NUMBER 13-12-00103-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

COUNSEL FINANCIAL

SERVICES, L.L.C., Appellant,

v.

DAVID McQUADE LEIBOWITZ

AND DAVID McQUADE LEIBOWITZ, P.C., Appellees.

On appeal from the 370th District Court 

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Perkes

Memorandum Opinion by Justice Benavides

Appellant, Counsel Financial Services, L.L.C. (“Counsel Financial”), appeals two 

orders granting summary judgment in favor of appellees David McQuade Leibowitz, 

P.C. and David McQuade Leibowitz, individually, and further appeals the denial of its 
2

motion to dismiss on the basis of forum selection clauses in contracts between the 

parties. The summary judgments granted relief in favor of appellees on their usury 

claims against Counsel Financial and also declared a security agreement 

unenforceable. We reverse and remand, in part, and dismiss, in part.

I. BACKGROUND

The parties to this case have engaged in extensive litigation and the factual 

underpinnings of their relationship have been explained in several different opinions by 

this Court and others.

1

 In short, Counsel Financial loaned the law firm of David 

McQuade Leibowitz, P.C. more than five million dollars. The loan was secured by 

 

1

See generally Counsel Fin. Servs., L.L.C. v. Leibowitz, No. 13-10-00693-CV, 2011 Tex. App. 

LEXIS 5078, at *1 (Tex. App.—Corpus Christi July 1, 2011, pet. denied) (mem. op.) (dismissing Counsel 

Financial’s appeal of the denial of its motion to transfer venue for want of jurisdiction); Counsel Fin. 

Servs., L.L.C. v. Leibowitz, No. 13-10-00200-CV, 2011 Tex. App. LEXIS 5079, at *1 (Tex. App.—Corpus 

Christi June 30, 2011, pet. denied) (mem. op.) (reversing and remanding a temporary injunction which 

prevented Counsel Financial from instituting legal proceedings to enforce a security agreement and 

collecting on a judgment in its favor); In re Counsel Fin. Servs., L.L.C., No. 13-10-00157-CV, 2010 Tex. 

App. LEXIS 3112, at **2–3 (Tex. App.—Corpus Christi Apr. 27, 2010, orig. proceeding) (denying 

mandamus as premature because the trial court had not ruled on Counsel Financial’s motion to transfer 

venue); Counsel Financial Services, L.L.C., v. Leibowitz, P.C., 311 S.W.3d 45 (Tex. App.—San Antonio 

2010, pet. denied) (rendering judgment that a New York judgment rendered against Leibowitz and in 

favor of Counsel Financial is entitled to full faith and credit and is fully enforceable in Texas); In re 

Counsel Fin. Servs., L.L.C., No. 04-09-00081-CV, 2009 Tex. App. LEXIS 8456, at **2–3 (Tex. App.—San 

Antonio Nov. 4, 2009, orig. proceeding) (per curiam) (mem. op.) (dismissing mandamus regarding relief 

from New York judgment on grounds that Counsel Financial had an adequate remedy by appeal); see 

also Counsel Fin. Servs., LLC v. Leibowitz, No. 09-CV-1025S, 2012 U.S. Dist. LEXIS 42215 (W.D.N.Y. 

Mar. 26, 2012) (denying Counsel Financial’s motion for a preliminary injunction and Leibowitz’s motion to 

dismiss or abate); Counsel Fin. Servs., LLC v. David McQuade Leibowitz, P.C., 81 A.D.3d 1421, 916 

N.Y.S.2d 879, 2011 N.Y. App. Div. LEXIS 1157, 2011 NY Slip Op 1172 (N.Y. App. Div. 4th Dep’t 2011) 

(affirming an order denying Leibowitz’s motion seeking to vacate a default order and judgment entered 

against them because they failed to establish a reasonable excuse for their default and a meritorious 

defense to the action); Counsel Fin. Servs., LLC v. Leibowitz, No. 09-CV-1025S, 2010 U.S. Dist. LEXIS 

25532 (W.D.N.Y. Mar. 18, 2010) (denying Counsel Financial’s motion for a temporary restraining order); 

Counsel Fin. Servs., LLC v. David McQuade Leibowitz, P.C., 67 A.D.3d 1483, 889 N.Y.S.2d 811, 2009 

N.Y. App. Div. LEXIS 8506 (N.Y. App. Div. 4th Dep’t, 2009) (affirming a default order and judgment in 

favor of Counsel Financial and ordering Leibowitz to pay a specified amount due on a promissory note 

executed by Leibowitz, P.C. and personally guaranteed by defendant). Counsel Financial has one

additional original proceeding pending in this Court, which is being disposed of concomitantly with this 

appeal. See In re Counsel Fin. Servs., LLC, No. 13-12-00151-CV, 2013 Tex. App. LEXIS ___ (Tex.

App.—Corpus Christi July 25, 2013, orig. proceeding) (mem. op.).
3

David McQuade Leibowitz, P.C. and David McQuade Leibowitz individually (collectively 

“Leibowitz”). The promissory note evidencing the loan was secured by an agreement 

and guaranty executed by Leibowitz in his individual capacity. The note and security 

agreement were modified several times by the agreement of the parties over the course 

of several years. These documents provided Counsel Financial with a security interest 

in Leibowitz’s legal fees, accounts, and intangibles in the event of a default under the 

loan.

