                                 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
