source: Caselaw Access Project

author: WANDA McKEE FOWLER, Justice.

license: Public Domain

text:
    Harrold E. (“Gene”) WRIGHT, Don Kennard, Pat S. Holloway, and Pat S. Holloway, P.C., Appellants v. Michael SYDOW and Verner, Liipfert, Bernhard Mcpherson & Hand, Chartered, Appellees
    No. 14-03-00222-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 24, 2004.

      William J. Eggleston, R. Wade Vandi-ver, Houston, for appellants.
    David J. Beck, Fields Alexander, Russell S. Post, Houston, for appellees.
    Panel consists of Justices FOWLER, EDELMAN, and FROST.
   OPINION

WANDA McKEE FOWLER, Justice.

I. Introduction.

Harrold Wright and Don Kennard hired Michael Sydow and Verner, Liipfert, Bern-hard Mcpherson & Hand, Chartered to represent them in qui tam litigation. Wright and Kennard anticipated reaping a great deal of money from the suits and Sydow and Verner, Liipfert were given an interest in any proceeds they obtained. But, less than a year after their relationship began, it soured, leaving Wright and Kennard crying foul and attempting to avoid the preclusive effects of a settlement agreement by secretly assigning causes of action days before they executed the agreement. Wright and Kennard filed this suit several years later.

Wright and Kennard, along with Pat Holloway, a lawyer and friend of the two, and Pat Holloway, P.C., appeal a summary judgment entered against them in their suit against Sydow and Verner, Liipfert. Wright, Kennard, Holloway and Holloway, P.C. bring six issues on appeal. We have divided the issues into three groups:

(1) Wright’s and Kennard’s substantive claims related to the Settlement Agreement covering the qui tam litigation. These claims include three issues relating to alleged fraudulent acts that Wright and Kennard released in a settlement agreement with Sydow and Ver-ner, Liipfert. In these issues, they attempt to avoid the release by claiming (a) fraud and duress, (b) that some acts occurred after the settlement agreement, and (c) violations of the Texas Lawyers’ Disciplinary Code.
(2) Wright’s and Kennard’s procedural issue involving the trial court’s denial of their motion for continuance. In this issue, Wright and Kennard complain that the trial court wrongly denied their motion for continuance of the summary judgment hearing.
(3) Pat Holloway’s and Pat Holloway, P.C.’s claims. Pat Holloway and Pat Holloway, P.C. raise two issues. In the first, they claim that the trial court wrongly refused to allow Pat Holloway to recover on claims Wright and Ken-nard assigned to him days before the Settlement Agreement was executed. In the second, they complain that the court should not have dismissed Pat Holloway, P.C.’s claims for fraudulent inducement and negligent misrepresentation.

We overrule all of the issues except the issue pertaining to Pat Holloway, P.C.’s claims. Wright’s and Kennard’s substantive attacks on the Settlement Agreement fail because they released the claims, and their attempts to circumvent the release fail. The procedural issue fails because the trial court did not abuse its discretion in denying their motion for continuance, as they requested it only to gather more evidence for their fatally flawed duress and fraud claims. Holloway’s claim fails because it involved an assignment of a malpractice claim made solely to avoid the preclusive effect of a Settlement Agreement. Finally, Pat Holloway, P.C.’s claim is reversed and remanded because Sydow and Verner, Liipfert failed to address that claim in their summary judgment motion.

II. Facts and Procedural Background.

A. The Factual Background.

This suit arose after Sydow and Verner, Liipfert represented Wright and Kennard from December 1997 to October 1998 in False Claims Act (“FCA”) litigation. Under the FCA, individual citizens may bring a qui tarn action, as relators, in the name of the government seeking damages for fraud committed against the government. See 31 U.S.C. §§ 3729-3733 (1994). In exchange for these efforts, a relator receives a portion of the recovery in the suit — up to thirty percent of the proceeds of the action — plus reasonable expenses, costs, and attorney’s fees. Id. § 3730(d). According to Wright, Kennard, Holloway, and Holloway, P.C., FCA litigation is unique because it “creates an entrepreneurial atmosphere .... it is a joint venture between the relator and his attorneys to collect money for a third-party.”

Wright filed suit under the FCA against a large number of oil and gas companies alleging underpayment of royalties due the federal government on oil, gas, and natural gas liquids produced from federal onshore, Indian, and outer-continental-shelf lands (the “original FCA lawsuit”). He needed competent counsel to represent him in this and other complex litigation. After meetings among Sydow and Verner, Liipfert, and Wright, and Kennard, everyone agreed Sydow and Verner, Liipfert would represent Wright and Kennard as lead counsel.

The relationship soured rather quickly. Among other complaints, Wright and Ken-nard believed that Sydow and Verner, Li-ipfert had misrepresented

(a) their experience in the types of suits in which Wright and Kennard were involved,
(b) their intent to diligently represent Wright and Kennard, and
(c) their lack of conflicts with the litigation.

Less than a year after Wright hired them, he informed Sydow and Verner, Liipfert they were being discharged as his attorneys. He claimed the discharge was for cause for numerous reasons. Sydow and Verner, Liipfert responded with a letter disputing Wright’s claims and informing Wright that Sydow and Verner, Liipfert retained “all of [their] rights under the respective retention agreements and applicable law.”

Following this, in October of 1998, Sy-dow and Verner, Liipfert filed motions to withdraw as counsel for Wright and Ken-nard and motions to intervene in the three pending lawsuits. Sydow and Verner, Li-ipfert attached to each motion a copy of Wright’s discharge letter. Sydow and Verner, Liipfert sought to withdraw as attorneys for both Wright and Kennard, although Wright did not mention Kennard in the discharge letter.

United States District Judge John Hannah, Jr., the presiding judge over the three lawsuits, ruled on Sydow and Verner, Liip-fert’s motions in November of 1998, finding that

(1)on October 21, 1998, Wright, acting for himself and on behalf of Kennard, notified Sydow and Verner, Liipfert that they had been discharged in all pending FCA litigation;
(2) Sydow and Verner, Liipfert disputed they were discharged for cause; and
(3) unless he allowed the attorneys to intervene, their ability to protect their interest in the litigation would be impaired.

The court granted Sydow and Verner, Liipfert’s request to withdraw as counsel for Wright and Kennard and also allowed them to intervene in the pending FCA actions. In early December of 1998, Wright, Kennard and Holloway received copies of Judge Hannah’s orders.

Several months later, in April of 1999, the parties executed a Settlement Agreement releasing and discharging one another “from any and all claims, demands and causes of actions, including, but not limited to, those in contract, warranty or tort, of negligence or gross negligence, of quantum meruit, under common law or statute, based upon any acts and/or omissions” of the parties.

B. The Procedural Background of this Suit.

More than a year after executing the Settlement Agreement, Wright and Ken-nard sued Sydow and Verner, Liipfert, asserting legal malpractice, fraud, negligent misrepresentation, negligence, breach of contract, breach of fiduciary duty, conversion, negligent supervision, fraudulent inducement, and Texas Deceptive Trade Practices Act (“DTPA”) violations. Wright and Kennard alleged that their legal malpractice claims were continuing because Sydow and Verner, Liipfert continued to use confidential information acquired when they represented Wright and Kennard. Later, in Wright’s and Ken-nard’s Second Amended Petition, Holloway, P.C. was listed as a plaintiff, asserting a claim for fraudulent inducement. The petition also stated that the action was being brought in part by Pat Holloway, individually, as an assignee of Wright’s and Kennard’s claims.

Sydow and Verner, Liipfert filed a motion for summary judgment arguing that (1) Wright’s and Kennard’s claims had been settled and released by the Settlement Agreement; (2) Wright and Kennard could not assign their legal malpractice claims to Pat Holloway under Texas law and, (3) Holloway, P.C.’s claims failed because Holloway, P.C. was never represented by Sydow or Verner, Liipfert and Texas law forbids non-clients from suing for legal malpractice.

The trial court granted summary judgment in favor of Sydow and Verner, Liip-fert, holding in part that

• all claims asserted by Wright and Kennard had been released by the Settlement Agreement;
• no genuine issue of fact existed regarding the alleged fraud and/or duress;
• the purported assignments of claims and causes of action to Pat Holloway individually were void and unenforceable under Texas law;
• the claims of Holloway, P.C. were invalid because there was no privity between Holloway, P.C. and Sydow and Verner, Liipfert; and
• Wright’s and Kennard’s Motion for Continuance was denied.

This appeal ensued.

III. The Standard of Review.

The standard of review for five of the six issues is the well-established standard applied to summary judgments. The movant for summary judgment has the burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). In deciding whether there is a material disputed fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Id. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id.

