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 Court 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,     largely   with        their     mother's   money.     The

settlement      provided    that     the        mother's     guardian   would    not

investigate wrongdoing by either the children or lawyers and other

                                           1
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 continued 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 action against the

individual     attorneys,     asserting      that   they      violated    their

professional    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 defendants suffered from a conflict of

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

contends     that   defendants   took     advantage     of    the    mother    by

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

to 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 is


     1
      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, 

, 372 n. 3 (5th Cir.1995).

                                     2
whether 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, 

, 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 generally that "the costs to the legal

system of assignment outweigh its benefits."     

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."      City of

Garland v. Booth, 

, 769 (Tex.App.—Dallas 1995, writ

denied).

     2
      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." TEX.R.APP.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., 

, 483 (Tex.App.—San
Antonio 1993, no writ) (quoting Ohler v. Trinity Portland Cement
Co., 

, 123 (Tex.Civ.App.—Galveston 1944, no writ)).


                                   3
       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 litigation—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, Zuniga and

Booth appear to prohibit assignment altogether in order to prevent

such problems from occurring.                    See 

("Ultimately, to allow assignment would make lawyers reluctant—and

       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., 

, 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, 

, 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, 

, 711 (Tex.App—Corpus Christi 1992, writ denied).
       Zuniga, however, expressly overruled that portion of
       Stonewall Surplus. See 

.

            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, 

(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
perhaps unwilling—to represent defendants with inadequate insurance

and assets.");      

(reasoning that "to allow

assignability of such claims would relegate the legal malpractice

action to the marketplace and convert it to a commodity to be

exploited").4

       Even if the Texas 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 defraud 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 argues that the assignment is valid because her


       4
      Zuniga and Booth both look to the leading opinion on this
subject, Goodley v. Wank & Wank, Inc., 

, 

(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.

       

(emphasis added).

                                     5
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." Ellwanger v. Budsberg (In re Ellwanger), 

,

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, not 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.

       Nonplused, 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 probate


                                      6
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 legal 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 derogation 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   assign    legal

malpractice claims.6

                                       C.

         Britton contends that her contract, fraud, conspiracy, and

deceptive     trade    practices     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 the

     5
      See 

, 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); 

& 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
defendant attorneys acted improperly in the course of performing

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 defense.      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 threshold matter, defendants contend that Britton's

argument is properly analyzed under the principle of collateral

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

to a single issue—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. See Heller Fin.

v. Grammco Computer Sales, 

, 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, 

,

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 defendants

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.    See Getty Oil Co. v. Insurance Co. of N.


                                 8
Am., 

, 800 (Tex.1992), cert. denied, --- U.S. ----,

, 

(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

proceedings, see TEX.PROB.CODE ANN. §§ 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.           See Guardianship of Price v. Murfee, 

, 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    judgment,    accordingly,     is

AFFIRMED.




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