Ivory Joe Carter, Jr. v. State

Ivory Joe Carter, Jr. v. State






IN THE

TENTH COURT OF APPEALS


No. 10-99-026-CR


     IVORY JOE CARTER, JR.,

                                                                              Appellant

     v.


     THE STATE OF TEXAS,

                                                                              Appellee


From the County Court at Law No. 2

McLennan County, Texas

Trial Court # 983266 CR2

                                                                                                              


MEMORANDUM OPINION

                                                                                                              


      A jury convicted appellant Ivory Joe Carter, Jr. of assault. See Tex. Pen. Code Ann. § 22.01 (Vernon 1994). The jury assessed Carter’s punishment at 120 days’ confinement and no fine. Carter has filed a motion to dismiss his appeal. In relevant portion, Rule 42.2 of the Texas Rules of Appellate Procedure states:

(a) At any time before the appellate court’s decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk.


Tex. R. App. P. 42.2(a).

      We have not issued a decision in this appeal. The motion is signed by both Carter and his attorney. Thus, the motion meets the requirements of the rules and is granted.

      Carter’s appeal is dismissed.

                                                                               PER CURIAM


Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed on appellant's motion

Opinion delivered and filed March 31, 1999

Do not publish

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ANALYSIS

In two issues, Parish challenges whether summary judgment was proper on the matters of privity (issue one) and duty of care (issue two).  Her argument does not attempt to establish either privity or duty, but suggests that the Martins’ suit does not fit within the “mold” of either Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780 (Tex. 2006), allowing the personal representative of an estate to bring suit on the decedent’s behalf, or Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996), prohibiting suits against an attorney in the absence of privity.  See Belt, 192 S.W.3d at 784, 788-89; Barcelo, 923 S.W.2d at 578-79.  Thus, she essentially asks us to craft a new rule allowing the Martins to “bring suit in their own right without there being privity.”  Wilhelm argues that Parish cannot raise this issue because she did not file a summary judgment response.[1]

A non-movant who fails to file a summary judgment response is limited to challenging whether the motion for summary judgment is sufficient as a matter of law.  See Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see also Fletcher v. Edwards, 26 S.W.3d 66, 75 (Tex. App.—Waco 2000, pet. denied).  Parish’s argument that the Martins may bring suit regardless of privity could be construed as a challenge to Wilhelm’s entitlement to summary judgment as a matter of law.

However, the Texas Supreme Court has expressly held that (1) “an attorney retained by a testator or settlor to draft a will or trust owes no professional duty of care to persons named as beneficiaries under the will or trust”; and (2) a “lawyer’s professional duty [does not] extend to persons whom the lawyer never represented.”  Barcelo, 923 S.W.2d at 579.  Parish’s contention that Barcelo does not apply and, therefore, the Martins should be allowed to bring suit without privity is essentially an argument that Barcelo should be somehow changed.  This we cannot do.  See Lubbock County v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (“It is not the function of a court of appeals to abrogate or modify established precedent”; “[t]hat function lies solely with this Court”).

This case falls squarely within the holding of Barcelo.  Wilhelm never represented the Martins, but was retained by their mother, the decedent.  He owes no professional duty to the beneficiaries of her insurance policy.  See Barcelo, 923 S.W.2d at 579.  Because we must follow the well-establish precedent of Barcelo, we conclude that the Martins are not entitled to bring suit against Wilhelm in the absence of privity.  The trial court properly granted summary judgment.

We, therefore, overrule Parish’s two issues and affirm the trial court’s judgment. 

 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring with note)*

Affirmed

Opinion delivered and filed December 17, 2008

[CV06]

 

*           (Chief Justice Gray concurs in the judgment of the Court only to the extent it affirms the trial court’s judgment.  He does not join the procedure or result of the opinion or judgment.  A separate opinion will not issue.)

 

 

           



[1]               Parish did file a motion for new trial arguing that the trial court’s decision was “against the great weight and preponderance of the evidence” because it was based on “obsolete and inapplicable” law.

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