Leibowitz failed to make payments due under the loan, and Counsel Financial 

obtained a default summary judgment against Leibowitz on the note and security 

agreement in the New York state court system. Leibowitz unsuccessfully appealed that

judgment through the New York appellate courts.

Counsel Financial domesticated the New York judgment in Texas under the 

Uniform Enforcement of Foreign Judgments Act. See TEX. CIV. PRAC. & REM. CODE 

ANN. §§ 35.001–.008 (West 2008 & Supp. 2011). On appeal, the San Antonio Court of 

Appeals held that the New York judgment is entitled to full faith and credit and is fully 

enforceable in Texas. 

In separate trial court proceedings, which underlie this appeal, Leibowitz 

represented Maria Alma Anzaldua in a personal injury lawsuit against Kmart 

Corporation (“Kmart”) in the 370th District Court of Hidalgo County. Upon learning that 

the parties had reached a settlement in the personal injury lawsuit, Counsel Financial 

filed a plea in intervention in that suit on grounds that Leibowitz had refused to pay the 

New York debt and judgment. In this intervention, Counsel Financial sought “an order 

from the Court directing all Parties to pay directly to [Counsel Financial] all funds (up to 
4

the amount of CFS’s lien) to which Leibowitz and the Law Firm may be entitled to as a 

result of this case and the settlement.” Counsel Financial expressly stated that it “[did] 

not seek to disturb the proposed settlement agreement in the Lawsuit” and likewise 

“[did] not seek to disturb the rights of Plaintiff to receive the portion of the settlement that 

is rightfully hers, or the release of Defendant from the Lawsuit.”

On October 9, 2009, in response to Counsel Financial’s intervention, Leibowitz 

also intervened in the Hidalgo County suit and asserted claims for affirmative relief 

against Counsel Financial, including claims for declaratory and temporary injunctive 

relief and damage claims for tortious interference and business disparagement. By his 

first amended pleading, Leibowitz sought an anti-suit injunction and an anti-execution 

injunction attempting to restrain Counsel Financial from enforcing either the security 

agreement or the domesticated judgment. According to Leibowitz’s pleadings, Counsel 

Financial claimed that it was entitled to his portion of the settlement funds based either 

on “a foreign default judgment which is not now enforceable under Texas law, or a 

Security Agreement which [Counsel Financial] has itself breached.” 

Counsel Financial filed, inter alia, motions to transfer venue, a plea to the 

jurisdiction, and a motion to dismiss based on forum selection clauses in the loan 

documents. Leibowitz filed two partial motions for summary judgment on usury claims. 

On January 20, 2012, the trial court granted both motions and severed them into a 

separate cause number. That same day, the trial court denied Counsel Financial’s 

motion to dismiss based on the forum selection clauses in its documents. Counsel 

Financial thus brought this appeal and subsequently filed a separate petition for writ of 
5

mandamus on the forum selection clause. We first address the motions for summary 

judgment. 

II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT

We review a grant of summary judgment de novo. Exxon Corp. v. Emerald Oil & 

Gas Co., L.C., 331 S.W.3d 419, 422 (Tex. 2010). When the trial court does not specify 

the grounds for its ruling, a summary judgment will be affirmed if any of the grounds 

advanced by the motion are meritorious. FM Props. Operating Co. v. City of Austin, 22 

S.W.3d 868, 87273 (Tex. 2000). A party moving for traditional summary judgment has 

the burden to prove that there is no genuine issue of material fact and it is entitled to 

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The non-movant has no 

burden to respond to or present evidence regarding the motion until the movant has 

carried its burden to conclusively establish the cause of action or defense on which its 

motion is based. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 

(Tex. 2000) (per curiam).

III. FIRST MOTION FOR PARTIAL SUMMARY JUDGMENT

ALLEGING USURY UNDER THE TEXAS FINANCE CODE

Counsel Financial’s first issue on appeal attacks the trial court’s order granting 

summary judgment on the usury claims against it. Leibowitz filed a motion for partial 

summary judgment seeking judgment against Counsel Financial on Leibowitz’s claims 

under the Texas Finance Code. According to the motion, the default judgment against 

Leibowitz was subject to the New York post-judgment interest statute at a rate of 9%. 

The motion alleged that, under both Texas and New York Law, pursuant to the 
6

doctrines of merger and bar, the note was merged into the default judgment. From the 

date of the default judgment through August 2010, Counsel Financial sent invoices to 

Leibowitz which included amounts for interest. According to Leibowitz, if the 9% postjudgment rate is applied, the amount of interest payable on $5,506,800.96 from 

November 25, 2008 through March 31, 2010 is $670,321.00. However, according to an 

affidavit provided by Leibowitz, the amount of interest, fees and charges for the use of 

money from the date of the default judgment through March 31, 2010, which is stated in 

the invoices, is $2,139,133.00. The motion for summary judgment also further 

contended that Counsel Financial was attempting to collect money which was not set 

out in the default judgment. As grounds for summary judgment, Leibowitz alleged 

violations of sections 305.0032and 305.0043of the Texas Finance Code. In short, the 

 

2

Section 305.003 of the Texas Finance Code, entitled “Liability for Usurious Legal Interest,” 

provides:

(a) A creditor who charges or receives legal interest that is greater than the amount 

authorized by this subtitle is liable to the obligor for an amount that is equal to the 

greater of:

(1) three times the amount computed by subtracting the amount of legal 

interest allowed by law from the total amount of interest charged or 

received; or

(2) $ 2,000 or 20 percent of the amount of the principal, whichever is less.

