*1
additionally
interroga
resulting
point
I
out that
given
question
that
answer
tory
ambiguity
and inher-
no.
is defective because it asks wheth
would have resolved
belief,”
jury’s
findings.
Trepagnier
in
ent conflict
er
had a “reasonable
majority opinion
does not set forth
officer” would be
Since
not whether a “reasonable
interrogatories
jury
Snyder’s
an-
specific
that the
violate
lieve that his actions would
swered,
I do so in a footnote.1
rights. The
Court
constitutional
made clear that the determination as to
has
complete
I am in
and fundamental dis-
the officer’s use of
the reasonableness of
majority’s
agreement with the
conclusion
objective
force must be based on an
and not
that there is no inherent conflict between
subjective
v.
determination. Graham
Con
(jury interrogatory
finding of excessive force
nor,
386, 397,
1865, 1872,
109 S.Ct.
U.S.
1)
finding
qualified immunity
and a
no.
(1989).
ry cogently the Tenth no. 1. As Circuit so Parham, 537, 540
put it in Street v. 929 F.2d
(10th Cir.1991): reasonably believe that
No officer could use unreasonable force did not vio clearly law.
late established Once that, concluded even under all the circum NATIONAL BANK OF FIRST used, stances, excessive force had been DURANT, Plaintiff-Appellant, inquiry This is one of the rare was over. the determination of liabil instances where availability qualified immuni ity and the TRANS TERRA CORPORATION ty findings. qual depend on the same INTERNATIONAL, al., et immunity question was answered ified Defendants, jury’s part consideration of the ex Richer, Lane, Douglass and Don R. cessive force claim. See Dixon v. Lane & (10th Cir.1991). 1456, 1463 Defendants-Appellees. 922 F.2d Sidney Trepagnier Sidney you you Trepagnier 2. Do find that Officer 1.Do find that Officer had a reasonable belief that his actions would deprived Snyder’s [sic] James of his constitution- Synder’s constitutional [sic] not violate James using arresting rights by excessive force in al rights? him? No_XYes No_XYes depriva- you 3. Do find that the constitutional your question ‘'yes," custom, 1 is continue If answer poli- by governmental tion was caused remaining questions. your If answer to City on to the cy, practice of New Or- or decision of sign question form 1 is "no” then and date this leans? No_ Yes X and return to the courtroom. *2 BANK OF FIRST NATIONAL Plaintiff-Appellant, DURANT, DOUGLASS, C.
Malcolm
Defendant-Appellee. 97-10167,
Nos. 97-10914. Appeals, Court
United States
Fifth Circuit.
May *3 Hoard, Lawson, Mullin, L.
Steven Julie A. Brown, TX, Amarillo, Hoard and for Plain- tiff-Appellant. Amarillo, Smith, Stone, by preparing all of the loan documents Smith & Bank H.
Robert report. prepared He a TX, except prom- Defendants-Appellees. issory providing note of trust deed description part of the collateral derived in Douglass’ opinions. property descriptions Trans had state that Terra a .33 REAVLEY, JONES Before net revenue interest in three of the Ledrick BENAVIDES, Judges. Circuit wells and .48761net revenue interest in the other three Ledrick wells. REAVLEY, Judge: Circuit closing loan was set for on November diversity in this principal issue case Doug- 19. On November 18 faxed Munson negligence pursue can lender whether *4 requesting opinion letter title the lass a a on who, against in the course claim an “dated within 30 Ledrick wells was borrower, an inac- a submits representing 1993,’’..and days of ad- November opinion title to the lender. Because curate Douglass prior to Bank. had no dressed the for we that Texas law allows such hold a prepare notice that he was to such a title presented, under the facts we reverse. claim opinion. flew Epps to Oklahoma for the closing. November 19 Bank officers and BACKGROUND closing the the Munson attended on behalf of Epps and owner of president Tim the was opinion Epps bring Bank. did not the title Corporation International Terra Trans expected. Epps Douglass Bank called the (Trans Terra). Trans owned interests Terra requested opinion. the This conversa- and gas in known as the Ledrick six oil wells speaker phone on in the tion was made a wells, County, Texas. At- located in Roberts presence personnel. the Bank Munson and Douglass, of the firm of torney Malcolm the Epps Douglass promised told that he had a on prepared lease the Douglass, Lane & Douglass to opinion Bank a title and asked In Epps in 1990. the wells for Ledrick Epps prepare it. Munson recalled that told preparing the lease and 1992 course of process closing Douglass he was the letter, the opinion personally went to Rob- he opinion to and needed