Terry and Kelly Jo Wood Kiefer v. Ioannis John Touris and Dennis G. Brewer, Jr. Ex Rel Alexander Kiefer

IN THE

TENTH COURT OF APPEALS

 

No. 10-03-00331-CV

Terry Kiefer and

Kelly Jo Wood,

                                                                      Appellants

 v.

Ioannis John Touris and

Dennis G. Brewer, Jr.

ex rel Alexander Kiefer,

                                                                      Appellees

From the 301st District Court

Dallas County, Texas

Trial Court No. 02-15907

DISSENTING Opinion

          The Court errs.  First, this Court has no jurisdiction.  Second, this Court refuses to follow Texas Supreme Court precedent.

Interlocutory Ruling in a Bill of Review

          This appeal is taken half way through a trial court proceeding.  The trial court has essentially determined in a summary judgment proceeding that a prior judgment which determined paternity of A.K. and the relative rights and responsibilities of Terry Kiefer and Kelly Jo Wood are set aside.  The majority affirms that decision and acknowledges that this will allow a new determination of who the parents of A.K. are and the relative “rights and relationships” of the various parties.  See Majority Op., fn 8.  Obviously, that second phase has not occurred.  Id.  As such, the decision of the trial court is an interlocutory order.  This is not the type order subject to an interlocutory appeal.

          I cannot express the relevant law and precedent more succinctly than the El Paso Court of Appeals recently did in In the Interest of S.D.E., No. 08-04-00092-CV, 2005 Tex. App. LEXIS 4143 (Tex. App.—El Paso, May 26, 2005, no pet. h.).  The El Paso Court explained it as follows:

BILL OF REVIEW

The final judgment in a bill of review should either deny relief to the petitioner or grant the bill of review and set aside the former judgment, insofar as it is attacked, and substitute a new judgment which properly adjudicates the entire controversy.  In the Interest of J.B.A., 127 S.W.3d 850, 851 (Tex.App.—Fort Worth 2004, no pet.), citing Tex. Employers’ Ins. Ass’n v. Arnold, 126 Tex. 466, 88 S.W.2d 473, 474 (1935); Shahbaz v. Feizy Import& Export Co., 827 S.W.2d 63, 64 (Tex.App.—Houston [1st Dist.] 1992, no writ); Crabtree v. Crabtree, 627 S.W.2d 486, 487 (Tex.App.—Corpus Christi 1981, no writ).  A bill of review that sets aside a prior judgment but does not dispose of all the issues of the case on the merits is interlocutory in nature and not a final, appealable order.  Shahbaz, 827 S.W.2d at 64, citing Tesoro Petroleum v. Smith, 796 S.W.2d 705, 705 (Tex. 1990); Hartford Underwriters Ins. v. Mills, 110 S.W.3d 588, 591 (Tex.App.—Fort Worth 2003, no pet.).

Here, the trial court set aside the prior judgment but it did not address the merits of Estrada’s claims.  See J.B.A., 127 S.W.3d at 852.  Instead, the court ordered that the underlying case be tried on the merits.  Because the judgment granting the bill of review does not dispose of all issues, it is merely interlocutory and not appealable. Id., citing Tesoro, 796 S.W.2d at 705.  We dismiss the appeal for want of jurisdiction.

Id. at *3-4.  We should do the same in this case.

“Alleged Father” Requires an Allegation

          But if I am wrong with regard to our jurisdiction, I would avoid the error the majority makes on the merits.  I would follow the Texas Supreme Court in Sherry rather than the Dallas Court of Appeals in In the Interest of K.M.S.  Texas Dep't of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857 (Tex. 2001); In the Interest of K.M.S., 68 S.W.3d 61 (Tex. App.—Dallas 2001), pet. denied, 91 S.W.3d 331 (Tex. 2002).

          In Sherry, the Texas Supreme Court interpreted various provisions of the Texas Family Code.  One provision construed was the definition of “alleged father” as being a man alleged in a formal pleading filed in that case to be the father.  Sherry, 46 S.W.3d at 860.  The Dallas court in K.M.S. declined to follow the Supreme Court’s construction of the definition of alleged father because the Dallas court construed that portion of the Supreme Court’s opinion as dicta, and for other reasons.  K.M.S., 68 S.W.3d at 70.

          In K.M.S., the result did not turn on the definition of “alleged father.”  The case before us does.  Majority Op., pg. 3.  The majority relies on K.M.S. as support for the proposition that an alleged father can be someone other than a person alleged in a formal pleading as the father.  Id.

          The majority errs.  While the petition for review in K.M.S. was denied, the Dallas court’s refusal to follow Sherry’s construction of what it takes to be an alleged father did not go unmentioned. That per curiam opinion, denying the petition in K.M.S., should be all that is necessary to understand why the majority errs.  The Supreme Court in denying the petition in K.M.S. stated:

In its opinion, the court of appeals “decline[d] to follow” Texas Department of Protective & Regulatory Services v. Sherry, 46 S.W.3d 857 (Tex. 2001), in which this Court interpreted various provisions of the Texas Family Code.  Id. at 70.  The court’s refusal to follow Sherry does not affect the disposition of this case. Nevertheless, in reaching their conclusions, courts of appeals are not free to disregard pronouncements from this Court, as did the court of appeals here.  Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989) (“This court need not defend its opinions from criticism from courts of appeals; rather they must follow this court’s pronouncements.”).

In re K.M.S., 91 S.W.3d 331 (Tex. 2002).

          As for me, and I wish I could say “and this Court,” I will follow Texas Supreme Court precedent.  To be an alleged father entitled to service of process, it must be alleged in a formal pleading that the person is the father.  That just makes common sense, even if the Texas Supreme Court had not already construed it that way.

Conclusion

          We have no jurisdiction of this interlocutory appeal of a decision on the first phase of a bill of review.  The majority errs in reaching the merits.

          As an intermediate appellate court, we are bound to follow precedent of the Texas Supreme Court.  The majority errs in declining to follow the definition of alleged father established by the Texas Supreme Court in Sherry.

          For these reasons, I dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed June 29, 2005