*1 writ), al Paso — El the introduction of extrinsic lowed found ambi grounds. That court contract, relied on guity in the Scott rule and relied on the Murphy,
followed
Powers,
writ), by appellant, the third case cited looking applied the rule of at circum they existed at the time
stances as These into the contract.
parties entered position. support
cases do not Lake’s regarding how to is silent a contract option may exer- option, an
exercise optionor by the final by notifying
cised tendering option clause and
date a reasonable time
performance within here, as in We hold that
thereafter. proper
Matcher, gave and Dale Maxwell to Lake performance tendered
notice and time, thereby properly a reasonable
within re-
exercising option. re- the trial court’s
verse judge to the trial
mand with instructions specific performance of the contract
order attorney’s to determine a reasonable and Dale.
fee to be awarded to Maxwell are taxed to Lake.
Costs
Reversed and remanded. Rita
Eddie CORTEZ and Cortez
Individually and d/b/a
Agency, Appellants, LAW PRACTICE OF
UNAUTHORIZED
COMMITTEE, BAR OF STATE
TEXAS, Appellee.
No. 05-84-00072-CV. Appeals
Court
Dallas.
May 1984.
Rehearing July 1984. Denied
knowledge performing in certain services pertaining The trial immigration. court granted judg- motion for the committee’s notwithstanding ment the verdict and en- permanent injunction against tered a Cortezеs.
In their point, first the Cortezes contend evidence raised an issue fact for point, In their second Cor- question of tezes contend that what acts of law is for constitute point, their third the Cortezes in holding contend that the trial court erred aas matter of law that their acts and practices constituted the law. agree that the trial and conclude judgment notwithstand- verdict. reverse dissolving injunc- and render tion. operate
Mr. and and Mrs. Cortez own Agency, Cortez which consists book- keeping immigration services. The immigration Cortezes advertise their ser- fee, vices, they charge usually for which $400.00, generally publications readers. A Spanish speaking serve fair translation of one such advertisement is as follows: years
The had 35 Agency Cortez has immigration experience every kind of case. is or claims to
Neither the Cortezes be a Agency attorney. The was licensed Cortez Weed, Dallas, appellants. Allen begun in father and 1947 Mr. Cortez’s III, Bader, Dallas, appel- Bertrán T. building has been located in the same since lеe. agency The at the 1952. father started of the suggestion vice-consul Mexi- STOREY, WHITHAM and Before office, recognized the can Consul’s SHUMPERT, JJ. need for this kind of service. father retired in and the Cortezes became WHITHAM, Justice. agency years involved later in case. injunction Appellee, is an This performs 1975. Mr. now book- Cortez of Law Practice Committee Unauthorized services, while his wife keeping and tax appellants, sued of the State Bar immigration primarily work handles Individually and Rita Cortez Eddie and taught her Mrs. by her father-in-law. Cor- Agency, under TEX.REV. d/b/a the Cortez nothing knew about the tez admitted she (Vernon Supp. 320a-l art. CIV.STAT.ANN. Immigration Nationality Act. 1984), engaging in acts enjoin them agency’s customers are interested in which constitute the unau- obtaining permanent residency in the Unit- law. The found thorized States, A ed for themselves others. exercised skill or opinion, nei- ‘legal 1-130. In Mr. Sauceda’s obtaining method of the status of catego- qualify completion alien’ is to under one of the nor ther selection ‘preferences.’ ‘preference’ A ries of deals judgment. As requires 1-130 eligibility by alien’s rela- virtue of the forms, testified that to other Mr. Sauceda tionship citizen or with United States inquire further into the back- merely these ques- Mrs. permanent resident. require ground of the alien and did not *3 they and determined if tioned customers legal judgment. in- qualified preference for a under the hand, the committee’s ex- On the оther did, they on certain structions forms. witness, Foster, con- pert presented Mr. a filling she the customer in out the aided trary view. Mr. Foster testified that ser- forms, it. Mrs. and told them where to file vices such as those rendered the Cortez normally Cortez testified that there were Agency require legal would skill and (Peti- completed: to be 1-130 forms knowledge. partiсular, Mr. Foster testi- Classify tion to Status of Alien Relative for legal exercise skill in fied that one must Visa); Immigration G-325A Issuance simply deciding or not to file an whether Information); (Pe- (Biographical and 1-485 directly 1-130. This conflicts with the Additionally, Acquire Residency). to tition expressed, viewpoint which Mr. Sauceda helped prepare various other Mrs. Cortez namely, only way the 1-130 is the to relating immigration matters. forms to begin immigration process. Mr. Foster example, occasionally helped pre- For she that selection of other further testified (Petition Prefer- pare Classify the 1-140 to knowledge. requires legal forms skill and Alien on the of Profes- ence Status of Basis is re- legal Mr. Foster testified that skill testified, Occupation). sion or She how- quired to determine how much should be ever, she did not make the determina- forms, in the various while Mr. disclosed required tion whether the alien the 1-130 the form is Sauceda testified that unless relative) (preference on I- based a or the out, Immigration and completely filled (preference job), based because reject it. Naturalization Service will the 1-140 was initiated the alien’s em- ployer approved by Department