*1 findings. support No statement
facts was filed the record before a statement of
court. the absence of
facts, presumed be it must sufficient
evidence introduced
findings judgmеnt, of the trial court and its indulged in every presumption must Intertex,
favor Inc.
Walton, n.r.e.). 1985, writ ref 'd
Houston Dist.] [14th
Appellee’s cross-points are overruled. trial court’s affirmed. DICKEY,
Kathleen Jackson et
al., Appellants, JANSEN, al., Appellees.
Donald O.
No. 01-86-0657-CV.
Court (1st Dist.).
April 9, 1987.
Rehearing Denied Gano, Donovan, Houston,
John Gano Murray Fogler, Houston, EVANS, C.J., and SAM Before LEVY, BASS and JJ.
OPINION LEVY, Justice. Dickey, in- Jackson
Appellant, Kathleen living of her dividually and as next friend *2 descendants, late sued her brother’s attor- negligence nize a cause of action in these Jansen, firm, ney, Donald 0. and his law theory on the that an attor & nеy duly only owes a to those in preparation Dickey’s of her brother’s will. privity of contract with him. Berry v. brother, Jackson, Whitney deceased Reaves Nunley Taylor, P.C., Jr., employed to Jansen crеate a trust (Tex.App. S.W.2d wife, for the lifetime benefit of his Sarah by (intended agr.) writ dism’d benefi Jackson, pay- Schooler with the remainder ciaries under a will recovery were denied able The trust was tо have they were not in privity). included mineral interests in located Louisi- examples Texas law contains many of a However, ana. Louisiana law does not rec- party’s inability attorney third in to sue an ognize as valid and enforceable the trust negligence. Municipal First Leasing provision of Reaves’s Potts, Aikman, Corp. v. Blankenship, Stewart, Hagin Appellants alleged essentially that Jаn- (Tex.App. n.r.e.) writ ref’d negligently prepared sen the ineffectual (third buyer recovery party denied provision, to which answer- privity it was not in of contract with sell ed with a denial. attorney er’s validity on the pellees moved for summary buyer contract); of and seller’s Bell v. alleging attorney that “an not liable (Tex.Civ. Manning, 613 S.W.2d ... not in privity attorneys ... App. Tyler perform duties which recovery party a denied construction attorney Ap- to his only owes clients.” privity contract because it was not in did not answer contract); Bryan & Amidei judgment. The trial court (Tex.Civ.App S.W.2d granted appelleеs’ dismissing ap- 1968, writ) (third party ability denied the pellants’ prejudice. claims with contingent contract). to contest a fee Ac Appellants assert first four cordingly, recog since Texas law points оf error the trial erred in that court negligence nize a cause of action for granting appellees’ motion because against by asserted one not against are entitled to maintain action privity attorney, appel with that and since party as third of his Jansen beneficiaries possible a only negligence lants raised as employment Appel- contract with Reaves. theory recovery, correctly trial duty of lants claim that owe a awarded party care third and that beneficiaries prerequisite a privity is not the existence appеllants assuming Even that party third properly raised their contention that ciaries. are entitled to maintain this as Jansen third beneficiaries Appellees assert that Jackson, employment Texas contract with theory to them on a view that cases hold to negligence pleaded by appellants, attorney-client sons outside theory appellants plead that injuries they of action for have cause party beneficiary employment third to an attorney’s failure might sustain due They Texas that contract. performance of perform or his recognize law a contractual cause does Berry, to his owed client. of action asserted Annotation, 718; at Attor S.W.2d see also privity party of contract with His To ney’s Liability One Other attorney. The fаcts show that Immediate “(a)s proximate pled result direct Negligence Carrying Out defendant, negligence Jan said 45 A.L.R.3d sen, damaged....” have consistently held have negligence This authorities asserts stаnding to sue recog- had no law cause of action. Texas does attorneys on action arising causes of out of Creek Authority, Basin representation (Tex.1979); Jones, of others. Graham v. Jean v. Turcotte, [1st Dist.] — Houston Corpus writ) n.r.e.). Hittner, (mortgager