







 
NUMBER 13-03-046-CV
 
COURT OF APPEALS
 
THIRTEENTH DISTRICT OF TEXAS
 
CORPUS CHRISTI - EDINBURG
 

 



ROGER GERDES, JR. AND CAROLYN GERDES,                   Appellants,

v.

JOHN KENNAMER AND MORA KENNAMER,                           Appellees.




On appeal from the 23rd District Court
of Matagorda County, Texas.




DISSENT TO OPINION ON DESIGNATION

Before Justices Hinojosa, Yanez, and Castillo
Dissent by Justice Castillo

         I believe the opinion and the dissent meet the requirements of a "memorandum
opinion" set forth in rule 47.4.  Rule 47.4 states, in pertinent part:
An opinion must  be designated a memorandum opinion unless it does
any of the following:
(a) establishes a new rule of law, alters or modifies an
existing rule, or applies an existing rule to a novel fact
situation likely to recur in future cases;
(b) involves issues of constitutional law or other legal issues
important to the jurisprudence of Texas; 
(c)  criticizes existing law; or  
(d) resolves an apparent conflict of authority.    
Tex. R. App. P. 47.4. (Emphasis added). The majority opinion and the dissent do not
meet any of the criteria.  Thus, I would designate the opinion as a "memorandum
opinion."  
         Respectfully, I disagree with the precedent the dissent and concurrence on
designation set.  They disagree with the designation of "memorandum opinion" 
because the "issues are not settled."   I read the first sentence of rule 47.4 which
states, "If the issues are settled, the court should write a brief memorandum opinion
no longer than necessary to advise the parties of the Court's decision and the basic
reasons for it," to apply uniformly to those cases in which we need not reach a
decision on the merits.   In those cases before us that present issues for review, we
then determine whether one of the criteria in the remaining part of rule 47.4 is met. 
In short, I construe the mandatory language in rule 47.4 to mean that designating our
work as an "opinion" is the exception and not the rule.
 
 
                                                                        ERRLINDA CASTILLO
                                                                        Justice                    
        

      
Dissent to Opinions on Designation delivered 
and filed this 6th day of December, 2004.
