antunes had extramarital relations from March

2008 until October 2008. Mallory gave birth to K.M.T. on March 13, 2009, while still married

to John. Antunes filed his paternity suit on March 19, 2013.

        Mallory testified that she had sexual relations with both John and Antunes during the

probable time of conception. Mallory admitted that she gave Antunes a Father’s Day card and

                                                 2
picture book containing photographs of K.M.T. Mallory also admitted that she allowed Antunes

visitation with the child. Mallory testified that Antunes was aware K.M.T. might be his child.

         John testified that Mallory eventually told him about the affair and that the couple was

able to “patch” up their marriage. John, though, denied that Mallory had ever told him K.M.T.

was Antunes’ biological child.

         Antunes testified that the affair was occurring at the probable time of conception. When

asked, “[H]as Mrs. Terry ever told you that you are the father of [K.M.T.],” Antunes responded,

“Yes.” Antunes later testified that she had done so on numerous occasions and that she had sent

him a Father’s Day card and a picture book of K.M.T.

         There is evidence that Antunes was aware the child might have been his prior to the

child’s birth. The Terrys introduced an e-mail from Antunes approximately four months before

the child’s birth in which Antunes provided Mallory with a link to a DNA testing website and

suggested that DNA testing could be performed on Mallory’s blood at the hospital. 1 Mallory,

though, testified that she had no personal knowledge as to whether a DNA paternity test had

been performed. 2 Jessica Riley, Melisa Abbott, and Amy Robertson all testified that Mallory

told them Antunes was the father of K.M.T.




1
 The record indicates this email was tendered by the Terrys as an exhibit at trial. The Terrys, though, never
requested it to be admitted into evidence, and the trial court never formally admitted it into evidence. At trial,
Antunes did not object to the absence of a formal admission, and the parties treated the email as if it had been
admitted into evidence. Since there has been no complaint about this irregularity, we will treat the email as if it had
been admitted. See, e.g., Sanchez v. Bexar Cnty. Sheriff’s Dep’t, 134 S.W.3d 202, 203 (Tex. 2004) (per curiam) (an
exhibit treated by parties as if it had been formally admitted “is, for all practical purposes, admitted”).
2
 Mallory testified that she and the child had given Antunes oral mouth swabs for a DNA test and Antunes had told
her the result of a DNA test. Mallory does not mention what the “results” were.
                                                          3
II.        Standard of Review

           As a preliminary matter, we must first determine the appropriate standard of review in

this case. The case was disposed of pretrial at a hearing ostensibly on a plea to the jurisdiction.

“A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject

matter jurisdiction.” Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); see Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Although the Texas Supreme Court has

permitted pleas to the jurisdiction that require resolution of jurisdictional facts, 3 the issue must

concern a court’s subject-matter jurisdiction.

           A statute of limitations is a plea in bar and does not affect the trial court’s subject-matter

jurisdiction. See BancorpSouth Bank v. Prevot, 256 S.W.3d 719, 726 (Tex. App.—Houston

[14th Dist.] 2008, no pet.) (limitations do not deprive court of subject-matter jurisdiction);

Montgomery Cnty. v. Fuqua, 22 S.W.3d 662, 669 (Tex. App.—Beaumont 2000, pet. denied)

(limitations is plea in bar).           Affirmative defenses, such as limitations and repose, should

normally be raised either in a summary judgment motion or at trial. See Tex. Underground, Inc.

v. Tex. Workforce Comm’n, 335 S.W.3d 670, 676 (Tex. App.—Dallas 2011, no pet.); In re

D.K.M., 242 S.W.3d 863, 865 (Tex. App.—Austin 2007, no pet.); see also Fed. Deposit Ins.

Corp. v. Lenk, 361 S.W.3d 602, 609 (Tex. 2012) (statute of repose is affirmative defense).

