
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-10-00211-CV


Bob T. Patterson, Appellant

v.

Perry Pritchard, Appellee




FROM THE DISTRICT COURT OF LLANO COUNTY, 424TH JUDICIAL DISTRICT
NO. 16134, HONORABLE PAUL DAVIS, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		The dispositive issue in this appeal is whether an agreement between appellant
Bob T. Patterson and appellee Perry Pritchard was illegal on its face as a matter of law.  Pritchard
moved for traditional and no-evidence summary judgment on all of Patterson's causes of action on
the ground that the agreement was made for the unauthorized practice of law and, therefore, illegal
and unenforceable.  See Tex. R. Civ. P. 166a(c), (i).  Without specifying the basis for its ruling, the
trial court granted Pritchard's motion.
		On appeal, Patterson challenges the trial court's summary judgment ruling.  In four
issues, he urges:  (i) Pritchard, as the party with the burden to prove his affirmative defense of
illegality, was not entitled to no-evidence summary judgment; (ii) Pritchard failed to prove all
elements of his affirmative defense of illegality to be entitled to traditional summary judgment;
(iii) the trial court erred in considering and granting oral objections to Patterson's summary judgment
evidence; and (iv) in any event, the trial court erred in granting summary judgment against
Patterson's fraud, unjust enrichment, quantum meruit and constructive trust claims.  Because we
conclude that the trial court erred in granting summary judgment, we reverse the trial court's final
summary judgment and remand the case to the trial court for further proceedings consistent with this
opinion.

BACKGROUND

		The agreement at issue concerned real property that Pritchard sold in 2002 to third
parties.  The third parties executed promissory notes for the purchase of the property but failed to
make payments owed under the notes.  Pritchard thereafter asked Patterson for his assistance to
recover the monies owed under the notes or the property, and the parties entered into an agreement
in November 2005.  The agreement provided in its entirety:
 
	AGREEMENT signed and dated, this the 22nd day of November, 2005 between Bob
T. Patterson ("Patterson") of Bastrop County, Texas and Perry Pritchard ("Pritchard")
of Mart, Texas wherein the parties agree that Patterson has been requested by
Pritchard to obtain payment of the Notes attached hereto as Exhibit A or to obtain a
return of the underlying collateral property to Pritchard. [ (1)]
 
	As compensation to Patterson for his services under this agreement, Pritchard agrees
to pay to Patterson fifty-one percent (51%) of the monies collected, or in the event
of the return of the collateral property a fifty-one percent (51%) interest in the
ownership of the property.  Compensation due hereunder will be made within ten
(10) days of the collection or of the repossession of the title to the property.

	Pritchard shall have the right of a sixty-day (60) written notice to terminate this
agreement if within three (3) years from this date if there is not a suit pending in a
State or Federal court on Pritchard's behalf to recover the collateral property.  Notice
of the termination to be sent by United States registered mail to Patterson at the
address listed below. 

	Patterson shall have the right of a sixty-day (60) written notice to cancel this
agreement if within the three (3) years he determines that there are no reasonable
sufficient legal grounds to anticipate recovering the monies or the property.  Notice
of the termination to be sent by United States registered mail to Pritchard at the
address listed below.

	Expenses incurred by Patterson, unless agreed to by Pritchard prior to their
disbursement, shall be the sole responsibility of Patterson.  Any expenses that are to
be reimbursed by Pritchard to Patterson, or his designee, will be paid within ten-days
(10) of their disbursement.

	Other than in respects to the items stated in this agreement, there shall be no liability
of either party to the other, or to any third party.  Any disputes will be settled by a
Board of Arbitrators under the laws of the State of Texas.


At the same time that the parties signed the agreement, Pritchard signed a limited power of attorney
appointing Patterson "as lawful attorney for him" for the "[c]ollection of the note . . . or foreclosure
on the Note and the collection of the underlying collateral property." (2)  Patterson was not and never
has been an attorney.

