                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-18-00057-CV

TINA LEA HAIGHT, INDIVIDUALLY
AND AS EXECUTRIX OF THE ESTATE
OF GRADY MARTIN HAIGHT, DECEASED,
                                                           Appellants
v.

KOLEY JESSEN PC, LLO, DAVID DVORAK,
AND DAVID MAYER,
                                                           Appellees



                           From the 40th District Court
                               Ellis County, Texas
                              Trial Court No. 91058


                          MEMORANDUM OPINION


      Appellants, Tina Haight, individually and as Executrix of the Estate of Grady

Martin Haight, and Mark Fankhauser, as the Dependent Administrator with Will

Annexed of the Estate of Grady Martin Haight, filed suit against Appellees, Koley Jessen
P.C., L.L.O., David Dvorak, and David Mayer1 for legal malpractice. The trial court

granted Appellees’ traditional motion for summary judgment. We affirm.

                                         BACKGROUND FACTS

        Tina Haight and Grady Martin Haight (Marty) married in December 1998, and

Tina filed for divorce in May 2009. Marty passed away on March 27, 2014, and at the time

of his death the divorce proceedings were still pending. The Haights owned several

businesses, including a roofing business and other businesses related to repair of storm

damaged properties.         Marty ran the Haight businesses, and he hired the law firm of

Koley Jessen P.C., L.L.O. to represent some of the Haight businesses. Marty and Tina

were each represented by separate counsel for the divorce proceedings.

        After Marty’s death, David Dvorak and David Mayer, partners in the Koley Jessen

firm, began communicating with Tina and her personal lawyers concerning the sale of

the Haight businesses. At the time Marty’s will was admitted to probate, Tina was

appointed Independent Executor of Marty’s estate. Tina later resigned as Independent

Executor of the estate, and Mark Fankhauser was appointed as Temporary Administrator

of the estate. Fankhauser was later appointed Administrator with Will Annexed of the

Estate of Grady Martin Haight, deceased. Fankhauser was substituted as a party in this

cause of action. Tina eventually entered into an agreement for the sale of her interest and




1There were other defendants who are not party to this appeal. The trial court disposed of all remaining
parties and claims in an agreed final order of dismissal with prejudice.
Haight v. Koley Jessen PC, LLO, et al.                                                           Page 2
the estate’s interest in all of the Haight businesses. After the agreement was finalized,

Tina Haight, individually and as Executrix of the Estate of Grady Martin Haight, filed

suit in district court against Appellees and others for legal malpractice. Tina ultimately

settled her disputes with the other defendants.

                                            ISSUES ON APPEAL

        Tina brings four issues on appeal. She argues that 1) the trial court lacked

jurisdiction to hear the appeal; 2) the trial court erred in granting Appellees’ motion for

summary judgment; 3) the trial court erred in striking her summary judgment evidence;

and 4) the trial court erred in granting summary judgment on all claims if it could only

be sustained on conclusively negating reliance. Fankhauser brings four issues on appeal

and argues that 1) summary judgment evidence was not properly before the court; 2)

Appellees’ failure to comply with Rule 1.07 of the Texas Disciplinary Rules of

Professional Conduct precludes summary judgment in their favor; 3) the trial court

improperly granted summary judgment because there was conflicting testimony; and 4)

Appellees cannot rely on quasi-estoppel as a basis for summary judgment.

                                         TINA’S ISSUES ON APPEAL


JURISDICTION

        In the first issue, Tina argues that the district court did not have jurisdiction over

the case. Ellis County does not have a statutory probate court. The Texas Estates Code

provides that a probate proceeding includes any matter related to the settlement,


Haight v. Koley Jessen PC, LLO, et al.                                                  Page 3
partition, or distribution of an estate. See TEX. EST. CODE ANN. § 31.001 (West 2014). A

matter related to a probate proceeding in a county in which there is no statutory probate

court, but in which there is a county court at law exercising original probate jurisdiction,

includes a claim brought by a personal representative on behalf of an estate. See TEX. EST.

