Parker v. Glasgow

• Decision Date: 22 June 2017
• Docket Number: NO. 02-15-00378-CV,02-15-00378-CV
• Parties: SANDRA E. PARKER APPELLANT v. ROBERT J. GLASGOW, JR.; AND GLASGOW, TAYLOR, ISHAM & GLASGOW, P.C. APPELLEES
• Court: Texas Court of Appeals

SANDRA E. PARKER APPELLANT v. ROBERT J. GLASGOW, JR.; AND GLASGOW, TAYLOR,ISHAM & GLASGOW, P.C. APPELLEES

NO. 02-15-00378-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

June 22, 2017

FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

TRIAL COURT NO. C2014011

MEMORANDUM OPINION¹

Is a former client barred as a matter of law from bringing a legal malpractice claim against the attorney and law firm who assisted her in obtaining a mediated property settlement and agreed judgment in a divorce based on the attorney's allegedly negligent pre-settlement advice? We hold that the answer isno in this appeal from a take-nothing summary judgment on Sandra E. Parker's legal malpractice claims against her former counsel Robert J. Glasgow, Jr. (Glasgow) and his law firm Glasgow, Taylor, Isham & Glasgow, P.C. (the Law Firm). Because we hold that neither principles of quasi-estoppel nor public policy bar Sandra's legal malpractice claim as a matter of law, we sustain her first two issues challenging the summary judgment on those grounds. But because her breach of contract claim, on which the trial court also granted summary judgment, is barred by the anti-fracturing rule, we affirm the summary judgment on that claim.

Glasgow and Law Firm Assist Sandra in Obtaining a

Mediated Settlement Agreement in Her Divorce

Sandra engaged Glasgow and the Law Firm to represent her in filing a divorce petition in Hood County. A primary concern in the determination of a just and right property division was the valuation of numerous parcels of commercial real property that her then-husband Paul had acquired during the marriage. Sandra and Glasgow had talked about hiring an expert to appraise the value of those properties. But Sandra claims that Glasgow told her that hiring a forensic accounting expert to do that was too expensive and that she just needed to use the information she already had—which she contends is the tax appraisal values of those properties—in determining a proposed property division. Sandra knew that if she had the money she could hire an expert, but according to Sandra, Glasgow "kept telling [her] it was too expensive."

Sandra testified in a deposition in this suit that she had to borrow money from her mother to file the divorce petition and pay Glasgow and that she never hired a forensic accountant to help her value the properties because she did not have the available up-front money to do so. Sandra did not think she had any way to access the money Paul was controlling to pay for such an expert.

Sandra and Paul attended meditation in an attempt to agree on a property division. Sandra knew that settling the property issues at mediation would effect the divorce more quickly and less expensively than going to trial, and she was told that the offer she received from Paul at mediation "was the best [she] could do at mediation." Knowing she could have hired an expert before agreeing to anything at mediation (but still believing that she did not have the up-front money to do so), Sandra admitted she voluntarily and of her own free will agreed to a binding property division at mediation. See Tex. Fam. Code Ann. § 6.602(b) (West 2006). In making the settlement, Sandra and Paul used the tax appraisal values of the properties other than their residence. But they placed the residence value at $100,000 higher than market value because Sandra had asked a real estate agent about the market value of that property. See Tex. Tax Code Ann. § 23.23 (West 2015) (limiting taxing authority's assessment of residential property to no more than ten percent over prior assessment's value even if actual market value higher). Although Sandra admitted she voluntarily settled the property division of her own free will and that she wanted to settle it at mediation even knowing she had questions about the property valuations, shealso said she chose to go forward because Glasgow and the mediator told her that it was her "only choice." She does not contend that she was forced to settle.

At a prove-up of the mediated settlement before the trial court, Sandra testified that she believed the settlement was just and right. As part of the settlement, Sandra received a judgment for $600,000 against Paul, secured by a note and deed of trust on commercial property in Granbury. The trial court rendered an agreed judgment based on the mediated settlement agreement.

According to Sandra, after the divorce, she found out that the market value of the commercial properties was much higher than the tax appraisal value when she found out how much Paul had received in a sale of one of those properties. She then filed this suit against Glasgow and the Law Firm bringing both a legal malpractice claim and a breach of contract claim.

Glasgow and the Law Firm filed two partial motions for summary judgment: one for the legal malpractice claim and a separate motion for the breach of contract claim. The trial court granted both motions and a final, take-nothing judgment. Sandra challenges the trial court's rulings on both motions on appeal.

Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & LippAdvisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010), cert. denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P. 166a(b), (c).

A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Frost Nat'l Bank, 315 S.W.3d at 508-09; see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the defendant-movant must present summary judgment evidence that conclusively establishes each element of the affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).

Factual Allegations in Sandra's Petition

In her first amended petition, the live pleading, Sandra alleged (1) that after filing her divorce petition, appellees "failed to diligently prosecute her case," conducting no written discovery and failing to obtain a sworn inventory and appraisement from Paul, (2) that appellees "misinformed [her] that rental income generated by Paul's separate properties during the marriage constituted Paul's separate property," (3) that she had "very little reliable information upon which to make her settlement decision" at mediation and—"[o]n the advice of her attorneys," and in reliance on their "representation that the court would divide theparties' real property based on its tax appraisal value, as opposed to fair market value, and that the tax appraisal value was the proper method of valuing the parties' real property for the purposes of settlement"—she accepted the settlement agreement, (4) that appellees "advised [her] that she had no right to investigate bank accounts in the name of others, even though she had evidence that her husband had deposited funds in others' accounts," and (5) that appellees "did not properly document the purchase money lien in the deeds from [her] to Paul, which generated additional litigation and expense for" her. Sandra also alleged that

[w]hen Paul subsequently sold one of the properties that he was awarded under the divorce decree, [she] discovered that the real properties awarded to Paul were worth significantly more than the tax appraisal value. [She] learned that the appropriate method for valuing property in a divorce proceeding is fair market value, as opposed to tax appraisal value. [She] was disheartened to discover that she had allowed Paul to keep all of the parties' real property, and had received credit only for the tax appraisal value of that property, at most. Absent [appellees'] bad advice in this respect, [she] would have received substantially more in her divorce.

Sandra further alleged that appellees breached a contract with her by failing to "properly investigate the underlying facts," failing to "properly prosecute and manage the litigation," and giving her erroneous legal advice and opinions.

Summary Judgment Grounds

In their motion for summary judgment on Sandra's legal malpractice claim, appellees alleged broadly that Sandra "seeks to re-trade a voluntary settlement and further attempts to go behind an Agreed Final Decree of Divorce which shepreviously utilized to obtain substantial benefit." Appellees raised two specific grounds for summary judgment on Sandra's legal malpractice claim: (1) that it is barred by principles of quasi-estoppel because, Sandra's having voluntarily settled her property-division with Paul and accepted a benefit from the settlement—and in the course of doing so representing that the property division is just and right—it would be unconscionable to allow Sandra to assert in this suit against appellees that the property division is not just and right, and (2) Sandra's suit is barred by public policy favoring the enforcement of voluntary settlement agreements. Appellees therefore raised two legal questions as their summary-judgment grounds; they did not move on no-evidence grounds, nor did they allege that they had conclusively proved that Sandra's factual allegations are false. Therefore, in accordance with the applicable standard of review, we will not consider any contentions in their brief that Sandra's allegations of negligence are unmeritorious.

In their motion for summary judgment on Sandra's breach of contract claim, appellees urged that it is precluded by the...