Court of Appeals of Texas, Second District, Fort Worth
SANDRA E. PARKER APPELLANT
ROBERT J. GLASGOW, JR.; AND GLASGOW, TAYLOR, ISHAM & GLASGOW, P.C. APPELLEES
THE 355TH DISTRICT COURT OF HOOD COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; WALKER, J.; and CHARLES BLEIL (Senior
Justice, Retired, Sitting by Assignment).
LIVINGSTON CHIEF JUSTICE.
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 is no 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
and Law Firm Assist Sandra in Obtaining a Mediated Settlement
Agreement in Her Divorce
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."
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.
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, she also 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.
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
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.
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.
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 & Lipp Advisors, 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).
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).
Allegations in Sandra's Petition
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 the
parties' 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 ...