Opinion

Opinion issued September 22, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-08-01029-CV

———————————

David LeBlanc, hedy leblanc, leblanc family investments limited

liability company, shreveport gp, llc, shreveport doctors hospital 2003, ltd.,

and shreveport hospital management, inc. , Appellants

V.

B. John

Lange, III and Ethicus Healthcare Group, LLC , Appellees

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Case No. 2005-79458

O P I N I O N

Appellants

David LeBlanc, Hedy LeBlanc, LeBlanc Family Investments Limited Liability

Company, Shreveport GP, LLC, Shreveport Doctors Hospital 2004, Ltd., and

Shreveport Hospital Management, Inc. (collectively, “LeBlanc”) challenge the

trial court’s rendition of summary judgment in favor of appellees B. John

Lange, III (“Lange”) and Ethicus Healthcare Group, LLC (“Ethicus”) in LeBlanc’s

suit against Lange and Ethicus for declaratory judgment, breach of fiduciary

duty, legal malpractice, deceptive trade practices, negligent misrepresentation

and conspiracy. [1] In five issues, LeBlanc contends that the

trial court erred in concluding as a matter of law that: (1) there was no

attorney-client relationship between LeBlanc and Lange; (2) there was no

“special relationship” between LeBlanc and Lange that gave rise to a fiduciary

duty; (3) the settlement agreement at issue here was fair; (4) Lange did not

breach a formal or informal fiduciary duty to LeBlanc; and (5) Lange was

entitled to summary judgment on the issues of illegality, duress, and

unconscionability.

We

affirm.

Background

This

suit arises out of a personal and business association that went bad. Lange, an attorney, went into business with

LeBlanc, a businessman and long-time friend, and they formed several corporate

entities together. When the interests of

LeBlanc diverged from those of Lange, the two fell out and this lawsuit ensued.

A. The

Relationship Between LeBlanc and Lange

1. Relationship Between LeBlanc and Lange Begins

In 1987, Lange, who was a

partner in the corporate section of Andrews Kurth, came to be acquainted with

LeBlanc, who was employed with a healthcare company that was a client of

Lange’s. Lange and LeBlanc’s

professional association developed into a social friendship, and the two men

went hunting together, golfed together, and on some occasions attended the same

family events. According to Lange, the

two men “engaged in business and social matters together at all times during

[their] 18 year relationship.”

2. LeBlanc Founds LifeCare and LifeCare Retains

Lange

LeBlanc

co-founded LifeCare Hospital (“LifeCare”) in 1992. Over the next 13 years, LifeCare grew from a

small hospital into a company that managed other long-term acute care hospitals

in twenty-two locations. During that

time, LifeCare retained Lange to represent it in various corporate

transactions. LeBlanc stayed with

LifeCare until 2003, when he was terminated as CEO. LeBlanc contends that Lange was his personal

lawyer while he was CEO of LifeCare; Lange denies it.

When

LeBlanc was terminated as CEO of LifeCare in 2003, he sought Lange’s aid in

obtaining a lawyer for a number of disputes he had with LifeCare. Lange told LeBlanc that he could not

represent him in his disputes with LifeCare, but instead introduced him to the

Houston law firm of Franklin, Cardwell & Jones, P.C. (“FCJ”). LeBlanc retained FCJ in March 2003 to

represent him in his suits against LifeCare in Texas, and he retained the New

Orleans firm of Blue Williams, LLP to represent him in his suits against

LifeCare in Louisiana. Those firms

continuously represented LeBlanc in all LifeCare matters until August 2005,

when LifeCare was sold. LeBlanc’s lead

attorney at FCJ was Greg Jones.

3.

LeBlanc Forms the Hospital

Partnership and the Management Company to Acquire and Manage the Hospital;

Lange Represents LeBlanc for the Acquisition

By

2003, when LeBlanc was terminated from LifeCare, Lange had joined the firm of

Jackson Walker, L.L.P. Lange had an

extensive background in serving health care clients in buying and selling

hospitals, surgery centers, and other health care facilities and in forming

companies to develop projects. LeBlanc

engaged Lange and Jackson Walker to help him acquire a healthcare facility he

could manage. With the aid of Lange and

Jackson Walker, LeBlanc formed a Texas limited partnership called Shreveport

Doctors Hospital 2003, Ltd. (the “Hospital Partnership”). Lange also created Shreveport Hospital

Management, Inc. (the “Management Company”), which initially served as the

general partner and manager of the Hospital Partnership. Lange was the president and sole manager of

the Management Company. The Hospital Partnership

acquired Doctors Hospital (the “Hospital”) in Shreveport, Louisiana in April

2004. LifeCare was the sole tenant of

the Hospital pursuant to a 2004 lease that would be effective until June 2006. Lange and Jackson Walker charged LeBlanc more

than $400,000 in attorney’s fees for these services.

4. Lange Becomes a Full-Time Business Associate of

LeBlanc

In

June 2004, after the acquisition of the Hospital in April, Lange left Jackson

Walker to join LeBlanc as an equal manager of the Hospital. Lange, through his family trust, Perry Mound

Trust (“PMT”), and LeBlanc became minority limited partners in the Hospital

Partnership. Lange and LeBlanc, through

their family entities, including the LeBlanc Family Investment Limited

Liability Company, were also the only shareholders, officers, and directors of

the Management Company.

Lange

testified by deposition that when he left his law practice at Jackson Walker in

June 2004 to become LeBlanc’s full-time business associate in running the

Hospital he told LeBlanc that he was no longer his lawyer. LeBlanc’s testimony similarly confirms that

he understood Lange to be “looking for an opportunity to get out of the

lawyering business” and, instead, to handle the legal side of the business

while LeBlance handled the operational side.

However, LeBlanc asserts that Lange gave him no formal notice that he

would no longer represent him personally.

5.

LeBlanc and Lange Pursue

Long Term Acute Care Business and Form Ethicus

After

the purchase of the Hospital, LeBlanc and Lange set out to engage in the long

term acute care (“LTAC”) business. They

planned to create Ethicus and intended it to be an LTAC management company much

like LifeCare. The plan was for Ethicus

to open its first LTAC center in the Hospital after LifeCare’s 2004 lease

expired.

LeBlanc and Lange needed investors

in Ethicus. LeBlanc still owned stock in

LifeCare, the business he had helped develop.

