Date: 06-23-2017

Case Style: Sandra E. Parker v. Robert J. Glasgow, Jr.; and Glasgow, Taylor, Isham & Glasgow, P.C.

Case Number: 02-15-00378-CV

Judge: Terrie Livingtson

Court: Texas Court of Appeals, Second District on appeal from the 355th District Court of Hood County

Plaintiff's Attorney: Jeffrey Cook and Adam R. Barela

Defendant's Attorney: Russell R. Barton

Description: 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 is
1See Tex. R. App. P. 47.4.
2
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 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.”
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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, she
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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.
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 & Lipp
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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).
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 the
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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
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 she
7
previously 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 summaryjudgment
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 anti-fracturing rule, which
“prevents plaintiffs from converting what are actually professional negligence
claims against an attorney into other claims such as fraud, breach of contract,
breach of fiduciary duty, or violations of the DTPA.” Won Pak v. Harris, 313
S.W.3d 454, 457 (Tex. App.––Dallas 2010, pet. denied).
8
Legal Malpractice Claim Not Barred by Quasi-Estoppel
Sandra challenges the summary judgment on her legal malpractice claim in
her first issue. We agree that summary judgment was not proper on quasiestoppel
grounds.
Quasi-estoppel precludes a party from asserting, to another’s
disadvantage, a right inconsistent with a position previously taken. Lopez v.
Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). Quasiestoppel
applies when it would be unconscionable to allow a person to maintain
a position inconsistent with one to which he acquiesced, or from which he
accepted a benefit. See id. Quasi-estoppel requires mutuality of parties and
may not be asserted by or against a “stranger” to the transaction that gave rise to
the estoppel. See Swilley v. McCain, 374 S.W.2d 871, 875–76 (Tex. 1964); Am.
Sur. Co. of N.Y. v. Martinez, 73 S.W.2d 109, 113 (Tex. Civ. App.––El Paso 1934,
writ ref’d); Thomas v. C & M Jones Invs., LP, No. 03-14-00374-CV, 2016 WL
3924429, at *4 n.14 (Tex. App.––Austin July 15, 2016, no pet.) (mem. op.);
Deutsche Bank Nat’l Trust Co. v. Stockdick Land Co., 367 S.W.3d 308, 315 n.13
(Tex. App.––Houston [14th Dist.] 2012, pet. denied) (op. on reh’g). Moreover,
estoppel is designed to protect the innocent; thus, a party may not urge estoppel
as a shield against its own tortious acts. Stimpson v. Plano ISD, 743 S.W.2d
944, 946 (Tex. App.––Dallas 1987, writ denied); Brodrick Moving & Storage Co.
v. Moorer, 685 S.W.2d 75, 77 (Tex. App.––Beaumont 1984, writ ref’d n.r.e.).
9
Although an attorney who holds a contingent interest in the subject matter
of litigation and who appears at and conducts a trial of that litigation is bound by
a judgment entered against his client, Miller v. Dyess, 151 S.W.2d 186, 190
(Tex.), cert. denied, 314 U.S. 691 (1941); Dickson v. BNSF Ry. Co., No. 05-14-
01575-CV, 2015 WL 6777876, at *6 (Tex. App.––Dallas Nov. 6, 2015, pet.
denied) (mem. op.), an attorney is not in privity with a third party settling with his
client merely by virtue of that representation, see Rogers v. Walker, No. 13-12-
00048-CV, 2013 WL 2298449, at *3 (Tex. App.––Corpus Christi May 23, 2013,
pet. denied) (mem. op.); Continental Sav. Ass’n v. Collins, 814 S.W.2d 829, 832
(Tex. App.––Houston [14th Dist.] 1991, no writ) (“It would be a surprise to this
court and to the lawyers of the state of Texas to learn that by virtue of mere
representation a lawyer establishes privity with his client.”). Additionally, the act
