Edwin C. Olsen Iv v. Comm'n For Lawyer Discipline

• Citation: 347 S.W.3d 876
• Decision Date: 09 August 2011
• Docket Number: No. 05–09–00945–CV.,05–09–00945–CV.
• Parties: Edwin C. OLSEN IV, Appellant,v.COMMISSION FOR LAWYER DISCIPLINE, Appellee.
• Court: Court of Appeals of Texas

347 S.W.3d 876

Edwin C. OLSEN IV, Appellant,

v.COMMISSION FOR LAWYER DISCIPLINE, Appellee.

No. 05–09–00945–CV.

Court of Appeals of Texas, Dallas.

Aug. 9, 2011.

Jeff Forrest Smith, Dallas, TX, R. Deryl Edwards, Jr., Joplin, MO, for Appellant.Susan Morgan Farris, Office of the Chief Disciplinary Counsel, Jeremy D. Kernodle, Haynes and Boone, LLP, Dallas, TX, Cynthia W. Hamilton, Senior Appellate Counsel, Office of the Chief Disciplinary Co., Austin, TX, for Appellee.Before Justices MOSELEY, MARTIN RICHTER, and LANG–MIERS.

OPINION

Opinion By Justice MARTIN RICHTER.

Appellant Edwin C. Olsen IV (Olsen) appeals the trial court's judgment of disbarment. In sixteen issues, Olsen generally contends: (1) the trial court erred in granting the motion for partial summary judgment filed by the Commission for Lawyer Discipline (the Commission); (2) the trial court erred in concluding he committed violations of the disciplinary rules; (3) disbarment was not an appropriate sanction in this case; and (4) the trial court erred in ordering him to pay attorney fees. We affirm the trial court's judgment.

Factual and Procedural Background

This disciplinary proceeding arose from Olsen's representation of Mary Ellen Logan Bendtsen (Bendtsen). Bendtsen, 88 years of age, lived alone in a large, old house on historic Swiss Avenue. In 2002, Bendtsen executed a will leaving her entire estate to her only child, Frances Ann Giron (Giron), and naming Giron the executrix of her estate.

On January 12, 2005, Bendtsen was admitted to Baylor Hospital with a head injury and sprained ankle. Bendtsen executed a medical power of attorney giving Giron authority to make decisions about her care. While in the hospital, Bendtsen was examined by a licensed psychiatrist who determined Bendtsen was suffering from dementia. Justin Dale Burgess (Burgess), Mark Patrick McCay (McCay), and Olsen visited Bendtsen in the hospital. During their visit, Bendtsen executed a general power of attorney and a medical power of attorney, granting authority to McCay to make medical and financial decisions on her behalf. Olsen prepared the powers of attorney. He also prepared a declaration of revocation, revoking the power of attorney Bendtsen previously gave to Giron. The following day, Giron tried to move her mother to another facility but discovered she was unable to do so because her power of attorney had been revoked.

On January 21, 2005, Giron filed an application seeking temporary and permanent guardianship of Bendtsen. In her application, Giron asserted that Bendtsen was “totally incapacitated due to senility and dementia” and that McCay's power of attorney was fraudulent. The same day, Giron transferred Bendtsen from Baylor Hospital to Ashley Court, a residential rehabilitation center.

On January 31, 2005, Bendtsen was discharged from Ashley Court without Giron's knowledge, and taken to the courthouse to attend the hearing on Giron's motion for emergency order in the guardianship case. Olsen represented Bendtsen at the hearing. At the conclusion of the hearing, the court stated that it wanted to continue the hearing until February 19, and asked Olsen “Where is Ms. Bendtsen now? What is her current residence?” Olsen replied, “she was at Ashley Court before.” A few days later, Giron learned that Bendtsen was no longer at Ashley Court and had returned to her home on Swiss Avenue. Giron filed a motion for emergency order to return Bendtsen to Ashley Court, and asserted that Olsen had previously “failed to adequately inform the Court” regarding Bendtsen's residence.

On February 22, 2005, Bendtsen suffered a massive stoke and was taken to the Baylor Hospital emergency room. Olsen prepared a will for Bendtsen, naming Dixie Tidwell (Tidwell) executrix and leaving one chair to Giron, her jewelry to Beatrice Grayson except for one brooch left to Rose Cline (Cline), and the remainder of her estate, which included her house on Swiss Avenue, to Burgess and McCay. Olsen took the will to the emergency room for Bendtsen to sign. Olsen handed Bendtsen two pages and Bendtsen executed the will in the presence of two witnesses, Tidwell and Cline. Tidwell videotaped Bendtsen signing the will. The testimonium clause, which was the last paragraph of the will before Bendtsen's signature, the attestation clause, and the witnesses' signatures after the attestation clause appeared as follows:

IN TESTIMONY WHEREOF, I hereunto set my name to this, my Last Will and Testament, consisting of this and one preceding page, which I am also initialing for the purpose of identification, all in the presence of [Rose Cline] and [Dixie Tidwell], who witness the same at my request on this the 22nd day of February, 2005.

