In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00160-CV ___________________________
TERESA MARIE SHIELD, MATTHEW WILSON, AND ROBERT HECK, Appellants
V.
BIO-SYNTHESIS, INC., DNA TESTING CENTRE, INC., AND RITA CHEN, PH.D., Appellees
On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048-311669-19
Before Kerr, Birdwell, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION
I. INTRODUCTION
Appellants Teresa Marie Shield, Matthew Wilson, and Robert Heck sued
Appellees Bio-Synthesis, Inc., DNA Testing Centre, Inc., and Rita Chen, Ph.D. for
claims relating to Appellees’ conduct in performing an allegedly incorrect paternity test
in 2001. Bio-Synthesis and DNA Testing Centre later moved for summary judgment,
arguing that (1) Appellants’ claims were barred by limitations, (2) Appellants’ claims
were an impermissible collateral attack on another court’s judgment, (3) Appellants’
claims were barred by collateral estoppel, (4) Appellants’ claims were barred by Section
160.637(e) of the Family Code, and (5) Appellants’ claim under the Deceptive Trade
Practices Act (DTPA) was improper because Texas does not recognize an implied
warranty for services. The trial court later entered an order granting summary judgment
to all Appellees on all claims brought against them.
In five issues on appeal, Appellants argue that the trial court erred by granting
summary judgment. In their first issue, Appellants argue that summary judgment was
improper as to Chen because citation never issued for Chen, Chen did not appear in
the lawsuit, and Chen did not file a motion for summary judgment. In their second
through fifth issues, Appellants argue that summary judgment was improper to the
extent it was granted based on Bio-Synthesis’s and DNA Testing Centre’s defenses of
the statute of limitations, collateral attack, collateral estoppel, and Section 160.637(e)’s
requirements regarding how to challenge an adjudication of paternity. See Tex. Fam.
2 Code Ann. § 160.637(e). We will sustain Appellants’ five issues and reverse the trial
court’s grant of summary judgment in part. But because Appellants do not challenge
the trial court’s summary judgment as to Bio-Synthesis’s and DNA Testing Centre’s
argument that Appellants’ DTPA claim is improper, we will affirm that portion of the
trial court’s judgment. Thus, we will affirm in part, reverse in part, and remand the case
to the trial court for further proceedings.
II. BACKGROUND
A. Factual Background
Wilson was born on February 2, 1989. Shield is Wilson’s mother. From 1989
to 2001, Heck believed that he was Wilson’s father, lived with Wilson, and raised
Wilson.
1. The 2001 Paternity Test
In August 2001, Heck filed a suit affecting the parent–child relationship
(SAPCR) to establish conservatorship of and child support for Wilson. In October
2001, the court in the SAPCR ordered a paternity test to determine whether Heck was
Wilson’s biological father. Shield, Heck, and Wilson gave DNA samples to DNA
Testing Centre.1 DNA Testing Centre performed a paternity test on the DNA samples.
The results excluded Heck as being Wilson’s biological father. On November 12, 2001,
1 The parties dispute whether DNA Testing Centre is a subsidiary of Bio- Synthesis.
3 Chen certified the paternity-test results. On December 6, 2001, the court in the SAPCR
dismissed the SAPCR with prejudice based on the paternity-test results.
2. The 2019 Paternity Test
In 2019, one of Wilson’s relatives found a DNA match on Ancestry.com
showing that the relative shared DNA with Heck’s family. Shield contacted Heck about
the DNA match, and Appellants agreed to obtain a new DNA paternity test to
determine if Heck was Wilson’s biological father. In July 2019, Shield, Heck, and
Wilson each provided DNA samples for the new paternity test. The new paternity test,
which was signed on July 23, 2019, showed a 99.999999998% probability that Heck was
Wilson’s biological father.
B. Procedural Background
On September 23, 2019, shortly after obtaining the 2019 paternity-test results,
Appellants sued Appellees for violation of the DTPA (as to Bio-Synthesis and DNA
Testing Centre); fraud (as to all Appellees); negligence, gross negligence, and negligent
misrepresentation (as to all Appellees); negligent hiring, supervision, and management
(as to Bio-Synthesis and DNA Testing Centre); and breach of contract (as to Bio-
Synthesis and DNA Testing Centre). Bio-Synthesis and DNA Testing Centre each
appeared and filed an answer in the suit. Appellants, however, never served Chen with
process in the suit, and Chen never appeared or answered the suit.
Bio-Synthesis and DNA Testing Center later filed motions for summary
judgment. In their respective motions, Bio-Synthesis and DNA Testing Centre asserted
4 five grounds for summary judgment: (1) that Appellants’ claims were barred by
limitations, (2) that Appellants’ claims constituted an impermissible collateral attack on
the judgment in the SAPCR, (3) that Appellants should be collaterally estopped from
bringing their claims, (4) that Appellants’ claims were barred by Family Code Section
160.367(e), and (5) that Appellants’ DTPA claim failed because Texas does not
recognize an implied warranty claim. In their summary-judgment responses and in an
amended petition, Appellants raised the discovery rule to Bio-Synthesis’s and DNA
Testing Centre’s limitations defenses. Bio-Synthesis and DNA Testing Centre each
supplemented their motions for summary judgment to address Appellants’ discovery-
rule argument, asserting that the discovery rule does not apply to Appellants’ claims.
Following a hearing, the trial court granted Bio-Synthesis’s and DNA Testing
Centre’s motions for summary judgment, and it signed a final judgment dismissing “all
of [Appellants’] claims and causes of action . . . against [Appellees]” with prejudice. The
trial court’s order did not specify the grounds for its ruling on the summary-judgment
motions. This appeal followed.