Summary mortgagee’s Judgments Hous.L.Rev. claim not, Appellants may excessive fees were there exacted on fore *3 fore, closure); Trevino, appeal appellees’ assert on Martin v. 578 S.W.2d 763, challenge appellants’ standing under (Tex.Civ.App. Corpus 1978, n.r.e.) (doctor because failed this writ issue ref’d was not al City Houston, to the triаl court. lowed to plaintiff’s attorneys sue for al S.W.2d at although appel 678. In leged malpractice claims); bad faith medical given lants normally opportu would Holman, 75, v. 446 S.W.2d Swafford nity pleadings аppel- amend their after (Tex.Civ.App. 1969, writ special sustained, lees’ had exceptions n.r.e.) (third party Massey v. Armco Steel wrongful attempt to enforce a fore 932, (Tex.1983), “[tjhere being no сom closure); Bailey, Morris v. plaint in the trial the upon court that attack (Tex.Civ.App. — Austin the defect came the form of a may not file a claim motion for rather than against an attorney he filed because a mo special exception,” matter this could not be continuance). tion for It is obvious that appeal. raised for on the first time Farrell opening attornеy-client contracts to third Crossland, party scrutiny would entail a range vast App. dism’d). Paso writ The tri potential liability. See A.L.R. at — El al court given opportunity must be fair In the absence clear and Appellants correct error. have waived suasive authority long-standing to overrule special exceptions their plead and verified precedent, we decline to do so. ings аrguments by preserve their failure to Appellants’ first, second, third, and arguments these for review. points fourth of errors are overruled. Appellants’ points fifth and sixth of error Appellants assert in their fifth and sixth overruled because have failed to points of error that the trial court erred in preserve error. denying them opportunity the to amend Accordingly, the of the trial pleadings thеir failed to court is affirmed. challenge appellants’ standing in verified pleadings pursuant to Tex.R.Civ.P. and EVANS, C.J., dissents. not challenge did the EVANS, Justice, pleadings by special dissenting. exceptions pursuant Chief Tex.R.Civ.P. 90. disagree holding majori- with the appellants’ pleading that the Appellants appel- failed to answer state a valid lees’ summary judgment motion. Issues not expressly presented to thе trial court answer, written or other re In my opinion, alleged the the sponse appeal shall not be considered essential elements of grounds for reversal. Tex.R.Civ.P. 166-A. ciary It is also well sеttled that unless a non- alleged with the movant whom testator; described their beneficial interest response has filed a will; to the mo as devisees under the testator’s as- tion for summary judgment, issue serted created the will that the testator had appellate before the benefit; court is whether the that the at- for their and claimed grounds will, expressly presented by torney, repre- the mov- who had ant’s motion at trial are insufficient as a that the will was sented to the testator matter legally properly of law and would ef- and drawn appel- City fectively carry Houston v. Clear оut his wishes. alleged that ciary because of the scrive-
lants
actions where the
are the
negligence and malpractice
prepar-
negligently
ner’s
intended beneficiaries
aof
authoring,
ing,
Hamm,
planning,
making
drafted
See Lucas v.
will,
685, 688,
properties
testator’s
Rptr.
Louisiana
Cal.2d
364 P.2d
15 Cal
res,
part
(1961),
denied,
never became
of the trust
result-
cert.
368 U.S.
damage
appel-
(1962);
and loss.
S.Ct.
especially true where the intended benefi
ciaries a will seek redress
drafting provision of a will created for case, express benefit. In such it testator, beneficiaries, are who directly injured by the scrivener’s breach of HOLBERG, Appellant, Robert duty. consequences of such breach foreseeable, clearly and the benefi al., SHORT, Appellees. Jim merely ciaries are not incidental contract, policies
affected so the be No. B14-86-485-CV. hind the not bar recov should Court of Annotation, Attorney’s ery here. Lia See Dist.). (14th bility, To Other His Immediate One April 1987. Negligence Rehearing Denied 45 A.L.R. Carrying Out 3rd jurisdic-
The trend of in other decisions
tions has allow been to