This stock, which was valuable but illiquid, would become very valuable

when LifeCare was sold. Accordingly, in

order to attract investors, LeBlanc agreed to secure or pay back any

investments made in the Ethicus healthcare venture with the future sale

proceeds of his LifeCare stock. Under

these terms, John Styles and Ronald Colichia agreed to invest in the venture. As security for this guarantee, LeBlanc

signed a “Collateral Pledge Agreement” pledging his LifeCare stock to Styles

and Colichia. Ultimately, Lange drew up

the papers and directed the creation of Ethicus. Ethicus consisted of four members: LeBlanc, Lange, Styles, and Colichia.

Lange’s first task after he joined

the management of the Hospital in June 2004 was to negotiate an extension of

the Hospital’s lease with LifeCare, its sole tenant, whose lease was about to

expire. LeBlanc was excluded from these

negotiations due to his substantial ownership interest in LifeCare, which

created a potential conflict of interest with the Hospital.

In

December 2004, on the advice of tax accountants, the Management Company was

replaced by a new Texas limited liability company, Shreveport GP, LLC

(“SGP”). As with the Management Company,

SGP’s only officers and board members (called “managers,” rather than

“directors”) were LeBlanc and Lange. As

Ethicus was intended to replace LifeCare as the lessee of the Hospital, SGP was

now the entity which had authority to lease out the Hospital.

6.

LeBlanc Sells His LifeCare Interest

and Enters the Settlement Agreement

In 2005, LeBlanc was presented with

the opportunity to resolve his dispute with LifeCare by the sale of the company

to The Carlyle Group (“Carlyle”), which would enable him to sell his LifeCare

stock. By the first quarter of 2005,

LifeCare and Carlyle were in negotiations over the sale of LifeCare’s stock to

Carlyle. LeBlanc was represented in

these negotiations by Greg Jones and others at FCJ, as well as by Guice

Giambrone at Blue Williams. An agreement

was reached for Carlyle to purchase LifeCare for more than $500 million in

cash. As the holder of about 10% of

LifeCare’s equity, LeBlanc stood to earn approximately $50 million for his

LifeCare stock if the sale went through.

As conditions of the sale, however,

Carlyle insisted on two terms: (1) the execution of a non-competition agreement

by LeBlanc that would bar him from having anything to do with any LTAC business

nationwide for a period of five years; and (2) a one-year extension of

LifeCare’s lease at the Hospital, on the same terms as the 2004 lease.

Lange believed that both the

non-competition agreement and the lease extension were harmful to the Hospital

and to Ethicus, which had intended to lease the Hospital after LifeCare’s lease

expired. Additionally, if LeBlanc signed

the non-competition agreement, LeBlanc would be required to sever all ties with

Ethicus in its plans to go into the LTAC business. The outside investors, as well as Lange,

would be deprived of LeBlanc’s business experience and connections in the LTAC community. Furthermore, the non-competition agreement

would preclude the Hospital from leasing to any LTAC business other than

LifeCare, including Ethicus, as long as LeBlanc was associated with the

Hospital. Moreover, the lease-extension

provision would have the effect of precluding Ethicus from opening an LTAC

center in the Hospital before January 2007 at best (and not even then if

LeBlanc were still affiliated with the Hospital). Ethicus would lose at least a year’s profit,

estimated by LeBlanc’s son Chris — an Ethicus employee at the time — to be about $4 million. Thus, the

sale of LifeCare, burdened with those provisions, would benefit LeBlanc in the

amount of $50 million and more, while operating negatively on Ethicus and the

Hospital, two entities that he and Lange co-managed. These conditions presented a conflict of

interest between LeBlanc personally, on the one hand, and Ethicus and the

Hospital, which he and Lange co-managed, on the other.

LeBlanc did not have the power to

comply unilaterally with Carlyle’s conditions.

As an interested party, he could not sign the lease extension. Instead, only Lange, as the sole

disinterested principal of the Hospital, could commit the Hospital to an

extension of the LifeCare lease. LeBlanc

had to approach Lange to fulfill Carlyle’s conditions.

Lange thus became involved in the

matters involving the lease extension and the non-competition agreement on

behalf of the Hospital and Ethicus. He

and LeBlanc discussed a number of options to solve the conflict of interest.

Lange asked for and received a draft of the non-competition agreement and, in

an email dated June 12, 2005, addressed “quick comments” to LeBlanc on the

draft agreement. These comments were

also sent to the officers of the Hospital and Ethicus and to a paralegal at

FCJ, Renee Hepler, who was then working on LeBlanc’s file and whom Lange

subsequently hired for Ethicus. In the

comments, Lange pointed out problems the non-competition agreement could create

for the Hospital and Ethicus.

On June 27, 2005, Lange wrote to

Greg Jones at FCJ, LeBlanc’s lead attorney in LeBlanc’s dispute with LifeCare

and the sale of LeBlanc’s LifeCare stock, and to Hepler, requesting the most

recent draft of the non-competition agreement “to look at it from the

standpoint of the Hospital Partnership and Ethicus.” In it, Lange pointed out the Hospital’s and

Ethicus’s objections to the agreement.

He followed up on this email the next day with another email to Jones.

In it, Lange stated that, with respect to the proposed lease extension, “David

[LeBlanc] doesn’t have the authority to without my consent to agree to anything

on that.” Therefore, he told Jones, “we

do need to address my comments sent yesterday regarding [the relevant section

of the lease]” and, “[a]s for the rest

of the non-compete and release, that is between you guys,” i.e., between

LeBlanc and his attorneys at FCJ and Blue Williams.

In addition, Lange sent a two-page

memo to LeBlanc, which stated,

I want to put in writing my

reasons for the position I’m taking with both Doctors Hospital and Ethicus in

connection with the realization of your sale of your interest in LifeCare and

execution of your nationwide non-compete agreement. As a Manager of Shreveport GP, LLC, Ethicus

Healthcare Group, LLC, and Ethicus Healthcare Management, LLC, I have a duty to

each of those entities and their respective businesses; accordingly my actions

are intended to fully fulfill those duties.

Finally, in July 2005, at a meeting

with Lange, Styles, and LeBlanc’s son Chris, who was an Ethicus employee and

LeBlanc’s emissary, the outlines of a Settlement Agreement that could address

all parties’ interests with respect to the non-competition agreement and lease

extension were agreed upon by the interested parties. Two days later, Lange e-mailed LeBlanc a

draft of the Settlement Agreement. The

Settlement Agreement provided that the Hospital would extend the lease to

LifeCare, thus paving the way for the sale of LifeCare to Carlyle and LeBlanc’s

realization of $50 million on the sale of his stock. It also provided that LeBlanc make a $3 million

payment to Ethicus to compensate it for its loss due to the extension of the

lease. The $3 million compensation

figure was offered by Styles based on Chris LeBlanc’s estimate that Ethicus’s

lost profit for its first full year as licensed LTAC facility in the Hospital

would be about $4 million. The agreement

further provided that Syles and Colichia would release LeBlanc’s LifeCare stock

from its pledge to Ethicus so that the sale of the stock to Carlyle could go

forward.