of settling would not necessarily bring the attorney into privity because the mere
fact of settlement does not establish fault. See Henson v. S. Farm Bureau Cas.
Ins., 17 S.W.3d 652, 654 (Tex. 2000); Allstate Indem. Co. v. Hadley Med. Clinic,
No. 14-06-00436-CV, 2007 WL 4335500, at *6 (Tex. App.––Houston [14th Dist.]
Dec. 13, 2007, no pet.) (mem. op.) (“Settling a case generally does just that: it
resolves the issues between the parties without admission of culpability, fault, or
liability.”).
Here, Sandra did not litigate or settle in her divorce any claims against
appellees for their pre-settlement legal advice or representation. Thus, her
subsequent legal malpractice suit based on appellees’ alleged breaches of the
10
standard of care in representing her during the divorce does not have mutuality
of parties or issues with the divorce, precluding the application of quasi-estoppel
to her claims. Cf. Lopez, 22 S.W.3d at 863–64 (holding that claim seeking
reimbursement of part of law firm’s contingency fee not barred by quasi-estoppel
because, in settling of underlying litigation, clients did not knowingly relinquish
claims that law firm overcharged its fee included in settlement); Byrd v. Woodruff,
891 S.W.2d 689, 699 (Tex. App.––Dallas 1994, writ dism’d by agr.) (holding that
estoppel and collateral estoppel did not bar subsequent legal malpractice claim
after settlement of personal injury suits because no party litigated a legal
malpractice claim in those suits); cf. Kramer v. Kastleman, 508 S.W.3d 211, 220,
226–28, 230, 232 (Tex. 2017) (discussing unique nature of property-division
determinations in divorce cases in context of clarifying acceptance-of-thebenefits
doctrine and noting, “Because judgments in marital-dissolution cases
typically divide assets in which a party’s right to possession and control precedes
the final decree, invoking estoppel based on dominion over that property while
the litigation is ongoing presents a more complex scenario than other civil
disputes”).
Appellees equate Sandra’s claim against them to an attempt to invalidate
the terms of the settlement from which she has already accepted benefits. Cf.
Kramer, 508 S.W.3d at 226–28, 230, 232 (explaining that the acceptance-ofbenefits
doctrine is a form of estoppel that in some cases can bar an appeal of a
judgment based on a settlement if the particular facts show that the appellee has
11
been unfairly prejudiced and the appellant’s “clear intent to acquiesce in the
judgment’s validity,” which in a divorce case does not simply mean that the
appellant has exercised dominion over the marital property awarded to him or her
in the judgment being appealed). But if estoppel could apply in this case, it
would apply to bar any subsequent attempt by Sandra to obtain a higher money
judgment from Paul, not to her pre-settlement negligence claims against
appellees, with whom she settled nothing in the divorce. Appellees contend
Sandra knowingly made the decision to forego hiring an expert and thus should
not be able to contend that the settlement amount was inadequate. But Sandra
contends that her decision to do so was influenced by appellees’ faulty advice
that there was no way she could engage an expert without prepaying money she
did not have in hand and that even if she did, the amount she had to pay for the
expert would not result in a return on the property division equal to or more than
what she ended up having to pay for the expert. See Tex. Disciplinary Rules
Prof’l Conduct R. 1.03(b), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app.
A (West 2013) (Tex. State Bar R. art. X, § 9) (“A lawyer shall explain a matter to
the extent reasonably necessary to permit the client to make informed decisions
regarding the representation.”); see also Meyer v. Wagner, 709 N.E.2d 784, 791
(Mass. 1999) (holding that judicial estoppel did not bar legal malpractice claim in
which the plaintiff was “attempting to show that her position in the divorce action
was the result of the defendant’s malpractice” because to apply estoppel in such
an instance “would create the anomaly of permitting possible wrongdoing by an