title directed loan County examine title rec- courthouse to erts eompléted. Bank it could be the as soon as prepared the Thereafter he on wells. ords have time to Douglass stated he not did purport- opinions on the wells numerous title day. Epps the prepare opinion the ing ownership interests of Trans to show the agreed sign loan documents with Bank to the opinions preparation In of these later Terra. understanding not the loan would the records for he not examine courthouse did report fund until the title was received. title, instead affecting the the but documents provided Monday, to him following on information November relied theOn landman, opinion Robinson. title the Epps Douglass Chuck forwarded a to requested, opinion this title was Bank. As ap- Epps approached In October of It states that addressed to Bank. (the in Durant pellant First Bank National solely and opinion is rendered exclu- “title Bank), million to Trans seeking a loan $2 your sively It also states that benefit.” Terra, Trans Terra’s inter- to secured Records of Douglass “examined the Deed has considering In est in the Ledrick wells. Texas, inception of County, from Roberts request, the Bank reviewed title loan opinion as of this title to date prepared for Trans opinions Douglass had fact, Douglass acreage.” In had captioned opinions addressed title were Terra. These at the courthouse examined records . Terra. Epps and Trans opinion, and had not received date agreed to of 1993 the Bank In November landman, Rob- any new information million, provided that Trans Terra loan $1.5 inson. updated title the Bank receive on the loan. Trans Terra defaulted Attorney Ben Mun- to the Bank. addressed collateral, on proceeded to foreclose Bank transaction son documented loan namely precluded Trans Douglass Terra’s interests in the Le- the Bank and tween drick wells. The November recovery for the Bank. opinions and earlier title prepared by Doug- judgment in appeals The Bank favor of lass example, Douglass were incorrect. For firm, separate Lane and the law later wrote the Bank in December of Douglass. Ap- judgment entered in favor of
informing it that Trans Terra’s net revenue judgment pellees concede that if the as a interest on the Ledrick 55-1 well was matter of law in favor of Lane and the law .039375, versus represented .33 as reversed, summary judg- firm must be opinion, November and the net reve- Douglass inment favor of cannot stand. nue interest in the Ledrick 55-4 well was .028150, represented. versus .33 pre- In
paring opinion Douglass the title DISCUSSION failed to discover certain instruments which caused judgment A as a matter of law is Trans Terra’s interests the Ledrick wells point if the warranted facts and inferences so substantially to be repre- smaller that those strongly overwhelmingly favor one opinion. sented in the title The Bank’s ex- party people that reasonable could not arrive pert testified that contrary.1 at a verdict this diversi preparing having without ease, ty we must of course endeavor to de examined the courthouse records. cide the case as the Texas Court *5 Terra, The Bank Epps, Doug- sued Trans would decide it.2 lass, Douglass, Douglass’ Lane & and law partner Don Lane. Doug- Trans Terra and Attorney-Client Privity Negligent A. and bankruptcy. lass filed for Proceedings Misrepresentation against Douglass Trans Terra and were sev- The administratively ered and district court concluded a closed. The Bank that Epps jury and agreed attorney- later entered into an reasonable could not find an but judgment. proceeded relationship Douglass uncollectible The case client between and the against Lane, to trial the law firm and argues based Bank. The Bank that there was suf legal malpractice on theories of and support finding, ficient evidence to such a misrepresentation part Douglass. on the of alternatively, and that the Bank can recover Bank, finding sided with the an under a theory attorney-client relationship Doug- irrespective attorney-client of an relation Bank, negligence lass and on the ship. find merit argu We with the latter part Douglass. damages of It awarded ment. deficiency the amount of the on the loan. legal Texas law is clear that a mal granted post-verdict district court practice requires proof claim attorney- of an judgment motion for as a matter of law relationship client plaintiff between the and favor of defendants Lane and the firm. law attorney. the defendant Capi Banc One It concluded that under Texas law the Bank Corporation tal Kneipper, Partners v. we client, Douglass’ was and therefore could explained: