In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00124-CV ___________________________
IN RE J.H. AND J.H., Relators
Original Proceeding 362nd District Court of Denton County, Texas Trial Court No. 20-4843-362
Before Birdwell, Wallach, and Walker, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION
I. INTRODUCTION
Relators J.D.H. (Mother) and J.M.H. (Husband) filed a petition for writ of
mandamus asking us to vacate the trial court’s order denying their motion to dismiss
and to vacate certain temporary orders issued by the trial court. Because a motion to
dismiss was not the proper procedural vehicle in which to raise Relators’ affirmative
defense of limitations, and because Relators can still raise that affirmative defense in
the trial court through a proper procedural vehicle, we deny mandamus relief.
II. BACKGROUND
Mother and Husband have an open marriage, and Mother had an intimate
relationship with real party in interest F.H. (RPI) during the marriage. While married
to Husband, Mother gave birth to J.H. (Child) in February 2011. A paternity test
administered about a week later revealed that RPI was Child’s biological father. At the
time of Child’s birth, RPI was living in Houston. Four or five months after Child’s
birth, RPI moved in with Relators and lived with them and Child. RPI lived with
Relators and Child from July 2011 through June 2013, when he briefly moved out,
and again from June 2014 until June 2015, when he moved out for good.
In 2020, RPI filed the underlying suit to adjudicate paternity and suit affecting
the parent-child relationship seeking conservatorship and child support. Relators filed
a motion to strike and motion to dismiss on the grounds that RPI lacked standing to
file suit. The trial court denied the motion to strike and motion to dismiss after a
2 hearing. Following that denial, Relators filed a petition for writ of mandamus with this
court, arguing that the trial court abused its discretion by denying the motion to strike
and motion to dismiss because RPI lacked standing. See In re J.H., No. 02-20-00366-
CV, 2021 WL 733083 (Tex. App.—Fort Worth Feb. 25, 2021, orig. proceeding)
(mem. op.). We ultimately denied mandamus relief and held that RPI had standing to
file the underlying suit. Id. at *2.
Relators later filed an answer in the trial court raising the statute of limitations
as an affirmative defense and filed a motion to dismiss based on that defense. See Tex.
Fam. Code Ann. § 160.607(a) (“[A] proceeding brought by a presumed father, the
mother, or another individual to adjudicate the parentage of a child having a
presumed father shall be commenced not later than the fourth anniversary of the date
of the birth of the child.”). Following a hearing, the trial court denied Relators’
motion to dismiss, and it granted temporary orders relating to the possession and
support of Child. This mandamus followed.
III. DISCUSSION
A. Mandamus Standard
We grant the extraordinary relief of mandamus only when the trial court has
clearly abused its discretion and the relator lacks an adequate appellate remedy. In re
Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding); see In re State,
355 S.W.3d 611, 613 (Tex. 2011) (orig. proceeding).
3 A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable that it is a clear and prejudicial error of law or if it fails to correctly
analyze or apply the law to the facts. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302–
03 (Tex. 2016) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–
40 (Tex. 1992) (orig. proceeding); see also State v. Naylor, 466 S.W.3d 783, 793 (Tex.
2015) (orig. proceeding) (“A writ of mandamus is an extraordinary remedy available
‘to correct an action of a trial judge who commits an abuse of discretion or a violation
of a clear duty under the law.’” (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.
1984) (orig. proceeding))). We defer to a trial court’s factual determinations that have
evidentiary support, but we review the trial court’s legal determinations de novo. In re
Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
The adequacy of an appellate remedy “has no comprehensive definition,” but
determining whether a remedy is adequate usually requires a “careful balance of
jurisprudential considerations” that “implicate both public and private interests.” In re
Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (per curiam) (orig. proceeding)
(quoting In re Prudential Ins. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig.
proceeding)); see also In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008)
(orig. proceeding) (“Whether a clear abuse of discretion can be adequately remedied
by appeal depends on a careful analysis of costs and benefits of interlocutory
review.”). This balance depends heavily on the circumstances of each case and must
4 be guided by analyzing principles rather than applying simple rules that treat cases as
categories. McAllen Med. Ctr., 275 S.W.3d at 464.
