In the Interest of B.G.A., A Minor Child--Appeal from 73rd Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00315-CV
IN THE INTEREST OF B.G.A.,
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2002-PA-00580
Honorable Martha Tanner, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 2, 2003

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

This is an appeal from the trial court's granting of Appellee Dale Johnson's plea to the jurisdiction and motion for severance. We affirm the judgment in part and reverse and remand in part.

Background

Before B.G.A. was born, her biological parents, Rebecca Adams Quiroga and Jason Quiroga, both Texas residents, decided to place her in an open adoption. In re Lambert, 993 S.W.2d 123, 125 (Tex. App.--San Antonio 1999, orig. proceeding). The Quirogas selected Virginia residents Kevin and Traci Lambert to be her adoptive parents. Id. The Lamberts have been B.G.A.'s managing conservators since three days after her birth as a result of a judgment rendered by the 73rd Judicial District Court of Bexar County, Texas. Id. This judgment, which was not appealed, terminated the parent-child relationships between B.G.A. and the Quirogas and appointed the Lamberts her managing conservators. Id.

Five months after the judgment was signed, the Quirogas petitioned the trial court to set the termination decree aside and appoint them managing conservators. Id. The Lamberts filed a petition for writ of mandamus in this Court, arguing that the trial court no longer had subject matter jurisdiction over this matter. Id. at 126. We agreed and noted:

The Texas version of the Uniform Child Custody Jurisdiction Act governed the trial court's exercise of jurisdiction over the Quirogas' petition for bill of review to set aside the judgment terminating their parental rights, as well as their request to be appointed managing conservators. When viewed in the light of the TUCCJA, the undisputed evidence establishes the trial court cannot exercise home state, substantial connection, emergency, default, or continuing jurisdiction. Indeed, for a Texas court to exercise jurisdiction on this record would undermine the purposes of the uniform act and threaten exactly the kind of interstate conflict that the UCCJA and the PKPA [Parental Kidnapping Prevention Act] were intended to prevent. We therefore hold the TUCCJA does not permit the trial court to exercise jurisdiction over the Quirogas' suit.

Id. at 132. We then conditionally granted the writ of mandamus, stating that a writ would issue only if the trial court failed to dismiss the Quirogas' suit for lack of jurisdiction. Id. at 133.

Despite our opinion, the Quirogas again filed a bill of review, seeking to set the termination decree aside and appoint them managing conservators of B.G.A. This time, however, along with their bill of review, the Quirogas, seeking money damages, sued the Lamberts and Dale Johnson, an attorney representing the adoption agency in the original termination proceeding, for fraud. The Quirogas allege in their pleadings that the Lamberts and Johnson obtained their affidavits of relinquishment of parental rights and waiver of interest through a material misrepresentation that induced the Quirogas to relinquish their parental rights. In response to the Quirogas' suit, Dale Johnson filed a plea to the jurisdiction and motion for severance. In his plea to the jurisdiction, Johnson, relying on In re Lambert, 993 S.W.2d 123 (Tex. App.--San Antonio 1999, orig. proceeding), argued that the trial court lacked subject matter jurisdiction over the Quirogas' suit pursuant to the TUCCJA. In granting Johnson's plea to the jurisdiction and his motion to sever, the trial court dismissed the Quirogas' bill of review and the fraud claim against Johnson. The trial court then severed these claims from those against the Lamberts, thereby making the judgment final. The Quirogas appealed the trial court's judgment.

Bill of Review

In their first issue, the Quirogas argue that the trial court erred in granting the plea to the jurisdiction, because the trial court had jurisdiction over the termination proceeding and therefore, the bill of review attacking that judgment must be brought in that same court. During oral argument, however, counsel for the Quirogas conceded that Johnson is not a party to the bill of review. Indeed, as an attorney for the adoption agency, Johnson, himself, was not a party to the original termination proceeding, nor would he be directly and materially affected by the successful prosecution of the bill of review. Hunt v. Ramsey, 162 Tex. 133, 140, 345 S.W.2d 260, 264 (1961) (noting that all parties whose interests are such that they would be, or might be, directly and materially affected are necessary parties to a bill of review); Lowe v. Farm Credit Bank, 2 S.W.3d 293, 297 (Tex. App.--San Antonio 1999, pet. denied) (same). Thus, whether the bill of review is granted does not affect Johnson at all. Because Johnson is not a party to the bill of review, the trial court did not err in dismissing the bill of review as to Johnson. We overrule this issue.

