In re Office of Atty. Gen.

• Decision Date: 11 December 2008
• Docket Number: No. 01-08-00670-CV.,01-08-00670-CV.
• Parties: In re The OFFICE OF the ATTORNEY GENERAL, Relator.
• Court: Texas Court of Appeals

276 S.W.3d 611

In re The OFFICE OF the ATTORNEY GENERAL, Relator.

No. 01-08-00670-CV.

Court of Appeals of Texas, Houston (1st Dist.).

December 11, 2008.

Rehearing Overruled January 16, 2009.

Beverly J. Duncan, Houston, TX, John B. Worley, Michael D. Becker, Rande K. Herrell, Assistant Attorneys General, Child Support Division/Appellate Litigation Section, Austin, TX, for Relator.

Linda G. Cryer, Houston, TX, for Real Party Interest.

Panel consists of Justices TAFT, KEYES, and ALCALA.

OPINION

TIM TAFT, Justice.

Relator, the Office of the Attorney General ("OAG"), complains of the October 13, 2008 "First Amended Order Vacating Default Judgment" and of the August 8, 2008 "Order for Parentage Testing" signed by the trial judge¹ upon the granting of the bill of review of the real party in interest, Robert E. Phillips Jr. We determine (1) whether the trial judge abused her discretion in granting the bill of review and in vacating the underlying default judgment adjudging Phillips's paternity; (2) whether the trial judge abused her discretion in ordering paternity testing for purposes of retrial of the paternity action; and (3) whether an adequate remedy by appeal exists for either order. We conditionally grant the petition for writ of mandamus.

Background

This mandamus proceeding arises out of two interlocutory orders that together granted a bill of review, set aside a default judgment of paternity, reinstated the paternity suit, and ordered paternity testing for purposes of retrial.

On August 1, 2007, the OAG filed a suit affecting the parent-child relationship ("SAPCR") to establish the parent-child relationship between Phillips and K.D.P., the child born to Beverly J. Duncan on October 28, 2004. It was undisputed that Phillips was served with citation on September 10, 2007, but that he did not file an answer. The SAPCR case was set for hearing on November 15, 2007, and Phillips admitted receiving notice of the hearing date.

Phillips did not appear at the November 15 hearing, and the trial court rendered a default judgment against him that same day. The default judgment, among other things, established the parent-child relationship between Phillips and K.D.P.; established conservatorship of K.D.P.; and ordered Phillips to pay child support, both prospectively and retroactively.

The OAG and Phillips disputed in the later bill-of-review proceedings whether the trial-court clerk notified Phillips of the default judgment. Nonetheless, Phillips admitted that, on December 3, 2007—within the trial court's plenary power—he received notice that his wages were being garnished pursuant to the default judgment. It is undisputed that Phillips, who had not hired counsel at that point, did not file a motion for new trial in the suit or appeal the default judgment.

Instead, on December 21, 2007, Phillips administered a DNA test to himself and K.D.P. and sent the samples off for testing. The resulting paternity test report, dated December 28, 2007, excluded him as K.D.P.'s father. The report contained a notation that "[f]ailure to comply" (as happened here) with chain-of-custody measures "may render this report inadmissible in a court of law." The report was also not in admissible form and did not meet all of the Texas Family Code's substantive requirements. See TEX. FAM.CODE ANN. §§ 160.503(a), (b), 160.504(a) (Vernon 2002).

On March 25, 2008, Phillips—by then represented by counsel—timely filed a petition for bill of review to set aside the default judgment and to vacate the wage-withholding order. See TEX.R. CIV. P. 329b(f). He also sought attorney's fees and "exemplary damages" from Duncan for acting with "conscious indifferences" [sic] for not having told him that he was not the only "recipient of her sexual activity" and thus not necessarily the father of K.D.P. The bill-of-review petition's allegations were supported by Phillips's affidavit:

I was unable to attend the trial in this cause due to being trapped out of state under blizzard snow conditions. My inability to attend the trial in this case was not due to any fault or negligence on my part, but [was] a result of severe weather conditions that made travel impossible. Once I received notice of the wage withholding order, I immediately did paternity testing with the child in this case and learned that I was excluded as the biological father of [K.D.P.].

The OAG answered and raised various "affirmative defenses" that parallel the arguments that it raises before us. The OAG also specially excepted to the bill-of-review petition for not alleging the basic elements of a bill of review.