A defendant, as movant, is entitled to summary judgment if it (1) disproves at least one element of each of the plaintiffs theories of recovery, or (2) pleads and conclusively establishes each essential element of an affirmative defense, rebutting the plaintiffs cause of action. Burroughs v. APS Int’l, Ltd., 93 S.W.3d 155, 159 (Tex.App.—Houston [14th Dist.] 2002, pet. denied).

IV. WRIGHT’S AND KENNARD’S SUBSTANTIVE CLAIMS RELATED TO THE SETTLEMENT AGREEMENT.

We now turn to Wright’s and Kennard’s substantive issues related to the Settlement Agreement. First, they claim the trial court erred in dismissing their claims because the Settlement Agreement was procured by duress and fraud, and therefore was not enforceable. They then claim the court should not have dismissed some of their fraud claims because the claims arose after the effective date of the Settlement Agreement. Finally, relying on Texas Disciplinary Rule 1.08, they argue the court should not have dismissed Kennard’s claims because Sydow and Verner, Liipfert violated the rule when they entered into the Settlement Agreement with Kennard, who claims he had no counsel at the time. We address each issue in turn.

A. The Settlement Agreement is Enforceable; It was Not Procured Through Duress or Fraud.

Sydow and Verner, Liipfert moved for summary judgment arguing, in part, that Wright and Kennard settled and released their claims by executing the Settlement Agreement.

A release that is valid on its face is a complete bar to any action based on matters covered in the release. McMahan v. Greenwood, 108 S.W.3d 467, 478 (Tex.App.—Houston [14th Dist.] 2003, pet. denied). Only when it is set aside does the release become ineffective. Id. In a summary judgment context, once a release is properly pleaded, the burden shifts to the other party to offer proof that the release should be set aside. Id. Therefore, once Sydow and Verner, Liipfert pleaded and proved the Settlement Agreement, Wright and Kennard had the burden to present evidence raising a fact issue as to duress and fraud. Wright and Kennard presented evidence they believed showed the Settlement Agreement was unenforceable because it had been procured through duress and fraud. In its final judgment, the trial court found that “[a]ll claims of Wright and Kennard asserted in this lawsuit were released by those parties’ execution of the Settlement Agreement.”

We review the evidence below, and, as we explain, we agree with the trial court that the facts of this case reveal no duress or fraud.

1. Duress.

a. Wright’s and Kennard’s Claims.

Wright and Kennard argue that they executed the Settlement Agreement under economic duress. They claim Sydow and Verner, Liipfert created the duress by intervening in the FCA suits and claiming— in “bad faith” — an interest in Wright’s and Kennard’s potential recoveries in the FCA litigation. According to Wright and Ken-nard, the interventions jeopardized Wright’s and Kennard’s ability to continue with the pending suits because they were unable to find lawyers willing to prosecute the inherently expensive and risky FCA litigation while Sydow and Verner, Liipfert asserted an interest in the proceeds.

Wright and Kennard contend that Sy-dow and Verner, Liipfert asserted the claims to coerce a settlement and gain proceeds they knew were not theirs. According to Wright and Kennard, Sydow and Verner, Liipfert knew their intervention was wrongful, so they cannot assert they had a “legal right” to intervene. And, Wright and Kennard claim, Sydow and Verner, Liipfert confirmed their bad intent by filing the intervention and motion to withdraw and fraudulently representing they had sent notice of the intervention to all attorneys of record when they had not.

b. The Law Governing Economic Duress.

Generally, when one coerces another to execute a contact by taking undue or unjust advantage of the person’s economic necessity or distress, the contract may be invalid or unenforceable. Brown v. Cain Chem., Inc., 837 S.W.2d 239, 244 (Tex.App.—Houston [1st Dist.] 1992, writ denied). This legal theory is called economic duress. It requires both the acts or conduct of the opposing party and the necessities of the alleged victim or his fear of what a third person might do. Id. The victim’s plight alone will not suffice; it must be coupled with the bad acts of the transgressor. Id. What constitutes duress is a question of law for the court. Windham v. Alexander, Weston & Poehner, P.C., 887 S.W.2d 182, 185 (Tex.App.—Texarkana 1994, writ denied); Matthews v. Matthews, 725 S.W.2d 275, 278 (Tex.App.—Houston [1st Dist.] 1986, writ ref d n.r.e.). However, whether duress exists in a particular situation is generally a fact question dependent upon all the circumstances surrounding the situation, including the mental effect on the party claiming duress. Windham, 887 S.W.2d at 185; Matthews, 725 S.W.2d at 278.

Economic duress consists of (1) a threat to do something a party has no legal right to do, (2) an illegal exaction or some fraud or deception, and (3) an imminent restraint that destroys the victim’s free agency and leaves him without a present means of protection. Dale v. Simon, 267 S.W. 467, 470 (Tex. Comm’n App.1924); King v. Bishop, 879 S.W.2d 222, 223 (Tex.App.—Houston [14th Dist.] 1994, no writ); Brown, 837 S.W.2d at 244. Wright and Kennard had the burden to raise a fact issue as to each of these elements. See McMahan, 108 S.W.3d at 478; Brown, 837 S.W.2d at 242.

Finally, one additional rule is relevant and important. When a party making a demand has to resort to the courts to enforce the demand, no duress occurs— even if the demand is wrongful or unlawful — because the courts provide the victim with adequate protection. Dale, 267 S.W. at 470; see also Cont’l Cas. Co. v. Huizar, 740 S.W.2d 429, 430 (Tex.1987) (Under Texas law, “[a] threat to institute a civil suit or even the actual institution of suit does not, as a matter of law, constitute duress.”); Ward v. Scarborough, 236 S.W. 434, 437 (Tex. Comm’n App.1922) (“The courts have drawn a distinction between the cases where, although the claim asserted ... is wrongful or unlawful, the party asserting the claim ... is compelled to resort to the courts to enforce [it], and the cases where the party making [the] demand possesses ... the power to enforce the demand ... without resort to the courts. In the former case it is held ... with uniformity ... that there is no duress.”).

In addition, both state and federal courts have ample tools to punish those who bring a suit in bad faith. See TEX. R. CIV. P. 13; FED. R. CIV. P. 11. For this reason, questions of bad faith in a suit must be resolved in the court where the action is pending. See Griffith v. Geffen & Jacobsen, P.C., 693 S.W.2d 724, 728 (Tex.App.—Dallas 1985, no writ).

c. The Alleged Bad Faith Actions Involve Filing Law Suits.

We turn now to Wright’s and Ken-nard’s summary judgment evidence, which they contend raises a fact issue regarding Sydow and Verner, Liipfert’s “legal right” to intervene. They claim that Sydow and Verner, Liipfert’s intervention was wrongful and in “bad faith” because Sydow and Verner, Liipfert knew their claim to any recoveries in the qui tarn litigation was baseless. Even if we assume Wright’s and Kennard’s evidence is true, and that Sy-dow and Verner, Liipfert pursued its claims in bad faith, Wright’s and Ken-nard’s claims fail.

Sydow and Verner, Liipfert entered into contingent fee contracts with Wright and Kennard concerning the underlying FCA litigation, and intervened in the FCA litigation to protect any fees they may have been entitled to receive under the representation agreements. Sydow and Verner, Liipfert openly contested that their discharge was with cause. Under Texas law, because they resorted to the courts to pursue whatever rights they may have had under the contingent fee contracts and to dispute the discharges for cause, no economic duress can occur.

Wright and Kennard attempt to engraft on economic duress a requirement that the claim must be brought in good faith. However, as we have discussed, the Texas Supreme Court has held since the late nineteenth century that no compulsion occurs when one party sues, even if the suit is brought in bad faith. See Taylor v. Hall, 71 Tex. 213, 9 S.W. 141, 142-48 (1888).

A corollary to this rule is that disputes must be settled in the case in which and the court before which they arise. The courts have been given broad powers to punish those abusing the court system and provide litigants sufficient protection. See TEX. R. CIV. P. 13. Subsequent or satellite litigation — as Wright and Kennard have initiated here — on issues relating to a suit is not a proper remedy and is an inefficient and improper use of the court system. See Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex.1998); McMahan, 108 S.W.3d at 482; Detenbeck v. Koester, 886 S.W.2d 477, 481 (Tex.App.—Houston [1st Dist.] 1994, no writ).

Sydow and Verner, Liipfert intervened through the court, pursuing whatever rights they may have had under their fee agreements, and Wright and Kennard could have availed themselves of the protections of the court. Had the intervention been wrongful, Wright and Kennard could have tried the issue in the federal court before the entry of Judge Hannah’s order, or following their receipt of the order, but they chose not to. See FED. R. CIV. P. 60(b) (stating a party may file a motion to be relieved of a judgment or order issued through mistake, neglect or fraud, among other reasons, within a year of the date the order was issued).

In sum, we find Wright and Kennard failed to establish that the Settlement Agreement was signed under duress.

