Parrish Todd Dorton v. Thomas G. Chase. Jr.--Appeal from 170th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00098-CV

Parrish Todd Dorton,

Appellant

v.

Thomas G. Chase. Jr.,

Appellee

From the 170th District Court

McLennan County, Texas

Trial Court No. 2004-1106-4

DISSENTING Opinion

I would affirm the trial court s determination that Chase is entitled to judgment notwithstanding the verdict.

There is no evidence of an unequivocal intent by Chase to personally assume Dorton s obligations. Dorton was neither a donee beneficiary nor a creditor beneficiary of the Memorandum, so he cannot enforce that agreement. MCI Communications Corp. v. Texas Util. Co., 995 S.W.2d 647, 651 (Tex. 1999). The Memorandum does not clearly and fully spell out an intent to benefit Dorton, other than incidentally. See First Union Nat. Bank v. Richmont Capital Partners I, L.P., 168 S.W.3d 917, 929 (Tex. App. Dallas 2005, no pet.). The evidence does not overcome the presumption that the parties contracted for themselves, and because there is reasonable doubt as to the intent of the parties, the third-party beneficiary claim must fail. See id.

Furthermore, the Memorandum was an agreement between Insurors Opportunity and the bank; Chase did not sign it individually.

The two estoppel theories not discussed by the majority must also fail for these same reasons.

Finally, the majority ignores the overriding effect of the Settlement Agreement on all of Dorton s theories about why he is not liable for the amounts of the notes.

In granting Chase s motion for judgment n.o.v., which was based solely on MCI, the trial judge must have determined that the evidence does not meet the MCI test. The majority says the trial judge was wrong but does not discuss MCI.

I respectfully dissent.

BILL VANCE

Justice

Dissenting opinion delivered and filed July 2, 2008