An associate judge heard the bill of review on April 30, 2008. Phillips testified that:

• he was notified of the November 15, 2007 hearing date;

• he went to Iowa from November 3, 2007 through November 22, 2007 to work;

• he was "snowed in" in Iowa around the time of the hearing;

• Duncan had nothing to do with the fact that he was in Iowa, and she did not prevent him from attending the hearing;

• he left messages on an answering machine at the OAG's office on November 14 and 15, 2007 that he could not make the hearing;²

• the OAG did not call him back;

• he "was hoping" that the OAG would reset the hearing, based on his phone messages;

• he heard nothing until he received the notice of wage withholding on December 3, 2007;

• he did not file a motion for new trial;

• he learned from the December 28, 2007 genetic-testing report that he was not K.D.P.'s father; and

• the delay in his hiring counsel and filing his bill-of-review petition was due to his need to raise money to hire counsel.

The associate judge ruled that the bill of review be denied and the case be dismissed, concluding that "the prima facie requirement for establishing prima facie evidence and finding a meritorious defense has not been met." On May 1, 2008, the associate judge signed a report, in the form of a proposed "order denying bill of review," that denied the bill of review without stating his reasons and did not contain findings or conclusions. See TEX. FAM.CODE ANN. § 201.011(a) (Vernon Supp. 2008).

Phillips "appealed" the associate judge's report the next day by requesting a de novo hearing before the referring court. See id. § 201.015 (Vernon Supp.2008). The OAG objected to the request for a de novo hearing because (1) the pertinent statute required that the request specify the issues that would be presented to the referring court³ and (2) the issues that Phillips specified were irrelevant to a bill-of-review proceeding. At the May 21, 2008 hearing, without taking any evidence, the trial judge sustained the OAG's objection and orally adopted the associate judge's proposed order. That same day, the trial judge signed an order reciting that it "sustained [the OAG's] Oral Motion to Dismiss" and adopted the associate judge's ruling as her own. See id. §§ 201.013(b), 201.014(a)(1) (Vernon Supp. 2008).

On June 18, 2008, Phillips moved for new trial of the May 21, 2008 ruling, and the OAG responded. The motion for new trial was heard on August 1, 2008. At the hearing, Phillips generally testified to the matters to which he had testified at the April 30 hearing, but added that his employer would not let him off his job in Iowa to attend the November 15 hearing and that Duncan "was not excited at all" and "wasn't surprised" when he told her that the paternity test had excluded him as the father. At the close of evidence, the trial judge orally granted the motion for new trial, ordered paternity testing, set "the case" for trial on October 13, 2008, and set the entry of the new-trial order for August 8, 2008.

On August 7, 2008, the OAG moved for reconsideration and to stay genetic testing. On August 8, 2008, the trial judge heard the OAG's motions and considered the entry of the new-trial order. At the start of the hearing, the OAG noted that Phillips's proposed order adjudicated the merits of the bill of review, rather than purporting just to grant the new-trial motion and to reinstate his request for a de novo hearing on his bill of review. However, the OAG did not object. Additionally, when the trial judge later advised the OAG that it had granted Phillips's bill of review on August 1, 2008—rather than just reinstating his request for a de novo hearing on his bill of review—the OAG did not object, but instead proceeded to discuss the merits of the bill of review, as if it had been granted on August 1. Phillips did likewise. The trial judge's August 1 order granting a new trial thus became, as of August 8, an order granting the bill of review, and the parties then tried by consent reconsideration of that ruling. At the end of the hearing, the trial judge verbally denied the OAG's motions.

That same day, the trial judge signed an order entitled "Order Vacating Default Judgment," which vacated the November 15, 2007 default judgment. The order also contained the following recitation under the heading "Findings": "The Court finds that [Phillips] has made a prima facie showing of a meritorious defense and hereby grants his Bill of Review and vacates the November 15, 2007 Default Judgment in this cause." (The trial judge struck by hand the indicated text.) The order then set the trial "in this cause"—ostensibly now the adjudication of paternity itself, as there were no other matters to be tried after the bill of review had been granted and the default judgment set aside—for October 13, 2008. This August 8 order is the first order of which the OAG complains in this proceeding. Also on August 8, 2008, the trial judge signed a separate order requiring that genetic testing be completed before 5:00 p.m. that same day. The OAG also complains of this second August 8 order in this proceeding.

On August 14, 2008, the OAG filed its petition for writ of mandamus, complaining about the trial judge's two orders of August 8, 2008. On its motion, we stayed the order for genetic testing pending the...