(b) This section applies only to a transaction subject to this subtitle. 

TEX. FIN. CODE ANN. § 305.003 (West 2006).

3

Section 305.004 of the Texas Finance Code, entitled “Additional Liability for More Than Twice 

Authorized Rate of Legal Interest” provides:

(a) In addition to the amount determined under Section 305.003, a creditor who 

charges and receives legal interest that is greater than twice the amount 

authorized by this subtitle is liable to the obligor for:

(1) the principal amount on which the interest is charged and received; and 
7

basis of the motion is that, applying the New York statutory rate of interest on judgments 

(9%) to invoices sent by Counsel Financial to Leibowitz, the interest charged in the 

invoices is usurious under the Texas statutes. Leibowitz contends that Counsel 

Financial breached the finance code by sending invoices which included interest “at a 

time that no interest was accruing on the Note.” Leibowitz calculated that the amount of 

interest that Counsel Financial charged was $2,139,133.00; however, the amount of 

interest allowed by law was $670,321.00, thus he was entitled three times the amount 

computed by subtracting the interest allowed by law from the total interest received, 

which is $4,406,436.00. Leibowitz sought judgment in the amount of $5,519,992.72, or, 

in the alternative, $4,406,436.00, or alternatively, a declaration of the amount of interest 

and fees Counsel Financial is entitled to collect under the domesticated New York 

judgment. 

Counsel Financial filed a response to the motion including various objections to 

the motion, including a specific objection that the motion to dismiss on forum selection 

grounds should be addressed prior to any decision on the merits. The response also 

contended, inter alia, that: (1) the usury claims fail under New York law; (2) the usury 

claims fail under Texas law; and (3) the declaratory judgment claims fail on factual and 

legal grounds.

 

(2) the interest and all other amounts charged and received.

(b) This section applies only to a transaction subject to this subtitle.

TEX. FIN. CODE ANN. § 305.004 (West 2006).
8

On January 20, 2012, the trial court granted Leibowitz’s motion and rendered an 

“Order Granting Motion for Partial Summary Judgment and Order of Severance” which 

reads in part as follows:

IT IS THEREFORE ORDERED ADJUDGED AND DECREED that 

DAVID MCQUADE LEIBOWITZ, P.C. shall have partial summary 

judgment over and against COUNSEL FINANCIAL SERVICES, LLC 

forfeiting the amount of principle upon which interest was received in the 

amount in $5,005,845.45, and for the interest received thereon in the 

amount of $514,147.28 for a total judgment over and against COUNSEL 

FINANCIAL SERVICES, LLC in the amount of $5,519,992.72.

. . . .

IT IS FURTHER ORDERED ADJUDGED, AND DECREED, that the 

amounts awarded herein shall offset any amounts claimed by COUNSEL 

FINANCIAL SERVICES, LLC [I]n its Plea In Intervention filed herein, and 

shall offset any amounts alleged to be subject to the lien claimed by 

COUNSEL FINANCIAL SERVICES, LLC. In the Plea In Intervention filed 

in this case, COUNSEL FINANCIAL SERVICES, LLC requested the Court 

to determine the total amount of the lien it claims pursuant to the Security 

Agreement attached to the Plea In Intervention. Accordingly, upon the 

conclusion of the trial of the merits of this cause the Court will grant the 

relief requested by COUNSEL FINANCIAL SERVICES, LLC and 

determine the total amount of its lien, if any such lien is found to exist.

By its first issue, Counsel Financial contends generally that the trial court erred in 

granting Leibowitz’s first motion for partial summary judgment. In sub-issues, Counsel 

Financial argues that: (1) Leibowitz did not conclusively establish that Counsel 

Financial violated the Texas Finance Code; (2) Leibowitz did not conclusively establish 

that Counsel Financial violated any New York usury law; (3) Leibowitz and the trial court 

employed an improper combination of New York and Texas law; (4) the trial court 

erroneously granted excess relief by ordering that any amount sought by Counsel 

Financial on its lien be offset by the amount forfeited; and (5) the declaration sought by 
9

Leibowitz, which constitutes a collateral attack on the New York judgment, is not 

authorized by law.

Usury is any charged interest, “in excess of the amount allowed by law.” First 

Bank v. Tony’s Tortilla Factory, Inc., 877 S.W.2d 285, 287 (Tex. 1994). Contracts for 

usurious interest are contrary to public policy and prohibited by the Texas Constitution 

and Texas Finance Code. See TEX. CONST. art. XVI, § 11; TEX. FIN. CODE ANN. §§ 

302.001(b), 305.001–.008 (West 2011); Williams v. Bell, No. No. 14-12-00691-CV, 2013 

Tex. App. LEXIS 3208, at *14 (Tex. App.—Houston [14th Dist.] Mar. 26, 2013, no pet. 

h.); Sturm v. Muens, 224 S.W.3d 758, 761 (Tex. App.—Houston [14th Dist.] 2007, no 

pet.). To prevail on a claim of usury, a party must prove: (1) a loan of money; (2) an 

absolute obligation to repay the principal; and (3) the exaction of greater compensation 

than is allowed by law for the borrower’s use of the money. Williams, 2013 Tex. App. 