CODE ANN. § 31.002 (West 2014).

        Tina contends that the present case is a matter related to the Haight probate

proceeding because she brought the suit on behalf of herself as well as in her capacity as

the Independent Executor of the Estate of Grady Martin Haight. Tina argues that because

Ellis County Court, the County Court at Law of Ellis County, and the County Court at

Law No. 2 of Ellis County are the only courts with original probate jurisdiction in Ellis

County, the District Court lacked jurisdiction to hear this case.

        In In re Hannah, relator had a relationship with the decedent and was named in his

2009 and 2010 wills. In re Hannah, 431 S.W.3d 801 (Tex. App.—Houston [14th Dist.] 2014,

orig. proceeding). However, decedent executed a will in 2012 that did not include relator.

In re Hannah, 431 S.W.3d at 804. After the death of the decedent, the 2012 will was

admitted to probate and relator did not contest the will. In re Hannah, 431 S.W.3d at 805.

Relator filed suit in district court for tortious interference with inheritance, slander, and

conspiracy. Id.

        In In re Hannah, the court held that a cause of action brought in the district court

was not a "matter related to a probate proceeding" within the scope of Section 31.002 of


Haight v. Koley Jessen PC, LLO, et al.                                                 Page 4
the Estates Code. In re Hannah, 431 S.W.3d at 809. The court focused on the nature of the

damages sought, and held that because the suit sought damages which would, if

awarded, be satisfied from the defendant's individual assets rather than from any

property of the estate, the claims were not related to a probate proceeding. In re Hannah,

431 S.W.3d at 809-811.

        In Narvaez, the court agreed with the court in Hannah that the nature of the claims

and the relief sought must be examined when determining whether the probate court has

jurisdiction of a non-probate claim. Narvaez v. Powell, 564 S.W.3d 49, 56 (Tex. App.—El

Paso 2018, no pet). In Narvaez, a group of heirs filed suit in district court against attorneys

alleging breach of fiduciary duties and legal malpractice. Narvaez v. Powell, 564 S.W.3d

at 52. The court in Narvaez found that a legal malpractice claim cannot be characterized

as a probate proceeding within the meaning of Section 31.001 or related to a probate

proceeding as that term is defined by Section 31.002 of the Estates Code. Narvaez v. Powell,

564 S.W.3d at 57.

        Tina argues that this case is similar to In re Perkins, No. 10-17-00311-CV, 2017 LEXIS

12039 (Tex. App. —Waco December 27, 2017, no pet.) (mem. op.). In Perkins, a cause of

action was brought in the district court of Walker County involving a dispute between

sisters over the administration of their mother’s estate. One sister filed suit in district

court asserting that the other sister breached her fiduciary duty by refusing to sell

property and distribute the money. In re Perkins, 2017 LEXIS 12039 at *2. This Court found


Haight v. Koley Jessen PC, LLO, et al.                                                   Page 5
that the cause of action was over a matter related to probate proceedings because the

claim arose out of the representative’s performance of her duties and that the County

Court at Law of Walker County was the proper court in which to bring the claim. In re

Perkins, 2017 LEXIS 12039 at *3-4.       However, Tina’s post probate claim is for legal

malpractice and is not over a matter related to the probate proceedings.

        Moreover, Perkins was a mandamus proceeding in which the party asked this

Court to compel the district court to abate the proceeding until the estate matters were

resolved. In re Perkins, 2017 LEXIS 12039 at *6. Tina filed the suit in the District Court and

stated jurisdiction was proper because the amount in controversy exceeded the minimum

jurisdictional limit of the court and the court had personal jurisdiction over the parties.

Tina did not seek to have the case transferred to the County Court at Law.

        We agree with the reasoning in Hannah and Narvaez and find that Tina’s legal

malpractice claim against Appellees is not a matter related to the probate proceeding as

she seeks monetary damages from the Appellees. We overrule Tina’s first issue.