Fraud

In their second issue, the Quirogas argue that the trial court erred in granting Johnson's plea to the jurisdiction, because the trial court has subject matter jurisdiction over the fraud claim. According to Johnson, however, the Quirogas only alleged fraudulent conduct necessary for a bill of review to be granted, not a separate fraud claim against Johnson. As such, Johnson contends that the trial court did not have subject matter jurisdiction pursuant to the TUCCJA. We disagree. After reviewing the Quirogas' petition, we find that they have sufficiently pled a separate fraud cause of action against Johnson. And, with respect to the TUCCJA preventing the district court from exercising subject matter jurisdiction, the TUCCJA applies to suits affecting the parent-child relationship ("SAPCR"). In re Lambert, 993 S.W.2d at 128. The Quirogas' fraud claim is not a SAPCR suit, but a tort action. The TUCCJA, therefore, does not deprive the trial court of subject matter jurisdiction over the Quirogas' fraud claim against Johnson.

Johnson also argues that the Quirogas have pled themselves out of court by stating in their petition that the district court "ha[d] acquired and retain[ed] continuing, exclusive jurisdiction of this suit and of the child the subject of this suit as a result of prior proceedings." According to Johnson, because the Quirogas erroneously stated the basis for the trial court's jurisdiction over their fraud claim, the trial court does not have subject matter jurisdiction over the fraud claim. We disagree. A Texas district court is a court of general jurisdiction. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). The Texas Constitution provides that the jurisdiction of a district court "consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body." Tex. Const. art. V, 8. By statute, district courts have "the jurisdiction provided by Article V, Section 8, of the Texas Constitution," Tex. Gov't Code Ann. 24.007 (Vernon 1988), and "may hear and determine any cause that is cognizable by courts of law or equity and may grant any relief that could be granted by either courts of law or equity." Id. 24.008. For courts of general jurisdiction, the presumption is that they have subject matter jurisdiction unless a showing can be made to the contrary. Dubai, 12 S.W.3d at 75 (citation omitted). Thus, all claims are presumed to fall within the jurisdiction of the district court unless the Legislature or Congress has provided that they must be heard elsewhere. Id.

The plaintiff, however, must "allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When reviewing a trial court order dismissing a cause for want of jurisdiction, we must "construe the pleadings in favor of the plaintiff and look to the pleader's intent." Id. (citations omitted). Here, the Quirogas' petition pled sufficient facts to demonstrate the trial court's jurisdiction to hear the fraud claim. We, therefore, hold that the trial court has jurisdiction over the Quirogas' fraud claim and sustain the Quirogas' second issue.

Severance

In their third issue, the Quirogas argue that the trial court erred in severing their claims against Johnson from their claims against the Lamberts. In general, to preserve a complaint for appellate review, the complaining party must make a specific and timely objection. Tex. R. App. P. 33.1; PGP Gas Prods., Inc. v. Fariss, 620 S.W.2d 559, 560 (Tex. 1981); Shank, Irwin, Conant & Williamson v. Durant, Mankoff, Davis, Wolens & Francis, 748 S.W.2d 494, 501 (Tex. App.--Dallas 1988, no writ). The record does not indicate that the Quirogas objected to Johnson's motion to sever. Therefore, the Quirogas have not preserved error as to the severance, and their third issue is overruled.

Frivolous Appeal

Johnson has also requested that we sanction the Quirogas for filing a frivolous appeal. Texas Rule of Appellate Procedure 45 provides that if the court of appeals determines that

an appeal is frivolous, it may--on motion of any party or on its own initiative, after notice and a reasonable opportunity for response--award each prevailing party just damages. In determining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals.

Tex. R. App. P. 45. Under the current rule, "just damages" are permitted if an appeal is objectively frivolous and injures the appellee. Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 397 (Tex. App.--San Antonio 1999, no pet.). As we have sustained one of the Quirogas' issues, we hold that this appeal is not objectively frivolous and deny Johnson's request for sanctions.

Conclusion

Because Johnson was not a party to the Quirogas' bill of review, we affirm that part of the judgment dismissing the bill of review as to Johnson. However, having determined that the trial court has subject matter jurisdiction over the Quirogas' fraud claim against Johnson, we reverse that part of the judgment and remand the Quirogas' fraud cause of action to the trial court for further proceedings consistent with this opinion.

Karen Angelini, Justice

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