against Doug- not recover these defendants. In order to ease, liability profes- establish bankruptcy for lass then dismissed his noti- negligence legal sional malpractice, or stay fied the district court that the automatic terminated, [plaintiffs] must show the had been and moved for sum- existence of a duty mary judgment judg- by owed to them attorney], based on the court’s [the duty, breach of damages ment in of Lane and the law firm. The that arising favor summary granted judgment law, in favor of from the breach. court Under Texas there Douglass, prior ruling attorney-client is no relationship consistent with its that absent a attorney-client privity contract, showing the absence of be- of of and an at- States, Dep't Housing United 53 F.3d Community 1. Texas Farm Bureau v. Texas Affairs Assurance, Inc., (5th Cir.1995). (5th v. Verex 68 F.3d Cir.1995); Corp., Jackson v. Johns-Manville Sales (5th Cir.1986) (en banc). 781 F.2d 397-98 Further, Epps. Trans Terra and duty to third torney professional no owes opening states its sentence that it party or non-client.3 request Epps. prepared at the was principle confirmed in Barcelo This Elliott,4 Supreme Court agree Texas where the with the district court that the We attorney negligently drafts who judgment that an held were entitled as a mat- duty owes no agreement claim, or trust legal malpractice a will ter of law on the will or trust. to the beneficiaries attorney-client relationship care exist- because no “potential tort lia- noted that the The court and the Bank. The ed between a conflict bility parties would create to third fact that letter was mere the November dividing process, during planning estate Bank, pre- it addressed to states was or her attorney’s loyalty between his pared for the benefit of the is insuffi- It third-party beneficiaries.”5 client and attorney-client relation- cient establish greater good is served that “the reasoned One, ship. In Banc letter in rule which bright-line privity preserving investors, plaintiff to the issue was addressed all beneficiaries a cause of action to denies solely furnished and stated it was represent. did not This whom benefit, yet held we as matter law may attorneys in all cases will ensure attorney-client relationship that no existed zealously their clients without the represent between the investors the defendant law compromis- parties from third threat suit firm retained the issuer of the securities expressed representation.”6 It also ing that Further, purchased by plaintiffs.8 “[wjithout barrier,’ ‘privity this concern it statement letter that was control goes, clients would lose the rationale exclusively solely rendered relationship, and at- over be Bank’s benefit must read context. unlimited torneys to almost repre- is not a “[i]t next sentence states liability.”7 subject acreage sentation the title to the plainly any party.” The disclaimer was attorney- of an *6 support In of the existence Douglass protect from claims of Douglass and intended to relationship the client between Bank, Bank, by parties other than the that the Novem- reliance points Bank out the an opinion to the rather than to manifest intention create 22 was addressed ber title Bank, solely attorney-client relationship. it “is rendered an and states that exclusively benefit.” [the Bank’s] for and relationship An can Lane, Lane Douglass, and & Appellees by by express agreement implication or arise (hereinafter lawyers) point Douglass the However, parties’ the actions.9 courts an attor- rebutting the existence of evidence readily implied relationship an will not find relationship. had its The Bank ney-client showing sufficient intent.”10 “absent counsel, letter to Munson. Munson’s own One, as a matter of law that Banc we held of the Douglass requesting preparation the expressed implied attorney- nor an neither my that is under- opinion “[i]t states title single relationship on a client existed based standing you represent Trans Terra that purporting and plaintiffs addressed to letter International,” the borrower. Corporation solely their give opinion an benefit. his Douglass the Bank for ser- never billed Likewise, jury a rational could not vices, practices, lending with and consistent costs, attorney-client relationship in implied an closing in- find paid all the the borrower the November Douglass Mun- this case based on cluding legal and fees (1) Douglass did not bill the opinion, his clients were where Douglass testified that son. (5th Cir.1995) (citations 7. at Id. 577. 3. 67 F.3d omitted). One, 21. F.3d at 1199 & n. 8. Banc (Tex. 1996).
