                                   DISSENTING OPINION

                                        No. 04-07-00656-CV

                    IN THE INTEREST OF H.G., K.G., J.D, and T.G., Children

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 05-1912-CV
                            Honorable W.C. Kirkendall, Judge Presiding

Opinion by: Steven C. Hilbig, Justice
Dissenting opinion by: Alma L. López, Chief Justice

Sitting:          Alma L. López, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: June 11, 2008

           Section 153.432 of the Texas Family Code authorizes biological or adoptive grandparents

to request possession of or access to a grandchild. TEX . FAM . CODE ANN . § 153.432 (Vernon Supp.

2007). Section 153.434 of the Code then sets a limitation on that authority if certain conditions exist,

namely, for purposes of this appeal, if the biological parents of the grandchild have had their rights

terminated and the grandchild has been adopted. TEX . FAM . CODE ANN . § 153.434 (Vernon Supp.

2007). In order to create the conditions that would make the limitation applicable in this case, the

Gibbenses misrepresented to the Glynns that their possession and access as grandparents would

continue. Despite precedent holding that this court’s equity jurisdiction can be used to estop a party
Dissenting Opinion                                                                       04-07-00656-CV



from arguing that another party lacks standing, see Eckland Consultants, Inc. v. Ryder, Stilwell Inc.,

176 S.W.3d 80, 87-88 (Tex. App.—Houston [1st Dist.] 2004, no pet.); see also Paradigm Oil, Inc.

v. Retamco Operating, Inc., 242 S.W.3d 67, 71-72 (Tex. App.—San Antonio 2007, pet. denied)

(applying judicial estoppel to prevent a party from denying standing), the majority holds that the

doctrine of quasi-estoppel cannot be applied in this case to prevent the Gibbenses from taking

advantage of a statutory limitation that would be inapplicable in the absence of their

misrepresentations.

        As this court has recognized, a trial court’s equitable power is expansive, particularly in cases

in which the best interest of a child is in question:

        The equitable power of a court is not bound by cast-iron rules but exists to do
        fairness and is flexible and adaptable to particular exigencies so that relief will be
        granted when, in view of all the circumstances, to deny it would permit one party to
        suffer a gross wrong at the hands of the other.

Hausman v. Hausman, 199 S.W.3d 38, 42 (Tex. App.—San Antonio 2006, no pet.); see also

Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967) (noting courts are given wide discretion in

possession and visitation matters involving children). Quasi-estoppel is an equitable doctrine that

operates as an affirmative defense. Hamilton v. Morris Resources, Ltd., 225 S.W.3d 336, 346 (Tex.

App.—San Antonio 2007, pet. denied). Quasi-estoppel applies when it would be unconscionable

to allow a person to maintain a position inconsistent with the one in which he acquiesced or accepted

a benefit. In re A.L.G., 229 S.W.3d 783, 786 (Tex. App.—San Antonio 2007, no pet.). Quasi-

estoppel precludes a party from asserting, to another’s disadvantage, a right inconsistent with a

position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.

2000); Hamilton, 225 S.W.3d at 346.


                                                   -2-
Dissenting Opinion                                                                    04-07-00656-CV



        Because the Glynns were the managing conservators at the time of the children’s adoption,

their consent was not simply “part of the adoption process” as stated by the majority. Instead, the

Glynns’ consent to the adoption was statutorily required. TEX . FAM . CODE ANN . § 162.010 (Vernon

2002) (entitled “Consent Required” and providing managing conservator’s written consent to

adoption “must be filed”). In order to obtain that consent, the Gibbenses represented to the Glynns

that they would be allowed on-going visitation rights. These representations were made prior to the

entry of the adoption order at a time when the Glynns clearly had standing to seek continued

possession of and access to the children. See Bowers v. Matula, 943 S.W.2d 536, 539-40 (Tex.

App.—Houston [1st Dist.] 1997, no writ) (noting grandparents had standing to request grandparent

access where they filed their petition requesting access before a termination order or adoption order

was in place). Under these circumstances, it would be unconscionable for the Gibbenses to assert

the section 152.434 statutory limitation to the standing conferred in section 153.432. This is

particularly true where, as here, absent the Gibbenses’ misrepresentations the conditions giving rise

to that limitation would not exist. Taking into consideration the paramount concern for the best

interest of these children, the trial court in this case could and should have exercised its equity

jurisdiction because the Gibbenses seek to assert a position contrary to the Gibbenses’ promise that

the Glynns would be allowed continued access if they consented to the adoption. Because the

majority holds to the contrary, I respectfully dissent.

        I note that the trial court’s application of quasi-estoppel to find the Glynns had standing

would mean only that the Glynns have the right to be heard, not the right to win. See Whitworth v.

Whitworth, 222 S.W.3d 616, 622 n.3 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also TEX .

                                                  -3-
Dissenting Opinion                                                                  04-07-00656-CV



FAM . CODE ANN . § 153.433 (Vernon Supp. 2007) (requiring grandparent to establish that denial of

possession of or access to the child would significantly impair the child’s physical health or

emotional well-being). Given the Gibbenses’ unconscionable actions, the Glynns at the very least

deserve their day in court.

                                                     Alma L. López, Chief Justice




                                               -4-
