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Click here for the full text of this decision FACTS:This is an appeal from a summary judgment granted to appellees, Fulbright & Jaworski, L.L.P., John Mings, Jack Vaughan, John Barrett, and David Tannenbaum (collectively “Fulbright”), in a case involving allegations of breach of fiduciary duty brought by appellants, Greene’s Pressure Treating & Rentals, Inc., and H. Rowe Greene Leasing Company, L.L.C. (collectively “Greene”). In 1991, a patent (the”842 patent) was issued to Marvin Powers for his method of commissioning pipelines (“commissioning” refers to purging a pipeline of its unwanted materials and preparing it for safe movement of petrochemicals). During the same period, Coulter Service Co. also developed a commissioning process. In 1999, Pipeline Integrity International (PII) acquired Pipetronix. PII used the Coulter process. BJS initially threatened infringement action but later abandoned its claim. Eventually, PII sold 95 percent of the original Pipetronix assets to General Electric and the remaining 5 percent to Rowe Greene Leasing Company LLC. Rights to the Coulter process were included in the 5 percent to Greene. Greene began using the Coulter process. In 2000, BJS asserted that such use constituted an infringement on its patent. On Nov. 22, 2000, Greene filed an action for declaratory judgment. On Dec. 19, 2000, BJS, represented by Fulbright, filed an action against Greene, claiming infringement. Greene notified Fulbright that Fulbright’s position in this suit (asserting infringement) appeared to conflict with Fulbright’s position in its prior opinion letter (declaring non-infringement). Fulbright continued to represent BJS. Greene filed a Motion to Disqualify Plaintiff’s Counsel, which was later denied as moot due to ongoing settlement negotiations and, on a motion by BJS, the case was dismissed. On May 1, 2003, Greene filed suit against Fulbright alleging malpractice, breach of fiduciary duty, and violations of the Deceptive Trade Practices Act, based on Fulbright’s representation of BJS. Fulbright moved for summary judgment on the grounds that Fulbright owed no duty to Greene as a matter of law and that Greene was not a consumer under the DTPA. Fulbright attached to its motion, as evidence, Greene’s original petition; the affidavit of Gunnar Kopp of Pipetronix, stating that less than 5 percent of Pipetronix’s assets were sold to Greene; the affidavit of William R. Pakalka of Fulbright, stating that Greene has never sought or obtained legal services from Fulbright; the asset purchase agreement between PII, as successor in interest to Pipetronix; and Fulbright’s non-infringement opinion letter. In response to the motion, Greene’s evidence included the affidavit of Robert Vilyus, president of PII, stating that Greene purchased the Coulter process from PII; and the affidavit of Eric Langlinais, president of Greene, stating that Greene’s purchase of the Coulter process was conditioned on the representation that it did not infringe on any patent. On Sept. 23, 2003, the trial court granted summary judgment in favor of Fulbright. Greene solely appeals the summary judgment as to its breach of fiduciary duty claim. HOLDING:Affirmed. In 1997, Fulbright issued an opinion letter to its client, Pipetronix, stating that the Coulter process did not infringe on the”842 patent. Greene contends that this opinion transferred with the sale of the Coulter process asset from Pipetronix, through PII, to Greene. Greene maintains that it relied upon this letter when it purchased the Coulter process from PII, and that such reliance created an attorney-client relationship between Fulbright and Greene. It is this alleged attorney-client relationship that provides the basis for Greene’s assertion that Fulbright owed Greene a fiduciary duty. When a corporate transaction is merely a sale of assets, it is not a merger, and rights and liabilities do not transfer unless expressly assumed. Based on the language of the asset purchase agreement, the court concludes there is no support for Greene’s contention that the transaction should be treated as anything more than a purchase of assets. In addition, the court concludes that there is nothing in the agreement to support Greene’s contention that PII had the intent or the ability to transfer the prior attorney-client relationship that existed between its predecessor, Pipetronix and Fulbright. Further, the affidavit evidence supports that a bare transfer of assets took place. The evidence shows that no merger took place between PII and Greene, and that PII remains a solvent corporation as a subsidiary of GE. The court concludes as a matter of law that no attorney-client relationship was created by virtue of Greene’s purchase of the Coulter process asset; thus, Fulbright owed no fiduciary duty to Greene on this basis. OPINION:Higley, J.; Taft, Alcala and Higley, JJ.

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