APPELLATE PROCEDURE: TEXAS ATTORNEY GENERAL'S CHILD SUPPORT DIVISION
HELD TO THE APPELLATE RULES IN APPEAL FROM (NON) PATERNITY CASE

In the Interest of KRS (Tex.App.- Houston [14th Dist.] June 24, 2008)(Yates) (failure to raise error in brief on
the merits, summary judgment affirmed in suit to deny presumptive paternity and establish biological paternity in which
defendant had asserted statute of limitations defense and had trial court had excluded the Attorney General's
summary judgment evidence). Follow link to
opinion on the court's website

Terms and links: Office of Attorney General OAG child support appeals, child support enforcement,
family law | paternity and non-paternity parentage cases | suit to rebut presumption of paternity, deny, disestablish
paternity, establish legal paternity of the biological father, statute of limitations defense
AFFIRMED: Opinion by
Justice Brock Yates  
Before Justices Brock Yates, Guzman and Brown
14-07-00080-CV In the Interest of K.R.S., a child
Appeal from 306th District Court of Galveston County
Trial Court Judge: Janis Louise Yarbrough  
Appellant
The Office of Attorney General Attorney: John B. Worley
Appellee's Attorneys: Otto D. Hewitt, III  James R. Ansell


M E M O R A N D U M   O P I N I O N

Appellant, the Office of the Attorney General of Texas ("the A.G."), appeals the trial court's orders striking its summary
judgment response and accompanying evidence and granting summary judgment in favor of appellee Paul J. McGee.  

In two issues, the A.G. argues that the trial court erred in striking its summary judgment response and evidence and
that, based on the stricken evidence, summary judgment was improper.  We affirm.

When K.R.S., a minor child, was sixteen years old, the A.G. brought an action to disprove the paternity of Charles M.
Brown, the child's presumptive father,[1] and establish the paternity of McGee.  McGee argued that the A.G.'s suit was
barred by limitations because it was brought after the child's fourth birthday.  See Tex. Fam. Code Ann. ' 160.607(a)
(Vernon Supp. 2007).  The A.G. contended that it could bring the action at any time because the mother and
presumed father did not live together or have sexual intercourse during the probable time of conception and the
presumed father never represented that the child was his own.  See id. ' 160.607(b).

McGee raised a jurisdictional challenge and filed a motion to dismiss.  The trial court denied this motion and issued an
order finding, among other things, that Brown and the child's mother neither lived together nor had sexual intercourse
during the probable time of conception and that Brown had never represented that he was the child's father.  

McGee filed a mandamus, and after eighteen months in the appellate courts, the mandamus was denied and the case
was returned to the trial court for further proceedings.  See
In re McGee, No. 01-05-00325-CV, 2005 WL 825745
(Tex. App.- Houston [1st Dist.] Apr. 8, 2005, orig. proceeding [mand. denied]) (mem. op.).

McGee filed a no evidence motion for summary judgment, arguing that the A.G. had no evidence that Brown and the
child's mother did not live together or have sexual intercourse during the probable time of conception.  The A.G. filed
a response and attached as evidence several documents, including the trial court's findings on the earlier motion to
dismiss.  McGee objected and filed a motion to strike the response and all accompanying evidence on three grounds:  
they were untimely filed, the evidence was not authenticated, and the evidence contradicted the A.G.'s responses to
requests for admission and thus could not be used as summary judgment proof.  The trial court granted McGee's
motion to strike without specifying the grounds and then granted McGee's summary judgment motion.  See Tex. R.
Civ. P. 166a(i) (stating that trial court "must grant" a no evidence summary judgment motion unless the nonmovant
produces sufficient summary judgment evidence); Dolcefino v. Randolph, 19 S.W.3d 906, 917 (Tex. App.- Houston
[14th Dist.] 2000, pet. denied) ("Summary judgment, however, must be granted under Rule 166a(i) if the party
opposing the motion fails to bring forth competent summary judgment proof.").

In its initial appellate brief, the A.G. responds to two of McGee's bases for striking its summary judgment response and
evidence, arguing they were timely filed and the evidence did not need to be authenticated.  However, the A.G. did
not attack McGee's other basis for moving to strike the response and evidence - that the evidence contradicted the
A.G.'s admissions and therefore could not be used to defeat summary judgment.  See Cherry v. N. Am. Lloyds of Tex.,
770 S.W.2d 4, 6 (Tex. App.- Houston [14th Dist.] 1989, writ denied).  The A.G. did not argue that this ground was
erroneous until its reply brief.  McGee contends that this is too late and therefore, we must affirm the trial court's ruling
on this unchallenged basis.  We agree.