		Patterson brought this suit in 2008.  In his pleadings, Patterson alleged:  "In exchange
for Plaintiff's efforts, expense and attorney's fees to be expended, Pritchard agreed to pay Plaintiff
fifty-one percent (51%) of the monies collected, or to grant Plaintiff a fifty-one percent (51%)
interest in the ownership of the real property recovered."  Patterson alleged that he fully performed
under the terms of the agreement and that Pritchard breached the agreement by refusing to convey
an interest in the property. Patterson stated that he hired an attorney who filed suit on behalf of
Pritchard and that, at the conclusion of the litigation, Pritchard recovered the property at issue but
refused to convey any interest in the property to Patterson.  Patterson sought specific performance
of the agreement, a constructive trust, an accounting, and damages.  As to his request for a
constructive trust, Patterson alleged that Pritchard "acted inequitably with the intent to take
Plaintiff's services" without compensation and "has been unjustly enriched by his inequitable
conduct."
		In February 2010, Pritchard filed a motion for summary judgment.  At the same time,
he amended his answer to assert illegality as an affirmative defense.  Although he moved for
no-evidence and traditional summary judgment, the sole ground to support his motion was that the
agreement was "an unenforceable contract made for the illegal practice of law."  He contended that
the agreement on its face was a "contract for legal services by a nonlawyer and any work done
pursuant to the contract would constitute the unauthorized practice of law."  Pritchard asserted that,
without a valid contract, Patterson's "breach of contract claim and related equitable claims for a
constructive trust, unjust enrichment, and for an accounting all must fail."
		Pritchard filed summary judgment evidence to support his motion.  His evidence
included a copy of the agreement, the power of attorney, correspondence from Pritchard's attorney
in this suit to Karl Quebe, the attorney who represented Pritchard in the underlying suit in which
Pritchard recovered the property, and documents from the underlying suit.  The documents included
affidavits from Quebe and Pritchard, the settlement agreement, the agreed motion to dismiss and
order of dismissal, and a transcript of the oral deposition of Pritchard.
		Patterson responded to the motion with evidence and amended his petition. In his
amended petition, Patterson maintained his previously asserted claims and added fraud, breach of
a joint venture agreement between the parties to develop property, and breach of fiduciary duty.  His
evidence in response to the summary judgment motion included affidavits of Patterson and Quebe. 
Patterson averred concerning his negotiation and dealings with Pritchard and his management of the
property on Pritchard's behalf.  Patterson averred that he had an agreement with Quebe to
compensate Quebe, that he had paid expenses in the underlying suit, that he managed the property
and "put it in condition to rent or sell it," and that he had "paid at least $1000 per month in property
taxes beginning in October, 2008, and continuing to date."  He also averred that he was out of pocket
expenses for insurance on the property, lawn mowing, clean up, and survey work.  As to his
relationship with Pritchard, he averred that he does "not act as an attorney for anyone" and he has
"never 'represented' Mr. Pritchard."
		Quebe averred that he attended a meeting with Patterson and Pritchard in November
2005, at which, "Pritchard was told that [Quebe] was a lawyer who would be handling the suit
referenced in the [agreement]" and Pritchard signed the agreement.  Quebe also averred concerning
the resolution of the underlying suit and his representation of Pritchard in that suit.  Quebe filed the
suit on Pritchard's behalf and, among other pleadings, a motion for summary judgment with an
affidavit by Pritchard. In the affidavit, Pritchard averred that Quebe represented him.  Quebe also
represented Pritchard at Pritchard's deposition and at the mediation in which a settlement was
reached.  The agreement and pleadings from the underlying suit were attached to Quebe's affidavit.
		After a hearing, the trial court granted Pritchard's motion for summary judgment.  The
trial court did not specify the basis for its ruling.  The trial court also sustained objections to the
admissibility of certain paragraphs of Patterson's affidavit to the extent those paragraphs varied the
terms of the agreement and a paragraph of Patterson's affidavit in which he averred that Pritchard
relied upon Quebe to advise him concerning the underlying suit.  This appeal followed.

