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.