Cochran v. Cochran

• Decision Date: 10 March 1960
• Docket Number: No. 13342,13342
• Citation: 333 S.W.2d 635
• Parties: Pearl Locke COCHRAN et al., Appellants, v. John COCHRAN, Temporary Administrator of the Estate of O. L. Cochran, Jr., Deceased, Appellee.
• Court: Texas Court of Appeals

Page 635

333 S.W.2d 635

Pearl Locke COCHRAN et al., Appellants, v. John COCHRAN, Temporary Administrator of the Estate of O. L.

Cochran, Jr., Deceased, Appellee.

No. 13342.

Court of Civil Appeals of Texas, Houston.

March 10, 1960.

Rehearing Denied March 31, 1960.

J. Edwin Smith, Houston, Smith & Lehmann, Houston, of counsel, for appellants.

Hutcheson, Taliaferro & Hutcheson, Thad T. Hutcheson, Walter P Zivley, Houston, for appellee.

WERLEIN, Justice.

This is an appeal by Pearl Locke Cochran, W. Scott Red, and Bruce Billingsley, from a judgment of the District Court of Harris County disqualifying appellants, W. Scott Red and Bruce C. Billingsley, as attorneys for the said Pearl Locke Cochran, sometimes called herein Pearl Locke, on the basis of their prior representation of O. L. Cochran, Jr., the deceased brother of appellee, John L. Cochran, temporary administrator of the estate of O. L. Cochran, Jr., Deceased, and applicant for letters of permanent administration upon said estate pending in the Probate Court of Harris County, Texas.

In the probate proceedings appellee's motion to disqualify said Billingsley and Red was denied. On appeal the District Court decreed that said attorneys were disqualified until Pearl Locke Cochran had been declared the wife of the deceased by final decree of a court of competent jurisdiction.

It is the contention of appellants that said attorneys are not disqualified because they never represented the deceased former client on any dispute as to marital status, and further because they represent a party asserting a derivative right under the deceased former client. It is also their contention that the representation of the deceased former client involved solely the preparation of instruments to be delivered to third parties and hence there was no privilege in the communications relative thereto, and further, that any privilege which might have existed terminated with the death of the deceased.

In the main case, Pearl Locke Cochran asserts her right as the alleged widow under a common law marriage to be administratrix of the estate of the deceased. John Cochran asserts his right as the next of kin, denying the existence of any common law marriage. There is no dispute relative to the existence, identity and relationship of the blood heirs of the deceased.

No findings of fact or conclusions of law were requested or filed. The trial court in its judgment, however, found that the representation of the said Pearl Locke by said attorneys in any action wherein the said Pearl Locke seeks to establish herself as having been the wife of O. L. Cochran, Jr., Deceased, or wherein, prior to having been so declared by final decree of a court of competent jurisdiction, she seeks to assert rights based on such alleged status, is professionally inconsistent with that firm's prior representation of O. L. Cochran, Jr., Deceased, and prejudicial to John Cochran, the temporary administrator, and other blood heirs of the said O. L. Cochran, Jr., and is prohibited by the Canons of Ethics of the State Bar of Texas.

In order to determine whether the employment of said attorneys by O. L. Cochran, Jr., in his lifetime is professionally inconsistent with their employment by Pearl Locke in connection with the estate of the deceased, it is necessary to consider the evidence with respect to their former representation and what their present employment may require of them. The testimony shows that Mr. Billingsley and the firms with which he has been connected represented O. L. Cochran, Jr., in legal matters during approximately the last five or six years of his life. Several months prior to the death of O. L. Cochran, Jr., on May 27, 1957, Mr. Billingsley and his firm represented Cochran in the preparation of two lengthy trust instruments involving approximately $500,000 of assets for the grandnieces and grandnephews of the donor. In connection with the setting up of such trusts, Mr. Cochran gave Mr. Billingsley written authority to enter his safe deposit box at First National Bank, identifying him as 'My attorney, Mr. Bruce Billingsley.' Mr. Billingsley entered the box and removed certain stock certificates for the trusts on or about April 3, 1957. The fee for such services was $4,000, which was paid. Pearl Locke contacted Mr. Billingsley after Cochran's death to ascertain whether he had left a will. Prior to that time Mr. Billingsley had seen her on several occasions although he had never been formally introduced to her, and Mr. Red had not met her until after Cochran's death.

