Bowen Zhu and Jain Yu v. Kai C. Lam and the Housesold Realty, Inc.
426 S.W.3d 333
Tex. App.2014Background
- Buyers Bowen Zhu and Jian Yu purchased a house represented as 2,722 sq ft for $180,000; after moving in they discovered furniture would not fit and had the house re-measured.
- Harris County Appraisal District later listed the house as 1,967 sq ft (a 755 sq ft difference). Buyers sued agent Kai C. Lam and Housesold Realty for DTPA violations, negligent misrepresentation, and breach of fiduciary duty.
- Lam moved for no-evidence summary judgment on each claim. Buyers responded with: Zhu’s affidavit, Lam’s deposition and exhibits, two Appraisal District printouts, and an email.
- Trial court struck parts of Zhu’s affidavit (value opinions) and excluded one Appraisal District printout as hearsay/untrustworthy, then granted no-evidence summary judgment for Lam on all claims.
- Buyers appealed, challenging the summary judgment and the evidentiary exclusions; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was improper because genuine fact issues exist on DTPA and negligent-misrepresentation damages | Zhu argued damages exist and are effectively presumed; submitted affidavit and Appraisal District data | Lam argued no evidence of fair-market value/pecuniary loss; trial court struck Buyers’ value evidence | Affirmed: buyers produced no admissible evidence of value/damages, so no-evidence summary judgment proper |
| Whether Lam breached fiduciary duty by misrepresenting square footage and other statements | Buyers argued Lam repeated seller/listing-agent representations and told Zhu he could not back out (would be sued) | Lam argued no evidence he knew true square footage or had duty to measure; contract permitted seller remedies | Affirmed: no evidence Lam knew actual size or that he was required to investigate; no breach shown |
| Whether trial court abused discretion by striking portions of Zhu’s affidavit on market value as conclusory | Buyers contended Zhu (as owner) was qualified to state market value and provided some basis (visiting houses, prior home) | Lam asserted Zhu’s $140,000 opinion was a naked conclusion without factual basis | Affirmed: owner testimony requires factual basis; Zhu’s opinion was conclusory and inadmissible |
| Whether the Appraisal District website printout was admissible under public-records hearsay exception | Buyers argued the later printout is a public record under Tex. R. Evid. 803(8) | Lam objected on hearsay and trustworthiness grounds; trial court noted conflicting printouts and lack of foundation | Affirmed: Buyers raised the exception too late and the contradictory printouts undermined trustworthiness, so exclusion was proper |
Key Cases Cited
- Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642 (review standard for summary judgment) (explaining de novo review)
- City of Keller v. Wilson, 168 S.W.3d 802 (evidentiary sufficiency standard for summary judgment review)
- Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (no-evidence summary judgment burden-shifting principles)
- W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127 (measure of out-of-pocket and benefit-of-the-bargain damages)
- D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662 (definition of pecuniary loss for negligent misrepresentation)
- Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150 (owner opinion testimony requires factual basis; unexplained ipse dixit insufficient)
- Tex. R. Evid. 803(8) authorities: Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897 (proponent bears burden to show hearsay exception applies)