Over the next few days, LeBlanc

reviewed numerous drafts of the agreement and had numerous telephone

conversations with Lange about it. At

the same time, LeBlanc was being pressured by Carlyle to resolve his differences

with his business associates so that an executed non-competition agreement

could be in place in advance of the closing of the LifeCare sale.

LeBlanc signed the Settlement

Agreement on July 14, 2005. As required

by the agreement, Lange immediately signed and forwarded to Carlyle the lease

extension that he had negotiated with LifeCare, and Styles and Colichia

released the pledge on LeBlanc’s LifeCare stock.

Five days later, on July 19,

LeBlanc signed the non-competition agreement.

LeBlanc received the initial installment on the sale of his LifeCare

stock, about $45 million, on August 12, 2005.

All

of the foregoing facts support Lange’s statements that he was not representing

LeBlanc personally, that, instead, he was representing the Hospital and Ethicus

or was dealing at arm’s length with LeBlanc as one businessman with another,

and that LeBlanc was represented with respect to all LifeCare matters by FCJ

and Blue Williams.

LeBlanc

produced no controverting summary judgment evidence showing that he understood

Lange to be representing his interests, rather than those of the Hospital or

Ethicus, with respect to the sale of his interest in LifeCare, the extension of

the lease, and the execution of the non-competition agreement. Nor did LeBlanc produce any evidence that

Lange, and not FCJ, was representing his interests with respect to the

non-competition agreement when Lange sent emails to Jones and Hepler taking the

position of the Hospital and Ethicus against LeBlanc.

To

the contrary, corroborating Lange’s testimony, Jones testified by affidavit

that he was the lead attorney for LeBlanc in litigation in Dallas County, Texas

related to LeBlanc’s claim of ownership in LifeCare and that the case

ultimately settled on August 8, 2005, culminating in LeBlanc’s recovery and the

sale of his stock for more than $50 million.

Jones averred that LeBlanc was also represented in the stock sale “by

several other lawyers, including Randolph Ewing of FCJ and Guice Giambrone of

the Louisiana firm of Blue Willliams, LLP.”

Jones’ affidavit also confirmed his belief that Lange “was acting on

behalf of the Hospital and Ethicus and not on behalf of Mr. LeBlanc” because

“Mr. LeBlanc had interests that were separate from and adverse to the Hospital

and Ethicus.” Jones further averred that

he recalled nothing in his dealings with Lange or LeBlanc that suggested the

existence of an attorney-client relationship between Lange and LeBlanc in July

2005.

According to the Settlement

Agreement, LeBlanc was supposed to wire the $3 million to Ethicus on the next

business day after the closing of the stock sale, August 15. Instead, on that day, LeBlanc filed this suit

to set aside the Settlement Agreement in Collin County, contrary to the

exclusive venue selection provision of the Settlement Agreement.

B. The Summary Judgments

LeBlanc alleged claims against Lange, PMT, Ethicus, Styles,

Colichia, and Hepler for declaratory judgment, breach of fiduciary duty, legal

malpractice, violations of the Deceptive Trade Practices Act (“DTPA”), negligent

misrepresentation, and conspiracy.

Ethicus counterclaimed for breach of contract and fraudulent inducement

to enter the Settlement Agreement.

On August 28, 2006, Lange, PMT, and

Hepler filed a summary judgment motion that sought to dismiss LeBlanc’s claims

for breach of fiduciary duty. On the

same day, Ethicus filed a motion for summary judgment on LeBlanc’s declaratory

judgment claim and Ethicus’s counterclaim for breach of contract. On September 11, 2006, LeBlanc filed a

combined response to these motions.

These motions were heard on September 18, 2006. After the hearing, both sides moved to

supplement their respective summary judgment evidence.

On February 26, 2007, the trial

court granted Ethicus partial summary judgment on LeBlanc’s declaratory

judgment claim seeking to void the Settlement Agreement, thereby dismissing

LeBlanc’s claims against Lange for legal malpractice, breach of fiduciary duty,

breach of contract, DTPA violations, fraud, negligent misrepresentation, and

conspiracy. The trial court also rendered

partial summary judgment in favor of Ethicus on its counterclaim for $3 million

for breach of contract, dismissing LeBlanc’s affirmative defenses of duress,

unconscionability, and lack of consideration.

And it granted summary judgment on all of LeBlanc’s original tort claims

against Lange. That same day, the trial

court also granted Lange’s unopposed motion to supplement the summary judgment

evidence, but it denied LeBlanc’s motion.

On December 13, 2007, Lange moved

for no-evidence and traditional summary judgment on LeBlanc’s claims of breach

of informal fiduciary duty based on a “special relationship.” Two weeks later, Ethicus moved for no

evidence summary judgment on LeBlanc’s illegality claim. LeBlanc responded to both.

On May 16, 2008, the trial court granted

these motions, holding as a matter of law that no “special relationship”

existed between LeBlanc and Lange that created a fiduciary duty, and it dismissed

LeBlanc’s affirmative defense of illegality.

LeBlanc appeals from these summary

judgments, which were finalized by the final judgment entered by the trial

court on September 24, 2008.

Summary Judgment Standard of Review

To

prevail on a summary judgment motion, a movant has the burden of proving that

it is entitled to judgment as a matter of law and that there is no genuine

issue of material fact. Tex. R. Civ. P . 166a(c); Cathey v. Booth , 900 S.W.2d 339, 341

(Tex. 1995). When deciding whether there

is a disputed, material fact issue precluding summary judgment, evidence

favorable to the non-movant will be taken as true. Nixon

v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546 , 548–49 (Tex. 1985). Every reasonable inference must be indulged

in favor of the non-movant and any doubts must be resolved in his favor. Id.

at 549 .

Attorney-Client Relationship

In

the first part of his first issue, LeBlanc asserts that the trial court erred

in rendering summary judgment against him because there is a genuine issue of

material fact as to whether an attorney-client relationship existed between

Lange and himself at the time the Settlement Agreement was executed in 2005.

The attorney-client relationship is

contractual. Vinson & Elkins v. Moran , 946 S.W.2d 381, 405 (Tex.