object did not The committee week, reaching her. Labor before Twice charge the follow- court’s which submitted attorney a licensed at came to his rent- law jury without ing special sole issue to the provided by agency free office to offer explanatory instruction: legal needing advice to their customers it. you preponderance find from a Do prepared by He did not review the files Agency has the evidence that the Cortez represent agen- did Mrs. Cortez and requir- given advice or rendered service cy. agency him referred сustomers to knowledge ing legal skill and the use deportation pro- to handle such matters as interviewing persons advising ceedings legal and for advice and counsel. peti- as to whether or not to file a them parties experts qualified called as Both Immigration application tion or under n expert, attorneys at law. The Cortezes’ Act secure and Naturalization a bene- Sauceda, opinion testified that in his Mr. client fit for the client or relative of the re- Mrs. Cortez was not services require a careful determination which legal knowledge. quiring the use of facts, conclusions and conse- cross-examination, Mr. Sauceda disa- Upon quences involved? greеd the characterization of the form with jury answered “we do not.” attorneys say petition 1-130 as a “as would impression of first Tex- This is a case Mr. Sauce- to start an action a lawsuit.” dealing the Texas cases with as. None of is much also testified that the 1-130 da practice of have ad- the unauthorized law a will or other docu- different from immigrа- question of whether dressed the requires appropriate or “art- ment which by the provided such as those tion services legal judgment legal language and ful” practice of law. constitute the only form to since there is one standardized any reported in Texas that is Nor has immigration process start advertisement, might indi- decided the Cortez elsewhere been found which has law, province whether it is within the cate the jury acts or judge or of the to characterize referral of its customers alleged services attorney needing legal advice to a licensed Thus, error, points under the we must law, might negate practice of question decide whether there can be a fact Therefore, in a case such as law. and, so, jury if case, judicial we conclude that the an issue for whether the evidence raised find- decision-making process requires fact the Cortezes en- to determine whether First, there can be a we consider whether Under our gaged in the law. begin question fact necessary system, must mаke the practice understanding this law: findings. generally understood According to the judicial “the Pointing to the words *4 law, practice the of it em- definition of committee, nevertheless, branch,” in- the and preparation pleadings the of braces is one of law for the question sists that the special of papers other incident to actions pursuant to TEX.REV.CIV.STAT. management and the of proceedings, § 320a-l, 19(a) (Vernon Supp. ANN. art. proceedings on behalf such actions and 1984). reads: That statute judges in courts. How- of clients before Act, practice this the purposes For of ever, of is not confined practice the law of preparation of law embraces fаct, In to cases conducted court. papers incident to pleadings and other practice any capa- portion of the of major special proceedings and the actions of done outside lawyer consists of work ble proceed- actions and management of the in- practice of law of the courts. judges in ings on behalf of clients before in court in only appearance not
volves
services rendered out of
courts as well as
litigation,
also servic-
with
but
connection
court,
or
including
giving
of advice
court,
of
and includes
es rendered out
requiring
of
service
rendering of
giving
advice or the
of
knowledge,
or
such
legal
legal
the use of
skill
requiring the use of
any service
will, contract,
preparing
as
a
or other
knowledge,
preparing
skill or
such
a
instrument,
will,
or other
instrument,
contract
un-
legal effect of which
facts and
legal effect of which under the
and conclusions involved
der the facts
carefully
involved must be
conclusions
This defi-
carefully determined.
must be
dеtermined.
not de-
exclusive and does
nition is not
power
Practice Commit
Davies v. Unauthorized.
prive
judicial branch
Texas, 431 S.W.2d
Bar
tee
the State
under this Act and
authority both
and
1968,
590,
(Tex.Civ.App. Tyler
to determine
adjudicated cases
—
n.r.e.).
ref d
and acts not enu-
services
whether other
may
Act
constitute
merated in this
long
hard at
have looked
аnd
ours).
(emphasis
as to the acts and
undisputed
practice
facts
the trial
of the Cortezes. Unlike
view,
are com-
judge
In
both
our
certainty
court,
say
that
we cannot
with
judicial branch.” Conse-
ponents of “the
use of
require “the
those services
320a-l,
that article
quently, we conclude
Davies,
knowledge.”
§ 19,
judge alone
mandate that a
does not
certainty that
saywe
593. Nor can
Therefore,
hold that ar-
we
decide.
should
practices]
the acts and
legal effect
“the
[of
§
320a-l,
render the
does not
ticle
carefully determined.”
must be
for the court.
one of law
question
that
We conclude
at 593.
construing
prohib
acts are
what
does
undisputed evidence
present case the
comprehen
ited,
impossible to define
it is
matter of law
holding as a
permit
not
a
law and each
sively
practices of the Cortezes
acts and
that the
facts.
particular
own
decided on its
must be
For exam
practice of law.
constituted the
Com-
Practice
v. Unauthorized
weigh evidence of Palmer
thе need to
ple, consider
any less
mittee
the State Bar
of fact because
not become
one
lawyers
jurors
are
are not.
judges
— Houston
writ).