2. Fraud.

Wright and Kennard also claim the Settlement Agreement is unenforceable because it was procured through these illegal acts:

(1) fraud committed to convince Wright and Kennard to hire Sydow and Verner, Liipfert;
(2) fraud committed when Sydow and Verner, Liipfert illegally claimed ownership in possible recoveries of Wright and Kennard in the FCA litigation; and
(3) fraud occurring when Sydow and Verner, Liipfert did not notify Wright and Kennard that they had intervened in the lawsuit pending in Judge Hannah’s court.

a. The Law Regarding Fraud.

Under Texas law a person has a duty to abstain from fraudulently inducing another to enter into a contract. See McMahan, 108 S.W.3d at 479 (citing Haase v. Glazner, 62 S.W.3d 795, 798 (Tex.2001)). When one individual fraudulently induces another to enter into a contract, no contract results because the one who was fraudulently induced gave no real consent to the agreement. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex.1997). A settlement agreement or release is a contract and, like other contracts, may be avoided if it was procured through fraud. Id.

Fraud requires a material false representation that the speaker knew was false or that was made recklessly without any knowledge of the truth and as a positive assertion. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex.1998). The speaker must intend that the other party act upon the statement. Id. The party must act in reliance upon the representation and suffer injury. Id.; McMahan, 108 S.W.3d at 479. In addition, implicitly, the rule requires that the victim not know that the statement is false. McMahan, 108 S.W.3d at 479-81 (finding that knowledge of the alleged fraud defeated a claim that a settlement agreement was procured through fraud). This last, implicit requirement, prevents Wright and Kennard from establishing the necessary elements of their fraud claim.

b. Wright and Kennard Knew of the Alleged Acts Before Signing the Settlement Agreement.

Wright and Kennard cannot establish their fraud claim because they knew about the alleged fraudulent acts before they executed the Settlement Agreement. The language contained in their assignment to Holloway, signed before the Settlement Agreement, describes the very acts of which they now complain. The assignment stated that

• Sydow and Verner, Liipfert had “lied and misrepresented facts” to Wright, Kennard, and Judge Hannah;
• the intervention was frivolous; and
• Wright and Kennard executed the assignment because of the coercion and duress exerted by Sydow and Verner, Liipfert.

By the express language of the Settlement Agreement, Wright and Kennard released any and all claims against Sydow and Verner, Liipfert which occurred as of the execution date, April 12, 1999, whether known or not, including claims surrounding Sydow and Verner, Liipfert’s representation of them in the FCA litigation, as well as their intervention in those suits. The Settlement Agreement also contains a merger clause, stating that “all promises, negotiations, or representations not expressly set forth in this Agreement are of no force and effect.”

In summary, because Wright and Ken-nard failed to establish their claims of fraud and duress, the trial court properly granted summary judgment based upon the Settlement Agreement and their first issue is overruled.

B. The Trial Court Did Not Err in Dismissing Wright’s and Kennard’s Post-Settlement Agreement Claims.

In their second issue, Wright and Kennard argue the trial court erred in granting summary judgment on their post-Settlement Agreement claims. Wright and Kennard claimed Sydow and Verner, Liipfert used confidential information of Wright and Kennard in representing an Indian tribe. However, as with the fraud claims, Wright and Kennard knew of the representation when they executed the Settlement Agreement and thus released these claims. Again, their knowledge is evidenced by language contained in the assignment to Pat Holloway:

D. In addition, [Sydow and Verner, Li-ipfert’s] Settlement Agreement misappropriated confidential and proprietary information obtained by them in the course of their representation of Wright and Kennard, and used it for their own purposes to obtain separate and conflicting representation of the Alabama and Coushatta Indian Tribes of Texas []. E.... In violation of their duties of undivided loyalty to Wright and Ken-nard, [Sydow and Verner, Liipfert] agreed to represent the Tribe[s] in separate litigation by it. They filed a lawsuit for the Tribe[s] which competed directly with one lawsuit they already had filed for Wright; and with another lawsuit they had agreed to file for Wright and Kennard. The lawsuit [Sydow and Ver-ner, Liipfert filed] on behalf of the Tribe[s] was based entirely on confidential and proprietary information of Wright and Kennard which [Sydow and Verner, Liipfert] had obtained in the course of their representation of Wright and Kennard.

Clearly, Wright and Kennard knew of these post-Settlement Agreement claims, and they do not argue that different conduct by Sydow and Verner, Liipfert or different harm gave rise to their post-Settlement Agreement claims. Instead, in a unique twist, they argue that Sydow and Verner, Liipfert’s continued use of the confidential information represents a continuing breach of the duty it owed to them as clients; as a continuing breach, these claims survive the execution of the Settlement Agreement. We think not.

Under the legal injury rule, a tort cause of action accrues when the tort is completed — when the act is committed and damages are suffered. Goggin v. Grimes, 969 S.W.2d 135, 137 (Tex.App.—Houston [14th Dist.] 1998, no pet.). Wright and Kennard complain that Sydow and Verner, Liipfert used Wright’s and Kennard’s confidential information to represent the Tribes. Under this scenario, the injury-producing event occurred when Sydow and Verner, Liipfert undertook representation on behalf of the Tribes. Wright and Ken-nard knew of this conduct before signing the Settlement Agreement. Yet, they released Sydow and Verner, Liipfert from any claims or causes of action in connection with the FCA litigation. See Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co., 20 S.W.3d 692, 698 (Tex.2000). They have failed to establish that their post-Settlement Agreement claims survived execution of the Settlement Agreement. The trial court properly granted summary judgment on these claims, and we overrule their second issue.

C. The Trial Court Did Not Err in Dismissing Kennard’s Claims that the Firm Violated Texas Disciplinary Rule 1.08.

In their third issue, Wright and Ken-nard argue that the trial court erred in dismissing Kennard’s claims, alleging that Sydow and Verner, Liipfert violated Texas Disciplinary Rule 1.08(g) when they entered into the Settlement Agreement with Kennard because Kennard claimed in a summary judgment affidavit that he was not represented by counsel.

Disciplinary Rule 1.08(g) provides the following:

A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.

TEX. DISCIPLINARY R. PROF’L CONDUCT 1.08(g), reprinted in TEX. GOV’T CODE, tit. 2, subtit. G app. A.

Relying on Quintero v. Jim Walter Homes, Inc,, 709 S.W.2d 225 (Tex.App.—Corpus Christi 1986, writ refd n.r.e.), Wright and Kennard argue that a release made in contravention of the Disciplinary Rules is invalid and unenforceable.

1. Contracts between attorneys and their clients are closely scrutinized and presumed invalid; when the attorney-client relationship is severed, the presumption ends.

Generally, courts closely scrutinize contracts between attorneys and their clients negotiated during the existence of the attorney-client relationship. Keck, 20 S.W.3d at 699. They do this because the relationship is fiduciary in nature and, therefore, courts presume those contracts are unfair or invalid. Id. If the attorney-client relationship has been severed before the parties enter into an agreement, the presumption does not apply. Id. at 699 n. 3.

Months before the Settlement Agreement was executed, the federal district court severed the attorney-client relationship between Kennard and Sydow and Verner, Liipfert. Kennard knew this at least by December 1998, about five months before he executed the Settlement Agreement. Indeed, the Settlement Agreement states, “[ajlthough Kennard alleges that he has not yet terminated [Sydow and Verner, Liipfert] ..., the Court found by its Order dated November 9, 1998 that Wright has terminated [Sydow and Ver-ner, Liipfert] on behalf of Kennard.” Therefore, although appellants argue that the Disciplinary Rules provide the standard of care governing execution of the Settlement Agreement, the attorney-client relationship between Kennard and Sydow and Verner, Liipfert had ended five months before its execution. Because the fiduciary nature of the relationship ended before Kennard signed the Settlement Agreement, the presumption of invalidity no longer accompanies it. For this reason, we examine it in light of general contract principles. See id.

2. A review of the facts of this case based on general contract principles reveals no prejudice to Kennard.

Here, the evidence indicates the parties negotiated and executed the Settlement Agreement in an arm’s length transaction. First, Keith Spickelmier, the attorney representing Sydow and Verner, Liipfert in the Settlement Agreement matter, stated by affidavit that all negotiations regarding the agreement were conducted through attorneys for each of the parties and that Wright’s attorney — not Sydow or Verner, Liipfert — drafted the original agreement. Second, Wright and Kennard furnished affidavits attesting to their business acumen and, specifically, Kennard’s affidavit states he was a Texas state legislator for twenty years, concentrating much of his career “in pursuit of the public interest as it relates to the oil and gas industry.” Kennard was a sophisticated party in the transaction. Third, the terms of the Settlement Agreement were favorable to Kennard because, unlike Wright, the Settlement Agreement did not require him to pay anything to Sydow and Verner, Liipfert. See, e.g., Schlumberger, 959 S.W.2d at 179 (construing a release under contract interpretation rules, upholding release and noting various factors established it was an arm’s length transaction).