4.
Bank for Bank his had its cause of action under a (3) counsel, own the Bank’s counsel stated in misrepresentation. At the outset we note understanding his November 18 letter his complaint separate that the Bank’s asserted Terra, Douglass represented Trans attorney malpractice of action for causes (4) Bank, Douglass qual- testified without Likewise, negligent misrepresentation. Epps ification that his clients were and Trans jury charge jury legal instructed the on both (5) Terra, not the malpractice prepared request states that it was at the (the requiring proof attorney- former of an Epps.11 attorney-client relationship is relationship), jury client found liabili- contractual in nature.12 the con- Whether ty damages under both theories. express implied, tract is or there must be a Court, The Texas in Federal meeting attorney of the minds will Sloane,15 Tyler Land Bank Association professional render services to the client.13 adopted the common law cause of action for “implied" merely An contract refers to the negligent misrepresentation as set out in the proof; meeting manner of of the minds is § (Second) Restatement of Torts parties inferred from the conduct of the or (1977). § Under 552: facts, the circumstances.14 On these ra- who, business, One meeting course of his tional could not infer a profession employment, any or or in Douglass minds that would serve as pecuniary transaction which he has a for the Bank. interest, supplies false information for the argues testimony The Bank that the guidance of others their business trans- attorney expert supports finding of its actions, liability pecuniary is express implied attorney-client an or rela justifiable loss caused to them tionship and the Bank. information, upon reliance if he fails to lawyer He testified when addresses a competence exercise reasonable care or lender, lawyer to a “in is obtaining communicating or the informa- representing agree effect” the Bank. We tion. unqualified with state (2) Except (3), as stated in Subsection expert lawyer always ment that the liability stated Subsection is limited represents the addressee of a title to loss suffered legal support conclusion that will not verdict, and is further incorrect statement (a) by person of a one limited *7 designation of the law. The of an addressee group persons of for whose benefit and letter, more, in a title without does guidance supply he intends to the informa- meeting not a establish of the minds that the recipient tion or knows that the intends to author of the title will serve as coun it; supply and sel to the addressee. (b) through upon reliance it in a trans- though
Even an rela action that he intends the information to tionship did not exist between recipient influence or knows that the so agree the the Bank substantially we with that under intends or in a similar trans- presented the facts Texas allows it a law action. 254, (Tex. contract, Kelly, including 11. v. 791 S.W.2d 258 that elements of a element of Kotzur Cf. 1990, writ) App. Corpus (holding minds, meeting Christi no of are the same whether the — precluded summary judgment that fact issue on express implied). contract is or implied attorney-client relationship issue of attorney plain where admitted that he knew that Contractors, 14. Haws & Garrett Gen. Inc. v. Gor attorney, separate did not have a tiffs Co., 607, Welding bett Bros. 480 S.W.2d 609 services.) charged plaintiffs for his (Tex. 1972); Servs., Submergible v. Cable Williford Inc., 379, (Tex.App. 895 S.W.2d 384 Moran, 381, 12. Vinson & Elkins v. 946 S.W.2d —Amarillo 1994, writ). no 1997, (Tex.App. 405 [14th Dist.] writ —Houston agr.). by dism’d (Tex.1991). 15. 825 S.W.2d 442 Id.; Hand, Hallmark v. 885 S.W.2d denied) (Tex.App. (holding Paso writ —El 1823(e). Later, § agreed requirements expressly with the Restate- of U.S.C.