LEXIS 3208, at *14; Sturm, 224 S.W.3d at 761. A “loan” is an advance of money made 

to or on behalf of an obligor, “the principal amount of which the obligor has an obligation 

to pay the creditor.” TEX. FIN. CODE ANN. § 301.002(a)(10) (West 2006). “Interest” is 

compensation for the use, forbearance, or detention of money. Id. § 301.002(a)(4). 

“Usurious interest” is interest that exceeds the applicable maximum amount allowed by 

law. Id. § 301.002(a)(17).

The usury statutes are penal in nature and, accordingly, must be strictly 

construed in such a way as to give the lender the benefit of the doubt. See Lagow v. 

Hamon, 384 S.W.3d 411, 416 (Tex. App.—Dallas 2012, no pet.); Bair Chase Prop. Co, 

L.L.C. v. S&K Dev. Co., Inc., 260 S.W.3d 133, 142 (Tex. App.—Austin 2008, pet. 

denied); First State Bank v. Dorst, 843 S.W.2d 790, 794 (Tex. App.—Austin 1992, writ 
10

denied); see also Steves Sash & Door Co., Inc. v. Ceco Corp., 751 S.W.2d 473, 476 

(Tex. 1988). The Texas usury statutes impose often draconian penalties on those 

creditors who violate them. See Lagow, 384 S.W.3d at 416; Sotelo v. Interstate Fin. 

Corp., 224 S.W.3d 517, 522 n.7 (Tex. App.—El Paso 2007, no pet.). The Legislature’s 

purpose behind such penalties was presumably not to award unwarranted “windfalls” to 

fortuitous debtors or to unfairly penalize well-intentioned creditors for careless or 

unknowing mistakes, but to dissuade unscrupulous creditors from charging usurious 

rates in the first instance. Lagow, 384 S.W.3d at 416; Sotelo, 224 S.W.3d at 522 n.7. 

By enacting the provisions that allow creditors to correct a violation, the Legislature has 

encouraged creditors to amend usurious contracts in the debtor’s favor. See Lagow, 

384 S.W.3d at 416; Bair Chase, 260 S.W.3d at 144; Sotelo, 224 S.W.3d at 522.

Statutory construction is a legal question we review de novo. City of Rockwall v. 

Hughes, 246 S.W.3d 621, 625 (Tex. 2008). In construing statutes, we ascertain and 

give effect to the Legislature’s intent as expressed by the language of the statute. See 

State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006); Lagow, 384 S.W.3d at 416; 

Sotelo, 224 S.W.3d at 522; Jones v. State, 175 S.W.3d 927, 930 (Tex. App.—Dallas 

2005, no pet.). When we interpret a code enacted by the legislature, we read words 

and phrases in context and construe them according to the rules of grammar and 

common usage. TEX. GOV’T CODE ANN. § 311.011(a) (West 2005); see Lagow, 384 

S.W.3d at 416; Jones, 175 S.W.3d at 930. Words and phrases that have acquired a 

technical or particular meaning, whether by legislative definition or otherwise, are 

construed accordingly. TEX. GOV’T CODE ANN. § 311.011 (b); In re Allen, 366 S.W.3d 

696, 706 (Tex. 2012); City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). 
11

Section 302.001(b) of the Texas Finance Code states that the “maximum rate or 

amount of interest is 10 percent a year except as otherwise provided by law” and “[a] 

greater rate of interest than 10 percent a year is usurious unless otherwise provided by 

law.” TEX. FIN. CODE ANN. § 302.001(b); see also Threlkeld v. Urech, 329 S.W.3d 84 

(Tex. App.—Dallas 2010, pet. denied). We note that Texas law, including the usury 

statute, provides for a greater rate of interest for various transactions. See, e.g., TEX.

FIN. CODE ANN. § 303.009 (providing that the amount of the minimum and maximum 

optional rate ceilings depend on whether the loan is a consumer loan, which entails a 

minimum interest rate ceiling of eighteen percent and a maximum interest rate ceiling of 

twenty-four percent, or a loan concerning a “business, commercial, investment, or 

similar purpose,” for which the maximum ceiling is twenty-eight percent); see also All 

Seasons Window and Door Mfg., Inc. v. Red Dot Corp., 181 S.W.3d 490, 498 (Tex. 

App.—Texarkana 2005, no pet.). 

We turn our attention to the summary judgment at issue. Leibowitz’s motion for 

summary judgment asserts that the debt was subject to the post-judgment rate of 

interest established by New York law but that the interest charged was usurious under 

the Texas Finance Code. The motion is thus premised on a chimera of Texas and New 

York Law. Leibowitz asserts no argument or authority explaining the motion for 

summary judgment’s hybrid approach to the applicable law. We conclude that 

Leibowitz’s motion for partial summary judgment does not carry its burden to 

conclusively establish his cause of action for usury insofar as it attempts to meld claims 

based on the laws of two different states without argument or authority regarding the 

applicability of either. Moreover, even had Leibowitz carried his burden, we would 
12

conclude that Counsel Financial’s response has raised a material issue of fact regarding 

the usury claims. In response to the motion for summary judgment, Counsel 

Financial asserts, among other issues, that Leibowitz’s claims are governed by New 

York law and (1) the Texas Finance Code does not apply under New York law; (2) New 

York law does not permit corporations or guarantors of a corporate debt to sue for 

usury; and (3) New York law exempts loans exceeding $2.5 million from its usury laws. 

