In the Interest of Joey Garcia, Jr., A Minor Child--Appeal from 225th Judicial District Court of Bexar County

No. 04-97-00950-CV
IN THE INTEREST OF J.G.
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 96-CI-14010
Honorable Martha Tanner, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 30, 1998

REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART

M.L. and J. Garcia appeal the trial court's judgment declaring Johnny Joe Narezo to be the father of J.G. We hold Narezo's suit to establish paternity of J.G. is barred by the two-year statute of limitations contained in section 160.110(f) of the Texas Family Code and therefore reverse the trial court's judgment, render a take-nothing judgment against Narezo, and remand the case to the trial court to consider J. Garcia's motion requesting an order designating him to be J.G.'s father.

Factual and Procedural Background

J.G. was born on July 23, 1991, during the marriage of his biological mother, M.L., and his presumed father, J. Garcia. See Tex. Fam. Code Ann. 151.002(a) (Vernon 1996). Almost five years after J.G.'s birth, on September 24, 1996, J. Garcia's presumed paternity was contested in a petition filed by Johnny Joe Narezo. In response to Narezo's petition, J. Garcia requested an order naming him J.G.'s father, and M.L. Garcia moved to dismiss Narezo's petition pursuant to section 160.110(f) of the Texas Family Code. Section 160.110(f) provides:

The court shall dismiss a suit contesting a presumption of paternity filed by a man who is not a presumed father, but who alleges himself to be the biological father of a child, if:

(1) the suit is filed after the second anniversary of the later of:

(A) the date of birth of the child; or

(B) the time the presumption of paternity came into existence after the child was born; and

(2) the presumed father:

(A) has resided in the same household as the child in a father-child relationship or has established a father-child relationship with the child through his other actions; and

(B) requests an order designating him as the father of the child.

Tex. Fam. Code Ann. 160.110(f). Section 160.110(f) became effective September 1, 1995, and its effective date provision states that it applies "to a pending suit affecting the parent-child relationship without regard to whether the suit was commenced before, on, or after the effective date of this Act." Act of June 16, 1995, 74th Leg., R.S., ch. 751, 129, 1995 Tex. Gen. Laws 3888, 3933. Narezo did not respond to the Garcias' motion, choosing instead to object to their failure to plead limitations in their answer. The trial court overruled Narezo's objection and then, after hearing evidence and arguments, denied M.L. Garcia's motion to dismiss. Thereafter, following a bench trial, the trial court rendered judgment declaring Narezo to be J.G.'s father. The Garcias appeal, contending dismissal is mandated by section 160.110(f).

Discussion

The undisputed evidence establishes Narezo filed this paternity action more than two years after J.G.'s birth, and J. Garcia has resided in the same household as J.G. in a father-child relationship and has requested an order designating him J.G.'s father. Accordingly, the two-year statute of limitations contained in section 160.110(f) mandates a judgment in the Garcias' favor unless, as Narezo argues, (1) the Garcias waived their right to rely on limitations by failing to plead it in their answer; (2) limitations did not begin to run on his paternity action until M.L. told him he was J.G.'s father in late 1994; or (3) the statute is unconstitutional on its face and as applied to him.

Waiver

Narezo argues the Garcias waived their right to rely on the two-year statute of limitations contained in section 160.110(f) by raising it in a motion to dismiss rather than in an answer. We disagree.

As a general rule, a limitations defense must be "set forth affirmatively." Tex. R. Civ. P. 94. However, neither Rule 94 nor any other rule requires a party to plead limitations in an answer, rather than a motion to dismiss. Accordingly, when the material facts are undisputed, limitations may be and frequently is raised in a pretrial motion to dismiss. See, e.g., Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 803 (Tex. 1989); Richardson v. Lake, 966 S.W.2d 681, 683 (Tex. App.--San Antonio 1998, n.w.h.); Instrument Specialties Co. v. Texas Employment Comm'n, 924 S.W.2d 420, 421 (Tex. App.--Fort Worth 1996, writ denied).

