1 United States Court of Appeals,

Fifth Circuit.

No. 95-20487.

Marian E. BRITTON, Plaintiff-Appellant,

v.

Robert A. SEALE, Jr., John B. Holstead, and Roger L. Beebe,

Defendants-Appellees.

April 30, 1996.

Appeal from the United States District Co urt for the Southern

District of Texas.

Before POLITZ, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit

Judges.

JERRY E. SMITH, Circuit Judge:

Marian Britton ("Britton") appeals the dismissal of her legal

malpractice action. Finding no error, we affirm.

I.

This suit arises from a feud between Britton and her brothers

(collectively "the Brittons" or "the children") over their

respective inheritances. The Brittons' parents created a number of

partnerships and trusts, including three for Britton , and named

their sons as trustees. Britton later sued her brothers for an

accounting, apparently believing they had stolen from her trusts.

While that litigation was pending, the probate court declared

the Brittons' mother to be incompetent and made her a ward of that

court; their father had died earlier. The children eventually

settled the suit, l argely with their mother's money. The

set tlement provided that the mother's guardian would not

investigate wrongdoing by either the children or lawyers and other1 Britton argues that the district court should have

converted defendants' motion to dismiss into one for summary

judgment because defense counsel presented "extraneous matters"

to the court. The district court's holding does not rely on any

evidence outside the pleadings, however, and the mere presence of

additional issues in the record did not require the court to

treat the motion as one for summary judgment. See Davis v.

Bayless, 70 F.3d 367, 372 n. 3 (5th Cir.1995).

2 professionals who had represented the mother; the probate court

later transferred any claims the mother had against professionals

to her children.

Defendants and their law firm handled estate work for the

Brittons' parents and con tinued to represent the mother and her

court-appointed guardian during Britton's suit. They also defended

Britton's brothers against that suit and helped negotiate the

settlement.

Britton brought this legal malpractice a ction against the

individual attorneys, asserting that they violated their

professio nal duties to her mother because of a conflict of

interest. The district court found that "legal malpractice claims

are not assignable" under Texas law and dismissed the complaint. 1

II.

Britton alleges that defend ants suffered from a conflict of

interest in representing both the mother and the sons. She further

contends that defendants took advantage of the mo ther by

encouraging her to fund the settlement of her daughter's suit and

t o pay other debts of her sons. Britton also alleges that Beebe

undervalued assets on an estate tax valuation.

Britton concedes that the dispositive question on appeal is2 The notation "writ refused" indicates that the court found

that "the judgment of the court of appeals is correct and ... the

principles of law declared in the opinion ... are correctly

determined." T EX .R.A PP .P. 133(a). Thus, "a decision ... in

which the Supreme Court refuses a writ of error is as binding as

a decision of the Supreme Court itself." "21' Int'l Holdings v.

Westinghouse Elec. Corp., 856 S.W.2d 479, 483 (Tex.App.—San

Antonio 1993, no writ) (quoting Ohler v. Trinity Portland Cement

Co., 181 S.W.2d 120, 123 (Tex.Civ.App.—Galveston 1944, no writ)).

3 whe ther the probate court's transfer order gave her standing to

bring this action. The Texas Supreme Court recently answered this

question by adopting the following court of appeals holding:

On balance, we conclude that the costs to the legal system of

assignment outweigh its benefits. We hold that an assignment

of a legal malpractice action arising from litigation is

invalid.

Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 318 (Tex.App.—San

Antonio 1994, writ refused). 2

A.

Britton contends that Zuniga is distinguishable because her

mother's claims arise from estate work, not litigation. While the

court of appeals limited the express holding of Zuniga to claims

arising from litigation, its reasoning extends well beyond the

facts of that case. The court discussed the pros and cons of

assignment and concluded gener ally that "the costs to the legal

system of assignment outweigh its benefits." Id. The only other

court that has interpreted Zuniga read it broadly: "Because we

agree with appellees and the reasoning set forth in [ Zuniga ], we

hold that legal malpractice claims are not assignable." C ity of

Garland v. Booth, 895 S.W.2d 766, 769 (Tex.App.—Dallas 1995, writ

denied).3 Britton also cites a few inapposite Texas cases in an

attempt to undercut Zuniga. First, she argues that the state

supreme court specifically reserved the question of whether legal

malpractice claims are assignable, see American Centennial Ins.