In addition, even assuming Ken-nard was not represented and that Sydow and Verner, Liipfert did not inform him that he should acquire independent representation, this would merely establish a violation of the Disciplinary Rules. A violation of the Disciplinary Rules does not necessarily establish a cause of action, nor does it void an otherwise valid contract executed outside of the attorney-client relationship. See TEX. DISCIPLINARY R. PROF’L CONDUCT preamble ¶ 15; Cuyler v. Minns, 60 S.W.3d 209, 214 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). And Kennard has not cited us any case with these or any facts in which a court has held that a cause of action exists based on this disciplinary rule.

We have already held that the Settlement Agreement is not voidable due to any alleged duress or fraud. We decline to use Disciplinary Rule 1.08 to void an otherwise valid settlement agreement entered into at arm’s length and by which Kennard obtained favorable results. Cf. Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 553 (Tex.2001) (noting that courts should exercise judicial restraint in deciding to hold an arm’s length transaction void on public policy grounds). We overrule Kennard’s third issue.

V. WRIGHT’S AND KENNARD’S PROCEDURAL ISSUE.

A. The Trial Court Did Not Err in Denying the Motion for Continuance.

In their procedural issue, Wright and Kennard claim the trial court erred in denying their motion for continuance under Rule 166a(g). See TEX. R. CIV. P. 166a(g).

1. The Standard of Review.

A request for a continuance is within the trial court’s discretion, and we will not disturb the trial court’s ruling unless the trial court abused its discretion, or in other vernacular, unless the trial court acted arbitrarily and unreasonably. Karen Corp. v. Burlington N. & Santa Fe Ry. Co., 107 S.W.3d 118, 124 (Tex.App.—Fort Worth 2003, pet. denied). When a party receives notice of a summary judgment hearing and the notice gives more than the twenty-one days required by the rules of civil procedure, denial of a motion for continuance based on lack of time to prepare generally is not an abuse of discretion. Id.; Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 485 (Tex.App.—Dallas 1995, writ denied). Courts may presume that a plaintiff has sufficiently investigated his own case prior to filing it. Laughlin v. Bergman, 962 S.W.2d 64, 66 (Tex.App.—Houston [1st Dist.] 1997, pet. denied).

2. The Trial Court Did Not Abuse its Discretion.

According to Wright and Ken-nard, if the trial court had granted them extra time, they could have shown that Sydow and Verner, Liipfert had no legal right to assert a continuing interest in the underlying lawsuits. They also argue that additional discovery was necessary to develop their allegations of fraud and duress. However, we already have held that the foundations for their fraud and duress claims were infirm. No matter how much additional discovery they procured to show that Sydow and Verner, Liipfert had intervened in bad faith or that Sydow and Verner, Liipfert were using confidential information, Wright and Kennard still could not prevail.

For this reason, we hold that the trial court did not abuse its discretion in refusing to grant a continuance to allow Wright and Kennard more time for discovery. See, e.g., Karen Corp., 107 S.W.3d at 124 (affirming denial of motion for continuance because issue had been established as a matter of law and further discovery was therefore unnecessary). We overrule Wright’s and Kennard’s procedural issue.

VI. THE ISSUES RELATED TO HOLLOWAY AND TO HOLLOWAY, P.C.

A. The Trial Court Did Not Err in Dismissing Wright’s and Kennard’s Claims Assigned to Holloway Individually Because the Assignment Violates Public Policy.

Wright, Kennard and Holloway contend that the trial court erred in dismissing the claims assigned to Holloway individually because they were assigned before Wright and Kennard executed the Settlement Agreement. Consequently, Wright and Kennard argue that the claims were not released by the Settlement Agreement and that Holloway may prosecute them. In addition, they argue that their other claims against Sydow and Verner, Liipfert, such as their claims for fraud, breach of contract, misrepresentation, and violations of the Deceptive Trade Practices Act, are freely assignable.

1. The Assignability of Causes of Action.

Generally, under Texas law, causes of action are assignable. Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627, 683 (Tex.App.—Dallas 2000, pet. denied) (citing to TEX. PROP. CODE § 12.014). However, this general rule does not necessarily apply to legal malpractice claims. Id. Assignments of legal malpractice claims necessitating a “duplicitous change in the positions taken by the parties in antecedent litigation” and those involving commercial marketing of legal malpractice claims are disfavored under Texas law. Mallios v. Baker, 11 S.W.3d 157, 164 (Tex.2000) (Hecht, J., concurring); Tate, 24 S.W.3d at 633.

In addressing the propriety of assigning malpractice claims, Texas courts focus on public policy issues. See, e.g., Tate, 24 S.W.3d at 633-34; Vinson & Elkins, 946 S.W.2d at 392; Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 316-18 (Tex.App.—San Antonio 1994, writ refd). We discuss below the relevant considerations.

2. Texas Public Policy Considerations Relating to Assignments.

When examining an agreement with public policy concerns in mind, we determine whether the agreement has a tendency to “injure the public good.” Ranger Ins. Co. v. Ward, 107 S.W.3d 820, 827 (Tex.App.—Texarkana 2003, pet. denied). No standard definition or test applies to all cases, but courts generally find that a contract injures the public good if it is illegal, or is inconsistent with or contrary to, the best interests of the public. Id. “A state’s public policy is embodied in its constitution, statutes, and the decisions of its courts.” Id.

Texas law strongly favors and encourages voluntary settlement and orderly dispute resolution. See, e.g., Schlumberger, 959 S.W.2d at 178; Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex.1992); Ranger Ins. Co., 107 S.W.3d at 827. Indeed, “ ‘[t]he law has always favored the resolution of controversies through compromise and settlement rather than through litigation[,] and it has always been the policy of the law to uphold and enforce such contracts if they are fairly made and are not in contravention of some law or public policy.’” Cadle Co. v. Castle, 913 S.W.2d 627, 638 (Tex.App.-Dallas 1995, writ denied) (quoting Hernandez v. Telles, 663 S.W.2d 91, 93 (Tex.App.—El Paso 1983, no writ)). Settlement agreements are not only favored because they are beneficial in themselves, but also because they are “conducive to peace and harmony.” Id.; see also Miller v. Republic Nat’l Life Ins. Co., 559 F.2d 426, 428 (5th Cir.1977) (noting that settlement agreements are “highly favored in the law and will be upheld whenever possible”). This strong public policy in favor of voluntary settlements is also embodied in Texas’s statutes. See TEX. CIV. PRAC. & REM. CODE § 154.002 (stating Texas public policy encourages the peaceable resolution of disputes and the early settlement of pending litigation through voluntary settlement).

3. These Assignments are Disastrous to the Public Good.

On their face, the assignments in this case injure the public good; one could even say that if the law countenanced them, it would be disastrous to the public good. Approximately two weeks before they executed the Settlement Agreement, Wright and Kennard secretly assigned their claims to Pat Holloway solely to circumvent the releases in the Settlement Agreement. Various provisions in the assignments proclaim this purpose:

N.On March 31, 1999, [Sydow and Verner, Liipfert] insisted upon the addition to their proposed [Settlement Agreement] of new and expanded release language which might be construed to effectively release all claims of Wright and Kennard against [Sydow and Verner, Liipfert]. If Wright and Kennard do not sign such agreement, they will be unable to pursue their own cases for lack of counsel, and [Sydow and Verner, Liipfert] effectively will have destroyed the claims and cases of Wright and Kennard which [Sydow and Verner, Liipfert] had agreed to prosecute diligently for Wright and Kennard, but never did.
O. To further advance their interests in their “knife fight without rules” against Wright and Kennard, [Sydow and Verner, Liipfert], clever and experienced lawyers, could have inserted in their proposed [Settlement Agreement] provisions whereby Wright and Kennard warranted and represented they were now the sole owners of all claims against [Sydow and Verner, Liipfert] being released. [Sydow and Verner, Liipfert] also could have inserted provisions whereby Wright and Kennard warranted and represented that they had made no prior assignment or encumbrance to any third party of the claims against [Sydow and Verner, Liipfert] being released by Wright and Kennard.
P. But neither Sydow nor Verner Liip-fert have demanded, or even requested or suggested, that the proposed [Settlement Agreement] contain any such protective provisions, even though such normally are included in client-releases prepared by competent and diligent lawyers. Consequently, Wright and Kennard are entitled to make the assignment herein without violating the proposed [Settlement Agreement] which soon or ultimately they may be forced by duress into signing.
2. Assignee Holloway agrees to assign the claims, ... to an attorney or law firm ... who will agree to prosecute the claims against [Sydow and Verner, Liip-fert] covered hereby, to the end that the duress, malfeasance, and malpractice of [Sydow and Verner, Liipfert] shall not be rewarded. To the same end, Holloway further agrees to assist such attorneys in the prosecution of such claims without charge to Assignors or benefit to himself.

