dissenting.
This is another case in which this court creates and applies an artificial and unnecessary distinction between civil cases generally and a case involving termination of parental rights. The court’s earlier efforts to make such a distinction were rejected. In the Interest of B.L.D., 113 S.W.3d 340 (Tex.2003); In re AN, 113 S.W.3d 355 *172(Tex.2003); In the Interest of A.F., 113 S.W.3d 363 (Tex.2003); In the Interest of K.N.R., 113 S.W.3d 365 (Tex.2003); In the Interest of J.F.C., 96 S.W.3d 256 (Tex.2002). In doing this not only do we err, but we also do a disservice to the bench and bar by creating uncertainty in the law. Further, we do a disservice to this child who is entitled to stability at the most critical time of its development.
In this case the majority uses equitable estoppel as a basis to hold that the suit to terminate the parental rights of Rebecca and Jay should not have been allowed to proceed. In the words of the court: “Because we believe that Scott and Rebecca have satisfied the elements of equitable estoppel, we conclude that the Department should have been estopped to bring this proceeding.” In the Interest ofS.A.P., No. 10-02-00345-CV, slip op. at * 11, 135 S.W.3d 165, 171 (Tex.App. — Waco March 17, 2004, no pet. h.). There is a lot that the reader should know about this statement that is not immediately evident. Before it is accepted at face value, the discerning reader should want to understand the procedural posture by which this issue was presented to the trial court, thus preserving it for our review, and how it was presented and argued. Also, the procedure and relevant facts, which would allow other litigants to bring themselves within this invincible defense, should be of interest to all litigants in Texas courts.
There are many issues presented in this appeal that should be discussed and are not. But after discussing how the issue decided by the majority was not preserved, I will comment only generally about the application of estoppel to this case and discuss the evidence on only one element of estoppel. I will leave the remainder of the issues for another day, hopefully on remand from the Texas Supreme Court.
Let us begin with the obvious: the manner in which this issue was brought to the trial court’s attention, and whether the issue was preserved for our review. Rebecca and Jay both raised the issue in a motion for summary judgment. They both argued that, because of the letter and their response to it, they were each entitled to a judgment denying the termination of their parental rights. The motions were both denied.
The general issue of the effect of the letter and response was also raised in the equivalent of a motion to suppress the evidence which was made orally at the end of the summary judgment hearing. This motion was denied as untimely.
Finally, the issue was raised in a motion in limine. The motion in limine was granted.
Ultimately, the evidence about the prior conduct of Jay regarding the sexual abuse of his other children was introduced, and the evidence that Rebecca had previously had her parental rights terminated regarding other children was also introduced.
In truth, estoppel was only loosely raised in the summary judgment motions. The elements of estoppel were not addressed in any of the motions or related arguments.
The denial of a motion for summary judgment does not preserve the presentation of any issue for appellate review. See Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966); UPS v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex.App. — Houston [14th Dist.] 2000, pet. refd); Libhart v. Copeland, 949 S.W.2d 783, 796 (Tex.App. — Waco 1997, no pet.). There is no civil law equivalent to a motion to suppress; and the denial of the motion, at most, would only be an issue related to the admissibility of evidence and the collateral consequences thereof. The majority is *173not, as such, ruling on the admissibility of the evidence. So the motion to suppress does not preserve the issue they are deciding. We know that the motion in limine cannot preserve any issue regarding evidence, much less an entire defensive theory. So I can find no manner in which the issue of collateral estoppel was preserved for our review.
Additionally, and even more troubling, is the failure to review this issue under the concept of defective pleadings and potential jury charge error. It is horn book law that a defensive theory, like collateral es-toppel, must be raised by a pleading before it becomes an issue for trial. Neither Rebecca or Jay raised the theory as an affirmative defense in an answer. The only answer filed by either appellant was a general denial. No affirmative defenses of any type were raised. Accordingly, there was no pleading alleging equitable estoppel as required before it can become a defensive issue in the trial. TEX. R. CIV. P. 94.