Sloane definition, insolvent, and also set out its own ment’s VSA did become the be- FSLIC receiver, elements came and a federal court held the cause of action: agreement the that settlement was unen-
(1)
by
representation
comply
is made
a defen-
forceable
it
not
the
because
did
with
business,
1823(e).
or in a
§
of his
analyzing
dant
course
After
Barcelo and oth-
pecuniary
he has a
authorities,
transaction in which
er
the court held that contractual
(2)
interest;
supplies “false
the defendant
plaintiff
the
the
between
defen-
guidance
the
of others
information” for
attorney
required
not
dant
is
if the elements
business;
the defendant did not
misrepresentation
§
negligent
of a
claim
competence
or
reasonable care
exercise
are
met.18
otherwise
obtaining
communicating
informa-
or
the
Appling
negli-
court
reasoned that
tion;
plaintiff
pecuniary
suffers
gent misrepresentation
premised
claim is not
justifiably relying
represen-
by
on the
loss
duty
professional
on
of a
the breach
owes
tation.16
his
in privity,
client or others
but on an
of the elements
either formulation
Under
duty
independent
attorney’s
based on the
claim,
misrepresentation
negligent
of
plaintiffs
of
manifest awareness
reliance on
finding
liability
supports a
evidence
representation
and intention that
against Douglass.
plaintiff
rely.19
holding
so
It noted that its
lawyers argue
negligent
mis-
Barcelo,
plain-
did not conflict with
since
be as-
representation cause
action cannot
negligent
tiffs
that case “would have no
attorney absent an attor-
against an
serted
misrepresentation
cause
action because
plaintiff
ney-client relationship
representation
the defendant never made
attorney.
Appling
In F.E.
Interests
to them.”20
McCamish, Martin,
Loeffler;17
Brown &
Appeals recently
the Texarkana Court
by
ap
an
decision
intermediate
“[A]
liability
attorneys
held that
are
pellate
‘is a datum for ascertain
state court
§
cause
action
under the
ing
disregarded
state law which is not
be
an
misrepresentation, whether
not
attor-
by
it is
a federal court unless
convinced
Appling,
ney-client relationship existed.
highest
persuasive data that the
court
granted
court
decided after the district
”21
decide otherwise.’
Al
the state would
judgment,
plaintiff
sued a
motion for
lawyers correctly
out
though
point
association, VSA, under
lia-
savings
a lender
earlier intermedi
Appling is in conflict with
bility theory.
parties
toward a
worked
decisions,22
appellate
ate
court
we are
state
settlement,
plaintiff
was concerned
but
persuaded
Texas
Court
agreement
settlement
would
the.
agree
Appling.
It is
latest
with
if
insolvent and was
enforceable VSA became
courts, and in our
authority from the Texas
complete
To
taken over
the FSLIC.
directly
point.
Su
on
The Texas
settlement,
view
law
defendant
preme
Appling. The
Court denied review
agreement, stating
signed
firm
a settlement
*8
court had the benefit of the Texas
Appling
represent
that the
and its counsel
VSA
in Sloane and
Supreme Court’s decisions
agreement
approved
the VSA
has been
Barcelo,
Supreme
most
Texas
meets the
recent
board of directors
otherwise
Elkins,
Sloane,
22. Thompson
v. Vinson &
859 S.W.2d
16.
at 442.
S.W.2d
1993,
617,
(Tex.App.
[1st Dist.]
—Houston
1997,
(Tex.App.
17.
representation case such as this one. As above,
discussed
Barcelo reasoned that the B. Other Issues
privity requirement
justified
because:
lawyers argue
that the evidence
“potential
liability
parties
tort
to third
would
opin
does not show that the inaccurate title
during
planning
create a conflict
the estate
proximate
any injury
ion was the
cause of
process, dividing
attorney’s loyalty
be-
Bank,
since the loan documents were
third-party
tween his or her client and the
signed
opinion
before the title
was received.
beneficiaries;”24
privity requirement
shows, however,
Epps
evidence
attorneys may
“will ensure that
in all cases
agreed
the Bank
the loan
zealously represent
without the
clients
fund,
fund,
and indeed it did not
until the
parties
threat of suit
compromis-
from third
opinion
title
was received. The
ar
(3) “[wjithout
ing
representation;”25
gue
legally obligated
that the Bank was
‘privity
this
barrier’
... clients would lose
fund the loan after the loan documents were
attorney-client relationship,
control over the
signed,
opinion
whether or not the title
attorneys
would be
to almost
A
liability.”26
unlimited
received.