III. DISCUSSION
In five issues, Appellants argue that the trial court erred by granting summary
judgment to Appellees.
A. Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d
860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable
5 to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could, and disregarding evidence contrary to the nonmovant unless reasonable jurors
could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant
is entitled to summary judgment on an affirmative defense if the defendant conclusively
proves all elements of that defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–
09 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the defendant must
present summary-judgment evidence that conclusively establishes each element of the
affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
B. Summary Judgment to Chen
In their first issue, Appellants argue that the trial court erred by granting summary
judgment to Chen where citation never issued for Chen, Chen did not appear in the
lawsuit, and Chen did not file a motion for summary judgment.
1. Applicable Law
A court must have personal jurisdiction over a defendant to issue a binding
judgment on that defendant. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). A
court obtains personal jurisdiction over a defendant only if that defendant is properly
served with process. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012); In re P. RJ E.,
499 S.W.3d 571, 574 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (op. on reh’g).
6 If a defendant is not properly served with process, a court lacks personal jurisdiction
over that defendant. See In re P. RJ E., 499 S.W.3d at 574.
Moreover, a court may not grant more relief than that to which a party is entitled.
See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (“A judgment that grants
more relief than a party is entitled to is subject to reversal . . . .”); Young v. Hodde,
682 S.W.2d 236, 236–37 (Tex. 1984) (holding that trial court erred by granting plaintiff
summary judgment on his claim and dismissing defendant’s counterclaim when plaintiff
only moved for summary judgment on his claim); Chessher v. Sw. Bell Tel. Co., 658 S.W.2d
563, 564 (Tex. 1983) (holding that trial court erred by granting party summary judgment
on multiple claims where party only moved for summary judgment on one claim).
In Sorrow v. Harris County Sheriff, the Fourteenth Court of Appeals dealt with a
similar situation involving the grant of summary judgment to parties who had not been
served with process. 622 S.W.3d 496, 505–06 (Tex. App.—Houston [14th Dist.] 2021,
pet. denied). There, one defendant appeared and filed a motion for summary judgment
on behalf of himself, but the motion did not request relief on behalf of the other
defendants who had not been served. Id. The trial court granted the motion, but it also
dismissed all the plaintiff’s claims against all the defendants. Id. The Fourteenth Court
of Appeals reversed the judgment as to the nonmoving defendants, reasoning that the
moving defendant was not entitled to relief that he did not request. Id. at 506, 510.
7 2. Analysis
Here, Appellants never served Chen with process, and Chen never made an
appearance in the lawsuit. Therefore, the trial court never obtained personal jurisdiction
over Chen, and it lacked the authority to grant summary judgment to Chen. See E.R.,
385 S.W.3d at 563; P. RJ E., 499 S.W.3d at 574. Moreover, Chen, having not appeared
in the lawsuit, never moved for summary judgment on her own behalf, and neither Bio-
Synthesis’s nor DNA Testing Centre’s motions for summary judgment requested relief
as to Chen. Thus, the trial court erred by granting summary judgment to Chen.2 See
Lehmann, 39 S.W.3d at 200; Young, 682 S.W.2d at 236–37; Chessher, 658 S.W.2d at 564;
Sorrow, 622 S.W.3d at 506, 510. We sustain Appellants’ first issue.
C. Limitations and the Discovery Rule
In their second issue, Appellants argue that summary judgment should not have
been granted based on Bio-Synthesis’s and DNA Testing Centre’s respective limitations
defenses because of the application of the discovery rule.
2 In its brief, Bio-Synthesis argues that Appellants waived their first issue or should be estopped from asserting their first issue because Appellants’ counsel told the trial court at the summary-judgment hearing that the motions set for hearing were dispositive of the entire case. “Waiver and estoppel do not apply, however, when a trial court renders a judgment it has no power to render.” In re Sensitive Care Inc., 28 S.W.3d 35, 38 (Tex. App.—Fort Worth 2000, no pet.) (orig. proceeding). Because we conclude that the trial court had no power to enter its judgment as to Chen, we reject Bio- Synthesis’s argument.
8 1. Applicable Law Regarding the Statute of Limitations
A statute of limitations establishes a time limit for suing in a civil case. Goetsch v.
Rolls, No. 02-20-00263-CV, 2021 WL 733090, at *4 (Tex. App.—Fort Worth Feb. 25,
2021, pet. denied) (mem. op.) (citing Statute of Limitations, Black’s Law Dictionary (11th
ed. 2019)). A statute of limitations operates as an affirmative defense to a cause of
action. Dunmore v. Chi. Title Ins. Co., 400 S.W.3d 635, 640 (Tex. App.—Dallas 2013, no
pet.).
A statute of limitations begins to run on the accrual date, which is the date that
the cause of action accrues. See JPMorgan Chase Bank, N.A. v. Pro. Pharmacy II,
508 S.W.3d 391, 414 (Tex. App.—Fort Worth 2014, no pet.). A cause of action accrues
when facts giving rise to the cause of action come into existence, even if those facts are
not discovered until later or the resulting injuries do not occur until later. Exxon Corp.
v. Emerald Oil & Gas Co., 348 S.W.3d 194, 202 (Tex. 2011); Dunmore, 400 S.W.3d at 640.
If a claimant is younger than eighteen years old when the cause of action accrues, then
the accrual date is deferred until the claimant turns eighteen years old. Tex. Civ. Prac.
& Rem. Code Ann. § 16.001(a)–(b).
The limitations period for Appellants’ fraud claims and breach-of-contract claims
is four years. Id. § 16.004(a)(4) (fraud); Cosgrove v. Cade, 468 S.W.3d 32, 35 (Tex. 2015)
(breach of contract); see Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (prescribing a
residual limitations period of four years). The limitations period for Appellants’ other
claims is two years. Tex. Bus. & Com. Code Ann. § 17.565 (DTPA); Waffle House, Inc.