Further, both appellants requested a jury trial. And even if it could be said that the defense of equitable estoppel was tried by consent, a theory that no one has argued, it is necessary to obtain a jury finding before a verdict would support a judgment on this basis. The charge to the jury had no question or instruction regarding equitable estoppel. Equitable estoppel is an affirmative defense. TEX. R. CIV. P. 94. As an affirmative defense, Rebecca and Jay, as the defendants, had the burden of proof. As the party with the burden of proof on the theory, it was incumbent upon them to request that the issues necessary to support the theory be submitted in substantially correct wording. TEX. R. CIV. P. 278 (“... a party shall not be entitled to any submission of any question raised only by a general denial and not raised by affirmative written pleading by that party....”). Because neither appellant requested the submission of a question about equitable estoppel, in any wording much less substantially correct wording, the issue is simply not preserved for our review. TEX. R. CIV. P. 278 (“.. .Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the question is one relied upon by the opposing party.”).
So, based upon the foregoing, I am not sure what theories would have to be cobbled together for the Court to be able to hold that equitable estoppel is a theory which was preserved and upon which we could reverse this judgment. And the cobbler has not favored the reader with any explanation of how the issue was preserved.
So what is all this wailing and gnashing of teeth about?: A letter received by each appellant regarding their role in an investigation regarding abuse and neglect of a child and their responses to it. Because the letter and response are so important, I will set out the full text of each. The same letter was received by Rebecca and Jay. The letter states:
6/21/2001
RE: Williams, Rebecca L
Dear [Jay Peterson] [Rebecca Williams]: Child Protective Services has completed an investigation based on a report dated 6/8/2001 that you were responsible for abuse or neglect of one or more children in the above named case. Agency staff has concluded that you did not have a role in the alleged abuse or neglect. We will be offering services to your family to remedy any other problems identified during the investigation. *174Because all allegations involving you as an alleged perpetrator have been ruled out, you have the right to request that we remove information about your alleged role from our records.
If you decide to make this request, the attached form must be submitted within 45 calendar days after the mailing date of this notice or your request will be denied. Please read the form carefully for more information about this procedure. If your minor child was the alleged perpetrator in this investigation, you may make this request on behalf of your minor child.
You have the right to request a copy of the investigation information upon which the findings are based. The name of the reporter will be removed. Copies are available at established TDPRS rates. Your request for a copy of the written information may be denied if
* a civil or criminal lawsuit involving TDPRS is pending and the attorney representing TDPRS has determined that the information may be withheld, or
* release would jeopardize an ongoing criminal investigation.
You also may have the right to review any relevant videotapes or. audiotapes. I would like to take this opportunity to thank you for your understanding and cooperation during this investigation. You may contact me at (254) 756-5571 during regular work hours if you wish to discuss this letter.
Sincerely,
/[initials] FMZ/
The enclosed document, which was returned by Rebecca and Jay was as follows:
REQUEST FOR REMOVAL OF ROLE INFORMATION FROM CHILD PROTECTIVE SERVICE CASE
This completed request form must be mailed to the Texas Department of Protective and Regulatory Services promptly, within forty-five (45) days after the mailing date of the enclosed notice letter, or your request will be denied....
[[Image here]]
IMPORTANT INFORMATION ABOUT YOUR RIGHTS
Once the role information involving you is removed from our records, THIS INFORMATION WILL BE PERMANENTLY DESTROYED AND WILL NOT BE AVAILABLE TO USE FOR ANY PURPOSE WHATSOEVER. Before deciding whether or not to request that the role information involving you be removed from the department’s records, you should consider the following:
1. Once the information is removed, the department’s official business record will no longer reflect that you were alleged to have committed abuse or neglect in this investigation.
2. Once the information is removed, the department’s official business record will no longer reflect that you were found NOT to have committed abuse or neglect. We will also not have a complete record of the investigation information which led us to conclude that you did not commit abuse or neglect.
3. If for, any reason, you wish to prove that someone falsely reported you for abuse or neglect, our records will not reflect that the report against you was made once this information is removed.
Because this choice may have important consequences, you may wish to consult a private attorney for legal advice as to whether or not you should request that this information be removed.
I have read the forgoing information about my rights and have made the deci*175sion to request that all information about my role as an alleged perpetrator in this investigation be removed from the department’s records.