App.—Houston [14th Dist.] 1997, writ dism’d by agr.). An attorney must agree to render professional

services for a client. Id. In

order to establish the relationship, the parties must either explicitly or by

their conduct manifest an intent to create it.

Id. To make the determination of whether there

was an agreement or meeting of the minds to form such a relationship, courts

must use objective standards of what the parties said and did. Tanox,

Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P. , 105 S.W.3d 244, 254

(Tex. App.—Houston [14th Dist.] 2003, pet. denied). One party’s subjective belief that such a

relationship was formed is not sufficient.

See id. ; see also Span Enters. v. Wood , 274 S.W.3d 854, 858 (Tex. App.—Houston

[1st Dist.] 2008, no pet.) (“We determine whether an [attorney-client] contract

can be implied using an objective standard, . . . and we do not consider [the

parties’] unstated, subjective belief.”).

Under Texas law, an attorney-client relationship terminates upon

completion of the purpose of the employment, absent an agreement to the

contrary. Stephenson v. LeBoeuf , 16 S.W.3d 829, 836 (Tex. App.—Houston [14th

Dist.] 2000, pet. denied). LeBlanc has

produced no evidence of any tangible agreement to the contrary.

Both

parties agree that Lange represented LeBlanc in the acquisition of the Hospital

in 2003. The parties disagree, however,

about the scope and duration of that representation.

Lange claims that, prior to and

after the engagement for the acquisition of the Hospital, he never represented

LeBlanc personally. He testified that he told LeBlanc that he could not

represent him in his disputes with LifeCare, but instead introduced him to the

Houston law firm of FCJ.

The uncontroverted summary judgment

evidence shows that LeBlanc did retain FCJ in March 2003 to represent him in

his suits against LifeCare in Texas, that he retained the New Orleans firm of

Blue Williams to represent him in his suits against LifeCare in Louisiana, and

that he was represented by these attorneys in all matters related to LifeCare,

continuing through the sale of LeBlanc’s LifeCare stock to Carlyle in August

2005. The summary judgment evidence also

confirms that Lange left his law practice at Jackson Walker in June 2004, and

joined LeBlanc in managing the Hospital. Lange testified that, at that time, he told

LeBlanc that he would no longer be serving as his attorney.

There is also summary judgment

evidence that Lange subsequently represented the interests of Ethicus and the

Hospital against LeBlanc when the conflict between LeBlanc and those entitities

arose over the non-competition agreement and lease extension sought by Carlyle

in connection with its purchase of LifeCare and that Lange made his

representation of these entities and his duties to those entities known to

LeBlanc. Lange’s testimony, the email

exchanges over the non-competition agreement and lease extension in the summer

of 2005, and the memo Lange sent to LeBlanc at that time all attest that Lange

represented the interests of the Hospital and Ethicus in that dispute, as

opposed to those of LeBlanc, due to the conflict of interest between LeBlanc

and those entities and that he made his representation of those entities clear

to LeBlanc.

LeBlanc did not present evidence

contradicting Lange’s claim that Lange told him that Lange would no longer be

serving as his attorney in 2004, nor did he rebut Lange’s other summary

judgment evidence. Moreover, LeBlanc

does not contend that there were any fee agreements, written contracts, bills,

or any other tangible, written evidence of an attorney-client relationship

between Lange and LeBlanc after the conclusion of Lange’s representation of

LeBlanc during the acquisition of the Hospital while at Jackson Walker. He does, however, point to the lack of formal

notification from Lange at that time. [2]

As rebuttal, LeBlanc primarily

relies upon his own testimony that Lange had been his personal lawyer since

1987 and continued to be so through the signing of the Settlement Agreement. LeBlanc’s affidavit states that he believed

that Lange “would act in [his] best interest.” LeBlanc also points to his own deposition

testimony that “Lange was my attorney before, he’s been my attorney all along

and he was the attorney — my attorney

all the way up to the end,” as evidence of an attorney-client relationship

between Lange and himself at the time the Settlement Agreement was executed.

Texas law is clear, however, that a

party’s subjective belief is not evidence of an attorney-client

relationship. Wood , 274 S.W.3d at 858 ; Tanox,

Inc. , 105 S.W.3d at 254 . Likewise,

conclusory statements are no evidence of the matter they seek to prove. See

Dolcefino v. Randolph , 19 S.W.3d 906,

918 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (citing Lewelling v. Lewelling , 796 S.W.2d 164,

167 (Tex. 1990)). Moreover, Texas Rule

of Civil Procedure 166a(c) provides that testimony of an interested witness may

be summary judgment evidence, but only if it “could have been readily controverted.” See

Tex.

R. Civ. P. 166a(c). LeBlanc’s subjective belief cannot be readily controverted; and, thus,

his statements concerning his belief in Lange’s alleged continuing role as his

attorney do not meet the standard for competent summary judgment evidence.

LeBlanc’s affidavit also states

that he asked Lange to review and counsel him on the non-competition agreement he

was required to sign in conjunction with the sale of his LifeCare stock. The affidavit does not, however, state

whether Lange agreed to “counsel”

LeBlanc as his attorney, nor does it state what “counsel,” if any, Lange

gave. Nor is there any summary judgment

evidence that Lange counseled LeBlanc as his attorney with respect to the

non-competition agreement. Rather, the evidence

is to the contrary.

LeBlanc, however, goes on to point

out various legal actions that Lange undertook after June 2004. These are: (1) the creation of Ethicus and

the attendant legal work; (2) the creation of the documents evidencing LeBlanc’s

obligations to Ethicus’s members; (3) counsel Lange gave LeBlanc on how Ethicus

should be structured from a management standpoint; and (4) counsel Lange gave

LeBlanc on the content of the governing documents for the Management

Company. Each of these actions may have

involved legal work on the part of Lange.

LeBlanc, however, provides no summary judgment evidence that Lange

performed these actions for LeBlanc as his personal attorney. Indeed, the facts of the case establish the

contrary. LeBlanc and Lange were both

principals in the business entities concerning which Lange allegedly counseled

LeBlanc. Lange had also operated as

general counsel for the Hospital. In

both capacities, Lange owed fiduciary duties to the entities, not to his

business associate, as he pointed out in his memo to LeBlanc. See

Redmon v. Griffith , 202 S.W.3d 225, 233 (Tex. App.—Tyler 2006, pet. denied)

(holding that corporate officers owe fiduciary duties to corporations, not

individual shareholders). Any legal

activities that Lange performed concerning his and LeBlanc’s mutual enterprises

are logically explained as having been performed on behalf of these enterprises

to which he owed unquestionable duties, as opposed to being performed on behalf

of his business associate. LeBlanc has

produced no summary judgment evidence to the contrary.