SUMMARY JUDGMENT

        In the second issue, Tina brings multiple arguments alleging that the trial court

erred in granting Appellee’s traditional motion for summary judgment. We review a

grant of a motion for summary judgment de novo. KCM Financial LLC v. Bradshaw, 457

S.W.3d 70, 79 (Tex. 2015); Williams v. Parker, 472 S.W.3d 467, 469 (Tex. App.—Waco 2015,

no pet.) In a traditional motion for summary judgment, a movant must state specific


Haight v. Koley Jessen PC, LLO, et al.                                                  Page 6
grounds, and a defendant who conclusively negates at least one essential element of a

cause of action or conclusively establishes all the elements of an affirmative defense is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Id.

        Tina first argues that the trial court relied upon summary judgment evidence that

was not properly before the court. The parties had an Agreed Protective Order for the

filing of confidential information.      Pursuant to the Protective Order, documents

designated as confidential information were to be filed in a separate envelope, sealed,

and labeled “Filed Under Seal.” The record shows that Appellees’ summary judgment

evidence was filed pursuant to the Protective Order. Tina argues that the filing did not

comply with TEX. R. CIV. P. 76a and that the evidence was not before the trial court. At

the hearing on the motion for summary judgment, Tina waived any objections to the

Appellees’ summary judgment evidence by failing to object to the materials or the

manner in which they were filed. The record shows that the summary judgment evidence

was before the trial court and is part of the appellate record. The complaint was not

preserved for appellate review. TEX. R. APP. P. 33.1(a).

        Tina next argues that the trial court erred in granting Appellee’s motion for

summary judgment based upon the evidence in the summary judgment record. Tina

further contends that the trial court erred in concluding that the affirmative defenses of

release and estoppel were established. When the trial court's judgment does not specify

which of several grounds proposed was dispositive, we affirm on any ground raised in


Haight v. Koley Jessen PC, LLO, et al.                                              Page 7
the motion that has merit and was preserved for review. See Joe v. Two Thirty Nine J.V.,

145 S.W.3d 150, 157 (Tex. 2004).

        In the motion for summary judgment, Appellees argued that Tina released any

and all claims against them. The parties entered into a settlement agreement which states:

        Effective upon payment to Seller pursuant to the Closing Statement (Exhibit
        B-3) and Closing of the Transaction, Seller, on her behalf and on behalf of
        the Estate, present and former spouses, dependents, agents,
        representatives, heirs, executors, administrators, trustees, partners,
        successors, assigns, attorneys, accountants, insurers, lenders and all
        persons acting by, through, under, or in concert with her, past or present
        (collectively, the “Seller’s Releasors”), fully and finally releases and forever
        discharges Buyers and their present and former spouses, dependents,
        agents, representatives, heirs, executors, administrators, trustees, partners,
        successors, assigns, attorneys, accountants, insurers, lenders and all
        persons acting by, through, under, or in concert with them, past or present,
        and the Companies and their respective parents, entities, subsidiaries, and
        affiliates, past and present, as well as their former and present directors,
        officers, managers, owners, shareholders, members, managers, partners,
        associates, employees, contractors, customers, predecessors, successors,
        agents, representatives, insurers, successors, assigns, attorneys, including
        but not limited to the law firms Koley Jessen, P.C., L.L.O. and Wray, Willett,
        & Stoffer, PLLC, accountants, including but not limited to the accounting
        firm Nosal Professional Group, insurers, lenders and sureties, (collectively,
        the “Seller’s Releasees”), of any and from any and all manner of actions,
        causes of action, claims for relief, in law or in equity, statutory relief,
        statutory claims, statutory violations, suits, liens, administrative remedies,
        injunctions, debts, torts, remuneration for services, breach of covenant of
        good faith and fair dealing, reports, applications, licensing, practices and
        procedures, frauds, contracts, promissory notes, agreements, promises,
        breaches of fiduciary duties, tortious interference with contracts, fraudulent
        inducement, defamation, violation of a law now or hereafter recognized,
        conversion, mismanagement, liabilities, claims, demands, wages,
        commission and expense claims, damages, interest, losses, charges,
        liabilities, invoices, penalties, liens, costs, fees or expenses, of any nature
        whatsoever, known or unknown, fixed or contingent …which the Seller’s
        Releasors or any of them now have or have ever had against the Seller’s
Haight v. Koley Jessen PC, LLO, et al.                                                     Page 8
        Releasees or any of them that arise out of or are in anyway related to the
        Disputes, the Relationship, the Equity, any matter discussed herein or by
        reason of any and all acts, omissions, events or facts occurring or existing
        as of the date hereof. …

