Unauthorized Practice of Law Committee v. Jansen, CB14-90-924-CV

• Decision Date: 12 September 1991
• Docket Number: No. CB14-90-924-CV,CB14-90-924-CV
• Citation: 816 S.W.2d 813
• Parties: UNAUTHORIZED PRACTICE OF LAW COMMITTEE, Appellant, v. Arthur G. JANSEN and Jansen & Company, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 813

816 S.W.2d 813

UNAUTHORIZED PRACTICE OF LAW COMMITTEE, Appellant, v. Arthur G. JANSEN and Jansen & Company, Appellees.

No. CB14-90-924-CV.

Court of Appeals of Texas Houston (14th Dist.).

Sept. 12, 1991.

Rehearing Denied Oct. 10, 1991.

Paula Pierce, Houston, for appellant.

Robert Wallis, Houston, for appellees.

Before ROBERTSON, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

The Unauthorized Practice of Law Committee of the State Bar [hereinafter UPLC] appeals from a summary judgment finding, in part, that appellee was not engaged in the unlawful practice of law. In three points of error, UPLC argues that the trial court incorrectly held that appellee, a public insurance adjuster, could continue to present first-party claims to insurance companies on the behalf of insureds. We affirm.

Arthur Jansen, and his firm, Jansen & Company [hereinafter appellee], are public insurance adjusters who represent clients on a contingent fee basis. They document and present first-party claims for property damage to insurance companies. The record indicates that Jansen has worked for over ten years as an insurance adjuster and has fulfilled all continuing legal education requirements as mandated by law. ¹ UPLC filed a declaratory judgment requesting the trial court to declare that various practices by appellee constituted the unauthorized practice of law in violation of TEX. GOV'T CODE ANN. § 81.102(a) (Vernon 1988).

After appellee filed a motion for jury trial and the case was set for trial, the parties apparently agreed that the issues involved presented only legal questions and could be resolved through cross-motions for summary judgment and agreed stipulations of fact. The trial court considered the stipulations and motions and entered "final summary judgment" agreeing with some of the contentions advanced by UPLC. The court granted declaratory relief, finding that appellee was engaged in the unauthorized practice of law, and permanently enjoined appellee from: (1) using any advertising brochures that would lead a reasonably prudent person to believe that appellee was giving advice or rendering service that required the use of legal skill or knowledge; (2) asserting a contingent fee claim against a client who has contracted with an attorney on a contingent fee basis in the same matter; (3) advising clients whether or not to accept an offered sum of money from an insurance company or executing a release in settlement of property damage claims; (4) preparing legal instruments or documents which purport to create or settle rights between third parties; and (5) advising clients of their rights, duties, or privileges under a policy of insurance concerning matters that would require legal skill or knowledge. Appellee complains of none of these findings on appeal.

The court also agreed with some of appellee's contentions and granted appellee declaratory relief which allowed appellee to continue to present first-party claims against insurance companies on behalf of the insured. Specifically, the trial court held that the following practices do not constitute the unauthorized practice of law:

A. Advising clients to seek the services of a licensed attorney if they have questions relating to their legal rights, duties and privileges under policies of insurance;

B. Measuring and documenting first party claims under property insurance policies and presenting them to insurance companies on behalf of clients;

C. Discussing the measurement and documentation presented to the insurance company with representatives of insurance companies;

D. Advising clients that valuations placed on first party property insurance claims by insurance companies is or is not accurate[.]

It is from these declarations that UPLC appeals.

This case comes to us in an unusual procedural posture. UPLC's initial action for declaratory judgment was subsequently decided on cross-motions for summary judgment and agreed stipulations of fact. A movant for summary judgment must show that there was no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). On the other hand, a case submitted to the court upon an agreed stipulation of facts under TEX.R.CIV.P. 263 is in the nature of a special verdict and "is a request by the litigants for judgment in accordance with the applicable law." Brophy v. Brophy, 599 S.W.2d 345, 347 (Tex.Civ.App.--Texarkana 1980, no writ). The court's judgment must declare only the law necessarily arising from the stipulated facts. Gibson v. Drew Mortgage Co., 696 S.W.2d 211, 213 (Tex.App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.). The question on appeal is limited to the issue of the correctness of the trial court's application of the law to the admitted facts. Gibson, 696 S.W.2d at 213; Brophy, 599 S.W.2d at 347. Under the facts of this case, the standards of review are reconcilable because we find that the trial court correctly applied the law to the agreed facts and that the summary judgment, in the form of declaratory and injunctive relief, was correct as a matter of law.

In its first and second points of error, UPLC argues that the trial court erred in finding that: (1) the measure and documentation of first-party claims under property insurance policies is not the unauthorized practice of law; (2) the presentation of the claims to the insurance companies is not the practice of law; and (3) any discussion of the claims with insurance company representatives constitutes the unauthorized practice of law. UPLC contends that the presentation of claims to insurance carriers and the discussion of losses and property damage are matters that require legal skill and knowledge. UPLC analogizes appellee's practice to settlement negotiations which has been held to be the unauthorized practice of law. See Brown v. Unauthorized Practice of Law Committee, 742 S.W.2d 34, 40 (Tex.App.--Dallas 1987, writ denied); Davies v. Unauthorized Practice Committee of State Bar of Texas, 431 S.W.2d 590, 594 (Tex.Civ.App.--Tyler 1968, writ ref'd n.r.e.). We disagree with UPLC and find, under the agreed stipulations in this case, that Brown and Davies are distinguishable.

Brown involved a rather egregious set of facts in which Ron Brown represented clients on a contingent fee basis in personal injury and property damage disputes. In a few instances, Brown represented himself to clients and insurance companies as an attorney when, in fact, he only had a year of paralegal training. Brown's contract with clients provided for a contingent fee of one-third to settle the claim and a contingent fee of forty percent if an attorney was hired to prosecute the claim with all power to choose an attorney granted to Brown. An insurance company adjuster testified that Brown made claims to insurance companies on both a first- and third-party basis. The adjuster testified that she would make offers to settle cases with Brown and he would make counteroffers until a negotiation was reached. Settlement checks would be made payable to "Ron Brown, Attorney at Law" as co-payee. The Dallas Court of Appeals held...