ANALYSIS

Standard of Review
		We review a trial court's summary judgment rulings de novo.  Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  To prevail on a traditional motion for summary
judgment, the movant must show that there are no genuine issues of material fact and that it is
entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c).  A movant seeking a no-evidence
summary judgment must assert that "there is no evidence of one or more essential elements of a
claim or defense on which an adverse party would have the burden of proof at trial." Tex. R. Civ.
P. 166a(i). "The court must grant the motion unless the respondent produces summary judgment
evidence raising a genuine issue of material fact" on the challenged element.  Id.; see Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006).  When reviewing a summary judgment, we must
take evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the
nonmovant, and resolve any doubts in the nonmovant's favor.  Mack Trucks, 206 S.W.3d at 582;
Dorsett, 164 S.W.3d at 661.  If the trial court does not specify the grounds for its summary judgment,
we must affirm the summary judgment "if any of the theories presented to the trial court and
preserved for appellate review are meritorious."  Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 216 (Tex. 2003).
		Patterson's issues also raise matters of contract construction.  When a court concludes
that contract language can be given a "'certain or definite legal meaning,'" then the language is not
ambiguous, and the court "'will construe the contract as a matter of law.'"  SAS Inst., Inc.
v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005) (quoting Coker v. Coker, 650 S.W.2d 391, 393
(Tex. 1983)).  "Contract terms are given their plain, ordinary, and generally accepted meanings
unless the contract itself shows them to be used in a technical or different sense."  Dorsett,
164 S.W.3d at 662.

Did the trial court err in granting no-evidence summary judgment?

		As an initial matter, Patterson urges that, to the extent the trial court granted a no-evidence summary judgment, that the trial court erred because Pritchard's motion challenging the
validity of the agreement was based upon his affirmative defense of illegality.  In the no-evidence
portion of his motion for summary judgment, Pritchard claimed that there was no evidence that the
agreement was valid and enforceable.  Because contracts are presumed legal, however, a party
asserting illegality has the burden of proof.  See Signal Peak Enterprs. of Tex., Inc. v. Bettina Invs.,
Inc., 138 S.W.3d 915, 920-21 (Tex. App.--Dallas 2004, pet. struck) (presumption in favor of legality
of contracts).  As the party with the burden to prove illegality, Pritchard was not entitled to a
no-evidence summary judgment.  See Tex. R. Civ. P. 94, 166a(i); Thomas v. Omar Invs., Inc.,
156 S.W.3d 681, 685 (Tex. App.--Dallas 2005, no pet.) (no-evidence summary judgment not
available to a defendant with respect to affirmative defenses because defendant has the burden of
proof); Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680-81 (Tex. App.--Houston [14th Dist.] 2003,
no pet.) (same).  We, therefore, conclude that the trial court erred in granting a no-evidence summary
judgment in favor of Pritchard.

Did the trial court err in granting traditional summary judgment?

