Glenn Vickery v. Commission For Lawyer Discipline, 14-97-00586-CV

• Decision Date: 29 July 1999
• Docket Number: No. 14-97-00586-CV,14-97-00586-CV
• Citation: 5 S.W.3d 241
• Parties: <!--5 S.W.3d 241 (Tex.App.-Houston 1999) GLENN W. VICKERY, APPELLANT v. COMMISSION FOR LAWYER DISCIPLINE, APPELLEE Court of Appeals, Fourteenth District of Texas Opinion of
• Court: Texas Court of Appeals

Page 241

5 S.W.3d 241 (Tex.App.-Houston[14th Dist.] 1999)

GLENN W. VICKERY, APPELLANT v. COMMISSION FOR LAWYER DISCIPLINE, APPELLEE

No. 14-97-00586-CV

Court of Appeals, Fourteenth District of Texas

Opinion of July 29, 1999 withdrawn.

Corrected Opinion filed August 19, 1999.

Rehearing Overruled Nov. 18, 1999.

On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 96-14161

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[Copyrighted Material Omitted] Panel consists of Justices Hudson, Wittig and Lee.^*

OPINION

J. Harvey Hudson Justice

The Commission for Lawyer Discipline [hereafter referred to as the "Commission"] brought a disciplinary action against appellant, Glenn W. Vickery. After considering the evidence and testimony before him, the trial Judge found Vickery had violated multiple provisions of the Texas Disciplinary Rules of Professional Conduct and suspended him from the practice of law for two years, probated all but three months of the suspension, and ordered him to pay $50,000 in attorney fees. We affirm.

Glenn Vickery, while married to his wife, Helen, enjoyed a very successful law practice. During their marriage, Glenn and Helen Vickery acquired several residences, extensive artwork, a multimillion dollar annuity, and numerous other assets. In 1986, however, one of Vickery's clients sued him for malpractice. Fearing a possible judgment would exceed the policy limits of his malpractice insurance, Vickery told his wife, in 1990, that their personal assets were in danger. At that time, Vickery proposed a divorce. He explained to Helen that a divorce would allow them to shield half their assets from any judgment arising out of the malpractice claim.

Helen did not favor the idea of a divorce for a least two reasons: (1) Helen believed she and Glenn had a happy marriage, and (2) they had a daughter, Jessica. Vickery told Helen the arrangement was necessary purely to protect their assets. Moreover, by filing the divorce in Harris County, instead of Liberty County where they were living at the time, Vickery promised to keep the proceeding quiet. He also promised to reunite as soon as the malpractice suit was concluded. Vickery even recited some of their friends as examples of couples who had allegedly employed this very technique to protect their own assets. Because Helen had always allowed Vickery to take the lead in managing their financial and legal affairs, she reluctantly agreed to the divorce.

Helen did not initially retain counsel to represent her in the divorce. Rather, Vickery asked a friend and colleague, Dianne Richards, to represent Helen in the proceeding. Vickery candidly told Richards that he and Helen wanted a divorce to protect their assets, and he instructed Helen to send Richards a retainer. Following Vickery's instructions, Richards filed the divorce petition before receiving Helen's check and without consulting her "client" to see whether she even wanted a divorce. In fact, Richards had little, if any, contact with Helen. The record suggests Richards acted solely at Vickery's direction: (1) Richards gave Vickery a divorce form to modify; (2) Vickery modified the form and returned it to Richards; (3) Richards incorporated the changes and filed it with the clerk; (4) Richards never contacted Helen to see whether she agreed with the property division; and (5) Richards never conducted any investigation to determine whether the division was fair and equitable.

Vickery instructed Helen that, for the sake of appearances, they would have to live apart from each other until the malpractice action had been resolved. He suggested that his wife and daughter should remain on their Moss Hill Ranch in Liberty County while he moved into one of their other residences in Harris County. Then, at Vickery's behest, Richards prepared and filed Vickery's amended answer and cross-petition. Trusting her husband's judgment, Helen did not attend the court proceeding. Only Richards and Vickery appeared at the hearing, and the divorce decree was obtained on Vickery's testimony alone.

After the decree was final, the pretended divorce became all too real. First, Helen discovered that Vickery had married one of her close friends, Lucille. Second, Vickery immediately instituted an action to evict his former wife and daughter from the Moss Hill Ranch where they had lived during the marriage. Third, Helen discovered that significant assets had not been included in the property division. Realizing she had been defrauded by her husband, Helen retained counsel and filed a bill of review to overturn the divorce decree.