LeBlanc

also relies on the e-mail Lange sent to him and other interested persons on

June 12, 2005, including Hepler at FCJ, LeBlanc’s law firm for LifeCare

matters, forwarding Lange’s comments on the non-competition agreement. Far from reflecting that Lange was giving

LeBlanc counsel as to LeBlanc’s own personal interests in signing the

non-competition agreement, the comments reflect that Lange’s perspective was

taken in the interest of fulfilling his duties to the business entities — the Hospital and Ethicus. Lange objected to the referenced portions of

the non-competition agreement as they threatened to impinge on these

entities. He pointed out the problems

with signing the agreement as drafted because it would compromise the rights of

the business entities. He further noted

that LeBlanc could not sign the agreement as written because it would require

him to answer for the Hospital, which LeBlanc “can’t commit for.” These actions do not provide any evidence that

Lange gave advice for LeBlanc’s benefit or personal interest. Rather, the evidence establishes that Lange’s

concern was for the business entities.

The only remaining comments in

Lange’s email to LeBlanc on the non-competition agreement that do not specifically

refer to the interests of the business entities are: (1) Lange’s comment in the

e-mail that “[u]nless you absolutely have to, I wouldn’t raise any red flags

until you are required to actually sign something,” and (2) Lange’s comment

that the requirement that LeBlanc give LifeCare notice of virtually any

business with which he had any connection was “ridiculous” and “bizarre.” Such casual, incidental comments, contained

as they are in a document which clearly reveals that Lange was representing the

interests of the business entities, and not LeBlanc’s personal interests, do

not raise a genuine issue of material fact that would preclude the rendition of

summary judgment.

Finally,

LeBlanc cites to the June 27 e-mail from Lange to LeBlanc’s counsel, Jones, at FCJ

as evidence of the existence of an attorney-client relationship between Lange

and LeBlanc at the time of the signing of the Settlement Agreement. A review of this e-mail, however, reveals

once again that Lange’s interests, far from being aligned with those of LeBlanc

as his client, were instead adverse:

From

my standpoint, I am not going to agree to the 1 year extension of the lease if

Section 7 stays in place, because (i) right now it applies to Ethicus in the

Shreveport market and would extend that application for an extra year (which I

am not able to tolerate), and (ii) it hampers our ability to sell the hospital

after the Lifecare closing (and thus impairs its value).

This first sentence negates any possible

construction of the e-mail as one from an attorney to his client. Instead, the e-mail is consistent with

Lange’s position as a principal in the business entities who was putting the

business entities’ interests above that of LeBlanc.

We conclude that LeBlanc’s summary

judgment evidence fails to raise a genuine issue of fact concerning the

existence of an attorney-client relationship between Lange and LeBlanc at the

time the Settlement Agreement was executed.

Therefore, the trial court did not err in holding that no attorney-client

relationship existed between Lange and LeBlanc at the time the Settlement

Agreement was entered and the sale of LeBlanc’s LifeCare stock took place.

Denial of Leave to Supplement Summary Judgment Record

In

the second part of his first issue, LeBlanc contends that the trial court erred

by denying him leave to supplement the summary judgment record. We disagree.

After

the motions and responses had been filed and after the summary judgments had

been argued at an oral hearing, LeBlanc sought to introduce more summary

judgment evidence in his favor. The

trial court denied his motion.

The

rule governing summary judgments in Texas is clear: “Except on leave of court, the adverse party,

not later than seven days prior to the day of the hearing may file and serve

opposing affidavits or other written response [to a summary judgment

motion].” Tex. R. Civ. P. 166a(c).

Thus, a party seeking to late-file a response to a motion for summary

judgment must seek leave of court. This

leave should be granted when a litigant establishes good cause for failing to

timely respond by showing that (1) the failure to respond was not intentional

or the result of conscious indifference, but the result of accident or mistake,

and (2) allowing the late response will occasion no undue delay or otherwise

injure the party seeking summary judgment.

Carpenter v. Cimarron Hydrocarbons

Corp. , 98 S.W.3d 682, 688 (Tex.

2002). A trial court’s ruling on a

motion for leave to file a late summary judgment response is reviewed for an

abuse of discretion. See id. at 686 . A trial court abuses its discretion when it

acts without reference to any guiding rules or principles. Downer

v. Aquamarine Operators, Inc. , 701 S.W.2d 238 , 241–42 (Tex. 1985).

In

this case, LeBlanc failed entirely to present a reason for the late-filing of

the evidence. He did not claim accident

or mistake. Instead, he merely offered

the evidence “in the interest of fairness and justice.” Thus LeBlanc failed to show good cause for

the late-filed evidence, and the trial court did not abuse its discretion when

it denied the motion. Carpenter , 98 S.W.2d at 686, 688.

We

hold that the trial court did not err in denying LeBlanc leave to supplement

the summary judgment record.

We overrule LeBlanc’s first issue.

“Special Relationship” Creating

Fiduciary Duty

In

his second issue, LeBlanc contends that the trial court erred in rendering

summary judgment that, as a matter of law, there was no “special relationship”

between himself and Lange that would give rise to an informal fiduciary duty on

Lange’s part. We disagree.

It is

well settled in Texas that not every relationship involving a high degree of

trust and confidence rises to the stature of a fiduciary relationship. Meyer

v. Cathey , 167 S.W.3d 327, 330 (Tex. 2005).

Texas courts have recognized an informal fiduciary duty that arises from

“a moral, social, domestic or purely personal relationship of trust and

confidence.” Associated Indem. Corp. v.

CAT Contracting, Inc. , 964 S.W.2d 276, 287 (Tex. 1998). However, courts “do not create such a

relationship lightly.” Schlumberger Tech. Corp. v. Swanson , 959

S.W.2d 171, 177 (Tex. 1997). To impose

such an informal fiduciary duty in a business transaction, the special

relationship must exist prior to and apart from the agreement made the basis of

the suit. Associated Indem. Corp. , 964 S.W.2d at 288 . When all the underlying facts are undisputed,

determination of the existence of a fiduciary duty is a question of law for the

court. See Nat’l Med. Enters., Inc.

v. Godbey , 924 S.W.2d 123, 147 (Tex. 1996).

