Opinion
No. 05-02-01493-CV.
Opinion filed July 10, 2003.
Appeal from the 301st Judicial District Court, Dallas County, Texas, Trial Court Cause No. 97-16903-T.
AFFIRMED.
MEMORANDUM OPINION
This is a paternity dispute regarding B.E.A.R., who was found to be a child of the marriage of appellant Donna E. Renner and appellee William Martin Renner III in their divorce decree. After William filed a motion to modify the parent-child relationship, John Turner, acting as next friend and as attorney for B.E.A.R., filed a first amended petition to establish parentage and disestablish legal father, requesting that Renner be disestablished as B.E.A.R.'s father and that Hugh Kelso be established as B.E.A.R.'s biological father. William filed a motion for attorney to show authority, pursuant to rule of civil procedure 12, and an amended motion to dismiss. Following a hearing, the trial court struck B.E.A.R.'s pleading and dismissed the parentage case. The motions for new trial were denied after a hearing. The trial court subsequently disposed of all remaining issues in the case. In three issues, Donna and B.E.A.R. (collectively, appellants) contend that the trial court erred in concluding that Turner did not have authority to represent B.E.A.R. and dismissing B.E.A.R.'s case, and the trial court abused its discretion in refusing to appoint a guardian ad litem for B.E.A.R. and dismissing the parentage case. For the reasons below, we resolve these issues against appellants and affirm the trial court's order.
In their first and second issues, appellants contend that the trial court erred in concluding that Turner did not have authority to represent B.E.A.R and in dismissing the cause. They argue that Turner had authority as next friend to bring the suit as the child's attorney under rule of civil procedure 44 and the child had a cause of action under family code sections 160.602 and 160.637. See Tex.R.Civ.P. 44 (providing that minors who have no legal guardian may be represented by a "next friend" under certain rules); Tex. Fam. Code Ann. §§ 160.602, 160.637 (Vernon 2002) (Uniform Parentage Act). William replies that no abuse of discretion by the court in granting his motion to show authority pursuant to rule 12 and dismissing the case can be shown because appellants presented no evidence that Turner was authorized to act as B.E.A.R.'s next friend.
Rule 12 provides in part:
A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that he believes the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before the court and show his authority to act. . . . At the hearing on the motion, the burden of proof shall be upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party. Upon his failure to show such authority, the court shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears.
Although we note that William's motion was not sworn, this issue is not raised on appeal and is deemed waived. See Sloan v. Rivers, 693 S.W.2d 782, 783 (Tex.App.-Fort Worth 1985, no writ).
Tex.R.Civ.P. 12 (emphasis added). The purpose of rule 12 is to discourage and cause dismissal of suits brought without authority so as to protect parties from groundless suits. Sloan, 693 S.W.2d at 784. We review a dismissal pursuant to rule 12 for abuse of discretion. City of San Antonio v. River City Cabaret, Ltd., 32 S.W.3d 291, 293 (Tex.App.-San Antonio 2000, pet. denied). We defer to the trial court on factual findings and review legal conclusions de novo. Id. A district court abuses its discretion on factual decisions only if it arbitrarily and unreasonably departs from the only finding the facts support. In re Wallingford, 64 S.W.3d 22, 24 (Tex.App.-Austin 1999, no pet.) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)). A clear failure by the trial court to analyze or apply the law correctly is an abuse of discretion. Id.
William contends that there was no evidence presented at the hearing regarding Turner's authority to represent B.E.A.R. We agree. The divorce decree provides that Donna and William, as joint managing conservators, have the right to represent B.E.A.R. in legal action and "to make other decisions of substantial legal significance concerning the child subject to the agreement of the other parent conservator." At the hearing, Turner argued that anyone could come into the court as next of friend for a child. However, rule 44 allows a next of friend to sue for a minor when the minor has no legal guardian. Tex.R.Civ.P. 44. Turner also stated at the hearing that the mother and the prospective father, not the adjudicated father, requested that he file the suit.
Appellants argue that Turner's statements are evidence of his authority. Turner was never sworn. Appellants contend that although it is normally true that an attorney's statements must be under oath to be considered evidence, William waived the oath requirement by failing to object. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). An opponent of testimony can waive the oath requirement by failing to object "when the opponent knows or should know that an objection is necessary." Id. (attorney stated she was " testifying . . . as an officer of the court").
Turner stated early in the hearing that he was not testifying and that he was prepared to put on evidence. Thus, the record shows that Turner's statements were not evidence in this case. No witnesses were called, there was no motion to reopen the evidence, and no offer of proof was made either at the hearing on the motions or at the hearing on the motion for new trial. Because Turner failed to carry his burden at the hearing to show sufficient authority to prosecute the parentage suit on behalf of B.E.A.R. and no one authorized to prosecute the paternity case appeared at the hearing, the trial court did not abuse its discretion in granting William's motion for attorney to show authority, striking the pleadings, and dismissing the parentage case pursuant to rule 12. See In re Wallingford, 64 S.W.3d at 25. Because we conclude that the trial court's judgment may be upheld on this ground, we need not address appellants' arguments that B.E.A.R. had a cause of action pursuant to chapter 160 of the family code. See In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984) (per curiam) ("Where findings of fact and conclusions of law are not properly requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence."). We resolve the first and second issues against appellants.
In their third issue, appellants contend that the trial court abused its discretion when it failed to appoint a guardian ad litem for B.E.A.R. and dismissed the parentage case. Rule 173 provides in part that, when a minor is a party to a suit and is represented by a next friend who appears to the court to have an interest adverse to the minor, the court shall appoint a guardian ad litem for the person. Tex.R.Civ.P. 173. The decision to appoint a guardian ad litem is within the discretion of the trial court and is not based upon the interests of the next friend or attorney. Coleson v. Bethan, 931 S.W.2d 706, 710 (Tex.App.-Fort Worth 1996, no writ).
First, after the trial court struck B.E.A.R.'s pleadings pursuant to rule 12, there was no suit in which B.E.A.R. was a party. See Sloan, 693 S.W.2d at 784-85 (noting counsel's admission pursuant to rule 12 that he lacked authority of any party named in the pleadings "vitiates the petition in its entirety"). Therefore, the trial court did not abuse its discretion in failing to appoint a guardian ad litem because rule 173 is premised on a minor as a "party to the suit." We cannot conclude that any failure by Turner to meet his burden under rule 12 to show his authority to act as B.E.A.R.'s attorney requires the appointment of a guardian ad litem to have that authority. Accordingly, we conclude the trial court did not abuse its discretion in failing to appoint a guardian ad litem pursuant to rule 173, and we resolve appellants' third issue against them.
Having resolved appellants' issues against them, we affirm the trial court's order granting William's motion for attorney to show authority and amended motion to dismiss and dismissing B.E.A.R.'s parentage case.