{Mary Ellen Logan Bendtsen}

The foregoing instrument, consisting of this and the preceding page, was signed, published and declared by MARY ELLEN LOGAN BENDTSEN, Testatrix, to be her Last Will and Testament, in our presence and we, at her request and in the presence of each other, have hereunto subscribed our names as witnesses this 22nd day of February, 2005.

{Dixie L.M. Tidwell}

WITNESS

{Rose M. Cline}

WITNESS

SUBSCRIBED AND SWORN TO before me by the said MARY ELLEN LOGAN BENDTSEN, Testatrix, and [Rose Cline] and [Dixie L.M. Tidwell] Witnesses, this 22nd day of February, 2005

{Marian Gibson}

Notary Public, State of Texas

(Names in “[ ]” were hand printed by Tidwell; names in “{ }” were signed by the person named.) Despite statements in the will to the contrary, Tidwell's signature below the attestation clause was not entered in Bendtsen's presence, and the notary was not present when Bendtsen signed the will. See In re Estate of Bendtsen, 230 S.W.3d 823, 825–26 (Tex.App.-Dallas 2007, pet. denied).

After Bendtsen signed the will, Tidwell put down the camera and wrote her name and Cline's name in the blanks in the testimonium clause. Id. Cline then signed below the attestation clause. Id. Olsen, Cline and Tidwell then took the will to the notary's house where Tidwell signed below the attestation clause in the notary's presence but outside Bendtsen's presence. Id. On a new third page, the notary signed and notarized a jurat, stating the will had been “subscribed and sworn to before me by the said Mary Ellen Logan Bendtsen, Testatrix, and Rose Cline and Dixie L.M. Tidwell, Witnesses, this 22nd day of February, 2005.” However, neither Bendtsen nor Cline signed the will in the presence of the notary.

Bendtsen died on March 2, 2005. Hours later, Olsen filed an application for probate of will and issuance of letters testamentary on behalf of Dixie Tidwell, the executrix designated in the 2005 will. Olsen attached a three-page will consisting of the two pages Bendtsen signed in the emergency room, and the one-page jurat later signed and notarized by the notary. Later that day, Giron filed an application for probate of will and issuance of letters testamentary, seeking to have the 2002 will probated. After learning of the will filed by Olsen, Giron filed a petition contesting the 2005 will.

Olsen represented Tidwell throughout the will contest proceedings. The probate court ultimately granted Giron's motion for summary judgment, set aside the 2005 will, and admitted the 2002 will to probate. This Court affirmed the judgment of the trial court. Id.

Giron filed a complaint against Olsen with the State Bar of Texas. After an investigation, the Commission for Lawyer Discipline filed its original disciplinary petition, alleging Olsen had violated various provisions of the Texas Disciplinary Rules of Professional Conduct and committed the criminal offenses of attempted theft and securing execution of document by deception. On October 10, 2008, the Commission filed its first amended disciplinary petition. The same day, the Commission filed its motion for partial summary judgment on the issue of professional misconduct for violations of disciplinary rules 3.03(a), 3.03(b), 3.08(a), 8.04(a)(1), and 8.04(a)(3), arguing that the undisputed facts established Olsen's violations as a matter of law. In support of its motion, the Commission submitted: (1) Bendtsen's 2005 will and the application for its probate, (2) Olsen's verified responses to the Commission's request for admissions, (3) affidavit of Susan Farris, lead counsel and attorney of record for the Commission, attaching a video recording of Bendtsen's purported signing of the 2005 will, (4) a copy of the reporter's record from the January 31, 2005 hearing on Giron's motion for emergency order, (5) an affidavit from Judge Robert E. Price, (6) a copy of the “Opposition to Applicant's Motion for Emergency Order” prepared and filed by Olsen on February 7, 2005, (7) Bendtsen's 2002 will and the application for its probate, and (8) a copy of the “original petition contesting will” filed by Giron.

Olsen filed a “verified” response in opposition to the Commission's motion. In support of his response, Olsen submitted: (1) his own affidavit, (2) the affidavit of Burgess, (3) the affidavit of McCay, (4) Giron's February 2, 2005 motion for emergency order, (5) a proposed order for Giron's February 2, 2005 motion for emergency order, and (6) a copy of the transcript and exhibits of the November 6, 2008 deposition of Judge Robert Price. The Commission objected to Olsen's “verified” response as improper, arguing that verified responses are not proper summary judgment proof. The Commission also moved to strike the affidavit of Olsen because it failed to meet statutory requirements for an affidavit. Instead of stating such facts as would be admissible in evidence and showing the affiant was competent to testify as to the matters stated therein, Olsen's affidavit merely incorporated all the factual statements made in the response “as if stated in full herein.” Finally, the Commission moved to strike the affidavits of Burgess and McCay to the extent they referenced an “Exhibit 1” that was not attached to the affidavits.

The trial court set a...