		 To be entitled to traditional summary judgment, Pritchard had to conclusively
establish his affirmative defense of illegality.  See Tex. R. Civ. P. 166a(c); Diversicare Gen. Partner,
Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); Nowak, 110 S.W.3d at 680 ("Only when a party
conclusively proves every element of its affirmative defense is it entitled to summary judgment."). 
In his summary judgment motion, Pritchard challenged the agreement based solely on the face of the
agreement, characterizing the agreement as an illegal "contingency fee" agreement made for the
unauthorized practice of law.
		A court can declare a contract void as illegal and refuse to enforce it.  See Lewis
v. Davis, 199 S.W.2d 146, 148-49 (Tex. 1947).  But, when two constructions of a contract are
possible, courts must apply the construction that does not result in a violation of the law.  See id. at
149; Ross v. Union Carbide Corp., 296 S.W.3d 206, 218 (Tex. App.--Houston [14th Dist.] 2009,
pet. denied); Gupta v. Eastern Idaho Tumor Inst., Inc., 140 S.W.3d 747, 752 (Tex. App.--Houston
[14th Dist.] 2004, pet. denied) (generally "contract to do a thing which cannot be performed without
a violation of the law is unenforceable" but "courts give preference to the construction that does not
violate the law"); Signal Peak Enters. of Tex., Inc., 138 S.W.3d at 920-21.  Pritchard then had to
conclusively establish that the agreement on its face could not have been performed in a legal
manner to be entitled to summary judgment.  See Rubio, 185 S.W.3d at 846; Lewis, 199 S.W.2d at
148-49; see also Texas A&M Univ. v. Lawson, 127 S.W.3d 866, 873-74 (Tex. App.--Austin 2004,
pet. denied) (agreement not illegal or void "that could have been performed in a legal manner"). (3)
		The legislature has defined the "practice of law" to mean "the preparation of a
pleading or other document incident to an action or special proceeding or the management of the
action or proceeding on behalf of a client before a judge in court as well as a service rendered
out of court, including the giving of advice or the rendering of any service requiring the use of
legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of
which under the facts and conclusions involved must be carefully determined."  Tex. Gov't
Code Ann. § 81.101(a) (West 2005); see also Tex. Penal Code Ann. § 38.123 (West 2011)
(offense of unauthorized practice of law defined); Brown v. Unauthorized Practice of Law Comm.,
742 S.W.2d 34, 41 (Tex. App.--Dallas 1987, writ denied) ("The practice of law embraces in general
all advice to clients and all action taken for them in matters connected with the law.").  The
legislature's definition is "not exclusive and does not deprive the judicial branch of the power and
authority under both this chapter and the adjudicated cases to determine whether other services and
acts not enumerated may constitute the practice of law."  Tex. Gov't Code Ann. § 81.101(b) (West
2005); see Unauthorized Practice Comm. v. Cortez, 692 S.W.2d 47, 51 (Tex. 1985) (courts have
"inherent power" to determine whether activities constitute the unauthorized practice of law on a
"case by case basis").
		If possible, we are required to apply a construction of the agreement that does not
violate the law and, here, the language can be read in a way that does not require a violation of the
law.  See Lewis, 199 S.W.2d at 149.  The agreement states:  "[T]he parties agree that Patterson has
been requested by Pritchard to obtain payment on the Notes . . . or to obtain a return of the
underlying collateral property to Pritchard."  The plain and ordinary meaning of this language does
not require Patterson to prepare "a pleading or other document incident to an action or special
proceeding" or to manage "the action or proceeding on behalf of [Pritchard] before a judge in court"
or otherwise personally to render "any service requiring the use of legal skill or knowledge."  See
Tex. Gov't Code Ann. § 81.101(a); Dorsett, 164 S.W.3d at 662; cf. Tex. Fin. Code Ann.
§ 392.001(6) (Tex. 2006) (definition of debt collector not limited to an attorney); Crain
v. Unauthorized Practice of Law Comm., 11 S.W.3d 328, 333 (Tex. App.--Houston [1st Dist.] 1999,
pet. denied) (non-attorney collection agency may not prepare and file mechanic's liens or lien
affidavits on others' behalf).
		On its face, the agreement also did not preclude Patterson from hiring an attorney to
provide legal services to Pritchard to recover the property.  The agreement did provide, however, that
Patterson would be responsible for "expenses incurred."  In the event that Patterson hired an attorney
then, the parties agreed that he would be responsible for the attorney's fees incurred.  See
Anglo-Dutch Petroleum Int'l, Inc. v. Haskell, 193 S.W.3d 87, 104-05 (Tex. App.--Houston [1st
Dist.] 2006, pet. denied) (litigation funding agreements are legal); see also Tex. Disciplinary R.
Prof'l Conduct 1.08(e) (attorney's fees may be paid by non-client as long as client consents, no
interference with attorney's independent judgment or attorney-client relationship, and confidential
information protected); cf. Unauthorized Practice of Law Comm. v. American Home Assurance,
261 S.W.3d 24, 35 (Tex. 2008) (insurer does not engage in unauthorized practice of law by retaining
attorney to provide its insured a defense); Plains Steel Bldg., Inc. v. Mathis, 446 S.W.2d 717, 719
(Tex. Civ. App.--Amarillo 1969, writ ref'd n.r.e.) (contract not illegal even though plaintiff not
master electrician who could personally obtain permit required to undertake contract work).
		Further, in the event that Patterson hired an attorney to represent Pritchard, nothing
in the agreement gave Patterson the right to control the relationship between Pritchard and the
attorney or required the attorney to consult with or otherwise obtain Patterson's consent before
taking action on behalf of Pritchard.  See Tex. Disciplinary R. Prof'l Conduct 5.04(c) ("A lawyer