           Antunes, however, explicitly agreed on the record to the procedure used and has raised no

issue on appeal. The San Antonio Court of Appeals has opined,

           The practice of misnaming a plea in bar to procure a preliminary hearing to
           dispose of a case is also discouraged. However, a speedy and final judgment may
           be obtained on the basis of matters in bar and without formality of trial on merits,

3
    See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
                                                          4
         if the parties so agree or if summary judgment procedure is utilized. In the event
         summary judgment procedure is not utilized when a plea in bar is asserted, the
         reviewing court may treat a pretrial dismissal with prejudice as a summary
         judgment because such dismissal has the same effect as entry of a take-nothing
         judgment. In such case, the reviewing court will review the record as if summary
         judgment was granted to determine whether the movant satisfied the notice
         requirements and his burden of proof under Texas Rule of Civil Procedure 166a.

Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 354–55 (Tex. App.—San Antonio 1999, pet. denied)

(citations omitted); see Briggs v. Toyota Mfg. of Tex., 337 S.W.3d 275, 281 (Tex. App.—San

Antonio 2010, no pet.). We note that the Houston First District Court has adopted the reasoning

of the San Antonio Court in a memorandum opinion and the Dallas Court has cited the reasoning

favorably in dictum. See Henny v. JPMorgan Chase Bank, N.A., No. 01-10-00476-CV, 2012

Tex. App. LEXIS 1208 (Tex. App.—Houston [1st Dist.] Feb. 16, 2012, no pet.); cf. Tex.

Underground, Inc., 335 S.W.3d at 676 (reversing because procedure objected to at trial).

         While we certainly agree with the San Antonio Court that this practice should be

discouraged, we do not agree that this case should be treated as the equivalent of a summary

judgment.      Although we might under other circumstances treat a pretrial disposition as a

summary judgment, we do not believe the circumstances of this case merit such treatment.

         The substance and nature of the trial court proceedings were not a pretrial ruling on a plea

to the jurisdiction, but rather an agreed separate trial 4 on the issue of whether Section 160.607

barred suit. Rule 174(b) permits a trial court to order separate trials for any claim or issue “in

furtherance of convenience or to avoid prejudice.” See TEX. R. CIV. P. 174(b). “An issue that is

tried separately under rule 174 need not constitute a complete lawsuit in itself.” Grocers Supply,
4
 “An order for a separate trial (bifurcation) leaves the lawsuit intact but enables the court to hear and determine one
or more issues without trying all controverted issues at the same hearing.” In re Allstate Cnty. Mut. Ins. Co., 209
S.W.3d 742, 745 (Tex. App.—Tyler 2006, orig. proceeding); see In re Ben E. Keith Co., 198 S.W.3d 844, 850 (Tex.
App.—Fort Worth 2006, orig. proceeding).
                                                          5
Inc. v. Cabello, 390 S.W.3d 707, 726 (Tex. App.—Dallas 2012, no pet.). Our review of the trial

court’s decision to grant a separate trial is for an abuse of discretion. Id.; cf. In re Tex. Collegiate

Baseball League, Ltd., 367 S.W.3d 462, 467 (Tex. App.—Fort Worth 2012, orig. proceeding)

(fee claim and malpractice claim required to be litigated together because claims concerned same

facts and issues).

        The plea to the jurisdiction was filed on the same day as the hearing and contains no

supporting affidavits. The record contains no written response to the plea to the jurisdiction.

The hearing consisted of testimony from a number of witnesses, including direct examination

and cross-examination.      The trial court expressed concerns over whether this issue was

jurisdictional and asked the attorneys on the record:

               THE COURT: One thing I want to make sure that we’re clear on is that
        both parties are wanting to proceed to a ruling today on the limitation issue under
        160.607; is that correct?

                ....

               THE COURT: . . . I think y’all can agree that we’re going to have a
        hearing on it and stipulate that that will be decided today. Is that what we’re
        doing?

                ....

                THE COURT: We’re not going to have to re-hear this or anything?

