INTERESTING CASES: April 1, 2015

Sallee S. Smyth

1. B.W.D. v. Turnage,2015 Tex. App. LEXIS 1947 (Tex. App. – Dallas March 2, 2015) (mem. opinion) (Cause No. 05-13-01733-CV)

H and W enjoyed a 50/50 sharing of time with their daughter under an agreed modification order. The agreed order further provided for random drug testing of both H and W over a six month period and appointed Forensic DNA and Drug Testing Services to perform the testing. The order provided that if H failed a drug test during that period he would continue random drug testing until he had completed six months without failure or until further order of the court. The order further defined what constituted a “failed” drug test which included (a) submission of a sample determined to be diluted; (b) submission of a sample that tested positive for alcohol or drugs which was not satisfactorily explained to Jim Turnage (president of the testing service) or (c) failure to submit for testing with a specified time after request. Test results were ordered to be sent to counsel for both parties and in addition, if H had a failed test the terms of visitation reverted to an SPO for H with W having the child the remainder of the time. During the initial testing period Turnage reported a “failed” test based on what he determined to be a diluted sample. The lab that actually tested the sample did not consider it to be diluted under federal standards and did not report it as such. Based on the “failed” test H was required to continue random testing, install a breathalyzer on his vehicle and submit to other “onerous” terms to keep his 50/50 possession schedule. H sued Turnage for a variety of claims including negligence and DTPA. Turnage asserted the affirmative defense of derived judicial immunity and sought dismissal of all claims by motion for summary judgment which was granted. H appealed. The COA notes that whether a person is entitled to absolute “derived judicial immunity” is based on a “functional approach” which considers whether the activities of the person claiming immunity are intimately associated with the judicial process and whether the person exercised discretionary judgment comparable to a judge (as opposed to ministerial or administrative tasks). The COA further notes that any such immunity is lost when a person acts in the clear absence of jurisdiction or outside the scope of authority. The COA notes many prior decisions finding derived judicial immunity for persons appointed by courts including bankruptcy trustees, receivers, psychologists, psychiatrists and counselors. H maintained that Turnage did not do the actual testing and that he took it upon himself to report a diluted testing sample when the testing facility, applying federal standards, did not. The COA reviewed the order for testing which never mentioned the actual testing facility and further never mentioned specific testing standards. The order, did however designate Turnage as the one who would determine whether any explanations for a failed test were satisfactory. Overall the COA found that Turnage was operating as an arm of the court to perform services and use discretion as part of the judicial proceedings and that Turnage did not exceed the scope of his authority in interpreting the test results. Summary judgment affirmed.

2. In re Shifflet,2015 Tex. App. LEXIS 1963 (Tex. App. – Houston [1st Dist.] March 3, 2015)(orig. proceeding) (Cause No.01-14-00929-CV)

H and W divorced in 2004. In a 2009 agreed modification order H and W were named JMC with H having the right to establish domicile. H’s step parents, the Shifflets, were given rights of telephone access with the children 3 times each week and were given the right to enforce these terms in their own name. At some point H relinquished the children to W. Thereafter H was convicted of domestic violence regarding a new spouse and W sought emergency relief and obtained a temporary order excluding H from possession. H sought a writ of habeas corpus to return the children. The trial court found that H had voluntarily relinquished the children to W and that she had been in possession of the children for the requisite six month period necessary to successfully defend against a habeas. The court issued orders enjoining possession by H. H did not appear for this hearing. The Shifflets were likewise not present because they had received no notice. After obtaining emergency relief W filed a motion to modify and the Shifflets intervened, seeking SMC, and asserted standing based on their claim that they had been in possession of one of the children for at least six months and alternatively they sought standing as a party affected by the trial court’s order under TFC 156.002(a) (standing to modify). W filed a motion to dismiss for lack of standing. The trial court conducted a non-evidentiary hearing. At the request of W’s attorney, the court took judicial notice of the June 2014 temporary orders which found that W had been in possession of the children for six months, effectively concluding that as a matter of law this defeated the Shifflet’s claim that they had such possession. The trial court granted W’s motion and dismissed the Shifflet’s intervention. The Shifflet’s sought mandamus relief. The COA first noted that standing, as governed by the family code statutes, should not be decided on pleadings alone but upon evidence when there are disputed facts offered to support standing. Here the Shifflets claimed that during several months in 2014 W and the children lived with them and further one of the children had previously lived with the Shifflets for several years. The COA found that while the trial court was entitled to take judicial notice that prior temporary orders were signed, it was not allowed to judicially notice the truth of the evidentiary finings in those orders because they were made in a proceeding in which the Shifflets were not parties. Further the findings were not “generally known within the territorial jurisdiction of the court” or “capable of accurate determination from sources whose accuracy cannot reasonably be questioned.” TRE 201(b) The trial court further cannot judicially notice testimony taken in another case when that testimony is not offered into evidence in the subsequent proceedings. As such, the trial court abused its discretion in dismissing the Shefflits case after a non-evidentiary hearing wherein judicial notice as taken was improper and inconclusive. Further the COA found that the Shefflits qualified as persons affected by the prior order and thus had standing to pursue a modification as authorized by TFC 156.002(a). Mandamus granted.