9 v. Williams, 313 S.W.3d 796, 798, 805 (Tex. 2010) (negligent supervision); KPMG Peat
Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 750 (Tex. 1999) (negligence);
Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex. App.—Fort Worth 1996, writ denied)
(gross negligence); Exxon Corp., 348 S.W.3d at 202 (negligent misrepresentation); see
Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (providing two-year limitations period
for certain claims).
2. Analysis Regarding the Statute of Limitations
The facts giving rise to Appellants’ claims relate to Appellees’ conduct in
performing and certifying the 2001 paternity-test results and to the dismissal of the
SAPCR based on those results. The court in the SAPCR ordered the paternity test in
October 2001. Chen certified the results on November 12, 2001. The court in the
SAPCR dismissed the SAPCR on December 6, 2001. Thus, the facts giving rise to
Appellants’ claims came into existence between October 2001 and December 6, 2001.
Considering the evidence in the light most favorable to Appellants, we assume without
deciding, for purposes of determining the accrual date, that the facts came into existence
on the latest possible date, December 6, 2001. See 20801, Inc., 249 S.W.3d at 399
(explaining that we indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor); Eiland v. Turpin, Smith, Dyer, Saxe & McDonald, 64 S.W.3d 155,
158–59 (Tex. App.—El Paso 2001, no pet.) (assuming, without deciding, accrual date
for purpose of addressing limitations issue).
10 Under the general rule that a cause of action accrues when facts giving rise to a
cause of action come into existence, the statute of limitations for Shield’s and Heck’s
fraud and breach of contract claims expired on December 6, 2005, and the statute of
limitations for their remaining claims expired on December 6, 2003. Because Wilson
was a minor when the facts giving rise to his causes of action came into existence, his
causes of action accrued on February 2, 2007, when he turned eighteen. Therefore,
under the general rule, the statute of limitations for Wilson’s fraud and breach of
contract claims expired on February 2, 2011, and the statute of limitations for his
remaining claims expired on February 2, 2009. Appellants, however, did not file suit
until September 23, 2019.
3. Applicable Law Regarding the Discovery Rule
Appellants claim that the discovery rule deferred the accrual date for their claims.
The discovery rule is a narrow exception to the general rule that a cause of action
accrues when facts giving rise to the cause of action come into existence. Berry v. Berry,
No. 20-0687, 2022 WL 1510330, at *4 (Tex. May 13, 2022). The discovery rule defers
the accrual date until the claimant discovers, or reasonably should have discovered, the
facts giving rise to the cause of action. Id. (citing Comput. Assocs. Int’l, Inc. v. Altai, Inc.,
918 S.W.2d 453, 455 (Tex. 1996)). Deferring the accrual date delays the commencement
of the limitations period rather than tolling the limitations period once it has
commenced. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996).
11 A defendant who moves for summary judgment based on the statute of
limitations bears the burden of proving when the cause of action accrued. Erikson v.
Renda, 590 S.W.3d 557, 563 (Tex. 2019). The plaintiff may plead the discovery rule in
response to a limitations defense. See Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830,
834 (Tex. 2018). The defendant need not negate the discovery rule to prove when the
cause of action accrued unless the plaintiff pleads the discovery rule. Erikson,
590 S.W.3d at 563; In re Est. of Matejek, 960 S.W.2d 650, 651 (Tex. 1997). If the plaintiff
pleads the discovery rule, the defendant may disprove the discovery rule by proving that
(1) it does not apply or (2) it applies but summary-judgment evidence demonstrates that
the plaintiff discovered, or reasonably should have discovered, its injury within the
limitations period. Schlumberger, 544 S.W.3d at 834.
The discovery rule applies to a cause of action if (1) the injury incurred is
inherently undiscoverable, and (2) the evidence of the injury is objectively verifiable.
Shell Oil Co. v. Ross, 356 S.W.3d 924, 930 (Tex. 2011). “An injury is inherently
undiscoverable if it is by nature unlikely to be discovered within the prescribed
limitations period despite due diligence.” Berry, 2022 WL 1510330, at *4. An injury’s
nature renders the injury unlikely to be discovered if the type of injury, rather than the
plaintiff’s particular injury, is not likely to be discovered through reasonable diligence
within the limitations period. Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 735
(Tex. 2001). In other words, inherent discoverability depends on whether a person is
likely to discover, through reasonable diligence, the type of injury sustained within the
12 limitations period—not whether a plaintiff is likely to discover, through reasonable
diligence, its particular injury. Archer v. Tregellas, 566 S.W.3d 281, 290 (Tex. 2018); see
Wagner & Brown, 58 S.W.3d at 735. Whether an injury is inherently undiscoverable is a
question of law. Via Net v. TIG Ins., 211 S.W.3d 310, 314 (Tex. 2006).
The Texas Supreme Court has discussed the types of cases in which the wrong
and injury to the plaintiff were inherently undiscoverable. See S.V, 933 S.W.2d at 6–7;
see also Clark v. Dillard’s, Inc., 460 S.W.3d 714, 722 (Tex. App.—Dallas 2015, no pet.).
“The cases where the court concluded the wrong and injury were inherently
undiscoverable were ones in which the wrong and the injury were, by their nature,
difficult or impossible to detect until circumstances changed.” Clark, 460 S.W.3d at
722 (citing S.V., 933 S.W.2d at 6–7). “The common thread in these cases is that when
the wrong and injury were unknown to the plaintiff because of their very nature and
not because of any fault of the plaintiff, accrual of the cause of action was delayed.” Id.