Antunes answered these three questions by the trial court in the affirmative. Counsel for the

Terrys, who remained silent during the three questions, was present during this questioning and

appears to have initiated the questioning of the trial court by “mov[ing] for a directed verdict” in

addition to arguing that the trial court lacked jurisdiction. Finally, we note that the trial court

issued findings of fact. We conclude that the agreed procedure used in this case should be
                                                   6
treated as a separate trial of the Section 160.607 issue. Thus, we will review this case based on

the standards for a bench trial. 5

         The evidence is legally insufficient if there is a complete absence of evidence

establishing a vital fact, the only evidence offered to prove a vital fact cannot be considered due

to a rule of law or evidence, there is less than a scintilla of evidence to prove the vital fact, or the

opposite of the vital fact is conclusively established. Jelinek v. Casas, 328 S.W.3d 526, 532

(Tex. 2010). More than a scintilla of evidence exists when the evidence “‘rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions.’” Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome Co. v.

Crye, 907 S.W.2d 497, 499 (Tex. 1995)). “Less than a scintilla of evidence exists when the

evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In a legal sufficiency analysis, we

credit favorable evidence if a reasonable fact-finder could and disregard contrary evidence unless

a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).




5
 Generally, when a separate trial is granted, a portion of the case remains to be decided. When the entire case has
been adjudicated, a final judgment is entered. Here, if the result of this proceeding had been a denial of the statute
of limitations claim, further proceedings would have been necessary. Since the issue decided here was dispositive,
nothing further was left to adjudicate, and the judgment entered is a final one. TEX. R. CIV. P. 174(b), Opinion of
Subcommittee on Interpretation of Rules (“The court has authority to order trial on any plea in bar or any separate
issues and to render judgment solely on the plea or issue tried found to be decisive.”) (citing 5 Texas B.J. 125
(1942); 8 Texas B.J. 12 (1945)). This procedure has been upheld when the issue was a plea of limitation. Phipps v.
Miller, 597 S.W.2d 458 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.). In cases with more complex facts, e.g.,
discovery issues, other courts have rejected this procedure. LaGloria Oil & Gas Co. v. Carboline Co., 84 S.W.3d
228 (Tex. App.—Tyler 2001, pet. denied). Here, both parties agreed to this procedure and have not raised an issue
on appeal. We also note that this judgment, even if interlocutory, may have been eligible for appeal due to a recent
statutory addition. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d)–(f) (West Supp. 2012) (trial court may
authorize appeal from otherwise non-appealable order if it involves controlling question of law and appeal may
advance ultimate termination of litigation.)
                                                          7
        When reviewing a factual sufficiency challenge, we examine the entire record,

considering the evidence in favor of and contrary to the challenged finding, and set aside the

jury’s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam);

Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

III.    Section 160.607 Bars the Paternity Suit

        In his first issue, Antunes argues that the trial court erred in finding Section 160.607 bars

his paternity suit.   Section 160.607 provides that when a child has a presumed father, a

proceeding to adjudicate parentage “shall be commenced not later than the fourth anniversary of

the date of the birth of the child.” TEX. FAM. CODE ANN. § 160.607(a). The statute, however,

contains two exceptions. A proceeding seeking to disprove the father-child relationship between

a child and the child’s presumed father may be maintained at any time if the court determines

that:

               (1)     the presumed father and the mother of the child did not live
        together or engage in sexual intercourse with each other during the probable time
        of conception; or

                (2)    the presumed father was precluded from commencing a proceeding
        to adjudicate the parentage of the child before the expiration of the time
        prescribed by Subsection (a) because of the mistaken belief that he was the child’s
        biological father based on misrepresentations that led him to that conclusion.

TEX. FAM. CODE ANN. § 160.607(b). “The party seeking to avoid limitations bears the burden of

proving a provision that would toll the statute of limitations.” In re J.H., 264 S.W.3d 919, 922

(Tex. App.—Dallas 2008, no pet.).




                                                 8
        When interpreting a statute, we attempt to ascertain and give effect to the Legislature’s

intent, and if the text is unambiguous, the Legislature’s intent is determined by “the statute’s

plain language unless that interpretation would lead to absurd results.” Tex. Dep’t of Protective

& Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176–77 (Tex. 2004). The plain

language of this section is unambiguous—any paternity suit filed more than four years after the

child’s birth is procedurally barred. Antunes does not argue that a statutory exception contained

in subsection (b) is applicable to this case. Antunes testified that Mallory had told him she was

not having sex with John at the probable time of conception. The only possible exception,

(b)(1) 6, requires proof that the married couple is not living together and that they are not having

sexual relations during the probable time of conception. There is no evidence that Mallory and

John were not living together at the probable time of conception. The evidence is legally and

factually sufficient to support the trial court’s finding that the suit was not timely. Antunes’ first

issue is overruled.

