Arlington Home, Inc. v. Peak Environmental Consultants, Inc.
361 S.W.3d 773
Tex. App.2012Background
- Arlington sued Live Oak and Coldwell Banker for negligence, DTPA violations, and negligent misrepresentation after a mold inspection.
- Live Oak performed a mold inspection under a 2005 contract; later extensive mold was found during remodeling.
- Martens emailed Arlington’s agent stating the property “passed” and no significant mold problems, which Arlington relied upon.
- Arlington incurred about $539,595 in mold remediation costs and asserted related damages and fees.
- The jury found Live Oak liable for negligence and misrepresentation DTPA claims; contract claim against Live Oak remained with fees awarded; trial court entered JNOV for Live Oak and awarded fees to Live Oak and Coldwell Banker.
- This appeal challenges the JNOV basis and the attorney’s fees award; the appellate court affirms the JNOV but reverses/remands on fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the JNOV on Arlington’s negligence claim was proper. | Arlington argues contract-based duties support tort claims; proximately caused damages. | Live Oak contends the economic loss rule bars tort recovery for contract-based duties. | Yes; JNOV proper on negligence under the economic loss rule. |
| Whether Arlington’s negligent misrepresentation claim survives JNOV. | Misrepresentations during email met the facts and reliance elements. | No actionable misrepresentation; statements were opinions or non-existing-fact representations. | Yes for JNOV on misrepresentation was appropriate; misrepresentations not proven. |
| Whether Arlington’s DTPA claim survives JNOV. | DTPA failure-to-disclose induced Arlington to purchase; intent to induce shown. | There is no evidence Live Oak intended to induce; emails were not proven to be misrepresentations of existing facts. | No; JNOV affirmed on DTPA claim. |
| Whether Coldwell Banker can recover attorney’s fees under the earnest money contract. | Unsegregated fees should be recoverable if they relate to both contract and tort claims. | Fees must be segregated if intertwined with unrecoverable claims. | Live Oak’s fees must be segregated; remand for segregation. |
Key Cases Cited
- Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Tex. 2011) (multiple economic loss rules; injury type determines duty breached)
- DeLanney v. Southwestern Bell Tel. Co., 809 S.W.2d 493 (Tex. 1991) (economic loss rule bars tort when injury is contract-based)
- Faircloth v. Transp. Ins. Co., 898 S.W.2d 269 (Tex. 1995) (distinguishes factual misrepresentation vs. opinion; duty to disclose)
- Hester v. Friedkin Cos., Inc., 132 S.W.3d 100 (Tex. App.—Houston (14th Dist.) 2004) (no implied misrepresentation where claim lacks factual basis)
- Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) (segregation of attorney’s fees when recoverable and unrecoverable claims exist)
- Italian Cowboy Partners, Ltd. v. Prudential Insurance Co. of America, 341 S.W.3d 323 (Tex. 2011) (superior knowledge and misrepresentation analysis; actionable statements)