12
attorney, of which the plaintiff had no knowledge, to constitute the basis for
barring a later claim by the plaintiff that may have merit”); Crowley v. Harvey &
Battey, P.A., 488 S.E.2d 334, 334–35 (S.C. 1997) (op. on reh’g) (reversing
summary judgment on legal malpractice claim that trial court had found was
barred because the appellant had ratified the negligence by accepting financial
benefits under a settlement and by attempting to enforce the settlement, holding
that “where, as here, the settlement itself cannot be attacked and the issue is not
one of agency but of negligence, the fact the client has accepted the benefits of
the settlement and judicially sought to enforce its terms are not bars to
maintenance of a malpractice claim”).
Whether Sandra’s settlement agreement was procured as a result of
Glasgow’s negligent advice or lack of discovery is not an issue that was litigated
or settled in the divorce. Cf. Lopez, 22 S.W.3d at 863–64; Vanasek v.
Underkofler, 50 S.W.3d 1, 15 (Tex. App.––Dallas 1999), rev’d in part on other
grounds, 53 S.W.3d 343, 347 (Tex. 2001) (affirming intermediate court’s holding
that summary judgment was not proper on legal malpractice claim but reversing
that court’s holding on DTPA claim); Helmbrecht v. St. Paul Ins., 362 N.W.2d
118, 131 (Wis. 1985) (“Colwin was not obligated to negotiate a settlement for his
client, but, in doing so, he had a duty to negotiate with reasonable diligence.
This is difficult, if not impossible, when all of the relevant and pertinent facts are
not known when an attorney enters into negotiations.”). Therefore, the doctrine
13
of quasi-estoppel does not apply as a matter of law to bar Sandra’s legal
malpractice claims in this case. We sustain Sandra’s first issue.
Legal Malpractice Claim Not Against Public Policy Encouraging Settlement
In her second issue, Sandra contends the trial court erred by granting
summary judgment on her legal malpractice claim because it should not be
barred by our state’s general public policy favoring settlements. We agree.
Texas has a strong public policy in favor of settlement of disputes. See
Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (West 2011); Wright v. Sydow, 173
S.W.3d 534, 552 (Tex. App.––Houston [14th Dist.] 2004, pet. denied). Appellees
contend that allowing Sandra to bring a legal malpractice claim after settling her
divorce would violate this public policy by discouraging attorneys from pursuing
settlements for their clients. In their motion for summary judgment, appellees
relied on Scoggin v. Henderson, which held that––to encourage settlement of
disputes––“a malpractice suit filed by a dissatisfied plaintiff against his attorney
following a settlement to which he freely agreed should not be allowed unless
there was fraudulent inducement to settle.” No. 05-92-01103-CV, 1993 WL
15496, at *6 (Tex. App.––Dallas Jan. 26, 1993, no pet.) (not designated for
publication).
Henderson had represented Scoggin in an employment lawsuit but during
that suit accepted employment with Scoggin’s law firm and was disqualified by
the trial court. Scoggin then settled his employment suit and sued Henderson,
claiming that Henderson’s disqualification “forced [him] to accept a grossly
14
inadequate settlement.” Id. at *5. The Dallas court of appeals examined cases
cited by Scoggin in favor of maintaining the malpractice suit and noted that his
reliance on them was misplaced because in those cases, “the lawyer involved
committed negligent acts in obtaining the settlement.” Id. at *6. The court of
appeals also noted that “there is no evidence that Henderson committed
negligent acts in obtaining the settlement.” Id.
The Scoggin court based its holding on the holding of the Pennsylvania
supreme court in Muhammad v. Strassburger, McKenna, Messer, Shilobod &
Gutnick, 587 A.2d 1346 (Pa.), cert. denied, 502 U.S. 867 (1991). In Muhammad,
the court, over a strongly worded dissent joined by a second justice, established
a blanket rule foreclosing a legal malpractice suit against an attorney who
represented a client in a suit that settled, in the absence of any evidence of
