in Re: Sara Garcia & in the Interest of Erica Rochelle Perez, Minor Child ( 2000 )

NUMBER 13-00-050-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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IN RE: SARA GARCIA AND IN THE INTEREST

OF ERICA ROCHELLE PEREZ, A MINOR CHILD

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On appeal from the County Court at Law No. Two

of Hidalgo County, Texas.

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O P I N I O N

Before Justices Dorsey, Chavez and Rodriguez

Opinion by Justice Chavez

This is a petition for writ of mandamus seeking to overturn a trial court's order for blood testing to determine parentage in a child support case. Because we hold that the order of the trial court was barred by the doctrine of collateral estoppel, we conditionally grant the writ.

On June 22, 1989, Erica Rochelle Perez was born to petitioner Sara Garcia. On February 15, 1991, Hidalgo County Court at Law Number 2 entered a decree of legitimation, finding that Xavier Perez had executed a Statement of Paternity for Erica Rochelle Perez and decreeing that Xavier Perez is the father of the child. Sara Garcia was named sole managing conservator of the child, and Xavier Perez was ordered to pay child support.

On February 16, 1999, Sara Garcia filed a petition asking for an increase in Xavier Perez's child support obligation. Xavier responded with a general denial and requested parentage testing pursuant to section 160 of the Texas Family Code. On September 30, 1999, the trial court ordered Sara Garcia, Xavier Perez, and the child to submit to scientific parentage testing to ascertain the probability of Xavier Perez being the child's father. On January 20, 2000 Sara Garcia filed a petition for writ of mandamus seeking relief from this order.

The doctrine of collateral estoppel prevents a party from relitigating an issue that it previously litigated and lost. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 521 (Tex. 1998). Collateral estoppel generally applies when the issue was fully and fairly litigated in the previous action and was essential to the judgment in the previous action. Id. Under some circumstances, a party may set aside a judgment that is no longer appealable or subject to a motion for new trial through the equitable procedure known as a bill of review. Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407 (Tex. 1987). A bill of review petitioner ordinarily must plead and prove: (1) a meritorious claim or defense; (2) that he was prevented from making by the fraud, accident or wrongful act of his opponent; (3) unmixed with any fault or negligence of his own. Id. at 408.

The issue of whether Xavier Perez is the father of Erica Rochelle Perez was fully and fairly litigated in 1991, and the issue was essential to the judgment rendered in at that time. Although Xavier makes various equitable arguments for why, in his view, it would be better that scientific parentage testing proceed, he has neither pleaded nor proven the grounds required for a bill of review. Therefore the doctrine of collateral estoppel bars relitigation of whether Xavier Perez is the father of Erica Rochelle Perez.

We conditionally grant a writ of mandamus directing the trial court to vacate its September 30, 1999 order for parentage testing. However, the writ will not issue unless the trial court fails to comply with this opinion.

MELCHOR CHAVEZ

Justice

Do not publish.

TEX. R. APP. P. 47.3.

Opinion delivered and filed this

the 31^st day of March, 2000.