DISSENTING OPINION
No. 04-07-00656-CV
IN THE INTEREST OF H.G., K.G., J.D, and T.G., Children
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 05-1912-CV
Honorable W.C. Kirkendall, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Dissenting opinion by: Alma L. López, Chief Justice
Sitting: Alma L. López, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: June 11, 2008
Section 153.432 of the Texas Family Code authorizes biological or adoptive grandparents
to request possession of or access to a grandchild. TEX . FAM . CODE ANN . § 153.432 (Vernon Supp.
2007). Section 153.434 of the Code then sets a limitation on that authority if certain conditions exist,
namely, for purposes of this appeal, if the biological parents of the grandchild have had their rights
terminated and the grandchild has been adopted. TEX . FAM . CODE ANN . § 153.434 (Vernon Supp.
2007). In order to create the conditions that would make the limitation applicable in this case, the
Gibbenses misrepresented to the Glynns that their possession and access as grandparents would
continue. Despite precedent holding that this court’s equity jurisdiction can be used to estop a party
Dissenting Opinion 04-07-00656-CV
from arguing that another party lacks standing, see Eckland Consultants, Inc. v. Ryder, Stilwell Inc.,
176 S.W.3d 80, 87-88 (Tex. App.—Houston [1st Dist.] 2004, no pet.); see also Paradigm Oil, Inc.
v. Retamco Operating, Inc., 242 S.W.3d 67, 71-72 (Tex. App.—San Antonio 2007, pet. denied)
(applying judicial estoppel to prevent a party from denying standing), the majority holds that the
doctrine of quasi-estoppel cannot be applied in this case to prevent the Gibbenses from taking
advantage of a statutory limitation that would be inapplicable in the absence of their
misrepresentations.
As this court has recognized, a trial court’s equitable power is expansive, particularly in cases
in which the best interest of a child is in question:
The equitable power of a court is not bound by cast-iron rules but exists to do
fairness and is flexible and adaptable to particular exigencies so that relief will be
granted when, in view of all the circumstances, to deny it would permit one party to
suffer a gross wrong at the hands of the other.
Hausman v. Hausman, 199 S.W.3d 38, 42 (Tex. App.—San Antonio 2006, no pet.); see also
Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967) (noting courts are given wide discretion in
possession and visitation matters involving children). Quasi-estoppel is an equitable doctrine that
operates as an affirmative defense. Hamilton v. Morris Resources, Ltd., 225 S.W.3d 336, 346 (Tex.
App.—San Antonio 2007, pet. denied). Quasi-estoppel applies when it would be unconscionable
to allow a person to maintain a position inconsistent with the one in which he acquiesced or accepted
a benefit. In re A.L.G., 229 S.W.3d 783, 786 (Tex. App.—San Antonio 2007, no pet.). Quasi-
estoppel precludes a party from asserting, to another’s disadvantage, a right inconsistent with a
position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.
2000); Hamilton, 225 S.W.3d at 346.
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Dissenting Opinion 04-07-00656-CV
Because the Glynns were the managing conservators at the time of the children’s adoption,
their consent was not simply “part of the adoption process” as stated by the majority. Instead, the
Glynns’ consent to the adoption was statutorily required. TEX . FAM . CODE ANN . § 162.010 (Vernon
2002) (entitled “Consent Required” and providing managing conservator’s written consent to
adoption “must be filed”). In order to obtain that consent, the Gibbenses represented to the Glynns
that they would be allowed on-going visitation rights. These representations were made prior to the
entry of the adoption order at a time when the Glynns clearly had standing to seek continued
possession of and access to the children. See Bowers v. Matula, 943 S.W.2d 536, 539-40 (Tex.
App.—Houston [1st Dist.] 1997, no writ) (noting grandparents had standing to request grandparent
access where they filed their petition requesting access before a termination order or adoption order
was in place). Under these circumstances, it would be unconscionable for the Gibbenses to assert
the section 152.434 statutory limitation to the standing conferred in section 153.432. This is
particularly true where, as here, absent the Gibbenses’ misrepresentations the conditions giving rise
to that limitation would not exist. Taking into consideration the paramount concern for the best
interest of these children, the trial court in this case could and should have exercised its equity
jurisdiction because the Gibbenses seek to assert a position contrary to the Gibbenses’ promise that
the Glynns would be allowed continued access if they consented to the adoption. Because the
majority holds to the contrary, I respectfully dissent.
I note that the trial court’s application of quasi-estoppel to find the Glynns had standing
would mean only that the Glynns have the right to be heard, not the right to win. See Whitworth v.
Whitworth, 222 S.W.3d 616, 622 n.3 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also TEX .
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FAM . CODE ANN . § 153.433 (Vernon Supp. 2007) (requiring grandparent to establish that denial of
possession of or access to the child would significantly impair the child’s physical health or
emotional well-being). Given the Gibbenses’ unconscionable actions, the Glynns at the very least
deserve their day in court.
Alma L. López, Chief Justice
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