(quoting S.V., 933 S.W.2d at 7).
4. Analysis Regarding Whether the Discovery Rule Applies to Appellants’ Claims
We first will consider whether the discovery rule applies to Appellants’ claims.
See Schlumberger, 544 S.W.3d at 834. As noted above, the discovery rule applies to a
claim if (1) the injury incurred is inherently undiscoverable, and (2) the evidence of the
injury is objectively verifiable. Shell Oil Co., 356 S.W.3d at 930. Here, the parties do not
dispute that Appellants’ injuries—the familial consequences flowing from an allegedly
13 incorrect result on a paternity test—were objectively verifiable. It remains to be
determined whether their injuries were inherently undiscoverable.
In Matthiessen v. Schaefer, the San Antonio Court of Appeals held that injuries
related to a flood data survey were inherently undiscoverable because a person was
unlikely to discover that the flood data was incorrect. 27 S.W.3d 25, 31–32 (Tex.
App.—San Antonio 2000, pet. denied). There, a buyer contracted to purchase a flood
data survey. Id. at 31. The seller’s survey included the flood data that the contract
required it to include, but the information was incorrect. Id. The buyer believed that
the survey complied with the contractual requirements, and correct flood data was not
publicly available. Id. at 31–32. The court of appeals reasoned that, although
discovering injuries related to purchasing incorrect flood data was possible, a person
was unlikely to discover the injuries because the survey contained the required data, and
the buyer did not have evidence that the data was incorrect. See id.
Just as the survey in Matthiessen contained the required flood data, here, the 2001
paternity test contained the required DNA information. The paternity-test results
included a comparison of Shield’s, Heck’s, and Wilson’s respective genetic markers and
showed that Heck lacked the genetic markers necessary to be Wilson’s biological father.
Just as the Matthiessen record contained no evidence that correct flood data was publicly
available, the record here contains no evidence that correct paternity data even existed,
14 much less that Appellants could access it, in 2001.3 And just as our sister court
concluded that a person is unlikely to discover injuries related to incorrect flood data,
we conclude that a person is unlikely to discover injuries related to incorrect paternity-
test results.4
In Nelson v. Krusen, the Texas Supreme Court addressed a factual situation that
resembles this one. 678 S.W.2d 918, 920 (Tex. 1984). A doctor performed a DNA test
to rule a mother out as a carrier of muscular dystrophy, and the doctor erroneously told
3 Bio-Synthesis argues that paternity was inherently discoverable because Appellants had a right to a retest following the 2001 paternity test. See Tex. Fam. Code Ann. § 160.507 (“The court or the support enforcement agency shall order additional genetic testing on the request of a party who contests the result of the original testing.”). But just because Appellants could have asked for a retest does not make their claims inherently discoverable, any more than the fact that the plaintiffs in Matthiessen could have paid for an additional flood data survey would make their claims inherently discoverable. 4 DNA Testing Centre argues that Appellants judicially admitted that they knew that they were injured at the time judgment was entered in the SAPCR, pointing to language in their petition and in an affidavit of Shield stating that as a result of the 2001 paternity test, Wilson had spent the last eighteen years of his life without a father or knowing who his father was, that Heck had spent eighteen years without a relationship with his son, and that Shield had spent several years without Heck supporting Wilson and had spent years not knowing who Wilson’s father was. We disagree. Those statements were made with the hindsight of the 2019 paternity test, when the results indicated that Heck was Wilson’s father. There is nothing in the record to indicate, however, that Appellants perceived their injuries following the 2001 paternity test. See Murphy v. Campbell, 964 S.W.2d 265, 271 (Tex. 1997) (holding that accounting malpractice involving tax advice is inherently undiscoverable because it is unlikely a layperson would be aware that the tax advice is faulty at the time the advice is received); Willis v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988) (holding that the “injury” in legal malpractice cases is inherently undiscoverable, reasoning that “[i]t is unrealistic to expect a layman client to have sufficient legal acumen to perceive an injury at the time of the negligent act or omission of his attorney”).
15 the mother that she was not a carrier for the disease. Id. In reliance on that advice, the
mother proceeded to have more children, and the doctor’s error was not discovered
until years after the birth of the mother’s next son, when he began to show signs of
muscular dystrophy. Id. The court remarked that this injury was “not immediately
discoverable,” and that to strip away the protection of the discovery rule would force
the injured parties “to do the impossible—to sue before they had any reason to know
they should sue.” Id. at 923. Strictly speaking, Nelson dealt with a different question
than the one at issue here; it dealt with whether a statutory provision that restricted
access to the discovery rule was constitutional under the open courts provision of the
Texas Constitution. Id. at 922–23. But later Texas Supreme Court cases have advised
that there was another holding lurking in Nelson: that the result of the doctor’s
malpractice in conducting the genetic screening was the type of injury that was
inherently undiscoverable until the child’s symptoms manifested.5 See S.V., 933 S.W.2d
5 We recognize that the Texas Medical Liability Act does not contain a discovery rule, and thus “the statute of limitations begins to run from the dates of the events specified in the statute, irrespective of the claimant’s delayed knowledge that a departure from the standard of care has occurred.” Pignano v. Cash, No. 02-21-00168-CV, 2022 WL 60737, at *6 (Tex. App.—Fort Worth Jan. 6, 2022, pet. filed) (mem. op.); Wright v. Fowler, 991 S.W.2d 343, 350 (Tex. App.—Fort Worth 1999, no pet.). However, no party here has argued that Appellants’ claims should qualify as health care liability claims. See Guimond v. Integrated Genetics Lab Corp Specialty Testing Grp., No. 14-16-00567-CV, 2017 WL 3272292, at *5 (Tex. App.—Houston [14th Dist.] Aug. 1, 2017, pet. denied) (mem. op.) (deeming a suit concerning a mismanaged genetic test on a child to be a health care liability claim). We therefore do not consider the Texas Medical Liability Act’s potential impact on the statute of limitations. See Tex. R. App. P. 33.1; cf. Mem’l Hermann Hosp. Sys. v. Hayden, No. 01-13-00154-CV, 2014 WL 2767128, at *10 (Tex. App.—Houston [1st Dist.] June 17, 2014, pet. denied) (mem. op.).