shall not permit a person who . . . pays the lawyer to render legal services for another to direct or
regulate the lawyer's professional judgment in rendering such legal services.").
		As to the clauses addressing the parties' respective rights to terminate the agreement,
Patterson had the right to terminate the agreement if he determined that there "[were] no reasonable
sufficient legal grounds to anticipate recovering the monies or the property."  The plain meaning of
this clause allowed Patterson's assessment of legal strength for his own personal evaluation, not
necessarily for advising Pritchard, and his right to terminate was not conditioned on advising or
otherwise rendering any service to Pritchard.  The clause allowing Pritchard to terminate was
conditioned on whether a suit had been filed on his behalf within three years.  This clause similarly
did not require Patterson to provide legal advice to Pritchard or personally to represent Pritchard in
the referenced suit but gave Pritchard the right to terminate based upon whether an objective event
had occurred within a set period of time.  On their face then, the termination clauses did not require
Patterson to take an action that would constitute the unauthorized practice of law.  See Tex. Gov't
Code Ann. § 81.101(a); Rubio, 185 S.W.3d at 846; Lewis, 199 S.W.2d at 149; Lawson, 127 S.W.3d
at 873-74.
		Pritchard focuses on language in the power of attorney that Pritchard appointed
Patterson "as lawful attorney for him" for "[c]ollection of the note . . . or foreclosure on the Note and
the collection of the underlying collateral property."  See Jones v. Kelley, 614 S.W.2d 95, 98 (Tex.
1981) ("The general rule is that separate instruments or contracts executed at the same time, for the
same purpose, and in the course of the same transaction are to be considered as one instrument, and
are to be read and construed together.").  Pritchard urges that collection of the note and foreclosure
are legal services.  The "limited power of attorney," however, expressly authorized Patterson only
to take actions on Pritchard's behalf that Patterson "shall lawfully do or cause to be done by
virtue hereof."  Further, a power of attorney generally grants "someone authority to act as agent or
attorney-in-fact for the grantor."  Black's Law Dictionary 1290 (9th ed. 2009); see Harkins
v. Murphy & Bolanz, 112 S.W. 136, 138 (Tex. Civ. App.--Dallas 1908, writ dism'd) (power of
attorney does not authorize one to act as attorney-at-law); cf. Tex. Estates Code Ann. §§ 491(1)
(durable power of attorney allows attorney in fact to "demand, receive, and obtain by litigation,
action, or otherwise any money or other thing of value to which the principal is, may become, or may
claim to be entitled"),  500 (West 2010) (durable power of attorney relating to claims and litigation). 
Because non-lawyers may serve as agents or attorneys in fact, actions taken by Patterson pursuant
to the limited power of attorney would not necessarily have constituted the unauthorized practice of
law.  See Lewis, 199 S.W.2d at 149.
		Pritchard relies upon Newton v. Delespine, No. 12-05-00113-CV, 2006 Tex. App.
LEXIS 10361 (Tex. App.--Tyler 2006, pet. denied) (mem. op.), to support his proposition that the
agreement was an unenforceable contract for the illegal practice of law.  In that case, the issue was
the legality of an agreement between two inmates, Newton and Delespine.  Id. at *1-2.  Pursuant to
the agreement, Newton agreed to provide "professional advice and management of legal services"
in two probate matters and litigation arising from those matters in exchange for compensation.  Id. 
The agreement stated that "[a]ttorney's fees are contingent and percentage of recovery dependant
[sic] on size of estate."  Id. at *8.  The contract also empowered Newton to "advise and work with
an attorney" on Delespine's behalf and "for said attorney to file such legal actions as may be deemed
advisable by [Newton], and said attorney."  Id. at *8-9 (emphasis added).  Delespine further gave
Newton a power of attorney specifically "for the professional management of legal services." 
Id. at *9.
 Newton is distinguishable from our facts.  Although that appeal also was from a
summary judgment ruling that the contract was not enforceable, the summary judgment evidence
there showed that, pursuant to the parties' agreement, "Newton did legal research and prepared legal
documents involving the use of legal skill and knowledge" and that he "advised Delespine regarding
a will contest . . . and regarding his original criminal conviction."  Id. at *11.  Further, Newton did
not dispute that he had provided legal services but argued that his actions were justified because he
acted pursuant to the power of attorney.  Our sister court disagreed, concluding that the
"authorization to act as an attorney in fact under a power of attorney is not an authorization to
practice law."  Id. at *15.  Applying our sister court's analysis here, Pritchard's signing the power
of attorney does not amount to an authorization for Patterson to practice law but could be construed
as authorizing Patterson to act as Pritchard's agent concerning the note and the property in a way that
did not require Patterson to commit the unauthorized practice of law.  Moreover, there was no
evidence that Patterson actually provided legal services to Pritchard (4) and, in contrast with the
contract between Newton and Delespine, the agreement here did not require Patterson's consent or
advice before Quebe took action on behalf of Pritchard in the underlying suit.
		Because the agreement is capable of being construed in a way that would allow the
parties to perform their obligations in a legal way, Pritchard failed in his burden to conclusively
establish the agreement was illegal on its face as a matter of law.  See Lewis, 199 S.W.2d at 149. 
We, therefore, conclude that the trial court erred in granting traditional summary judgment in favor
of Pritchard.