fraudulent inducement:
[W]e foreclose the ability of dissatisfied litigants to agree to a
settlement and then file suit against their attorneys in the hope that
they will recover additional monies. To permit otherwise results in
unfairness to the attorneys who relied on their client’s assent and
unfairness to the litigants whose cases have not yet been tried.
Additionally, it places an unnecessarily arduous burden on an overly
taxed court system.
We do believe, however, there must be redress for the plaintiff
who has been fraudulently induced into agreeing to settle. It is not
enough that the lawyer who negotiated the original settlement may
have been negligent; rather, the party seeking to pursue a case
against his lawyer after a settlement must plead, with specificity,
fraud in the inducement.
Id. at 1351–53.
15
We are reluctant to rely on either Scoggin or Muhammad because not only
is Scoggin distinguishable, the holding in Muhammad, upon which it relied, has
been limited by the Pennsylvania courts and rejected by every other state court
considering it.
In McMahon v. Shea, the Pennsylvania Supreme Court affirmed the
judgment of the Pennsylvania Superior Court holding that Muhammad applied to
bar only a legal malpractice suit following settlement in which the attorney’s
alleged negligence lay only in his or her judgment about what an appropriate
settlement amount would be, not to allegations that the attorney failed to properly
advise the client about the applicable law and the impact of settlement. 688 A.2d
1179, 1181–82 (Pa. 1997), aff’g, 657 A.2d 938 (Pa. Super. Ct. 1995). Although
McMahon was a 3-3 decision, the three concurring justices only disputed a
statement in the majority opinion that Muhammad was limited solely to its facts;
the concurring justices did, however, agree that Muhammad does not apply to
allegations of attorney negligence in a settled case that go beyond a contention
that the attorney was negligent in advising regarding a settlement amount. Id. at
1183 (Cappy, J., concurring).
In a subsequent Pennsylvania Superior Court decision, a panel applied the
same reasoning as McMahon, holding that Muhammad did not apply to bar a
legal malpractice suit “seeking to hold [the lawyer] accountable for allegedly
flawed legal advice” because to do so would not advance the interest of finality in
settlements. Kilmer v. Sposito, 2016 PA Super 141, ¶ 12, 146 A.3d 1275, 1280.
16
In that case, the attorney had advised his client, a surviving spouse, to file an
election to take against her late husband’s will, which entitled her to only onethird
of the estate, when had she not filed the election she would have been
entitled to one-half of the estate. Id. ¶ 2, 146 A.3d at 1277. The client fired the
lawyer, and her new lawyer negotiated a settlement of 41.5% of her late
husband’s estate. Id. ¶ 3, 146 A.3d at 1277. The court described the limitation
of Muhammad’s holding thusly:
Muhammad, therefore, stands for the proposition that
dissatisfied plaintiffs may not later challenge an attorney’s
professional judgment with respect to an amount of money to be
accepted in a settlement, unless plaintiffs plead and can prove they
were fraudulently induced to settle. As such, the Muhammad
decision is inapposite to the present action, which focuses not on
Appellee’s professional judgment in negotiating a settlement––
indeed, he was no longer Appellant’s attorney when Appellant
challenged the Final Accounting and ultimately settled––but on his
failure to advise her correctly on the law pertaining to her interest in
her late husband’s estate. The facts of this case sub judice,
therefore, take it outside the scope of the Muhammad prohibition
against second-guessing an attorney’s judgment as to settlement
amounts.
Id. ¶ 9, 146 A.3d at 1279–80 (additional emphasis added).
Here, Sandra has not alleged merely that appellees were negligent in
making a judgment call about the value placed on the real property or the marital
estate in general or in recommending settlement. Instead, Sandra alleges that
she was negligently advised that there was no need to seek an expert to value