/s/_ tjsp 7/6/01][rlw 8/6/01] 1
Signature of person Date signed requesting removal of role information
Now let us shift our attention to some problems which underlie applying the theory of equitable estoppel to the argument that TDPRS should be estopped from introduction of evidence of all prior abuse or neglect of any child, ever, based upon the contents of the letter and response.
Absent extraordinary circumstances, es-toppel does not apply as a defense against a governmental entity. See State v. Durham> 860 S.W.2d 63, 67 (Tex.1993).
Even if estoppel could apply in a termination-of-parental-rights suit brought by the State, it would not apply in this situation. I will not attempt to discuss the myriad of reasons why equitable estoppel should not apply in this particular proceeding, based upon this type form letter, or based upon the particular contents thereof. But I must ask the readers to make some observations and apply some common sense.
I ask the reader to carefully review the statements in the letter and response/request and see if they can determine what representations were made by TDPRS that should be elevated over being able to use evidence that existed prior to the time of the letter, or evidence about events that happened after the letter, in a termination proceeding occurring after the letter was delivered and the request was made. While doing this the reader must bear in mind that the letter is being used by this court as a legal basis to bar prosecution of a suit for termination upon any theory, not just abuse or neglect of S.A.P. Of course abuse or neglect is the only issue discussed in the letter.
The majority concludes that “We find detrimental reliance in the fact that both Scott and Rebecca cooperated with the department instead of opposing its actions based on the letters.” But the letter did not exonerate them from all issues regarding their care of S.A.P. Specifically the letter told each of them: ‘We will be offering services to your family to remedy any other problems identified during the investigation.” The majority tries to link the letter to other events involving other children, but the letter says: “.. .that you were responsible for abuse or neglect of one or more children in the above named case.” It is undisputed that the referral, investigation, and case all involved only one child, S.A.P. And the majority has brought all prior conduct within the “abuse or neglect” terminology regardless of when it occurred, and to whom. But the letter says: “Agency staff has concluded that you did not have a role in the alleged abuse or neglect.” This must be limited to the specific abuse or neglect that was the *176basis of the referral; and, at best, that was a highly controverted issue.
Also a critical observation is that the letter only refers to removal from the file of information, and does not refer to, or agree to destroy, evidence or not use evidence that existed outside the file, or that was contained in the file if it did not involve their role as a perpetrator of the abuse or neglect.
The letter made no reference of any investigation into other circumstances, beyond the allegations contained in the June 8, 2001 referral. And the letter certainly did not state that evidence discovered as a result of the investigation could never be used in any termination proceeding. Just because information about their alleged role in the abuse or neglect was going to be removed from the referral investigation file does not mean that all evidence which existed outside the file would not be utilized in a subsequent termination proceeding. And presumably, TDPRS would not create evidence from whole cloth. Thus, there would be no evidence that existed only in the file which resulted from the investigation. Surely no common sense reading of the letter and the request could be construed to mean that all evidence of abuse or neglect, particularly of the abuse or neglect of other children, which existed outside the file would be destroyed.
Further, whether the abuse or neglect mentioned in the letter had allegedly been directly inflicted upon S.A.P. or was some generalized conduct directed against S.A.P. was answered in the negative by the jury in response to the first ground for termination. The first ground for termination, which was answered “no” as to each appellant, is:
[d]o you find by clear and convincing evidence that the ... [parent] has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the emotional or physical well-being of the child?
The jury had been presented with the letter as part of the evidence. Their answer would seem to have been greatly affected by the contents of the letter, to say nothing of the fact that S.A.P. had been in the possession of TDPRS virtually since birth. So unless the jury had determined that because the parents left the child with TDPRS without seeking return of the child to them was grounds for termination under this provision, a possibility that I am not willing to rule out entirely, the jury almost certainly was going to answer “no” to this question. And they did answer “no.”
But there were other theories, upon which termination could be based, that the jury determined against each parent. As to the mother, the jury was asked:
Do you find by clear and convincing evidence that the mother, Rebecca (Williams) Peterson, has had her parent-child relationship terminated with respect to another child based on a finding that the mother’s conduct was in violation of § 161.001(1)(D) or (E), Texas Family Code, or substantially equivalent provisions of the law of another state?