16 at 6 (discussing inherent discoverability and summarizing Nelson’s holding as
“malpractice in muscular dystrophy gene screening could not be discovered by parents
until child showed symptoms”); Comput. Assocs. Int’l, 918 S.W.2d at 465 (Owen, J.,
concurring) (stating that “[i]n Nelson v. Krusen, . . . the injury was not inherently
undiscoverable”).
This tacit holding of Nelson offers guidance here. Like Nelson, the injury here
consisted of the consequences flowing from an allegedly erroneous paternity test6 that
severely impacted the plaintiffs’ family situation. Under Nelson, that type of injury was
inherently undiscoverable.7 Although Bio-Synthesis and DNA Testing Centre argue
that Appellants could have inquired about how the test was performed, a person taking
6 In its brief, Bio-Synthesis argues that paternity is not inherently undiscoverable, contending that “blood tests can establish biological father[hood] with ‘near certainty.’” See In re J.W.T., 872 S.W.2d 189, 197 & n.24 (Tex. 1994) (holding that DNA tests can establish paternity with “near certainty” and that “blood tests can prove virtually beyond a shadow of a doubt who sired a particular child” (quoting Michael H. v. Gerald D., 491 U.S. 110, 140, 109 S. Ct. 2333, 2351 (1989) (Brennan, J., dissenting)). If anything, however, the near-certain nature of paternity tests suggests that it would be unreasonable for someone in Appellants’ position—particularly laypersons in Appellants’ position—to question the results of a faulty test. See Erikson, 590 S.W.3d at 563 (deeming it “unrealistic to expect a layman” to discern wrongful acts that require significant “acumen” to detect). 7 We recognize that this logic focuses somewhat on whether the allegedly wrongful act—mishandling a paternity test—was inherently undiscoverable rather than whether the injury itself was inherently undiscoverable. But this approach is consistent with the Texas Supreme Court’s reasoning in discovery-rule cases where it is unrealistic for a layperson to have sufficient acumen to perceive their injury at the time of the wrongful act by the defendant. See Murphy, 964 S.W.2d at 271; Willis, 760 S.W.2d at 645.
17 a paternity test is unlikely to inquire about how the test was performed to discover
potential injuries related to negligent or wrongful conduct in performing the test.
Because Bio-Synthesis and DNA Testing Centre moved for summary judgment
on the discovery rule, they bore the burden to prove at the trial level that summary
judgment was proper. Bio-Synthesis and DNA Testing Centre did not prove that a
reasonable person taking a paternity test is likely to discover injuries related to negligent
or wrongful conduct in performing the test. And, we resolve any doubts in favor of
Appellants, as the nonmovants. See 20801, Inc., 249 S.W.3d at 399. Thus, we conclude
that Bio-Synthesis and DNA Testing Centre did not meet their burden of proving that
Appellants’ injuries were inherently discoverable. As such, Bio-Synthesis and DNA
Testing Centre failed to conclusively establish that the discovery rule does not apply in
this case.
5. Analysis Regarding Whether the Summary-Judgment Evidence Demonstrates that Appellants Discovered, or Reasonably Should Have Discovered, Their Injuries Within the Limitations Period
We next consider whether the summary-judgment evidence demonstrates that
Appellants discovered, or reasonably should have discovered, their injuries within the
limitations period. See Schlumberger, 544 S.W.3d at 834.
Summary-judgment evidence negates the discovery rule if, as a matter of law,
“there is no genuine issue of material fact about when the plaintiff discovered, or in the
exercise of reasonable diligence should have discovered[,] the nature of its injury.”
KPMG Peat Marwick, 988 S.W.2d at 748. The date that a plaintiff discovered or should
18 have discovered an injury and whether the plaintiff used reasonable diligence in
discovering the injury are questions of fact. LaTouche v. Perry Homes, LLC, 606 S.W.3d
878, 884 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (citing Childs v.
Haussecker, 974 S.W.2d 31, 44 (Tex. 1998)). Therefore, a court may determine, as a
matter of law, the date that the plaintiff discovered, or should have discovered, an injury
only if reasonable minds could not differ about that date based on the record. Childs,
974 S.W.2d at 44.
Here, the summary-judgment record8 does not establish that Appellants
discovered, or reasonably should have discovered, their injuries within the limitations
period. The summary-judgment record does not contain any evidence indicating that
Heck was Shield’s only sexual partner around the time of Wilson’s conception, which
would have given support to the argument that Appellants (or at least Shield) should
have had a strong indication that the test result was incorrect. Nor does the summary-
judgment record contain any evidence proving that Appellants should have questioned
the validity of the 2001 paternity test. The only glimpse the summary-judgment record
offers of the parties’ suspicions is the phrasing of one sentence in Shield’s affidavit,
where she stated, “I raised [Wilson] without child support and spent years not knowing
The summary-judgment record consists of the 2001 paternity-test results, the 8
2019 paternity-test results, various filings in the SAPCR, various filings and discovery responses in the underlying case, an affidavit from Shield, an affidavit from Appellants’ expert concerning the 2019 paternity-test results, and a publication called “Standards for Parentage Testing Laboratories” made by the American Association of Blood Banks.