3. In re N.I.V.S., 2015 Tex. App. LEXIS 2282 (Tex. App. – San Antonio March 11, 2015) (mem. opinion) (Cause No. 04-14-00108-CV)

F was born female but raised as a boy. F lived his adult life as a man. In 1994 F became involved with M who knew he was transgender and they began living together. In 2002 M adopted a newborn and then another in 2004. M, F and the two children lived together as a family. The children referred to F as their father and were unaware F had been born a female. F was known as the children’s F to friends, family, church and school officials. In 2008 F quit his job to be a full time stay at home parent to care for both children who had special needs. In 2011 the couple separated and the children continued to reside with M but F continued to care for them after school, in the mornings and on weekends. In November 2013 M refused to allow further access by F with the children. A few weeks later F obtained a name change (from Diana to Dino) and then in early December filed a suit to adjudicate parentage. F was granted access to the children at Christmas and a hearing was set in early January. A few days before the hearing, F obtained an order legally changing his identity from female to male. M filed a motion to dismiss the suit for lack of standing. F filed a memorandum of law asserting his statutory standing as a man alleged to be the father and also as a person with actual care and control for at least six months. F also asserted standing on common law grounds of in loco parentis, unconscionability, estoppel and psychological parent. The trial court considered the arguments and determined that F was not a man alleged to be the father or whose paternity was to be established and further that F did not have actual care and control of the children for at least 6 months ending 90 days prior to filing suit. The trial court made no findings as to the other grounds asserted and dismissed F’s suit. F appealed. The COA found that standing is to be determined at the time suit is filed. Without addressing the propriety of the January order which purported to change F’s legal status from male to female the COA notes that as of early December 2013 when F filed suit, he was still a female and thus could not have been a man alleging himself to be the children’s father. Further although the COA was clear to recognize the the role F had played in the lives of the children (“we do not take lightly evidence of [F’s] significant involvement in the lives of the children”) the court felt constrained by the TFC statutes governing standing and felt that F’s care for the children after separation from M was not sufficient to justify actual care, custody and control because M continued to make most decisions regarding the children’s education, medical care, etc. (The COA notes that F moved out of the family home more than 3 years before filing suit, implying that the decision might have been different on this issue if F had filed suit shortly after he had been a more full-time parent figure, living with the children in the same home.) Although the trial court did not address the other theories regarding standing, the COA found that the doctrine of in loco parentis has only been applied in situations where there are no parents taking an active role and never in cases where one parent remains involved and thus it should not be applied here. The COA found no authority for considering issues of unconscionability, estoppel or psychological parenting in the fact of specific statutes governing standing under the TFC.

4. Tanner v. Black, 2015 Tex. App. LEXIS 2381 (Tex. App. – Houston [1st Dist.] March 12, 2015) (Cause No. 01-13-01059-CV)

In 2008 Black was appointed to serve as amicus attorney for H and W’s child during a divorce and custody proceeding. Sometime after a final judgment was signed, H sued Black, both individually and as next friend of the child. Black answered and asserted the affirmative defense of judicial immunity. Black counterclaimed for sanctions against H asserting that the suit was filed in bad faith, groundless and for harassment. Black filed a motion to show authority claiming that H had no right to file as “next friend” of the child because terms of the final judgment required H and W to agree to any suits filed on behalf of the child. A hearing was held on Black’s motion to show authority. At the hearing H conceded that he could not bring suit on behalf of the child without his ex-W’s consent and that she had been unwilling to agree to his suit. Black asserted that H’s claims should likewise be dismissed because they were derivative of his claims brought on behalf of the child. Black’s counsel put on evidence of attorneys fees and asserted that Black was entitled to recover fees against H. The trial court struck all of H’s pleadings and assessed fees against H in favor of Black for over $26,000. H filed a MNT which was overruled by operation of law and then he appealed. The COA found that while it was proper to dismiss the H’s claims brought as next friend, it was not proper to dismiss those brought in his individual capacity because although Black had asserted the affirmative defense of judicial immunity, the defense was not established or even asserted in the context of Black’s motion to show authority. The COA noted that while amicus attorneys do have judicial immunity, it is not absolute and must still be established by evidence. The cases relied upon by Black involved motions for summary judgment were the evidence conclusively established the defense and therefore summary judgment and dismissal were procedurally proper. However in this case the affirmative defense had not yet been proven or established at a preliminary hearing to show authority and thus it was error for the trial court to strike H’s individual pleadings and dismiss his claims in that setting. Further the COA found that the order awarding fees did not make any findings that such fees were being awarded as sanctions and the record did not establish that the evidence supported the award of fees as sanctions, but merely as reasonable attorney fees to which Black asserted she was entitled to receive. The COA found this to be error, reversed the order dismissing H’s individual suit and the award of fees and remanding those claims back to the trial court.