the properties and not told that she could seek a court order awarding her money
from Paul to do so. Thus, even the principles underlying the reasoning of the
17
Muhammad decision would not bar Sandra’s suit as a matter of public policy. Cf.
Elizondo v. Krist, 415 S.W.3d 259, 261–66, 269–71 (Tex. 2013) (affirming noevidence
summary judgment for attorney on former client’s legal malpractice
claim for an allegedly inadequate settlement amount because client did not
present sufficient evidence of damages); Burrow v. Arce, 997 S.W.2d 229, 237
(Tex. 1999) (reversing traditional summary judgment, holding that attorneys did
not conclusively prove that clients did not suffer actual damages from attorneys’
alleged misconduct prior to obtaining settlement).
Additionally, all other jurisdictions considering the Muhammad decision
have refused to adopt its reasoning. See, e.g., Filbin v. Fitzgerald, 149 Cal. Rptr.
3d 422, 433 (Cal. Ct. App. 2012, review denied) (rejecting “flat prohibition” on
post-settlement legal malpractice suits), citing Viner v. Sweet, 70 P.3d 1046 (Cal.
2003); White v. Jungbauer, 128 P.3d 263, 265 (Colo. App. 2005), cert. denied,
No. 05SC613, 2006 WL 381672, at *1 (Colo. Feb. 6, 2006); Grayson v. Wofsey,
Rosen, Kweskin & Kuriansky, 646 A.2d 195, 199–200 (Conn. 1994); McCarthy v.
Pedersen & Houpt, 621 N.E.2d 97, 101–02 (Ill. App. Ct.), leave to appeal denied,
624 N.E.2d 809 (1993); Thomas v. Bethea, 718 A.2d 1187, 1191–95 (Md. 1998)
(“The Muhammad decision represents a distinct minority view. It is not only
inconsistent with most of the cases decided prior to its rendition, none of which
are even mentioned in the opinion, but it has been expressly rejected by all of the
courts that have had the benefit of considering it.”); Meyer, 709 N.E.2d at 789–91
& n.12; Baldridge v. Lacks, 883 S.W.2d 947, 952 (Mo. Ct. App. 1994) (holding
18
that Muhammad essentially grants attorneys immunity from civil liability in nonfraud-
based, post-settlement legal malpractice cases and declining to adopt
similar rule), superseded on other grounds by amended Mo. Sup. Ct. R. 72.01,
as discussed in Pope v. Pope, 179 S.W.3d 442, 455–56 (Mo. Ct. App. 2005);
McWhirt v. Heavey, 550 N.W.2d 327, 334–35 (Neb. 1996) (adopting Connecticut
Supreme Court’s holding in Grayson); Malfabon v. Garcia, 898 P.2d 107, 109
(Nev. 1995); Guido v. Duane Morris LLP, 995 A.2d 844, 852–54 (N.J. 2010)
(reaffirming rejection of Muhammad but noting that under certain facts equity
could dictate prohibition of post-settlement malpractice suit against attorney),
citing Ziegelheim v. Apollo, 607 A.2d 1298 (N.J. 1992); see also Edmondson v.
Dressman, 469 So.2d 571, 573–74 (Ala. 1985) (allowing legal malpractice claim
to go forward against attorney who allegedly “negligently advised [the plaintiff] to
settle her claims for an unreasonable amount”); Bill Branch Chevrolet, Inc. v.
Philip L. Burnett, P.A., 555 So.2d 455, 455–56 (Fla. Dist. Ct. App. 1990)
(reversing lower court’s dismissal of suit for failure to state a claim, holding that
“[w]e cannot say as a matter of law that the settlement of this case negates any
alleged legal malpractice as a proximate cause of loss”); Braud v. New England
Ins., 534 So.2d 13, 14–15 (La. Ct. App. 1988) (determining that only trial on
merits was appropriate to resolve allegation that “but for [the Brauds’] attorney’s
negligence in obtaining the default judgment, they would not have found
themselves in the position of having to decide whether to settle for less than they
would have received under the default judgment”); Lowman v. Karp, 476 N.W.2d
19
428, 431 (Mich. Ct. App. 1991) (“We agree that plaintiff’s settlement of the
underlying action should not act as an absolute bar to a subsequent legal
malpractice action. We are not persuaded by defendant’s argument that such a
rule would act to dissuade attorneys from settling cases.”); Cook v. Connolly, 366
N.W.2d 287, 291–92 (Minn. 1985) (declining to bar post-settlement legal
malpractice causes of action, holding that “[t]he presence of a prior courtapproved