The release is signed by Tina individually and as Independent Executrix of the Estate of

Grady Martin Haight.

        A release is a contractual arrangement that operates as a complete bar to any later

action based upon matters covered in the release. Naik v. Naik, 438 S.W.3d 166, 174 (Tex.

App. —Dallas 2014, no pet.). To release a claim effectively, the releasing instrument must

"mention" the claim to be released. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938

(Tex.1991); Naik v. Naik, 438 S.W.3d at 175. However, it is not necessary for the parties to

anticipate and explicitly identify every potential cause of action relating to the subject

matter of the release. Naik v. Naik, 438 S.W.3d at 175. Rather, "a valid release may

encompass unknown claims and damages that develop in the future." Id.

        The Settlement Agreement and Release was part of the summary judgment

evidence admitted without objection and considered by the trial court. The release signed

by Tina specifically releases the parties’ attorneys and the Koley Jessen law firm. The

release included all causes of action and claims for relief. The release operates as a bar to

Tina’s claims.

        Tina further contends that the release was obtained through trickery, that she did

not understand what she was signing, and that she signed “naked signature pages” that

did not contain the terms of the agreement. The law presumes that the party knows and
Haight v. Koley Jessen PC, LLO, et al.                                                 Page 9
accepts the contract terms. National Property Holdings, L.P. v. Westergren, 453 S.W.3d 419,

425 (Tex. 2015). The record shows that Tina’s attorney’s read the provisions of the

agreement to her.        There is an acknowledgment signed by Tina that states “THE

FOREGOING SETTLEMENT AND MUTUAL RELEASE AGREEMENT HAS BEEN

READ AND FULLY UNDERSTOOD BEFORE THE SIGNING OF THE AGREEMENT.”

The trial court did not err in granting Appellees’ motion for summary judgment. We

overrule Tina’s second issue. Further, since we find that the trial court did not err in

granting summary judgment because Tina’s claims were barred by the release, we need

not address Tina’s fourth issue. TEX. R. APP. P. 47.1.

SUMMARY JUDGMENT EVIDENCE

        In the third issue, Tina argues that the trial court erred in sustaining Appellees’

objection to her summary judgment evidence and striking the evidence. Appellees

objected to Tina’s summary judgment evidence, specifically Paragraph 17 of Tina’s

affidavit offered as Exhibit 31. Appellees argued that the “paragraph is a sham because

it contradicts Tina’s deposition testimony that she relied upon her own attorneys in

deciding whether to enter in the transaction at issue.” The trial court sustained the

objection and struck Paragraph 17 of Exhibit 31.

        Although we generally review summary judgments de novo, a trial court's refusal

to consider evidence under the sham affidavit rule should be reversed only if it was an

abuse of discretion. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). This standard


Haight v. Koley Jessen PC, LLO, et al.                                              Page 10
of review reflects the deference traditionally afforded a trial court's decision to exclude

or admit summary judgment evidence. Lujan v. Navistar, Inc., 555 S.W.3d at 85. A trial

court may conclude that a party does not raise a genuine fact issue by submitting sworn

testimony that materially conflicts with the same witness's prior sworn testimony, unless

there is a sufficient explanation for the conflict. Lujan v. Navistar, Inc., 555 S.W.3d at 87.

        In paragraph 17 of her affidavit, Tina stated that she relied upon representations

made to her by Koley Jessen attorneys and others when deciding whether to enter into

the transaction to sell the Haight businesses. However, the record shows that Tina

previously stated that she relied on her own counsel during negotiations. The trial court

did not abuse its discretion in striking the summary judgment evidence. We overrule

Tina’s third issue.