After Helen filed the bill of review, Vickery asked Allyn Hoagland, a lawyer with whom he shared office space, to convey a substantial settlement offer directly to Helen without the knowledge of her attorney. Although both Vickery and Hoagland were aware that Helen was represented by counsel, Hoagland instructed Helen not to contact her lawyer. He also suggested that if she did not accept the offer, Vickery might try to have her arrested and prosecuted for an alleged burglary of his Baytown townhouse. Notwithstanding this threat, Helen refused the offer. She subsequently obtained a multimillion dollar verdict against Vickery. She also filed a complaint with the Disciplinary Committee which ultimately resulted in the suspension being appealed here.

Communication With One Represented by Counsel

The trial court concluded that Vickery violated Disciplinary Rule 4.02(a) which states:

In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the lawyer or is authorized by law to do so.

Tex. Disciplinary R. Prof'l Conduct 4.02(a). In support of this portion of its judgment, the trial court made the following finding of fact:

In November 1992, Glenn Vickery induced a friend and colleague of his, Allyn Hoaglund, to contact Helen Vickery, knowing she was represented by counsel, and to set up a meeting with her to discuss the case.

In his first point of error, Vickery contends this finding does not support the judgment because the court failed to make findings on two elements of Rule 4.02(a), namely, that at the time the communication was made, Vickery (1) was representing a client, and (2) did not have the consent of Helen's lawyer. The Commission concedes the court made no findings regarding the aforementioned elements, but claims such findings may be implied under Rule 299 of the Rules of Civil Procedure. Vickery, however, argues that no implied findings in support of the judgment can be made here because only "omitted unrequested elements" may be implied on appeal. See Tex. R. Civ. P. 299. Vickery asserts that after the trial court made findings of fact, he requested additional, albeit negative, findings on the omitted elements in question. In other words, Vickery asked the court to find the communication was not made in the context of representing a client or without the consent of Helen's attorney.¹ Because the court made no additional findings and Rule 298 states that "[n]o findings or Conclusions shall be deemed or presumed by any failure of the court to make any additional findings or conclusions," Vickery contends we are expressly prohibited by both Rules 298 and 299 from presuming the trial court made any implied findings in support of its judgment. See Tex. R. Civ. P. 298.

Rules 298 and 299 were spawned by a general presumption of validity accorded judgments of a court of general jurisdiction. For the reasons stated below, we find Vickery's interpretation of these rules to be antithetical to a general presumption of validity and contrary to both public policy and logic.

Public Policy Favors the Presumption of Validity

Public policy favors the validity of judgments. See Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325, 328 (1895). Thus, there is a general presumption of validity extending to the judgments of courts of general jurisdiction. Without such a presumption, a court's judgment would have very little import and "there would be no end to troublesome litigation." See Williams v. Tooke, 116 S.W.2d 1114, 1120 (Tex. App.-Texarkana 1938, writ dism'd).

[A] judgment, the final action taken by a court of competent jurisdiction in disposing of matters properly before it, is of such solemn import and of such supreme importance that every intendment should be given it in order to sustain its validity, that to give further emphasis to the thought would be almost a matter of triteness. Judgments constitute the considered opinion of courts; they are judicial acts with the primary objective in view of concluding controversies with as high a degree of exact Justice as it is humanly possible to do. When an attack is made upon a judgment, whether directly or collaterally, all presumptions consonant with reason are indulged in order to uphold the binding effect of such judgment.

Jackson v. Slaughter, 185 S.W.2d 759, 761 (Tex. Civ. App.-Texarkana 1944, writ ref'd w.o.m.).

Moreover, the presumption of validity extends to judgments derived with or without the benefit of a jury. In fact, the presumption of validity is perhaps even stronger in a bench trial where an experienced Judge exercises the functions of a jury and is charged with the responsibility of assessing the credibility of the witnesses, logically evaluating the evidence, rationally resolving factual disputes on the basis of such evidence, and correctly applying the law to the facts. See Mortensen v. Mortensen, 186 S.W.2d 297, 299 (Tex. Civ. App.-San Antonio 1945, no writ); Meyers v. Baylor University, 6 S.W.2d 393, 395 (Tex. Civ. App.-Dallas 1928, writ...