Stahl v. Rawlins

• Decision Date: 07 June 1957
• Docket Number: No. 15291,15291
• Parties: Betty Jean STAHL et vir, Appellants, v. John A. RAWLINS, Appellee.
• Court: Texas Court of Appeals

Page 549

304 S.W.2d 549

Betty Jean STAHL et vir, Appellants, v. John A. RAWLINS, Appellee.

No. 15291.

Court of Civil Appeals of Texas, Dallas.

June 7, 1957.

Rehearing Denied July 26, 1957.

Owens & Purser, Austin, Scurry, Scurry & Pace, Dallas, for appellants.

Johnson, Guthrie & Stanfield, and John A. Rawlins, Dallas, for appellee.

YOUNG, Justice.

Pursuant to authority of Rule 166-A, Texas Rules of Civil Procedure, the trial court, after a hearing, had sustained appellee's motion for summary judgment; decreeing that Mrs. Stahl (formerly Mudge) take nothing by her suit to cancel an existing contract of employment had with John A. Rawlins; also sustaining his cross-action for enforcement of said employment contract which provided for a one-fourth interest to him in all property, real, personal or mixed, recovered by her in cause No. 94-F/J, styled Mudge v. Mudge; the contract allegedly extending to a property settlement agreed upon by the parties in their later judgment of divorce. An appeal from such summary action of the District Court has been duly prosecuted. Events leading up to above adjudication should first be related in some detail.

Marital differences between appellant, then Betty Jean Mudge, and husband Edmund W. Mudge, Jr., had resulted in their 1955 separation, she employing Judge Rawlins as attorney to institute suit for divorce and interest in community property. The employment was evidenced by written contract of May 17, 1955, drawn by the attorney and signed by her; with the suit for divorce, property rights, and custody of children filed June 28, 1955 in Juvenile Court of Dallas County. Other than formal parts, the mentioned contract for legal services is here set forth in full:

'Whereas, Mrs. Betty Jean Mudge, hereinafter called 'undersigned', presented resides at No. 5926 Averill Way, in Dallas, Texas, and is the wife of Edmund W. Mudge, who is also a resident of Dallas, Dallas County, Texas;

'Whereas, the undersigned and the said Edmund W. Mudge were duly and legally married in Walla Walla, Washington, on or about January 13, 1944, and continued to live together as husband and wife, with brief separations, until their final separation on or about March 1, 1955;

'Whereas, there were two children born to the marriage, Edmund W. Mudge, III, and Laura Jean Mudge;

'Whereas, unhappy differences have arisen between the undersigned and her said husband, wherein she avers that for a long period of time before and after she has been subjected to cruel and inhuman treatment which renders their further living together insupportable;

'Whereas, the undersigned is desirous of obtaining a final decree of divorce from the said Edmund W. Mudge, and also of obtaining her rightful interest in the community property accumulated during said marriage, and further desirous of obtaining the care, custody and control of her said children and adequate support before and after a divorce is granted and a property settlement had and effected;

'Whereas, the said Edmund W. Mudge has threatened to file suit for divorce against the undersigned, and has consulted and employed an attorney at law, to-wit: R. Guy Carter, Esq., of the Dallas Bar;

'Whereas, the said Edmund W. Mudge has made various threats to and concerning and against the undersigned; among other things, claiming to have accumulated much damaging evidence involving her; has threatened to expose her to public shame and to damage her character, and to take the custody of her children away from her and place them in the hands of relatives;

'Whereas, in connection with the threats to divorce her, he has claimed that no community property has been accumulated during their eleven (11) years of marriage and that she is entitled to nothing;

'Whereas, the undersigned believes that a large amount of community property has been accumulated during the marriage consisting of, among other things, the following:

'1. Cash, and various negotiable instruments in the possession of Edmund W. Mudge or some other person holding them for him.

'2. Oil wells, and oil producing property, royalties, interest shares, and leases, in the name of Edmund W. Mudge, and also in the name of various corporations, companies and individuals.

'3. Large holdings in stocks and bonds of every kind and nature.

'4. Substantial amounts in notes due to him, including on land and personal property to secure same.

'5. The family home on Averill Way, and a county estate on 28 acres of land on State Highway No. 869.