Counsel Financial states that the note and the security agreement nominate New York 

as the governing law:

GOVERNING LAW. This note shall be governed by and construed, 

interpreted and enforced in accordance with the internal laws of the State 

of New York and, to the extent applicable, the federal law of the United 

States, without regard to the law of any other jurisdiction.

Counsel Financial further asserts that Leibowitz has no claim for usury under New York 

law because, inter alia, New York law bars both corporations and the individual 

guarantors for the debt of corporations from asserting usury claims. “A corporation is 

prohibited from asserting the defense of civil usury,” and “[a]n individual guarantor of a 

corporate obligation is also precluded from raising such a defense.” Arbuzova v. Skalet, 

92 A.D.3d 816, 816, 938 N.Y.S.2d 811 (N.Y. App. Div. 2d Dep’t 2012); see N.Y. GEN.

OBLIG. LAW. § 5-521; Schneider v. Phelps, 41 N.Y.2d 238, 242, 359 N.E.2d 1361, 391 

N.Y.S.2d 568 (1977); Pepin v. Jani, 101 A.D.3d 694, 695; 955 N.Y.S.2d 371, 373 (N.Y. 

App. Div. 2d Dep’t 2012); Tower Funding v. Berry Realty, 302 A.D.2d 513, 514, 755 

N.Y.S.2d 413 (N.Y. App. Div. 2d Dep’t 2003). Further, New York exempts loans 

exceeding $2.5 million from its usury laws: section 5-501(6)(b) of the applicable statute 

provides that penal usury laws do not apply where loans in excess of $2.5 million are 
13

issued in one or more installments pursuant to a written agreement. AJW Partners LLC 

v. Itronics Inc., 68 A.D.3d 567, 568, 892 N.Y.S.2d 46 (N.Y. App. Div. 1st Dep’t 2009);

see N.Y. GEN. OBLIG. LAW. § 5-501(6)(b). 

Based on the foregoing, we conclude that the trial court erred in granting 

Leibowitz’s motion for partial summary judgment regarding the usury claims under the 

Texas Finance Code. We sustain Counsel Financial’s first issue and its first three subissues.

We next address Counsel Financial’s fourth sub-issue contending that the trial 

court erroneously granted excess relief by ordering that any amount sought by Counsel 

Financial on its lien be offset by the amount forfeited. The motion for summary 

judgment must state the grounds on which it is made. See TEX. R. CIV. P. 166a(c), 

McConnell v. Southside ISD, 858 S.W.2d 337, 341 (Tex. 1993). The trial court cannot 

grant a summary judgment on grounds not presented in the motion. G&H Towing Co. v. 

Magee, 347 S.W.3d 293, 297 (Tex. 2011). The right of offset is an affirmative defense; 

the burden of pleading offset and proving facts necessary to support this defense is on 

the party making the assertion. Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931, 

936 (Tex. 1980); see also ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867 

(Tex. 2010). The motion for partial summary judgment did not seek offset. Accordingly, 

the trial court’s determination of offset in the summary judgment was error. We sustain 

Counsel Financial’s fourth sub-issue.

Finally, in its fifth sub-issue, Counsel Financial contends the declaration sought 

by Leibowitz, which constitutes a collateral attack on the New York judgment, is not 

authorized by law. In his motion for partial summary judgment, Leibowitz sought 
14

affirmative relief on his claims for usury, or “alternatively, a declaration of the amount of 

interest and fees Counsel Financial is entitled to collect under the domesticated New 

York judgment.” The order at issue grants the substantive relief requested and does not 

include a declaration of the amount and fees Counsel Financial is entitled to collect 

under the judgment. Accordingly, we overrule Counsel Financial’s fifth sub-issue.

IV. SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT

ALLEGING UNENFORCEABILITY OF THE SECURITY AGREEMENT

By its second issue, Counsel Financial contends generally that the trial court 

erred in granting Leibowitz’s second motion for partial summary judgment. In subissues, Counsel Financial argues that (1) the security agreement cannot be rendered 

unenforceable by Counsel Financial by disciplinary rules that do not apply to it; (2) 

Leibowitz did not conclusively establish that the security agreement violates any 

disciplinary rule; and (3) Leibowitz did not conclusively establish that the entire 

agreement is unenforceable.

Leibowitz’s second motion for partial summary judgment asserted that Counsel 

Financial “did not obtain, and could not have, a security interest in Leibowitz’s 

contingency attorney fees.” Leibowitz contended that a contingency fee legal contract 

between an attorney and client is not a commodity which can be traded like any other 

account under the Texas Business and Commerce Code. As grounds for the motion, 

Leibowitz contended that the security agreement violated: (1) Rule 5.04 of the Texas 

Disciplinary Rules of Professional Conduct4(“Disciplinary Rules”), (2) Rule 1.05 of the 

 

4 Rule 5.04 of the Texas Disciplinary Rules of Professional Conduct, entitled “Professional 

Independence of a Lawyer” provides generally that “[a] lawyer or law firm shall not share or promise to 

share legal fees with a non-lawyer.” See TEX. DISCIPLINARY R. PROF’L CONDUCT 5.04(a), reprinted in TEX.