5. Barnes v. Deadrick, 2015 Tex. App. LEXIS 2491 (Tex. App. – Houston [1st Dist.] March 17, 2015) (Cause No. 01-14-00271-CV)

In 2007, the child’s half-sister (Sis) filed a SAPCR seeking custody after their mother died. In 2009 the trial court signed an order which recited that F had been duly served but did not appear and defaulted. The order appointed Sis as SMC of the child and named F as PC, giving him supervised visitation and ordering c/s. F filed a bill of review proceeding. A docket entry in 2010 reflects that a hearing was scheduled, Sis appeared with counsel, F did not appear and the AJ wrote “bill of review denied.” No written order was signed and then in 2011 the trial court signed an order dismissing the case for want of prosecution which stated that notice of a February 2011 trial setting had been provided and no party or counsel appeared. F filed a second bill of review action almost 2 years later, claiming in a verified petition that he had never been served in the 2007 SAPCR suit (asserting that service was allegedly accomplished by substituted service at an improper address). Sis answered the suit and asserted res judicata as an affirmative defense. At a preliminary hearing the court heard arguments concerning res judicata with Sis claiming that the docket entry reflecting denial of the first bill of review action amounted to a decision on the merits. The trial court agreed and signed an order denying the second bill of review case. F filed a MNT. Sis defended with the same res judicata arguments and further claimed that a MNT was not proper to challenge the courts order denying BOR. Sis also sought sanctions against F. The trial court denied the MNT after hearing signing an order which found F’s claims were barred by res judicata and that his MNT was procedurally improper. The trial court awarded $2700 in sanctions against F. F appealed. In a 2-1 decision the COA determined that the docket entry “bill of review denied” in the first action could not be relied upon as a final judgment and that the only final judgment in the first action was one dismissing the case for want of prosecution. Further, the DWOP order did not specify whether dismissal was with or without prejudice, thus it had to be presumed “without prejudice” and such orders do not adjudicate a case on the merits such that they are barred by res judicata. As an alternate theory supporting the trial court’s decision, Sis argued on appeal that F should have offered evidence supporting the elements of a bill of review at the preliminary hearing and because he did not do so, the court properly denied bill of review. The majority considered the elements required in light of F’s claim that he had not been properly served, finding that he must only establish a lack of service because if he was never served then the remaining elements would be excused. The COA further noted that F was not given an opportunity to present his evidence at the preliminary hearing because the court accepted the res judicata arguments as an initial premise and denied relief. Sis argued on appeal that F’s inattention to the case justified the results but the COA determined that any lack of attention by F was not relevant if he could establish that he was never served. Further, any delay in filing the second bill of review action could not support denial because it was still filed within the 4 year SOL. Order denying second bill of review reversed and remanded. DISSENT: Justice Keyes dissented asserting that it was hard to imagine a case where a party had shown more indifference which goes against the principles governing bill of review proceedings, suggesting that the majority’s decision contributed to the delays and waste of litigation and judicial resources discouraged by TRCP Rule 1. Justice Keyes asserts that a DWOP order may be challenged by a timely motion to reinstate or an appeal. She asserts that because F did neither in regard to the dismissal of his first BOR suit, he did not avail himself of all legal remedies available and a BOR is only available when a party has exercised due diligence in pursing his available legal remedies. Justice Keyes further asserts that F is not harmed by the denial of his BOR because he can file a modification action under TFC Chapter 156. (This author notes that this suggestion completely ignores the loss of the parental presumption in modification cases and the restriction upon evidence which pre-dates the last order, both of which could trigger F’s loss of substantial rights otherwise available to him in an original SAPCR proceeding.)