As evidenced by the plain language of the Holloway assignment, during the negotiations of the Settlement Agreement, Wright and Kennard actively sought to divest themselves of the malpractice claims, claims that were part of the bargained exchange. Upholding these assignments would undermine the strong public policy favoring voluntary settlement agreements. It would encourage parties to negotiate and execute settlement agreements in bad faith. It would incite litigation rather than settling it. It would produce disharmony and ill will rather than peace. In short, our State’s public policy would be undone.

Wright and Kennard request we countenance their actions because of the alleged duress. However, we already disposed of that issue unfavorably to Wright and Ken-nard. They also argue that the assignments should be allowed because Pat Holloway did not personally benefit from the assignments — a meager argument in fight of the havoc that could result if the law were to recognize assignments of claims made under these circumstances.

As we already have said, the legal system condones assignments. However, here, the disadvantages to the legal system outweigh the benefits to the parties. The only ones not hurt by this assignment are Wright, Kennard, and Holloway. Everyone else, including the legal system, are dealt thunderous blows. If we condoned these assignments, no agreement could ever be considered “settled.” See, e.g., Zuniga, 878 S.W.2d at 317. We decline to condone Wright’s and Kennard’s actions and find that, under the circumstances of this case, the assignments violate the strong public policy of this State favoring voluntary settlement agreements and are void. Because we find the assignments to Pat Holloway void, ownership of the claims remained in Wright and Kennard and thus were released by virtue of the Settlement Agreement. See Mallios, 11 S.W.3d at 159. We overrule this issue.

B. The Trial Court Erred in Granting Summary Judgment on Holloway, P.C.’s Claims for Fraudulent Inducement and Negligent Misrepresentation.

We now reach the last issue, in which Holloway, P.C. claims that the trial court erred in dismissing its fraudulent inducement and negligent misrepresentation claims. Sydow and Verner, Liipfert asserted in their summary judgment motion, filed on July 29, 2002, that the “legal malpractice lawsuit” was barred as a matter of law because Sydow and Verner, Liipfert never represented Holloway, P.C. Because Pat Holloway, P.C. was not a client, they owed it no duty. Sydow and Verner, Liip-fert also claimed Holloway, P.C. was a co-counsel in the underlying litigation and could not allege that “its contingent interest in that litigation was diminished” because of Sydow and Verner, Liipfert’s conduct. Relying on Barcelo v. Elliot, 927 S.W.2d 28 (Tex.App.—Houston [1st Dist.] 1995), aff'd, 923 S.W.2d 575 (Tex.1996), Sydow and Verner, Liipfert argued that, even assuming they committed malpractice, Holloway, P.C.’s claims failed for lack of privity. This argument is misplaced.

As we explain below, we conclude that the trial judge erred in granting summary judgment on these two causes of action. The summary judgment motion did not mention the fraudulent inducement claim. The only ground given for granting summary judgment on the negligent misrepresentation claim — lack of privity because Holloway, P.C. was not Sydow and Verner, Liipfert’s client — is not viable in light of the Texas Supreme Court opinion, McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex.1999). We consider the fraudulent inducement claim first.

1. The Motion Did Not Address the Fraudulent Inducement Claim.

Because a summary judgment is a summary trial of a claim, our rules and law require that a party may secure a summary judgment only on those grounds specifically named and discussed in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993). This is a notice requirement, intended to notify the claimant and the trial court of those claims or elements of claims the opponent is attacking. Id. A trial court can enter a summary judgment only against those claims attacked in a motion for summary judgment.

This summary judgment motion gave Wright, Kennard, and Holloway, P.C. no notice that the fraudulent inducement claim was being attacked because the claim was not mentioned in the motion. As a result, the trial court could not render summary judgment on it. Id. For this reason, the trial court erred in granting summary judgment on the claim.

2. Summary Judgment was Wrongly Granted on the Negligent Misrepresentation Claim.

The trial court also erred in granting judgment on the negligent misrepresentation claim, but for different reasons. Sy-dow and Verner, Liipfert gave only two reasons why the claim should fail as a matter of law: (1) Holloway, P.C. was not their client and therefore was not in privity with it, and (2) the negligent misrepresentation claim was merely a thinly disguised legal malpractice claim. But this position is not viable in light of McCamish. See McCamish, 991 S.W.2d at 791.

McCamish presented the Texas Supreme Court with “one precise question”: whether a third party was precluded from suing an attorney for negligent misrepresentation under the Restatement (Second) of Torts, section 552, because of the absence of an attorney-client relationship. Id. The Court squarely answered that question, stating that the theory of negligent misrepresentation “permits plaintiffs who are not parties to a contract for professional services to recover from the contracting professionals.” Id. at 792.

In addition, the Court confirmed that a negligent misrepresentation claim is not a legal malpractice claim. Id. at 792. Under negligent misrepresentation, liability is not based on the breach of duty owed by a professional to his client or others in privity; instead, liability is based on the “professional’s manifest awareness of the non-client’s reliance on the misrepresentation and the professional’s intention the non-client so rely.” Id.

The scope of the duty imposed on an attorney to a non-client is limited to those situations in which (1) the attorney is aware of the non-client and intends that the non-client rely on the representation, and (2) the non-client justifiably relies on the attorney’s representation of a material fact. Id. at 794. For purposes of determining whether the non-client justifiably relied on the representation, a reviewing court must consider the nature of the relationship between the attorney, client, and non-client. Id. Generally, a non-client cannot justifiably rely on an attorney’s representations when those representations occur in an adversarial context. Id. Also, a non-client cannot rely on an attorney’s representations unless the attorney invites that reliance. Id. at 795. A non-client’s claims for negligent misrepresentation are subject then to rules regarding proof of materiality and reliance. Id.

Thus, after McCamish, a defendant’s claim for negligent misrepresentation will not fail simply by showing that it did not represent the claimant or that the claimant and the attorney were not in privity; under McCamish, a third party non-client can bring a negligent misrepresentation claim. Post-McCamis/¾ whether the plaintiff was represented by the lawyer or was not in privity with the lawyer, although not necessarily irrelevant issues, are not the focus of the inquiry. Id.

In this case, though, the focus of the argument was on these non-controlling issues — the claimant’s status as a client and privity. Just as in McCamish, this trial court granted summary judgment on Holloway, P.C.’s claims because Holloway, P.C. was not in privity with Sydow and Verner, Liipfert and, according to the judgment, they “otherwise owed no duty of care” to Holloway, P.C. See id. Through McCamish we know that the lack-of-privity argument, if given as the only reason for denial of a claim, is incorrect and unsupportable. See id.

In addition, the trial court’s decision that this record proved that Sydow and Verner, Liipfert owed no duty to Holloway, P.C. on the negligent misrepresentation claim is incorrect. First, the only reason Sydow and Verner, Liipfert presented for not owing Holloway, P.C. a duty was that they were not in privity; we already have held that position untenable if that is the sole reason given for the claim’s failure. Second, if, by chance, the trial court granted the motion because it concluded for some other reason that no duty was owed, it could have done so only on the basis of evidence or some other argument that addressed the elements of a negligent misrepresentation claim. But, Sydow and Verner, Liipfert presented no evidence to defeat an element of a negligent misrepresentation claim and gave no other reasons for the claim’s failure. In short, the trial court had nothing before it to support a conclusion that no duty was owed.

For all of these reasons, the trial court erred in granting summary judgment as to the negligent misrepresentation and the fraudulent inducement claims, and we sustain Wright, Kennard, and Holloway, P.C.’s fifth issue.

VII. CONCLUSION.

In conclusion, we overrule the following issues:

• the first issue related to the fraud and duress claims;
• the second issue related to the post-settlement agreement claims;
• the third issue related to the alleged violation of the disciplinary code;
• the fourth issue related to the claims assigned to Holloway prior to the execution of the Settlement Agreement; and
• the sixth issue related to the denial of the motion for continuance.

We sustain the following issue:

• Holloway P.C.’s fifth issue, in which it asserts that the trial court wrongly granted summary judgment on its fraudulent inducement and negligent misrepresentation claims.

We therefore affirm all portions of the judgment except for numbered paragraph 2e in which the trial court held that “[t]he claims of Pat S. Holloway, P.C. are invalid as a matter of law because Defendants were not in privity with Pat S. Holloway, P.C. and otherwise owed no duty of care to Pat S. Holloway, P.C.,” and we remand only that portion of the case to the trial court for further proceedings.

      . A qui tam action is one authorized by statute in which a private citizen sues an individual or business to recover a penalty, part of which the government or a public institution will receive. See BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 728 (2d ed.1995).

      . Four different types of suits were discussed. In some, Sydow and Verner, Liipfert represented only Wright; in some they represented only Kennard. For purposes of the issues in this appeal, however, this distinction is unimportant.