The

facts upon which LeBlanc depends to impose a fiduciary relationship upon Lange

are all found in his affidavit, are uncontested, and are as follows:

·

Long-term business and personal relationship since 1987;

·

Unspecified hunting trips in Mexico and Texas in which they sometimes

roomed together and once took their sons;

·

Lange’s attendance at various golf outings with LeBlanc and his family;

·

LeBlanc’s attendance at Lange’s father’s funeral;

·

Frequent family dinners together;

·

Lange’s attendance at LeBlanc’s son’s engagement party and his wedding;

·

LeBlanc’s assertions that he “considered Lange my lawyer, friend and

business partner” and his belief “that Lange would act in my best interest.”

These

undisputed facts, however, do not give rise to a “special relationship” that

creates a fiduciary duty.

The Texas Supreme Court faced a

similar situation in Meyer . In that case, Cathey sued Meyer for fraud and

breach of fiduciary duty arising out of their four-year collaboration on eight

real estate development projects, two of which were at issue on appeal. It was undisputed that Meyer, the party as to

whom a “special relationship” was asserted, was always in charge of all aspects

of the projects and made the final decisions.

Meyer , 167 S.W.3d at 330 . Furthermore, Meyer controlled the financing

and the books, and the court of appeals found that “Cathey relied on and

trusted Meyer to treat him fairly and keep accurate financial records.” Id. Moreover, Cathey considered Meyer a

friend. He testified that they ate lunch

together every day for four years. Id. The court of appeals reversed a take-nothing judgment in favor of Meyer

on breach of informal fiduciary duty. Id. The

supreme court unanimously reversed on the same issue, stating, “We disagree

that these facts establish a fiduciary relationship.” Id. The supreme court was unmoved by the fact

that Meyer and Cathey had worked on prior projects together. It held that “[t]hese earlier projects were

arms-length transactions entered into for the parties’ mutual benefit, and thus

did not establish a basis for finding a fiduciary relationship.” Id. at

331 .

In the same way, LeBlanc’s and

Lange’s dealings with respect to the Settlement Agreement were arm’s-length

transactions entered into for the parties’ mutual benefit as principals of the

Hospital and Ethicus. Not only were

LeBlanc and Lange dealing with each other as sophisticated businessmen, but

Lange had made clear to LeBlanc that Lange had a duty to represent the

interests of the Hospital and Ethicus due to LeBlanc’s conflict of interest

with those entities, and LeBlanc was represented throughout these dealings by FCJ

and Blue Williams. Such dealings provide

no basis for finding a fiduciary relationship between Lange and LeBlanc.

Furthermore, the fact that LeBlanc

and Lange had been friends for years does not justify imposing a fiduciary duty

on Lange. “Neither is the fact that the

relationship has been a cordial one, of long duration, evidence of a

confidential relationship.”

Crim Truck & Tractor Co. v.

Navistar Int’l Transp. Corp. , 823 S.W.2d 591, 595 (Tex. 1992), superseded by statute on other grounds , Subaru of Am., Inc. v. David McDavid

Nissan, Inc. , 84 S.W.3d 212 , 225–26 (Tex. 2002).

Moreover, LeBlanc’s subjective

trust in Lange is not determinative of a “special relationship.” As the supreme court has held, “mere

subjective trust does not . . . transform arm’s-length dealing into a fiduciary

relationship.” Ins. Co. of N. Am. v. Morris , 981 S.W.2d 667, 674 (Tex. 1998)

(quoting Swanson , 959 S.W.2d at

177 ).

The Fourteenth Court of Appeals

reached the same conclusion in Dodson v.

Kung , 717 S.W.2d 385 (Tex. App.—Houston [14th Dist.] 1989, writ ref’d

n.r.e.). In Dodson , Dodson met Kung when Dodson was a “skeet boy” at Lakeside

Country Club, and they developed a personal relationship, which each described

as “both father/son” and “mentor/protégé.”

Id. at 387 . Some years later, Dodson went to work for a

company started by Kung, and when promises made by Kung were not fulfilled, Dodson

sued, claiming a breach of an informal fiduciary duty. Id. The trial court rendered summary judgment

against Dodson on that issue and the Fourteenth Court agreed. Id. The court acknowledged that the

relationship was one of business and friendship. Id.

at 389 . Furthermore, it acknowledged

that Kung “was in a superior position because of his wealth and business

experience. . . .” Id.

However, the court observed that Dodson was not a “naïve young man” when

he went to work for the company: “He was 36 years old, had operated his own

business at a profit and was familiar with contracts and litigation.” Id. Most importantly, there was “no evidence that

these men were not dealing at arms length and on equal terms.” Id. Accordingly, the court held that there was no

fact issue raised as to breach of a fiduciary duty. Id.

Here, LeBlanc co-founded LifeCare

in 1992 and remained its CEO for more than a decade. The summary judgment evidence establishes

that Lange and LeBlanc were equal partners, and there is no evidence that Lange

held any superior position with regard to sophistication or business

acumen. As succinctly stated by the

Fourteenth Court of Appeals, “There is no evidence that these men were not

dealing at arms length and on equal terms.

There is, therefore, no fact issue raised as to . . . breach of

fiduciary duty.” Id. Likewise, in this case,

there is no evidence that these two men — both experienced in buying and selling hospitals and other health care

facilities, in forming companies, and in managing health care facilities — were dealing on anything but equal terms, in

arm’s-length ventures.

We hold that the trial court did

not err in concluding that no special relationship giving rise to a fiduciary

duty existed between Lange and LeBlanc.

We overrule LeBlanc’s second issue.

Fairness of the Settlement Agreement

In his third issue, LeBlanc

contends that the trial court erred in ruling as a matter of law that the

Settlement Agreement was fair. LeBlanc

argues that, as Lange owed him a fiduciary duty, the Settlement Agreement is

presumed unfair and that it is Lange’s burden to prove its fairness. As we have held, however, that Lange did not

owe a fiduciary duty to LeBlanc, either as his attorney or pursuant to a

“special relationship,” this point is moot. [3]

We overrule LeBlanc’s third issue.

Breach of Fiduciary Relationship

In his fourth issue, LeBlanc

contends that the trial court erred in rendering summary judgment because there

is a fact issue concerning whether Lange breached his fiduciary duty to

him. As we have held, however, that

Lange owed no formal or informal fiduciary duty to LeBlanc, this point is moot.

We overrule LeBlanc’s fourth issue.

Remainder of LeBlanc’s Claims Against

Lange

Lastly, in his fifth issue, LeBlanc

complains that the trial court erred in rendering summary judgment on his

remaining claims. We disagree.