Co. v. Canal Ins. Co., 843 S.W.2d 480, 484 n. 6 (Tex.1992), and a

lower court subsequently noted that the supreme court's position

on the issue "is uncertain," see Charles v. Tamez, 878 S.W.2d

201, 206 (Tex.App.—Corpus Christi 1994, writ denied). While

Britton's characterization of those cases is accurate, it is also

misleading, as both American Centennial and Charles preceded

Zuniga.

Second, Britton observes that a court of appeals stated

in dicta that attorney malpractice claims may be assigned.

See Stonewall Surplus Lines Ins. Co. v. Drabek, 835 S.W.2d

708, 711 (Tex.App—Corpus Christi 1992, writ denied).

Zuniga, however, expressly overruled that portion of

Stonewall Surplus. See Zuniga, 878 S.W.2d at 314-15.

Finally, though no one has cited it, we note that the

same court of appeals also found that a woman had standing

to prosecute a legal malpractice action that her husband had

assigned to her. See Pankhurst v. Weitinger & Tucker, 850

S.W.2d 726 (Tex.App.—Corpus Christi 1993, writ denied).

Pankhurst discusses the issue as one of marital property,

not assignment in general, and preceded both Charles, in

which the same court of appeals disallowed an assignment,

and Zuniga. If Pankhurst retains any vitality, it does so

only in the context of family law.

4 Britton argues that despite the breadth of the language quoted

above, Texas courts are concerned only with specific abuses—such as

sale to strangers for profit and transfer by defendants in

settlement of liti gation—and not with assignment in general. 3

Britton is correct in noting that the Texas cases discuss a variety

of specific problems that would result from permitting assignment,

but she is wrong in concluding that they limit the ban on

assignment to cases presenting those problems. Instead, Z uniga and

Booth appear to prohibit assignment altogether in order to prevent

such problems from occurring. S ee Zuniga, 878 S.W.2d at 317

("Ultimately, to allow assignment would make lawyers reluctant—and4 Zuniga and Booth both look to the leading opinion on this

subject, Goodley v. Wank & Wank, Inc., 62 Cal.App.3d 389, 133

Cal.Rptr. 83 (1976), which states:

It is the unique quality of legal services, the

personal nature of the attorney's duty to the client

and the confidentiality of the attorney-client

relationship that invoke public policy considerations

in our conclusion that malpractice claims should not be

subject to assignment.

Id. at 87 (emphasis added).

5 perhaps unwilling—to represent defendants with inadequate insurance

and assets."); B ooth, 895 S.W.2d at 769 (reasoning that "to allow

assignability of such claims would relegate the legal malpractice

action to the mark etplace and convert it to a commodity to be

exploited"). 4

Even if the T exas Supreme Court were to limit its ban on

assignment of legal malpractice claims to those "arising from

litigation ," the instant situation would still fall within that

ban. The mother's guardian assigned these claims to the children

following their settlement of the earlier litigation, and the

underlying subject matter of that litigation was substantially the

same as the issue in this suit: fraudulent mismanagement of the

Britton trusts. In fact, Britton alleges in this suit that

defendants conspired with her brothers to d efraud her mother in

connection with the settlement of the earlier suit. As a result,

it is not a stretch to say that the present suit "aris[es] from

litigation."

B.

Britton argue s that the assignment is valid because her6

mother's claims passed to the children "by operation of law." She

relies on a bankruptcy opinion that observes, in dicta, that "it is

not self-evident that, under California law, a claim for legal

malpractice would not pass by operation of law, as, for example, to

the malpractice plaintiff's heirs in the event of death, or to the

successor of a corporate plaintiff merged out of existence or

dissolved." E llwanger v. Budsberg (In re Ellwanger), 140 B.R. 891,

899 (Bankr .W.D.Wash.1992). Defendants respond that even if the

probate court had authority to transfer the mother's claims to the

guardian "by operation of law," such an exception would not cover

the guardian's subsequent assignment to the children.

As the state has declared the mother to be legally incompetent

and has deprived her of the right to manage her own affairs, there

is considerable force to Britton's contention that the state ought

to permit someone to prosecute the mother's claims for her.

Britton errs, however, in assuming that she is that person. To the

extent that the claims passed "by operation of law," they passed to

the guardian, n ot Britton. Moreover, Texas could assuage the

concerns discussed in Ellwanger by permitting the guardian to

prosecute the mother's claims as part of his general duty to manage

her estate. Thus, Britton would not benefit from any such

exception.

