B.M.L. Through Jones v. Cooper, 03-95-00382-CV

• Decision Date: 03 April 1996
• Docket Number: No. 03-95-00382-CV,03-95-00382-CV
• Citation: 919 S.W.2d 855
• Parties: B.M.L., a minor child, Through her mother, Valerie Michele JONES, her legal representative, Appellant, v. Leslie R. COOPER, Jr., Appellee.
• Court: Texas Court of Appeals

Page 855

919 S.W.2d 855

B.M.L., a minor child, Through her mother, Valerie Michele JONES, her legal representative, Appellant, v. Leslie R. COOPER, Jr., Appellee.

No. 03-95-00382-CV.

Court of Appeals of Texas Austin.

April 3, 1996.

John F. Campbell, Campbell & Morgan, P.C., Austin, for appellant.

James E. Farris, Farris & Green, L.L.P., Austin, for appellee.

Before CARROLL C.J., and JONES and B.A. SMITH, JJ.

PER CURIAM.

The issue in this appeal is whether a determination of nonpaternity in a child-support suit by the attorney general precludes the fatherless child from filing a subsequent paternity suit against the same alleged father. B.M.L., a minor child, through her mother, Valerie Michele Jones, as her legal representative, contends that the trial court erred by finding B.M.L.'s suit against Leslie R. Cooper, Jr. precluded by such a previous nonpaternity finding. She appeals the summary judgment granted to Cooper. We will reverse the judgment and remand the cause.

BACKGROUND

This appeal turns on the extent of the preclusive effect of a 1993 paternity suit on the present suit.

The 1993 suit

The Texas Attorney General (the State) filed a petition to establish the parent-child relationship on behalf of Jones's daughter. In the Interest of B.M.L., No. 93-07493 (Dist.Ct. of Travis County, 126th Judicial Dist. of Texas, Jan. 13, 1994). The petition alleged Cooper as the father and requested a paternity determination, temporary support orders, conservatorship, a name change, support, withholding from earnings, production of documents, and attorney's fees. The State served both Jones and Cooper with process.

Jones, B.M.L., and Cooper all submitted to blood tests; Cooper, stationed with the Air Force in Turkey, had his blood drawn there. The test procedures require the test subjects to be photographed; the documents contain pictures of each subject. They also contain Jones's fingerprint, but not Cooper's. Jones appeared at a pretrial hearing and testified. The court dismissed the attorney general's action with prejudice on January 6, 1994 when the blood tests excluded Cooper as the father.

Though not a named party, Jones filed a motion requesting trial de novo and ordering new blood tests in January 1994. She was prompted by receiving a copy of a letter written by a Turkish doctor which was sent to the laboratory that analyzed the blood samples. The doctor claimed that the person from whom the blood for the test was drawn might not have been Cooper. The doctor said he later saw the tested man carrying a badge with a different name on it.

The judgment in the 1993 suit became final without the court acting on the motion; Cooper contends that the court took no action because Jones failed to timely request a hearing on her motion. There was no appeal.

The 1995 suit

In 1995, B.M.L., acting through her mother, filed this petition to establish the parent-child relationship. B.M.L. named Cooper as her father. She requested the same elements of relief requested by the State in the 1993 suit.

Cooper filed a motion for summary judgment based on the defenses of res judicata and collateral estoppel. He contended that the 1993 suit established his nonpaternity and was binding because Jones participated in that suit as a witness and by filing the post-trial motion. He attached his attorney's affidavit and documents from the 1993 case: the petition, the blood-test results, the notice of hearing naming Jones, and the dismissal order.

B.M.L.'s response to the summary-judgment motion relied on her nonparticipation in that proceeding. She contended that the 1993 petition showed that the State was interested only in child support and did not represent her full interests. She contended that the court wrongfully failed to appoint a guardian or attorney ad litem for the child when dismissing the case. She contended that her mother's affidavit raised the issue that fraud in the blood test undermined the validity of the 1993 dismissal. She argued that res judicata and collateral estoppel should be ignored when other public policies B.M.L.'s summary-judgment proof included her mother's affidavit, the Turkish doctor's letter, and her attorney's affidavit. Jones swore that Cooper was the only possible father for B.M.L. and that, if he is not retested, B.M.L. will remain fatherless. The appellants' attorney swore that they were trying unsuccessfully to locate the doctor to have him sign an affidavit, an unsigned copy of which he attached to his affidavit.

such as avoiding illegitimacy, outweigh the interest in finality of judgments. She similarly contended that her great interest in legitimacy should override the minor inconvenience to Cooper in requiring a second blood test. She also argued that she should not lose her right to establish a paternal relationship because of a judgment in a prior suit in which she did not participate.

