Dickey v. Jansen

731 S.W.2d 581, 1987 Tex. App. LEXIS 6963
CourtCourt of Appeals of Texas
DecidedApril 9, 1987
Docket01-86-0657-CV
StatusPublished
Cited by59 cases

This text of 731 S.W.2d 581 (Dickey v. Jansen) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dickey v. Jansen, 731 S.W.2d 581, 1987 Tex. App. LEXIS 6963 (Tex. Ct. App. 1987).

Opinions

OPINION

LEVY, Justice.

Appellant, Kathleen Jackson Dickey, individually and as next friend of her living [582]*582descendants, sued her late brother’s attorney, Donald 0. Jansen, and his law firm, Fulbright & Jaworski, for the negligent preparation of her brother’s will. Dickey’s deceased brother, Reaves Whitney Jackson, Jr., had employed Jansen to create a trust for the lifetime benefit of his wife, Sarah Schooler Jackson, with the remainder payable to appellants. The trust was to have included mineral interests located in Louisiana. However, Louisiana law does not recognize as valid and enforceable the trust provision of Reaves’s will.

Appellants alleged essentially that Jansen negligently prepared the ineffectual trust provision, to which appellees answered with a general denial. In addition, ap-pellees moved for summary judgment alleging that “an attorney is not liable to ... those not in privity with attorneys ... for alleged failure to perform duties which the attorney owes only to his clients.” Appellants did not answer appellees’ motion for summary judgment. The trial court granted appellees’ motion, dismissing appellants’ claims with prejudice.

Appellants assert in their first four points of error that the trial court erred in granting appellees’ motion because they are entitled to maintain this action against Jansen as third party beneficiaries of his employment contract with Reaves. Appellants claim that appellees owe a duty of care to third party beneficiaries and that privity is not a prerequisite to the existence of a cause of action by third party beneficiaries.

Appellees assert that summary judgment was granted to them on a theory of negligence as pleaded by appellants, and that appellants did not plead a theory of third party beneficiary to an employment contract. They further allege that Texas law does not recognize a contractual cause of action against an attorney asserted by any party not in privity of contract with the attorney. The facts show that appellants pled “(a)s a direct and proximate result of the said negligence of the defendant, Jansen, the plaintiffs have been damaged....” This pleading asserts only a negligence cause of action. Texas law does not recognize a negligence cause of action in these circumstances, on the theory that an attorney owes a duly only to those parties in privity of contract with him. Berry v. Dodson, Nunley & Taylor, P.C., 717 S.W.2d 716, 718 (Tex.App.—San Antonio 1986, writ dism’d by agr.) (intended beneficiaries under a will were denied recovery because they were not in privity). Indeed, Texas law contains many examples of a third party’s inability to sue an attorney in negligence. First Municipal Leasing Corp. v. Blankenship, Potts, Aikman, Hagin & Stewart, 648 S.W.2d 410, 413 (Tex.App.—Dallas 1983, writ ref’d n.r.e.) (third party buyer denied recovery because it was not in privity of contract with seller’s attorney for an opinion on the validity of buyer and seller’s contract); Bell v. Manning, 613 S.W.2d 335, 339 (Tex.Civ.App.—Tyler 1981, writ ref’d n.r.e.) (third party denied recovery on a construction contract because it was not in privity of contract); Bryan & Amidei v. Law, 435 S.W.2d 587, 593 (Tex.Civ.App—Fort Worth 1968, no writ) (third party denied the ability to contest a contingent fee contract). Accordingly, since Texas law does not recognize a cause of action for negligence against an attorney asserted by one not in privity with that attorney, and since appellants raised only negligence as a possible theory of recovery, the trial court correctly awarded summary judgment to appellees.

Even assuming that appellants properly raised their contention that they are entitled to maintain this action against Jansen as third party beneficiaries of his employment contract with Jackson, Texas cases hold to the majority view that persons outside the attorney-client relationship have no cause of action for injuries they might sustain due to the attorney’s failure to perform or his negligent performance of a duty owed to his client. Berry, 717 S.W.2d at 718; see also Annotation, Attorney’s Liability To One Other Than His Immediate Client, For Consequences of Negligence in Carrying Out Legal Duties, 45 A.L.R.3d 1181, 1185 (1972).

Texas authorities have consistently held that third parties had no standing to sue [583]*583attorneys on causes of action arising out of their representation of others. Graham v. Turcotte, 628 S.W.2d 182, 184 (Tex.App.—Corpus Christi 1982, no writ) (mortgager could not sue mortgagee’s attorney claiming excessive fees were exacted on foreclosure); Martin v. Trevino, 578 S.W.2d 763, 770 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n.r.e.) (doctor was not allowed to sue plaintiff’s attorneys for alleged bad faith medical malpractice claims); Swafford v. Holman, 446 S.W.2d 75, 79 (Tex.Civ.App.—Dallas 1969, writ ref’d n.r.e.) (third party could not sue attorney for wrongful attempt to enforce a foreclosure); Morris v. Bailey, 398 S.W.2d 946, 948 (Tex.Civ.App.—Austin 1966, writ ref’d n.r.e.) (third party may not file a claim against an attorney because he filed a motion for continuance). It is obvious that opening attorney-client contracts to third party scrutiny would entail a vast range of potential liability. See 45 A.L.R. at 1184, 1185. In the absence of clear and persuasive authority to overrule long-standing precedent, we decline to do so.

Appellants’ first, second, third, and fourth points of errors are overruled.

Appellants assert in their fifth and sixth points of error that the trial court erred in denying them the opportunity to amend their pleadings because appellees failed to challenge appellants’ standing in verified pleadings pursuant to Tex.R.Civ.P. 93, and because appellees did not challenge the pleadings by special exceptions pursuant to Tex.R.Civ.P. 90.

Appellants failed to answer appel-lees’ summary judgment motion. Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal. Tex.R.Civ.P. 166-A. It is also well settled that unless a non-movant against whom summary judgment is granted has filed a response to the motion for summary judgment, the only issue before the appellate court is whether the grounds expressly presented by the mov-ant’s motion at trial are insufficient as a matter of law to support the summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Jean v. Jones, 663 S.W.2d 56, 57 (Tex.App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.). Hittner, Summary Judgments in Texas, 22 Hous.L.Rev. 1109, 1117 (1985).

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Cite This Page — Counsel Stack

Bluebook (online)
731 S.W.2d 581, 1987 Tex. App. LEXIS 6963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickey-v-jansen-texapp-1987.