GOV’T CODE ANN., tit. 2, subtit. G, app. A (West Supp. 2011). 
15

Disciplinary Rules,5and (3) Rule 2.01 of the Disciplinary Rules regarding his duty of

utmost fidelity to his clients.

6

 In conclusion, the motion asserts that the “agreement to 

pay a portion of attorneys fees to a non-lawyer, the transfer of the right to receive those 

fees by assignment, the required release of confidential information, and the wholesale 

interference with the attorney-client relationship, renders the Security Agreement in 

violation of Texas public policy.” 

After reviewing the applicable law, we conclude that Leibowitz did not meet his 

burden to prove that there is no genuine issue of material fact and he is entitled to 

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp 

Advisors, Inc., 289 S.W.3d at 848. Leibowitz’s motion for summary judgment is 

premised on alleged violations of the Disciplinary Rules. The preamble to the current 

Disciplinary Rules states, in part, that “[t]hese rules do not undertake to define 

standards of civil liability of lawyers for professional conduct. Violation of a rule does 

not give rise to a private cause of action nor does it create any presumption that a legal 

duty to a client has been breached.” TEX. DISCIPLINARY RULE PROF’L CONDUCT preamble 

P 15, reprinted in TEX. GOV’T CODE ANN., tit.2, subtit. G app. A (West Supp. 2011).

 

5 Rule 1.05(a) of the Texas Disciplinary Rules of Professional Conduct, entitled “Confidentiality of 

Information,” provides in relevant part that a lawyer shall not knowingly reveal confidential information of a 

client or a former client to anyone else, other than the client, the client’s representatives, or the members, 

associates, or employees of the lawyer’s law firm. See TEX. DISCIPLINARY R. PROF’L CONDUCT 1.05(a), 

reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (West Supp. 2011). 

6 Rule 2.01 of the Texas Disciplinary Rules of Professional Conduct, entitled “Advisor,” provides 

that “In advising or otherwise representing a client, a lawyer shall exercise independent professional 

judgment and render candid advice.” See TEX. DISCIPLINARY R. PROF’L CONDUCT 2.01, reprinted in TEX.

GOV’T CODE ANN., tit. 2, subtit. G, app. A (West Supp. 2011). 
16

Texas cases have consistently held that the Texas Disciplinary Rules of 

Professional Conduct do not define standards for civil liability and do not give rise to 

private claims. Garcia v. Garza, 311 S.W.3d 28, 43–44 (Tex. App.—San Antonio 2010, 

pet. denied); Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 613 

(Tex. App.—Houston [14th Dist.] 2006, pet. denied). Thus, any alleged 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.” Wright v. 

Sydow, 173 S.W.3d 534, 549 (Tex. App.—Houston [14th Dist.] 2004, pet. denied); see

Cruse v. O’Quinn, 273 S.W.3d 766, 775 (Tex. App.—Houston [14th Dist.] 2008, pet. 

denied); Cuyler v. Minns, 60 S.W.3d 209, 214 (Tex. App.—Houston [14th Dist.] 2001, 

pet. denied). 

Second, assuming without deciding that the singular mention of public policy in 

the conclusion to the motion for summary judgment adequately pleads that ground for 

summary judgment,7 we note that a court may deem the disciplinary rules to be an 

expression of public policy, so that a contract violating them is unenforceable as against 

public policy. Garcia, 311 S.W.3d at 43; Cruse, 273 S.W.3d at 775; Dardas, 194 

S.W.3d at 613. In this regard, we note that there are several cases in which Texas 

courts have concluded that agreements violating the Disciplinary Rules were 

 

7

If the grounds for summary judgment are not clear, the general rule is that the nonmovant must 

specially except to preserve error. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 175 

(Tex.1995) (citing McConnell v. Southside ISD, 858 S.W.2d 337, 342 (Tex. 1993)). However, the 

nonmovant need not object if the grounds for summary judgment are not expressly presented in the 

motion itself, rendering the motion insufficient as a matter of law. See McConnell, 858 S.W.2d at 342. 

Grounds are sufficiently specific if they give “fair notice” to the nonmovant. Beaver Properties, L.L.C. v. 

Jerry Huffman Custom Builder, L.L.C., 355 S.W.3d 878, 889 (Tex. App.—Dallas 2011, no pet.); E.B.S. 

Enters., Inc. v. City of El Paso, 347 S.W.3d 404, 409 (Tex. App.—El Paso 2011, pet. denied); City of 

Roanoke v. Town of Westlake, 111 S.W.3d 617, 633 (Tex App.—Fort Worth 2003, pet. denied); Dear v. 

City of Irving, 902 S.W.2d 731, 734 (Tex. App.—Austin 1995, writ denied). 
17

unenforceable and void as against public policy. See, e.g., Johnson v. Brewer & 

Pritchard, P.C., 73 S.W.3d 193, 205 (Tex. 2002) (“A fee sharing agreement between 

lawyers who are not in the same firm violates public policy and is unenforceable unless 

the client is advised of and consents to the sharing arrangement.”); Lemond v. Jamail, 

763 S.W.2d 910, 914 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (holding that a 

referral agreement was void and unenforceable as being against public policy because 

the client was never informed of the fee-splitting agreement); Quintero v. Jim Walter 

Homes, Inc., 709 S.W.2d 225, 229–30 (Tex. App.—Corpus Christi 1986, writ ref’d n.r.e.) 