An appellate remedy is adequate when any benefits to mandamus review are
outweighed by the detriments. Prudential, 148 S.W.3d at 136. When the benefits of
mandamus review outweigh the detriments, we must consider whether the appellate
remedy is nonetheless adequate. Id. In evaluating the benefits and detriments, we
consider whether mandamus will preserve important substantive and procedural
rights from impairment or loss. Team Rocket, 256 S.W.3d at 262; see also In re Van
Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004) (per curiam) (orig. proceeding)
(stating that the danger of permanently losing substantial rights arises when the
appellate court would not be able to cure the error, when the party’s ability to present
a viable claim or defense is vitiated, or when the error cannot be made a part of the
appellate record). We should also consider whether mandamus will allow us “to give
needed and helpful direction to the law that would otherwise prove elusive in appeals
from final judgments” and “whether mandamus will spare litigants and the public ‘the
time and money utterly wasted enduring eventual reversal of improperly conducted
proceedings.’” Team Rocket, 256 S.W.3d at 262 (quoting Prudential, 148 S.W.3d at 136).
B. Did the trial court clearly abuse its discretion and do Relators lack an adequate appellate remedy?
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00124-CV ___________________________
IN RE J.H. AND J.H., Relators
Original Proceeding 362nd District Court of Denton County, Texas Trial Court No. 20-4843-362
Before Birdwell, Wallach, and Walker, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION
I. INTRODUCTION
Relators J.D.H. (Mother) and J.M.H. (Husband) filed a petition for writ of
mandamus asking us to vacate the trial court’s order denying their motion to dismiss
and to vacate certain temporary orders issued by the trial court. Because a motion to
dismiss was not the proper procedural vehicle in which to raise Relators’ affirmative
defense of limitations, and because Relators can still raise that affirmative defense in
the trial court through a proper procedural vehicle, we deny mandamus relief.
II. BACKGROUND
Mother and Husband have an open marriage, and Mother had an intimate
relationship with real party in interest F.H. (RPI) during the marriage. While married
to Husband, Mother gave birth to J.H. (Child) in February 2011. A paternity test
administered about a week later revealed that RPI was Child’s biological father. At the
time of Child’s birth, RPI was living in Houston. Four or five months after Child’s
birth, RPI moved in with Relators and lived with them and Child. RPI lived with
Relators and Child from July 2011 through June 2013, when he briefly moved out,
and again from June 2014 until June 2015, when he moved out for good.
In 2020, RPI filed the underlying suit to adjudicate paternity and suit affecting
the parent-child relationship seeking conservatorship and child support. Relators filed
a motion to strike and motion to dismiss on the grounds that RPI lacked standing to
file suit. The trial court denied the motion to strike and motion to dismiss after a
2 hearing. Following that denial, Relators filed a petition for writ of mandamus with this
court, arguing that the trial court abused its discretion by denying the motion to strike
and motion to dismiss because RPI lacked standing. See In re J.H., No. 02-20-00366-
CV, 2021 WL 733083 (Tex. App.—Fort Worth Feb. 25, 2021, orig. proceeding)
(mem. op.). We ultimately denied mandamus relief and held that RPI had standing to
file the underlying suit. Id. at *2.
Relators later filed an answer in the trial court raising the statute of limitations
as an affirmative defense and filed a motion to dismiss based on that defense. See Tex.
Fam. Code Ann. § 160.607(a) (“[A] proceeding brought by a presumed father, the
mother, or another individual to adjudicate the parentage of a child having a
presumed father shall be commenced not later than the fourth anniversary of the date
of the birth of the child.”). Following a hearing, the trial court denied Relators’
motion to dismiss, and it granted temporary orders relating to the possession and
support of Child. This mandamus followed.
III. DISCUSSION
A. Mandamus Standard
We grant the extraordinary relief of mandamus only when the trial court has
clearly abused its discretion and the relator lacks an adequate appellate remedy. In re
Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding); see In re State,
355 S.W.3d 611, 613 (Tex. 2011) (orig. proceeding).
3 A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable that it is a clear and prejudicial error of law or if it fails to correctly
analyze or apply the law to the facts. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302–
03 (Tex. 2016) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–
40 (Tex. 1992) (orig. proceeding); see also State v. Naylor, 466 S.W.3d 783, 793 (Tex.
2015) (orig. proceeding) (“A writ of mandamus is an extraordinary remedy available
‘to correct an action of a trial judge who commits an abuse of discretion or a violation
of a clear duty under the law.’” (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.