In addition to the preparation of the two trust instruments aforesaid, Mr. Billingsley had done other work for Mr. Cochran in his lifetime consisting mainly of the preparation and examination of deeds, division orders, leases, and the approval of legal instruments which had been drawn up by others and submitted to him for examination. During his representation of Mr. Cochran, Mr. Billingsley did some work on a boundary dispute. He also drew up or approved certain instruments in which Mr. Cochran was described as a single man. Mr. Billingsley testified that he recognized that such instruments were going on public record, and that he did not fail to approve the same although Mr. Cochran was described therein as a single man. They were acknowledged before Mr. Billingsley's secretary. It was also shown that in a partition agreement which was signed by the deceased he was described as a single man, and such agreement or a copy thereof had been procured by Mr. Billingsley in connection with setting up the trusts.

In the preliminary inheritance tax report filed by said attorneys for Pearl Locke, there was included considerably more property than was included in the preliminary report filed by the temporary administrator, the difference being that said attorneys for Pearl Locke included in her report property of the value of several hundred thousand dollars which had been placed in said trusts. In such report Pearl Locke was listed as wife entitled to all the personal property and one-half of the real estate.

Testimony showed that the employment of Billingsley and Red by Pearl Locke was to establish her claim as a common law wife and was on a contingent basis. In an effort to determine the facts as to her status, said attorneys approached the deceased's tax accountant, one R. F. Krueger, with whom Mr. Billingsley had been in contact in the preparation of said trusts, and submitted a questionnaire to Mr. Krueger in an effort to obtain information concerning the income tax returns of the deceased and any alleged recognition of the status of Pearl Locke.

The testimony further showed that the files of O. L. Cochran, Jr.'s legal matters belonging to Billingsley and Red were withheld from the temporary administrator for several weeks and until Pearl Locke's deposition was taken, although he was later given the opportunity to inspect and examine such files. Mr. Billingsley testified in effect that they had a primary or superior duty toward Pearl Locke as their client with reference to said files as compared with the admitted blood relatives and the intestate decedent and the administrator of his estate. It was stipulated that if either Mr. Billingsley or Mr. Red was disqualified, then such disqualification would extend to the other or to their firm or association and the employees thereof.

Based upon such evidence and other evidence which will be referred to hereinafter, the trial court decreed that the motion to disqualify said attorneys as attorneys for the contestant, Pearl Locke, be sustained to the extent that they, their firm or association and all members and employees thereof, are disqualified and directed to terminate forthwith said employment and to cease from representing said Pearl Locke in Cause No. 61,528 in the Probate Court of Harris County, Texas, or in any appeals therefrom or in any other action wherein the said Pearl Locke seeks to establish herself as having been the wife of O. L. Cochran, Jr., Deceased, or, prior to having been so declared by final decree of a court of competent jurisdiction, seeks to assert rights based on such alleged status.

We feel confident that in so decreeing the trial court recognized, as this Court recognizes, that the attorneys disqualified by the court as aforesaid, are lawyers of integrity and fine professional reputation who would not wittingly violate the State Bar Rules or Canons of Ethics, or engage in any practice which they might conceive to be improper or unprofessional.

This Court is not called upon to decide as an original proposition whether under the evidence said lawyers are disqualified. Our province is to determine whether there is any evidence to support the presumed findings of the trial court and the findings recited in the judgment. In doing so we must presume that the trial court resolved every disputed fact issue in favor of the winning party, and consider only the evidence which supports the judgment, disregarding all evidence in conflict therewith. Northeast Texas Motor Lines v. Dickson, 148 Tex. 35, 219 S.W.2d 795; McWilliams v. Muse, Tex.Sup., 300 S.W.2d 643; Sgitcovich v. Oldfield, Tex.Civ.App., 220 S.W.2d 724, writ ref. It will be presumed that the trial judge found every issuable fact proposition necessary to sustain the judgment if supported by the pleadings and evidence. This Court must affirm the judgment if it can be sustained 'on any reasonable theory supported by the evidence and authorized by law'. See McDonald, Texas Civil Practice, Vol. 4, Sec. 16.10, p. 1301.

The evidence shows that Pearl Locke first called said attorneys to ascertain if the deceased left a will. Shortly thereafter she employed them to represent her in her claim that she was the common law wife of Cochran. She testified by deposition that she called Mr. Billingsley on the theory that she knew he had represented Cochran. We think it may be assumed that in employing said...