19 how the DNA paternity test showed that [Heck] was not my son’s father.” (Emphasis
added). Bio-Synthesis and DNA Testing Centre both seize on the word “how” as an
expression of incredulity at the 2001 test results. Bio-Synthesis and DNA Testing
Centre essentially claim that this sentence conclusively establishes Appellants’ collective
awareness that the 2001 paternity-test results were likely wrong.
But viewing the evidence in the light most favorable to Appellants, we cannot
treat this one isolated expression, which only loosely suggests doubt, as a substitute for
conclusive proof that Appellants did or should have discovered Appellees’ negligent or
wrongful conduct. That, at least, is the guidance of Southwestern Energy Production Co. v.
Berry–Helfand, 491 S.W.3d 699 (Tex. 2016). There, the jury rejected a limitations defense
and concluded that the plaintiff did not discover her claim for misappropriation of trade
secrets until 2009, which was late enough to avoid a limitations bar. Id. at 710. The
defendant oil-field operator brought a sufficiency challenge against this finding, which
required the operator to conclusively establish that the plaintiff knew or with reasonable
diligence could have discovered the misappropriation before early 2006. Id. at 722. The
Texas Supreme Court documented a number of troubling statements made by the
plaintiff in 2005 suggesting her suspicion that the operator was exploiting her trade
secrets, including statements that she “felt that there was something wrong,” that she
was aware that the operator’s drilling operation had encroached on the territory that
her trade secrets concerned, and that she feared that the concepts and methodology
that she had spent years developing were being used by unentitled parties. Id. at 723.
20 Nevertheless, on appeal, the court reasoned that this evidence did not conclusively
establish the date that the misappropriation was discovered or discoverable. Id. at 724.
Rather, this evidence amounted to “mere surmise, suspicion, and accusation.” Id.
“Without more, subjective beliefs and opinions are not facts that in the exercise of
reasonable diligence would lead to the discovery of a wrongful act.” Id.
The evidence cited by Bio-Synthesis and DNA Testing Centre in this case—a
sentence hinting that Shield may have subjectively questioned the results of the 2001
paternity test—likewise falls short of conclusive proof. Nothing elevates this sentence
beyond the level of mere personal suspicion or surmise. See id. Moreover, Shield’s
statement has little bearing on what Heck or Wilson should have suspected about the
test, absent any evidence that they shared a common understanding of the test results.
In their briefs, Biosynthesis and DNA Testing Centre point us to Canada v.
Canada to support their argument that the summary-judgment evidence demonstrates
that Appellants discovered, or reasonably should have discovered, their injuries within
the limitations period. No. 02-11-00483-CV, 2013 WL 1759894 (Tex. App.—Fort
Worth Apr. 25, 2013, no pet.) (mem. op.). In Canada, an ex-wife sued her ex-husband
in 2011, alleging that he had failed to disclose significant income during their 2000
divorce proceeding. 2013 WL 1759894, at *1. The ex-wife presented evidence that in
2010, she had conducted an internet search where she discovered litigation between her
ex-husband and his former employer that revealed that he had earned significant
income that he had failed to disclose during the divorce. Id. However, the ex-wife had
21 also admitted during a deposition that she had learned in 2002 that her husband had an
arbitration proceeding against his former employer but that she had done nothing to
investigate it until she ran the internet search in 2010. Id. at *3. The trial court granted
the ex-husband’s motion for summary judgment that was based on limitations, and the
ex-wife appealed to our court. Id. at *1. On appeal, we held that even after viewing the
evidence in the light most favorable to the ex-wife, the summary-judgment evidence
conclusively established that her claims were filed outside the applicable limitations
period and that assuming the discovery rule applied to that type of claim, the ex-
husband had conclusively negated the discovery rule by demonstrating that the ex-wife
knew that he had claims against his former employer in 2002 and that in the exercise of
reasonable diligence she could have discovered the exact nature of those claims. Id.
at *5.
Canada is distinguishable. The ex-wife in Canada knew about the arbitration case
between her ex-husband and his former employer in 2002, but she did not do anything
with that information until 2010. Id. at *3. A question hung in the air waiting to be
answered, but the ex-wife did nothing to answer it. Here, in contrast, the question
relating to paternity was answered (although, perhaps incorrectly) by the 2001 paternity
test. There is no evidence in the summary-judgment record proving that Appellants
22 should have questioned that answer up until the time that Wilson’s relative found a
DNA match on Ancestry.com.9
We conclude that reasonable minds could differ about the date that Appellants
discovered Bio-Synthesis’s and DNA Testing Centre’s alleged misconduct in
performing the 2001 paternity test because the summary-judgment record does not
prove that Appellants knew in 2001 that the 2001 paternity-test results were incorrect.10
Therefore, we sustain Appellants’ second issue.
9 To the extent that Bio-Synthesis or DNA Testing Centre rely on Canada for the proposition that the discovery rule does not apply to the type of injury at issue here, we reject such a contention, noting that in Canada, we simply assumed that the discovery rule applied to the ex-wife’s injury and then held that the summary-judgment evidence negated the discovery rule. Id. at *5. 10 We note that plaintiffs similarly situated to Appellants could potentially demonstrate at trial that they did not, and should not have, discovered their injuries within the limitations period. In Terry v. Niblack, the Tennessee Supreme Court found that there was no fact question about when a mother discovered her injury relating to an incorrect paternity test and concluded that the mother discovered her injury when she received the results of a second paternity test—not when she received the original, incorrect results. 979 S.W.2d 583, 586–87 (Tenn. 1998). In Terry, the mother sued to establish paternity, and the court ordered a paternity test. Id. at 584–85. The paternity test showed that the man the mother believed was the child’s father was not the child’s father; however, the mother believed that it was biologically impossible for the man not to be the child’s father. Id. at 585. A second test was conducted that established that the man was likely the child’s father. Id. In addressing whether the evidence demonstrated that the mother discovered, or reasonably should have discovered, her injuries within the limitations period, the Tennessee Supreme Court concluded that knowing about the first test’s inaccuracy did not equate to knowing about the testing company’s alleged negligence in performing the test. Id. at 586.