minor settlement does not make this malpractice suit different from any
other malpractice action on the standard of conduct required of the defendant
attorney, although it may be relevant evidence on whether the standard of
conduct was met”); Cohen v. Lipsig, 459 N.Y.S.2d 98, 99 (N.Y. App. Div. 1983)
(“A cause of action for legal malpractice is viable despite the plaintiff’s settlement
of the underlying action where such settlement was compelled because of the
mistakes of the defendant, the plaintiff’s former counsel.”); Crowley, 488 S.E.2d
at 334–35 (reversing summary judgment on post-settlement legal malpractice
claim).
We likewise decline to adopt a minority position that even the courts in the
same state do not rely upon so broadly. Here, Sandra has alleged that appellees
negligently failed to inform her that she could have attempted to seek to have the
trial court order Paul to pay the fees for a property valuation expert so that her
settlement––although voluntary––was not made with full knowledge of her rights
and the law. Cf. Byrd, 891 S.W.2d at 699 (“As Kassie’s attorney, Woodruff knew,
or should have known, of the facts and circumstances surrounding the judgment
20
and creation of the trust. Woodruff was as competent as Kassie, if not more so,
to evaluate the fairness of the settlements and the creation of the trust.”). We
conclude that, based on these specific allegations, allowing a legal malpractice
claim to go forward against appellees would not discourage settlement or violate
the public policy of the State of Texas. See Kramer, 508 S.W.3d at 227
(acknowledging Texas’s preference for disputes to be adjudicated on the merits).
Therefore, the trial court erred by granting summary judgment on Sandra’s legal
malpractice claim on this ground.
We sustain Sandra’s second issue.
Breach of Contract Claim Barred By Anti-Fracturing Rule
In her third issue, Sandra challenges the trial court’s order granting
appellees’ summary judgment on her breach of contract claim because she
contends that it is not barred by the anti-fracturing rule as urged by appellees in
their motion for summary judgment.
The anti-fracturing rule is based on the nature of a professional negligence
claim. See J.A. Green Dev. Corp. v. Grant Thornton, LLP, No. 05-15-00029-CV,
2016 WL 3547964, at *6 (Tex. App.––Dallas June 28, 2016, pet. denied) (mem.
op.). In such a claim, the gravamen of the complaint focuses on the quality or
adequacy of the attorney’s representation. Id. For the anti-fracturing rule to
apply, then, to bar a claim pled in the alternative to a legal malpractice claim, the
crux of that complaint must focus on the quality or adequacy of the attorney’s
representation. See Echols v. Gulledge & Sons, LLC, No. 10-13-00419-CV,
21
2014 WL 4629056, at *4 (Tex. App.––Waco Sept. 11, 2014, pet. denied) (mem.
op.); Murphy v. Gruber, 241 S.W.3d 689, 692–93 (Tex. App.––Dallas 2007, pet.
denied); Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.––Houston
[1st Dist.] 1998, pet. denied).
We conclude and hold that Sandra’s breach of contract complaint is
nothing more than a recasting of her legal malpractice claim. The gravamen of
her complaint––that appellees failed to properly investigate the underlying facts
of the divorce, failed to properly prosecute and manage the divorce, and gave
her erroneous legal advice and opinions––indisputably focuses on the quality or
adequacy of appellees’ representation of her in the divorce resulting in the
agreed decree. Thus, that complaint is barred by the anti-fracturing rule. See
Won Pak, 313 S.W.3d at 457–59; Fitts v. Richards-Smith, No. 06-15-00017-CV,
2016 WL 626220, at *11 (Tex. App.––Texarkana Feb. 17, 2016, pet. denied)
(mem. op.). We overrule her third issue.

Outcome: Having overruled Sandra’s third issue, we affirm the summary judgment on
her breach of contract claim. But having sustained her first and second issues,
we reverse the summary judgment on her legal malpractice claim and remand
the case to the trial court for further proceedings on that claim.

Plaintiff's Experts:

Defendant's Experts:

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