Cases from
[14th Dist.]
We conclude that
the trial court
jurisdictions suggest
other
in a situa
rendering judgment
notwithstand
present
question
tion such as the
the facts
ing the verdict
the basis that
law
of what constitutes
only а
undisputed and
remained
there
were
question
a
This
should be
for the
That the
of law
the courts.
question
way:
has
this
suggestion
expressed
been
always elimi
undisputed
are
does not
facts
criteri-
development
any practical
right
finding.
to a
reason
nate the
fact
determining
on for
constitutes the
what
or
minds can draw different inferences
ablе
law,
application
as well as the
facts,
fact
undisputed
from
a
conclusions
criterion,
closely related
of such
must be
Commercial Standard
presented.
is
issue
purposes
attorneys
are
Davis,
Insurance Co.
134 Tex.
occupants
licensed as the
exclusive
(1940).
We conclude that
However,
their field.
what is difficult
present
could draw
case reasonable minds
question
demanding the
doubtful
of law
inferences
different
or conclusions
mind is not
of a
application
trained
follows,
we so
undisputed facts.
It
by
comprehension
to be measured
hold,
question
that there is
legal mind,
a trained
but
emphasize,
jury in the
case. We
understanding
pos-
which is
thereof
however,
holding
reаch this
under
lay-
reasonably intelligent
sessed
the facts of the
case. We do
man who
reasonably
familiar with
*5
in
may
there
be a case
hold that
never
similar transactions.
undisputed
as a
the
evidence shows
§
Attorney and
(1980)
Client
7 C.J.S.
29
person
engaged in
matter of law that a
was
v. Con
(emphasis added);
Gardner
862
See,
Davies, 431
e.g.,
of law.
practice
the
468,
way, 234 Minn.
788,
794
48 N.W.2d
S.W.2d at 592.
Agran
(1951);
Shapiro,
v.
127 Cal.
807,
Sup.
619,
(1954).
App.2d
273 P.2d
626
Next,
the evi
we consider whether
Furthermore,
involving
in
the
cases
jury. We
dence raised an issue for the
medicine,
Texas
unauthorized
of
that
have concluded
jury
court has held that
it is for the
to
in
minds
different
reasonable
could draw
practicing
the
decide whether
defendant
is
undisput
from the
ferences or conclusions
State,
medicine. Robertus
v.
119 Tex.
hold,
follows,
It
so
evidence.
and we
ed
370,
595,
(1931) (ques
45
Crim.
S.W.2d
597
for the
that such evidence raised an issue
chiropractor was
tion of whether defendant
expert
jury.
jury
the
also heard
While
medicine”
“practicing
was a conclusion
opinion
read as
testimony, this
is not to be
decide).
respeсt
jury
to
With
testimony itself
holding
expert
that
medicine,
rule
general
for
do not
an issue
raised
stated as
has been
follows:
expert
testimony can
used to
that
hold
prosecution
practicing
medicine
In
where
a fact
issue in a situation
create
healing
specific branch
arts
some
different
minds could
draw
reasonable
authority,
a liсense or
it is
without
undis
from the
inferences or conclusions
decide,
jury
to
where the evidence
puted evidence.
sufficient.
however,
expert
testimony,
§ 28
Physicians
Surgeons,
C.J.S.
70
in
once
properly admitted
was
therefore,
(1951)
conclude,
at 929. We
undisputed
raised
jury issue was
handed in
judicial system
even
must be
rule,
peculiarly
general
As a
it is
evidenсe.
Judges,
lawyers,
approach.
as former
its
weigh
jury to
province of the
within
chal-
may
qualified
feel
characterize
to
of ex
judgment
opinion evidence
involving
prac-
in a
lenged conduct
Blank
Co. v.
Refining
Octane Oil
perts.
law, yet
expertise
admit
lack
tice
Co.,
117
Implement
enship-Antilley
regulated
are con-
professions
other
where
885,
Nevertheless,
question does
886
cerned.
— Eastland
1938, writ).
549,
province
berg,
(Tex.Civ.App.—
no
It is within the
604 S.W.2d
1980,
jury
expert
writ);
to decide which
witness Waco
no
Glass v. Great South
Airlines,
should be credited.
247,
American
Co.,
ern
Insurance
170 S.W.2d
Life
States,
180,
Inc. v. United
418 F.2d
1943,
249 (Tex.Civ.App.
writ
— Galveston
(5th Cir.1969). Therefore,
jury’s
it was the
w.o.m.). Ordinarily,
ref’d
in the absence of
prerogative
credit the
case to
exempting
governmental
a statute
unit
testimony of Mr. Sauceda over the testimo
costs,
payment
of court
it is liable
ny
jury
Mr. Foster.
chose to draw just
litigant.
other
Reun
as
Childs v.
the same conclusions from the facts as Mr.
Bank,
466,
(Tex.Civ.
ion
them, specifically,
Sauceda drew from
n.r.e.); see,
App.
ref’d
writ
— Dallas
the Cortezes exercised nо
(Tex.Civ.
State,
State enters the any other
places itself on the same basis as
litigant. Reyna Texas v. Gold- State of