Here, the Garcias "affirmatively set forth" their reliance on the two-year statute of limitations contained in section 160.011(f) in a motion to dismiss filed over a month before trial, and the trial court heard and denied their motion before trial. Under these circumstances, we hold the Garcias did not waive their limitations defense by pleading it in a motion to dismiss, rather than in their answer, and the trial court thus correctly overruled Narezo's objection.

Discovery Rule

Narezo also argues his paternity claim is not barred because it was filed less than two years after he was first told J.G. was his child. We again disagree.

No statute applies the discovery rule to a paternity action, and the judicially-created discovery rule applies only in the rare cases in which the "nature of the injury incurred is inherently undiscoverable." Computer Assoc. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996). Paternity is not inherently undiscoverable. See In re J.W.T., 872 S.W.2d 189, 197 (Tex. 1994) (blood tests can establish biological father with "near certainty"). Moreover, Narezo waived his right to rely on the discovery rule by failing to plead it in the trial court. See, e.g., In re Estate of Matejek, 960 S.W.2d 650, 651 (Tex. 1997) (citing Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex. 1988) (discovery rule is waived if not pleaded). We therefore hold the discovery rule does not apply to and did not delay the accrual of Narezo's paternity action.

Acceptance of Benefits

Narezo also argues the Garcias are estopped from appealing the trial court's judgment because they have accepted its benefits, i.e., his court-ordered child support payments. In fact, however, the record filed under seal in this court in conjunction with a preliminary motion to suspend establishes the contrary.

Visitation

Narezo also points out that he has had approximately seventeen visits with J.G. since July 23, 1998, when M.L. Garcia was held in contempt of court. However, neither the number of visits nor the contempt finding is relevant to any issue now before this court.

Constitutionality of Section 160.110(f)

Finally, Narezo argues section 160.110(f) is unconstitutional on its face and as applied to him because the statute barred his action on the first day he had standing to assert it. However, the premise underlying Narezo's argument is incorrect. As we pointed out during oral argument, Narezo could have filed a paternity action free from the constraints of section 160.110(f) at any time between June 30, 1993, the date the first opinion was issued in In re J.W.T., 872 S.W.2d at 189, and the date Narezo's standing was first recognized, and September 1, 1995, the effective date of section 160.110(f), but he failed to do so within this period of more than two years. Moreover, Narezo failed to raise the constitutionality of the statute until his reply to the Garcias' motion for new trial. See McCraw v. Vickers, 717 S.W.2d 738, 741 (Tex. App.--San Antonio 1986, no writ)(constitutional challenges to commissioner's court order raised for first time in motion for new trial did not preserve the issues for appeal); see also Dreyer v. Greene, 871 S.W.2d 697 (Tex. 1993) (refusing to address constitutional attack on statute barring paternity action if biological father established in final judgment by court of competent jurisdiction because arguments not raised in trial court); Reddix v. Eaton Corp., 662 S.W.2d 720 (Tex. App.--San Antonio 1983, writ ref'd n.r.e.) (refusing to address constitutional attack on statute of limitations because "unconstitutionality of a statute is an affirmative defense which must be pled"). Under these circumstances, we decline to address the constitutionality of section 160.011(f)'s retroactive, effective-date provision. See Baptist Hosp. of Southeast Texas, Inc. v. Baber, 714 S.W.2d 310 (Tex. 1986) (per curiam).

Conclusion

Because Narezo failed to challenge the constitutionality of the section 160.110(f) before judgment, and the undisputed evidence conclusively establishes Narezo's paternity action is barred by the statute's two-year limitations period, which the Garcias affirmatively pleaded in their motion to dismiss, the trial court erred in denying the Garcias' motion to dismiss and in rendering a decree of paternity in Narezo's favor. We therefore reverse the trial court's judgment, render a take-nothing judgment against Narezo, and remand this case to the trial court to consider J. Garcia's motion requesting an order designating him to be J.G.'s father.

Sarah B. Duncan, Justice

DO NOT PUBLISH

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