Boley v. Boley, 17469

• Decision Date: 01 March 1974
• Docket Number: No. 17469,17469
• Citation: 506 S.W.2d 934
• Parties: Eva Jo BOLEY, Appellant, v. Donal E. BOLEY et al., appellees.
• Court: Texas Court of Appeals

Page 934

506 S.W.2d 934

Eva Jo BOLEY, Appellant, v. Donal E. BOLEY et al., appellees.

No. 17469.

Court of Civil Appeals of Texas Fort Worth.

March 1, 1974.

Rehearing Denied March 29, 1974.

Boone & Pickering, and Kiel Boone, Dallas, for appellant.

Fillmore, Parish, Martin, Kramer & Fillmore, and H. Dustin Fillmore, Wichita Falls, for appellees, Donal E. Boley, Donna Jo Boley, and The First-Wichita Natl. Bank of Wichita Falls.

Fillmore, Lambert, Farabee & Purtle, and Clyde Fillmore, Wichita Falls, for appellee, J. B. Featherston.

Banner & McIntosh, and Tom A. Neely, Wichita Falls, Guardian Ad Litem for nominal Appellees, Bradley Glen Boley and Barton Lee Boley .

OPINION

LANGDON, Justice.

This appeal is from the trial court's summary judgment for appellees, Donal E. Boley and J. B. Featherston, denying appellant's bill of review attacking August 7 1972, judgment of the same trial court, Cause No. 92,250--A 'In the Matter of the Marriage of Eva Jo Boley and Donal E. Boley.'

The Boleys were married in 1948 and lived together as husband and wife until June 1, 1972. Through an attorney, William V. Browning, Eva Jo Boley commenced divorce proceedings June 5, 1972, during which the Boleys executed a July 27, 1972, property settlement and support agreement. That agreement was approved and divorce granted August 7, 1972.

Appellant filed this suit January 22, 1973, initially against Donal E. Boley, claiming his fraud against, and his overreaching of appellant. As a direct attack, appellant brought in the nominal defendants, The First-Wichita National Bank and the three Boley children. Such nominal defendants were, respectively, the Trustee and beneficiaries under a Trust Agreement contemplated by the July 27, 1972, property settlement.

On hearing for a temporary injunction the principals, Eva Jo Boley and Donal E. Boley, testified as did J. B. Featherston and William V . Browning.

By amended pleadings appellant sued J. B. Featherston and, by separate count, William V. Browning.

Appellees, Donal E. Boley and J. B. Featherston, strenuously excepted to appellant's pleadings.

The trial court required repleading. Thereafter, appellant filed her Third Amended Petition and Bill of Review, appellant's current pleadings at summary judgment hearing.

Concurrently, appellant sought discovery as to the properties and rights between Eva Jo Boley and Donal E. Boley on August 7, 1972. Substantially all of the discovery sought was denied or delayed and later denied.

Defendants, Donal E. Boley and J. B. Featherston, moved for summary judgment based upon all pleadings and testimony of all witnesses. Appellant answered asserting the existence of genuine issues of material facts on the pleadings, such evidence, the requests for discovery and affidavits.

The trial court granted defendants' motion for summary judgment rendering moot appellant's discovery attempts of and from appellees, Boley and Featherston. Appellant dismissed her separate count claims against William V. Browning and acknowledged that her claims against nominal defendants, the Bank and the children, fell by denial of her claims against defendant, Donal E. Boley.

Although appellant's claims against primary defendants, Boley and Featherston, were summarily disposed of, appellant did assign trial court error in motion for new trial, all overruled May 24, 1973, from which she has undertaken this appeal.

The record below includes the February 8, 1973, temporary injunction hearing testimony, the March 19, 1973, hearing discourse and documents, and transcript in two parts.

Appellees agree that appellant's statement of the nature of the case above set out in substantially correct, however, the appellee, J. B. Featherston, suggested additionally that in Cause No. 92,250--A Eva Jo Boley filed suit for divorce against Donal E. Boley in the 30th District Court of Wichita County, Texas; thereafter, on July 27, 1972, Eva Jo Boley and Donal E. Boley entered into a property settlement agreement. On August 7, 1972, plaintiff, Eva Jo Boley, was granted a divorce from her husband, and the court found that the property settlement agreement was just, right and equitable, and approved the same.

The judgment granting divorce and approving the property settlement agreement was approved by the attorney representing the plaintiff, Eva Jo Boley, as well as the attorney representing the defendant, Donal E. Boley. An inventory and appraisement dated May 25, 1972, was submitted to the plaintiff and her attorney prior to the time said property settlement agreement was executed. The statement of facts shows that the appellant and her attorney had knowledge of and were familiar with the nature and extent of the community property resulting from said marriage.

