in the Interest of K.R.S., a Child ( 2008 )

Affirmed and Memorandum Opinion filed June24, 2008

Affirmed and Memorandum Opinion filed June24, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00080-CV

____________

IN THE INTEREST OF K.R.S., A CHILD

On Appeal from the 306th District Court

Galveston County, Texas

Trial Court Cause No. 04FD1727

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 (Athe 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.CHouston [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 Amust 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.CHouston [14th Dist.] 2000, pet. denied) (ASummary 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 evidenceCthat 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.CHouston [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.CHouston [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.CHouston [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.CAustin 2004, pets. denied); Zammaron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.CHouston [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 issueCthat the trial court erred in striking its summary judgment response and evidenceCis 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.CSan Antonio 2003, pet. denied) (AA 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 *1B2 (Tex. App.CHouston [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.CHouston [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[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, 921B22 (Tex. App.CDallas 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).