IV.     Assuming Equitable Estoppel Is an Available Affirmative Defense, There Is Legally
        and Factually Sufficient Evidence to Support the Rejection of Equitable Estoppel

        In his second issue, Antunes claims the common-law defense of equitable estoppel

should permit the limitations to be tolled. Because Mallory represented that Antunes was the

father and because that representation induced Antunes not to bring suit, Antunes believes

Mallory’s conduct was sufficiently deceptive for equitable estoppel to apply. The Terrys argue




6
 The exception in 160.607(b)(2) only pertains to a presumed father, in this instance John Terry. TEX FAM. CODE
ANN. § 160.204(a)(1) (West 2008) (A man is presumed to be the father of a child if “he is married to the mother of
the child and the child is born during the marriage.”).
                                                        9
that the only exceptions to the four year time limitation are the statutory exceptions contained in

subsection (b). Alternatively, they argue that there is no evidence of any misrepresentation.

           The Terrys cite In re Rodriguez, 248 S.W.3d 444 (Tex. App.—Dallas 2008, orig.

proceeding), for the proposition that “[a]bsent statutory exceptions, a court cannot order genetic

testing of a child to determine parentage outside of the four year statute of limitations.”

Rodriguez, though, does not discuss whether equitable estoppel, a common-law defense to

limitations, is available. Rodriguez merely held that the presumed father, who brought suit more

than four years after the child was born, did not prove either of the two statutory exceptions

available at that time. 7 Id.

           Equitable estoppel is generally a defense to the application of a statute of limitations.

See, e.g., Forrest v. Vital Earth Res., 120 S.W.3d 480, 486 (Tex. App.—Texarkana 2003, pet.

denied).

           Mallory argues that she made no false or misleading statement to Antunes. Assuming,

without deciding, that equitable estoppel is an available defense, Antunes has failed to establish

all of the elements. Antunes bore the burden to prove the five elements of equitable estoppel:

           (1) a false representation or concealment of material fact; (2) the representation
           was made with knowledge or the means of knowledge of the true facts; (3) the
           representation was made to a party without knowledge or the means of knowledge
           of the true facts; (4) the representation was made with the intention that it would
           be acted on; and (5) the party to whom the representation was made relied on it to
           his or her prejudice.

Hill v. Bartlette, 181 S.W.3d 541, 545 (Tex. App.—Texarkana 2005, no pet.).




7
    The two exceptions in subsection (b) have been amended since Rodriguez was decided.
                                                         10
            As argued by the Terrys, the record contains no evidence of a false representation relied

upon by Antunes. While there is some evidence that Mallory may have misrepresented to John

that the child was John’s biological child, 8 the record contains no evidence that Mallory made

any misrepresentations to Antunes. To the contrary, the overwhelming weight of the evidence

establishes that Mallory has always represented to Antunes that he was the biological father.

Antunes admitted that Mallory has consistently represented that he was the father. 9 Therefore,

Antunes’ failure to timely pursue a paternity suit was not induced by any misrepresentation.

            Equitable estoppel requires reliance on a concealment or false representation. The record

contains no evidence that Antunes’ failure to act was induced by concealment or a

misrepresentation. The evidence is legally and factually sufficient to support the trial court’s

rejection of equittable estoppel. Antunes’ second issue is overruled.

            We affirm the judgment of the trial court.




                                                          Jack Carter
                                                          Justice

Date Submitted:               September 30, 2013
Date Decided:                 October 18, 2013




8
    John testified that Mallory had represented to him that the child was his biological child.
9
 Mallory admitted her motive in admitting Antunes was the father and “let[ting] him in a little bit on what’s going
on in her life” was to keep him “happy enough to stay away from her.” Equitable estoppel, though, requires a
misrepresentation, not just a motive.
                                                             11