CONCLUSION
		Because we conclude that the trial court erred in granting summary judgment, we
reverse the trial court's final summary judgment and remand the case to the trial court for further
proceedings consistent with this opinion. (5)


						__________________________________________
 	Melissa Goodwin, Justice
Before Justices Henson, Rose and Goodwin;
     Concurring and Dissenting Opinion by Justice Henson
Reversed and Remanded
Filed:   August 4, 2011
1.   The agreement also includes a hand-written sentence at the end of the first paragraph, but
it is not legible.
2.   The power of attorney further provided:

	Pritchard hereby gives and grants unto said Patterson the full power and authority to
do and perform all and every act and to do what so ever deemed as necessary to be
done in and about the specific and limited premises as set forth above as fully to all
intents and purposes as might or could be done if personally present with full power
hereby ratifying and confirming all that said attorney shall lawfully do or cause to be
done by virtue hereof.

	The Limited Power of Attorney shall expire in three-years, if not renewed; however,
if litigation has been filed in any State or Federal Court of law in respects to the
collection or foreclosure of the Note, the Limited Power of Attorney shall be
automatically extended until the Court, or any Appeals Court, has made a final ruling
in respects to the collection or foreclosure. 
3.   Pritchard did not attempt to show that any actual action taken by Patterson constituted the
unauthorized practice of law.  See Tex. Gov't Code Ann. § 81.101(a) (West 2005); Plano Surgery
Ctr. v. New You, 265 S.W.3d 496, 501 (Tex. App.--Dallas 2008, no pet.) ("When the illegality does
not appear on the face of the contract, it will not be held illegal and thus void unless the facts
showing its illegality are before the court.").
4.   See supra note 3.
5.   Given our conclusion that the trial court erred in granting summary judgment, we need not
address Patterson's remaining issues of (i) whether Patterson's causes of action other than breach
of contract survived even if the trial court correctly granted summary judgment on Patterson's breach
of contract claim and (ii) whether the trial court erred in granting objections to Patterson's affidavit. 
See Tex R. App. P. 47.1.
