Beatrice Zarate v. Aric Rodriguez Dba Mid-Town Realty
542 S.W.3d 26
| Tex. App. | 2017Background
- Zarate hired Rodriguez to broker sale/lease of her nightclub; they signed a Listing Agreement May 5, 2009, and an Amended Listing Agreement providing staggered commission payments; Rodriguez procured tenant Ponce, who later abandoned the lease.
- Rodriguez was a licensed sales agent (sponsored) before April 29–30, 2009, and obtained a broker license on April 29–30, 2009; dispute concerned whether Rodriguez was a "license holder" when he first contacted Zarate.
- Zarate paid Rodriguez only an initial $6,750; she refused later payments, and Rodriguez sued for breach of contract and quantum meruit; Zarate pleaded numerous affirmative defenses and counterclaims (fraud, DTPA, breach of fiduciary duty, etc.).
- Rodriguez filed no-evidence summary-judgment motions on many of Zarate’s affirmative defenses and counterclaims; the trial court granted parts of those motions and denied others; the case went to jury, which found for Rodriguez and awarded $23,375 plus attorney’s fees.
- At trial Rodriguez was allowed to file a trial amendment asserting he was a "license holder at all times relevant"; Zarate’s late request to amend to add a statutory penalty claim for unlicensed practice was denied.
- On appeal the Fourteenth Court of Appeals affirmed most rulings but held the trial court erred in granting no-evidence summary judgment on Zarate’s waiver affirmative defense; the judgment was reversed and remanded only as to waiver and attorney’s fees.
Issues
| Issue | Plaintiff's Argument (Zarate) | Defendant's Argument (Rodriguez) | Held |
|---|---|---|---|
| 1. Whether Rodriguez pleaded and proved he was a "license holder" when the act commenced under Tex. Occ. Code §1101.806(b) | Rodriguez began offering broker services before obtaining broker license; his pleadings in present tense were insufficient | He had been a sponsored sales agent and obtained a broker license before listing and marketing; trial amendment cured any pleading defect | Court: Overruled Zarate; Rodriguez adequately pled and proved he was a license holder at relevant times, and amendment was proper |
| 2. Whether the trial court abused discretion by denying Zarate leave to file a trial amendment adding a statutory penalty claim (unlicensed practice) | Amendment was based on facts already in the case and should be allowed | Amendment was a new substantive claim made after Rodriguez rested and would unfairly surprise/prejudice Rodriguez | Court: Denial affirmed — amendment was prejudicial, untimely, and could have been made earlier |
| 3. Whether trial court abused discretion by allowing Rodriguez to file a trial amendment clarifying his license status | Allowance prejudiced Zarate by altering trial posture | Amendment was procedural, merely conformed pleadings to the evidence already adduced | Court: Overruled Zarate’s complaint — amendment was procedural and must be allowed |
| 4. Whether the no-evidence summary judgments on affirmative defenses and counterclaims were proper (esp. waiver) and scope of remand for attorney’s fees | Many defenses and counterclaims lack evidence; some summary judgments were erroneous (esp. waiver) | Movant argued no evidence on specific claims; Zarate failed to respond to 2014 motion on counterclaims | Court: Most summary-judgment grants were harmless because issues were submitted to jury, but grant on waiver was reversible error; counterclaims grants affirmed where Zarate failed to respond; remand limited to waiver and attorney’s fees |
Key Cases Cited
- Tanglewood Homes Ass’n v. Feldman, 436 S.W.3d 48 (Tex. App.—Houston [14th Dist.] 2014) (trial amendment standards and abuse of discretion review)
- Houston Med. Testing Serv., Inc. v. Mintzer, 417 S.W.3d 691 (Tex. App.—Houston [14th Dist.] 2013) (JNOV standard)
- Roark v. Allen, 633 S.W.2d 804 (Tex. 1982) (fair-notice pleading standard)
- Dean A. Smith Sales, Inc. v. Metal Sys., Inc., 397 S.W.3d 305 (Tex. App.—Dallas 2013) (license-holder requirement for broker’s recovery)
- Justice v. Willard, 538 S.W.2d 651 (Tex. App.—Amarillo 1976) (commission earned when license required)
- Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919 (Tex. 2005) (harmless-error analysis for subsequent events)
- Green Int’l, Inc. v. Solis, 951 S.W.2d 384 (Tex. 1997) (attorney’s fees may be affected by retrial on discrete issues)
- KBG Inv., LLC v. Greenspoint Prop. Owners’ Ass’n, Inc., 478 S.W.3d 111 (Tex. App.—Houston [14th Dist.] 2015) (elements of waiver)
- Transcontinental Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685 (Tex. App.—Houston [14th Dist.] 2010) (failure to respond to no-evidence motion requires grant)