      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00701-CV



                                   In the Interest of D. K. M.




      FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
         NO. 202,052-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING



                                          OPINION


               This appeal arises out of appellant Donna Mills’s paternity suit against appellee Orin

Carter, seeking to establish that Carter is the father of her daughter, D.K.M., who was born on

September 3, 1995. On February 2, 2004, when D.K.M. was eight years old, Mills filed a petition

seeking to adjudicate D.K.M.’s paternity, alleging that Carter, and not Andrew Mills, her husband

and D.K.M.’s presumed father, was the child’s biological father. Genetic testing was ordered on

May 13, 2004, and on September 15, 2004, Mills filed a motion for temporary orders asserting that

Carter had been identified as D.K.M.’s father through genetic testing; a hearing was set on the

motion for September 29. In early October 2004, Carter filed an original answer and a motion to

dismiss, in which he argued that Mills’s action was barred by the statute of limitations because

D.K.M. had a presumed father and the suit was not filed before D.K.M.’s fourth birthday. See

Tex. Fam. Code Ann. § 160.607(a) (West Supp. 2007). Mills responded that limitations were tolled

by the federal Servicemembers Civil Relief Act. See 50 App. U.S.C.A. §§ 501-596 (West 1990

& Supp. 2007). On July 13, 2005, the trial court signed an order dismissing with prejudice Mills’s
suit against Carter. Mills appeals, complaining that limitations were tolled; that Carter did not

establish his defense under section 160.607; that the dismissal violates D.K.M.’s rights to equal

protection and due process, as well as those of other similarly situated children; and that the trial

court should have appointed an attorney ad litem to represent D.K.M.’s interests.

               Although the rules of civil procedure do not provide for a defendant’s motion to

dismiss, except possibly for want of prosecution after a plaintiff fails to appear at a hearing or trial

setting, see Tex. R. Civ. P. 162 (plaintiff may dismiss suit), 165a (case may be dismissed for want

of prosecution), Carter asserted his affirmative defense through a “motion to dismiss.”1 However,

an affirmative defense such as the running of limitations should be raised through a motion for

summary judgment, not through a motion to dismiss or a plea to the jurisdiction.2 See Hunter

v. Johnson, 25 S.W.3d 247, 250 n.5 (Tex. App.—El Paso 2000, no pet.) (affirmative defense such

as limitations should be argued through motion for summary judgment, not motion to dismiss); see

        1
           We have held that a “motion to dismiss is the functional equivalent of a plea to the
jurisdiction challenging the trial court’s authority to determine the subject matter of a cause of
action,” Pickett v. Texas Mut. Ins. Co., No. 03-04-00374-CV, 2007 Tex. App. LEXIS 5953, at *29
(Tex. App.—Austin July 26, 2007, no pet.), and the trial court seems to have treated Carter’s motion
like a plea to the jurisdiction, considering live testimony presented at an evidentiary hearing.
See Tex. R. Civ. P. 166a(c) (no oral testimony received at summary judgment hearing); Pickett,
2007 Tex. App. LEXIS 5953, at *29 (trial court may hear live testimony at hearing on plea to
jurisdiction).
       2
          A motion to dismiss based on limitations might be properly brought if the defendant first
files a special exception, which would bring the issue to the plaintiff’s attention and allow her to
amend her pleadings, if possible. See Tullis v. Georgia-Pacific Corp., 45 S.W.3d 118, 128
(Tex. App.—Fort Worth 2000, no pet.) (“A defendant seeking a dismissal based on an affirmative
defense such as a statute of limitations must first file a special exception or a motion for summary
judgment giving the plaintiff an opportunity to respond.”); Hunter v. Johnson, 25 S.W.3d 247, 250
& n.5 (Tex. App.—El Paso 2000, no pet.) (citing Allied Chem. Corp. v. Koonce, 548 S.W.2d 80, 82
(Tex. Civ. App.—Houston [1st Dist.] 1977, no writ); Mueller v. Banks, 317 S.W.2d 254, 255
(Tex. Civ. App.—San Antonio 1958, no writ)).

                                                   2
also In re K.B.S., 172 S.W.3d 152, 153 (Tex. App.—Beaumont 2005, pet. denied) (“Unless

affirmatively negated by the plaintiff’s pleadings, an affirmative defense must be proven at trial or

through summary judgment proceedings.”); Montgomery County v. Fuqua, 22 S.W.3d 662, 668-69

(Tex. App.—Beaumont 2000, pet. denied) (affirmative defenses like limitations “are ‘pleas in bar,’

and do not provide a justification for summary dismissal on the pleadings”); University of Houston

v. Elthon, 9 S.W.3d 351, 356 (Tex. App.—Houston [14th Dist.] 1999, pet. dism’d w.o.j.) (“There

exists a long line of cases demonstrating that a motion for summary judgment is the proper avenue

for raising the statute of limitations defense under the Texas Whistleblower Act.”).

               Members of the supreme court have spoken to the need to adhere to the specific

motion practices established by the rules of procedure. See Texas Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 240-44 (Tex. 2004) (Brister, J., dissenting) (discussing “resurgence”

of pleas to the jurisdiction in immunity cases and stating that such pleadings are “fraught with

uncertainty”). The summary judgment rule requires evidence to be presented in the form of

affidavits, deposition excerpts, answers to interrogatories or other discovery responses, party

stipulations, or public records and bars the use of oral testimony. Tex. R. Civ. P. 166a(c). A

summary judgment may not be granted unless the affidavits and other evidence prove that there is

no question of fact and that the movant is entitled to judgment as a matter of law. Id. The summary

judgment rule thus “contains procedural safeguards to ensure that the merits are not determined

before the nonmovant has had an adequate time for discovery and an opportunity to respond” and

“leaves little to the imagination,” Miranda, 133 S.W.3d at 235 (Jefferson, J., dissenting), removing

questions about credibility or the weight to be given the competing evidence. Further, in summary



                                                 3
judgment practice, plaintiffs are “not required to guess what rules or procedures the trial just might

apply.” Id. at 244 (Brister, J., dissenting).

                If parties do not adhere to summary judgment practice in cases such as this, the likely

result will be uncertainty for the parties and trial courts and disparity in trial courts’ consideration

and treatment of individual cases. This case presents a good example of these risks. Because the

issue was not presented in proper summary judgment form, it is unclear what rules and principles

were applied by the trial court.3 For example, it is unclear whether the trial court reviewed the

evidence simply looking for more than a scintilla of evidence to support Mills’s position or whether

it ultimately made case-dispositive credibility determinations or fact findings based upon the

testimony. Further, it is unclear what rules and standards we should apply on appeal. Therefore, we

reverse the trial court’s order of dismissal and remand the cause for further proceedings in

compliance with the rules of civil procedure.



                                                __________________________________________

                                                David Puryear, Justice

Before Justices Puryear, Waldrop and Henson

Reversed and Remanded

Filed: December 20, 2007




        3
        The summary-judgment standard of review should be applied to a plea to the jurisdiction.
Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

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