                                 FANKHAUSER’S ISSUES ON APPEAL

SUMMARY JUDGMENT EVIDENCE


        In his first issue, Fankhauser argues that the trial court relied upon summary

judgment evidence that was not properly before the court. As discussed in Tina’s second

issue, the parties had an Agreed Protective Order for the filing of confidential

information. At the hearing on the motion for summary judgment, Tina and Fankhauser

waived any objections to the Appellees’ summary judgment evidence by failing to object

to the materials or the manner in which they were filed. The record shows that the

summary judgment evidence was before the trial court and is part of the appellate record.


Haight v. Koley Jessen PC, LLO, et al.                                                  Page 11
The complaint was not preserved for appellate review. TEX. R. APP. P. 33.1(a). We

overrule Fankhauser’s first issue.

PROFESSIONAL CONDUCT

        Fankhauser argues in his second issue that the trial court was precluded from

granting summary judgment in Appellees’ favor because Koley Jessen failed to comply

with Rule 1.07 of the Texas Disciplinary Rules of Professional Conduct. Rule 1.07

provides that “a lawyer shall not act as an intermediary between clients unless the lawyer

consults with each client concerning the implications of the common representation …

and obtains each client’s written consent to the common representation.”                TEX.

DISCIPLINARY RULES PROF’L CONDUCT R. 1.07 (a) reprinted in TEX. GOV’T CODE ANN., tit. 2,

subtit. G, app.A.

        Issues not expressly presented to the trial court by written motion, answer or other

response to the motion for summary judgment shall not be considered on appeal as

grounds for reversal. TEX. R. CIV. P. 166a(c); see Garcia v. Garza, 311 S.W.3d 28, 44 (Tex.

App. —San Antonio 2010, pet. den’d). A party cannot raise new reasons why a summary

judgment should have been denied for the first time on appeal. City of Houston v. Clear

Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex. 1979); Garcia v. Garza, 311 S.W.3d at 44.

Because this argument was not presented to the trial court, we are precluded from

reaching its merits. We overrule Fankhauser’s second issue on appeal.




Haight v. Koley Jessen PC, LLO, et al.                                                Page 12
SUMMARY JUDGMENT


        Fankhauser argues in the third issue that the trial court erred in granting

Appellee’s motion for summary judgment because a fact issue exists whether Tina

properly executed the release documents.

        In addressing Tina’s second issue on appeal, we discussed in detailed fashion the

manner in which the release was executed. We found that the release, properly signed

by Tina, operates as a bar to Tina’s claims. We further found that the law presumes that

the party knows and accepts the contract terms. National Property Holdings, L.P. v.

Westergren, 453 S.W.3d 419, 425 (Tex. 2015). Tina contends that she did not understand

what she was signing and that she signed “naked signature pages.” However, the record

shows that Tina’s attorney’s read the provisions of the agreement to her. There is an

acknowledgment signed by Tina that states “THE FOREGOING SETTLEMENT AND

MUTUAL RELEASE AGREEMENT HAS BEEN READ AND FULLY UNDERSTOOD

BEFORE THE SIGNING OF THE AGREEMENT.” The trial court did not err in granting

Appellees’ motion for summary judgment.         We overrule Fankhauser’s third issue.

Because we find that the trial court did not err in granting summary judgment because

Tina’s claims were barred by the release, we need not address Fankhauser’s fourth issue.

TEX. R. APP. P. 47.1.

                                         CONCLUSION

        We affirm the trial court’s judgment.


Haight v. Koley Jessen PC, LLO, et al.                                            Page 13
                                         JOHN E. NEILL
                                         Justice

Before Chief Justice Gray,*
       Justice Davis, and
       Justice Neill
       *(Chief Justice Gray concurs in the judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed June 12, 2019
[CV06]




Haight v. Koley Jessen PC, LLO, et al.                                            Page 14