23 D. Collateral Attack
In their third issue, Appellants argue that summary judgment should not have
been granted based on Bio-Synthesis’s and DNA Testing Centre’s respective argument
that Appellants’ claims constituted an impermissible collateral attack on the judgment
in the SAPCR.
A party may attack a judgment directly or collaterally. PNS Stores, Inc. v. Rivera,
379 S.W.3d 267, 271 (Tex. 2012). A direct attack seeks to correct, amend, modify, or
vacate a judgment. Id. A collateral attack “seeks to avoid the binding effect of a
judgment in order to obtain specific relief that the judgment currently impedes.” Id. at
272 (citing Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005)). Only a void judgment
may be collaterally attacked.11 Browning, 165 S.W.3d at 346. Because courts prefer to
give finality to judgments, collateral attacks on judgments are generally disallowed. Orca
Assets, G.P., L.L.C. v. Dorfman, 470 S.W.3d 153, 159 (Tex. App.—Fort Worth 2015, pet.
denied).
A party asserting an impermissible collateral-attack defense must prove that
(1) the current suit is a collateral attack, and (2) the attack is impermissible. See PNS
Stores, Inc., 379 S.W.3d at 272. In other words, the party must prove that (1) the current
11 A judgment is void when “the court rendering the judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act.” PNS Stores, Inc., 379 S.W.3d at 272.
24 suit seeks to avoid the binding effect of the prior judgment in order to obtain specific
relief that the prior judgment currently impedes, and (2) the prior judgment is not void.
See id.
2. Analysis
Bio-Synthesis argues that Appellants seek to avoid the portion of the SAPCR
judgment that denied child support because they allege damages for loss of child
support in their petition. We disagree. In the present suit, Appellants do not ask the
trial court to order Heck to pay past child support. Instead, Appellants seek actual
damages from Appellees for costs Shield incurred raising Wilson that Shield would not
have incurred but for Appellees’ alleged misconduct in performing the 2001 paternity
test.
DNA Testing Centre argues that Appellants seek to avoid the SAPCR
judgment’s effect because they would have to prove that Heck is Wilson’s biological
father to establish damages, which contradicts the SAPCR court’s basis for its paternity
judgment. We disagree. The dispute concerning Appellees’ alleged misconduct in
performing the 2001 paternity test was not at issue in the SAPCR. The dismissal in the
SAPCR does not prohibit granting Appellants relief against Appellees relating to their
alleged misconduct. Therefore, Appellants’ current suit does not seek to avoid the
SAPCR judgment’s effect. See Birchman Baptist Church v. Elliott, No. 02-18-00031-CV,
2018 WL 6113170, at *6 (Tex. App.—Fort Worth Nov. 21, 2018, pet. denied) (mem.
op.) (holding that changing insurance policy beneficiary designation did not avoid prior
25 divorce decree’s effect because change was not at issue in divorce suit). Accordingly,
we hold that Bio-Synthesis and DNA Testing Centre did not prove their collateral-
attack defense because Appellants do not seek to avoid the SAPCR judgment’s effect.
We sustain Appellants’ third issue.
E. Collateral Estoppel
In their fourth issue, Appellants argue that summary judgment should not have
been granted based on Bio-Synthesis’s and DNA Testing Centre’s respective collateral-
estoppel defenses.
Collateral estoppel prevents relitigating a particular issue already resolved in a
prior suit. JPMorgan Chase Bank, N.A., 508 S.W.3d at 416 (citing Barr v. Resol. Tr. Corp.
ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992)). Collateral estoppel is narrower
than res judicata—which prevents relitigating a claim that was or could have been
resolved in a prior suit—because it prevents relitigating only identical fact issues or legal
issues that were actually litigated in and essential to the judgment of a prior suit.
McKnight v. Am. Mercury Ins. Co., 268 S.W.3d 793, 798 n.5 (Tex. App.—Texarkana 2008,
no pet.); Rangel v. Rangel, No. 02-05-411-CV, 2007 WL 291389, at *2 (Tex. App.—Fort
Worth Feb. 1, 2007, no pet.) (mem. op.). A party asserting a collateral-estoppel defense
must prove that (1) the facts sought to be litigated in the second action were fully and
fairly litigated in the first action, (2) those facts were essential to the judgment in the
26 first action, and (3) the parties were cast as adversaries in the first action.12 In re USAA
Gen. Indem. Co., 629 S.W.3d 878, 883 (Tex. 2021) (orig. proceeding).
Collateral estoppel would bar Appellants’ claims only if Appellants sought to
litigate facts in the current suit that were fully and fairly litigated in the SAPCR. In the
SAPCR, Appellants litigated facts relating to Wilson’s paternity, conservatorship, and
support. In contrast, in the current suit, Appellants seek to litigate facts related to
Appellees’ alleged misconduct in performing the 2001 paternity test. The record does
not suggest that facts related to the 2001 paternity test’s accuracy or Appellees’ alleged
conduct in performing the paternity test were raised, litigated, or decided in the SAPCR.