Cooper objected to the attachment of the doctor's letter as inadmissible hearsay. He also complained that it contained allegations that Jones, to whose affidavit the letter was attached, could not make on personal knowledge. Cooper also objected to the attachment of the doctor's unsigned affidavit. No ruling on these objections appears in the record.

The trial court granted Cooper's motion for summary judgment.

DISCUSSION

Before proceeding to the merits of this appeal, we must consider Cooper's motion to strike or disregard extraneous material in B.M.L.'s brief.

Cooper complains about the attachment of the Turkish doctor's letter as an exhibit to the brief. He alleges that it was excluded as hearsay from the 1993 suit and that he objected to it in the trial court in this suit on the same ground. With no ruling on the record sustaining the objection, however, the letter remains part of the summary-judgment record on appeal. See Utilities Pipeline Co. v. American Petrofina Mktg., 760 S.W.2d 719, 723 (Tex.App.--Dallas 1988, no writ); see also Manoogian v. Lake Forest Corp., 652 S.W.2d 816, 819 (Tex.App.--Austin 1983, writ ref'd n.r.e.). Because the letter is part of the record on appeal, we see no harm in its attachment as an exhibit to the brief. Further, the letter is not integral to our decision on the appeal, thus minimizing any harm. We overrule Cooper's motion to strike.

By her sole point of error, B.M.L. contends that the trial court erred by granting summary judgment and holding that she was precluded from bringing an independent paternity action because of the prior trial of that issue.

When reviewing a summary judgment, we must take evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve all doubt in the nonmovant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant may win summary judgment at trial by showing the absence of a material issue of fact on each element of an affirmative defense and showing an entitlement to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Nixon, 690 S.W.2d at 548-49; Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

Cooper asserted both res judicata and collateral estoppel as bars to this action. Res judicata, or claims preclusion, prevents relitigation of a claim or cause of action that has been finally adjudicated, as well as of matters arising out of the same transaction that, with due diligence, should have been litigated in the original suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630-31 (Tex.1992). Collateral estoppel, or issue preclusion, requires a showing (1) that the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) that those facts were essential to the judgment in the first action; and (3) that the parties were cast as adversaries in the first action. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex.1994).

The preclusive effect of prior judgments extends beyond parties named in the suit and applies to the privies of those parties. Trapnell, 890 S.W.2d at 801-02 (issue preclusion); Lone Star Partners v. NationsBank Corp., 893 S.W.2d 593, 598 (Tex.App.--Texarkana 1994, writ denied). A privy is one who is so connected in law with a party to a The Family Code somewhat codifies the definition of a child's privies. A child is not a necessary party to a paternity suit. Tex.Fam.Code Ann. § 160.003(a) (West Supp.1996) (formerly Tex.Fam.Code Ann. § 13.07(a)). Others who may bring such a suit include a parent and a governmental entity. Tex.Fam.Code Ann. § 102.003 (West Supp.1996) (formerly Tex.Fam.Code Ann. § 11.03(a)). A provision enacted in 1989 creates a presumption that, in a trial on the merits, the party bringing the paternity suit will adequately represent the interests of the child. Tex.Fam.Code Ann. § 160.003(b) (West Supp.1996) (formerly Tex.Fam.Code Ann. § 13.07(a)) ("the statutory presumption of representation").

judgment as to have such an identity of interests that the party represented the same legal right in the previous suit. Phillips v. Allums, 882 S.W.2d 71, 74 (Tex.App.--Houston [14th Dist.] 1994, writ denied) (citing Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex.1971)). Privity is not established, however, by the mere fact that persons may happen to be interested in the same question or in proving the same facts. Phillips, 882 S.W.2d at 74.

Texas courts have interpreted narrowly the binding effect of suits by possible privies. The Second Court of Appeals held that, though a child could not appeal a paternity action brought by another, neither was the child bound by that prior action. R.M.H. by Gabert v. Messick, 828 S.W.2d 226, 230 (Tex.App.--Fort Worth 1992, no writ). The court held that a mother who did not take the blood tests required in her suit to establish paternity did not fully represent her child's interests; the child was not a party to the case, was not bound by the decision, and could not appeal the judgment....