An appellant must attack all independent bases that support a trial court's ruling.  Hong Kong Dev., Inc. v. Nguyen,
229 S.W.3d 415, 456 (Tex. App.- Houston [1st Dist.] 2007, no pet.).  If an appellant does not challenge an
independent ground, we must accept the validity of the ground and affirm on that basis.  See id.; see also Page v.
Hulse, No. 14-06-00731-CV, 2007 WL 2127717, at *3 (Tex. App.- Houston [14th Dist.] July 26, 2007, pet. denied)
(mem. op.) (affirming trial court's damages award because appellant failed to challenge independent basis for award).
 
The A.G.'s reply brief response to the admissions contradiction ground is too late.  Issues not raised until a reply brief
are waived.  See Howell v. Tex. Workers' Comp. Comm'n, 143 S.W.3d 416, 439 (Tex. App.- Austin 2004, pets.
denied); Zammaron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.- Houston [14th Dist.] 2003, pet. denied); see
also Tex. R. App. P. 38.1(e).  The A.G. argues that the waiver rule does not apply here because its description of its
first issue - that the trial court erred in striking its summary judgment response and evidence - is broad enough to
cover its reply brief argument.  However, the A.G.'s initial brief does not even mention the admissions contradiction
ground, much less make any arguments regarding it.  That the A.G. could have but did not make such an argument in
its opening brief does not allow it do so for the first time in its reply brief.  See López v. Montemayor, 131 S.W.3d 54,
61 (Tex. App.- San Antonio 2003, pet. denied) ("A reply brief is not intended to allow an appellant to raise new
issues.").

The A.G. argues that we should relax technical rules such as waiver in family cases because of the importance of the
interests at stake.  We disagree.  We regularly apply procedural rules in family cases and have found waiver, even of
constitutional arguments in parental rights termination cases.  See In re G.V., No. 14-02-00604-CV, 2003 WL
21230176, at *1-2 (Tex. App.- Houston [14th Dist.] May 29, 2003, pet. denied) (mem. op.) (finding due process
complaint waived in parental rights termination case because not raised in trial court); see also In re A.J.H., No.
14-03-01016-CV, 2004 WL 414093, at *6 (Tex. App.- Houston [14th Dist.] Mar. 2, 2004, no pet.) (mem. op.) (finding
briefing waiver on sufficiency points in parental rights termination case).  As the Texas Supreme Court has stated in a
parental rights termination case in which it found multiple instances of waiver of constitutional arguments, "[A]dhering
to our preservation rules isn't a mere technical nicety; the interests at stake are too important to relax rules that serve
a critical purpose."  In re L.M.I., 119 S.W.3d 707, 708 (Tex. 2003) (plurality op.).  The court went on to explain that
preservation rules in family cases help preserve the legislature's intent that such cases be resolved expeditiously and
with finality.  See id. at 708, 711; see also In re Baby Boy R., 191 S.W.3d 916, 921-22 (Tex. App.- Dallas 2006, pet.
denied) (citing L.M.I. in finding waiver of constitutional arguments in parental rights termination case).

We conclude that because the A.G. did not timely challenge an independent basis for the trial court's ruling striking its
summary judgment evidence and response, we must affirm the ruling on that basis.  Thus, we overrule the A.G.'s first
issue.  This leaves the A.G. with no evidence to create a fact issue in response to McGee's no evidence summary
judgment motion, and thus the trial court's order granting summary judgment was proper.  See Tex. R. Civ. P. 166a(i);
Dolcefino,19 S.W.3d at 917.  

Accordingly, we overrule the A.G.'s second issue.  We affirm the trial court's judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed June 24, 2008.

Panel consists of Justices Yates, Guzman, and Brown.
--------------------------------------------------------------------------------

[1]  Brown is the presumptive father because he was married to the child's mother when the child was born.  
See Tex. Fam. Code Ann. ' 160.204(a)(1) (Vernon Supp. 2007).
RELATED CASE / CASELAW

AVCO Corp. v. Interstate Southwest Ltd (Tex.
App.- Houston [14th Dist.] Apr. 3, 2008)
(Supplemental Opinion on motion for
rehearing by Guzman) (declaratory judgment,
failure to present claim/argument in original
brief)