Thomas v. Mandell & Wright
| Decision Date | 12 September 1968 |
| Docket Number | No. 15335,15335 |
| Citation | 433 S.W.2d 219 |
| Parties | Enola M. THOMAS, Appellant, v. MANDELL & WRIGHT, Appellees. . Houston (1st Dist.) |
| Court | Texas Court of Appeals |
Newton B. Schwartz, Houston, Mack H. Hannah, III, Port Arthur, of counsel, for appellant.
David Bland, Houston, Barrow, Bland & Rehmet, Houston, of counsel, for appellees.
Joseph D. Jamail, John Gano, W. James Kronzer, Houston, amici curiae.
This is a suit to rescind a contract by which appellant employed appellees to represent her in the prosecution of a claim arising out of the death of her husband, and by which a portion of the cause of action was conveyed to appellees as compensation for the services to be rendered by them. There is also involved the question of whether the assignment of interest contained in the contract can be enforced where the contract of employment was unilaterally terminated by appellant. Both parties asked for declaratory judgment and filed motions for summary judgment.
The trial court denied appellant's motion for summary judgment, and sustained that filed by appellees. Judgment was rendered that appellant take nothing by her suit. The court included in the judgment the following findings pursuant to the request for declaratory judgment:
'(a) The contract of 'Employment of Attorneys' dated the 27th day of October, 1966, a copy of which is attached to the First Amended Original Petition of Plaintiff, Mrs. Joseph (Enola M.) Thomas on file herein, is legal, valid, and enforceable;
'(b) The contract of 'Employment of Attorneys' effects a transfer and assignment to Defendants, Mandell & Wright, a law partnership, and its partners, Arthur L. Mandell, Herman Wright, John N. Barnhart, Tom Kirtley and Sidney Ravkind of a one-third (1/3) undivided interest in all claims, actions, demands, or causes of action arising by operation of law for damages or other amounts due and owing to Plaintiff, Mrs. Joseph (Enola M.) Thomas, or the Estate of Joseph Thomas, Deceased, husband of Plaintiff, because of the death of said Joseph Thomas;
'(c) Also transferred and assigned by such 'Employment of Attorneys' contract is a one-third (1/3) undivided interest in any compromise or settlement of such claims, actions, demands, or causes of action; any judgment now rendered or hereafter to be rendered in connection with such claims, actions, demands, or causes of action; and any compromise and settlement of such judgment or judgments now rendered or hereafter to be rendered;
'(d) By reason of said contract of 'Employment of Attorneys', Mandell & Wright, a law partnership, and its partners, Arthur L. Mandell, Herman Wright, John N. Barnhart, Tom Kirtley and Sidney Ravkind are the legal owners of the one-third (1/3) undivided interests described in paragraphs (b) and (c) above.'
The pleadings and motions before the court were unsworn. The summary judgment evidence consisted of an affidavit of Newton B. Schwartz, the deposition of appellant, and the depositions of appellees.
Since this is a summary judgment proceeding, the testimony must be viewed in the light most favorable to appellant and where a conflict in the testimony appears that given by Mrs. Thomas will be considered.
Joseph Thomas, appellant's husband, was employed aboard the vessel Gulfstag, and he lost his life when the vessel sank at sea. Surviving him were his wife and seven children. Six of these children were minors. The oldest son, however, was twenty years of age and a member of the Armed Services of this Country. Mrs. Thomas heard that her husband was missing between 6:30 and 7:00 o'clock A.M ., October 24, 1966. About noon of that day Mr. Johnson, employed by the National Maritime Union, and Mr. Herman Wright called on her. Mr. Johnson introduced Mr. Wright and told her she would need a lawyer. There was no other conversation except that Mr. Johnson got one of Mr. Wright's business cards and wrote his (Johnson's) name and telephone number on the back of it and gave it to her. He then told her that if she needed help she could call him at any time.