(holding a settlement agreement was void and unenforceable because the clients were 

not informed of the nature and amounts of all the claims involved in the aggregate 

settlement as required by rules); Fleming v. Campbell, 537 S.W.2d 118, 119 (Tex. Civ. 

App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.) (holding an attorney’s referral fee 

contract was void because it was against the public policy expressed in the rules).

The motion asserts that the security agreement violates public policy insofar as it 

involves an “agreement to pay a portion of attorneys fees to a non-lawyer” and “the 

transfer of the right to receive those fees by assignment.” The main thrust of 

Leibowitz’s argument is that loans such as those at issue in this case fundamentally 

violate public policy as articulated in the disciplinary rules, which as a general rule 

prohibit lawyers from sharing legal fees with non-lawyers. However, Texas case law 

allows an attorney to assign accounts receivable, consisting of current or future, earned 

or unearned, attorney fees as property securing a transaction. See Hennigan v. 

Hennigan, 666 S.W.2d 322, 325 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.)

(concluding that future attorney’s fees constitute “accounts” under section 9.106 of the 
18

Uniform Commercial Code).8 Moreover, as previously stated by this Court, there is a 

significant difference between sharing legal fees with a non-lawyer and paying a debt 

with legal fees. See State Bar of Tex. v. Tinning, 875 S.W.2d 403, 410 (Tex. App.—

Corpus Christi 1994, writ denied). In a case where the appellant contended that the 

disciplinary rules were unconstitutionally vague because they make no distinction 

between giving a predetermined percentage of a legal fee to a non-lawyer and paying 

an employee’s hourly salary from monies generated by fees paid by clients for the 

lawyer’s services, we stated, inter alia, that: 

[C]ommon use and understanding of “sharing fees” does not include the 

type of permissible behavior [appellant] complains may be confused with 

proscribed behavior. Our national economy comprises a multitudinous 

system of payments from one party to another, who in turn settle debts 

with third parties, who continue the stream of payments ad infinitum. One 

does not ordinarily consider paying a pre-existing debt with sums earned 

by fees generated from rendering services as sharing those fees. A wage 

earner does not “share” his salary with a landlord by virtue of paying rent, 

nor do the State of Texas or the United States “share” tax revenue with 

their employees. According to common use and understanding of the 

phrase “share legal fees,” a lawyer does not “share legal fees” by paying a 

salary to his employees or by using money generated by legal fees to pay 

the lawyer’s debts to employees or others.

 

8 Other jurisdictions also interpret the Uniform Commercial Code (“UCC”) definition of “account” 

as encompassing contracts for legal fees, including fees in pending contingency fee cases. See, e.g., 

Cadle Co. v. Schlichtmann, 267 F.3d 14, 18 (1st Cir. 2001) (concluding that amounts to be paid under 

contingency fee agreements are accounts under Article 9 of UCC); U.S. Claims, Inc. v. Yehuda Smolar, 

P.C., 602 F.Supp. 2d 590, 597–600 (E.D. Pa. 2009) (holding that the assignment of amounts owed under 

contingency fee agreement governed by Article 9 of the UCC); U.S. Claims, Inc. v. Flomenhaft & 

Cannata, LLC, 519 F. Supp. 2d 515, 521 (E.D. Pa. 2006) (finding that fee contracts created rights to 

receive payment for services to be rendered by the law firm on behalf of its clients and thus fell squarely 

within definition of account); see also ACF 2006 Corp. v. Merritt, No. CIV-12-161, 2013 U.S. Dist. LEXIS 

16609, at *11 (W.D. Okla. Feb. 7, 2013); PNC Bank, Del. v. Berg, No. 94C-09-208-WTQ, 1997 Del. 

Super. LEXIS 19, at *27, 45 U.C.C. Rep. Serv. 2d (Callaghan) 27 (Del. Jan. 31, 1997) (concluding that an 

unmatured contingency fee contract is an account under Article 9 of the UCC); Core Funding Group v. 

McDonald, No. L-05-1291, 2006 Ohio 1625, 2006 Ohio App. LEXIS 1523, at *22 (Ohio App. Mar. 31, 

2006) (concluding that contingent fee contracts of a law firm-debtor are subject to Article 9).
19

Id. Accordingly, we conclude that Leibowitz failed to show as a matter of law that the 

security agreement violated public policy as an alleged violation of the fee-sharing 

prohibition contained in the Disciplinary Rules.

The motion for summary judgment also asserts that the security agreement 

violates public policy insofar as it mandates the required release of confidential 

information and causes wholesale interference with the attorney-client relationship. 

Leibowitz contends that the language of the security agreement requires the release of 

confidential client information insofar as it, inter alia, gives Counsel Financial the right to 

inspect his records and requires him to notify Counsel Financial of any event which 

might have a material adverse effect on the value of his contingency fee contracts. 

Leibowitz also contends that the security agreement violates his duty of fidelity to his 

clients because, among other things, it purports to prevent him from giving up any rights 

or remedies relating to his client contracts and prohibits him from modifying his client 

contracts.