A. Fraud

and Misrepresentation

Lange moved for, and the

trial court rendered, summary judgment on LeBlanc’s fraud and misrepresentation

causes of action on the basis that there is no evidence that Lange made any

material misrepresentations or that LeBlanc relied to his detriment on any such

misrepresentations. LeBlanc claims that

this was error. LeBlanc also argues

that, because Lange owed him a fiduciary duty, Lange had a duty to disclose

material information to him.

A

fiduciary’s concealment of material information can be the basis for

fraud. Spoljaric v. Percival Tours, Inc. , 708 S.W.3d 432 , 435 (Tex.

1986). As we have already held that

Lange did not owe LeBlanc a fiduciary duty, however, it follows that Lange did

not owe LeBlanc a duty of disclosure.

Nor has LeBlanc raised a fact issue

regarding a material misrepresentation by Lange to him. A defendant who moves for traditional summary

judgment must conclusively disprove at least one element of the plaintiff’s

cause of action. Little v. Tex. Dep’t of Criminal Justice , 148 S.W.3d 374, 381 (Tex.

2004). The elements of fraud are as

follows: (1) that a material misrepresentation was made; (2) the representation

was false; (3) the speaker knew it was false when made or made it recklessly

without any knowledge of the truth and as a positive assertion; (4) the speaker

made the representation with the intent that the other party should act upon

it; (5) the party acted in reliance on the representation; and (6) the party

thereby suffered injury. Aquaplex, Inc. v. Rancho Valencia, Inc. ,

297 S.W.3d 768, 774 (Tex. 2009).

LeBlanc claims that Lange made a

material misrepresentation with respect to the purpose for changing the

Hospital’s general partner. He claims

that, had he known that he was being replaced as president and sole

decision-maker for the Hospital, he would not have allowed it to happen. His contention is that, but for the

misrepresentation, he, and not Lange, would have been in the position to sign

the leasing agreement, and, thus, he would not have had to sign the Settlement

Agreement in order to proceed with the sale of LifeCare.

The

evidence shows that Lange did represent to LeBlanc that LeBlanc could not sign

the lease extension on behalf of the Hospital because he had an interest in the

transaction that disabled him, as an interested principal of the business

entity, from unilaterally entering into such an agreement on behalf of the

company as a matter of statutory law.

LeBlanc has produced no evidence that this statement, on which he bases

his fraud claim, was false, and the law is to the contrary. See

Tex. Rev. Civ. Stat. Ann. art.

1528n, § 2.17 (Vernon Supp. 1997) (now-expired version of Texas Limited

Liability Company Act applicable to transaction in question) (current version

at Tex. Bus. Orgs. Code Ann. §

101.255 (Vernon Supp. 2009)). Thus,

Lange has conclusively disproven an essential element of both negligent

misrepresentation and fraud.

B. DTPA

Violations

Lange moved for summary judgment on

LeBlanc’s claims under the DTPA, claiming that there was no evidence that

LeBlanc was a “consumer” as defined by the Act.

The trial court granted this motion.

The DTPA defines a “consumer” as

“an individual, partnership, corporation, this state, or a subdivision or

agency of this state who seeks or acquires by purchase or lease, any goods or

services, except that the term does not include a business consumer that has

assets of $25 million or more . . . .” Tex. Bus. & Com. Code Ann . §

17.45(4) (Vernon 2011). Whether a person

is a “consumer” for DTPA purposes is a question of law. Roberts

v. Healey , 991 S.W.2d 873, 881

(Tex. App.—Houston [14th Dist.] 1999, pet. denied).

LeBlanc’s claim that he was a

consumer is premised upon his claim that Lange was his attorney and, therefore,

he was a consumer of LeBlanc’s legal services.

We have held, however, that no attorney-client relationship existed

between LeBlanc and Lange at any pertinent time. LeBlanc has produced no other evidence that

Lange offered any goods or services for sale or lease to LeBlanc or that

LeBlanc purchased or leased any goods or services from Lange. Accordingly, the trial court correctly

rendered summary judgment as to LeBlanc’s DTPA claims, and it is unnecessary to

address LeBlanc’s issues concerning his financial wherewithal.

C. Illegality of

Settlement Agreement [4]

LeBlanc claims that the Settlement

Agreement is illegal because it violates Penal Code section 32.43(b). This section provides that “a person who is a

fiduciary commits an offense if, without the consent of his beneficiary, he

intentionally or knowingly solicits, accepts, or agrees to accept any benefit

from another person on agreement or understanding that the benefit will

influence the conduct of the fiduciary in relation to the affairs of his

beneficiary.” Tex. Penal Code Ann.

§ 32.43(b) (Vernon 2011).

This commercial bribery statute

does not apply in this case. Penal Code

violations do not give rise to private causes of action. A.H.

Belo Corp. v. Corcoran , 52 S.W.3d 375, 379 (Tex. App.—Houston [1st Dist.]

2001, pet. denied). Furthermore, to the

extent he is attempting to argue some common-law version of contract

illegality, LeBlanc has not proven that the Settlement Agreement was an illegal

contract. As we have held that there is

no fiduciary relationship between LeBlanc and Lange, the only fiduciary

relationship in question here would be between Lange as manager of SGP, the

general partner of the Hospital, and Ethicus.

There is no evidence that Lange agreed to accept any benefit from any

party without the consent of SGP and Ethicus.

Indeed, there is no evidence that Lange agreed to accept any benefit

from any party without the consent of LeBlanc, as LeBlanc signed the Settlement

Agreement.

As a matter of law, the statute

does not apply and the trial court correctly rendered summary judgment as to

the alleged illegality of the Settlement Agreement.

D. Duress

LeBlanc also complains of the trial

court’s rendition of summary judgment on his affirmative defense of

duress. The elements of duress are: (1) a threat or action taken without legal

justification; (2) the action or threat was of such a character as to destroy

the other party’s free agency; (3) the threat or action overcame the opposing

party’s free will and caused it to do that which it would not otherwise have

done and that which it was not legally bound to do; (4) the restraint was

imminent; and (5) the opposing party had no present means of protection. Chapman

Children’s Trust v. Porter & Hedges, L.L.P. , 32 S.W.3d 429, 443 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied).

LeBlanc attempts to meet the first

element of his affirmative defense of duress by arguing that Lange did not have

the legal right, i.e., justification, to refuse to extend the lease for several

reasons. He claims that Lange did not

have the legal right because he had fraudulently placed himself in a position

of authority with the general partner of the Hospital. Because we have found that LeBlanc, as an

interested party, was precluded as a matter of law from exercising such

authority personally in any case, this argument fails. Next, LeBlanc claims that the refusal to

extend the lease violated Lange’s fiduciary duty to him. Again, we have held that no such duty exists. This argument also fails.

