martrice-parish-as-next-friend-for-nicholas-roman-martin-sasha-alexander ( 2008 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00037-CV
MARTRICE PARISH, AS NEXT FRIEND FOR
NICHOLAS ROMAN MARTIN, SASHA
ALEXANDER MARTIN, NINA CHRISTINE
MARTIN, AND DANIS REILLY MARTIN,
MINOR CHILDREN,
Appellant
v.
GREGORY E. WILHELM,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 74321
MEMORANDUM OPINION
Marlotte Parks was dying from brain cancer. Attorney Gregory E. Wilhelm
prepared a will and codicil for Parks and helped her change the beneficiary on her life
insurance policy from her husband to her four adopted children, Nicholas Roman
Martin, Sasha Alexander Martin, Nina Christine Martin, and Danis Reilly Martin.
Wilhelm agreed to submit the beneficiary change to the insurance company. After
Parks died, the insurance proceeds were paid to her husband because the insurance
company never received the beneficiary change.
Martrice Parish sued as next friend for the Martin children, complaining of
Wilhelm’s failure to submit the beneficiary change. Wilhelm filed a motion for
summary judgment, arguing that: (1) he had no attorney-client relationship with the
Martins; and (2) because no such relationship existed, he owed no duty of care to the
Martins and could not be sued by them. The trial court granted the motion. In two
issues, Parish contends that the trial court erred by granting Wilhelm’s motion for
summary judgment. We affirm.
STANDARD OF REVIEW
We review a trial court’s summary judgment de novo. Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, we
must consider whether reasonable and fair-minded jurors could differ in their
conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam) (citing Wal-Mart Stores, Inc. v. Spates,
186 S.W.3d 566, 568 (Tex. 2006) (per curiam); City of Keller v. Wilson, 168 S.W.3d 802, 822-
24 (Tex. 2005)). We must consider all the evidence in the light most favorable to the
nonmovant, indulging every reasonable inference in favor of the nonmovant and
resolving any doubts against the movant. See Goodyear Tire, 236 S.W.3d at 756 (citing
Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam); Spates, 186 S.W.3d at 568).
Parish v. Wilhelm Page 2
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
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.
Parish v. Wilhelm Page 3
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]
Parish v. Wilhelm Page 4
* (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.)
Parish v. Wilhelm Page 5