rational
could conclude
that, regardless of the terms of the loan
present
These concerns are not
where the
documents, Epps understood that no loan
prem-
claim is
proceeds
forthcoming
would be
without the
presented
pending
on the
ised
facts
opinion,
and that he would not have
where,
case. There is no conflict of interest
proceeds
demanded the
without
here,
both the client borrower and the
Further,
opinion.
agreement
the loan
states
party
jointly
attorney
third
lender
ask the
agrees
that the borrower
to furnish certain
prepare
A
letter.
conflict could
defined financial information and “such other
only
secretly hopes
arise if the client
that the
may
information from time to time as Bank
information,
will contain false
reasonably request,” and the deed of trust
protect
attorney
and we see no reason to
furnish,
requires Epps
any
upon
at
time
negligence
from his own
with a
barri-
request
documents,
of the
real estate
er in such circumstances. We see no burden
including “instruments of further assurance
representation
on zealous
when
both
...
may
and other documents as
request
lender and client
the sole
a discrete service
attorney,
necessary
namely
preparation
[Bank]
from the
or desir
effectuate,
opinion. Again, barring
complete, perfect,
a title
able to
sinister mo-
continue
client,
preserve”
tives of the
both client and
obligations.
lender seek
Trans Terra’s loan
Thompson rejects
application
Similarly,
requires privity
23.While
at 413.
Bell
lawyers,
readily distinguishable
§ 522 to
it is
plaintiff,
and the
but indicates that
Appling
pending
case because the
the result would have been the same without a
undisputed
evidence was
that the law firm defen-
privity requirement because “we fail to see how
representations
plaintiffs.
dant made no
to the
[representation]
negli-
could be classified as a
*9
Municipal Leasing
S.W.2d at
622. First
gent representation....”
The
First,
incorrectly
the measure of
reasons.
the Bank would not have
instructed
money paid
is
of
out
loan if the interests
out in the
damages
“the amount
made the
set
seriously
had on the
been
at odds with
minus recoveries
had
the
in-
They argue
representations
correct measure
earlier
of Trans Terra’s
loan.”
that the
Second,
damages
expected
the
between the
the
flow
of
is
difference
terests.
cash
of
collateral and the value of
not
suffi-
true value
the
the true interests would
have been
opin
represented
support
in the title
to
the loan.28
the collateral as
cient
agree with the district court’s in
ion. We
lawyers
The
moved for a new trial in
Sloane,
adopted
the court
the
struction.
judgment.
alternative to their motion for
the
damages
of
as set out in Restate
measure
motion,
The district court denied this
which
(1977).
§ 552B
(Second)
ment
of Torts
granting
was mooted
the
of the motion for
§ 552B:
Under
if
judgment.
contend that we
The
negli-
damages recoverable for a
The
judgments,
the
we should hold that
reverse
are those neces-
gent misrepresentation
they are
to
new trial rather that
entitled
sary
compensate
plaintiff
the
for the
against
jury
entry
judgment
on the
them
misrep-
to him of
the
pecuniary loss
which
verdict.
cause,
legal
including
is
resentation
ground
The
the new trial motion
was
(a)
value
difference
the district court allowed
Bank’s
he
received in the transaction
what
has
expert
testify about the November
price
given
purchase
other value
and its
opinion.
lawyers complain
1993 title
it;
expert report produced
trial
before
(b)
as
pecuniary loss suffered otherwise
opinion as
not reference that title
a docu-
did
consequence
plaintiffs reliance
of the
reviewed,
expert
required
as
ment the
had
upon misrepresentation.
26(a).
by Fed.R.Civ.P.
damages
negli-
for a
recoverable
“The
or exclusion of ex
admission
gent
not include the
misrepresentation do
pert testimony is a matter left to the discre
plaintiffs
with the
benefit of the
contract
court,
trial
and that decision will
tion of the
defendant.27
it mani
appeal
on
unless
is
not
disturbed
supports a
measure of
evidence
Further,
festly
admission
erroneous.”29
equal
amount of the
damages
to the entire
26(a)
testimony in
of Rule
expert
violation
loan,
through
secured
minus the amounts
analysis.30
to harmless error
foreclosure, since such a
payments
note
manifestly err in
did not
“pecuniary
suffered
The district court
measure reflects the
loss
testify
No-
allowing
expert to
about the
consequence
plaintiffs
as a
of the
otherwise
expert report
opinion.