As to the father, the jury was asked: *177These are valid theories which the majority has not determined were not supported by the evidence. And the law is well-settled that termination needs only one basis to be upheld. The court has enveloped all grounds in its analysis under its determination that TDPRS was estopped from bringing any theory of termination based upon the letter and the subsequent request.
*176Do you find by clear and convincing evidence that the father, JAY SCOTT PETERSON, has failed to comply with the provisions of a court order that specifically established the actions necessary for JAY SCOTT PETERSON to obtain the return of the child, who has been in the temporary managing conser-vatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child?
*177But as to the mother, the termination could be properly based upon events that occurred prior to the referral and which consisted of evidence unrelated to any conduct of the mother in reliance on the letter. Quite simply, there could have been no justifiable reliance on the letter if her parental rights were terminated based on events that occurred prior to the letter.
And as to the father, the termination could be properly based upon events that happened after, but independent of the grounds investigated by the referral leading to the letter, and thus was not information that, under the court’s theory, should have been purged from the file never to be seen or used again. In fact, because these events occurred after the letter, it is not information that could have been purged from the file. It was information about events that did not even exist at the date of the letter.
Based upon the foregoing, and the jury’s answer to these specific questions, the specific issue as to estoppel that I will address is what appears to me to be a total lack of evidence to support one element — detrimental reliance. In this case, equitable estoppel would require detrimental reliance by the parents upon the representations made in the letter. What is lacking from this record, other than preservation of an error or a jury determination that TDPRS should be barred by estoppel, is evidence that either parent took any action after the letter based upon the representations in the letter that was detrimental to them in any way. Without detrimental reliance, there is no equitable estoppel. There is no basis for the court to go out on its own and raise the theory and farther hold as a matter of law that it was established. But that is the judgement of the majority, and it causes me to have to dissent.
There are many issues other than estop-pel that have been argued by the parties. Some of the other issues could, in theory, result in a rendition in favor of Rebecca or Jay, or could result in a remand for a new trial if it is determined the trial court erred and the error was not harmless.2 In this situation, an appellate purist would say that, because I disagree with the majority on the issue on which they have decided the result, I should conduct my own analysis of these other issues raised by the appellants to determine whether, in the final analysis, I agree or disagree with the result. I agree with the purist. But the reality of the situation is that the judgment already has two votes and an in-depth analysis will not change that judg*178ment. It will only serve to delay the ultimate disposition of this appeal. In this instance, I will yield to the pressure of a more timely response, as opposed to conducting a separate, but futile, analysis.
Accordingly, I respectfully dissent.
. I must briefly mention in passing that I believe there is at least an issue regarding the timeliness of Rebecca’s response. The initials and dates above the "Date signed” line indicate the dates that Jay and Rebecca indicate on the form that it was signed. Rebecca indicated that she signed the form on August 6, 2001. As clearly stated in the transmittal letter and the form, the form must be returned "within 45 days” of the date on the transmittal letter. The date of the transmittal letter was June 21, 2001. Rebecca signed her form after 45 days and is therefore not entitled to the relief she seeks in any circumstance. I note that the 45th day fell an a Sunday. But the letter and the administrative code specifies "within 45 days.” Because this was not a pleading or other court imposed deadline, there is no reason to apply the rule of civil procedure regarding extending the filing period to the next business day if the deadline falls on a Sunday.
. As to the relief granted, the court should be clear in what they consider further proceedings consistent with the court’s opinion. Because we must review the issues which afford the appellant the greatest relief first, Bradleys' Elec. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.1999), and because there were issues of legal sufficiency raised, the only logical construction of the court’s opinion and judgment is that the judgment of termination is reversed and must, on remand be rendered in favor of Rebecca and Jay. Thus, the holding of this court is that there was no theory raised at trial upon which the parental right’s of Rebecca and Jay could be properly terminated. The court should be clear. If that is their holding, it should be so stated; and there is no reason that the court should remand the case. Just render the decision they believe the trial court should have rendered and be done with it.