      . No record evidence reflects that Wright, Kennard, or Holloway were ever served with notice of the motions.

      . Crowley & Douglas, L.L.P. and Timothy D. Crowley (collectively "Crowley Douglas”), who also represented Wright in the FCA lawsuits, were parties to the Settlement Agreement but were not parties to the suit below.

      . In a post-submission brief, Wright and Ken-nard argue that the intervention itself was not the cause of the duress, it was the fact that appellees asserted claims to the FCA recovery. This is a distinction without a difference.

      . In support of their allegations, Wright and Kennard provided the trial court with their affidavits, an affidavit from Holloway, P.C., an affidavit from Claude Welch, an attorney involved with representing Wright in the qui tarn litigation, and an affidavit executed by Michael Angelovich, an attorney employed with the law firm of Nix, Patterson & Roach, L.L.P. The Nix, Patterson & Roach firm was also involved in representing Wright in the qui tam litigation. Wright and Kennard also furnished an affidavit from a law professor specializing in legal ethics.

      . Wright and Kennard raise other potential problems with the court’s ruling on this issue — they claim that Sydow and Verner, Liip-fert had no right to pursue their claims because Wright and Kennard discharged them for cause and that Wright's and Kennard's affidavits prove the hardship the suits imposed on them. But these claims still are rebuffed by the general rule we have discussed. Three other reasons also support our decision that these claims are without merit. First, they have cited no cases supporting their theory that we should hold the general rule in abeyance because of the complexity of the suits and their inability to obtain other counsel because of Sydow and Verner, Liip-fert’s claims to proceeds. Second, we have found no cases that have done this. Third, the affidavits represent Wright’s and Ken-nard’s states of mind. Economic duress must be based on the acts of the opposing party and not merely the necessities of the alleged victim. See Brown, 837 S.W.2d at 244.

      . The distinction between fraud and duress is that the injury accomplished through fraud is done without the knowledge of the victim, while with duress, the victim is fully aware of the illegal element. 25 AM. JUR. 2D Duress & Undue Influence § 2 (1996). Consequently, some of our discussion regarding duress applies to our discussion of the alleged fraud.

      . According to the record, Sydow and Verner, Liipfert filed suit on behalf of the tribes five days after Wright's letter discharging them, and six months before the Settlement Agreement was executed.

      . Wright and Kennard argue that the attorney-client relationship between Kennard and Sydow and Verner, Liipfert was not severed because Kennard never discharged Sydow and Verner, Liipfert. However, when the court's order was rendered, the representation had ended whether Kennard agreed to it or not. Cf. State Farm Mut. Auto. Ins. Co. v. Trover, 980 S.W.2d 625, 627-28 (Tex.1998) (noting that subject to the discretion of the court, an attorney may withdraw from a case).

      . This and other factors distinguish Quintero from the subject case. In Quintero, an attorney representing the appellants allowed them to enter into a joint settlement agreement which gave them a significantly lower award than the verdict they had received through their jury trial. See Quintero, 709 S.W.2d at 227-28. The Corpus Christi appellate court determined that a contract made in violation of a Disciplinary Rule was against public policy and was, therefore, void. Quintero, 709 S.W.2d at 229. However, in that case the attorney-client relationship existed at the time the clients signed the joint settlement at issue and the fiduciary relationship was intact, thus, requiring a "closer scrutiny” than would an arm’s length transaction.

      . In the Settlement Agreement, Kennard warranted that he was represented by counsel. "KENNARD acknowledges that for purposes of negotiating and executing this Agreement, that KENNARD has always been represented by his own counsel and that Nix, Patterson & Roach, L.L.P. has at all times represented only WRIGHT."

      . Rule 166a(g) states:
      Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
      TEX. R. CIV. P. 166a(g).

      . Wright and Kennard executed the assignments to Pat Holloway individually on March 31, 1999; the Settlement Agreement was executed on April 12, 1999.

      .We decline to construe them as being freely assignable. They involve Sydow and Verner, Liipfert's alleged misconduct in representing them in the FCA litigation, and are, therefore, legal malpractice claims. See Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex.App.—Houston [1st Dist.] 1998, pet. denied). Assignments of other claims against attorneys for misconduct in the representation of a client are not assignable. See Vinson & Elkins v. Moran, 946 S.W.2d 381, 396 (Tex.App.—Houston [14th Dist.] 1997, writ dism’d by agr.). In addition, the Texas Supreme Court recently held that DTPA claims are not assignable. PPG Indus. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146 S.W.3d 79, 91 (Tex., 2004).

      . Two exceptions to this general rule exist, but neither applies here.

      . In Vinson & Elkins, this court held that all legal malpractice claims are not assignable. 946 S.W.2d at 394.

      . In fact, even in its briefing on appeal, Sydow and Verner, Liipfert never refer to the fraudulent inducement claim and refer only to Holloway, P.C.'s “negligence and negligent misrepresentation claims.”


author: Opinion by Justice MOSELEY.

text:
    Harold Ray LEWIS, Appellant, v. Mindy Jane ANDERSON, Appellee.
    No. 05-03-01296-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 26, 2005.
    Rehearing Overruled Oct. 24, 2005.

      Richard R. Orsinger, Dallas, Carson Epes, Law Office of Carson P. Epes, Plano, for appellant.
    Jerry Gilmore, Vial Hamilton Koch & Knox, John E. Richards, Glast, Phillips & Murray, Sheri D. Crosby, Dallas, for ap-pellee.
    Before Justices MORRIS, MOSELEY, and FITZGERALD.
   OPINION

Opinion by Justice MOSELEY.

In this case, we must determine whether the evidence supports the jury’s finding that a common law or informal marriage existed between Mindy Jane Anderson and Harold Ray Lewis. In three issues, Lewis claims the evidence is legally and factually insufficient to support that finding and that the trial court improperly commented on the weight of the evidence in its instructions to the jury. We affirm the trial court’s judgment.

BACKGROUND

In 1998, Anderson left Lewis and filed for divorce. After Lewis denied the existence of a marriage, the trial court conducted a separate trial on the existence of an informal marriage. A jury found that Anderson and Lewis were informally married and the trial court entered a judgment declaring the existence of an informal marriage. This judgment was later severed from the divorce action. After the trial court denied his motion for judgment notwithstanding the verdict and for new trial, Lewis perfected this appeal.

The record indicates that Anderson, a nurse, and Lewis, a medical doctor, were married in a formal ceremony in December 1974. They bought a house in 1976. Lewis testified that in 1976 or 1977, it became clear to him that a divorce was necessary. One of his reasons was that Anderson was reluctant to sign documents about financial matters. Anderson resisted the divorce, saying she was committed to the marriage. Lewis determined that divorce was absolutely necessary because he would not allow his “financial situation to be jeopardized by her emotional state.” Lewis prepared the divorce papers himself without a lawyer and Anderson signed the waiver of service and divorce decree. Lewis presented the documents to the court and the divorce decree was signed on May 26,1977.

Following the signing of the divorce decree, Anderson conveyed her interest in the residence to Lewis in August 1977. However, except for a few weeks in 1978 when Lewis (according to Anderson) locked her out of the house, Anderson and Lewis lived together for the next twenty years, until 1998. During this time, they joined a church as “Hal and Mindy Lewis” and adopted two children. Documents in both adoption proceedings referred to Anderson and Lewis as husband and wife, “Dr. and Mrs. Lewis,” or “Harold and Mindy Lewis.”

The couple attended Lewis family functions together and celebrated wedding anniversaries. Lewis wore a wedding ring until the couple separated in 1998. The record contains one tax return filed by the couple in 1997 as married filing jointly. Lewis could not remember whether earlier tax returns were filed jointly or singly, but said the 1997 return was a mistake and he had notified the IRS of the mistake.

Anderson testified she did not remember the 1977 divorce decree until sometime after this suit was filed in 1998. However, she wrote to Lewis sometime in 1978 about the termination of their marriage the previous year. She did not dispute the divorce or her signature on the waiver and divorce decree. The jury found the parties were informally married as of September 21, 1982, the date they filed the petition to adopt their first child.

Discussion

Lewis’s first and second issues challenge the legal and factual sufficiency of the evidence to support the finding of an informal marriage. Specifically, he challenges the sufficiency of the evidence of an agreement to be married.

1. Legal Sufficiency of the Evidence

To evaluate the legal sufficiency of the evidence to support a finding, we must “determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Transp. Ins. Co. v. Monel, 879 S.W.2d 10, 25 (Tex.1994); see also St. Joseph Hosp. v. Wolff, 94 S.W.3d 518, 519 (Tex.2002) (plurality op.). We view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. June, 2005).