The plaintiff dismissed her alleged cause of action against her attorney, William V. Browning, desiring no further to pursue her claim that he was engligent in his representation of her.

On February 15, 1974, subsequent to submission of this cause and the arguments of counsel, a suggestion of marriage was filed by which the court was advised that Eva Jo Hooper, Formerly Eva Jo Boley, was married to A. B. Hooper, Jr., on February 1, 1974, and that A. B. Hooper, Jr., in accordance with Rule 157, Texas Rules of Civil Procedure, was joining his wife as appellant.

The style of the cause on our minutes was changed to designate Eva Jo Hooper, et vir., as appellants, rather than Eva Jo Boley; however, for convenience we leave the heading of this opinion as originally docketed.

This appeal is based upon five (5) points asserting that the trial court erred in (1) preventing appellant's proper discovery while hearing and sustaining summary judgment motions of appellees, Boley and Featherston; (2) failing to find any genuine issue of any material fact between appellant and appellees, Boley and Featherston; (3) preventing appellant's recovery of proper discovery in the several stages of appellant's pleadings; (4) apparently determining that appellant's successive pleadings failed to give fair notice of appellant's claims to appellees, Boley and Featherston; and (5) that the trial court abused its discretion in burdening appellant with cost, effort and expense in otherwise obtaining and authenticating relevant and material documents by preventing their discovery under Rules 167, 168 and 169, T.R.C.P.

We affirm.

In the discussion to follow the appellant, Eva Jo Boley, now Eva Jo Hooper, will be called Eva Jo or appellant, Donal E. Boley will be called Donal, and J. B. Featherston will be called by name.

We find and hold that the judgment of the trial court is correct because, if the original judgment sought to be set aside was entered through fraud, accident or mistake, the same was a result of negligence or fault on the part of Eva Jo. There is no genuine issue of a material fact in this case.

William V. Browning, attorney for the appellant in the original trial, was admitted to the practice of law in the State of Texas in 1955 and has practiced law in Wichita Falls, Wichita County, Texas, since the summer of that year. During this period of time, he has served as an attorney in numerous divorce cases. He has known Eva Jo and Donal since 1958. Eva Jo's sister, Mrs. Sue Parish, was at one time employed by Browning.

Bill Browning was hired to represent Eva Jo in her divorce. She knew Browning 'real well,' liked him, and referred to him as a 'nice guy.' Eva Jo designated Browning as the attorney she wanted to use. In response to a telephone call from Donal which was made in the presence and with the approval of Eva Jo, Browning agreed to represent Eva Jo in the divorce proceeding which was subsequently filed by Bill Browning for and on her behalf.

Browning testified that Donal did not want the divorce, that obtaining the divorce was all Eva Jo's idea because she wanted to be relieved of the responsibility of raising her minor son and of her home. He further testified that his full allegiance was to his client, Eva Jo. That he had no contact with Donal from the time that he was hired to represent Eva Jo until the divorce was granted except when Eva Jo and H. W. Fillmore, Donal's attorney, were all present. That the divorce and property settlement was Eva Jo's 'deal.' The record reflects that Browning conducted the divorce proceedings in full accord with the wishes and desires of his client, Eva Jo.

During the pendency of the divorce case, Browning, accompanied by Eva Jo, reviewed a financial statement prepared by J. B. Featherston. However, the statement was not the basis for the property settlement. The statement was never an issue at any time. According to Browning, Eva Jo hired him to advise and counsel with her. 'She came to my office and told me she wanted a divorce, she couldn't cope with the situation at home, the children and all. She wanted to be by herself. . . . Really, it never entered my mind that this was not what Mrs. Boley wanted or that we were doing what she wanted to have done.'

Browning further testified that he determined that an annuity which would produce the same amount of income to Eva Jo, as she would receive from Donal under the property settlement agreement, would cost $90,000.00, the estimated value of the net worth of the whole community estate.

During the pendency of the divorce case, Browning met privately in his officer with Eva Jo on numerous occasions. He participated in every phase of the divorce proceeding, including the preparation and drafting of the property settlement agreement, he went over the property settlement agreement with his client. Eva Jo appeared in open court at the time of the granting of the divorce and again the property settlement was discussed and Eva Jo requested that the settlement be approved by the court.

After the divorce was granted, Browning saw Eva Jo on a number of occasions. At no time did she ever express any dissatisfaction with the divorce settlement....