IN THE INTEREST OF B.L.A

REVERSE and REMAND; Opinion Filed June 6, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00933-CV
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IN THE INTEREST OF B.L.A.
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On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 06-1673-15
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MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion By Justice Lang-Miers
        In this appeal, the Office of the Attorney General of Texas (the AG) appeals the trial court's order denying genetic testing and dismissing a child-support enforcement petition with prejudice. The facts of this case, as well as its procedural history, pleadings, and evidence are known to the parties and we do not recount them here. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4.
        The trial court's order states that “the court is of the opinion that this case is barred by the time limitations imposed pursuant to Texas Family Code § 160.607(a) and dismisses the case with prejudice.” The trial court's order also indicates that, in making the decision, the court heard respondent Jerry Ronald Witherington, III's special exceptions and considered evidence presented at the hearing. But the record in this case does not contain special exceptions. Instead, the parties agree that the only pleadings that were filed in this case were the AG's petition, in which it sought child support from Witherington, and Witherington's answer, in which he (1) asserted a general denial, (2) pleaded that the suit is barred by limitations, and (3) requested that the trial court deny genetic testing and adjudicate the presumed father to be the father of the child.
        Our sister court in Austin recently explained that a party seeking dismissal of a case based on an affirmative defense, such as the statute of limitations, should ordinarily raise that request in a motion for summary judgment. In re D.K.M., 242 S.W.3d 863, 865 (Tex. App.-Austin 2007, no pet.) (citing Hunter v. Johnson, 25 S.W.3d 247, 250 n.5 (Tex. App.-El Paso 2000, no pet.); In re K.B.S., 172 S.W.3d 152, 153 (Tex. App.-Beaumont 2005, pet. denied); Montgomery County v. Fuqua, 22 S.W.3d 662, 668-69 (Tex.App.-Beaumont 2000, pet. denied); Univ. of Houston v. Elthon, 9 S.W.3d 351, 356 (Tex. App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.)). As the Austin court explained:
 
 
If parties do not adhere to summary judgment practice in cases such as this, the likely result will be uncertainty for the parties and trial courts and disparity in trial courts' consideration and treatment of individual cases. . . . Further, it is unclear what rules and standards we should apply on appeal.
 
Id. at 866. We agree with our sister court.
        Here, the trial court dismissed the case with prejudice although no motion for summary judgment was filed. And the trial court purported to rule on special exceptions although no special exceptions were filed. We conclude that because the procedure for considering the limitations issue was not followed before this case was dismissed with prejudice, the case must be remanded for further proceedings.
        We reverse the trial court's order and remand the cause for further proceedings consistent with this opinion.
                                                          
                                                          ELIZABETH LANG-MIERS
070933f.p05                                                  JUSTICE