A common law, or informal, marriage may be proved by evidence that: (1) the parties agreed to be married and after the agreement; (2) they lived together in Texas as husband and wife; and (3) there represented to others that they were married. Tex. Fam.Code Ann. § 2.401(a)(2) (Vernon 1998). The proponent of a common law marriage may prove an agreement to be married by circumstantial as well as direct evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex.1993). The legislature has not excluded the finding of a tacit agreement to be married, but circumstantial evidence must be “more convincing” than before the 1989 amendments to the statute. Id. at 932. Direct evidence of an agreement to be married is not required. Id. at 933. Evidence of cohabitation and representations that the couple is married may constitute circumstantial evidence of an agreement to be married, but “the circumstances of each case must be determined based upon its own facts.” Id.

Lewis makes three arguments in support of his first issue: (a) the evidence conclusively negates an agreement to be married; (b) there is no evidence of the holding out of a new marriage; and (c) there is no evidence of the date of the marriage found by the jury.

(a) Evidence of Agreement to be Married

The record contains evidence that after the 1977 divorce, Lewis and Anderson lived together as husband and wife in Texas and represented to others that they were presently married. In 1978, Anderson wrote Lewis a note expressing regret over their situation and acknowledging “the termination of our marriage and the resulting property settlement.” She also stated, “I continue to be committed to a marriage with you and our future.” After a few weeks of separation in 1978, the couple resumed living together and continued to live together for the next twenty years. They joined a church together in 1979 as “Hal and Mindy Lewis” and Anderson heard Lewis tell the pastor that they were married. The pastor testified the couple represented themselves as “Hal and Mindy Lewis” and he knew both of them by the name Lewis.

In 1982, the couple hired an attorney to adopt their first child in a private adoption. Correspondence from the adoption attorney referred to them as “Dr. and Mrs. Lewis.” Anderson testified that Lewis told the attorney they were married. Lewis admitted he reviewed the lawyer’s correspondence and never told the lawyer they were not married or were divorced. The petitions for termination of the parental rights of the birth mother and for adoption of the child signed by their attorney identified Anderson and Lewis as husband and wife. Correspondence arranging the social study for the adoption was addressed to “Dr. & Mrs. Harold Ray Lewis.” Anderson heard Lewis tell the social worker they were married. She also heard Lewis testify in court at the adoption hearing that they were married. The decree of adoption signed by the judge on February 11, 1983 recites that “On this day Petitioners, Harold Ray Lewis and wife, Malinda Jane Lewis, appeared in person and by attorney and announced ready for trial.” Lewis testified that he did not tell Ms attorney, the social worker, or the adoption court that he and Anderson were not married and were divorced because he did not feel it was important or relevant.

In 1985, the couple adopted another child through Hope Cottage. They signed a custody agreement with Hope Cottage as “Harold Ray Lewis and Malinda J. Anderson Lewis, husband and wife respectively.” The document obligated them to reimburse Hope Cottage for expenses of the child and mother in the amount of $5000. Anderson heard Lewis tell Hope Cottage and testify in court that they were married. The adoption decree identified the parties as “Harold and Mindy Lewis.” Anderson also heard Lewis tell their children that they were married, but never heard him tell the children they were divorced. Anderson testified that she and Lewis represented themselves as married to the children’s schools.

Lewis argues there is no evidence of an agreement to be married after the divorce and that the evidence conclusively shows the opposite — that the couple did not agree to be married. Lewis points to some of Anderson’s testimony that after the divorce, she and Lewis did not have discussions that they were “common law married” and that the only date she asserted they were married was the date of their 1974 ceremonial marriage. He also relies on Anderson’s testimony that she felt her agreement to be married to Lewis began in 1974 and never ended. Lewis testified that there was no agreement to be married after the divorce.

Anderson also testified, however, that during the period after the divorce, she felt they were husband and wife. She said, “we had an agreement that we were married every year. We celebrated our anniversary every year.” During cross-examination, she testified:

Q I’m sorry. You had discussions between 1977 and 1998 that you were informally married?
A We agreed that we were.
Q Is that what you just testified to?
A We had — we agreed that we were married. We didn’t have a discussion as to whether it was formal or informal.
Q I apologize, I’m a little lost. Just a moment ago you testified, we had discussions that we were informally and formally married. Is that accurate?
A That’s not accurate.
Q Okay. Thank you.
A We had discussions—
Q Did you—
A —that we were married.

While Anderson agreed that she and Lewis had not discussed being “common law married,” she testified that they did agree they were married and had an agreement they were married every year. After the 1977 divorce, she did not believe there was any reason to talk about a common law marriage with or remarrying Lewis, “[bjecause he told me we were married.”

The issue here of course is not whether Anderson agreed to be married — she testified that she agreed to be married to Lewis from 1974 until she filed this action. The issue is whether there is some evidence that after the divorce, Lewis also agreed to be married to Anderson. Anderson’s testimony that in the years after the divorce, she and Lewis agreed they were married and that Lewis told her they were married is at least some evidence that Lewis did agree to be married to Anderson after the divorce. That Anderson did not remember the divorce later, does not negate an agreement to be married after the divorce. See Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728, 737 (Tex.App.-Texarkana 1996, no writ) (“She may have been mistaken about the effectiveness of the divorce decree, but so long as she and Ricky met the requirements of a common law marriage sometime after the divorce and before he died, they were capable of entering into a new marriage after the acknowledged divorce.”). It is undisputed that Lewis knew about the divorce; yet there is evidence that afterwards he told Anderson and others they were married. Anderson wanted to be married to Lewis and there is evidence that Lewis agreed with her after the divorce.

In addition to Anderson’s direct testimony of an agreement to be married, the evidence of cohabitation and representations to others is circumstantial evidence of an agreement to be married. See Russell, 865 S.W.2d at 983 (stating agreement to be married may be shown by direct or circumstantial evidence or both). The jury could reasonably infer that Lewis and Anderson agreed to be married after their divorce.

Lewis relies primarily on Gary v. Gary, 490 S.W.2d 929 (Tex.Civ.App.-Tyler 1973, writ refd n.r.e.), a case decided some twenty years before Russell. However, each case must be decided on its own facts, Russell, 865 S.W.2d at 933, and we conclude Gary is distinguishable. Gary was a dispute over worker’s compensation benefits between the parents of the deceased worker, Charles, and two woman who both claimed to be the common law wife of Charles. Gary, 490 S.W.2d at 931. After one of the women was dismissed on summary judgment, the jury heard evidence and found the other woman, Wanda, was Charles’s common law wife at the time of his death. Id. The evidence indicated that Wanda married Charles, her third husband, in 1960 and divorced him a year later. They remarried the next year, but Wanda obtained a second divorce later that year. After the second divorce, they lived together for a while in various cities for almost six years. However, the couple did not live together for at least a year before Charles’s death and Wanda did not begin referring to herself as Wanda Ce-gale Gary until after his death. Id.

In Gary, Wanda did not argue she had an express agreement to be married to Charles, but asserted the evidence supported the finding of an implied agreement to be married. Id. 490 S.W.2d at 932. There was evidence that Charles occasionally introduced Wanda as his wife, but “[s]ince [Wanda] had twice been his wife by ceremonial marriage, and since neither [Charles] nor [Wanda] were sure their second divorce in 1962 was valid, the occasional use of the term ‘wife’ is of no probative value.” Id. at 933. Further, there was evidence that neither party was sure that the second divorce was valid because they had not established residency in that county. They decided to resume living together thinking it was not necessary to go through another marriage ceremony. Id. The court of civil appeals stated that even if they agreed to go back together, because of the uncertainty over the validity of the second divorce, any agreement did not include an agreement to “become again husband and wife.” Id. at 934. Thus, the appellate court concluded there was no evidence to support the jury’s finding of a common law marriage. Id.

The facts here are different. Anderson does not rely solely on an implied agreement and there is at least some evidence of an express agreement to be married after the divorce. Therefore, it is not necessary to find evidence of an implied agreement. Moreover, neither Anderson nor Lewis dispute that the 1977 divorce terminated their 1974 ceremonial divorce. Anderson’s 1978 note to Lewis acknowledged the “termination of our marriage.” Anderson testified that she did not remember the divorce decree, but she did not dispute her signature on the documents. There is evidence that for the twenty years they lived together after the divorce, they both represented to others that they were presently married.

The evidence of an express agreement, the lack of doubt about the validity of the divorce, the long cohabitation and adoption of children, the representations of a present marriage for an extended time, and Lewis’s willingness to sign or accept without question legal documents referring to an existing marriage with Anderson distinguish this case from Gary. We also distinguish Gary because the evidence of holding out in this case is more convincing than in Gary. See Russell, 865 S.W.2d at 932 (“evidence of holding-out must be more convincing than before the 1989 [amendment]”) (quoting Joseph W. McKnight, Family Law: Husband and Wife, 44 Sw. L.J. 1, 2-3 (1990)).