N onplused, Britton contends that her mother's claims passed

"by operation of law" a second time when the guardian transferred

them to the children. She further asserts that this second

transfer differed from an ordinary assignment in that the probate5 See Charles, 878 S.W.2d at 205, 208 (holding that, at least

under some circumstances, a judgment creditor is not entitled to

transfer of a legal malpractice cause of action under Texas's

turnover statute); Zuniga, 878 S.W.2d at 317 & n. 5 (extending

Charles to all legal malpractice claims).

6 To be fair to the probate court, we note that it

transferred a broad class of claims, including all those the

mother had against professionals. As a result, it did not

directly address the question of whether the guardian should

transfer the mother's legal malpractice claims.

7 court approved the guardian's request to assign the claims and then

ordered him to do so, pursuant to the probate code.

Under Texas law, the mere fact that a court has general

statutory authority to order the transfer of property does not

permit it to order the transfer of a lega l malpractice claim. 5

Thus, while a probate court order directing the transfer of such a

claim might be said to effect an assignment "by operation of law,"

it would also do so in derogati on of law. Such an order would

still be entitled to full res judicata and collateral estoppel

effect, but, as discussed below, defendants are not bound by the

probate court's order. Absent such preclusive effect, the order is

ineffectual to the extent that it purports to assig n legal

malpractice claims. 6

C.

Britton contends that her contract, fraud, conspiracy, and

deceptive trade practice s claims are "independent" of her

negligence and fiduciary duty claims and therefore escape Texas's

ban on assignability. In the district court, however, Britton

filed a document stating that "[t ]his is a legal malpractice

action...." In addition, each of Britton's claims alleges that the8

defendant attorneys acted improperly in the course of per forming

legal services for a client. Finding no reason to depart from

Britton's own characterization of her suit, we conclude that all of

her claims assert legal malpractice and are non-assignable.

III.

Britton contends that the probate court's transfer order is

res judicata as to defendants' non-assignability defens e. She

explains that because the probate court decided that the mother's

claims should be transferred to her children, defendants could have

contested the transfer's validity in that court.

As a thre s hold matter, defendants contend that Britton's

argument is properly analyzed un der the principle of collateral

estoppel, not res judicata, because she requests preclusion only as

to a single i ssue—the defense of non-assignability—not an entire

cause of action. Because a Texas court rendered the earlier

judgment, Texas law governs its preclusive effect. S ee Heller Fin.

v. Grammco Computer Sales, 71 F.3d 518, 523 n. 4 (5th Cir .1996).

Texas uses res judicata as a bar not only to causes of action, but

also to at least some defenses that could have been raised in the

earlier proceeding. See, e.g., Jones v. Strauss, 800 S.W.2d 842,

844 (Tex.1990). While Britton's res judicata argument is a weak

one, it is at least within the scope of that doctrine.

The doctrine of res judicata does not preclude d efendants

from contesting the transfer's validity, however, because it bars

litigation only between the parties to the earlier suit and those

in privity with them. S ee Getty Oil Co. v. In surance Co. of N.9

Am., 845 S.W.2d 794, 800 (Tex.1992), cert. denied, --- U.S. ----,

114 S.Ct. 76, 126 L.Ed.2d 45 (1993). Defendants were not parties

to the probate proceeding and did not represent any parties at the

time the court approved the assignment. In fact, the probate

court's transfer order specifically names the people it "shall be

binding upon"; defendants are not among them.

Britton contends nonetheless that defendants were

"parties-in-interest" to the proceeding because they were creditors

of the estate. While Britton is correct that Texas law generally

permits creditors of an estate to participate in probate

proceedi ngs, s ee T EX .P ROB .C ODE A NN

. §§ 3(r), 10 (Vernon 1980), at

least one Texas court has restricted the participation of

"interested persons" to matters in which their own interests are

materially affected. S ee Guardianship of Price v. Murfee, 408

S.W.2d 756, 758 (Tex.Civ.App.—Amarillo 1966, no writ). As the

judgment itself enumerates those it intends to bind, we decline to

expand its scope indiscriminately to all creditors of the estate.

In summary, we conclude that in Texas, most if not all claims

of legal malpractice, including this one, cannot be assigned.

Britton has no standing, and the judgme nt, accordingly, is

AFFIRMED.