22 title
upon
misrepresentation.” The
vember
reliance
expert
reviewed nu-
if the
indicates that the
had
president testified that
Novem
Bank’s
opinions
had
other title
had
Trans Terra’s merous
ber
shown
essentially
wells,
provided
prepared,
which
in the Ledrick
Bank
true interests
added).
Sloane,
upon negligent misrepresen-
(emphasis
at 442
suffered in reliance
tation,
825 S.W.2d
27.
benefit
not for the failure
obtain the
but
correct,
we
28.
instruction
While
According-
bargain.”
same
contained in the November
eases
such
(not must)
opinion.
expert
goes
report
title
The
on to
holdings
that their
could
rest on
give
Douglass
negligent
grounds,
of the
statement
law
preparation
gas
“in the
of the oil
forthright
could not be more clear and
—and
opinions”
opinions represent
insofar as the
contradictory
Appling.
Supreme
to
that he had reviewed the courthouse records
Ap-
unfortunate denial
in
Court’s
of review
report
when in fact he had not. The
as-
pling affords no solution to the dilemma.
sumed that
had not reviewed the
case,
closely
But in a
related
the Texas
lawyers
courthouse records. The
knew or
Supreme
strictly
Court has
construed the
expert
should have
known
privity requirement
legal malpractice
for a
have the same
to the
22
as
November
third-party
claim
wherein
beneficiaries of
opinion,
whether or not he had reviewed
lawyer
trust sue the
firm that
and law
creat-
prior
preparing
expert report,
it
Elliott,
ed the trust. See Barcelo v.
him
that the Bank would ask
about that title
(Tex.1996).
so,
doing
S.W.2d 575
opinion at trial.
rejected
position
major-
court
of the vast
reversed,
judgments
below are
ity
states,
privity
which have relaxed the
proceedings
the case is remanded for further
planning
barrier in the estate
context. See
opinion.
consistent with this
577-78;
J.,
(Cornyn,
id. at
see also id. at 579
REVERSED and REMANDED.
dissenting) (“By refusing
recognize
a law-
will,
yer’s duty to
beneficiaries of
JONES,
Judge,
EDITH H.
Circuit
recognized by only
Court embraces a rule
dissenting:
states,
simultaneously rejecting
four
while
respect my colleagues’
With due
sensi-
overwhelming majority
jur-
the rule
law,
tivity
sympathy
to Texas
and with some
isdictions.”).
Interestingly, Appling,
reach,
they
I
for the result
feel I must re-
majority
case from which the
here infer that
spectfully
portion
dissent from the
lawyers
potential
Texas will extend to
li-
majority opinion discussing negligent misrep-
ability
negligent misrepresentation,
relies
resentation under Restatement
(Second)
entirely upon eases
from other states
dis-
§
Torts
pensing
privity. Appling
with
has to distin-
guish
contrary
appellate
two
Texas
cases to
Texas case law is without doubt unclear
reach its conclusion.
regarding whether
are
for the
liable
tort of
absent a
Judge Reavley’s opinion
certainly
privity relationship. Two lines of cases now
wrong,
many
it reflects a rule
other states
directly conflict with each other in their
adopted.
only question
have
is whether
Compare
Ap
statement of the law.
F.E.
Court,
having
the Texas
made such
McCamish, Martin,
pling Interests v.
Brown
Barcelo,
bright-line
decision for
Loeffler,
(Tex.App.
&
writ refd Bell v. (Tex.Civ.App. Tyler S.W.2d - n.r.e.) (all holding
writ refd that a §
misrepresentation pursuant claim
cannot be made absent an re
lationship). Although, majority as the here
notes, “anti-negligent misrepresentation”