(b) Holding out of a New Marriage

Lewis argues that the fact that he and Anderson did not tell anyone they were divorced, negates a holding out of a subsequent informal marriage. He argues the evidence they represented they were married following the divorce, was a holding out of the earlier ceremonial marriage (that was dissolved by the 1977 divorce). We disagree. While the parties did not discuss the divorce, the divorce decree was a matter of public record and its validity was never disputed. As a matter of law, the 1974 ceremonial marriage was terminated. Thus, when the parties later represented that they were presently married, the representation was of a new, current marriage rather than the old, previously terminated ceremonial marriage.

Lewis also argues the equal inference rule prevents an inference of a holding out of a new agreement to be married following the divorce. He assets the evidence of holding out supports two inferences: (1) the parties represented they remained married under the 1974 ceremonial marriage; and (2) the parties represented they were married under a new post-divorce informal marriage. The equal inference rule applies in weak circumstantial evidence cases where the jurors would have to guess whether a vital fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). We conclude the equal inference rule does not apply because there was direct evidence of the holding out of a current marriage during the twenty years the couple lived together after their divorce. This is not a weak circumstantial evidence case; the jury was not required to guess whether Lewis and Anderson “represented to others that they were married.” Tex. Fam.Code Ann. § 2.401(a)(2).

Even so, the equal inference rule does not apply here because one of the competing inferences is not reasonable. Lewis argues it would be reasonable to infer from the evidence that the parties represented they remained married under the 1974 ceremonial marriage after the divorce. We disagree. There is evidence that after the divorce, both Lewis and Anderson represented to others that they were presently married. Some of this evidence was disputed; however, a reasonable jury could disbelieve the disputed evidence and resolve the disputes in favor of the finding of an agreement and holding out. Although there was evidence that the parties submitted the 1974 marriage certificate to the social worker in one or both of the adoptions, the undisputed facts remain that the ceremonial marriage was terminated by the 1977 divorce and that they represented they were presently married at the time of the adoptions.

Because the earlier ceremonial marriage had been terminated by the divorce, it is not reasonable to infer that the later representations of a present marriage were representations of the terminated marriage instead of a new agreement to be married. Certainly Lewis was aware of the divorce and the termination of the ceremonial marriage. The evidence that he later represented to others that he was presently married to Anderson leads to only one logical inference — the representation was of a new post-divorce marriage. Any inference that the parties could unilaterally nullify the divorce decree by holding out that they remained married under the 1974 ceremonial marriage would not reasonable.

(c) Date of the Marriage

Lewis argues there is no evidence to support the jury’s finding that they were informally married on September 21, 1982, the date the first adoption petition was filed. This date is significant because the petition was a representation by the couple through their attorney that they were husband and wife. The couple had been living together since 1978. Anderson testified that she and Lewis had an agreement they were married every year. There is evidence that Lewis told the attorney who prepared the petition that he and Anderson were married. Evidence that the parties continued to represent that they were married when they later adopted a second child tends to corroborate that they were married by the time of the first adoption. Thus, there is evidence that by the time the first adoption petition was filed, all of the elements of an informal marriage existed. See Winfield, v. Renfro, 821 S.W.2d 640, 646 (Tex.App.-Houston [1st Dist.] 1991, writ denied) (elements may occur at different times, but until all three exist there is no common law marriage).

(d) Conclusion

Viewing the evidence in the light most favorable to the jury’s finding, we conclude the evidence is such that reasonable minds could differ in their conclusions about whether Lewis and Anderson had an informal marriage. Crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence except that which they could not ignore, we conclude the evidence is legally sufficient to support the jury’s verdict. We resolve Lewis’s first issue against him.

2. Factual Sufficiency of the Evidence

Lewis also argues the evidence is factually insufficient. To evaluate the factual sufficiency of the evidence to support a finding, we consider all the evidence and will set aside the verdict only if the evidence supporting the jury finding is so weak that the finding is clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985). This Court, however, is not a fact finder; we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.).

Lewis argues there is no direct evidence of an agreement to be married nor of a holding out of a post-divorce informal marriage. We have already concluded there is legally sufficient evidence of an agreement to be married after the divorce and that the representations that the couple was married in the years following the divorce was a representation of a current marriage post-dating the termination of the ceremonial marriage. We do not repeat that discussion.

In support of the factual insufficiency issue, Lewis points to his testimony that he and Anderson never agreed to be married following their divorce and never discussed whether they were married or were going to be married. He also testified that in 1994, he made arrangements to remarry Anderson, but she refused, saying she would not consent to being married to him. He denied ever representing to anyone (their pastor, lawyer, the social workers, or the adoption courts) that he was married to Anderson after the divorce. He testified that Anderson told the representatives of Hope Cottage that she and Lewis were divorced. He said the 1997 joint tax return was a mistake and he had contacted the IRS about the mistake.

There is also evidence that Lewis and Anderson kept separate banking arrangements and that Anderson continued to use her maiden name. For example, in 1980, Anderson purchased a house individually as “Mindy Anderson, a single woman.” However, when Anderson sold the house in 1985, the deed referred to her as “Mindy Anderson Lewis,” but was signed on her behalf by her agent.

The record indicates much of the testimony was conflicting. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Golden Eagle Archery, Inc., v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). While not always clear and consistent, Anderson did testify to an agreement and holding out. It was up to the jury “to resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses.” Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 542, 252 S.W.2d 561, 563 (1952). After reviewing all the evidence, we cannot say the evidence is so weak that the jury finding of an informal marriage on September 21, 1982 is clearly wrong and unjust. Thus the evidence is factually sufficient to support the verdict. We resolve Lewis’s second issue against him.

3. Jury Instruction

In his third issue, Lewis asserts the trial court improperly commented on the weight of the evidence in its instructions to the jury. We review the trial court’s submission of jury definitions and instructions under an abuse of discretion standard; trial courts have “wide discretion to determine sufficiency of áefinitions and instructions.” Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex.1995). Although the court in its charge may not comment directly on the weight of the evidence, the charge is not objectionable because it “incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly a part of an instruction or definition.” Tex.R. Civ. P. 277. To be a direct comment on the weight of the evidence, the language must suggest the trial court’s opinion concerning the issue. Maddox v. Denka Chem. Corp., 930 S.W.2d 668, 671 (Tex.App.-Houston [1st Dist.] 1996, no writ).

Lewis objected to the following instruction:

You are instructed that proof of an agreement to be married may be established by circumstantial evidence or the conduct of the parties. Proof of cohabitation and representation to others that the couple are married may constitute circumstantial evidence of an agreement to be married.

He argues the instruction is an incorrect statement of the law under Russell; constituted a comment on the weight of the evidence by focusing the jury’s attention on only two of the three elements of an informal marriage; and duplicated the general instruction on circumstantial evidence.

Lewis argues the instruction misstates the law in Russell because it does not also instruct the jury that the fact may be proved by direct evidence or a combination of direct and circumstantial evidence. However, the trial court gave a general instruction that a fact may be established by direct evidence or by circumstantial evidence or by both, and defined both direct and circumstantial evidence for the jury. Further, the language in the instruction is directly quoted from Russell, 865 S.W.2d at 933.

The trial court determined the instruction was warranted under the circumstances of this case. There was at least some direct evidence of an agreement to be married through Anderson’s testimony. In addition, there was circumstantial evidence of such an agreement based on cohabitation and representations of marriage. The instruction was not mandatory and instructed that an agreement “may” be established by circumstantial evidence and that evidence of cohabitation and representation to others “may” be circumstantial evidence of an agreement to be married. To the extent the instruction commented on the evidence, it did so only incidentally and did not suggest the trial court’s opinion concerning the issue. We cannot say the trial court abused its discretion in giving the instruction based on the facts of this case.

Finally, Lewis argues the instruction was duplicative of the general definition of circumstantial evidence. However, the instruction did not redefine circumstantial evidence; it was a correct statement of the law as applied in this case, was supported by the evidence, and was helpful to the jury in answering the questions presented to them. See Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex.1998). Moreover, even if the instruction was erroneous, after reviewing the entire record, we cannot conclude that the error probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1(a)(1); Knighten, 976 S.W.2d at 675-76; Dallas County Sheriffs Dept. v. Gilley, 114 S.W.3d 689, 691 (Tex.App.-Dallas 2003, no pet.). We resolve Lewis’s third issue against him.

We affirm the trial court’s judgment.

      . "A forthright assertion of marriage with the consequence of liability (as when an alleged spouse seeks admission of the other to a hospital) may, on the other hand be far more probative of a tacit agreement to be married.” Russell, 865 S.W.2d at 932 (quoting Joseph W. McKnight, Family Law: Husband and Wife, 44 Sw.L.J. 1, 2-3 (1990)).

      . There is evidence in the record that Lewis told his brother at some point that he and Anderson were divorced, and Lewis testified that Anderson told the staff of Hope Cottage during the second adoption that she and Lewis were divorced.