Finally, LeBlanc argues that

refusing to extend the lease was against the best interest of the Hospital, to

which Lange owed a fiduciary duty as its lawyer and officer. Even if a fact issue could be raised as to

whether refusing to extend the lease was against the best interest of the

Hospital, such an issue has no bearing on whether Lange, as the principal of

the general partner of the Hospital and as the only disinterested manager, had

a legal right or justification to extend or refuse to extend the lease. As the only disinterested manager of the general

partner of the Hospital, Lange was the only person who did have the legal right

or justification to make decisions for the Hospital. Thus, LeBlanc failed to conclusively

establish the first element of his duress claim.

E. Unconscionability

of Settlement Agreement

Lastly, LeBlanc complains of the

trial court’s rendition of summary judgment on his action to declare the

Settlement Agreement void as “unconscionable.”

The unconscionability of a contract

is a question of law for the court. Ski River Dev., Inc. v. McCalla , 167

S.W.3d 121, 136 (Tex.App. — Waco 2005,

pet. denied). In Texas, the party

asserting unconscionability has the burden of proving both procedural and

substantive unconscionability. Id.

To determine procedural

unconscionability, courts examine “the contract formation process and the

alleged lack of meaningful choice.” BDO Seidman, LLP v. J.A. Green Dev. Corp. ,

327 S.W.3d 852 , 858–59 (Tex. App.—Dallas 2010, no pet.). Substantive unconscionability, on the other

hand, concerns the fairness in the contract provisions themselves. See In

re Halliburton Co. , 80 S.W.3d 566, 571 (Tex. 2002). The grounds for substantive unconscionability

must be “sufficiently shocking or gross to compel the court to intercede, . . .

and the same is true for procedural abuse — the circumstances surrounding the negotiations must be shocking.” McCalla ,

167 S.W.3d at 136 .

A review of the facts herein

reveals nothing “shocking” or “gross” either procedurally or

substantively. LeBlanc stood to make $50

million from the sale of his LifeCare stock.

The buyers, however, asked LeBlanc to sign a non-competition agreement

with terms that impinged upon the interests of LeBlanc’s and Lange’s mutual

business entities. Lange asked to see

the agreement to determine its effect on the Hospital and Ethicus, whose

interests he represented. From the

earliest time at which LeBlanc presented Lange with the non-competition

agreement, Lange made clear his objections to it on behalf of the business

entities, not only in communications with LeBlanc but in communications with

LeBlanc’s attorneys at FCJ. The idea of

the Settlement Agreement arose in a meeting between Lange, Chris LeBlanc,

acting as LeBlanc’s emissary, and Styles on July 8, 2005 and was worked out in

these arm’s-length negotiations over a several-week period. The $3 million compensation figure was

offered by Styles as compensation for freeing LeBlanc’s stock in LifeCafe from

its pledge to Ethicus’s investors. The

figure was based on Chris LeBlanc’s estimate that Ethicus’s lost profit for its

first full year as licensed LTAC facility in the Hospital would be about $4

million.

LeBlanc was a sophisticated

businessman, represented by counsel — FCJ in Houston and Blue Williams in New Orleans — who was being offered $50 million to buy his

stock. Through his attorneys, he could

have asked Carlyle for revision of the offending terms of the non-competition

agreement. LeBlanc might have felt that

he “had no choice” but to sign the agreement if he wanted to sell his LifeCare

stock, as he testified, and that he had no bargaining ability, but there are no

“shocking” facts suggesting procedural unconscionability in this business

adjustment among sophisticated businessmen.

Likewise, nothing in the Settlement

Agreement itself suggests substantive unconscionability. The Settlement Agreement represented a

business solution to a complex problem.

It released LeBlanc’s LifeCare stock from LeBlanc’s pledge to the

Ethicus investors, it compensated Ethicus for the loss of profits due to the

lease extension for LifeCare, and it enabled LeBlanc to sell his LifeCare stock

for more than $50 million. These terms cannot be considered “shocking” or

“gross” from LeBlanc’s perspective.

Finally, a provision in the Settlement

Agreement whereby Lange had the option to buy LeBlanc’s interest in the

Hospital for $3.8 million was in no sense “shocking.” Such a provision would make it possible to

free the Hospital from the disabilities imposed by LeBlanc’s non-competition

agreement and to provide substantial compensation to LeBlanc. We conclude that

there are no grounds for a finding of substantive unconscionability. See McCalla ,

167 S.W.3d at 136 .

We hold that the trial court did

not err in ruling against LeBlanc as a matter of law on his claims of fraud,

misrepresentation, DTPA violations, illegality, duress, and unconscionability.

We overrule LeBlanc’s fifth issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Sharp, and Massengale.

Justice

Sharp, concurring in the judgment only.

[1]

LeBlanc also sued Perry Mound

Trust, Renee Hepler, John Styles, and Ronald Colichia, but he does not

challenge any portion of the trial court’s judgment as it relates to these

parties on appeal.

[2]

LeBlanc points to a legal

opinion that Lange gave to the Hospital’s acquisition lender in December 2004

as evidence that Lange continued to represent him personally. The opinion arose out of the substitution of

an LLC for the original corporate genral partner of the Hospital Partnership,

which required the consent of the Hospital’s acquisition lender and was given

by Lange as general counsel to the hospital Management Company and cited

Lange’s role in the acquisition while at Jackson Walker. It is no evidence that Lange represented

LeBlanc personally in connection with any matter other than the acquisition of the

Hospital or he continued to represent LeBlanc after leaving Jackson Walker.

[3]

In his appellate brief, LeBlanc

includes a one-line claim that the summary judgment evidence demonstrates that

at the time the Settlement Agreement was created “Lange owed LeBlanc a

fiduciary duty as . . . his business partner . . . .” LeBlanc provides no argument or citation to

legal authority for this proposition. To

assert an issue on appeal, an appellant’s “brief must contain a clear and

concise argument for the contention made, with appropriate citations to

authorities . . . .” Tex. R. App. P .

38.1(i). An appellant waives an issue on

appeal if he fails to adequately brief that issue by presenting supporting

arguments and authorities. See id .;

Brown v. Hearthwood II Owners Ass’n, Inc. ,

201 S.W.3d 153, 161 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). Accordingly,

this point is waived.

[4] LeBlanc pled illegality, not as a

claim against Lange, but solely as a defense against the enforcement of the

Settlement Agreement. This defense was

the subject of a separate summary judgment motion by Ethicus, which the trial

court granted.