She stated that she remembered seeing Mr. Wright She also remembered telling them that her son was on his way home and that she wanted to wait until he got there before she did anything.
A few days later, probably on October 27, Mr. Patton, the agent at Port Arthur for the National Maritime Union, accompanied by Mr. Wright, called on her again. Her son was home on emergency leave and was present at this meeting. Mr. Patton didn't have anything to say other than,
Later she said that Mr. Patton explained about the benefits from the union, and wages for the voyage on this occasion. She didn't remember who opened the conversation, but Mr. Wright told her that she would need a lawyer. She did not remember that he explained to her any type of benefit she was entitled to receive or that she expressed to him her concern about the 'financial picture of the family.' Mr. Wright wrote down the names and ages of the children. He handed her the contract. She glanced over it, but didn't remember reading it. Mr. Wright explained to her about the one-third. She didn't remember whether her son read it or not, but they did not discuss it. She recognized her signature. With reference to the contract she said:
In answer to the question, 'Who opened the conversation?', she answered:
Mrs. Thomas testified later in the deposition as follows:
'Q All right. Now, is that all that happened, now, at the meeting of October 27th?
'A That's all I can recall. As I said, he said he would come back because they needed more information.
'Q All right. And I believe--
'A And then--this is something else that I remember Mr. Wright saying to me--then I thought about it afterward. He said--when he told me about he had signed all the rest up. And then he said, 'Now, we are going to--'
'Now, that was after I had signed this. When I had signed this then he told me this: He said, 'Now, we are going to represent you folks.' That was his words to me.
'Q You what?
'A You folk. Well, I took it for granted meant all those he had signed up.
'Q That was after?
'A After I signed this.
'Q I see.
'A Since then he began to tell me they was going to represent us. And he said,
'Now, he explained that to me.'
Mr. Wright did not bring up any amount of money and she did not remember the terms 'exoneration' or 'limitation of liability' being used. Neither Mr. Wright nor Mr. Patton forced her to sign the employment agreement. When Mr. Patton came to see her after the controversy arose she told him that he did not in any way persuade her to sign with Mandell & Wright. Five days later she called Mr. Hannah and asked him if she could change lawyers. He told her that it was her privilege. She then asked if she could come to his office and see him. After this conversation she called Mr. Wright and told him she had changed her mind and did not want Mandell & Wright to represent her. She then visited Mr. Hannah and signed a contract with him providing for a one-third contingent interest fee. No one suggested that she go to see Mr. Hannah. She knew him, but not socially. She had never actually met him personally. He dictated a letter to Mandell & Wright confirming her telephone conversation and demanding the return of the contract which she read, signed and mailed.
Mrs. Thomas testified:
Mrs. Thomas reiterated that the reason she changed lawyers was that she wanted to be represented alone and not with a group. She used such language as 'that is the sole reason,' or 'only' reason. She gave the following testimony concerning a conservation she had with Mr. Wood and Mr. Barnhart when they called on her to discuss the matter:
'Q About the group?
'A Uh-huh.
'Q And that's the only reason you told them?
'A That's right.
'Q That's the only type of complaint you made?
'A That's it.
'Q You didn't accuse them of fraud, or--
'A Oh, no.
'Q In any way, shape or form?
'A No.
'Q And you didn't accuse them of misrepresenting anything to you?
She also gave this testimony at her deposition:
'Q And at the time you signed the contract with Mr. Mandell here--I believe it's Plaintiff's Exhibit 1--you intended to convey to them one-third interest in the claim?
'A At the time?
'Q At that time.
'A At that time, before I decided that I would change.
'MR. BLAND: I believe that's all.
'A When you hear of them on all sides, you need a lawyer--you need a lawyer and the other lawyer's the only lawyer available at the time, well, then what else can you do when you are in shock and don't know half of what you are doing?'
There is evidence that a contest was filed to a limitation of liability proceeding filed in the United States District Court for the Eastern...
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