1984) (orig. proceeding))). We defer to a trial court’s factual determinations that have
evidentiary support, but we review the trial court’s legal determinations de novo. In re
Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
The adequacy of an appellate remedy “has no comprehensive definition,” but
determining whether a remedy is adequate usually requires a “careful balance of
jurisprudential considerations” that “implicate both public and private interests.” In re
Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (per curiam) (orig. proceeding)
(quoting In re Prudential Ins. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig.
proceeding)); see also In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008)
(orig. proceeding) (“Whether a clear abuse of discretion can be adequately remedied
by appeal depends on a careful analysis of costs and benefits of interlocutory
review.”). This balance depends heavily on the circumstances of each case and must
4 be guided by analyzing principles rather than applying simple rules that treat cases as
categories. McAllen Med. Ctr., 275 S.W.3d at 464.
An appellate remedy is adequate when any benefits to mandamus review are
outweighed by the detriments. Prudential, 148 S.W.3d at 136. When the benefits of
mandamus review outweigh the detriments, we must consider whether the appellate
remedy is nonetheless adequate. Id. In evaluating the benefits and detriments, we
consider whether mandamus will preserve important substantive and procedural
rights from impairment or loss. Team Rocket, 256 S.W.3d at 262; see also In re Van
Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004) (per curiam) (orig. proceeding)
(stating that the danger of permanently losing substantial rights arises when the
appellate court would not be able to cure the error, when the party’s ability to present
a viable claim or defense is vitiated, or when the error cannot be made a part of the
appellate record). We should also consider whether mandamus will allow us “to give
needed and helpful direction to the law that would otherwise prove elusive in appeals
from final judgments” and “whether mandamus will spare litigants and the public ‘the
time and money utterly wasted enduring eventual reversal of improperly conducted
proceedings.’” Team Rocket, 256 S.W.3d at 262 (quoting Prudential, 148 S.W.3d at 136).
B. Did the trial court clearly abuse its discretion and do Relators lack an adequate appellate remedy?
Relators argue that their affirmative defense of limitations has merit and that
the trial court clearly abused its discretion by denying their motion to dismiss that was
5 based on limitations. Affirmative defenses, such as the running of limitations, should
be raised through a motion for summary judgment or proven at trial, not raised
through a motion to dismiss. In re E.H.G, No. 05-15-00439-CV, 2016 WL 4443544, at
*4 (Tex. App.—Dallas Aug. 23, 2016, no pet.) (mem. op.); McIntosh v. Partridge,
No. 01-12-00368-CV, 2013 WL 1790229, at *3 (Tex. App.—Houston [1st Dist.] Apr.
25, 2013, no pet.) (mem. op.); Briggs v. Toyota Mfg. of Tex., 337 S.W.3d 275, 281 (Tex.
App.—San Antonio 2010, no pet.); In re B.LA., No. 05-07-00933-CV,
2008 WL 2313658, at *1 (Tex. App.—Dallas June 6, 2008, no pet.) (mem. op.). Thus,
the trial court could have properly denied Relators’ motion to dismiss—hence not
abusing its discretion—because a motion to dismiss was not the proper procedural
vehicle for raising Relators’ limitations defense. 1 Further, Relators have an adequate
appellate remedy: they can raise their limitations defense through a motion for
summary judgment or a motion at trial, and, if unsuccessful, they can raise their
complaint on appeal by assigning error to the trial court’s judgment following trial.2
1 Relators’ motion to dismiss cannot be reasonably construed as a motion for summary judgment. The motion was heard less than twenty-one days after it was filed, RPI did not file a response to the motion, and oral testimony was received at the hearing on the motion. See Tex. R. Civ. P. 166a(c). 2 Relators’ complaint regarding the temporary orders is entirely based on their limitations defense—a defense that can still be raised below. Relators claim that “[w]hen the affirmative defense of the statute of limitations is raised, the court must determine whether the statute of limitations applies before it can enter temporary orders.” Relators have cited no authority for that proposition, and we have found none.
6 See Williams v. Colthurst, 253 S.W.3d 353, 359–60 n.3 (Tex. App.—Eastland 2008, no
pet.).
IV. CONCLUSION
We deny Relators’ petition for writ of mandamus.
/s/ Mike Wallach Mike Wallach Justice
Delivered: July 15, 2021