Accordingly, we hold that collateral estoppel does not bar the parties from litigating the
12 We note that this case satisfies the requirement that the parties were cast as adversaries in the first action because Appellants were parties to the SAPCR. The parties were cast as adversaries in the first action if the party against whom the collateral- estoppel defense is asserted was a party or in privity with a party in the first action. BP Auto. LP v. RML Waxahachie Dodge, LLC, 517 S.W.3d 186, 200 (Tex. App.—Texarkana 2017, no pet.) (citing Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994)). Collateral estoppel applies when “asserted against a party who was actually a party in the first action . . . .” State & Cnty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001). Thus, the adversary requirement does not necessitate strict mutuality. Aflatouni v. Enclave at Grapevine, L.P., No. 02-17-00366-CV, 2018 WL 2248489, at *4 (Tex. App.— Fort Worth May 17, 2018, no pet.) (citing Sysco Food, 890 S.W.2d at 801). Strict mutuality means that the adversaries in the second action were adversaries in the first action. See Zea v. Valley Feed & Supply, Inc., 354 S.W.3d 873, 878 (Tex. App.—El Paso 2011, pet. dism’d).
27 facts at issue in the current suit. See JPMorgan Chase Bank, 508 S.W.3d at 416. We sustain
Appellants’ fourth issue.13
F. Section 160.637(e)
In their fifth issue, Appellants argue that summary judgment should not have
been granted based on Bio-Synthesis’s and DNA Testing Centre’s respective argument
that Family Code Section 160.637(e) bars Appellants’ claims. Section 160.637(e)
provides that “[a] party to an adjudication of paternity may challenge the adjudication
only under the laws of this state relating to appeal, the vacating of judgments, or other
judicial review.” Tex. Fam. Code Ann. § 160.637(e).
Here, Appellants do not challenge the SAPCR court’s paternity adjudication;
instead, Appellants allege claims relating to Appellees’ alleged misconduct in
performing the 2001 paternity test. Accordingly, we hold that Family Code Section
160.637(e) does not apply to Appellants’ claims.14 We sustain Appellants’ fifth issue.
Bio-Synthesis responds in its brief, for the first time, that res judicata also bars 13
Appellants’ claims. Neither Bio-Synthesis nor DNA Testing Centre moved for summary judgment based on res judicata, so that issue is not properly before this court. 14 In their briefs, Bio-Synthesis and DNA Testing Centre argue that Family Code Section 160.637(e) bars Appellants’ claims because Appellants “do not dispute that this provision . . . bars their lawsuit.” We disagree. In their response to DNA Testing Centre’s motion for summary judgment, Appellants argued that DNA Testing Centre had not established that Appellants’ suit was barred by the Family Code, although Appellants discussed the application of Family Code Section 160.637(c) rather than Family Code Section 160.637(e). And on appeal, Appellants contend that Section 160.637 does not apply to this case. Therefore, Appellants directly dispute that Family Code Section 160.637(e) bars their claims. And to the extent that Bio-Synthesis and DNA Testing Centre are arguing that summary judgment is proper to their Section
28 G. DTPA Claim
In its brief, Bio-Synthesis references the argument made by it and DNA Testing
Centre in their respective motions for summary judgment that Appellants’ DTPA claim
is improper because Texas does not recognize an implied warranty for services. As
noted above, the order granting summary judgment did not specify the grounds upon
which the trial court relied.
When a trial court’s order granting summary judgment does not specify the
ground or grounds relied on for its ruling, we will affirm summary judgment if any of
the theories presented to the trial court and preserved for appellate review are
meritorious. Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-
Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). When the trial court’s judgment
rests on more than one independent ground or defense, the aggrieved party must assign
error to each ground, or we will affirm the judgment on the uncomplained-of ground.
Scott v. Galusha, 890 S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied).
Bio-Synthesis and DNA Testing Centre moved for summary judgment on their
DTPA claim based on the argument that Texas does not recognize an implied warranty
160.637(e) defense because Appellants did not reference Section 160.637(e) in their summary-judgment response, we note that “[t]he nonmovant has no burden to respond to a summary[-]judgment motion unless the movant conclusively establishes its cause of action or defense” and that “[t]he trial court may not grant summary judgment by default because the nonmovant did not respond to the summary[-]judgment motion when the movant’s summary[-]judgment proof is legally insufficient.” Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 512 (Tex. 2014).
29 for services, but Appellants did not challenge the order on appeal based on that ground.
Accordingly, we affirm the portion of the trial court’s order granting summary judgment
to Bio-Synthesis and DNA Testing Centre on Appellants’ DTPA claim. See Provident
Life & Accident Ins., 128 S.W.3d at 216; Star-Telegram, Inc., 915 S.W.2d at 473; Scott,
890 S.W.2d at 948.
IV. CONCLUSION
Having sustained Appellants’ five issues, we hold that the trial court erred by
granting summary judgment to Bio-Synthesis and DNA Testing Centre on their
respective statute-of-limitations, collateral-attack, collateral-estoppel, and Section
160.637(e) defenses. We hold that the trial court did not err by granting summary
judgment to Bio-Synthesis and DNA Testing Centre on their respective defenses that
Appellants’ DTPA claim was improper because Texas does not recognize an implied
warranty for services. Therefore, we affirm the portion of the trial court’s order
granting summary judgment to Bio-Synthesis and DNA Testing Centre on Appellants’
DTPA claims, reverse the portion of the trial court’s order granting summary judgment
to Bio-Synthesis and DNA Testing Centre on Appellants’ remaining claims, reverse the
portion of the trial court’s order granting summary judgment to Chen on all claims, and
remand the case to the trial court for further proceedings consistent with this opinion.
30 /s/ Dana Womack
Dana Womack Justice
Delivered: July 21, 2022