B.I.V., In Interest of
| Decision Date | 02 February 1994 |
| Docket Number | No. D-3252,D-3252 |
| Parties | In the Interest of B.I.V., a Minor. |
| Court | Texas Supreme Court |
Kevin T. O'Hanlon, Austin, for petitioner.
John E. Lewis, Rose Guerra Reyna, John Robert King, McAllen, for respondent.
Dolores Valadez brought this suit against Raul Longoria to establish his paternity of her child, B.I.V. Longoria moved for summary judgment on the ground that the child had a presumed father, thus barring a paternity action as a matter of law. At the time Valadez brought her suit, Section 13.01(a) of the Family Code specifically limited the filing of a paternity suit to those situations in which the child involved had no "presumed father." Section 12.01(a)(1) of the Family Code provided, then as now, that a man married to the mother of a child at the time of the child's birth is presumed to be the father of that child. Based on undisputed evidence that B.I.V. was born while Valadez was validly married to a man other than Longoria, the trial court granted the summary judgment. Valadez appealed, arguing that the Legislature did not intend to require termination of a presumed father's parental rights before a Chapter 13 suit could be filed against someone other than the presumed father. The court of appeals, rejecting this argument, held as a matter of law that a paternity action could not be filed if the child had a presumed father, and thus affirmed the trial court's decision to grant appellee's summary judgment. 843 S.W.2d 58, 64. The court relied on the decision of the court of appeals in State v. Lavan, 802 S.W.2d 73, 74-77 (Tex.App.--Austin 1990), rev'd, 833 S.W.2d 952 (Tex.1992).
While the motion for rehearing was pending, this Court reversed the lower court's decision in Lavan. We held that proceedings to disestablish paternity in one man and establish paternity in another may be brought in one action. Attorney General of Texas v. Lavan, 833 S.W.2d 952 (Tex.1992). On motion for rehearing, the court of appeals in this case concluded that Lavan was distinguishable because there the State joined the presumed father and sought to disestablish his presumed paternity of the child in one pleading, whereas here, Valadez had neither joined the presumed father nor challenged the presumption of paternity under Chapter 12. Based on this distinction, the court of appeals denied appellant's motion for rehearing, notwithstanding our writing in Lavan. 843 S.W.2d at 66-67.
We disagree with the holding of the court of appeals. Our opinion in Lavan made clear that a Chapter 12 claim denying a presumed father's paternity of a child could be raised in the same suit raising a Chapter 13 claim that another man is the biological father of that child. Given that holding, Longoria's summary judgment motion in this case was in substance merely a motion to abate, see Carter v. Brady, 423 S.W.2d 946, 951 (Tex.Civ.App.--San Antonio 1967, writ ref'd n.r.e.), the granting of which would merely give Valadez a reasonable opportunity to amend her suit to remove the obstacle to its prosecution. See Texas Highway Dept. v. Jarrell, 418 S.W.2d 486, 488 (Tex.1967). See also, M & M Const. Co. v. Great Am. Ins. Co., 747 S.W.2d 552, 554 (Tex.App.--Corpus Christi 1988, no writ). 1 A summary judgment should not be based on a pleading deficiency that could be cured by amendment. See Dowler v. Delta Inv. Housing Inc., 834 S.W.2d 127, 129 (Tex.App.--Eastland 1992, no writ). Cf. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983) (), citing, Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.1974) ().
We therefore grant the writ of error and, without hearing oral argument, a majority of the Court reverses the judgment of the court of appeals and remands the cause to the district court for further proceedings consistent with this opinion. 2
1 W...
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