Assuming without deciding that these provisions might lead to potential violations 

of the disciplinary rules, Counsel Financial contends that the security agreement itself 

expressly protects Leibowitz from violating any disciplinary rules. The security 

agreement contains the following clauses:

Each such right and remedy may be exercised only to the extent that the 

exercise thereof does not (i) violate applicable law, or (ii) if requiring the 

Debtor to take any action, require the Debtor [to] violate any ethical or 

disciplinary rule, regulation or law governing non-disclosure of confidential 

information by an attorney or prohibiting the unauthorized practice of law.

. . . 
20

Whenever possible, each provision of this Agreement shall be interpreted 

in such a manner as to be effective and valid under applicable law. If 

however, any such provision shall be prohibited by or invalid under such 

law, it shall be deemed modified to conform to the minimum requirements 

of such law, or, if for any reason it is not deemed so modified, it shall be 

prohibited or invalid only to the extent of such prohibition or invalidity 

without the remainder thereof or any other such provision being prohibited 

or invalid.

Under contract principles, a court is generally authorized to sever an illegal or an 

unenforceable provision from a contract and enforce the remainder of the contract. 

Williams v. Williams, 569 S.W.2d 867, 871 (Tex. 1978); see also In re Poly-America, 

L.P., 262 S.W.3d 337 (Tex. 2008) (orig. proceeding); Hoover Slovacek LLP v. Walton, 

206 S.W.3d 557, 565 (Tex. 2006); Rogers v. Wolfson, 763 S.W.2d 922, 925 (Tex.

App.—Dallas 1989, writ denied). An illegal or unconscionable provision may generally 

be severed so long as it does not constitute the essential purpose of the agreement. 

See Williams, 569 S.W.2d at 871; Sec. Serv. Fed. Credit Union v. Sanders, 264 S.W.3d 

292, 300 (Tex. App.—San Antonio 2008, no pet.); City of Brownsville v. Golden Spread 

Elec. Coop., Inc., 192 S.W.3d 876 (Tex. App.—Dallas 2006, pet. denied). Severability 

is determined by the intent of the parties as evidenced by the language of the contract. 

In re Kasschau, 11 S.W.3d 305, 313 (Tex. App.—Houston [14th Dist.] 1999, orig. 

proceeding); Montgomery, 930 S.W.2d at 778-79.

In the instant case, the portions of the security agreement which allegedly violate 

the disciplinary rules are tangential to the main or essential purpose of the agreement, 

which is the pledge of collateral to secure the loan. Accordingly, Leibowitz has not met 

his burden to show that he is entitled to judgment as a matter of law on grounds that the 

security agreement is unenforceable due to alleged violations of the disciplinary rules. 
21

See id. We sustain Counsel Financial’s second issue. In so holding, we note that that 

the preamble itself says that the purpose of the rules can be abused when they are 

invoked by opposing parties as procedural weapons. It appears to this Court that the 

purpose of the rules can similarly be abused when an attorney enters into a contract 

with a non-lawyer and then seeks to avoid the contract on grounds it violates the 

Disciplinary Rules. 

V. MOTION TO DISMISS

In its third and final issue, Counsel Financial contends that the trial court abused 

its discretion by denying Counsel Financial’s motion to dismiss based on forum 

selection clauses in the loan documents. As a threshold matter, we note that Counsel 

Financial objected to the trial court’s failure to rule on its motion to dismiss prior to ruling 

on the substantive motions for summary judgment herein. Specifically, the motion to 

dismiss was filed on March 19, 2010, the first motion for partial summary judgment was 

filed on August 30, 2010, and the second motion for partial summary judgment was filed 

on October 13, 2011. The trial court entered orders on the motion to dismiss and both 

motions for partial summary judgment on the same day, January 20, 2012. A trial court 

abuses its discretion when addressing substantive matters without first ruling on a 

motion to dismiss based on a forum selection clause. See In re AutoNation, 228 

S.W.3d 663, 667–70 (Tex. 2007) (orig. proceeding); In re MetroPCS Communs., Inc., 

391 S.W.3d 329, 340 (Tex. App.—Dallas 2013, orig. proceeding) (holding that the trial 

court abused its discretion by granting injunctive relief without first ruling on relators’

motions respecting a forum selection clause); In re Boehme, 256 S.W.3d 878, 880 (Tex. 

App.—Houston [14th Dist.] 2008, orig. proceeding) (mandamus relief granted to 
22

overturn temporary injunction order and dismiss case based on forum selection clause). 

Nevertheless, we do not reach this issue because the order denying the motion to 

dismiss was not severed and made final and accordingly, is not subject to review in this 

appeal. Counsel Financial also attacked this ruling by petition for writ of mandamus in 

our cause 13-12-00151-CV, and we address this issue therein.

VI. CONCLUSION

In sum, we reverse and remand in part, and we dismiss in part. Specifically, we 

reverse and remand both orders granting summary judgment. We dismiss Counsel 

Financial’s appeal of the order denying its motion to dismiss on forum selection grounds 

and address that issue by separate opinion in the related original proceeding. See In re 

Counsel Fin. Servs., LLC, No. 13-12-00151-CV, 2013 Tex. App. LEXIS ___ (Tex. 

App.—Corpus Christi July 25, 2013, orig. proceeding) (mem. op.).

__________________________

GINA M. BENAVIDES,

Justice

Delivered and filed the

25th day of July, 2013.