'6. Business enterprises, partnerships, stocks in companies and corporations and other properties both real and personal including a substantial collection of oil paintings and other valuables.

'Undersigned represents that she has the following property as her sole and separate property, to-wit:

'1. Personal jewelry in her possession, some of which was owned by her prior to her marriage and other given to her during the marriage.

'2. A 1955 model Cadillac sedan.

'Now Therefore, this confirms that the undersigned has employed and does employ John A. Rawlins, as attorney at law of the Dallas Bar to represent her in the recovery of her community interests, to present and try her cause of action for divorce against the said Edmund W. Mudge, to defend any cause of action that he may bring against her, and in any and all events to represent her in any and all courts necessary to obtain a final decree; to do all possible to enable her to retain the custody, care, control and education of the two children of the marriage; and she does hereby agree to pay said attorney a reasonable fee in connection therewith, as follows: for counsel and advice, in the past and in the future, and in the event that no divorce is granted either on account of failure or inability of either party to obtain a court decree, or in the event of a reconcilliation on terms mutually satisfactory to the parties, the sum of $25,000.00; in the event the case is prosecuted to a conclusion by either party and for services rendered in all the courts, trial or appellate, the undersigned hereby agrees to pay the said John A. Rawlins, as her attorney herewith, twenty-five per cent (25%) of all monies and properties recovered by him for her whether in cash or other properties or in trust, and whether by settlement, by suit or otherwise, and in consideration of the services performed and to be performed by said attorney, hereby conveys, sells and assigns to said attorney, John A. Rawlins, twenty-five per cent (25%) of all her rights, title and interest in and to the community estate of herself and her husband, and to her own property, real or personal, and the undersigned hereby agrees that upon request of her attorney, she will execute any supplemental instrument or instruments deemed advisable to more fully effectuate such assignment of twenty-five per cent (25%) interest in and to such properties.

'The undersigned hereby appoints the said John A. Rawlins as her attorney-in-fact, with full power to institute in her name such legal proceedings for recovery of title and possession to her properties as he may deem advisable, and further agrees that in the event of an adverse or inadequate judgment in any suit or proceeding in the trial court, said attorney shall have full power in his sole discretion to make the decision and use his best judgment as to whether or not an appeal from such judgment shall be taken, and if an appeal is taken, said attorney shall have full power, in his sole discretion to determine how far said appeal shall be carried; and undersigned further gives to said attorney, as her attorney-in-fact, full power to compromise or settle her claim for community and separate property, with or without her consent, and upon such terms and in such amounts on such percentages, as he, in his sole discretion, may deem to be to her best interest; and undersigned further hereby agrees to indemnify and save said attorney harmless and hereby releases said attorney from any claim on her part that he was negligent or failed to use the best judgment in connection with handling of her suit, but said attorney shall nevertheless be liable to her for willful misconduct or bad faith in connection with this employment.

'The undersigned agrees to cooperate with all reasonable requests of her attorney in the prosecution of any suit or action that he may bring or defend for the recovery of her property and protection of her interests in the divorce and custody proceedings, and she further agrees that she will be liable and responsible for all Court costs and expenses incurred by said attorney in connection with his representation of her in said proceedings, and undersigned understands that said costs and expenses shall be additional to any fee above referred to.'

On July 20, 1955 Mrs. Mudge sent by registered mail the following letter to appellee:

'Re: No. 94-F/J, Mudge v. Mudge.

'Dear Judge Rawlins:

'This letter is to serve as formal notice that your services as my attorney in the above named suit were discontinued as of 11:00 A.M. this 20th day of July 1955 because I have not been satisfied in the manner in which you have handled my case as discussed with you yesterday in your office. As you recall, you agreed with me in this conference that if I was not satisfied and did not have complete faith and confidence in you I should change lawyers. You further stated in front of a witness that you would allow me to employ another attorney. There was no mention of your fee in advance of my being released by you.

'This letter is to request a release allowing me to employ another lawyer and to furnish me a copy of the files of this case. I am willing to pay a reasonable fee for the services rendered in this case up to 11:00 A.M. this 20th day of July, 1955. Very truly yours, /s/ Betty Jean Mudge Mrs. Betty Jan Mudge.'

Mrs. Mudge thereafter employed the present firms of attorneys to represent her as counsel; on September 16,...